Stanislaus Natural Heritage Project v. County of Stanislaus

Page 625

55 Cal.Rptr.2d 625

48 Cal.App.4th 182, 96 Cal. Daily Op. Serv. 5985,

96 Daily Journal D.A.R. 9721

STANISLAUS NATURAL HERITAGE PROJECT et al., Plaintiffs and Appellants, v. COUNTY OF STANISLAUS, Defendant and Respondent DIABLO GRANDE LIMITED PARTNERSHIP, Real Party in Interest and Respondent.

No. F023638.

Court of Appeal, Fifth District, California.

Aug. 8, 1996.

Certified for Partial Publication. ^*

As Modified on Denial of Rehearing

Sept. 6, 1996.

Review Denied Nov. 13, 1996.

[48 Cal.App.4th 185] Brandt-Hawley & Zoia, Susan Brandt-Hawley and Rose M. Zoia, Glen Ellen, for Plaintiffs and Appellants.

Shute, Mihaly & Weinberger, Mark I. Weinberger and Tamara S. Galanter as Amici Curiae on behalf of Plaintiffs and Appellants.

Michael H. Krausnick, County Counsel, and E. Vernon Seeley, Assistant County Counsel, for Defendant and Respondent.

Meyers, Nave, Riback, Silver & Wilson, Steven R. Meyers, Andrea J. Saltzman, San Leandro, Rick W. Jarvis, Normoyle & Newman, Russell A. Newman, Modesto, and [48 Cal.App.4th 186] George A. Petrulakis, Stockton, for Real Party in Interest and Respondent.

OPINION

ARDAIZ, Presiding Justice.

The "tiering" provisions (Pub. Resources Code, §§ 21068.5, 21093, 21094 see fn. 5 infra) of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., or CEQA) enable a public agency to avoid, under some circumstances, having to undertake a repetitious analysis of significant environmental effects of a project when those effects have previously been addressed in an earlier environmental impact report (EIR). In the case before us a public agency approved an environmental impact report for a project calling for the creation of a 29,500 acre, 5,000 residential unit destination resort and residential community without an on-site water source, but deferred any analysis of significant environmental effects of supplying that water with the understanding that any such effects would be addressed in a later EIR to be prepared after the project was approved. In the published portion of this opinion, we hold that the provisions of CEQA do not exempt a public agency from the Public Resources Code section 21100 requirement that an EIR shall include a detailed statement setting forth "[a]ll significant effects on the environment of the proposed project," and that under the facts of the present case the superior court erred in upholding the approval of an EIR which deferred any consideration of any significant environmental effects of supplying water to the new community.

INTRODUCTION

In 1993 respondent County of Stanislaus (County) certified an EIR for a proposed specific plan (the Diablo Grande Specific Plan, or plan) submitted by respondent Diablo Grande Limited Partnership (Diablo Grande) and calling for the creation of a 29,500-acre destination resort and residential community in southwest Stanislaus County. The resort community (the project) was to include scenic open spaces, a wilderness conservation area, six golf courses, swim and tennis facilities, a hotel and executive conference center, a winery, vineyards, a research campus, municipal facilities, a "town center," shops and offices, and five "villages" containing a total of 5,000 residential units.

Certain portions of the project area had been restricted to agricultural use in accordance with so-called "Williamson Act contracts" (see Gov.Code, § 51200 et seq.) between the property owners and the County. Under certain circumstances, such a contract can be canceled by a county at the request of a property owner. In this case the County canceled a portion of a Williamson Act contract so that the project could be developed.

After the County certified the EIR and canceled the Williamson Act contract, appellants brought a petition for writ of mandate asking the superior court to set aside the County's certification of the EIR and the County's cancellation of the Williamson Act contract. ¹ The court denied the petition and entered judgment in favor of the County.

APPELLANTS' CONTENTIONS

Appellants' primary contention on this appeal is that the EIR is legally inadequate because it does not "address the procurement and impacts of a permanent water supply."

Second, appellants argue that the County's cancellation of the Williamson Act contract violated that act in several respects, including a violation of a purported requirement that such contracts may be canceled only in "emergency" situations.

