San Joaquin Raptor Rescue Center v. County of Merced

Filed 9/26/06 San Joaquin Raptor Rescue Center v. County of Merced CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge.

Law Offices of Donald B. Mooney, Donald B. Mooney, and Marsha A. Burch for Plaintiffs and Appellants.

Lozano Smith, Thomas J. Riggs, David J. Wolfe; Ruben E. Castillo, Merced County Counsel, and Walter W. Wall, Deputy County Counsel for Defendants and Appellants.

-ooOoo-

SEE DISSENTING OPINION

The Merced County Board of Supervisors (the Board) held a public hearing on December 9, 2003, on whether to approve a project known as the Planada Community Plan (PCP) and whether to adopt a mitigated negative declaration for the project.^[1] At the conclusion of the hearing, the Board voted unanimously to approve the project and to adopt the mitigated negative declaration. No one at the hearing raised any objection that the mitigated negative declaration was insufficient or that an environmental impact report (EIR) was required for the project. Plaintiffs San Joaquin Raptor Rescue Center (SJRRC), Protect Our Water (POW), Central Valley Safe Environment Network (CVSEN), the Planada Association, and Dr. R. Bryant Owens then filed a petition for writ of mandate in the superior court. The petition alleged that the County of Merced (County) erred in failing to require the preparation of an EIR for the project despite the existence of a “fair argument” based on substantial evidence in the record that the project may have a significant effect on the environment. The petition sought a writ of mandate directing the County to set aside its approval of the mitigated negative declaration for the project.

The superior court heard and denied the petition, and entered judgment in favor of the County. The court rejected the County’s contention that plaintiffs had failed to exhaust their administrative remedies, but it also rejected plaintiffs’ contention that there was substantial evidence in the record to support a fair argument that the project may have a significant effect on the environment. It therefore agreed with the County that an EIR was not required.

CONTENTIONS ON APPEAL

The petitioners appealed. They contend once again that there was substantial evidence in the record to support a fair argument that the project may have a significant effect on the environment. The County filed a cross-appeal. The County contends that regardless of what the evidence in the administrative record may show, plaintiffs failed to exhaust their administrative remedies by failing to raise any objection to the Board about the adequacy of the mitigated negative declaration. As we shall explain, we agree with the County that plaintiffs failed to exhaust their administrative remedies. We will affirm the judgment.

FACTS

We will include the facts most pertinent to this appeal in our analysis below of our conclusion that plaintiffs failed to exhaust their administrative remedies. By way of background, however, we begin with the following.

The Community of Planada and Original Community Plan

Planada is a small, rural, unincorporated community consisting of 764 acres located approximately four miles east of the City of Merced. The current population of Planada is approximately 4,400 persons. A substantial part of Planada is urbanized with 277 acres currently being used for agricultural purposes.

In 1982, the County of Merced approved a PCP. At issue in this case is the County’s approval of a comprehensive update to the 1982 Plan. Community plans are designed to focus development guidelines on a particular area of the community and are adopted as general plan amendments. (Gov. Code, §§ 65358, 21083.3.) The stated purpose of the PCP is to have a “long-range vision and land use strategy for the purpose of guiding growth and development within the unincorporated Community of Planada through the Year 2015.”

Community plans are distinguishable from specific plans. Community plans are essentially broad based policy documents which become components of the County’s General Plan. On the other hand specific plans are detailed documents designed to govern specific land uses for large private development projects. (Gov. Code, § 65450 et seq.) By their nature, the level of environmental review for a community plan is less detailed than that for a specific plan.

The PCP Update

The process for updating the PCP began in 2001 when the Board of Supervisors adopted a program to update the community plans for Planada and the unincorporated community of Delhi. County staff and consultants held numerous meetings with the Planada Municipal Advisory Council (MAC) and other community groups and area agencies, and held three well-attended community forums. During these meetings, various proposals and alternatives were considered. At the conclusion of the process, County staff and consultants prepared the plan based upon input and consensus of the community.

