The opinion
Filed 8/17/21
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
LOS ANGELES DEPARTMENT OF WATER
AND POWER, F081389
Plaintiff and Respondent, (Super. Ct. No. BCV-18-101513-
KCT)
v.
COUNTY OF INYO et al., OPINION
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C.
Twisselman III, Judge.
Jarvis, Fay & Gibson, Rick W. Jarvis, Christine L. Crowl; Greg James; Marshall
S. Rudolph, County Counsel, John-Carl Vallejo, Assistant County Counsel, and Grace
Chuchla, Deputy County Counsel, for Defendants and Appellants.
Arthur J. Wylene and John Kennedy for Rural County Representatives of
California and Rural Counties’ Environmental Services Joint Powers Authority as Amici
Curiae on behalf of Defendants and Appellants.
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II., III.B., and III.C., of the
Discussion.
Jennifer B. Henning for California State Association of Counties as Amicus
Curiae on behalf of Defendants and Appellants.
Michael N. Feuer, Joseph A. Brajevich, Julie C. Riley, Melanie A. Tory; Downey
Brand, Christian L. Marsh and Kathryn L. Oehlschlager for Plaintiff and Respondent.
-ooOoo-
The County of Inyo (County) appeals from a judgment and issuance of a
peremptory writ of mandate in a proceeding under the California Environmental Quality
Act (CEQA; Pub. Resources Code, § 21000 et seq.).1 The trial court issued the writ of
mandate after determining (1) County’s description of the activity constituting its project
was too narrow and, thus, did not comply with CEQA and (2) the project, when properly
defined, was not exempt from CEQA’s requirements. The project includes County’s use
of condemnation proceedings to acquire fee simple title to three sites it leases and uses
for landfills and County’s continued operation of the landfills. In arguing that the project
was exempt from CEQA, County relied on the commonsense exemption and the existing
facilities exemption. (See Guidelines, §§ 15061, subd. (b)(3) [commonsense exemption],
15301, subd. (a) [existing facilities exemption].)
The published portions of this opinion address exhaustion of administrative
remedies and the interpretation of the existing facilities exemption. The exhaustion
question requires an interpretation of section 21177, subdivision (a) and the limitation
contained in section 21177, subdivision (e). We conclude the issue exhaustion
requirement does not apply to challenges to the exemptions because County did not
provide adequate notice that CEQA exemptions would be considered at the public
hearing held by its Board of Supervisors. As a result of the lack of notice, County did not
provide an “opportunity for members of the public to raise … objections” to its reliance
1 All unlabeled statutory references are to the Public Resources Code. “Guidelines”
refers to the CEQA regulations set forth in California Code of Regulations, title 14,
section 15000 et seq.
2.
on those exemptions. (§ 21177, subd. (e).) Therefore, the issue exhaustion requirement
does not apply to objections to County’s reliance on the exemptions.
Our interpretation of the existing facilities exemption addresses whether the word
“facilities” is ambiguous with respect to its application to an unlined landfill. Like the
court in Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52
Cal.App.4th 1165 (Azusa), we conclude “facilities” is ambiguous—that is, reasonably
susceptible to more than one interpretation—because it could be interpreted to include or
exclude unlined landfills. (Id. at p. 1192.) We resolve the ambiguity by interpreting
“facilities” to exclude unlined landfills. Therefore, County misinterpreted the Guidelines
and violated CEQA when it concluded the existing facilities exemption applied to the
project.
In the unpublished portions of this opinion, we conclude County committed two
other CEQA violations. First, it improperly described the project as constituting only the
proposed condemnation proceedings and a mere change in ownership of the landfill sites.
Second, the unduly narrow project description caused County to erroneously conclude the
commonsense exemption applied. The CEQA violations justified the trial court’s
issuance of a writ of mandate vacating County’s approval of condemnation proceedings
for each of the three landfills.
We therefore affirm the judgment.
FACTS
The Landfills
The City of Los Angeles, acting through its Department of Water and Power
(LADWP), states that it is the largest landowner in Inyo County after the federal
government.2 In the 1950’s, LADWP began leasing land to County for waste
management purposes. This litigation involves landfills operated by County on three
2 See Chinatown (Paramount Pictures 1974).
3.
sites leased from LADWP. The landfills are known as the Bishop-Sunland Landfill, the
Independence Landfill, and the Lone Pine Landfill.
The Bishop-Sunland Landfill is located on a 120-acre site about two miles
southwest of Bishop, west of Highway 395. It was established in 1955 and serves Bishop
and the surrounding unincorporated communities. Its disposal footprint is entirely
unlined and covers about 78 acres. The site is located on a gently sloping alluvial fan
elevated about 130 feet above the Owens Valley floor.
The Independence Landfill is located on a 90-acre site south of Independence, east
of Highway 395. It was established in 1965 and has a disposal footprint of about 18
acres. The unlined site is on a gently sloping alluvial fan elevated about 160 feet above
the floor of the Owens Valley.
The Lone Pine Landfill is located on approximately 60 acres southeast of the
unincorporated community of Lone Pine, a mile east of Highway 395. It was established
in 1965 and its disposal footprint is about 26.6 acres. The unlined site is on a shallow
alluvial fan at the western edge of the Owens River floodplain, elevated approximately 65
feet above the river.
Regulation and Permits
The landfills are operated by Inyo County Recycling and Waste Management.
The operations are subject to oversight and permits from (1) the Inyo County Department
of Environmental Health Services; (2) the California Department of Resources Recycling
and Recovery (CalRecycle); (3) the Regional Water Quality Control Board for the
Lahontan Region (Lahontan Water Board); and (4) the Great Basin Unified Air Pollution
Control District (Great Basin Air District).
CalRecycle is the principal permitting authority and has issued a “Solid Waste
Facility Permit” for each landfill (Operating Permit). The Operating Permits address
hours of operation; the type and daily maximum tonnage of waste; maximum daily
vehicle traffic; the landfill’s area, design capacity, maximum elevation, maximum depth;
4.
and the estimated closure year. Section 44015 requires permits “be reviewed and, if
necessary, revised at least once every five years.” The operator of a permitted landfill
cannot modify its design or operation in a manner not authorized by the existing permit
without obtaining a revised permit. (§ 44004, subds. (a), (b).) The statutory procedures
for obtaining a revised permit require at least one public hearing and an agency
determination of whether, before making a decision on the application, review under
CEQA is necessary. (§ 44004, subds. (d)(5), (h)(1)(A).)
The Inyo County Department of Environmental Health Services, as CalRecycle’s
local enforcement agency, conducts monthly inspections and takes other action to oversee
County’s compliance with the Operating Permits. (§§ 40130 [enforcement agency],
43218 [monthly inspections].) CalRecycle also inspects the landfills periodically.
Prior to the August 2017 actions of the Inyo County Board of Supervisors that are
challenged in this litigation, the landfills were subject to Operating Permits issued in
1999 and 2000. In September 2017, the Inyo County Department of Environmental
Health Services approved a revised operating permit for the Bishop-Sunland Landfill.
The Porter-Cologne Water Quality Control Act (Wat. Code, § 13000 et seq.)
requires each regional board to review and classify operating waste disposal sites within
its region. (Wat. Code, § 13226.) The Lahontan Water Board issued waste discharge
permits for the Independence and Lone Pine Landfills in 1996 and for the Bishop-
Sunland Landfill in 2001.
The Great Basin Air District issued County permits to operate for (1) a landfill gas
collection and treatment system at the Bishop-Sunland Landfill and (2) a grinder at the
same landfill. The permits include monthly monitoring, periodic unannounced site
inspections, and annual renewal.