Third, appellants raise several conclusory arguments that the superior court erred in failing to find other violations of CEQA and of the California Endangered Species Act (CESA). With regard to CEQA, appellants contend that the EIR is inadequate because it fails to adequately address impacts on wildlife, vegetation and air quality. Appellants further contend that the court erred in failing to find that the EIR should have been recirculated for further public review as a result of comments submitted during the public comment period. With regard to CESA, appellants appear to argue that the County's adoption of the Diablo Grande Specific Plan constituted the "take" of an endangered and threatened species, the San Joaquin kit fox.

In part I of this opinion we will address appellants' primary argument, namely that the EIR is legally deficient because it fails to "address the procurement and impacts of a permanent water supply." In an unpublished portion of this opinion we will address appellants' contention that the County's violation of the Williamson Act contract was unlawful. In another unpublished portion we will turn to appellants' remaining arguments.

FACTS

A. The Proposed Project

On January 3, 1991, respondent Diablo Grande submitted a formal application to the County for adoption of a specific plan for a 29,500-acre destination resort community. Diablo Grande also submitted applications for approvals of a general plan amendment and a rezoning consistent with the plan and a completed environmental questionnaire.

The draft specific plan was "prepared to meet the requirements contained in section 65450 et seq. of the Government Code." ² The draft specific plan called for over 18,700 acres of open space, 5,000 residential units of various sizes and types clustered in 5 villages, a hotel and conference center, 6 golf courses, a swim and tennis club, a winery and vineyard, a research campus and certain supporting facilities. It envisioned that development would occur in 4 overlapping phases over 25 years. Phase 1 was to be completed in year 15. Phase 2 would begin in year 5 and end in year 15. Phase 3 would begin in year 10 and end in year 20. Phase 4 would begin in year 15 and end in year 25. Each phase was to cover a different area of the overall plan area and required approval of a "Preliminary Development Plan" (PDP), which would establish the general regulations for development within the PDP area.

The draft specific plan included a PDP for the first 15-year phase of development covering roughly 2,000 acres and the construction of the primary access road. The phase 1 PDP encompassed most of the first village, 2,000 residential units, the hotel and conference center, the swim and tennis club, 2 golf courses and the access roads. A "mini-phase 1" development for the first five years of phase 1 (also referred to as the Five Year Plan) included one golf course and clubhouse, the winery and vineyard, the hotel, a maintenance center, the first phase of the swim and tennis club and two hundred residential units. ³

The general plan amendment was requested by Diablo Grande to change the land use designation of the project area in the County's general plan from "agriculture" to designations consistent with the project. Similarly, the rezoning was requested to change the project area zoning to zoning consistent with the project. Diablo Grande also requested that the County cancel a contract which restricted the property within the phase 1 area to agricultural use for property tax purposes pursuant to the Williamson Act.

B. The Environmental Setting of the Project

The 29,500-acre project area, all of which is owned by Diablo Grande, is located in the foothills of the Diablo Range. The Diablo Range forms the western rim of the San Joaquin Valley and is in the southwestern area of the County. The area consists of gently sloping to steep ridges, vegetated primarily with nonnative grasses, native trees (dominated by blue oak) and brush. There are many animal and plant species present or potentially present in the project area, including some of "special status." Portions of the area have been identified as potential habitat for the San Joaquin kit fox (considered an endangered species) but no kit fox have been observed in the area. The access roads, however, traverse kit fox habitat.

The project area is generally dry although there are some riparian habitats, stemming from intermittent creeks, stock ponds and springs. The area does not contain enough on-site sources of water to support the project and, as the draft specific plan stated, "off-site water must be obtained for both residential and commercial purposes."

The project area is now being and has been used for years as rangeland for livestock. Less than one percent of the area (approximately 200 acres, located in the phase 4 and 5 areas) is considered "prime" agricultural land. Given the nature of the soil and the slope and the limited on-site water, the rest of the area is considered "limited base" agricultural land, suited for activities such as grazing. Parts of the area have "little grazing value."

The surrounding region, from the Altamont Pass in Alameda County to the southern tip of the Temblor Range in Kern County, is little different in terms of use and biology. There are no cities of any appreciable size. The immediately adjacent properties (51 parcels with 28 owners) were also used for rangeland and also are not considered to be prime agricultural...