Stop Syar Expansion v. Cnty. of Napa

63 Cal.App.5th 444

278 Cal.Rptr.3d 134

STOP SYAR EXPANSION, Plaintiff and Appellant,

v.COUNTY OF NAPA, Defendant and Respondent;

Syar Industries, Inc., Real Party in Interest and Respondent.

A158723

Court of Appeal, First District, Division 1, California.

Filed March 25, 2021

As Modified April 23, 2021

Certified for Partial Publication.^*

Chatten-Brown, Carstens & Minteer LLP, Amy C. Minteer, Santa Monica, Michelle N. Black, Hermosa Beach, and Sunjana Supekar for Petitioner and Appellant.

Napa County Counsel, Jeffrey M. Brax, Laura J. Anderson, Sonoma, and Christopher Y. Apallas for Respondent County of Napa.

Baker Botts LLP, Christopher J. Carr and Navtej S. Dhillon for Respondent and Real Parties in Interest Syar Industries Inc.

Banke, J.

I. INTRODUCTION

Stop Syar Expansion (SSE) has long opposed the expansion of Syar Industries, Inc.’s (Syar) aggregate operation. Syar filed an application for expansion in May 2008. After more than seven years of environmental review and numerous hearings, the County Planning Commission, in October 2015, certified the final Environmental Impact Report (EIR) and approved a modified project and a permit for an expansion half the size originally sought and subject to more than 100 pages of conditions and mitigation measures. SSE appealed both the EIR certification and the project and permit approvals to the County Board of Supervisions, asserting in the respective appeals that the EIR and the project and permit approvals were deficient in a multitude of respects. After nearly a year of additional environmental review and hearings, the Board, in a 109-page decision, rejected SSE's appeals, certified the EIR, and approved a further modified project and permit.

SSE filed the instant writ proceeding pursuant to Public Resources Code, section 21168,¹ challenging the certification of the EIR. It ultimately winnowed down its claims with respect to the EIR to 16 asserted deficiencies. After briefing by the parties and a hearing, the trial court, in a 42-page ruling, denied the writ petition on a variety of grounds, reaching the merits as to some issues and concluding SSE failed to exhaust administrative remedies as to others.

SSE appeals and, at this juncture, contends the EIR is deficient in five respects. We affirm.

II. DISCUSSION²

A. Basic CEQA Principles and Standard of Review

In South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 329–330, 245 Cal.Rptr.3d 174 ( South of Market ), we summarized the relevant CEQA principles and standard of review in a case like this one, where the petitioner's appeal "primarily challenges the content and analysis of the EIR." ( Id. at p. 329, 245 Cal.Rptr.3d 174.)

As we explained, the " ‘basic purpose of an EIR is to "provide public agencies and the public in general with detailed information about the effect [that] a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." ’ ( Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511 [241 Cal.Rptr.3d 508, 431 P.3d 1151] ... ( Sierra Club ).) ‘ " ‘The EIR is the heart of CEQA’ and the integrity of the process is dependent on the adequacy of the EIR." ’ ( Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 924 [146 Cal.Rptr.3d 12]....)" ( South of Market, supra, 33 Cal.App.5th at p. 329, 245 Cal.Rptr.3d 174.)

" ‘ " ‘ "[A]n EIR is presumed adequate ( Pub. Resources Code, § 21167.3 ), and the plaintiff in a CEQA action has the burden of proving otherwise." ’ " ’ ( Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 275 [148 Cal.Rptr.3d 310]....)" ( South of Market, supra, 33 Cal.App.5th at p. 329, 245 Cal.Rptr.3d 174.)

"As our Supreme Court recently explained in Sierra Club : ‘The standard of review in a CEQA case, as provided in sections 21168.5 and 21005, is abuse of discretion. Section 21168.5 states in part: "In any action or proceeding ... to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there was a prejudicial abuse of discretion." [Citation.] Our decisions have thus articulated a procedural issues/factual issues dichotomy. "[A]n agency may abuse its discretion under CEQA either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence. (§ 21168.5.) Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing court ‘may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and determine who has the better argument.’ " ’ ( Sierra Club, supra , 6 Cal.5th at p. 512 [241 Cal.Rptr.3d 508, 431 P.3d 1151].)" ( South of Market, supra, 33 Cal.App.5th at pp. 329–330, 245 Cal.Rptr.3d 174.)

