LANDWATCHMONTEREYCOUNTY v. COUNTY OF MONTEREY

Filed 1/23/07 Certified for publication 2/21/07 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STORY CONTINUED FROM PART I..

Landwatch challenges the sufficiency of the evidence supporting the conclusion that there is an adequate water supply. It argues that the drilling logs for the two wells serving the Project reveal the presence of some granite at various depths. Landwatch claims the presence of granite shows that the wells are not located in the more porous alluvial materials; rather those wells similar to the hard-rock, low-yield wells in the northern part of the sub-area and will not provide an adequate supply of water.

Landwatch cites no evidence or qualified expert testimony indicating that the drilling logs for the Projects wells reflect the geology of low-yield wells in the northern part of the sub-area. We note that despite the presence of some granite at various depths, the drilling logs reveal that for the vast majority of their depth, the wells are in sand, gravel, clay and mixtures of sand and rock. Furthermore, the drilling logs and presence of some granite were known to the hydrogeological experts and the witnesses from the Environmental Health Department and Water Resources Agency, who nevertheless unanimously concluded that the wells were located in porous soils more associated with the alluvial fan and Highlands South sub-area than with the northern part of Granite Ridge sub-area. That conclusion is further supported by a 1995 survey and review of the Granite Ridge Aquifer System, which explained that the characteristics of the system vary and reflect a transition from solid, unweathered granite, which has no porosity and can hold little water, to granite that has weathered to a consolidated agglomeration of sand and gravel within a clay matrix, which has greater porosity and stores water in the spaces between the granite, clay, and sand. The yield of wells completed in the weathered granite are a function of saturated thickness and the permeability of the weathered granite and are usually significantly higher than wells completed in fresh granite.

Thus, the mere fact the Projects wells pass through some granite at some depths, without more, does not support an inference, let alone reasonable argument, that the wells may be hard-rock, low-yield wells that are incapable of providing an adequate supply of water.

Inadequate Mitigation from the Detention Ponds

Landwatch claims that LeMoines March 21, 2001 e-mail and the letter from Kasunich support fair argument that the proposed recharge system will not mitigate the net demand from the Project. Again, the record does not reflect that LeMoine has training and qualifications in hydrology or hydrogeology or the expertise to evaluate the CGA Report and the percolation data from LandSet or render an qualified expert opinion about the adequacy of recharge from the proposed detention ponds. Moreover, LeMoines e-mails do not represent the position of his department, which ultimately supported the Project, and he withdrew his statements from formal consideration.

Kasunich lives near the Project and his experience with water issues provided a motive to oppose all new subdivision development in the area. Kasunich has many years of experience drilling and repairing wells, and most of his letter reflects narrative, anecdotal observations about the groundwater supply, wells, and recharge ponds in other areas. Although [r]elevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence for a fair argument (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928), Kasunich, like LeMoine, is not a hydrologist or hydrogeologist. Moreover, his letter does not suggest that he evaluated the Project site or the site-specific technical data concerning the wells and recharge system at the Project. Rather, he broadly concludes that recharge ponds are ineffective based on his personal experience of a recharge pond, whose specifications and underlying hydrogeology are unknown.

The lack of pertinent qualifications to evaluate hydrological and hydrogeological issues render LeMoines and Kasunichs views, and the assumptions behind them, lay speculation on matters that require qualified technical expertise. Consequently, LeMoines e-mails and Kasunichs letter do not constitute substantial evidence supporting fair argument that the CGA Report and the technical data from LandSet upon which it is based is erroneous or that the proposed system of detention/recharge ponds might not mitigate the 10.2 acre-feet of additional demand generated by the Project. (See Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1422; compare National Parks & Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1362 [an expert can make a judgment on existing evidence, without further study, that a particular condition will have no significant impact] with Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 583 [neighbors lay reading of the reports does not constitute substantial evidence supporting fair argument]; see 21080, subd. (e)(2) [argument, speculation, unsubstantiated opinion or narrative are not substantial evidence].)

Citing Architectural Heritage, supra, 122 Cal.App.4th 1095, Landwatch claims that LeMoines emails and Kasunichs letter do constitute substantial evidence.

