Save Our Gateway v. Town of Paradise

Filed 1/17/07  Save Our Gateway v. Town of Paradise CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Butte)

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     The California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) requires an environmental impact report (EIR) to accurately describe the scope of the project to be approved.  Here, after completion of the draft EIR (DEIR), appellant and real party in interest FHK Paradise (FHK) discovered its planned development, the Skyway Plaza Shopping Center (Skyway), lacked sufficient capacity to handle projected wastewater demands.  The subsequent final EIR contained water disposal mitigation measures.  Defendants and respondents Town of Paradise and Paradise Town Council (Town) certified the EIR.

     Plaintiff and appellant Save Our Gateway filed an action alleging the Town violated CEQA and state planning and zoning laws in approving Skyway.  Following a trial, the trial court found numerous CEQA violations, many based on the project's lack of capacity to handle wastewater:  failure to accurately describe the project; failure to adequately describe the baseline conditions of the project; improper segmentation of the project; improper deferral of analysis and mitigation of wastewater disposal impacts; failure to analyze cumulative wastewater impacts; failure to consider a reasonable range of project alternatives; failure to revise and recirculate the DEIR; and failure to investigate impacts associated with urban decay to the downtown area.

     After finding numerous CEQA violations, the trial court decertified the EIR and rescinded the Town's approval of Skyway.  However, the trial court rejected Save Our Gateway's planning and zoning arguments, upholding the Town's finding that Skyway was consistent with its general plan and did not violate state planning and zoning law.

     Both FHK and Save Our Gateway appeal.  FHK argues the results of the additional groundwater monitoring did not undermine the EIR project description, and both its mitigation and alternatives analysis comport with CEQA.  In addition, FHK contends substantial evidence supports the Town's determination that Skyway will not result in significant blight or urban decay.  In its cross-appeal, Save Our Gateway challenges the trial court's finding that Skyway is consistent with the Town's general plan.

     We find the EIR failed to adequately consider the necessity for additional wastewater disposal in violation of CEQA.  However, in contrast with the trial court's analysis, we find substantial evidence supports the Town's determination that Skyway will not result in significant urban blight.  Therefore, we affirm the trial court's finding as to wastewater, but reverse its findings on urban decay.  As to Save Our Gateway's cross-appeal, we find Skyway is consistent with the Town's general plan and affirm the trial court on this issue.

FACTUAL AND PROCEDURAL BACKGROUND

     The following facts are taken from the administrative record and are not in dispute.

Skyway

     In summer 2001 Fred M. Katz of FHK filed with the Town applications for annexation, general plan amendment and rezoning, and development of Skyway.  FHK proposed a 315,930  square foot regional shopping center on 29 acres of a 59-acre parcel just outside the limits of the Town.^[1]  The site is locally known as the â€