Prior CEQA Review
In 1999, County’s Department of Environmental Health Services prepared and
adopted a mitigated negative declaration for each landfill in connection with its
5.
application for updated operating permits. Each mitigated negative declaration
concluded that the operation of the landfill, with implementation of the recommended
mitigation measures, would not result in a significant environmental effect and, thus,
County was not required to prepare an environmental impact report (EIR) for that
landfill.
In 2012, a four-page addendum to the landfills’ three mitigated negative
declarations was prepared (2012 Addendum). The 2012 Addendum addressed proposed
amendments to the Operating Permits for the landfills. The amendments included (1)
increasing the maximum daily disposal tonnage, (2) increasing the average daily tons, (3)
slightly reducing the total acres in the disposal footprints to reflect updated surveys, and
(4) changing the estimated closure dates. The 2012 Addendum stated the proposed
amendments were consistent with the previous mitigated negative declarations and
related to minor technical changes better reflecting existing landfill operations, new
regulatory procedures, and improved measurement techniques. The 2012 Addendum
concluded: “No additional impacts are anticipated not already considered, and no further
mitigation measures are required.” It also concluded no subsequent environmental
document was required and it was adequate to comply with CEQA. The permit
amendments under consideration in 2012 were abandoned.
Revisions to Permits
In 2015, County prepared another set of applications for revisions of the Operating
Permits. To illustrate the changes—which LADWP characterizes as substantial and
County regards as minor—the application for the Bishop-Sunland Landfill sought to
increase peak daily tonnage from 120 to 160 (a 33% increase); increase average daily
tonnage from 52 to 64.7 (about a 25% increase); increase capacity from approximately 4
million cubic yards to slightly over 6 million cubic yards (about a 50% increase); and
accelerate the closure date from 2097 to 2064. Using 2015 as the baseline, the useful life
of the landfill would shrink from 82 years to 49 years, a decrease of roughly 40 percent.
6.
In February 2017, County submitted an updated application for the Bishop-
Sunland Landfill that sought similar changes. To comply with CEQA for the proposed
revisions to the landfill’s Operating Permit, County relied upon the 1999 mitigated
negative declaration and the 2012 Addendum. In a May 2017 letter, the Inyo County
Department of Environmental Health Services advised CalRecycle that, as the local
enforcement agency, it “made the finding that the proposed permit is consistent with
current CEQA documentation. An addendum to the Mitigated Negative Declaration
(State Clearinghouse No. 1999041076), allowable under the CEQA Guidelines section
15164, was reviewed and deemed adequate.” In September 2017, the Inyo County
Department of Environmental Health Services approved the application for revisions of
the Bishop-Sunland Landfill’s Operating Permit.
Condemnation Proceedings
On July 17, 2017, County sent LADWP notice of its intention to adopt a resolution
of necessity for acquisition by eminent domain of the landfill sites. In an agenda request
form for the August 15, 2017 meeting of County’s Board of Supervisors, County’s staff
described the 2016 negotiations with LADWP for the renewal of the lease on the Bishop-
Sunland Landfill, which included LADWP’s request for a fourfold rent increase to over
$20,000 per year and a termination clause that would allow LADWP to terminate the
lease for any reason upon 180 days’ notice. These demands and the future negotiations
for the other landfills caused County’s staff to “call into question the County’s ability to
ensure long-term waste management services.” Staff also described certain hardships
that being a lessee created:
“The terms of the current Bishop lease hinder[] the County’s ability to
effectively interact with state agencies having regulatory authority over
landfill operations. The Bishop lease requires LADWP’s approval for all
interactions with those regulatory agencies. LADWP interjects itself into
the regulatory process at every level, requiring approval before submission
and review of work as it progresses, and LADWP reserves the right to
ultimately block or revise any action the County wishes to take including
7.
actions necessary to comply with state regulators. As a result, there are
delays and uncertainty with respect to all regulatory agency approvals.”
Staff also set forth concerns about the amount of resources being used to negotiate
three-year lease terms and the possibility of more restrictive terms in the future. In
addition, staff stated:
“The terms of the current Bishop-Sunland lease also thwart[] any potential
cooperative efforts with neighboring counties or municipalities as it
prohibits the acceptance of any waste from outside of Inyo County
including Mono County or Mammoth Lakes.”
Staff described the proposal to acquire fee title to the properties containing the
landfills and stated County had begun negotiations with LADWP and made offers of just
compensation based on appraisals of the fair market value of the property rights. Those
offers had not been accepted and staff recommended using eminent domain to acquire the
properties through condemnation.
LADWP notes several subjects were not addressed in the agenda request form
published before the Board of Supervisors’ meeting. It did not mention the mitigated
negative declarations for the landfills’ Operating Permits, the 2012 Addendum, any other
environmental analysis, or how CEQA applied to the proposal. Before the Board of
Supervisors’ meeting, counsel for LADWP sent County a nine-page letter objecting to
the proposed resolutions of necessity.
LADWP’s letter asserted County did not need fee simple ownership for its
proposed continued operation of the landfills and there was no public necessity for
County to acquire ownership of appurtenant water rights. The letter also asserted
“County has historically been lax in its landfill operations and, if left unchecked, its
operations will likely pose a significant threat to the Owens Valley watershed and
groundwater that supplies the Owens River and the Los Angeles Aqueduct.” The letter
listed a variety of regulatory violations that had occurred or were occurring at the
landfills. Those violations and the remedial action taken need not be described here.
8.
Page seven of LADWP’s letter contained four paragraphs supporting LADWP’s
assertion that compliance with CEQA was mandatory before County could condemn the
properties. On the fundamental CEQA issue of identifying the activity constituting the
project, LADWP argued the project was not adequately described and, as a result, the
potential environmental effects of the project could not be adequately evaluated.
LADWP referred to the illegal use of the Bishop-Sunland Landfill as a site for concrete
crushing, an activity that created additional truck traffic and dust. LADWP closed the
CEQA section of the letter by stating:
“Inyo County has stated that it already has plans to increase tonnage,
expand uses, and correct violations at the Landfill Properties. The impacts
of these changes in operations must be analyzed before Inyo County can
acquire the properties. If Inyo County knows the changes that it will be
making to the Landfill Properties and its operations, it cannot piecemeal the
projects and delay CEQA review.”
At the August 15, 2017 public hearing of the Board of Supervisors, counsel for
LADWP appeared and reiterated its objections. Just before the close of the public
portion of the meeting, a County staff member addressed the CEQA issue by stating
County believed the proposed condemnation was exempt from CEQA on at least two
grounds, including the categorical exemption for ongoing operations at existing facilities
and the commonsense exemption. He described the project as the condemnation itself
and not as entailing the creation of a new land use. This appears to be the first time
County disclosed to the public that it might rely on CEQA exemptions.
Resolutions of Necessity
The Board of Supervisors unanimously adopted separate resolutions of necessity
authorizing the condemnation of the three landfill sites for continued landfill purposes.
The resolutions stated County “intends to continue the use and operation of a landfill, a
public use, on [the three sites] and, in connection therewith, acquire interests in certain
real property (the ‘Project’).” The Board of Supervisors explicitly found (1) “[p]ublic
9.
interest and necessity require the proposed Project”; (2) “[t]he Project is planned and
located in the manner that will be most compatible with the greatest public good and the
least private injury”; (3) “[t]he property sought to be acquired is necessary for the
Project”; (4) “[t]he offer of compensation required by Section 7267.2 of the Government
Code has been made to the owner or owners of record”; and (5) “[i]nsofar as any of the
property … has heretofore been dedicated to a public use, the acquisition and use of such
property by the County for the purposes identified herein is for a more necessary public
use than the use to which the property has already been appropriated.”3 The Board of
Supervisors authorized County Counsel to prepare and prosecute such eminent domain
proceedings as necessary for the acquisition of the properties.