However, we find reliance on Architectural Heritage to be misplaced. There, the plaintiff challenged the MND adopted by the Monterey County Board of Supervisors concerning the demolition of the old jail in Salinas. (Architectural Heritage, supra, 122 Cal.App.4th at p. 1099.) As substantial evidence of fair argument that demolition may cause adverse impacts to an historical resource, the plaintiffs cited the report of an expert in archeological resources management, who opined that the building was historically significant because it was associated with persons important to local and California history, including Cesar Chavez. The plaintiffs also cited similar views expressed by the old jail subcommittee of the Historic Resources Board, the initial study, and various speakers at public hearings. The County argued that the unsubstantiated opinions of non-expert speakers at public hearings did not constitute substantial evidence. (Id. at pp. 1112-1113.) In rejecting that argument, this court explained that one of the speakers was a certified historian and another was an architect. (Id. at p. 1117.) These and other speakers remarks represent fact-based observations by people apparently qualified to speak to the question of the jails historic status. That testimony constitutes substantial evidence, because it consists of facts, reasonable assumptions, and expert opinion supported by facts. [Citation.] (Id. at pp. 1117-1118.)

Unquestionably, the architect and historian were trained professionals in subjects directly related to whether an old building is an historical resource. Moreover, the speakers comments were supported by the report from the qualified expert. Furthermore, to the extent that non-experts had significant historical experiences involving or pertinent personal knowledge about the buildings history, they too could provide highly relevant information. However, determining the historical significance of an old building is substantially different from calculating the projected water use and net demand from proposed subdivision, the adequacy of the groundwater supply, the percolation rates for various locations on the site, and the capacity of a system of detention ponds to recharge water and offset the projected net demand. Those issues are much more technical and complex and require testing and evaluation by qualified professionals in the fields of hydrology and hydrogeology. Although LeMoine and Kasunich may work in fields that regularly deal with water, wells, and associated environmental issues, neither was professionally qualified to evaluate the tests and studies or render a professional opinion about the studies conducted by the qualified consultants. Moreover, their lay views concerning those studies were not supported by reports or testimony from a qualified expert. Accordingly, LeMoines e-mails and Kasunichs letter are not comparable to the comments by the architect and historian in Architectural Heritage, supra, 122 Cal.App.4th 1095.[1]

Landwatch claims there is substantial evidence that the detention ponds may not recharge the local aquifer hundreds of feet below as fast as the Project uses water and without contamination from other uses and the septic system on the site. In support of this claim, Landwatch cites evidence that (1) generally only 5 to 10 percent of the average annual rainfall of 18 inches recharges through Aromas Sand, and the rest is lost to runoff and evaporation; (2) tests from the Projects septic system revealed moderate to slow percolation; and (3) the recharge pipes are only 10 to 20 feet deep, the wells are around 500 feet deep, and the groundwater level is 226 to 237 feet.

First, evidence concerning the slight amount of water that percolates through undeveloped land over Aromas Sand when it rains and the larger amount lost to runoff and evaporation has no reasonable tendency to undermine or rebut the specific data concerning percolation and recharge rates from detention ponds that are specifically designed to catch and retain runoff, store it, and promote significant amounts of recharge. The relevance of slow percolation from the area around the septic system is unclear because they are located in different areas, presumably where slow percolation ensures protection of the underground waterbasin. On the other hand, the record reveals that the detention ponds are located in the best drainage areas to foster and achieve faster percolation. Moreover, there is no evidence that the septic systems leak into the detention ponds. Last, undisputed evidence concerning the relative depths of the percolation pipes, the water table, the ground water, and the wells does not, by itself, reasonably imply that water from the ponds may not reach the groundwater basin in a timely fashion.

We further note that the selective list of facts cited by Landwatch represents only a small fraction of the relevant information that was considered by Geoconsultants, the Planning Commission, and the Board in determining whether the mitigation system would collect sufficient water in the detention ponds, and recharge enough of it to the aquifer to offset the net water demand. Landwatch is no more qualified than LeMoine or Kasunich to evaluate the hydrology of the Project and offer a competing professional opinion about the adequacy of the recharge system. Its argument here is simply speculation, and without evidence from a qualified person to support Landwatchs inferences and analysis, its list of facts does not support reasonable argument that the detention/recharge system may not recharge the local aquifer fast enough to mitigate the Projects net use of groundwater.

