case no. s · case no. s_____ in the supreme court of california _____ petition for review _____...
TRANSCRIPT
Case No. S____________
IN THE SUPREME COURT OF CALIFORNIA
______________________________________
PETITION FOR REVIEW______________________________
COMMUNITY VENTURE PARTNERS,
Petitioner and Respondent
vs.
MARIN COUNTY OPEN SPACE DISTRICT,
Defendant and Appellant
_______________________________
After a Decision by the Court of Appeal,
First Appellate District, Division 4 (No. A154867)
Marin County Superior Court Case No. CIV 1701913
Judge: Honorable Paul M. Haakenson
_____________________________
Michael W. Graf (SB No. 136172)
Law Offices
227 Behrens Street
El Cerrito, California 94530
Tel: (510) 525-1208
Counsel for Petitioner/Respondent Community Venture Partners
TABLE OF CONTENTS
Page
I. PETITION FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Whether CEQA review must include an evaluation of the ‘social effects’ of
a project on humans where such social effects are caused by physical
changes to the environment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. What is the proper test for determining that a second tier review project
falls ‘within the scope” of a prior programmatic EIR and thus no further
project specific review is necessary?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
III. WHY REVIEW IS WARRANTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
A. THE COURT SHOULD CLARIFY HOW SOCIAL EFFECTS OF A
PROJECT SHOULD BE REVIEWED UNDER CEQA.. . . . . . . . . . . . . . 12
B. REVIEW IS WARRANTED TO CLARIFY HOW AN AGENCY
DETERMINES WHETHER A SECOND-TIER PROJECT FALLS
‘WITHIN THE SCOPE’ OF A PRIOR PROGRAMMATIC EIR.. . . . . . . 18
IV. FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. DISTRICT’S 2014 APPROVAL OF RTMP.. . . . . . . . . . . . . . . . . . . . . . . 25
B. ENVIRONMENTAL SETTING AND IMPACTS OF BIKING.. . . . . . . . 25
C. DISTRICT APPROVES PROJECT TO ALLOW BIKES ON MIDDAGH
TRAIL... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
D. LITIGATION AND TRIAL COURT’S RULING... . . . . . . . . . . . . . . . . . 29
E. COURT OF APPEALS’ RULING.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
V. THE COURT OF APPEALS’ DECISION HIGHLIGHTS THE NEED FOR
SUPREME COURT GUIDANCE ON HOW SOCIAL EFFECTS SHOULD BE
CONSIDERED IN A CEQA REVIEW... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
A. HOW CEQA CONSIDERS ENVIRONMENTAL IMPACTS.. . . . . . . . . 31
2
B. IMPACTS TO EXISTING USERS CAUSED BY PROJECT.. . . . . . . . . 33
VI. THERE IS A NEED FOR SUPREME COURT DIRECTION TO CLARIFY HOW
AN AGENCY MAY DETERMINE THAT A PROJECT IS WITHIN THE
SCOPE OF A PRIOR PROGRAM EIR.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
VII. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
3
TABLE OF AUTHORITIES
Page
Cases
Baldwin v. City of Los Angeles
(1999) 70 Cal. App. 4th 819. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 38
Christward Ministry v. Superior Court
(1986) 184 Cal. App. 3d 180. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Center for Sierra Nevada Conservation v. County of El Dorado
(2012) 202 Cal. App. 4th 1156. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Citizens Against Airport Pollution v. City of San Jose
(2014) 227 Cal. App. 4th 788. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Cleveland National Forest Foundation v. San Diego Assn. of Governments
(2014) 231 Cal. App. 4th 1056. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation
Agency
(2016) 6 Cal.App.5th 1237. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23
Friends of College of San Mateo Gardens v. San Mateo County Community College Dist.
(2016) 1 Cal. 5th 937. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 23, 32
Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency
(2000) 82 Cal.App 4th 511. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 21
Fullerton Joint Union High School Dist. v. State Bd. of Education
(1982) 32 Cal.3d 779. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Kings County Farm Bureau v. City of Hanford
(1990) 221 Cal. App. 3d 692. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Koster v. County of San Joaquin
(1996) 47 Cal. App. 4th 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Latinos Unidos de Napa v. City of Napa
(2013) 221 Cal.App.4th 192. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4
Lighthouse Field Beach Rescue v. City of Santa Cruz
(2005) 131 Cal. App. 4th 1170. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
National Parks & Conservation Assn. v. County of Riverside
(1999) 71 Cal.App.4th 1341. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Preserve Poway v. City of Poway
(2016) 245 Cal. App. 4th 560. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Sierra Club v. County of San Diego
(2014) 231 Cal.App.4th 1152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist.
(2013) 215 Cal.App.4th 1013. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Statutes
Pub. Res. Code
§ 21000(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
§ 21000(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
§ 21002. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
§ 21060.5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
§ 21080(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 15
§ 21082.2(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
§ 21083(b)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 31, 37
§ 21093. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 21, 23, 24, 39
§21094. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 21, 23, 39, 41
§ 21094(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
§ 21094(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
§ 21094(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
§ 21151(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
§ 21166. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20-22, 40-42
Regulations
14 Cal. Code Regs. (“CEQA Guidelines”)
§ 15064(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
§ 15064(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
§ 15064(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§ 15064(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 14, 32
5
§ 15065(a)(4).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
§ 15126.6(e)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
§ 15131(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
§ 15131(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12, 14, 32
§ 15152. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 42
§ 15152(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
§ 15152((f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41
§ 15162. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20, 21, 40-42
§ 15162(a)(1)-(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
§ 15168(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
§ 15168(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
§ 15168(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 18, 22, 40
§ 15358(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
§ 15360 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
§§ 15384 (a)-(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15
Appendix G (w). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Federal Cases
Bicycle Trails Council of Marin v. Babbitt
(N.D. Cal. 1994 No. C-93-0009 EFL) affd. (9th Cir. 1996) 82 F.3d 1445. . . . . . 14
Miscellaneous
Rules of Court 8.500(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6
I. PETITION FOR REVIEW
Petitioner Community Venture Partners respectfully petitions for review
of the First District Court of Appeal’s decision in Community Venture
Partners v. Marin County Open Space District, App. Case No. A154867, 2020
Cal. App. Unpub. LEXIS 527 *; 2020 WL 429110, filed January 24, 2020
(Opinion attached as Exhibit "A").
This case involves Petitioner’s challenge to the Marin County Open
Space District's ("District") project to convert the Bob Middagh Trail
(“Middagh Trail”), a narrow, single track hiking and equestrian trail located
in the Alto Bowl Preserve in Marin County into a mountain biking trail
without assessment of the impacts of this change on long time trail users who
will be physically and socially affected by the new more intense use proposed.
The District never reviewed the environmental impacts of the project
as required under the California Environmental Quality Act (“CEQA”), Pub.
Res. Code § 21000 et. seq., but instead tiered the project’s CEQA review to the
programmatic Environmental Impact Report (“PEIR”) prepared for the
District’s earlier 2014 Road and Trail Management Plan (RTMP”). At the
time the RTMP PEIR was certified, the Middagh Trail and Alto Bowl Preserve
were limited to hiking and horse riding but did not allow for mountain biking.
Thus, the physical and social effects of this abrupt change of the Middagh
7
Trail had never been previously addressed in a CEQA review process.
Respondent challenged the project in its Petition for Writ of Mandate,
which the trial court granted, holding that the District had failed to comply
with CEQA and with the RTMP’s own ‘project selection’ criteria. Clerk’s
Transcript, Volume 4, pp. 714-735 (“4 CT 714-735").
However, the Court of Appeal reversed the trial court on the CEQA
issue, finding that the project impacts (physical and social) on existing users
need not be considered in the District’s CEQA review, and that the Middagh
Trail project fell ‘within the scope’ of the RTMP PEIR, which had envisioned
that new projects would be approved in the future but never mentioned or
analyzed any changes to the Middagh Trail. See Slip Op., pp. 14-29.
Petitioner seeks review on two important CEQA issues that the Court
got wrong: 1) how CEQA review should address the ‘social’ effects on people
caused by a physical change in the environment; and 2) how an agency may
determine if a second tier project falls with the scope of a prior PEIR and thus
requires no further project specific review.
