Del Cerro Mobile Estates v. City of
Placentia (July 7, 2011, G043709)
In this case, the Court of Appeal for the Fourth District held that a city may defend itself against a California Environmental Quality Act challenge by invoking a statutory exemption even if the city has prepared an EIR for the project. The court also rejected the argument that because the exemption was written in the singular, it could not apply to a project involving multiple railway crossings. Section 21080.13 exempts from CEQA "any railroad grade separation project which eliminates an existing grade crossing or which reconstructs an existing grade separation." Finally, the petitioner's non-CEQA claims that the City of Placentia ("City") and Orange Country Transportation Authority ("OCTA") were planning to possibly violate the City's resolutions, were held not ripe for adjudication.
The EIR was prepared for the Orange County Gateway Project
("the Project"). The EIR specified the purpose of the
Project was increasing public safety, improving traffic, increasing
the efficiency of the local transportation system, reducing train
noise and whistles, reducing emergency vehicle response time, and
reducing air pollution from idling vehicles at rail crossings. Once
the City approved the EIR it then approved an implementation
alternative, which involved constructing six railway overcrossings
and one undercrossing.
Petitioner filed suit, alleging a mobile home park it owned and
operated would be "impacted" in an undefined way by the
Project. Petitioner sought declaratory judgment that the City's
approval of the project, including a faulty EIR, violated CEQA.
Further, the petitioner argued that by preparing the EIR, the City
had concluded that CEQA applied to the Project. OCTA intervened
and, joined by the City, filed a demurrer under section 21080.13,
claiming that the Project was statutorily exempt from CEQA.
The Court of Appeal agreed that the City could defend itself
against claims the EIR was inadequate by asserting CEQA did not
apply. Additionally, the court held that the City could raise the
section 21080.13 exemption after the start of litigation
challenging the EIR. Where the exemption is embodied in statute,
and nothing suggests the City prevented the petitioner from
becoming aware of the exemption, the exemption is not waived by
preparation of an EIR.
The court also held that County of Santa Barbara Flower &
Nursery Growers Assn. v. County of Santa Barbara allowed a
governmental agency to invoke an exemption, despite conducting an
EIR, regardless of whether the agency was the "lead
agency" with final authority to accept or reject the EIR.
Further, where no facts are in dispute and no hearing or finding is
required by CEQA, no express exemption finding by the City was
required to claim the exemption.
Petitioner next argued that because section 21080.13 is written in
the singular, it cannot be applied to projects eliminating multiple
railway crossings. However, the court rejected this argument as a
matter of law because section 13 of the Public Resources Code
provides that "the singular number includes the plural, and
the plural the singular." Moreover, the trial court was not
required to balance the exemption's policies against CEQA's
goals. Rather, "a project that falls within a statutory
exemption is not subject to CEQA even if it has the potential to
significantly affect the environment."
Finally, the petitioner asserted it had stated viable non-CEQA
claims alleging the city "had made public its intention to
significantly change and accelerate the Project" and thereby
"disregard and abandon" previously adopted resolutions.
However, the court found the City and OCTA had only "float[ed]
a potential course of action." Here, because a court may not
assume an official will refuse to take required action, despite
planned refusal, mandamus relief was inappropriate. The court also
held that the claims were not ripe because the petitioner never
provided a timetable or other evidence that its non-CEQA claims
would soon ripen.
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