Independent Verification of Test Data

Last, Landwatch claims the MND is invalid because, by its own admission in the initial study, the County did not independently verify the information provided by Geoconsultants and LandSet. Landwatch argues that County violated the fundamental principles of CEQA by delegating to the Chapins and their consultants the responsibility to evaluate the Projects potentially adverse hydrological impacts. In support of this claim, Landwatch cites section 21082.1 and Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.)

Reliance on Section 21082.1 is misplaced. Section 21082.1, subdivision (a) requires that a negative declaration be prepared directly by, or under contract to, a public agency. That requirement does not prohibit an applicant from submitting information in any form and may be considered and included in the record. ( 21082.1, subd. (b).) The lead agency must, however, [i]ndependently review and analyze any reports and verify that its decision to adopt a MND is based on its independent judgment. ( 21082.1, subds. (c)(1) & (c)(3).)[2]

In Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446, disapproved on other grounds in Western States v. Petroleum Assn. (1995) 9 Cal.4th 559, 570, fn. 2, the county directed the applicant to hire a private consultant to prepare the draft EIR. The county reviewed it, and the consultant revised the draft several times. The county then adopted and released the draft EIR. (Id. at pp. 1450-1451.) The reviewing court held that the procedure did not violate CEQA. [A]n agency may comply with CEQA by adopting EIR materials drafted by the applicants consultant, so long as the agency independently reviews, evaluates, and exercises judgment over that documentation and the issues it raises and addresses. (Id. at p. 1452.)

Here, the Chapins submitted the technical reports from Geoconsultants and LandSet to the County. The County reviewed and considered them and then prepared the initial study and MND as required by section 21082.1, subdivision (a). CEQA did not require the County to conduct independent, duplicative tests to verify the information submitted by Geoconsultants and LandSet, and Landwatch cites no authority suggesting the County had such a duty. CEQA required only that the County independently analyze and exercise its independent judgment over that information. ( 21082.1, subds. (c)(1) & (c)(3).) The record amply supports a finding that County personnel from various agencies reviewed and analyzed all of the material submitted with the Chapins application. Moreover, the ordinance approving the Project and adopting the MND expressly states that staff reviewed the information, studied the potential environmental impacts, and found no substantial evidence to support fair argument that the Project may have significant adverse environmental impacts. The ordinance continues, The Mitigated Negative Declaration reflects the independent judgment and analysis of the County based upon the findings and conclusions drawn in the Initial Study and the testimony and information received, and scientific and factual data presented as evidence during the public review process.

Landwatchs reliance on Sundstrom v. County of Mendocino, supra, 202 Cal.App.3d 296 is also misplaced. There, the county approved a conditional use permit authorizing the construction of a sewage treatment plant to serve an existing development. Among the conditions of approval was a requirement that the applicant develop and implement concrete mitigation measures sometime after the project was approved. The applicant was also required to prepare a hydrological study that evaluated the projects potential environmental effects and proposed the necessary mitigation measures. On appeal, the court found that the county violated CEQA by approving the project with a negative declaration before it had resolved all of the questions about potentially significant adverse impacts. The court explained that because the success of any mitigation was uncertain, the county improperly adopted an MND, which requires a finding that the project would not have adverse impacts. Moreover, the court opined that deferring environmental assessment until after the project was approved was inconsistent with CEQAs policy of identifying impacts before the momentum of a project interferes with an agencys ability to change its course of action. (Id. at pp. 306-307.) In addition, the court observed that the conditions improperly delegate[d] the Countys legal responsibility to assess environmental impact by directing the applicant himself to conduct the hydrological studies subject to the approval of the planning commission staff. (Id. at p. 307.)

