Sierra Club v. Cnty. of San Diego

SIERRA CLUB, Plaintiff and Respondent, v. COUNTY OF SAN DIEGO, Defendant and Appellant;

INTEGRAL COMMUNITIES, LLC et al., Real Parties in Interest and Appellants.

D077548, D077972

California Court of Appeals, Fourth District, First Division

December 21, 2021

NOT TO BE PUBLISHED

CONSOLIDATED APPEALS from a judgment of the Superior Court of San Diego County No. 37-2018-00043084-CU-TT-CTL, Katherine A Bacal, Judge. Affirmed.

Hecht Solberg Robinson Goldberg & Bagley, Richard A. Schulman Beth Abramson, Sadaf Behdin; Richard A. Schulman for Real Party in Interest and Appellant RCS-Harmony Partners, LLC.

Sheppard, Mullin, Richter & Hampton, John R. Ponder, Karin Dougan Vogel, Whitney A. Hodges, and Dana Dunwoody for Real Party in Interest

and Appellants Integral Communities LLC and The Eden Hills Project Owner, LLC.

Chatten-Brown Carstens & Minteer, Amy Minteer, Josh Chatten-Brown, Michelle Black, and Sunjana Supekar for Plaintiff and Respondent Sierra Club.

McCONNELL, P. J.

In the trial court, Sierra Club challenged the County of San Diego's (County) approval of three housing developments proposed for undeveloped portions of the county. The three developments are known as Harmony Grove Village South (Harmony Grove), Valiano, and Otay 250.) A primary basis for Sierra Club's petition for writ of mandate was its assertion that the approvals were made in violation of the California Environmental Quality Act (Pub. Resources Code, ^[1] § 21000 et seq., CEQA) because they did not adequately mitigate the projects' expected greenhouse gas (GHG) emissions.

Sierra Club's challenge followed its successful separate litigation (with other environmental organizations) challenging the County's Climate Action Plan (CAP) under CEQA based on the County's failure to incorporate sufficient GHG mitigation measures in the Environmental Impact Report (EIR) for the CAP. That case precipitated changes to the CAP, which were again successfully challenged for continuing to provide insufficient GHG emission mitigation. The County's appeal to this court of that second challenge to the CAP was pending at the time the litigation in this case was proceeding in the trial court.

Before the hearing on the Sierra Club's petition in this case, the Otay 250 developers reached a settlement and were dismissed from the case.

After the hearing, the trial court found the County's approvals of Harmony Grove and Valiano were invalid because the GHG mitigation measures in those projects' EIRs failed to satisfy CEQA and were inconsistent with the County's General Plan. The developers of Harmony Grove and Valiano, who are the real parties in interest, and the County filed notices of appeal from the order granting in part Sierra Club's petition.

Before judgment was entered, this court affirmed the trial court's decision in the earlier litigation finding the GHG mitigation measures in the EIR for the revised version of the CAP were insufficient under CEQA. (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467 (Golden Door IT).) Thereafter, final judgment in this case was entered by the trial court.

Before briefing, the County dismissed its appeal. The Harmony Grove and Valiano developers, however, continued their challenges. Harmony Grove's developer, RCS-Harmony Partners, RCS (Harmony), argues the judgment must be reversed because its GHG emission mitigation measures are consistent with our decision in Golden Door II and because the County's approval of those measures is supported by substantial evidence. The Valiano appeal is narrower. Its developers, Integral Communities LLC and The Eden Hills Project Owner, LLC (collectively, Integral), concede the GHG mitigation measures contained in its EIR are insufficient to satisfy CEQA. Integral contends, however, that the trial court's judgment should be reversed and remanded with directions for the court to direct the County to reinstate its approval and simply modify the GHG mitigation measures to conform with Golden Door II.

For the reasons discussed herein, we reject both Harmony's and Integral's appellate contentions and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. Harmony Grove Administrative Proceedings

Harmony Grove is a proposed extension of an existing development located in the northeast part of San Diego County. The project, situated on 111 acres, is approximately two and half miles west of Interstate 15 and a little over two and half miles south of State Route 78. The proposed project consists of 453 dwelling units, both single family and multi-family residences, and 5, 000 square feet of commercial and civic use space. The project also includes 75 acres of outdoor recreational space and undeveloped open space.