//
//
//
//
8
II. ISSUES PRESENTED
1. Whether CEQA review must include an evaluation of the ‘social
effects’ of a project on humans where such social effects are caused
by physical changes to the environment.
The first issue for review is how ‘social effects’ on existing trail users
caused by the physical impacts of a project must be evaluated under CEQA,
in particular how social effects must be evaluated in determining whether or
not the underlying physical impacts should be deemed ‘significant.’
In this case, the potential for the addition of mountain biking onto the
Middagh Trail to adversely affect the environment and current non-biking
existing users is well documented, showing mountain biking, as practiced in
Marin, as an aggressive and at times harmful endeavor – the record contains
hundreds of District ‘incident reports’ recording bikers causing physical
accidents to hikers and horse riders, threatening public safety, and damaging
resources through erosion and off-trail riding. These reports are supported by
the testimony of local citizens that allowing biking in the Preserve will have
adverse impacts on their recreational experience, beginning with their well-
founded concerns about being injured by speeding bikes.
The CEQA Guidelines and case law clarify that social effects may be
considered when those impacts are themselves caused by changes to the
physical environment. See 14 Cal. Code Regs. (hereinafter “CEQA
9
Guidelines”) § 15064(e); § 15131(b); Christward Ministry v. Superior Court
(1986) 184 Cal. App. 3d 180, 197. In contrast, the Court of Appeal’s decision
holds that such social effects are not reviewable. See Slip. Op. pp. 24-25.
The Court’s error was due in part to the unsettled case law on this issue,
in which some decisions find that social effects need not be considered while
others follow the Guidelines’ language that requires review of social effects
when caused by physical changes in the environment.
Here, review is warranted to provide clarity on this area of CEQA law.
2. What is the proper test for determining that a second tier review
project falls ‘within the scope” of a prior programmatic EIR and
thus no further project specific review is necessary?
The second issue for review is clarification of the proper test to
determine whether a second-tier, site specific project should be considered ‘within
the scope’ of a prior program EIR prepared for a larger overall ‘plan’ such as the
District’s RTMP in this case. See CEQA Guidelines § 15168(c)(2). This issue
is critical in determining whether CEQA tiering should occur under Public
Resources Code §§ 21093-21094, CEQA Guidelines § 15152, or whether an
agency may instead treat the second tier project as a subsequent iteration of the
same ‘project,’ in which case the agency utilizes the different standards
applicable for changed projects, see Public Resources Code § 21166, CEQA
Guidelines § 15162, to determine whether further review is required.
10
Here, the Court of Appeal addressed whether the Middagh Trail project
was ‘within the scope’ the prior RTMP PEIR by providing only a general
discussion supporting the Court’s view that the “RTMP EIR adequately
assesses the project’s potential environmental impacts,” Slip. Op. pp. 22-25,
which, however, never analyzed whether the program EIR fully discussed the
site-specific impacts of the later project, which, in this instance, it did not.
The Court’s approach undermines CEQA, which identifies ‘tiering’ as
the preferred method for tailoring the scope of the relevant environmental
review to the level appropriate for the project at issue. See Pub. Res. Code §§
21093-21094; Friends of Mammoth v. Town of Mammoth Lakes
Redevelopment Agency (2000) 82 Cal. App. 4th 511, 527-528; Koster v.
County of San Joaquin (1996) 47 Cal. App. 4th 29, 38.
The Court of Appeal’s error here is, unfortunately, not unusual due to
the vague language of the CEQA Guidelines, which does not clarify what it
means for a second tier project to be ‘within the scope’ of an earlier
programmatic EIR. See CEQA Guidelines § 15168(c). Indeed, any second tier
project could conceivably be interpreted to be ‘within the scope’ of a prior plan
or program; such a formulation would in fact serve to highlight the very
concept of ‘tiering,’ in which second and third tier projects approved under the
overriding umbrella of a plan or program may undergo more streamlined, site
11
specific CEQA review. See e.g., CEQA Guidelines § 15152(a).
If all subsequent, second-tier, site specific projects may be interpreted
to be ‘within the scope’ of a prior programmatic plan – a conceivable
interpretation in the absence of more specific guidance – the entire concept of
CEQA tiering will be drastically curtailed, if not eliminated outright.
III. WHY REVIEW IS WARRANTED
Under Rules of Court 8.500(b)(1) review is warranted “when
necessary to secure uniformity of decision” or “to settle an important
question of law.” Review of Community Venture Partners v. Marin County
Open Space District is warranted under both grounds.
A. THE COURT SHOULD CLARIFY HOW SOCIAL EFFECTS
OF A PROJECT SHOULD BE REVIEWED UNDER CEQA.
Currently there is a lack of case law clarity as to how social effects
are to be considered in CEQA impact evaluation where such effects are
caused by physical changes to the environment. Under the CEQA
Guidelines, a significant social effect must be considered in determining
whether the underlying physical impact is significant. CEQA Guidelines §
15064(e); § 15131(b). These Guidelines derive from CEQA provisions
stating that “substantial evidence” does not consist of “evidence of social or
economic impacts that do not contribute to, or are not caused by, physical
impacts on the environment.” Pub. Res. Code § 21080(e)(2) (emphases
12
added.) See also id., § 21082.2(c); CEQA Guidelines §§ 15384 (a)-(b).
In contrast stand a number of decisions holding that the social effects
of a project need not be considered. See e.g., Preserve Poway v. City of
Poway (2016) 245 Cal. App. 4th 560, 575 (“[E]conomic and social changes
resulting from a project shall not be treated as significant effects on the
environment.”); Lighthouse Field Beach Rescue v. City of Santa Cruz
(2005) 131 Cal. App. 4th 1170, 1206 (CEQA is not concerned with “social
effects that do not contribute to a secondary physical impact.”)
The Preserve Poway and Lighthouse Field Beach Rescue line of
cases are correct that social effects cannot constitute CEQA significant
impacts by themselves, yet fail to provide guidance on how social effects
should be considered in evaluating the significance of the physical
environmental impact where such physical impact causes the social effect in
the first instance. These cases provide no direction for how adverse social
effects should be analyzed where they are the product of physical changes.
In this case, the introduction of mountain biking onto the Middagh
Trail will have profound impacts to the physical environment in terms of
aesthetics, noise, erosion, trail condition and safety. Yet the Court of Appeal’s
decision, following Preserve Poway and Lighthouse Field Beach Rescue,
never addressed the social effects of these physical changes. This is in part
13
due to the lack of any case law explanation for how social impacts affect the
significance of the underlying physical impact. For example, the CEQA
Guidelines suggest where social effects caused by a physical change are
significant, then the physical changes should be considered significant as
well. See 14 Cal. Code Regs. § 15064(e) (“[I]f the construction of a new
freeway or rail line divides an existing community, the construction would
be the physical change, but the social effect on the community would be the
basis for determining that the effect would be significant.”); id.§ 15131(b)
(“[I]f a project would cause overcrowding of a public facility and the
overcrowding causes an adverse effect on people, the overcrowding would
be regarded as a significant effect.”)
Despite their robust conclusions, these Guideline examples provide
no reasoning or test to apply as to how social effects should be considered.
As a result, the Court of Appeal in this case ended up relying on a federal
decision, Bicycle Trails Council of Marin v. Babbitt (N.D. Cal. 1994 No.
C-93-0009 EFL) affd. (9th Cir. 1996) 82 F.3d 1445, see Slip Op., p. 24,
which is based on the National Environmental Policy Act (“NEPA”), a
federal statute that does not recognize social effects as a component of
environmental review. Although the Court thereafter referred to state court
CEQA decisions, it was simply to support its conclusion that social effects
14
should play no role in CEQA review:
[C]omplaints that current users will experience less recreational
enjoyment due to "groups of speeding bikers," noise, or fear from
bike accidents are similarly not concerns tied to the physical
environment. Rather, they concern the subjective and psychological
feelings of trail users towards other users.
See Slip Op. p. 25.
