California Native Plant Society v. City of Rancho Cordova, ____ Cal. App. 4th _____ (March 24, 2009, No. C057018)

The California Court of Appeal for the Third Appellate District determined that the City of Rancho Cordova did not improperly defer mitigation under the California Environmental Quality Act ("CEQA") when it adopted a mitigation measure that required the applicant to develop (1) a habitat mitigation and monitoring plan for off site mitigation pursuant to standards which would ensure no net loss of habitat as a result of on site construction; and (2) a wetland avoidance/mitigation plan to address the potential impacts of any off-site creation activities contemplated in the habitat mitigation and monitoring plan. In reversing the trial court's holding on this point, the court found that the habitat mitigation and monitoring plan did not need to identify specific off-site locations for mitigation. The court did, however, affirm the trial court's holding that the City's approval of the entitlements was inconsistent with a General Plan policy that required the City to design mitigation "in coordination with" other public agencies because the City merely solicited, considered, and responded to the agencies' comments on the EIR. Although the holding on this latter issue may require public agencies that use this language in their general plan to "cooperate with" the specified agencies, the court upheld the principle that a project need not be in "perfect conformity" with every general plan policy. Rather, a project would be consistent with the general plan if it would "further the objectives and policies of the general plan and not obstruct their attainment."

The project in this case involved development of approximately 530 acres with residential, commercial, office, park, school, and other uses in the City. The Project Environmental Impact Report ("EIR") concluded that the project would result in the direct loss of, and indirect adverse effects on, vernal pool crustacean habitat and other aquatic features. To mitigate these impacts, the EIR required that the applicant complete and implement a habitat mitigation and monitoring plan that would compensate for the loss of acreage, functions, and values of the impacted resources by preserving two acres of existing habitat or creating one acre of new habitat for each acre of habitat impacted by the project. The plan had to include: (1) target areas for creation, restoration, and preservation; (2) biological assessments of the existing resources on the target areas; (3) specific creation and restoration plans for each target area; and (4) performance standards to measure the success of the mitigation and monitoring plan. In response to comments on the Draft EIR by the Society that this mitigation measure would also have environmental impacts, the City added a new mitigation measure in the Final EIR to address potential impacts of the proposed off-site creation activities. The new measure required the applicant to develop a wetland avoidance/mitigation plan that had to include: (1) the location of proposed habitat to be created to ensure no net loss of off site acreage, values, and functions; (2) a monitoring plan to ensure the new wetlands functioned properly; and (3) a maintenance plan to ensure the wetlands were maintained in perpetuity.

The Society alleged that the City had improperly deferred mitigation by failing to describe where off-site vernal pool and wetland creation would occur and by failing to describe the potential effects of such off-site mitigation. The court relied upon three cases to conclude that the City had not improperly deferred mitigation. The court interpreted Sundstrom v. County of Mendocino, 202 Cal. App. 3d 296 (1988), and Gentry v. City of Murrieta, 36 Cal. App. 4th 1359 (1995), to stand for the proposition that "the determination of whether a project will have significant environmental impacts, and the formulation of measures to mitigate those impacts, must occur before the project is approved." However, the court interpreted Sacramento Old City Association v. City Council, 229 Cal. App. 3d. 1011 (1991), to stand for the proposition that when a public agency has evaluated the potentially significant impacts of a project and has identified measures to mitigate those impacts, "the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigating the significant impacts of the project" and "the details of exactly how mitigation will be achieved under the identified measures can be deferred pending completion of a future study."

Therefore, the City had not improperly deferred mitigation because the City had evaluated the potentially significant impacts of the project, concluded that the project would result in a loss of habitat, and determined that preservation or creation of replacement habitat off-site in a specific ratio to the habitat lost would mitigate that impact. The City was not required "to commit to any particular mitigation measure in the EIR, as long as it commit[ted] to mitigating the significant impacts of the project."

The Society further alleged that the City had violated CEQA by failing to provide substantial evidence to support its finding that the proposed mitigation would reduce the impacts of the project to a less than significant level. The Society relied upon comments from the agencies with ultimate expertise and jurisdiction over the resources that the proposed mitigation would result in significant impacts to, and loss of, listed species and habitat. The court held that this evidence did not demonstrate that there was insufficient evidence in the record to support the City's finding and explained that "[p]ointing to evidence of a disagreement with other agencies is not enough to carry the burden of showing a lack of substantial evidence to support the City's finding." To meet its burden, the Society needed to set forth all of the evidence that the City had used to support its finding and demonstrate that such evidence could not have reasonably supported the City's finding.

The court also considered the Society's claim that the City had violated the State Planning and Zoning Law because approval of the project was inconsistent with certain General Plan policies. The court agreed with the Society with respect to one General Plan policy--that is, a General Plan policy that required the City to design mitigation "in coordination with" the United States Fish and Wildlife Service and the California Department of Fish and Game. In defining "coordination" to require some measure of cooperation, the court found that the City did not "coordinate with" these agencies by soliciting, considering, and responding to their comments on the EIR.

Finally, the court did not consider the merits of several of the Society's claims because the Society failed to exhaust its administrative remedies with respect to those claims. To reach this decision, the court relied upon the language of the CEQA Guidelines section 21177, which requires any person to raise the alleged grounds for noncompliance with CEQA prior to the close of the public hearing on the project in order to raise the claim in a later legal challenge.