Like the agenda request form for the August 2017 public hearing, the Board of
Supervisors’ resolutions made no mention of CEQA. Although the resolutions defined
and used the term “ ‘Project,’ ” they did not state that definition applied for purposes of
CEQA, did not explicitly determine the scope of the project for purposes of CEQA, did
not set forth any finding relating to CEQA compliance, did not address any CEQA
exemptions, and did not address the unusual circumstances exception to the exemptions.
After adoption of the resolutions, County did not file a notice of exemption, which
would have triggered a 35-day limitations period. (§ 21167, subd. (d); see Guidelines,
§ 15062, subd. (d) [35-day and 180-day statutes of limitation].) As a result, any action or
proceeding alleging noncompliance with CEQA was required to be commenced within
180 days from the date of County’s decision to carry out the project. (§ 21167, subds.
(a), (d).) Had a notice of exemption been completed and filed, it would have given
3 Because the “property” to be condemned includes both the land and appurtenant
water rights, LADWP asserts, in effect, that the phrase “acquisition and use of such
property by the County” indicates County will use the water rights being condemned. A
contrary interpretation (i.e., the water right will not be used), in LADWP’s view, would
mean there is no necessity for acquiring the water rights and, as a result, the resolutions
contain falsehoods.
10.
County an opportunity to define the scope of the project for purposes of CEQA and to
explain the application of the exemptions.
PROCEEDINGS
In February 2018, LADWP filed a petition for writ of mandate in Inyo County
Superior Court. The petition alleged County failed to properly identify the true nature
and scope of the “project,” as that term is used in CEQA. It also alleged County
improperly determined its approvals of the three resolutions of necessity were
categorically exempt from CEQA. In May 2018, the case was transferred to Kern County
Superior Court.
In February 2020, after discovery and briefing, a hearing was held on the CEQA
petition. After hearing argument, the court confirmed its tentative ruling to grant a writ
of mandate directing County to set aside and rescind the three resolutions of necessity
based on a failure to comply with CEQA.
In May 2020, the trial court entered a judgment and issued a peremptory writ of
mandate. The writ directed County to set aside the resolutions of necessity and file a
return to the writ within 120 days specifying the actions taken to comply with the writ.
County timely appealed.
DISCUSSION
The threshold procedural issue in this appeal is whether some of the CEQA
violations must not be considered because LADWP failed to exhaust its administrative
remedies before filing a lawsuit. We address the exhaustion question before reaching the
substantive issues about properly defining the scope of the project, interpreting the
existing facilities exemption, and applying the commonsense exemption to the properly
defined project.
11.
I. EXHAUSTION OF ADMINISTRATIVE REMEDIES
County contends LADWP failed to exhaust available administrative remedies
because LADWP did not specifically raise some of the alleged CEQA violations and
other CEQA theories during County’s administrative proceedings. In County’s view, this
failure deprived the trial court and this court of jurisdiction over those allegations and
theories. As explained below, we reject County’s interpretation and application of
CEQA’s exhaustion requirement. (See Sierra Club v. City of Orange (2008) 163
Cal.App.4th 523, 536 [appellate court uses a de novo standard of review when
determining whether exhaustion requirement applies].)
A. Statutory Provisions
CEQA explicitly addresses the exhaustion of administrative remedies, containing
both an issue exhaustion requirement and a party exhaustion requirement. This appeal
concerns only issue exhaustion, which is addressed in section 21177, subdivision (a):
“An action or proceeding shall not be brought … unless the alleged grounds
for noncompliance with [CEQA] were presented to the public agency orally
or in writing by any person during the public comment period provided by
[CEQA] or prior to the close of the public hearing on the project before the
issuance of the notice of determination.”
The application of this exhaustion requirement is limited by section 21177,
subdivision (e), which states:
“This section does not apply to any alleged grounds for noncompliance
with [CEQA] for which there was no public hearing or other opportunity
for members of the public to raise those objections orally or in writing
before to the approval of the project, or if the public agency failed to give
the notice required by law.”
In Tomlinson v. County of Alameda (2012) 54 Cal.4th 281 (Tomlinson), our
Supreme Court considered the language in subdivisions (a) and (e) of section 21177, and
concluded the issue exhaustion provision applied only when there was “(1) a public
comment period provided by CEQA … or (2) an opportunity for public comment at
public hearings before issuance of a notice of determination.” (Tomlinson, supra, at p.
12.
289.) Based on this initial conclusion, the Supreme Court rejected a broad rule that the
exhaustion requirement in section 21177 never applies to a public agency’s decision that
a project is categorically exempt from compliance with CEQA. (Tomlinson, supra, at p.
289.)
Addressing the public-comment-period prong of section 21177, subdivision (a),
the court stated that “CEQA does not provide for a public comment period preceding an
agency’s exemption determination.” (Tomlinson, supra, 54 Cal.4th at p. 289.) As a
result, the first prong does not make the issue exhaustion requirement applicable to a
public agency’s exemption determination. Consequently, for purposes of this appeal, the
issue exhaustion requirement will apply to LADWP only if, as required by the second
prong, there was “an opportunity for public comment at public hearings before issuance
of a notice of determination.” (Tomlinson, supra, at p. 289.)
Not every public hearing constitutes an “opportunity” for members of the public to
raise a particular objection—that is, raise “alleged grounds for noncompliance with
[CEQA]” as that phrase is used in section 21177, subdivision (e). Consistent with basic
principles of due process, the notice given before a public hearing has a role in defining
the opportunity provided to the public. (See Mathews v. Eldridge (1976) 424 U.S. 319,
333 [the essence of due process is notice and the opportunity to be heard at a meaningful
time and in a meaningful manner].)
The Supreme Court addressed the relationship between notice and an opportunity
for public comment at a hearing and concluded “that the exhaustion-of-administrative-
remedies requirement set forth in subdivision (a) of section 21177 applies to a public
agency’s decision that a proposed project is categorically exempt from CEQA
compliance as long as the public agency gives notice of the ground for its exemption
determination, and that determination is preceded by public hearings at which members
of the public had the opportunity to raise any concerns or objections to the proposed
project.” (Tomlinson, supra, 54 Cal.4th at p. 291, italics added; see Hines v. California
13.
Coastal Com. (2010) 186 Cal.App.4th 830, 854 [issue exhaustion provision applies when
there is ample notice of public hearing].)
Whether CEQA’s exhaustion requirements apply to a public agency’s exemption
determinations is addressed in a practice guide that states “the critical factor is whether a
hearing or opportunity to raise objections is provided. [Citation.] Thus, when no
opportunity to express objections to a claimed exemption is provided by the agency, the
exhaustion requirement does not apply. [Citations.] When an agency holds a hearing but
does not provide adequate notice that a CEQA exemption will be considered, the
requirement to exhaust remedies on the CEQA claim does not apply.” (2 Kostka &
Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar. 2d ed. 2020)
§ 23.105, pp. 23-121 to 23-122, italics added.) The practice guide cited Defend Our
Waterfront v. State Lands Com. (2015) 240 Cal.App.4th 570 (Defend Our Waterfront) as
support. In that case, the agenda for the meeting “did not notify anyone that [the lead
agency] would also consider invoking a statutory exemption to CEQA.” (Id. at pp. 583–
584.)
B. Lack of Adequate Notice
LADWP contends County did not provide notice of its grounds for CEQA
compliance before the hearing and, therefore, those grounds can be challenged in a
lawsuit without complying with the exhaustion requirement. In response, County does
not argue its notice adequately apprised the public of the CEQA issues that would be
addressed at the hearing. Instead, County argues subdivision (e) of section 21177 does
not apply because, among other things, CEQA does not require a public notice of the type
asserted by LADWP.