This ruling is completely inconsistent with the record, which includes
hundreds of Marin County examples of mountain biking creating unsafe
conditions for hikers and equestrians, of mountain biking upending the
recreational experience of trail users, including the inevitable result that
existing users simply abandon their use entirely in the face of a total
transformation from a quiet, slow winding hiking trail to a crowded biking
route destination for thousands of weekend riders who have no particular
affiliation for the Middagh Trail or Alto Bowl Preserve. See Discussion and
Notes 7-9, pp. 31-35, infra. These County-wide incident reports are
corroborated by comments of current users of the Middagh Trail, who relate
their own direct experiences attesting to the tremendous negative impact
that adding biking to the Middagh Trail will have on existing users. Id.
Despite this substantial evidence in the record of social effects caused by
physical changes, see Pub. Res. Code § 21080(e)(2); § 21082.2(c); CEQA
Guidelines §§ 15384 (a)-(b), the Court of Appeals dismisses this testimony
15
as simply the “subjective and psychological feelings of trail users” who
‘dislike’ mountain bikers. This facile and unreasoned conclusion does a
great disservice to numerous citizens who naively thought their experiences
would be taken into account as part of a lawful CEQA review.
The result that such testimony and official reporting was disregarded
here is due to the muddle in existing law as to how impacts on existing
users of the environment should be treated. For example, published
decisions as well as the CEQA guidelines identify that impacts to existing
recreational users must be analyzed as part of a CEQA review process. See
e.g, National Parks & Conservation Assn. v. County of Riverside (1999) 71
Cal.App.4th 1341, 1361-1362 (loss of aesthetic recreational experience is
CEQA impact); Baldwin v. City of Los Angeles (1999) 70 Cal. App. 4th
819, 842 (analyzing effect of the project “on the quality or quantity of these
other existing recreational opportunities.'”); CEQA Guidelines, App. G (w).
In accordance with these authorities, the trial court correctly held that
the District had failed to comply with CEQA as it “did not consider the
‘negative social effects on the enjoyment and recreational experiences’ for
current hikers and equestrians, and the "likely increased risk of accidents
between current users and the newly added mountain bike riders." Slip Op.,
p. 6. However, the Court of Appeal, stuck on the incorrect reasoning that
16
social effects need not be analyzed, even in cases where the social impacts
are the result of physical changes, rejected the trial court’s holdings, finding
that “CEQA does not require an analysis of subjective psychological
feelings or social impacts." Slip Op., p. 25.
The Court of Appeals’ decision also suffers from a lack of case law
clarity as to how existing users should be considered as part of the
environmental setting for purposes of assessing the adverse impacts of a
project. Under CEQA, the physical changes to the environment caused by
introducing hundreds of daily mountain bikers onto the Middagh Trail must
be assessed not just as to the impacts to wildlife, soil, water quality etc., but
also as to impacts on existing users in this physical environment. See Pub.
Res. Code § 21083(b)(3). The existing "environmental setting" – the
physical baseline on which project impacts are assessed – only includes
hiking and horse riding as current uses of the trail, not mountain biking,
which is not allowed. The addition of biking (and now electric bikes) to
this natural and man-made environment is no different than adding traffic
or a new recreational use to an existing setting, with accompanying impacts
on existing users. See 14 Cal Code Regs.§ 15360 (CEQA ‘environment,’
includes “both natural and man-made conditions”) (emphasis added);
CEQA Guidelines § 15064(d)(1) (examples of “direct physical changes in
17
the environment are the dust, noise, and traffic of heavy equipment that
would result from construction of a sewage treatment plant.”) (emphasis
added.); Taxpayers for Accountable School Bond Spending v. San Diego
Unified School Dist. (2013) 215 Cal.App.4th 1013, 1053 (“Vehicles,
whether driven or parked...may constitute physical conditions in an area that
may be affected by a proposed project.”)
Here, the incident reports and public testimony demonstrate that
significant safety and recreational conflicts between bikers and hikers and
equestrians continue on District lands and that allowing bikes to utilize the
Middagh Trail as a new biking route will have significant impacts to
existing non-biking users. The Court of Appeals’ disregard for these
impacts is contrary to CEQA law and should be reviewed by this Court.
B. REVIEW IS WARRANTED TO CLARIFY HOW AN
AGENCY DETERMINES WHETHER A SECOND-TIER
PROJECT FALLS ‘WITHIN THE SCOPE’ OF A PRIOR
PROGRAMMATIC EIR.
Review is warranted to clarify how an agency determines whether a
second tier project falls ‘within the scope’ of a prior PEIR under CEQA
Guidelines § 15168(c)(2) and thus requires no further CEQA review.
Here, the District tiered its CEQA review of the Middagh Trail
project to the RTMP PEIR, even though when the RTMP was completed
the Middagh Trail had been limited to hiking and horseback riding for the
18
previous four decades. The RTMP PEIR never analyzed the impacts of
adding mountain bikes to the Middagh Trail, nor was the RTMP ever
intended to promote specific projects as possible future additions to the
District’s system. See AR 59 2734 (“No individual road or trail actions are
identified or programmed in the RTMP.”) AR 62 3012 (RTMP “does not
prescribe lists of road and trail modification projects in specific locations.”)
Most importantly, the RTMP PEIR specifically did not consider the
social impacts on existing trail users caused by the addition of mountain
bikes to trails in its CEQA analysis. See AR 59 2241 (“Because the safety
of users of the road and trail system is a social effect within the meaning of
Section 15131(a), it is not within the purview of CEQA.”)
Despite the RTMP PEIR’s failure to have ever analyzed the impact
on existing non-biking users of a change of use to add bikes on the
Middagh Trail, the District nevertheless found that the project fell ‘within
the scope’ of the prior RTMP PEIR analysis. This position was adopted by
the Court of Appeal, without analysis of what it means for a tiered project
to be ‘within the scope’ of the prior program EIR. See Slip Op. pp.19-26.
Instead, the Court of Appeal identified the ‘within the scope’ test as
“involv[ing] two subsidiary issues: whether the proposed project is
consistent with the approved program; and whether the program EIR fully
19
discussed the site-specific impacts of the later project.” See Slip Op. p. 19.
However, the opinion never addresses the second component of the test,
i.e., whether the program EIR fully discussed the site-specific impacts of the
later project. Id. at pp. 19-26.
The Court of Appeal’s failure to complete this required analysis is
due to the lack of clear case law on what it means for an agency to find a
second tier project is ‘within the scope’ of a prior PEIR. Review in this
case could settle existing decisional conflicts relating to whether or under
which circumstances the CEQA provisions applicable to changes to one
‘project’ (§ 21166; CEQA Guidelines, § 15162) may also be applied to a
‘second-tier’ project tiering to a prior ‘first-tier’ programmatic EIR.
In Friends of College of San Mateo Gardens v. San Mateo County
Community College Dist. (2016) 1 Cal. 5th 937, this Court held that in
determining whether further review is required for a tiered project, a more
‘relaxed’ standard than Section 21166 is appropriate. See 1 Cal. 5th at 960
(“The standard for determining whether to engage in additional CEQA
review for subsequent projects under a tiered EIR is more relaxed than the
prohibition against additional review imposed by Public Resources Code
section 21166 for project EIR's.”) (emphases added.)
Other decisions have supported San Mateo Gardens’ approach. See
20
e.g.,Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1164
(“[T[he question for a court reviewing an agency's decision not to use a
tiered EIR for a later project ‘is one of law, i.e., 'the sufficiency of the
evidence to support a fair argument.'”); Center for Sierra Nevada
Conservation v. County of El Dorado (2012) 202 Cal. App. 4th 1156,
1173-1174 (court of appeal rejects agency’s proposed review for project
impacts under Section 21166 and instead evaluates project as tiered
pursuant to Public Resources Code § 21094.); Friends of Mammoth v. Town
of Mammoth Lakes Redevelopment Agency, supra, 82 Cal.App.4th at 528-
531; at 532 (“[F]irst tier EIR's are not subject to the ban on subsequent
EIR's imposed by [] section 21166.”) (emphasis added.)
The Court of Appeal’s approach is unfortunately consistent with
decisions that have conflated the statutory law of tiering, Pub. Res. Code §§
21093-21094, with the CEQA provisions applicable to changes to a specific
‘project,’ i.e, Pub. Res. § 21166 & CEQA Guidelines § 15162. See e.g.,
Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal. App.