Here, the County did not defer the assessment of potential impacts and the adequacy of mitigation until after the Project was approved. Nor did the County completely delegate to planningstaff final responsibility to review and assess the mitigation measures proposed by the Chapins. Rather, the County approved the Project and prepared the MND only after it had independently reviewed and exercised its judgment over the initial study, the information and material submitted by the Chapins, and the testimony of witnesses.

SVWP as Mitigation

Landwatch claims that the Board abused its discretion in listing the SVWP as mitigation because (1) it is not yet built, and (2) there is no evidence that improving the Salinas basin will benefit the long-term water supply in North Monterey County.

First, we note that the studies and analyses of the wells and detention/recharge system standing alone established that the Project has an adequate water supply and will mitigate its net water demand by recharging an equal amount or more. Thus, the Boards reference to the SVWP is additional, but unnecessary, evidence of mitigation.

Next, we note that the CWRM Plan, which was completed after the final initial study and MND were filed, explained that if the SVWP is funded and implemented, water supply benefits would accrue to portions of North County, particularly Highlands South and Granite Ridge, although no specific capital facilities to distribute, store, or transfer water into those sub-areas are currently included in the SVWP. Nevertheless, the Plan noted that the Salinas Valley Historical Benefits Analysis (HBA) and recent groundwater modeling demonstrated that higher water levels in the Salinas Valley would help maintain water levels within the Highlands South and Granite Ridge sub-areas.

At the hearing before the Board, Weeks, Director of the Water Resource Agency, testified that the SVWP has new debt funding from a ballot measure (Proposition 218), which requires new projects within a specified zone that will benefit from the SVWP to pay fees and assessments.[3] Weeks testified that the SVWP is nearing implementation; it had almost all of the required state and local permits necessary; consultants would complete design work in 2004; and construction would begin in 2005. He further explained that when implemented the SVWP will protect and increase the Salinas Valley floor water elevation, which increases the level of the groundwater basin, ensuring an increased and sustainable long-term water supply. Our mission is to protect and preserve that groundwater resourse, and we believe the [SVWP] does that. It gets us our long-term water supplythe Highlands South, the alluvial soils (not the granite soils in Granite Ridge) and the Salinas Basin as a whole.

This information and testimony constitutes substantial evidence to support the Boards finding that the implementation of the SVWP is an additional, albeit unnecessary, source of mitigation of impacts to the long-term water supply. Moreover, because the additional mitigation through the SVWP was not necessary, any alleged defect in citing the SVWP as mitigation is of no consequence and would not undermine the Boards finding of no significant adverse hydrological impacts or the validity of the NMD.

Water Impact Fee as Mitigation

Landwatch similarly claims the Board abused its discretion in listing the water impact fee as mitigation. Landwatch asserts that the water impact fee was enacted solely to fund studies. Relying on Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692 (City of Hanford), Landwatch argues that paying for studies is not mitigation because it does not reduce or rectify the adverse impact of the Projects net water demand.

Courts have found that fee-based mitigation programs for cumulative impacts, based on fair-share infrastructure contributions by individual projects, to constitute adequate mitigation measures under CEQA. (See, e.g., Russ Bldg. Partnership v. City and County of San Francisco (1988) 44 Cal.3d 839, 845; Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1188; Save our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 140; San Franciscans for Reasonable Growth v. City and County of San Francisco (1989) 209 Cal.App.3d 1502, 1515-1520.)

In Save our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th 99, this court found substantial evidence to support the countys determination that a traffic impact fee would mitigate traffic congestion because the fees would pay for improvements to be constructed as the traffic triggering the need for the improvements exceeded a projected threshold and the funds to pay for the improvements were generated by the new development. (Id. at p. 141, italics added.) We explained that CEQA required not a time-specific schedule for the County to complete specified road improvements but only a reasonable plan for mitigation that the relevant agency commits itself to implementing. (Ibid.) Citing City of Hanford, supra, 221 Cal.App.3d 692, on which Landwatch relies, we acknowledged that a commitment to pay fees without any evidence that mitigation will actually occur is inadequate. (Save our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 140.) However, we concluded that the traffic fee was not part of an idle or empty of mitigation.