The PCP does not propose to increase the boundaries of the community of Planada, except for the addition of 11 acres currently being used for farm labor housing. Rather, development is directed toward intensification of existing urban uses and in-fill development.

The PCP contains policies for creating a balance of housing, commercial, and employment opportunities. A key component of the PCP and one of the major topics of the community meetings, in addition to the Planada boundaries, are the community character and design guidelines. The guidelines are designed to provide standards for development in order to “enhance the overall community appearance and character.” The guidelines will “greatly enhance the overall community appearance and character.” Aesthetic improvements were considered critical in drafting the PCP. The guidelines “are not intended to be rigid in their application” thereby encouraging diversity “while maintaining a clearly recognizable overall design character and quality.”

Environmental Review

In September 2003, the County prepared an initial study for the PCP. An initial study, sometimes referred to as an environmental assessment, evaluates a project to determine whether a negative declaration or EIR is appropriate. (CEQA Guidelines, § 15063, subd. (a).) In this case, the initial study evaluated the PCP for potential significant effects on 16 areas: aesthetics, agricultural resources, air quality, biological resources, cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, public services, recreation, transportation and traffic, utilities and service systems.

The initial study concluded that only one potential significant impact would remain without mitigation. This impact was the conversion of 169 acres of prime farmland to nonagricultural uses. For this impact, the initial study recommended adoption of a mitigation measure requiring a one-to-one replacement of farmland through a permanent agricultural conservation easement. The initial study also proposed the following mitigation monitoring measure: “Merced County Planning Department shall be responsible for assuring that the proper rezoning and/or Agricultural Conservation Easement implementation is completed prior to the recordation of any Final Subdivision Map.” With the adoption of this mitigation measure, County Planning staff recommended approval of a mitigated negative declaration. The initial study and mitigated negative declaration were circulated for public review and comment and the County held two public hearings on the mitigated negative declaration and PCP. The first one occurred before the Planning Commission (Commission) on October 29, 2003, after which the Planning Commission made recommendations to the Board on December 9, 2003, after which the board took final action.

The Public Hearings and Comment Letters

During the public review process the County received several comment letters and oral comments from outside agencies, area residents, and developers. We will say more about these letters in our analysis below of the exhaustion of administrative remedies issue.

Planning Commission and Board Action

The Commission recommended approval of the mitigated negative declaration and approval of the PCP with three changes. These changes were summarized for the Board. First, the Commission wanted to ensure that the community character and design guidelines were in fact guidelines and not mandatory requirements in all circumstances. Thus, the Commission recommended changing the word “shall” in various places to “should.”

Second, the Commission determined that requiring the PCP to be automatically updated anytime the boundaries exceeded 100 acres was too restrictive and changed the language so that County staff would review the PCP for updating under these circumstances.

Third, the Commission determined that there should be flexibility in deciding the appropriate buffer between residential and agricultural uses located outside of the plan area, and therefore changed a proposed mandatory 200-foot building setback buffer to a suitable buffer depending on the site characteristics. Examples of a suitable buffer included the 200-foot building setback requirement as well as an open space corridor and physical improvements such as a road or canal.

The Board approved the mitigated negative declaration and accepted the Commission’s recommended changes with the exception that instead of changing “shall” to “should” in various places of the community character and guidelines section, the Board approved language allowing an exception for “demonstrative hardship.” The Board thought this language allowed sufficient flexibility while preserving the intent of the PCP.

Both Planning Director Nicholson and the County’s CEQA consultant Robert Borchard determined that the three changes were consistent with the PCP’s goals of providing guidelines for future development, not mandatory obligations, and therefore the PCP and mitigated negative declaration did not have to be circulated for further public comment.

After approval of the mitigated negative declaration and adoption of the PCP, the County filed a Notice of Determination (on December 11, 2003) with the County Clerk which triggered the 30-day time period for filing suit under CEQA. (§ 21167, subd. (b).)

The Petition for Writ of Mandate

Plaintiffs then filed their petition for writ of mandate, which the court heard and denied.