The issue of statutory construction raised by the parties’ contentions is whether the
public hearing held by County provided an “opportunity for members of the public to
raise” the CEQA objections to County’s reliance on the existing facilities exemption and
14.
commonsense exemption. (§ 21177, subd. (e).) Our Supreme Court addressed the
meaning of this statutory text when it stated that the issue exhaustion requirement
“applies to a public agency’s decision that a proposed project is categorically exempt
from CEQA compliance as long as the public agency gives notice of the ground for its
exemption determination.” (Tomlinson, supra, 54 Cal.4th at p. 291, italics added.) In
other words, the requisite opportunity is not provided when the public “agency holds a
hearing but does not provide adequate notice that a CEQA exemption will be
considered.” (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act,
supra, § 23.105, p. 23-122, italics added.) We agree with the practice guide’s conclusion
that notice must be adequate. Accordingly, we conclude the Supreme Court used the
term “gives notice” to mean gives adequate notice. (Tomlinson, supra, 54 Cal.4th at p.
291.) A contrary interpretation that concludes the court meant “gives notice, whether
adequate or not,” is unreasonable.
Under the facts presented, we conclude County did not provide adequate notice
that CEQA exemptions would be considered at the public meeting. First, the agenda
request form for the August 2017 hearing of County’s Board of Supervisors did not
mention CEQA or any exemption. (See Defend Our Waterfront, supra, 240 Cal.App.4th
at pp. 583–584 [meeting’s agenda did not notify anyone the lead agency would consider a
statutory exemption].) Second, County’s appellate briefing cites nothing in the
administrative record showing the public was notified before the hearing of County’s
possible reliance on CEQA exemptions. Thus, it appears the first disclosure or notice
occurred just before the close of the public portion of the August 2017 hearing when a
County staff member stated that County believed the proposed condemnation was exempt
from CEQA under the existing facilities exemption and the commonsense exemption.
We conclude as a matter of law that such a disclosure near the end of the hearing does not
constitute adequate notice to the public that a CEQA exemption will be considered.
15.
Consequently, nothing in the administrative record establishes that County gave
the notice necessary to provide an “opportunity for members of the public to raise …
objections” to County’s reliance on the two CEQA exemptions. (§ 21177, subd. (e).) As
a result, the issue exhaustion requirement in section 21177, subdivision (a) does not apply
to LADWP’s challenges to County’s reliance on those exemptions. The trial court
correctly concluded it had jurisdiction to consider those challenges.
II. THE CEQA PROJECT*
A. Standards of Judicial Review
Judicial review of County’s compliance with CEQA is governed by the abuse of
discretion standard set forth in section 21168.5. Consequently, our “inquiry shall extend
only to whether there was a prejudicial abuse of discretion. Abuse of discretion is
established if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.” (§ 21168.5; see
Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511.)
This statutory text identifies two ways an abuse of discretion can occur, each of
which has its own standard of review. First, the public agency could fail to proceed in
the manner required by CEQA, thereby committing procedural error. Whether the public
agency has employed the correct procedures—that is, followed applicable law—is
subject to independent judicial review. (Sierra Club v. County of Fresno, supra, 6
Cal.5th at p. 512.)
Second, the public agency could abuse its discretion by making findings of fact
unsupported by substantial evidence. When the agency acts in its role as the finder of
facts, its findings are subject to deferential review under the substantial evidence
standard. (Sierra Club v. County of Fresno, supra, 6 Cal.5th at p. 512.)
* See footnote, ante, page 1.
16.
B. Overview of CEQA’s Environmental Review Process
There are three stages of environmental review established by CEQA. (King &
Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 885; see Guidelines,
§ 15002, subd. (k) [three-step process].) In the first stage, the agency conducts a
preliminary review to determine if the proposed activity is a CEQA project and, if so,
whether it is exempt from CEQA. (King & Gardiner Farms, supra, at p. 885.) If the
proposed activity is a project and is not exempt, the agency must proceed to the second
stage.4 In contrast, if the agency determines the project is exempt, no further
environmental analysis is required, and the agency may file a notice of exemption.
(Guidelines, § 15002, subd. (k)(1).)5
Here, County determined the condemnation proceedings were exempt from
CEQA. Therefore, we consider whether County properly completed the first stage of
CEQA’s environmental review process when it (1) described the project and (2)
determined exemptions applied.
C. Defining a Project and Its Scope
1. Definition of a CEQA Project
CEQA applies to “discretionary projects proposed to be carried out or approved by
public agencies.” (§ 21080, subd. (a).) CEQA broadly defines a “project” as “an activity
which may cause either a direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment, and which is ... [¶] ... (a) [a]n
4 In the second stage, the agency completes an initial study and decides whether the
environmental review can be concluded with the adoption of a negative declaration or,
alternatively, whether the agency must proceed to the third stage and prepare an
environmental impact report (EIR). (King & Gardiner Farms, supra, 45 Cal.App.5th at
p. 885.)
5 Public agencies are not required to file a notice of exemption, but a shorter statute
of limitations applies if they do. (See § 21167, subd. (d); Guidelines, § 15062, subd. (d)
[filing a notice of exemption starts a 35-day limitations period; otherwise, a 180-day
statute of limitations applies].)
17.
activity directly undertaken by any public agency.” (§ 21065.) An example of a project
is the enactment or amendment of a zoning ordinance. (§ 21080, subd. (a).)
The statutory definition is augmented by the Guidelines, which state a “project” is
“the whole of an action, which has a potential for resulting in either a direct physical
change in the environment, or a reasonably foreseeable indirect physical change in the
environment....” (Guidelines, § 15378, subd. (a).) The Guidelines provide examples of
projects undertaken directly by a public agency, such as “public works construction and
related activities clearing or grading of land, improvements to existing public structures,
… and the adoption and amendment of local General Plans or elements thereof.”
(Guidelines, § 15378, subd. (a)(1).) “The term ‘project’ refers to the activity which is
being approved and which may be subject to several discretionary approvals by
governmental agencies. The term ‘project’ does not mean each separate governmental
approval.” (Guidelines, § 15378, subd. (c).)
2. Timing of CEQA Review
Our Supreme Court has endorsed the view that CEQA contemplates consideration
of environmental consequences at the earliest possible stage, even though more detailed
environmental review may be necessary later. (Environmental Protection Information
Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 503.)
Consistent with this view, CEQA’s requirements cannot be avoided by chopping a large
project with significant adverse consequences into many little ones—each with a minimal
potential impact on the environment. (Ibid.; Rio Vista Farm Bureau Center v. County of
Solano (1992) 5 Cal.App.4th 351, 370.) Piecemeal review is contrary to CEQA’s
requirements. In contrast, where future development is unspecified and uncertain, no
purpose can be served by requiring an environmental review that engages in sheer
speculation as to future environmental consequences. (Environmental Protection
Information Center, supra, at p. 503.)
18.
3. Issues of Law Presented
The application of the foregoing definitions and principles requires a court to
answer two basic questions. The court first must determine which activities constitute the
whole of the action—that is, which activities are properly treated as part of the project
and which activities are not. Once that question is resolved, the whole of the activity can
be evaluated to determine whether it qualifies as a “project” for purposes of CEQA.
In Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora
(2007) 155 Cal.App.4th 1214 (Tuolumne), we stated that no published opinion had
“addressed explicitly the question whether a determination of the scope of an activity is
reviewed as either a question of law or a question of fact.” (Id. at p. 1224.) We
concluded “that the question concerning which acts constitute the ‘whole of an action’ for
purposes of Guidelines section 15378 is a question of law that appellate courts
independently decide based on the undisputed facts in the record.” (Ibid.) Ten years
later, we confirmed our “conclusion that the question of which acts make up the whole of
the action constituting the CEQA project is a question of law (i.e., is not a discretionary
determination) resolved without deference to the agency’s determination.” (POET, LLC
v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 100 (POET II).)6 “Whether two
activities are parts of a single project is a question for our independent review.” (County
of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, 385; see Paulek v.