In City of Hanford, the city found that certain impacts on groundwater were rendered insignificant because of a mitigation agreement with the water district, under which the project applicant agreed to pay fees to be used to purchase water supplies and make up for amounts used by the project. However, the record contained no evidence indicating that any such water supplies were or would be available. Consequently, the applicants promise to pay the fees bore no connection to actual mitigation of impacts. The court found that the EIR was inadequate in this respect. (City of Hanford, supra, 221 Cal.App.3d at pp. 727-728.)

We again find City of Hanford to be distinguishable. There, the mitigation agreement and the fees that the applicant promised to pay were not linked to any actual plan to purchase water or make infrastructure improvements that would mitigate cumulative adverse hydrological impacts. The fees simply constituted money in the bank. Here, the record shows that the fee is linked to an actual and reasonable plan for mitigation. Landwatch correctly notes that the water impact fee was enacted to pay studies. However, it was also enacted to pay for investigations, plans, and programs, including hydrogeological evaluation; groundwater management plans; groundwater monitoring locations; and developing, testing, and applying a water data management system. (Monterey County Code, 18.51.070.)

The water impact fees funded the CWRM Plan. As Lawrence testified, however, once the CWRM Plan was completed, the water impact fees were being applied to implement the SVWP. (See Gentry v. City of Murrieta, supra, 36 Cal.App.4th at p. 1380 [factual testimony of agency staff based on personal knowledge is substantial evidence].) As noted, the SVWP includes infrastructure projects designed to improve the quality and quantity of the water supply in the Salinas basin. Moreover, the CWRM Plan, the Salinas Valley Historical Benefits Analysis, and Weeks all concluded that the implementation of the SVWP would benefit the Highlands South and Granite Ridge sub-areas within the designated zone.

Under the circumstances, substantial evidence to supports the Boards conclusion that the water impact fee provides an additional form of mitigation, in that the SVWP will help enhance, protect, and maintain the long-term water supply of areas connected to the Salinas basin, including the southern portion of Granite Ridge. (See Guidelines,  15370.)[4]

Furthermore, we again conclude that any alleged defect in listing the impact fee as mitigation would not undermine the Boards finding concerning the lack of adverse impacts or the validity of the NMD because the record establishes sufficient mitigation without the SVWP and the water impact fee, and there is no substantial evidence to support fair argument that the Project will have significant adverse impacts.

Consistency with General Plan, NorthCountyAreaPlan, andCountyCode

Landwatch contends that the Project violates the General Plan and the North County Area Plan.

When we review an agencys decision for consistency with its own general plan, we naturally accord great deference to the authoring agencys determination. [Citation.] The agency has broad discretion, especially regarding general plan policies, which reflect competing interests. [Citation.] A reviewing courts role is simply to decide whether the [agency] officials considered the applicable policies and the extent to which the proposed project conforms with those policies.  [Citations.] If the agencys decision is not arbitrary, capricious, unsupported, or procedurally unfair, it is upheld. [Citation.] (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1192, italics in original; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 677-678; Save our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 141.) In other words, we will overturn a local agencies interpretation only if a reasonable person could not have reached the same conclusion. (No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 243.)

As we explained in Save our Peninsula Committee v. MontereyCountyBd. of Supervisors, supra, 87 Cal.App.4th at page 142, courts defer to the agencys determination of consistency because the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity. [Citation.] Because policies in a general plan reflect a range of competing interests, the governmental agency must be allowed to weigh and balance the plans policies when applying them, and it has broad discretion to construe its policies in light of the plans purposes.[5]

A project is consistent with the general plan if, considering all its aspects, it will further the objectives and policies of the general plan and not obstruct their attainment. [Citation.] [Citation.] Perfect conformity is not required, but a project must be compatible with the objectives and policies of the general plan. [Citation.] A project is inconsistent if it conflicts with a general plan policy that is fundamental, mandatory, and clear. [Citation.] (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782; San Franciscans Upholding the Downtown Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 678; see Sequoyah Hills Homeowners Assn v. City of Oakland (1993) 23 Cal.App.4th 704, 717 [state law does not require an exact match between a proposed subdivision and the applicable general plan].)