4th 788, 802; Cleveland National Forest Foundation v. San Diego Assn. of
Governments (2014) 231 Cal. App. 4th 1056, 1067; Latinos Unidos de
Napa v. City of Napa (2013) 221 Cal.App.4th 192, 196. These cases each
defer to the agency’s decision that a second-tier project fell within the scope
21
of a prior program EIR, an approach contrary to the CEQA rule that agency
determinations regarding the necessary ‘scope’ of a CEQA review process
are reviewable de novo as matters of law. 1
Left unstated in the CEQA Guidelines § 15168(c)(2) is that an
agency determination that a second tier project falls ‘within the scope’ of a
prior programmatic EIR is effectively a decision to forgo tiering altogether
and instead treat the subsequent ‘second tier’ project as one that is
essentially at the same ‘tier’ as the initial ‘first tier’ project analyzed in the
prior program EIR. However, when tiering second-tier projects to prior
plans or programs, the ‘within the scope’ language lends itself to overly
deferential judicial review, thereby undermining CEQA’s strong preference
to allow CEQA review to occur at different stages across a range from
general plans to site specific projects. As an example, in this case, the
Court of Appeal relies on Committee for Re-Evaluation of T-Line Loop v.
San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th
1237, 1248, a case developed not for second tier projects under CEQA
Guidelines § 15168(c)(2), but instead for ‘changed’ projects falling directly
under Public Resources Code § 21166. See Slip Op., p. 15. Ironically, the
CEQA issues that address the proper scope of CEQA review are typically1
reviewed as matters of law by the court. See e.g., Fullerton Joint Union High
School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 794-795.
22
T-Line Loop decision cites to San Mateo Gardens’ discussion of substantial
evidence review applying to a ‘changed project’ for which a prior EIR had
been prepared, even though San Mateo Gardens contains an entirely
separate discussion as to why that same substantial evidence standard
cannot apply to a tiering situation under Public Resources Code §§ 21093-
21094. See 1 Cal. 5th at 960 (“[W]hen a tiered EIR has been prepared,
review of a subsequent project proposal is more searching.”)
As a result of this conflation between two types of CEQA
subsequent project review – i.e., a ‘changed’ project versus a second-tier
project – the Court of Appeal applied an erroneous standard in the tiering
context, one which strongly limits any future review of a second tier project
(the Middagh Trail project in this case) that was never specifically
contemplated by the original RTMP PEIR. See Slip Op., p. 15
(“[O]ccasions when a court finds no substantial evidence to support an
agency's decision to proceed under CEQA's subsequent review provisions
will be rare, and rightly so; ‘a court should tread with extraordinary care"
before reversing an agency's determination.')
Such reasoning is completely contrary to CEQA’s encouragement of
tiered review to ensure that the CEQA impact analysis is properly focused
on the appropriate level (general or specific) of evaluation for each
23
successive project. See Pub. Res. Code § 21093. To be consistent with
CEQA’s tiering provisions, an agency decision that a subsequent project has
already been adequately reviewed and thus is ‘within the scope’ of a prior
program EIR must include inquiry of whether the program EIR addressed
the same tier of specificity as the subsequent project, not simply whether the
subsequent project is ‘consistent’ with a prior plan or program, as held by
the Court of Appeal in this case. See Slip Op. pp. 19-20. Here, second-tier
project ‘consistency’ is not a reason to foreclose further site specific review,
but rather a prerequisite to apply tiering principles in the first place. 2
In the absence of review, agencies will increasingly rely on broad
and general programmatic EIRs to insulate subsequent projects with the
potential for site specific impacts that were never addressed in the prior
programmatic review, as occurred in this case. This result represents not
only a loss for the environment, but also a disturbing undermining of the
citizens’ faith in the accountability of their local government officials. 3
In a tiering context, an agency must first determine that a second tier project2
is consistent with the programmatic project to utilize the tiering process. See
Pub. Res. Code § 21094(b)(1) (tiering “applies only to a later project that the
lead agency determines is ...[c]onsistent with the program, plan, policy, or
ordinance ...” for which an EIR was prepared.) (emphasis added.)
The District’s approach creates an unaccountable process in which the District3
simply makes a conclusory decision outside the CEQA process that the project
will not cause adverse impacts on the affected hiking and horse riding users of
the Middagh Trail. Here, the District never bothered to consider a ‘no project
24
IV. FACTUAL BACKGROUND
A. DISTRICT’S 2014 APPROVAL OF RTMP.
The District approved the RTMP and RTMP EIR on December 16,
2014. The RTMP does not prescribe specific future RTMP projects, but
instead presents a general policy framework and process for making project
level decisions. See AR 62 2999-3222. To address user conflicts, the
RTMP includes general policies such as ‘Promote Harmony Among Trail
Users,’ including events to promote trail etiquette and cooperation among
trail user groups.” Id. at 3142. Under the RTMP, the District “may prohibit
certain trail uses or apply increased trail use restrictions within certain areas
to enhance safety, minimize conflicts between trail users, and protect
natural resources” including areas “proximate to stables and those
traditionally heavily traveled by equestrians.”Id. at 3145 (emphases added.)
Further, the District must “strive to prevent displacement of equestrians and
pedestrians” when accommodating mountain bikers. Id. (emphasis added.)
B. ENVIRONMENTAL SETTING AND IMPACTS OF BIKING.
The Alto Bowl Preserve is one of the smallest nature preserves in the
District’s system, a small watershed encompassing 37.1 acres, consisting of
alternative’ in which the Preserve is not opened up to mountain biking, which
is required under CEQA given the potentially significant impacts to existing
users. See CEQA Guidelines § 15126.6(e)(1).
25
0.77 miles of narrow trails and 0.37 miles of wide trails. Id. at 3035. The
Preserve was formerly comprised of dairy ranches. In the 1960’s, citizens
challenged developer plans to build on the surrounding ridges of Alto Bowl,
leading to the incremental acquisition by the District of the Preserve area.
See AR 523 5271. Local volunteers have subsequently restored many acres
of the Preserve’s native habitats. Id. at 5272.
The Bob Middagh has been exclusively used on a regular basis by
hikers and equestrians for decades. Mountain bikes are not permitted,
although occasional illegal riding does occur, leading to trail damage and
safety incidents with hiking and equestrian users. See e.g., AR 252 4736.
Such damage and safety related impacts are further supported by evidence
from other localities showing that bikes have the potential for significant
environmental and safety impacts to sensitive natural resources and non-
bike users of the trail system, see AR 523 5272-5281, and by a wealth of
documentation through incident reports of illegal riding, safety impacts and
damage to natural resources caused by biking on trails in Marin County.4
//
See AR 99 3381-3401; AR 100 3404-3421; AR 101 3423-3426; AR 3444-4
3457; AR 104 3459-3474; AR 106 3559-3564; AR 107 3567-3570; AR 114
3522-3676; AR 115 3566-3731; AR 116 732-3820; AR 117 3821-3794; AR
118 3975-4126; AR 119 4127-4269.
26
C. DISTRICT APPROVES PROJECT TO ALLOW BIKES ON
MIDDAGH TRAIL.
In 2015 the District considered public proposals for projects to
enhance trails in the District’s system. Among these was a proposal by the
Marin County Bicycle Coalition (“MCBC”) to open the Middagh Trail to
bikes. See AR 67 3229-3237. At the same time, countervailing proposals
for "no project" and/or improvements on the Middagh Trail without opening
the trail to biking were submitted but were not reviewed by the District. See
AR 66 3223-3228; AR 70 3240-3243; AR 71 3244-3246; AR 75 3270-
3276; AR 76 3277-3279. On September 22, 2015, Friends of Marin Open
Space submitted a Petition containing 1,088 signatures/comments opposing
the proposed change of use from hiking and equestrian on the Bob Middagh
Trail to allow bikes. AR 252 4729-4840.
On November 10, 2015, the District released its assessment of the
various project proposals for the Preserve. AR 86 3296-3297. The District
chose the MCBC proposal to allow bikes on the Middagh Trail as the only
project to consider. Id. at 3296. In doing so, the District rejected the
competing proposals not to allow bikes and instead to improve trail and
watershed conditions based on the District’s conclusion that these proposals
were not ‘scoreable,’ and thus could “not be evaluated.” Id.
