Fourth Appellate District Upholds Supplemental Environmental Impact Report
Fourth Appellate District Upholds Supplemental Environmental Impact Report for the Silverado Ranch Canyon Project Without Requiring Recirculation, Rejects Challenges on Res Judicata Grounds
August 23, 2011
by Adam D. Link
On July 8, 2011, the Fourth District Court of Appeal upheld a Supplemental Environmental Impact Report (SEIR) for the Silverado Ranch Canyon Project (Project) in Orange County (County) without requiring revision or recirculation, finding that the public had been given reasonable opportunity to comment on recently submitted observations regarding the presence of the arroyo toad in the project area. More specifically, the court found that such observations did not amount to “new material information” which would trigger recirculation requirements. This decision and the underlying litigation are an outgrowth of a related proceeding initiated in 2003 challenging the Final EIR (FEIR) for the same project. In Silverado Modjeska Recreation & Park Dist. v. County of Orange (2011) 197 Cal.App.4th 282 (Silverado), Plaintiffs Silverado Modjeska Recreation and Park District and Rural Canyons Conservation Fund (collectively, Plaintiffs) asserted two distinct causes of action: (1) that the SEIR for the Project did not comply with a writ issued in the 2003 action requiring the County to make certain changes to the Final EIR; and (2) the discovery of information relating to the presence of the arroyo toad near the Project site constituted “significant new information” and the County’s failure to recirculate a revised SEIR to address this information violated the requirements of the California Environmental Quality Act (CEQA).
The Appellate Court upheld the decision of the trial court in rejecting the first cause of action on res judicata, or claim preclusion grounds. The Fourth District also dismissed Plaintiffs’ second cause of action, finding the County had reasonably concluded that information provided regarding the presence of the arroyo toad was similar to information presented in the 2003 FEIR, and was sufficiently commented on by members of the public. As the court noted, the arroyo toad issue was discussed in the 2003 FEIR, was commented upon by Rural Canyons and was litigated in Rural Canyons’ challenge to the 2003 FEIR. Thus, the Fourth District found that the County’s decision not to recirculate the SEIR was supported by substantial evidence in the record. This decision highlights the potential difficulties regarding protracted CEQA litigation, where there is significant time for “new” information to arise between a determination that an FEIR is deficient and the completion of an SEIR.
The Silverado Ranch Canyon Project is a small custom home site project in the Cleveland National Forest proposed by Defendants and Respondents CCRC Farms, LLC, Anthony A. Marnell II, Marnell Corrao Associates, Inc., and Focus 2000, Inc. (collectively, CCRC). In 2003, the County had circulated a draft EIR for the Project which included a biological study that addressed sensitive wildlife species recorded in the site vicinity but not detected on the site, which included the arroyo toad. The Draft EIR concluded the probability of the arroyo toad occurring on the project site was very low, though several members of the public commented that such a conclusion was unfounded. However, the FEIR concluded that the Project site provides only “marginally suitable habitat” for the arroyo toad and, following circulation of the 2003 Draft EIR, the receipt of comments and the preparation of responses to comments, the County certified the FEIR for the Project in August of 2003.
Shortly thereafter, Plaintiffs and Appellants in this case, Rural Canyons Conservation Fund (Rural Canyons) challenged the actions taken by the County in two petitions for writ of mandate filed in the Orange County Superior Court. Specifically, Rural Canyons challenged the adequacy of the 2003 EIR on a number of grounds, including its conclusion that the Project would have no significant impact on the arroyo toad, as not being supported by substantial evidence in the record. The trial court granted Rural Canyons’ petition with respect to a number of its claims, finding the 2003 FEIR deficient in several respects. However, with respect to Rural Canyons’ allegation that the FEIR did not properly evaluate the impact of the project on the arroyo toad, the trial court found that the County’s findings were supported by substantial evidence. As part of its judgment in that case, the court issued a writ that commanded the County to undertake several actions to remedy deficiencies in the FEIR, including undertaking a study of the baseline water conditions and quality in the project area.
After completing the prescribed studies and modifying the FEIR, the County certified a final revised SEIR on October 2, 2007, and CCRC moved to discharge the trial court’s earlier writ in the 2003 action. The trial court granted the motion to discharge the writ, stating that:
[T]he County has complied with the commands of the Writ, thereby justifying the Writ being discharged. The Court further finds that in so complying with the commands of the Writ, the County has complied with CEQA with respect to the issues alleged in the instant action.
Plaintiffs almost immediately thereafter filed a new action challenging the validity of the SEIR and the County’s failure to recirculate that document for public comment.
Petitioners’ Challenge to the SEIR Was Barred by Res Judicata
Plaintiffs first contended that the SEIR for the Project did not comply with the Writ issued in the 2003 action requiring the County to make certain changes to the FEIR. The trial court ruled, based on the principles of res judicata, that such an assertion was barred. The doctrine of res judicata, also known as claim preclusion, precludes the relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them. (Federation of Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1202.) Two proceedings are based on the same cause of action if they are based on the same “primary right.” (Ibid.) In a CEQA proceeding, courts have held that the right to ensure the lead agency’s compliance with CEQA’s substantive and procedural requirements with respect to a particular environmental impact is a primary right. (Id. at p. 1203.) Thus, the Fourth District concluded that because Plaintiffs’ first cause of action is based on the same primary right that the court in the 2003 action adjudicated when it decided to discharge the 2003 Writ, the doctrine of res judicata bars Petitioners’ first cause of action. According to the court, the trial court had explicitly and unambiguously stated that the County had complied with the commands of the writ issued in the 2003 action, and that in so doing the County has complied with CEQA with respect to the issues alleged in this action.