PLAINTIFFS FAILED TO EXHAUST THEIR ADMINISTRATIVE REMEDY

The basic principles of law applicable to this case are not in dispute. It is the application of those principles about which the parties disagree.

A. Preparation of an EIR

The law pertaining to the issue of when an EIR must be prepared is well settled and is summarized in Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, as follows:

“‘With certain limited exceptions, a public agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project “may have a significant effect on the environment.” (§§ 21100, 21151, 21080, 21082.2 [fair argument standard]; Guidelines, §§ 15002, subd. (f)(1), (2), 15063; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75 [fair argument standard of review] [(No Oil)].) “‘Significant effect on the environment’ means a substantial, or potentially substantial, adverse change in the environment.” (§ 21068; see also Guidelines, § 15382.)’ (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123, fn. omitted.)

“If there is substantial evidence in the whole record supporting a fair argument that a project may have a significant nonmitigable effect on the environment, the lead agency shall prepare an EIR, even though it may also be presented with other substantial evidence that the project will not have a significant effect. (§ 21151, subd. (a); Cal. Code Regs., tit. 14, § 15064, subd. (f)(1), (2); No Oil, supra, 13 Cal.3d 68, 75; Architectural Heritage Assn. v. County of Monterey (2004) 122 Cal.App.4th 1095, 1109 (Architectural Heritage Assn.); Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 111-112. ‘May’ means a reasonable possibility. (§§ 21082.2, subd. (a), 21100, 21151, subd. (a); League for Protection of Oakland’s etc. Historic Resources v. City of Oakland (1997) 52 Cal.App.4th 896, 904-905 (League for Protection).)” (Pocket Protectors of City of Sacramento, supra, 124 Cal.App.4th at p. 927, fn. omitted; in accord, see also County Sanitation Dist. No. 2 v. County of Kern (2005) 127 Cal.Ap.4th 1544, 1578-1581.) .)

If an agency fails to have an EIR prepared when one is required, the agency has failed to proceed in a manner required by law and thus has abused its discretion. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 74; see also Pub. Res. Code, §§ 21168, 21168.5; Code of Civ. Proc., § 1094.5.)

Plaintiffs’ briefing goes into great detail about what plaintiffs deem to be deficiencies in the initial study undertaken by the County. At the December 9, 2003 Board hearing, however, no one asserted that an EIR was required for the project. Plaintiff Owens did not speak at the December 9 hearing. No one who did speak at the hearing identified himself or herself as a member of any of the four organization plaintiffs (SJRRC, POW, CVSEN and the Planada Association). Ironically, the only criticism of the mitigated negative declaration voiced at the hearing was not that it was insufficient, but rather that it called for too much mitigation because 73 of the 169 acres of farmland to be converted to non-agricultural uses were already zoned for urban uses. One supervisor (Supervisor O’Banion) expressed the view that there should not be one-for-one mitigation of the 73 acres which could already lawfully be used for non-agricultural purposes. The Board nevertheless approved the mitigated negative declaration with its provision for one-for-one mitigation of all 169 acres. This leads us to the issue of exhaustion of administrative remedies.

B. Exhaustion of Administrative Remedies

Public Resources Code section 21177 states:

“(a) No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.

“(b) No person shall maintain an action or proceeding unless that person objected to the approval of the project orally or in writing during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.

“(c) This section does not preclude any organization formed after the approval of a project from maintaining an action pursuant to Section 21167 if a member of that organization has complied with subdivision (b).

“(d) This section does not apply to the Attorney General.

“(e) This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law.”

In Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577 (Tahoe Vista Concerned Citizens), the court stated that the Legislature “sought to codify” the doctrine of exhaustion of administrative remedies when it enacted Public Resources Code section 21177. (Tahoe Vista Concerned Citizens, supra, at p. 594.) The court further stated:

“The doctrine’s purpose is fully served when parties raise all issues before the administrative body with ultimate or final responsibility to approve or disapprove the project, even if those issues were not raised before subsidiary bodies in earlier hearings. (Browning-Ferris Industries v. City Council, supra, 181 Cal.App.3d at p. 860.) Were we to conclude the trial court erred in not reviewing an issue not raised before the administrative body below with final decisionmaking authority, we would enable litigants to narrow, obscure, or even omit their arguments before the final administrative authority because they could possibly obtain a more favorable decision from a trial court. Such a result would turn the exhaustion doctrine on its head.” (Tahoe Vista Concerned Citizens, supra, 81 Cal.App.4th at p. 594.)

“[T]he decisionmaking body ‘is entitled to learn the contentions of interested parties before litigation is instituted. If [plaintiffs] have previously sought administrative relief the Board will have had its opportunity to act and to render litigation unnecessary, if it had chosen to do so.’ [Citations.]” (Corona-Norco Unified School Dist. v. City of Corona (1993) 17 Cal.App.4th 985, 997; in accord, see also Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 384.)

The interplay of subdivisions (a) and (b) of Public Resources Code section 21177 was explained in Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1118-1119 (Galante), where the court stated:

“Legal commentators have construed subdivision (a) of section 21177 as requiring that specific issues raised in litigation must first be raised during the administrative process, albeit not necessarily by the person who brings the litigation. (See, e.g., Remy, Guide to the Cal. Environmental Quality Act (CEQA) (9th ed. 1996) p. 378.) Subdivision (b) of the statute restricts the availability of judicial review to parties who objected to the agency’s approval of the project. That is, a petitioner need not have articulated every basis for objecting to the project, but must have participated in the administrative process. (Ibid.) Thus, a petitioner who has taken part in the administrative process may assert any issues raised by other parties during the administrative proceedings. (Kings County Farm Bureau v. City v. City of Hanford (1990) 221 Cal.App.3d 692, 734, fn. 11; Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894.)”

In the case before us, the parties do not attempt to explain how the four organizational plaintiffs had standing under subdivision (b) to bring a court action. The County mentions that a citizen named Jesus Colmenaro commented both orally and in writing on the project, and that Colmenaro was a member of the four plaintiff organizations. The record appears to contain no indication, however, that the four plaintiff organizations were formed after the approval of the project. (See Pub. Res. Code, § 21177, subd. (c).) Plaintiff Owens did orally object to the project itself (but not to the adequacy of the mitigated negative declaration for the project) at the Planning Commission’s October 29, 2003 hearing. Under Galante, plaintiff Owens may assert any issues raised by other parties during the administrative proceedings. (Galante, supra, 60 Cal.App.4th at p. 1109.) We therefore now turn to the question of whether anyone raised the issue that an EIR was required because the project may have a significant effect on the environment that could not be mitigated.

Plaintiffs’ reply brief asserts that “nearly every citizen comment received on the PCP stated that the Mitigated Negative Declaration was insufficient and that an EIR was required.” Our reading of the administrative record does not lead us to that conclusion. Members of the public who spoke at the Board of Supervisors hearing were Tom Stillman, Les McCabe, John Colbert, Mary Furey, Richard Harriman, David Corser, John Sessions, John Chavez, and Jesus Colmenaro. None of these oral presentations to the Board included a request for preparation of an EIR. Nor did any of them include anything that could be construed as even remotely suggesting that a mitigated negative declaration would not be sufficient for the project.

Plaintiffs rely on written comment letters submitted by members of the public. Plaintiffs say a great deal about a letter submitted by the State Department of Transportation, but nothing in that letter requests the preparation of an EIR. An October 26, 2003 letter from Mary Furey makes various comments about things she would like to see happen in the community, but does not request an EIR or make any reference to environmental review of the project. Four letters from John Sessions of H/S Development Company voiced various concerns about the project, but none of them requested preparation of an EIR.