On August 25, 2016, the District presented a feasibility analysis of
27
allowing bikes on the Middagh Trail at a community workshop. See AR 92
3339-3367. The District offered a comment period for the proposed project
but did not prepare an initial study or conduct review under CEQA.
As part of this informal process, Petitioner, along with numerous
other citizens, provided detailed comments on the District’s proposal to
open the Bob Middagh Trail to bikes and to reconstruct the trail in a manner
allowing for bike use. See AR Rows 273-566. Comments ranged from
anecdotal/personal experience of biking causing substantial adverse
environmental effects and safety hazards to other trail users, to scientific
studies demonstrating the potential for mountain bikes to cause erosion,
expansion of riding on unmarked trails, disturbance of wildlife, noise and
physical harm to non-biking hikers and equestrians. See e.g., AR Rows 273,
279, 284, 285, 308, 350, 500, 515, 523-547. The comments also questioned
whether the District had already made the decision to approve biking for the
Trail, even though no CEQA review had ever been conducted. See e.g, AR
515 5252; AR 523 5283 (“[T]he fact that the public has not been informed
of the District's procedure in this regard undermines transparent
decision-making and public process.”)
On November 29, 2016, the District announced that the “proposal to
improve and open the Bob Middagh Trail to bicycle use was approved”
28
based on the District’s determination that the “addition of bicycle use on the
Bob Middagh Trail could be accommodated in a safe and sustainable
manner and would not have significant effects to natural or cultural
resources.” AR 93 3372 (emphases added.) On December 1, 2016, District
officials responded to citizen concerns by stating it was “essentially correct“
that the project “has now been approved.” AR 581 5981.
On May 11, 2017, the District announced it had again ‘approved’
allowing biking in the Preserve and on the Middagh Trail. See AR 8 004-
007. The District supported its action with a post-hoc ‘Consistency
Assessment,’ concluding the project was consistent with the RTMP EIR as
it would not result in new or more significant impacts from changes,
changed circumstances, or new information. See AR 8 006; 13 008-203.
D. LITIGATION AND TRIAL COURT’S RULING.
Petitioner challenged the District’s approval of the project on May
26, 2017. See 2 CT 1-23. The trial court granted Respondent’s Petition on
three issues: (1) the District had proceeded unlawfully in approving the
project in November 2016 without CEQA review, 4 CT 725-730; (2) the
Consistency Assessment did not properly consider the reasonably
foreseeable social effects of the project on existing users, id. at 730-733;
and (3) the District did not follow the required RTMP procedure in failing
29
to consider any project proposals not involving a change of use to allow
mountain biking. See id. at 733-735.
E. COURT OF APPEALS’ RULING.
The Court of Appeal reversed the trial court on its CEQA rulings,
but affirmed the trial court’s ruling that the District did not follow the
required RTMP procedure in not considering any project proposals not
involving a change of use to allow mountain biking.5
V. THE COURT OF APPEALS’ DECISION HIGHLIGHTS THE
NEED FOR SUPREME COURT GUIDANCE ON HOW SOCIAL
EFFECTS SHOULD BE CONSIDERED IN A CEQA REVIEW.
The project approved in this case proposes to change the hiking and
equestrian Middagh Trail into a route for bikes through the center of the
Alto Bowl Preserve to major bike areas west in Corte Madera. See e.g., AR
93 3368-3377. The expansion of the mostly narrow trail used by hikers and
equestrians into a recontoured trail for riding will alter the environment by
introducing fast-moving bikes that affect the physical terrain and cause
adverse aesthetic, noise, recreational and safety impacts on current
hiker/equestrian users of the trail, measured in physical and social effects.
Critically, the District never considered the social effects of the
project on the existing users caused by the physical changes in the
Petitioner does not seek review of this issue on which Petitioner prevailed.5
30
environment expected from the project, consistent with the District’s CEQA
analysis done for the RTMP.
Here, review is necessary to clarify that the environmental and social
effects of adding mountain bikes on the Middagh Trail on existing non-
biking users must be evaluated as part of a CEQA review process.
A. HOW CEQA CONSIDERS ENVIRONMENTAL IMPACTS.
CEQA requires an agency to determine whether a project may have
significant environmental impacts before it approves the project. See Pub.
Res. Code § 21151(a). "Environment" is defined as "the physical
conditions which exist within the area which will be affected by a proposed
project, including land, air, water, minerals, flora, fauna, noise, objects of
historic or aesthetic significance." Pub. Res. Code § 21060.5. A project has
a significant effect on the environment if it causes “substantial adverse
effects on human beings, either directly or indirectly.” Pub. Res. Code §
21083(b)(3) (emphasis added.) See also CEQA Guidelines § 15065(a)(4).
The determination of whether a project may have a significant
effects “calls for careful judgment on the part of the public agency
involved” including consideration of how “the significance of an activity
may vary with the setting” such as “an activity which may not be significant
in an urban area [but which] may be significant in a rural area.” CEQA
31
Guidelines § 15064(b). See also Friends of College of San Mateo Gardens,
supra, 11 Cal. App. 5th at 610 (significance of environmental impact “is not
based on its size but is instead measured in light of the context where it
occurs.") The agency “shall consider the views held by members of the
public in all areas affected” including “whether environmental change itself
might be substantial.” CEQA Guidelines § 15064(c).
Environmental ‘effects’ under CEQA must be related to a physical
change.” Id., § 15358(b) (emphasis added.) Under this rule, “[e]conomic
and social changes,” standing alone, “shall not be treated as significant
effects on the environment.” CEQA Guidelines § 15064(e); § 15131(a).
However, the situation is different if economic and social changes are tied
to physical impacts. First, CEQA requires consideration of indirect changes
in the environment caused by a project’s social and economic impacts.
CEQA Guidelines § 15064(e); § 15131(a). Second, social effects may be
considered when those impacts are themselves caused by changes to the
physical environment. See CEQA Guidelines § 15064(e); § 15131(b).
This second category addresses the impacts at issue in this case.6
//
CEQA Guidelines § 15064(e) & § 15131(b) provide examples of how a6
significant social effect caused by a physical impact may require that physical
impact to be considered significant.
32
B. IMPACTS TO EXISTING USERS CAUSED BY PROJECT.
The conversion of the Middagh trail into a mountain bike route
involves three types of CEQA impacts. First, direct physical changes
include 1) widening and recontouring of trails; 2) the introduction of fast
moving bike traffic into an area historically used by slow moving hikers and
horses; 3) changes to trail quality due to erosion/trail deterioration; 4)
increases in periodic noise levels due to bike riders; and 5) changes in
aesthetic qualities of the Preserve due to these changes.
Second, indirect physical impacts from the project include 1) loss of
wildlife in response to fast moving bikes, including night riding allowed by
the RTMP; 2) physical accidents involving bikers and slow moving hikers
and horse riders; and 3) adverse noise and aesthetic effects to existing
recreational users of the Middagh Trail.
Third, social effects of the project include 1) the threat to existing
users to recreate in this area due to safety concerns; 2) loss of value of
existing user recreational experience due to the physical effects of biking on
safety, noise and aesthetics in the area; and 3) foreseeable displacement of
many existing users of the Preserve due to the introduction of biking.
The impact to the existing trail user comes from a combination of
these direct and indirect physical impacts as well as social effects deriving
33
from these physical impacts. These impacts combine together to create a
potentially significant impact on existing trail users, which should have
been assessed in a CEQA review process but were not in this case.
Among the most concerning of the physical and social impacts to
existing trail users is the question of safety, i.e., how does the introduction
of mountain bikes (and increasingly electrically powered bikes) into the
small Preserve area with hikers and equestrians create foreseeable safety
risks. Safety impacts to hikers and equestrians due to bikers in the Preserve
fall into two categories; 1) physical impacts to existing users due to
foreseeable accidents; and 2) social impacts due to the threat posed by
foreseeable accidents with bikes. Here the evidence shows the conversion
of a decades-old hiking and equestrian preserve area into a bike-friendly
destination area has the potential for future accidents between bikes, hikers
and horse riders. See AR 515 5256 (“There are major safety issues here, and
your agency is already understaffed to deal with the issues it currently
faces.”); AR 242 4693 (“I cannot tell you how many times in the last 8
months - I have almost been hit by "racing bikers" who come around
corners at break neck speeds.”) AR 252 4758 (“The hill especially was
designated as open space for the peaceful pasture of aging horses. We have
had enough ‘accidents’ with fast bikers in the area.”) AR 550 5894 (“In the
34
last year, my family has been buzzed twice by bicyclists zooming down the
....trail illegally, creating a dangerous situation.”)