Department of Water Resources (2014) 231 Cal.App.4th 35, 46 [“Whether a project has
received improper piecemeal review is a question of law that we review
independently”].)
After the whole of the activity is identified, the question of whether the entire
activity is a project for purposes of CEQA “is an issue of law that can be decided on
6 County’s appellate briefs have not cited Tuolumne or POET II and, thus, have not
argued the rule of law adopted in those decisions is wrong. County is aware of Tuolumne
because trial court cited that decision in its tentative ruling from the bench.
19.
undisputed data in the record on appeal.” (Muzzy Ranch Co. v. Solano County Airport
Land Use Com. (2007) 41 Cal.4th 372, 382 (Muzzy Ranch).)
D. Scope of This Project
1. Contentions of the Parties
County contends it properly initiated condemnation of each landfill site “[a]nd it
certainly did not need to conduct CEQA review of future changes that the County has not
even proposed, such as the digging of new groundwater wells or the importing of waste
from adjacent counties.” County also contends “there is ample ‘substantial evidence’ in
the record demonstrating that the County’s mere acquisition of the Landfill Sites will not
itself result in any environmental changes.” These contentions imply that “the whole of
[the] action” constituting the project is limited to the acquisition of the landfill sites
through condemnation proceedings. (Guidelines, § 15378, subd. (a).)
LADWP contends County mischaracterized the project as a mere change in
ownership and violated CEQA by omitting integral components and foreseeable
consequences. LADWP argues County’s “inaccurate Project description omits several
integral parts, including critical information about: (1) the nature and extent of the
Project; (2) the development of new groundwater rights; (3) the acquisition of property
with existing and threatened soil and groundwater contamination; (4) the expansion of
permitted daily tonnage and site capacity; (5) the import of waste; and (6) the remaining
operational life of the Landfills.”
2. Trial Court’s Decision
The trial court’s tentative ruling stated County’s description of the project as a
mere transfer of property ownership impermissibly omitted reasonably foreseeable
consequences of the project. The court concluded those consequences were (1) the
development and use of groundwater below the three landfills; (2) the importation of
waste from other counties; and (3) an increase in the tonnage of waste deposited in the
20.
landfills. In addition, the court determined “the record is ambiguous with contradictory
evidence as to the estimated closing dates or operational life of the landfills without any
explanation for these discrepancies.” The court stated the estimated closure dates were
important to the landfill’s life span, which directly affected the nature and scope of the
project. As a result, the court found County’s “description with regard to the life
expectancy or estimated closing date is fundamentally inadequate and misleading.”
3. Water Rights
The first subject we consider is water, which includes its source and use. The
resolutions of necessity stated County’s intent “to continue the use and operation of a
landfill … and, in connection therewith, acquire interests in” the three landfill sites. The
interest “to be acquired consists of a fee interest in the” landfill sites. This reference to a
“fee interest” plainly establishes that County intends to acquire ownership of the land and
the appurtenant water rights.
At the August 2017 public hearing, Assistant County Administrator Rick Benson
stated that “to run a landfill, we need water, and the lease has terms in it where we – [the]
value of the water is in there, but we do not have a water source that we can rely on in
order to be able to provide for the operation of the landfill and you cannot operate a
landfill without water.” Because the project includes the continued use and operation of
the landfills, it logically follows that the whole of the action includes obtaining the water
necessary to run the landfills. (See RiverWatch v. Olivehain Municipal Water Dist.
(2009) 170 Cal.App.4th 1186, 1204 [“the activity of trucking recycled water … to the
Landfill site is part of the whole action or operations of the landfill project for purposes
of CEQA”].) County, which treated the project as a mere change in title to the land, did
not identify the source of the water for the continued operation of the landfills.
County’s omission of the sources of water for its continued operation of the
landfills is significant in this case because the Bishop-Sunland Landfill (the largest of the
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three landfills) obtained water from domestic well D-126, which is located on a LADWP
parcel adjacent to the landfill site. County’s current access to that well is governed by the
lease with LADWP. Whether domestic well D-126 will remain available to County after
the condemnation proceedings are completed and the lease is terminated is uncertain. At
the August 2017 hearing, Richard Harasick, Senior Assistant General Manager of Water
for LADWP, referred to an offer made by LADWP for the sale of the landfill sites which
included LADWP providing “a reliable source of water in sufficient quantity” for the
landfills. The terms of the offer, which were not accepted by County, do not demonstrate
that LADWP will reach an agreement with County to continue to provide water from
domestic well D-126 in the event the condemnation proceedings are completed. In other
words, it is reasonably foreseeable that County will need to obtain water from a different
source once it becomes the owner of the parcel containing the Bishop-Sunland Landfill.7
To define the scope of the CEQA project at this stage of the environmental review
process (i.e., the preliminary review or first stage), we only need identify the activities
that constitute “the whole of [the] action” (Guidelines, § 15378, subd. (a)) and then
determine whether County included those activities in its project description. The fact
that County’s water source for the continued operation of the Bishop-Sunland Landfill
has not been identified does not mean the need to secure a water source is not part of the
project. Securing a water source is integral to the project because, as stated by Benson, a
landfill cannot be operated without water. (See Tuolumne, supra, 155 Cal.App.4th at p.
1229 [“when one activity is an integral part of another activity, the combined activities
are within the scope of the same CEQA project”].) As a result, the continued operation
7 While it is reasonably foreseeable that County and LADWP might reach an
agreement that allows County to obtain water from LADWP’s existing well, it also is
reasonably foreseeable that County might (1) develop the groundwater rights acquired in
the condemnation proceeding and drill a well on the parcel containing the Bishop-
Sunland Landfill or (2) use an alternate source or sources.
22.
of the Bishop-Sunland Landfill “is dependent upon, not independent of,” securing a water
source. (Id. at p. 1231.) Consequently, we reach the legal conclusion that the activities
constituting the project include securing a water source for the Bishop-Sunland Landfill.
Next, we consider whether it was reasonably foreseeable that County might
develop the rights to groundwater it proposes acquiring in connection with the other
landfills. The possibility of condemning the land without the water rights was raised at
the August 2017 public hearing. Despite this less expensive course of action, the Board
of Supervisors chose to authorize the condemnation of a fee interest in those sites. Item
4.c. in each of the three resolutions stated: “The property sought to be acquired is
necessary for the Project.” Item 4.e. of each resolution stated that “the acquisition and
use of such property by the County for the purposes identified herein is for a more
necessary public use than the use to which the property has already been appropriated.”
(Italics added.) The Board of Supervisor’s decision to include the water rights in the
property to be condemned and the wording of the resolutions indicates that the water
rights are necessary and will be used. Furthermore, the decision to include the water
rights, when considered in light of the surrounding circumstances, establishes the
development of the water rights being acquired is reasonably foreseeable.
It is plain from the record that County did not include securing a source of water
for the continued operation of the Bishop-Sunland Landfill in its description of the
project and did not include the development of the groundwater rights at the other sites.
Therefore, County failed to proceed in the manner required by CEQA when it described
the project. Specifically, County did not include “the whole of [the] action” (Guidelines,
§ 15378, subd. (a)) in its description. The legal (i.e., procedural) error of adopting an
inappropriately narrow view of the project constitutes an abuse of discretion for purposes
of section 21168.5.
23.