In the fall of 2003 there was discussion in Planada about the possible relocation of farm worker housing. Possibly under the impression that the PCP had something to do with the relocation of farm worker housing, more than 160 persons (apparently many of them farm workers) submitted a form letter to the County stating that the relocation of these camps “is not what we want.” Nothing in the PCP calls for the relocation of farm labor camps. The form letter also stated in part:

“The California Environmental Quality Act (CEQA) requires a ‘lead agency’ (Merced County Planning Dept.) to prepare an Environmental Impact Report when there is ‘substantial evidence’ in the record that significant impact will occur to the environment if a project proceeds. A negative declaration is insufficient for this project.

“The Planada Community Plan will have significant impacts if applied as a role model for the entire county. Therefore, Merced County’s General Plan must be updated before the Planada Community Plan is implemented.”^[2]

“The purposes of the [exhaustion] doctrine are not satisfied if the objections are not sufficiently specific so as to allow the Agency the opportunity to evaluate and respond to them.” (Evans v. City of San Jose (2005) 128 Cal.App.4th 1123, 1138.) “‘The essence of the exhaustion doctrine is the public agency’s opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review.’” (Park Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1447; Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1198.) Those purposes were not satisfied here. There is no question that the form letter does explicitly request preparation of an EIR. What the unmitigable “significant impacts” are to be addressed in that requested EIR is less than clear. The letter makes no reference to the initial study and makes no attempt to explain why the conclusions reached in it are not valid. Plaintiffs appear to have simply deferred any criticism of the initial study until they filed their action in superior court. This is what the exhaustion doctrine prohibits.

On the day before the Board’s December 9, 2003 hearing, Mary Furey submitted a second letter. Furey’s second letter praised the PCP (except for the changes recommended by the Commission) but also asserted that “a full E.I.R. is required of this plan.” At the hearing itself, however, on the very next day, Furey spoke and urged the Board to “pass this plan” as it was presented to the Commission, without the Commission’s recommended changes. Given Furey’s comments at the hearing, we do not see how the Board could have viewed Furey’s position as an objection to approval of the PCP for lack of an EIR.

Plaintiffs cite Pocket Protectors, supra, 124 Cal.App.4th 903, as supporting their contention that the objections made to the mitigated negative declaration were sufficiently specific to satisfy the exhaustion of remedies doctrine. We disagree. We see nothing in Pocket Protectors which even addresses the exhaustion of administrative remedies doctrine. Much of Pocket Protectors deals with the issue of what constitutes substantial evidence of a significant aesthetic impact. That issue is not before us in this case.

In sum, we conclude that plaintiffs failed to exhaust their administrative remedies and that the court therefore did not err in denying plaintiffs’ petition for writ of mandate.

OTHER ISSUES

Plaintiffs also argue that the County violated CEQA by (1) failing to recirculate the PCP after making changes to it, and (2) approving a community plan that was inconsistent with the County’s general plan. The first purported violation was never raised administratively to the Board, even though the very issue before the Board at the December 9 hearing was whether the Board should approve the PCP with the changes recommended by the Planning Commission. It was thus waived. (Tahoe Concerned Citizens, supra, 81 Cal.App.4th 577.) As for the second, this issue too was never raised administratively to the Board and was also waived. (Ibid.) Plaintiffs assert that the form letters raised the inconsistency issue. The form letters did not. The form letters did state that the county’s general plan “must be updated before the Planada Community Plan is implemented.” The form letters did not say why the general plan must be updated. Even if the form letters are viewed as a conclusory assertion of inconsistency, they still did not specifically identify any purported inconsistency. There was no error.

DISPOSITION

The judgment is affirmed. Costs to Respondents.

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Ardaiz, P.J.

I CONCUR:

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Gomes, J.

DAWSON, J.

I dissent from the majority’s conclusion that plaintiffs failed to exhaust their administrative remedies. The record demonstrates that defendants were well aware throughout the process of creating, reviewing, and then approving the negative declaration that certain members of the community objected to their decision not to prepare a full environmental impact report (EIR) as the environmental document for the Planada Community Plan (the PCP or the Plan). They also were aware of the various criticisms of the initial study voiced by the California Department of Transportation, and aware that those criticisms were seen by some interested parties as grounds for their position that an EIR was required.