Given the undisputed general overdraft in North Monterey County, Landwatch claims the Project violates Policy 53.1.3 of the General Plan, which states, The County shall not allow water consuming development in areas which do not have proven adequate water supplies. Landwatch argues that approving the Project will obstruct their attainment, specifically preservation of a long-term water supply.

Policy 53.1.3 is intended to promote adequate water service for all county needs (capitalization omitted) in order to [a]chieve a sustained level of adequate water services. Another goal of the General Plan is to promote adequate, replenishable water supplies of suitable quality to meet the countys various needs (capitalization omitted) in order to [e]liminate long-term groundwater overdrafting in the County as soon as practicably possible. To this end, County policy is that [i]ncreased uses of groundwater shall be carefully managed, especially in areas known to have ground water overdrafting.

Numerous studies and pump tests and the testimony before the Planning Commission and Board reasonably support a finding that the Project has a proven and adequate water supply. In addition, the evidence concerning the detention/recharge system reasonably supports a finding that the Project will offset any net water demand and perhaps replace more water than it uses. Thus, notwithstanding the general overdraft, the Board reasonably could find the Project to be fundamentally compatible with both the goal of promoting an adequate and replenishable water supply and the objective of eliminating the overdraft through careful management of groundwater resources and would not obstruct their attainment. Moreover, the Board could reasonably understand the General Plan and its goals, policies, and objectives as guides, rather than compulsory requirements, and treat Policy 53.1.3 as an advisory policy statement rather than a mandatory and absolute bar against the approving new development that uses water, regardless of whether it would have an adverse hydrological impacts. In this regard, we note that when the County intends to impose a moratorium, it has done so directly by ordinance. (See fn. 3, ante.)

Under the circumstances, we do not find that the Boards application of the policy and finding of consistency was arbitrary, capricious, or unsupported by substantial evidence.

Landwatch claims the Project violates Policy 6.1.4 (NC) of the North County Area Plan, which states that [n]ew development shall be phased until a safe, long-term yield of water supply can be demonstrated and maintained. Development levels that generate water demand exceeding safe yields of local aquifers shall only be allowed once additional water supplies are secured.[6] Landwatch argues that the Project generates demand in excess of safe yield, and no additional water supplies have been secured.

The North County Area Plan also provides that [d]evelopments shall be designed to maximize groundwater recharge capabilities and to minimize runoff from the property and calls for groundwater management plans which identify methods to promote recharge protection, erosion control, drainage management, water quality control, and safe, long-term yields of aquifers. (North County Area Plan, 5.1.3 (NC) and 6.1.3 (NC).)

Together these policies contemplate new development in the area and attempt to guide it in order to protect groundwater resources.[7] Given the Projects hydrogeological connection to the greater Salinas groundwater basin, the adequacy of its water supply, the capability of the detention/recharge system, and its contribution to implementation of the SVWP, the Board reasonably could deem the Project consistent and compatible with the North County Area plan, in that it was designed to maximize and promote recharge and, with mitigation, would not generate water demand that exceeded the safe yield.

Under the circumstances, we do not find the Boards finding of consistency to be unreasonable, arbitrary, capricious, or unsupported by substantial evidence.

Conclusion

We are mindful that the EIR is the heart of CEQA. [Citations.] (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 6 Cal.4th at p. 1123.) The California Supreme Court has explained that since the preparation of an EIR is the key to environmental protection under CEQA, accomplishment of the high objectives of that act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact. (No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at p. 75; see 21080, subd. (d), 21082.2, subd. (d), 21151, subd. (a); Guidelines, 15064, subd. (f)(1).)

On the other hand, CEQA does not require the generation of unnecessary paperwork in the form of an EIR (see Bozung v. Local Agency Formation Com. (1975) 13 cal.3d 263, 283), and where it cannot be fairly argued on the basis of substantial evidence that a project may have significant adverse impacts, an EIR is unnecessary, and CEQA does not require one.

Such is the case here. In the proceedings before the Planning Commission, the Board, the Superior Court, and now this court, Landwatch has failed to cite substantial evidence to support fair argument of a significant adverse impact. Moreover, the MND is supported by overwhelming, uncontradicted evidence that the Project has an ample water supply, and, with mitigation, its potentially adverse impacts to the groundwater supply will be rendered insignificant. Accordingly, we conclude that the Board did not violate CEQA in approving the Project with an MND.