4. Importing Waste
The second subject we consider is the possibility that County would allow solid
waste from neighboring counties to be deposited in the landfills once it acquires
ownership of the sites through eminent domain. Section 10 of the lease for the Bishop-
Sunland Landfill provides that County “shall not import waste originating outside Inyo
County without Lessor’s prior written consent.” The agenda request form for the August
2017 public hearing addressed this lease provision by stating: “The terms of the current
Bishop-Sunland lease also thwart[] any potential cooperative efforts with neighboring
counties or municipalities as it prohibits the acceptance of any waste from outside of Inyo
County including Mono County or Mammoth Lakes.” This subject also was addressed
by Benson at the public hearing when he stated:
“Another term of the lease is that we would be prohibited from taking any
other county’s waste. Now, we are not and nor have we ever been
interested in becoming a waste disposal center for the State of California,
but what this does is it thwarts our ability to work with our neighbors, to
work with Mono County or with Mammoth Lakes on possibly -- if
something makes sense and it might be to everyone’s advantage -- to have
waste come to our landfill. We’re precluded from even going there per the
terms of the lease.”
Based on the agenda request form and Benson’s statements at the public hearing, a
reasonably foreseeable consequence of County successfully condemning the landfills is
an expansion of those operations to include the acceptance of solid waste from sources
outside Inyo County. Because County did not include this reasonably foreseeable
activity in its description of the project, its description did not include “the whole of [the]
action.” (Guidelines, § 15378, subd. (a).) As a result, County failed to proceed in the
manner required by CEQA and this legal (i.e., procedural) error constitutes a further
abuse of discretion for purposes of section 21168.5.
24.
E. Summary
County failed to comply with CEQA when it described the proposed project as
simply a change in ownership or the mere acquisition of the landfill sites. County’s
errors in describing the proposed project tainted its reliance on the exemptions claimed,
our next subject.
III. CEQA EXEMPTIONS
County relies on the categorical exemption for existing facilities (Guidelines,
§ 15301) and the commonsense exemption (Guidelines, § 15061, subd. (b)(3)). CEQA’s
categorical exemptions are set forth in sections 15301 to 15333 of the Guidelines.
Categorical exemptions are authorized by section 21084, subdivision (a), which states:
“The guidelines prepared and adopted pursuant to Section 21083 shall
include a list of classes of projects that have been determined not to have a
significant effect on the environment and that shall be exempt from this
division. In adopting the guidelines, the Secretary of the Natural Resources
Agency shall make a finding that the listed classes of projects referred to in
this section do not have a significant effect on the environment.”
When a lead agency determines that a project is exempt from CEQA, that
determination is subject to judicial review under the standards contained in section
21168.5 and described in part I.B. of this opinion. The application of these standards to
an exemption determination was discussed in Berkeley Hillside Preservation v. City of
Berkeley (2015) 60 Cal.4th 1086 (Hillside). There, the project proponents wanted to
build a large house and 10-car garage on their steeply sloping lot. (Id. at p. 1093.) The
city council affirmed the zoning board’s approval of a use permit for the project. A
notice of exemption was filed, stating the project was categorically exempt under two
Guideline provisions and the unusual circumstances exception in Guidelines section
15300.2 did not apply. (Hillside, supra, at p. 1096.) The Supreme Court identified two
potential abuses of discretion, stating that “reversal of the City’s action here is
appropriate only if (a) the City, in finding the proposed project categorically exempt, did
25.
not proceed in the manner required by law, or (b) substantial evidence fails to support
that finding.” (Id. at p. 1110.)
In accordance with Hillside, we independently review whether County proceeded
in the manner required by law in making its exemption determination and apply the
substantial evidence test to the County’s findings of fact. Stated from another
perspective, an appellate court “must first determine as a matter of law the scope of the
exemption and then determine if substantial evidence supports the agency’s factual
finding that the project fell within the exemption.” (California Farm Bureau Federation
v. California Wildlife Conservation Bd. (2006) 143 Cal.App.4th 173, 185.) This appeal
raises a legal question about the scope of the existing facilities exemption, which requires
us to interpret the words used in Guidelines section 15301.
A. Existing Facilities
1. Regulatory Text
The existing facilities exemption is designated “Class 1” and covers “the
operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of
existing public or private structures, facilities, mechanical equipment, or topographical
features, involving negligible or no expansion of existing or former use.” (Guidelines,
§ 15301.) “The key consideration is whether the project involves negligible or no
expansion of use.” (Guidelines, § 15301; see Communities for a Better Environment v.
South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 326 [“the continued
operation of an existing facility without significant expansion of use … [is] exempt from
CEQA review under CEQA Guidelines section 15301”].)
2. Dispute Over the Meaning of the Term “Facilities”
The parties offer different interpretations of Guidelines section 15301’s term
“facilities.” LADWP argues the term excludes unlined landfills and, therefore, the
existing facilities exemption does not apply to County’s project. As support, LADWP
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relies on the interpretation adopted by the court in Azusa, supra, 52 Cal.App.4th 1165. In
that case, the Second District concluded “[t]he categorical exemption for an existing
facility should not be construed to include a large, municipal waste landfill.” (Id. at p.
1192, italics omitted.) In contrast, County argues the existing facilities exemption applies
and asserts LADWP made “no effort to address the facts in Azusa, which are strikingly
different from this case.”
3. The Term “Facilities” Is Ambiguous
The Guidelines are administrative regulations and, as a general rule, are subject to
the same rules of interpretation as statutes. (Hillside, supra, 60 Cal.4th at p. 1097 [rules
governing interpretation of statute also govern interpretation of Guidelines].)
Accordingly, the first step in analyzing the meaning of a provision in the Guidelines is
determining whether the language used is ambiguous. (Gutierrez v. Carmax Auto
Superstores California (2018) 19 Cal.App.5th 1234, 1249 (Gutierrez) [first question of
statutory interpretation is whether the statute’s language is ambiguous].) “Ambiguous”
means reasonably susceptible to more than one meaning. (See Estate of Newmark (1977)
67 Cal.App.3d 350, 355 [“ambiguity exists in a written instrument when its language is
properly susceptible to multiple constructions”].) This threshold inquiry into ambiguity
also is made when construing contracts and other written instruments. (E.g., Smith v.
Adventist Health System/West (2010) 182 Cal.App.4th 729, 754–755 [court’s threshold
question when interpreting a contract is whether the writing is ambiguous].)
In Azusa, the Second District explicitly addressed this threshold question and
concluded: “The language of the exemption for an existing ‘facility’ is ambiguous with
respect to its application to a solid waste landfill.” (Azusa, supra, 52 Cal.App.4th at p.
1192.) The court noted the Guidelines did not define the term and then considered two
dictionary definitions of “facility”—one of which stated a facility is something “ ‘built or
installed to perform some particular function.’ ” (Id. at p. 1193.) The court stated: “A
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landfill, however, is excavated, and a ‘facility’ is not necessarily inclusive of a landfill.”
(Ibid.)
County’s appellate briefing does not address the threshold question of whether the
term “facilities” used in Guidelines section 15301 is ambiguous. However, an amicus
curiae brief asserts “that much of Azusa’s analysis on this point has not aged well—and
some was not well taken even in 1997.” The brief argues modern landfills are not merely
excavated pits but include many structures built or installed such as gate houses, scales,
tipping floors, gas recovery systems, and administrative buildings. The brief also asserts
that whatever ambiguities the term “facility” may have in some contexts, this is not one
of them because landfills are routinely referred to as facilities in both common and
technical usage. This assertion is supported by cites to statutes, judicial opinions and
other Guideline provisions that refer to landfills as facilities. (See §§ 40194, 40195.1;
County of San Diego v. Ace Property & Casualty Ins. Co. (2005) 37 Cal.4th 406, 411;
Guidelines, §§ 15186, subd. (c)(1)(A) & 15282, subd. (q).) In response to the amicus
curiae brief, LADWP glosses over the threshold question of ambiguity and argues
“neither the Azusa court nor the Trial Court adopted a blanket interpretation of the
exemption.”
In deciding whether the term “facilities” is ambiguous, we do not look at that word
in isolation, but consider it in the context of the statutory and regulatory scheme as a
whole. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34
Cal.4th 733, 737.) The 32 other categorical exemptions provide part of that context.