One of the more interesting discussions within the court’s decision was its analysis of the privity requirement for res judicata in the CEQA context. Specifically, Petitioners stated in both the 2003 and 2007 actions that they had brought the actions on behalf of all other citizens interested in the County’s compliance with CEQA and for the purpose of protecting environmental values, public health and public participation under CEQA. The Fourth District found that Plaintiffs’ pursuit of CEQA claims on the public’s behalf against the same parties in both actions is sufficient “to show a ‘common interest’ in the enforcement of CEQA, for purposes of a privity determination.” (Silverado, supra, 197 Cal.App.4th at p. 299, citing Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 230 (Planning & Conservation League).) The court specifically noted that “if the common objective of representing the public interest in a lead agency’s compliance with CEQA were not sufficient to establish privity between two parties for purposes of res judicata, the lead agency’s compliance with CEQA would be subject to continuing challenges by different parties successively asserting similar claims, in contravention of the legislative goal of avoiding delay and achieving prompt resolution of CEQA claims.” (Silverado, supra, 197 Cal.App.4th at p. 299, citing Planning & Conservation League, supra, 180 Cal.App.4th at p. 230, fn10.)
The County’s Decision Not to Recirculate the SEIR was Supported by Substantial Evidence
Petitioners next asserted that the County had violated CEQA by failing to circulate a revised SEIR following the submission of new information relating to the observation of the arroyo toad near the project site, in violation of Public Resources Code section 21092.1 (recirculation after release of a draft EIR but before certification of a final EIR). CCRC contended that Public Resources Code section 21166 (recirculation after certification of a final EIR) was controlling; however, the Fourth District found that, regardless of whether section 21166 or section 21092.1 applied to the present situation, the result would be the same and virtually identical standards governed.
In resolving this issue of the need for recirculation of the SEIR, the Fourth District cited the decision in Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112 (Laurel Heights II), and found that recirculation is only required when new information added to an EIR discloses: (1) a new substantial environmental impact resulting from the project or from a new mitigation measure proposed to be implemented; (2) a substantial increase in the severity of an environmental impact unless mitigation measures are adopted that reduce the impact to a level of insignificance; or (3) a feasible project alternative or mitigation measure that clearly would lessen the environmental impacts of the project, but which the project’s proponents decline to adopt. The court also looked to Laurel Heights II and found that the addition of new information to an EIR is not “significant” unless the EIR “is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.” (Laurel Heights II, supra, 6 Cal.4th at p. 1129.) Thus recirculation of an uncertified EIR is “not required where the new information added to the EIR merely clarifies or amplifies, or makes insignificant modifications in an adequate EIR.” (Laurel Heights II, supra, 6 Cal.4th at pp. 1129-1130.) According to the court, the new information cited by Plaintiffs relating to the alleged presence of the arroyo toad “did not disclose either (1) a new substantial environmental impact from the project, (2) a substantial increase in the severity of an environmental impact, or (3) a feasible project alternative or mitigation measure.” As the court noted, the arroyo toad issue was discussed in the 2003 EIR, was commented upon by Rural Canyons, and was litigated in Rural Canyons’ challenge to the 2003 EIR. Thus, the Fourth District found that the County’s decision not to recirculate the SEIR was supported by substantial evidence in the record.
Conclusions and Implications
While the decision in this case may be relatively fact-specific, this is a circumstance that arises repeatedly in the CEQA context and of which practitioners should be aware. The remedy for a project environmental review deemed to be non-compliant with the strictures of CEQA, or for which a deficient EIR was performed, is often a writ from the court compelling the lead agency to reexamine the issues raised by Petitioners. This is precisely the situation presented in the Silverado case, from which many lessons can be learned. First, if there has been a judicial determination that the revised EIR is CEQA compliant, future Petitioners may be barred by the doctrine of res judicata from again challenging its validity. Second, any analysis of specific issues in the first challenged EIR can be useful in defending against attacks on the validity of an SEIR, or at a minimum can be used as justification for not recirculating that document. Given the often extended length of time between the initial project approval and any subsequent challenge reaching the appellate level (approximately eight years in this case), there is always the distinct possibility that “new” information will come to light that would require recirculation of the environmental review documents. The Fourth District, realizing the position this puts Project proponents and lead agencies in, balanced the need for the public participation with the need for a predictable timeline for environmental review. The court acknowledged that in regulating recirculation, where new information “does not materially implicate the public’s right to participate, it cannot justify prolonging the environmental review process.” (Silverado, supra, 197 Cal.App.4th at p. 308.)
For additional information related to the Fourth Appellate District’s decision in Silverado Modjeska Recreation & Park Dist. v. County of Orange, please contact Adam D. Link at email@example.com.