Disposition

The judgment is affirmed.

______________________________________

RUSHING, P.J.

WE CONCUR:

___________________________________

MIHARA, J

___________________________________

McADAMS, J.

Filed 2/21/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE COURT:

The opinion which was filed on January 23, 2007, is certified for publication.

________________________________

RUSHING, P.J.

________________________________

MIHARA, J.

________________________________

McADAMS, J.

Trial Court: Monterey County Superior Court

Superior Court No.: M28659

Trial Judge: The Honorable Robert A. OFarrell

Attorneys for Plaintiff and Appellant Wittwer & Parkin

Landwatch Monterey County:

William P. Parkin

Jonathan Wittwer

Sandra Handley

Attorneys for Defendants and Respondents Office of the City Counsel

The City of Palo Alto et al.:

Charles J. McKee,

City Counsel

Efren N. Iglesia,

Senior Deputy County Counsel

Attorneys for Real Parties in Interest and Fenton & Keller

Respondents: Don Chapin et al.:

John S. Bridges

Mark A. Cameron

David C. Sweigert

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line Lawyers.

[1] For similar reasons we also find Landwatchs reliance on The Pocket Protectors v. City of Sacramento, supra, (2004) 124 Cal.App.4th 903 misplaced.

[2] Section 21082.1 provides, in relevant part, (a) Any draft environmental impact report, environmental impact report, negative declaration, or mitigated negative declaration prepared pursuant to the requirements of this division shall be prepared directly by, or under contract to, a public agency. [] (b) This section is not intended to prohibit, and shall not be construed as prohibiting, any person from submitting information or other comments to the public agency responsible for preparing an environmental impact report, draft environmental impact report, negative declaration, or mitigated negative declaration. The information or other comments may be submitted in any format, shall be considered by the public agency, and may be included, in whole or in part, in any report or declaration. [] (c) The lead agency shall do all of the following: [] (1) Independently review and analyze any report or declaration required by this division. [] (2) Circulate draft documents that reflect its independent judgment. [] (3) As part of the adoption of a negative declaration or a mitigated negative declaration, or certification of an environmental impact report, find that the report or declaration reflects the independent judgment of the lead agency.

[3] The areas within the zone of benefit were determined by geological analysis and include those that have alluvial soil that creates a hydrological connection to the Salinas Groundwater Basin. Highlands South and parts of the Granite Ridge sub-areas, including the Project site, are inside the zone of benefit.

[4] Under section 15370 of the CEQA Guidelines, mitigation includes (c) Rectifying the impact by repairing, rehabilitating, or restoring the impacted environment. [] (d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action. [] (e) Compensating for the impact by replacing or providing substitute resources or environments.

[5] We reject Landwatchs claim that the court does not defer to the agencys determination of consistency because that determination involves statutory interpretation, over which the court exercises independent judgment. Landwatch primarily relies on Yamaha Corp. of America v. State. Bd. of Equalization (1998) 19 Cal.4th 1 and this courts decision in MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204. However, neither case involved CEQA or a determination of whether an action on a project was consistent with a general plan. Moreover, in MHC Operating Limited Partnership, we concluded that [i]n the particular context of rent control ordinances, [t]he boards interpretation of an ordinances implementation guidelines is given considerable deference and must be upheld absent evidence the interpretation lacks a reasonable foundation. [Citation.] (MHC Operating Limited Partnership v. City of San Jose, supra, 106 Cal.App.4th at pp. 219-220.)

[6] The Monterey County Code defines [s]afe yield as the amount of water that can be extracted continuously from the basin or hydrologic sub-area without degrading water quality, or damaging the economical extraction of water, or producing unmitigatable adverse environmental impacts. (Monterey County Code, 19.02.143.)

[7] In this respect, the North County Area Plan supports the Boards implicit conclusion that General Plan Policy 53.1.3 as an advisory statement rather than mandatory bar to all new development.