Class 2 covers certain replacements or reconstructions of existing structures or facilities.
(Guidelines, § 15302.) Class 4 covers “minor public or private alterations in the
condition of land.” (Guidelines, § 15304.) Class 13 covers “the acquisition of lands for
fish and wildlife conservation purposes.” (Guidelines, § 15313.) Class 16 covers certain
acquisitions or transfers of land to establish a park. (Guidelines, § 15316.) Class 25
covers certain transfers of ownership of interests in land to preserve open space, habitat
28.
or historical resources. (Guidelines, § 15325.) Class 33 covers projects not exceeding
five acres that “assure the maintenance, restoration, enhancement, or protection of habitat
for fish, plants or wildlife” where certain conditions are met. (Guidelines, § 15333.)
One way to interpret these categorical exemptions is to start with the idea that the
classes tend to be mutually exclusive and, therefore, if an activity is potentially covered
by one exemption it probably falls outside the coverage of the other exemptions.8 For
example, the operation of a facility and an alteration in the condition of land are probably
different things. Here, we consider whether a landfill is best described (1) by the term
“facilities,” (2) by the phrase “alteration[] in the condition of land” that is contained in
the Class 4 exemption for minor alterations in the condition of land, or (3) as including
some components that are facilities and some components that are alterations in the
condition of land. (Guidelines, §§ 15301, 15304.) If some or all of operation of a landfill
can be logically described as an alteration in the condition of land, it increases the
probability that the operation (or a portion of the operation) it is not properly described as
the operation of a facility.
Our evaluation of whether the operation (or a portion of the operation) of a landfill
might be reasonably described as an “alteration[] in the condition of land” includes an
examination of the examples provided in Guidelines section 15304. Excluding the
modifiers that render them “minor,” the examples include “[g]rading on land,” “[f]illing
of earth into previously excavated land,” and “trenching and backfilling.” (Guidelines, §
15304, subds. (a), (c), (f).)9 We conclude, based on the plain meaning of the phrase
8 Our examination of the threshold question of ambiguity considers possibilities and
probabilities because that question is answered by identifying interpretations to which the
term “facilities” is reasonably susceptible. (See Gutierrez, supra, 19 Cal.App.5th at p.
1249.)
9 Landfill operations do not qualify for the exemption because the alterations to the
land are not “minor.” For instance, to be minor, the “[f]illing of earth into previously
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“alteration[] in the condition of land” and these examples, that it is reasonable to treat
landfill operations as including activity that is more accurately characterized as altering
the condition of land rather than as consisting only of the operation of facilities. For
instance, the term “facilities” could be viewed as including many of the structures at a
landfill, such as gate houses, scales, tipping floors, gas recovery systems, and
administrative buildings, but excluding the pit holding the alternating layers of solid
waste and dirt, which is an alteration in the condition of land.
Accordingly, we cannot conclude that the entirety of the operation of a landfill
unambiguously qualifies as the operation of facilities for purposes of Guidelines section
15301. Instead, we conclude it is reasonable to characterize landfill operations as
involving an alteration in the condition of land rather than exclusively as the operation of
a facility or facilities. Therefore, the term “facilities” is reasonably susceptible to
multiple interpretations with respect to its application to a landfill. Consequently, we
resolve the threshold question by concluding the term “facilities” is ambiguous. (Azusa,
supra, 52 Cal.App.4th at p. 1192 [same].)
4. Resolving the Ambiguity
Having decided the term is ambiguous in its application to landfills, the next step
is to resolve that ambiguity. Generally, a court’s primary goal when construing a statute
or regulation is to adopt the interpretation that best effectuates the legislative and
regulatory intent or purpose. (See Gutierrez, supra, 19 Cal.App.5th at p. 1250.) To
identify the best interpretation, courts consider information from a variety of sources.
(Ibid.) The most obvious source to be considered when interpreting language in a
categorical exemption is the provision in CEQA that authorized the creation of
categorical exemptions. (Azusa, supra, 52 Cal.App.4th at p. 1192 [exemption should be
excavated land” must use “material compatible with the natural features of the site.”
(Guidelines, § 15304, subd. (c).)
30.
construed in light of statutory authorization].) Based on this statutory foundation, the
term “facilities” should not be broadly interpreted “to include a class of businesses that
will not normally satisfy the statutory requirements for a categorical exemption, even if
the premises on which such businesses are conducted might otherwise come within the
vague concept of a “ ‘facility.’ ” (Id. at pp. 1192–1193.) Instead, a categorical
exemption should be interpreted narrowly to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language. (Save Our Carmel
River v. Monterey Peninsula Water Management Dist. (2006) 141 Cal.App.4th 677, 697;
see Guidelines, § 15003, subd. (f).)
The statutory language authorizes categorical exemptions for “classes of projects
that have been determined not to have a significant effect on the environment” and states
“the Secretary of the Natural Resources Agency shall make a finding that the listed
classes of projects referred to in this section do not have a significant effect on the
environment.” (§ 21084, subd. (a).) Nothing in the record before this court shows the
Secretary made an explicit finding, one way or the other, about whether landfills fit into
the class of existing facilities that should be exempt from CEQA.
The record does contain materials that support inferences about the Secretary’s
view of whether the existing facilities exemption includes landfills. Those materials
relate to the 1998 revisions to the Guidelines—including amendments to Guidelines
section 15301—and we have taken judicial notice of them. A September 22, 1997
memorandum from Maureen F. Gorsen and Steve Greene to Douglas P. Wheeler, the
Secretary of the Natural Resources Agency from 1991 to 1999, and Jim Branham stated
documents were attached to “facilitate your decision-making on all aspects of the
proposed 1997-98 CEQA Guidelines revisions.” Section 6 of the third attachment
described the content of the proposed revisions to the categorical exemptions. The
description of the changes to Guidelines section 15301 stated in full:
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“Section 15301 - Adds permitting and licensing of existing facilities;
clarifies the baseline for application of the exemption (at time of agency’s
determination); attempts to deal with the misreading of this section by the
court in the Azusa Land Reclamation Co. case by clarifying that the list of
potential types of Class 1 projects is not all-inclusive; adds ‘use of a single-
family residence as a small family day care home’ as an additional Class 1
example.”
The reference to Azusa is the only mention of that case in the materials related to
the 1998 revisions to the Guidelines. The reference is significant because it shows
Secretary Wheeler and his staff were aware of Azusa. It also shows staff thought the
Azusa court had misread one specific aspect of Guidelines section 15301 and supports the
inference that staff did not think the Azusa court’s conclusions that the term “facilities”
was ambiguous and did not include landfills, warranted criticism or a clarifying
amendment. As a result of the reference to Azusa and the fact the revisions to Guidelines
section 15301 adopted by the Secretary did not address landfills, we conclude neither
staff nor the Secretary disagreed with the Azusa court’s conclusion that the term
“facilities” excluded landfills. (See Azusa, supra, 52 Cal.App.4th at p. 1192.)
In Azusa, the court’s analysis of landfills as a class included a reference to the
1989 legislative fining that “[o]ver 90 percent of California’s solid waste currently is
disposed of in landfills, some of which pose a threat to groundwater, air quality and
public health.” (§ 40000, subd. (b).) Based on this finding, the court concluded “that
landfills do not constitute a suitable class of properties for a categorical exemption, and
the Class 1 exemption for the operation and minor alteration of existing facilities should
therefore not be construed to include such landfills.” (Azusa, supra, 52 Cal.App.4th at p.
1195.)