These experiences are corroborated by the literally hundreds of
incident reports showing bikers involved in accidents with hikers and
equestrians. See pp. 26, 31-35, Notes 4, 7-9. Foreseeable accidents causing7
See e.g., AR 116 3769 ("As they approached a blind corner two or possibly7
more juveniles came down the trail on bicycles. The horses were spooked
...[and] began to rear up and spun around away from the juveniles. ..."); AR
119 4262 ("The cyclist saw me and I hailed him to stop, he stated "Fuck you,
you don't have the power to stop me!...He then rode down the trail cut several
switch backs and nearly hit a hiker by Pacheco Pond."); AR 118 3978 ("As the
subject approached me he started to brake, but then started to peddle directly
at me...."); AR 118 4007 ("The report was of an altercation between a woman
hiker and a male mountain biker that became physical. ...I then transported her
to an ambulance...."); AR 118 4103 ("Illegal bike activity; lots of horses out
today. 2 bikes rode the illegal trail off Conifer onto Conifer trail;...they said:
have a nice day and rode on. Speeding around a blind corner."); AR 118 4106
("High rate of speed, ear buds, could not hear when I spoke with him.
...enforcement needed."); Id. at 4107 ("Illegal bicycling on Bob Middagh
Trail....This cyclist was coming down the Middagh…corner in creek. Jumping
the dips. Surprised me a lot. Glad I was not on Red, the horse I have on loan.)
AR 117 3959 ("Three bicyclists, not only on the closed trail, but going fairly
fast.... They were belligerent."); Id. ("Bike Speeding, ...bikers treat the fire
roads at Rush Creek as if they were highways. They ride fast, fail to
slow…approaching walkers, even when coming from behind, and often fail to
give any Warning."); AR 117 3961 ("[T]wo teenage boys...biking really
fast...we were lucky they didn't run into a horse because they would have
spooked… "); Id. at 3962 ("I did not see the cyclists who shook up the lady
hiker..."); AR 116 3804 (Two fairly fast moving bikes coming down Cary
Camp Loop at first exit down. "); Id. at 3806 ("Bicyclists riding fast and not
yielding to hikers. "); AR 115 3718 ("Hurtling down trail at side of stream
almost hitting me..") AR 114 3670 ("[S]ome bikes ..(7 of them) were coming
around a blind corner at an unacceptable rate of speed and had to slide to a
stop not to run into [her] and her horse. She had yelled: "horse" at the top of
35
adverse physical harm to existing users causes not just a social effect, but
also an indirect physical impact, the same way a factory emitting air
pollution would have indirect physical impacts on humans living nearby.
See Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d
692, 716-717 (impacts of development creating air pollution impacts.)
The record also contains evidence showing the potential for critical
social effects due to the legitimate fear of existing users of being hit by a
bike. AR 87 3300 (equestrian group states they already travel on high alert
“due to the possibility of hard-charging bike riders” many of which are
“riding at the edge of their control.”); AR 252 4732 (“I hike Horse Hill and
from the experiences I have had with cyclists on the roads I would be afraid
for my safety and the safety of the horses and other wildlife on the trails.”)
AR 72 3248 (“A significant sensitive resource is the serenity and safety
(including a perception of safety) inherent in trails from which sport
bicycling is excluded.”) In many cases the fear and anxiety caused by this
social impact will likely cause many existing users not to use the trail at all.
See AR 252 4736 (“I'm afraid to take my 6 year old son on the Bob
Middagh trail ...now that the mountain bikers have discovered it....it's just
her lungs, but, she said, the bikers were talking loudly and didn't hear her. No
sense of risk to anyone else on the trail.. ")
36
too dangerous.”) AR 87 3300 (“The Middagh Trail is the only equestrian
trail connection from Horse Hill to the MCOSD and MMWD lands to the
west.”); AR 78 3282 (“[I]t is most likely that others like myself will be
displaced, as has happened in China Camp.”)8
‘User displacement’ is the ultimate ‘social’ impact in addressing
whether the physical changes and foreseeable bodily injury causing the
effect are significant. See Pub. Res. Code § 21083(b)(3) (impact significant
where project causes “substantial adverse effects on human beings.”); Pub.
Res. Code § 21000(d) (CEQA includes assessing “critical thresholds for the
health and safety of the people of the state.”) (emphasis added.)
Recreation impacts are also directly implicated by the change in trail
use from hiking and equestrian to mountain biking. Areas such as the Alto
Bowl Preserve are “treasured as daily destinations” by those “immersed in
nature in their recreation pursuits, right in their own communities.” AR 62
See also AR 318 5011 (“Where are the MCOSD local studies indicating this8
will not be an issue on the Middagh? Many hikers and equestrians surely will
feel endangered and their trail user experience diminished by being asked to
share a narrow trail with hurtling mountain bikers, dangerous even if abiding
by a 15 mph speed limit. Hikers and equestrians will then be forced to recreate
elsewhere.”) AR 498 5226-5227 (“Displacement eludes measurement - until
one finds that equestrians (for example) have simply deserted certain trails as
mountain bikes usage has increased. China Camp State Park is the classic local
example of displacement: even hikers walk at considerable risk on weekends,
and equestrians now avoid the Park altogether.”)
37
3011. Such recreational interests are recognized under CEQA. Baldwin v.9
City of Los Angeles, supra, 70 Cal. App. 4th at 842 (project has significant
environmental effect if it conflicts “with established recreational... uses of
the area.'”); Pub. Res. Code § 21000(c) (CEQA encourages people’s
“enjoyment of the natural resources of the state.”)
Overall, the combination of real physical effects related to safety,
noise, aesthetic and recreational values has the potential for substantial
adverse impacts on existing users, leading to the possibility of accident, loss
of recreational enjoyment and possible displacement of their historical use.
For persons who recreate here, who have “treasured” the Preserve as a
“daily destination,” this is a significant impact. See AR 62 3011.
Here, Supreme Court review is necessary to ensure that such
significant displacement be reviewed under CEQA to determine if there is
feasible mitigation or alternatives that can avoid this significant impact to
existing trail users. See Pub. Res. Code § 21002.
//
//
See e.g, AR 515 5256 (“These lands ...provide respite from modern life with9
all its noise and busyness. ...To take this away from those who now enjoy it as
it is, and those who would never have a chance to, and turn it over to
mechanized users...would be a tragic loss.”)
38
VI. THERE IS A NEED FOR SUPREME COURT DIRECTION TO
CLARIFY HOW AN AGENCY MAY DETERMINE THAT A
PROJECT IS WITHIN THE SCOPE OF A PRIOR PROGRAM EIR.
The Court of Appeals’ decision surrenders complete deference to the
District’s determination that the Middagh Trail project was ‘within the
scope’ of the RTMP PEIR and thus no further site specific CEQA review
was required, despite the fact that the RTMP PEIR 1) never contemplated
nor analyzed adding mountain biking to the Middagh Trail; and 2) rejected
the law that the social effects on existing users due to adding a new use with
potential adverse impacts needed to be addressed in a CEQA review
process. See AR 59 2241; AR 59 2734; AR 62 3012.
Under CEQA, tiering is strongly encouraged in order avoid
repetitious CEQA review. See Pub. Res. Code §§ 21093-21094. Tiering
proceeds from a programmatic EIR, “prepared on a series of actions that
can be characterized as one large project and are related...in connection with
the issuance of rules, regulations, plans, or other general criteria to govern
the conduct of a continuing program." CEQA Guidelines § 15168(a)(3).