After preliminary meetings with the County in 2014, on March 25, 2015, Harmony submitted its initial application for approval of the project, including an amendment to the County's General Plan. The County published a draft EIR on April 20, 2017 soliciting public comment. In response to comment and the separate Sierra Club challenge to the CAP discussed in the introduction (Superior Court in Sierra Club v. County of San Diego, Case No. 2012-0101054/'Golden Door Properties LLC v. County of San Diego, Case No. 2016-0037402 (April 28, 2017)), which invalidated the GHG metric used in Harmony Grove's draft EIR, ^[2] the document was revised and published for a second time on February 22, 2018 for public comment on the revised portions.

The revised draft EIR explained that the project had been modified to reach a threshold of net zero GHG emissions in compliance with CEQA. The document explained the revised GHG analysis was not based on the invalidated CAP, but was consistent with the revised County CAP currently pending approval because the mitigation measures proposed for the development made the project carbon neutral. Specifically, the revised draft EIR stated its "Mitigation Measures M-GHG-1 and M-GHG-2 that require the Project to purchase and retire carbon offsets in a quantity sufficient to reduce emissions effects to net zero, is in accord with the Mitigation Measure M-GHG-1 from the County's Final Supplemental EIR (SCH No. 2016101055) for its CAP." The document also set forth a list of the design features the project would incorporate to mitigate GHG emissions, and which were included as conditions of approval, such as charging infrastructure for zero emission vehicles and solar/photovoltaic systems in all residential units and energy efficiency best practices.

By way of resolution, the County's Board of Supervisors certified the revised draft EIR and the Harmony Grove project's other entitlements on July 25, 2018.

B. Valiano Administrative Proceedings

The proposed Valiano project is located on 239 acres in an unincorporated portion of the county within the San Dieguito Community Planning area. The Valiano site is close to Harmony Grove; located approximately two and half miles west of Interstate 15 and one and a half miles south of State Route 78. The project includes 326 dwelling units and 54 accessory dwelling units in five new neighborhood configurations, which have varying densities, lot sizes, and architectural styles. The project includes 149 acres of open space, including outdoor recreational space, an agricultural easement, and undeveloped open space.

Integral applied to the County for project approval (which included amendment to the General Plan, adoption of a specific plan, and a vesting tentative map to divide the property) on February 28, 2013. The draft EIR for the project was circulated for public comment from April 30, 2015 to June 15, 2015. In response to comments and changes in decisional law related to GHG emissions, the document was modified and circulated again for public comment from December 8, 2016 to January 30, 2017.

As with the Harmony Grove project, in response to comments and Sierra Club's separate successful legal challenge to the CAP invalidating the GHG metric used in Valiano's draft EIR, the document was revised again. Unlike Harmony Grove, there was no additional public recirculation of the revised Valiano EIR and it became the final EIR for the project. The revised report explained that a supplemental analysis "was prepared to utilize the significance criteria in Appendix G of the CEQA Guidelines related to GHG emissions to evaluate the project's GHG emissions. The [s]upplement augmented the previous analysis, did not change the focus of the GHG Emissions Analysis or F[inal] EIR, or the existing Project Design Features resulting in less than significant GHG emissions, including independently committing to offsetting 100 percent of Project electrical uses through measures including on-site photovoltaic (PV; solar) panels." In addition, the final EIR explained that Integral "voluntarily committed to attaining net zero emissions; which further reduces the less than significant impacts identified" in the earlier versions of the EIR.

On May 11, 2018, the County Planning Commission recommended approval of the Valiano project after a noticed public hearing. On July 25, 2018, the County Board of Supervisors certified the EIR and approved the related project entitlements. The approval included mitigation measure M-GHG-1 to address the project's GHG emissions, both during construction and throughout the development's 30-year lifespan. The measure requires the developer to provide the County with evidence of its "one-time purchase of carbon credits sufficient to reduce the contribution of construction-related GHG emissions to zero."^[3] Likewise, with respect to operational emissions, i.e. emissions occurring after the completion of construction and during the life of the development, the measure requires...