"The court explained that this ‘procedural issues/factual issues dichotomy’ has worked well for courts reviewing agency determinations. ( Sierra Club, supra , 6 Cal.5th at p. 512 [241 Cal.Rptr.3d 508, 431 P.3d 1151].) Some procedural questions, such as whether the agency has provided sufficient notice and opportunity to comment on a [draft EIR], or whether it has entirely omitted a required discussion, have clear answers. ‘But the question whether an agency has followed proper procedures is not always so clear. This is especially so when the issue is whether an EIR's discussion of environmental impacts is adequate, that is, whether the discussion sufficiently performs the function of facilitating "informed agency decisionmaking and informed public participation." ’ ( Id . at pp. 512–513 [241 Cal.Rptr.3d 508, 431 P.3d 1151].)" ( South of Market, supra, 33 Cal.App.5th at p. 330, 245 Cal.Rptr.3d 174.)

"After reviewing several of its own decisions and those of the Court of Appeal, the court summarized three ‘basic principles’ regarding the standard of review for adequacy of an EIR: ‘(1) An agency has considerable discretion to decide the manner of the discussion of potentially significant effects in an EIR. (2) However, a reviewing court must determine whether the discussion of a potentially significant effect is sufficient or insufficient, i.e., whether the EIR comports with its intended function of including " ‘ "detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." ’ " [Citation.] (3) The determination whether a discussion is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency's factual conclusions.’ ( Sierra Club, supra , 6 Cal.5th at pp. 515–516 [241 Cal.Rptr.3d 508, 431 P.3d 1151].)" ( South of Market, supra, 33 Cal.App.5th at p. 330, 245 Cal.Rptr.3d 174.)

" ‘The ultimate inquiry, as case law and the CEQA guidelines make clear, is whether the EIR includes enough detail "to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project." ’ ( Sierra Club, supra , 6 Cal.5th at p. 516 [241 Cal.Rptr.3d 508, 431 P.3d 1151].) Generally, that inquiry is a mixed question of law and fact subject to de novo review, but to the extent factual questions (such as the agency's decision which methodologies to employ for analyzing an environmental effect) predominate, a substantial evidence standard of review will apply. ( Ibid . )" ( South of Market, supra, 33 Cal.App.5th at pp. 330–331, 245 Cal.Rptr.3d 174, fn. omitted.)

"Further, ‘ "[i]n determining the adequacy of an EIR, the CEQA Guidelines look to whether the report provides decision makers with sufficient analysis to intelligently consider the environmental consequences of a project. ([Guidelines,] § 15151.) The CEQA Guidelines further provide that ‘the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible.... The courts have [therefore] looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.’ ([Guidelines,] § 15151.)" [Citation.] The overriding issue on review is thus "whether the [lead agency] reasonably and in good faith discussed [a project] in detail sufficient [to enable] the public [to] discern from the [EIR] the ‘analytic route the ... agency traveled from evidence to action.’ " ’ ( California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 262 [115 Cal.Rptr.3d 631] ... ( California Oak Foundation ); see Sierra Club, supra , 6 Cal.5th at p. 515 [241 Cal.Rptr.3d 508, 431 P.3d 1151] [‘We also affirm that in reviewing an EIR's discussion, we do not require technical perfection or scientific certainty....’].)" ( South of Market, supra, 33 Cal.App.5th at p. 331, 245 Cal.Rptr.3d 174.)

" ‘Although an agency's failure to disclose information called for by CEQA may be prejudicial "regardless of whether a different outcome would have resulted if the public agency had complied" with the law (§ 21005, subd. (a)), under CEQA, "there is no presumption that error is prejudicial" (§ 21005, subd. (b)). Insubstantial or merely technical omissions are not grounds for relief. [Citation.] "A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process." ’ ( Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013...