Tsakopoulos Invs., LLC v. Cnty. of Sacramento

95 Cal.App.5th 280

313 Cal.Rptr.3d 300

TSAKOPOULOS INVESTMENTS, LLC, Plaintiff and Appellant,

v.COUNTY OF SACRAMENTO et al., Defendants and Respondents;

Mather South, LLC, et al., Real Parties in Interest and Respondents.

C095631

Court of Appeal, Third District, California.

Filed September 7, 2023

Certified for Partial Publication.^*

Jeffer Mangels Butler & Mitchell, Kerry Shapiro, San Francisco, Matthew David Hinks and Seena M. Samimi, Los Angeles, for Plaintiff and Appellant.

Lisa A. Travis, County Counsel, June R. Powells-Mays, Deputy County Counsel; Monchamp Meldrum, Amanda Jean Monchamp and Joanna Meldrum for Defendants and Respondents.

Monchamp Meldrum, Amanda Jean Monchamp and Joanna Meldrum, San Francisco, for Real Parties in Interest and Respondents.

ROBIE, Acting P. J. Plaintiff Tsakopoulos Investments, LLC (Tsakopoulos) filed a petition for writ of mandate and a complaint for declaratory and injunctive relief (petition) against defendants the County of Sacramento (County) and the Sacramento County Office of Economic Development and Marketing, challenging the County's approval of a project known as the Mather South Community Master Plan (the project) under the California Environmental Quality Act (CEQA; Pub. Resources Code,¹ § 21000 et seq. ). The trial court denied the petition and entered judgment in favor of defendants. Tsakopoulos appeals.

Tsakopoulos asserts we should reverse the judgment because the final environmental impact report (final report) is deficient in three respects: (1) the climate change analysis was based on a methodology that our Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 195 Cal.Rptr.3d 247, 361 P.3d 342 ( Center for Biological Diversity ) and the Fourth District Court of Appeal in Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th 892, 238 Cal.Rptr.3d 559 ( Golden Door Properties ) previously rejected as unsupported by substantial evidence; (2) the County "failed to assess the impacts from construction-related greenhouse gas emissions" in its climate change analysis; and (3) the County "failed to analyze the human health impacts associated with the" project's emissions from criteria pollutants.² (Boldface omitted.)

In the published portion of the Discussion, we explain why the County's climate change analysis was not previously rejected by our Supreme Court or the Fourth District Court of Appeal for lack of substantial evidence. In the unpublished portion of the Discussion, we find Tsakopoulos has presented no meritorious contentions to challenge the County's construction-related and human health impacts analyses. We thus affirm.

FACTUAL AND PROCEDURAL BACKGROUND

For the reader's ease, we provide a summary of the general factual and procedural background here and include the pertinent facts as to each issue in the applicable portion of the Discussion.

The project site consists of approximately 848 acres and is located in the County. The project "is one of four major planning applications currently in process for future urban growth areas located along the Jackson Road corridor, which are collectively referred to as the Jackson Highway Master Plans." If built, the project "would result in up to 3,522 residential dwelling units of various densities," "a 28-acre environmental education campus including 200 multi-family dwelling units, a 21-acre research and development park, two elementary schools, a 6-acre community center, 21 acres of commercial-retail with up to 225,000 square feet ... of retail space, 44 acres of parkland," "and 157 acres of open space areas." The project requires a host of approvals to permit the project's physical development, including several general plan amendments, a special plan amendment, a zoning ordinance amendment, and adoption of a development agreement.

The County is the lead agency for the project and its Office of Economic Development and Marketing owns the property on which the project will be developed. Real party in interest Mather South, LLC, is the project applicant and holds the rights to develop the project pursuant to a purchase and sale agreement with the County.

Mather South, LLC, filed the project application in 2013. The County released the notice of preparation of an environmental impact report in June 2014, and revised the notice in January 2017 due to substantial changes to the project's land use plan. The draft environmental impact report was released on January 8, 2019, and, after several public hearings, the County published the final report for the project on January 17, 2020. Following a public hearing on January 28, 2020, the County certified the final report and approved the project. The County also adopted CEQA findings of fact, a statement of overriding considerations, and a mitigation monitoring and reporting program.

Tsakopoulos filed the petition challenging the County's certification of the final report and approval of the project. Tsakopoulos asserted several violations of CEQA, all of which the trial court determined were unfounded. Tsakopoulos appeals.

DISCUSSION³

" ‘The foremost principle under CEQA is that the Legislature intended the act "to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." ’ [Citations.] ‘With narrow exceptions, CEQA requires an [environmental impact report] whenever a public agency proposes to approve or to carry out a project that may have a significant effect on the environment.’ " ( Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511, 241 Cal.Rptr.3d 508, 431 P.3d 1151 (Friant Ranch ).) A project will have a significant effect on the environment if it will cause "a substantial, or potentially substantial, adverse change in" "the physical conditions [that] exist within the area [that] will be affected by [the] project, including land, air, water, minerals, flora, fauna, noise, [and] objects of historic or aesthetic significance." (Guidelines⁴ ; §§ 21060.5 [defining "environment"], 21068 [defining "significant effect on the environment"].)

"The basic purpose of an [environmental impact report] 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.’ [Citations.] ‘Because the [environmental impact report] must be certified or rejected by public officials, it is a document of accountability. If CEQA is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees.’ [Citation.] The [environmental impact report] ‘protects not only the environment but also informed self-government.’ [Citation.]

"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 [Supreme Court's] 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. [Citation.] 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 [environmental impact report] 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." ’ " ( Friant Ranch, supra , 6 Cal.5th at pp. 511-512, 241 Cal.Rptr.3d 508, 431 P.3d 1151, fn. omitted.)

"[W]hether an agency has followed proper procedures is not always ... clear. This is especially so when the issue is whether an [environmental impact report'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.’ " ( Friant Ranch, supra , 6 Cal.5th at p. 513, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) When we assess a claim of inadequate discussion, "[t]he inquiry presents a mixed question of law and fact. As such, it is generally subject to independent review. However, underlying factual determinations—including, for example, an agency's decision as to which methodologies to employ for analyzing an environmental effect—may warrant deference. [Citations.] Thus, to the extent a mixed question requires a determination whether statutory criteria were satisfied, de novo review is appropriate; but to the extent factual questions predominate, a more deferential standard is warranted." ( Id . at p. 516, 241 Cal.Rptr.3d 508, 431 P.3d 1151.)

I

The Methodology Used To Develop The Climate Change Significance Thresholds Has Not Been Rejected For Lack Of Substantial Evidence

Tsakopoulos challenges the methodology underlying the greenhouse gas thresholds of significance adopted by the County. A decision to use a particular methodology and reject another is reviewed for substantial evidence. ( Friant Ranch , supra , 6 Cal.5th at p. 514, 241 Cal.Rptr.3d...