Tiering requires the lead agency to “examine significant effects of the later
project upon the environment,” but need not “examine those effects that the
lead agency determines were ... [e]xamined at a sufficient level of detail in
the prior [EIR].” Pub. Res. Code § 21094(a). “[A]n initial study shall be
39
prepared...and shall analyze whether the later project may cause significant
effects on the environment that were not examined in the prior
environmental impact report." Id. § 21094(c) (emphasis added.) Thus, a
lead agency tiering to a Program EIR should limit discussion to effects of
the subsequent project that: (1) were not examined as significant effects on
the environment in the prior EIR; or (2) are susceptible to substantial
reduction or avoidance by the choice of specific revisions in the project, by
the imposition of conditions, or other means. CEQA Guidelines § 15152(d).
Importantly, a subsequent EIR is required when the initial study finds that
the later project may cause significant effects on the environment that were
not ‘adequately addressed’ in the prior EIR. Id. § 15152((f).
Here, the District took none of those steps. Instead, rather than ‘tier’
the CEQA review for the project to the RTMP EIR, the District proceeded
under Public Resources Code § 21166 and CEQA Guidelines § 15162
based on the assumption the project fell ‘within the scope’ of the RTMP
PEIR per CEQA Guidelines § 15168(c)(2). The District then adopted a
‘Consistency Assessment’ evaluating whether the project was ‘consistent’
with the RTMP, a different inquiry than determining the need for further
review under CEQA’s tiering procedure. See Note 2, p. 21, supra.
In addition to project ‘consistency’ with the RTMP, the Consistency
40
Assessment also reviewed the factors for modified projects based on “new
information,” “changes in the project” or “changes in circumstances.” See
AR 13 008-203; Pub. Res. Code § 21166; CEQA Guidelines §§
15162(a)(1)-(3). As a result, the District avoided focus on the relevant
CEQA issue presented, i.e., whether the introduction by this second-tier
project of mountain biking and its attendant physical and social impacts to
the Middagh Trail and its users were ‘adequately discussed’ at a “sufficient
level of detail” in the prior program EIR. See Pub. Res. Code § 21094;
CEQA Guidelines § 15152(f).
Here, the District should have followed CEQA’s tiering provisions
given that the project does not fall within the scope of the prior RTMP EIR,
which 1) never considered such a use change for the Middagh Trail; and 2)
did not consider use changes worthy of CEQA review in the first place.
Supreme Court review is warranted here because the modified
project criteria of Section 21166 and CEQA Guidelines § 15162 do not
match the necessary analysis for whether a second-tier project should
undergo further CEQA review following a program EIR. Under the
‘modified project’ standards, further CEQA review is only required if there
is ‘new’ information or circumstances relating to the initial ‘project.’ In
contrast, in a tiering situation, the second-tier project will be a second-phase
41
implementation of the first-tier project that has not ‘changed’ or been
‘modified’ but instead is now to be implemented at a subsequent, more
project specific stage. Here, the criteria for further CEQA review under
CEQA Guidelines § 15152 are on point with the concept of tiering whereas
the modified project criteria under Sections 21166 and 15162 are not.
VII. CONCLUSION
The Court of Appeals’ flawed decision allows the District to evade
review to assess the impacts of changing long time trail use in a dramatic
manner, resulting in unanalyzed, significant impacts to the long time users
of the Middagh Trail, in violation of CEQA, the CEQA Guidelines and
CEQA policy requiring accountability in agency decision-making.
DATED: March 4, 2020
By: /s/ Michael W. Graf
Michael W. Graf
Attorney for Petitioner
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CERTIFICATION OF WORD COUNT(Cal Rules of Court, Rule 14(c)(1))
The text of Petitioner’s Petition for Review consists of 8,329 words,
as counted by the Corel Word Perfect word processing program used to
generate this brief.
DATED: March 4, 2020
By: /s/ Michael W. Graf
Michael W. Graf
Attorney for Petitioner
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PROOF OF SERVICE
I am employed in the County of Contra Costa, State of California. I am over the age of 18 and
not a party to the within action; my business address is 227 Behrens Street, El Cerrito California, 94530.
I caused the attached:
PETITIONER’S PETITION FOR REVIEW
to be served as follows:
x By Regular Mail On this date written below, at El Cerrito, California, I placed a true copy ofthe above written document in a sealed envelope(s) and placed it for collection and mailing,addressed as follows.
Marin County Superior CourtP.O. Box 4988San Rafael, California 94913
1st District Court of Appeal350 McAllister StreetSan Francisco, CA 94102
I declare under penalty of perjury under under the laws of the State of California that the foregoing
is true and correct, and that this declaration is executed this March 4, 2020, in Contra Costa County,
California.
By: /s/ Michael W. GrafMichael W. GrafAttorney for Plaintiff /Respondent
Proof -Petition for Review.wpd
1PROOF OF SERVICE; Case No. Civ. 1701913
EXHIBIT A
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1
Filed 1/24/20NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
COMMUNITY VENTURE PARTNERS,Plaintiff and Respondent,
v.MARIN COUNTY OPEN SPACE DISTRICT,
Defendant and Appellant.
A154867
(Marin County Super. Ct. No. CIV1701913)
Marin County Open Space District (District) approved a project to make certain
improvements to, and allow bicycle use on, the Bob Middagh Trail in Mill Valley
(Project). Community Venture Partners (CVP) filed a petition for writ of mandate
seeking to set aside the District’s approval of the Project. The trial court granted the
petition, finding that the District violated the California Environmental Quality Act
(CEQA) (Pub. Resources Code, §§ 21000 et seq.)1 by failing to evaluate the Project’s
potential environmental impacts before approving it. The court further found that, even
assuming the District had approved the Project at the appropriate time, the District’s
environmental review documents were inadequate because they did not address
“reasonably foreseeable social effects and safety risks” of the Project. The trial court also
granted CVP mandamus relief based on the District’s alleged violation of its internal
1 Unless otherwise indicated, all further statutory references are to CEQA provisions as set forth in Public Resources Code sections 21000–2117. Where applicable, the CEQA Guidelines (Cal. Code Regs., tit. 14, §§ 15000–15387) will be noted as “Guidelines” throughout the opinion.
Court of Appeal, First Appellate DistrictCharles D. Johnson, Clerk/Executive Officer
Electronically FILED on 1/24/2020 by C. Hoo, Deputy Clerk
2
rules governing the evaluation of proposals related to the Middagh Trail. (Code
Civ. Proc., § 1085.)
We reverse the portion of the judgment finding that the District violated CEQA
but affirm the grant of mandamus relief under Code of Civil Procedure section 1085.
I. BACKGROUND
A. The Road and Trail Management Plan
In 2007, the County of Marin (County) adopted the “Marin Countywide Plan”
(Countywide Plan). The Countywide Plan focuses on, among other things, conserving
biological resources and water resources; protecting against environmental hazards such
as seismic activity and landslides; and sustainably managing, enhancing, and expanding
open spaces and trails within the county.
Consistent with the Countywide Plan, in 2014, the District finalized the “Road and
Trail Management Plan” (RTMP), a plan to “[e]stablish and maintain a sustainable
system of roads and trails”; “[r]educe the environmental impact of roads and trails on
sensitive resources, habitats, riparian areas, and special-status plant and animal species”;
and “[i]mprove the visitor experience and safety for all users, including hikers, mountain
bikers, and equestrians.”
B. The RTMP’s Environmental Impact Report
In connection with adoption of the RTMP, the District published the RTMP Draft
Tiered Program Environmental Impact Report in 2013. The District circulated the draft
for public review and comment and modified it to address those comments.
The District recirculated the revised document, the “Recirculated Draft TPEIR”
(Draft EIR), for public review. In the Draft EIR, the District responded to public
comments to the previous draft and invited new comments, which the District would
include in the final EIR.
In 2014, the District finalized the Draft EIR (RTMP EIR). The RTMP EIR
consists of the Draft EIR; a list of persons, organizations, and public agencies
commenting on the Draft EIR; comments received from them; the District’s responses to
3
significant environmental issues raised by the public comments; and modifications to the
Draft EIR based on the District’s responses to the public comments.