Les McCabe, who appeared at the planning commission hearing as the representative of the Merced County Farm Bureau, said the “letter I think you all have before you from the Department of Transportation also points out a number of impacts to the environment or suspect data. And I would hope that you would direct that an EIR be prepared for this project.” He took no inconsistent position when he later appeared before the board of supervisors.

Mary Furey, a member of the Planada Municipal Advisory Council, wrote two letters and appeared at the board of supervisor’s hearing. In one of the letters, submitted the day before the board of supervisors’ hearing, she wrote that “[b]ecause of our water, sewer, need of business before lots of houses are built and our lack of infrastructure, a full E.I.R. is required of this plan.” The Planada Muncipal Advisory Council had worked with county staff in the long process of drafting the Planada Community Plan. Mrs. Furey liked the plan. At the board of supervisors’ meeting she called it “wonderful,” and she asked that the changes suggested by the planning commission (the errata) not be adopted. That she approved of the Plan does not indicate she approved of the negative declaration. The two are not the same. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1200 [discussing project approval and certification of EIR, which “sometimes are treated as interchangeable”]; Cal. Code Regs., tit. 14, § 15202, subd. (b) [“If an agency provides a public hearing on its decision to carry out or approve a project, the agency should include environmental review as one of the subjects for the hearing”].) Further, at the same time she praised the Plan, she asked the supervisors to read the letter she had submitted the day before.

One hundred and seventy-nine members of the community signed a form letter that, to use the words of the planning director in speaking about it to the planning commission, included the point that “there is not enough infrastructure or industry in town to support additional population growth.” That these members of the community were also concerned about what would happen to a block of farm labor housing, or about displacement arising from change in the affordability of housing arising from the plan, only adds to the concerns that could have been addressed in an EIR. It does not negate the community members’ attempts to bring their environmental concerns to the attention of the administrative agency.

The record reveals that the agency made a conscious decision to avoid the preparation of an EIR because it would take too much time. The staff and the decision makers knew that there was opposition to that decision and why. The majority now allows them to deny that knowledge based on the informality of the opposition presented to them.

As to the substantive question presented, I agree with plaintiffs that the initial study and mitigated negative declaration were inadequate to satisfy the demands of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.).

The record contains substantial evidence, in the opinions of community members who testified and who submitted letters, that the community’s infrastructure--its sewer system particularly--was inadequate to support substantial population growth. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 938.) Defendants were well aware of the sewer system’s inadequacy. One of the reasons they wanted to avoid losing the time it would take to prepare an EIR was because there was a developer ready to pay for sewer expansion, and (laudably) they did not want to lose that chance.

The initial study describes the sewer system’s inadequacy, explaining that the system was at maximum capacity and that, based on projected growth over the 2015 build-out of the PCP, a doubling of the system’s capacity would be needed. The initial study then notes that “[f]uture expansion of the community wastewater facility will be in compliance with all applicable environmental rules and regulations. Preliminary assessments of the existing treatment and disposal system do not indicate any potential significant adverse physical impacts that cannot be mitigated.” We are not told, however, any of the details of these “preliminary assessments” --for example, when or by whom they were conducted. Further, one reasonable inference to be drawn from the quoted language is an acknowledgement that expansion of the wastewater facility will have “potential significant adverse physical impacts that” can be mitigated. But no mitigation is then required.

I do not mean to suggest that a full environmental review of an expansion of the Planada wastewater treatment facility should or could have been accomplished along with approval of the planning document that would make such expansion occur. I agree with plaintiffs, however, that defendants have improperly deferred environmental analysis. The initial study makes this clear:

“Utility and service system infrastructure has been designed to accommodate a level of population that will be exceeded by this Plan Update’s projected population level. This Community Plan will result in the need to generate new plans for expansion of the community’s utility and service infrastructure. The purpose [of] this analysis is to determine the feasibility of such utility expansion and identify any potential Significant Environmental Impacts that may result from such expansion. It is not the purpose of this study to resolve or mitigate those potential impacts due to the fact that specific infrastructure expansion plans cannot be know[n] at this time. Based on these future plans, however, further site-specific environmental analysis will be undertaken and potential significant impacts will be mitigated in accordance with the requirements of State Law.”