We agree that the legislative finding that some landfills pose a threat to
groundwater, air quality and public health justifies the conclusions that unlined landfills
do not constitute a suitable class for a categorical exemption. Consequently, in view of
the basic principle that categorical exemptions should be interpreted narrowly to afford
32.
the fullest possible protection to the environment within the reasonable scope of the
statutory language, we conclude the ambiguous term “facilities” should be interpreted to
exclude unlined landfills.10 This construction of Guidelines section 15301 leads to the
conclusion that the three landfills in question do not fall within the scope of the
categorical exemption for existing facilities. Therefore, County proceeded in a manner
contrary to law when it concluded that exemption applied to the project.
B. Unusual Circumstances Exception*
The trial court’s decision was thorough and considered whether the unusual
circumstances exception precluded County from relying on a categorical exemption. The
trial court determined “there is substantial evidence that supports finding a reasonable
possibility that the project will result in a significant environmental impact.” County
contends it clearly determined, in its role as lead agency, that the “mere acquisition of the
Landfill Sites did not raise any unusual circumstances” because County was already
occupying and using those sites and the only change was County becoming an owner
instead of a tenant.
Guidelines section 15300.2, subdivision (c) states: “A categorical exemption shall
not be used for an activity where there is a reasonable possibility that the activity will
have a significant effect on the environment due to unusual circumstances.” When a
project meets “the requirements of a categorical exemption, a party challenging the
exemption has the burden of producing evidence supporting an exception.” (Hillside,
supra, 60 Cal.4th at p. 1105.) There are two ways a party, such as LADWP, may
establish the unusual circumstances exception applies. First, the party may show that
“the project has some feature that distinguishes it from others in the exempt class, such as
10 Based on the facts of this case and those in Azusa, which also involved an unlined
landfill, we need not address the broader question of whether the term “facilities” also
excludes lined landfills.
* See footnote, ante, page 1.
33.
its size or location. In such a case, to render the exception applicable, the party need only
show a reasonable possibility of a significant effect due to that unusual circumstance.”
(Ibid.) Second, “a party may establish an unusual circumstance with evidence that the
project will have a significant environmental effect. That evidence, if convincing,
necessarily also establishes ‘a reasonable possibility that the activity will have a
significant effect on the environment due to unusual circumstances.’ (Guidelines, §
15300.2, subd. (c).)” (Hillside, supra, 60 Cal.4th at p. 1105.)
Here, we do not reach the question of whether the unusual circumstances
exception prevents County from relying on the existing facilities exemption because we
have determined that exemption does not apply to this project. (Cf. Azusa, supra, 52
Cal.App.4th at p. 1207 [concluding 80-acre unlined landfill was ‘unusual’ because it
overlay a major drinking water aquifer and presented a substantial risk of pollution].) In
addition, County’s erroneous description of the project caused the administration record
to be undeveloped on the application of the exception to the exemption. For instance,
LADWP did not have adequate notice of County’s reliance on the exemption and,
therefore, did not have a fair opportunity to address “the burden of producing evidence
supporting an exception.” (Hillside, supra, 60 Cal.4th at p. 1105.)
C. Commonsense Exemption*
1. Basic Principles
County also relied on the commonsense exemption, which is inherent in CEQA’s
text and explicitly set forth in Guidelines section 15061 as follows:
“(b) A project is exempt from CEQA if: [¶] … [¶] (3) The activity is
covered by the common sense exemption that CEQA applies only to
projects which have the potential for causing a significant effect on the
environment. Where it can be seen with certainty that there is no
possibility that the activity in question may have a significant effect on the
environment, the activity is not subject to CEQA.”
* See footnote, ante, page 1.
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“[W]hether a particular activity qualifies for the commonsense exemption presents
an issue of fact, and … the agency invoking the exemption has the burden of
demonstrating it applies.” (Muzzy Ranch, supra, 41 Cal.4th at p. 386.) Accordingly,
when a legitimate question is raised about the possible environmental impacts of a
proposed activity, the public agency has “the burden to elucidate the facts that justified its
invocation of CEQA’s commonsense exemption.” (Muzzy Ranch, supra, at p. 387.)
Despite this allocation of the burden of presenting evidence and demonstrating the
exemption applies, it is possible for an agency to carry that burden on appeal even though
the commonsense exemption was not addressed in the agency’s review. (See Save the
Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175.)
2. Contentions
County’s opening brief asserts “there is ample ‘substantial evidence’ in the record
demonstrating that the County’s mere acquisition of the Landfill Sites will not itself
result in any environmental changes.” This contention relies on County’s erroneous
description of the project and, as a result, the contention is tainted with legal error. (See
pt. II.D., ante [Scope of This Project].) County also asserts “the record includes a lack of
evidence of any potential environmental changes that will result from the mere change in
ownership—under these circumstances, the lack of evidence of actual impacts is, by
itself, substantial evidence that there will be no impacts.” Again, this contention is
tainted by County’s legal error in viewing the project too narrowly—an error that can be
described as piecemealing. (See Environmental Protection Information Center v.
California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 503 [“CEQA
cannot be avoided by piecemeal review”].)
County also addresses the trial court’s analysis and argues “the trial court should
have deferred to the County’s factual determination that the substantial evidence in the
record supported its determination that the acquisition fell within the definition of the
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common sense exemption.” County supports this argument by asserting the resolutions
of necessity “do not authorize any landfill activity beyond what currently exists. … The
project here only constitutes ‘changing a tenant to an owner,’ and nothing more.”
3. Independent Review of an Undeveloped Record
Our analysis of County’s arguments begins with the principle that, in a CEQA
case, both the trial court and appellate court sit as a court of review. (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
427.) As a result, the appellate court reviews the agency’s action, not the trial court’s
decision. (Ibid.) Therefore, we do not evaluate the trial court’s analysis for error.
Instead, we conduct an independent review of County’s action, which leads us to
conclude County’s approach to the commonsense exemption was tainted by its legal
error. We recognize “whether a particular activity qualifies for the commonsense
exemption presents an issue of fact.” (Muzzy Ranch, supra, 41 Cal.4th at p. 386.)
However, because County took an erroneous view of the activities constituting the
project, we cannot infer the Board of Supervisors decided the pertinent issues of fact
raised by the application of the commonsense exemption to those activities. Furthermore,
we cannot decide the issues of fact as a matter of law because the evidence in the
administrative record is insufficient to carry County’s burden of “elucidat[ing] the facts
that justified its invocation of CEQA’s commonsense exemption.” (Id. at p. 387.) For
example, there is insufficient evidence to identify the source of water for the Bishop-
Sunland Landfill and evaluate the environmental consequences of using that source.
Therefore, we conclude County failed to proceed in the manner required by CEQA
when it invoked the commonsense exemption. Whether the commonsense exemption
might apply to the whole of the projects’ activity is a question that we cannot definitively
resolve because the administrative record was never developed to address the whole of
the project’s activity.
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IV. TERMS OF THE WRIT OF MANDATE
County contends the writ of mandate issued by the trial court was too expansive,
erroneously ordering County to vacate all three resolutions of necessity. County asserts
“the present action challenges three separate resolutions of necessity for three separate
parcels. Each must be considered independently.” County’s piecemeal approach is
contrary to long-established CEQA principles, which includes the Guidelines’ definition
of a “project” as “the whole of an action.” (Guidelines, § 15378, subd. (a); see
Environmental Protection Information Center v. California Dept. of Forestry & Fire
Protection (2008) 44 Cal.4th 459, 503 [“CEQA cannot be avoided by piecemeal
review”].) We therefore conclude the trial court did not err in issuing a writ of mandate
that (1) directed County to set aside the three resolutions of necessity and (2) stated the
resolutions were null and void because County failed to comply with CEQA.
Furthermore, our independent review of the writ of mandate has identified no violation of
section 21168.9, which addresses the requirements for the order entered after a court has
determined the agency has failed to comply with CEQA.
DISPOSITION
The judgment is affirmed. Respondent shall recover its costs on appeal.
FRANSON, J.
WE CONCUR:
HILL, P.J.
SMITH, J.
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