First, numerous authorities note that this kind of deferral of review of the environmental consequences of growth is improper. (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 279, 282-283; City of Redlands v. County of San Bernardino (2002) 96 Cal.App.4th 398, 409-410.) Second, if the purpose of the initial study’s “analysis is to determine the feasibility of such utility expansion,” I am at a loss to find such determination in the record.

Taking a step back and looking at the bigger picture in this case causes me to question when, under defendants’ analysis, a full environmental review of the plan to allow, guide, and thus promote expansion of the community of Planada, to accommodate a doubling of its population, will occur. In order to avoid preparing an EIR, defendants confined the physical borders of the 2003 revised Planada Community Plan to the borders extant under the old Planada plan.^[3] Instead of including an expansion of the PCP boundaries into surrounding agricultural land, defendants redesignated agricultural land within the boundaries of the old plan. But why does it matter that population growth will occur from increased density rather than expansion of physical boundaries? Further, defendants knew, at the time they processed and approved the PCP and the mitigated negative declaration, that a developer was already making plans to apply for an expansion of the PCP boundary to allow for the development of “75 acres contiguous to and west of the initial site.” County planning staff members were working with this developer, and it was another of his projects that spurred the completion of the PCP and the use of a negative declaration rather than an EIR. When that next step is taken and the PCP is expanded, there will be no programmatic or similar EIR from which to tier. (Remy et al., Guide to the Cal. Environmental Quality Act (CEQA) (10th ed. 1999) at pp. 517-518 [“[I]t would be unfortunate if agencies abandoned the use of program EIRs when adopting or amending general plans in anticipation of carrying out a later series of activities pursuant to the plan or plan amendments. The program EIR is tailor-made for such situations”].) Further, the “project” at that time might be limited to just the expansion. The design of CEQA to require environmental review at the earliest and most comprehensive stage possible could be thwarted.

My conclusion is that the mitigated negative declaration did not satisfy the requirements of CEQA.

DAWSON, J.

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^[1] “^[‘^]Mitigated negative declaration^[‘^] means a negative declaration prepared for a project when the initial study has identified potentially significant effects on the environment, but (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (CEQA Guidelines, § 15369.5.) The term “CEQA Guidelines” refers to the regulations codified in title 14, section 15000 et seq. of the California Code of Regulations, which have been “prescribed by the Secretary of Resources to be followed by all state and local agencies in California in the implementation of [CEQA].” (CEQA Guidelines, § 15000.)

^[2] Jesus Colmenaro submitted a slightly modified version of this letter. Colmenaro’s letter included these same two paragraphs, except that Colmenaro’s version of the first paragraph stated: “The California Environmental Quality Act (CEQA) requires a ‘lead agency’, Merced county Planning Department to prepare an Environmental Impact Report when there is ‘substantial evidence’ in the record that significant impact will occur to the environment if a project proceeds. A negative declaration is insufficient for the proposed community plan.”

As we have already mentioned, Colmenaro also spoke at the hearing before the Board. His oral presentation to the Board did not include any assertion that an EIR should be prepared for the project.

^[3] Neither defendants nor plaintiffs have informed us of all changes made to the old plan by the 2003 revision. Nor have defendants argued that the “project” here is only the changes, not the whole revised PCP. (Black Property Owners Assn. v. City of Berkeley (1994) 22 Cal.App.4th 974, 985 [“when a proposed amendment to a general plan is the subject of an initial study, in most cases the agency will not be required to assess the environmental effects of the entire plan or preexisting land use designations. Instead, the question is the potential impact on the existing environment of changes in the plan which are embodied in the amendment”].)