C. The District’s Six-Step Process for Evaluating Project Proposals
To implement the RTMP, the District solicits project proposals from the public,
including those requesting changes in use of and adjustments to the network of roads and
trails in the District. The RTMP sets forth the District’s six-step process for screening
and evaluating such proposals.2
In step 1, the District solicits road and trail project proposals from the public. In
step 2, the District screens proposals for consistency with the District’s policies and goals
(including those specified in the RTMP) and “filter[s] out” proposals that would be
inconsistent with those guidelines. In step 3, proposals successfully emerging from step
2’s screening are evaluated and scored to measure the proposals’ potential for impacts on
existing road and trail segments. Proposals that yield a net reduction, or no net increase,
in a region’s baseline of biophysical impacts and that enhance visitor experience and
safety are included in a “reprioritized list of road and trail projects,” while projects that
increase biophysical impacts are not prioritized (or may be amended and resubmitted for
review). A higher score in step 3 of the evaluation process represents a greater potential
for impacts on natural resources or a less sustainable road or trail. In step 4, the highest
priority proposals are analyzed for possible inclusion in the District’s budget. In step 5,
County staff present proposed budgets to the County’s Board of Supervisors and the
District’s Commission, and the public has an opportunity to provide input on the
proposed budgets. Finally, in step 6, the County’s Board of Supervisors and the
District’s Board of Directors approve the proposed budgets during public meetings, and
the public has a “last opportunity” to comment. The RTMP makes clear that construction
2 The RTMP explains that projects can be organized into two groups: (1) those that are eligible to compete in the annual project review, selection, and funding process described therein, and (2) those that are not eligible to compete, because they involve essential functions and services that the District is already required to implement, such as periodic upkeep of a road or trail.
4
work on proposals adopted in the County’s budget “must be preceded by planning,
design, and the fulfillment of environmental review and permitting requirements.”
D. The Bob Middagh Trail Project
In March 2015, the District hosted a community workshop regarding proposals for
the Alto Bowl Open Space Preserve in Mill Valley, which included the subject project.
The Project proposed making improvements to the Middagh Trail and opening it up to
allow bicycles.
In August 2016, the District held a meeting and received public comments on
proposals for road and trail projects within areas governed by the RTMP, including the
Project. At an August 25, 2016 meeting, the District gave a presentation in which it
recommended the Project’s proposal to allow bicycle use on, and make improvements to,
the Middagh Trail. During the next 30 days, the District invited further public comment
on the proposals. The District collected more than 400 comments, over 80 percent of
which supported the Project.
After the public comment period concluded, on November 29, 2016, the District
issued a memorandum from its Chief of Planning and Acquisition, stating as follows:
Recommendations Summary
The proposal to improve and open the Bob Middagh Trail to bicycle use was approved with design modifications as described in this summary. The change in use evaluation process determined that the addition of bicycle use on the Bob Middagh Trail could be accommodated in a safe and sustainable manner and would not have significant effects to natural or cultural resources if recommended design and management modifications are implemented. The addition of bicycles to the trail would also provide an important non paved bicycle route connection for the surrounding community. The intended purpose of this use would be for connectivity and not for the purpose of seeking technical challenges which could be considered attractions unto themselves. This recommendation would require design and management modifications to be implemented prior to allowing bicycle use on the trail. Additional design details, resources surveys, environmental compliance and permitting would be required prior to the implementation of design modifications.
Next Steps
5
It is anticipated that the MCOSD [Marin County Open Space District] will begin construction of the Bob Middagh Trail beginning in the spring of 2017. The next steps for these projects are outlined below:
• Budget Approval • Site Bio Assessment • Final Trail Design Refinement • Environmental Review and Regulatory Permitting • Agency Permitting • Nesting Surveys • Construction
E. The District’s Evaluation of Other Proposals
In addition to the Project, the District evaluated other road and trail project
proposals within the Alto Bowl Open Space Preserve. Some called for building new or
opening existing trails for bicycle use. Others sought to prohibit bike access on the
Middagh Trail. The District compiled its scoring results in a document using two tables.
In one table, the District identified several proposals that advocated bicycle use on the
Middagh Trail, briefly described the proposals, and assigned scores to them using its
baseline analysis as prescribed in the RTMP’s step 3. In the second table, the District
listed proposals it deemed “[n]ot [s]coreable.” The scoring sheet did not explain why
certain proposals were non-scoreable, nor did it include all submitted proposals.
F. The District’s Consistency Assessment
On May 11, 2017, the District prepared a 196-page document entitled
“Consistency Assessment,” which compared potential impacts associated with the Project
to those identified in the RTMP EIR, “as described in CEQA Guidelines Section 15162.”
Its purpose was to determine if the Project presented new information or new
environmental effects that required revisions to the mitigation measures in the RTMP
EIR. In the Consistency Assessment, the District found that the Project would “increase
the sustainability of the trail,” “substantially reduce impacts from erosion and runoff into
nearby drainages,” “minimize habitat fragmentation,” and “reduce the trail’s physical
impacts to the preserve and watershed.” It also concluded that the Project would not
6
result in new significant or substantially more severe impacts than those evaluated in the
RTMP EIR.
On the same day, the District also issued its “Road and Trail Project Approval”
memorandum, stating that the District approved the Project and certified that it conforms
to the Countywide Plan and the RTMP.
G. CVP’s Petition for Writ of Mandate
CVP filed a petition for writ of mandate challenging the District’s approval of the
Project. CVP contended that the District’s approval of the Project violated CEQA.
Relying on the District’s November 29, 2016 memorandum, CVP argued that the District
violated CEQA by approving the Project on that date, before the District had evaluated its
environmental effects. CVP further claimed that neither the RTMP EIR nor the
Consistency Assessment adequately analyzed potential user conflicts between current
hikers and equestrians and mountain bikers on the Middagh Trail.
CVP also brought a mandamus claim under Code of Civil Procedure section 1085,
asserting that the District abused its discretion by not following its six-step evaluation
process and by failing to score alternative proposals.
H. The Trial Court’s Order
The court granted the writ and ordered the District to set aside approval of the
Project. The court determined that the District approved the Project in November 2016
and that it violated CEQA because it was required, but failed, to conduct an initial study
of the Project before approving it. (Guidelines, § 15063.) The court further found that,
even assuming the District’s approval occurred in May 2017 and construing the
Consistency Assessment as a substitute for an initial study, the District nonetheless
violated CEQA because the Consistency Assessment failed to address “reasonably
foreseeable social effects” on existing users of the Middagh Trail. The court noted that
the District did not consider the “negative social effects on the enjoyment and
recreational experiences” for current hikers and equestrians, and the “likely increased risk
of accidents between current users and the newly added mountain bike riders.”
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The court also granted CVP traditional mandamus relief (Code Civ. Proc.,
§ 1085), finding that the District acted arbitrarily and capriciously by violating its own
evaluation rules and failing to score eligible proposals.
II. DISCUSSION
A. CEQA
1. General CEQA Principles
“CEQA was enacted to advance four related purposes: to (1) inform the
government and public about a proposed activity’s potential environmental impacts; (2)
identify ways to reduce, or avoid, environmental damage; (3) prevent environmental
damage by requiring project changes via alternatives or mitigation measures when
feasible; and (4) disclose to the public the rationale for governmental approval of a
project that may significantly impact the environment.” (California Building Industry
Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382.) CEQA is
designed “to compel government at all levels to make decisions with environmental
consequences in mind.” (Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 393 (Laurel Heights I).)
If an agency determines that a project not exempt from CEQA may have a
significant effect on the environment, the agency must prepare an environmental impact
report (EIR) before approval of the project. (See §§ 21100, subd. (a), 21151, subd. (a),
21080, 21084, subd. (a).) The agency notifies the public that a draft EIR is being
prepared (§§ 21092, 21092.1), circulates it to the public (Guidelines, § 15087), and
evaluates the draft EIR in light of public comments (id., § 15088). The agency then
prepares a final EIR incorporating comments on the draft EIR and the agency’s responses
to significant environmental points raised. (Id., §§ 15090, 15132, subds. (b)–(d).)
An EIR must include a detailed statement summarizing (1) all of a project’s
significant effects on the environment, (2) any unavoidable or irreversible significant
effects on the environment, (3) mitigation measures, (4) alternatives to the proposed
project, and (5) the growth-inducing impacts of the proposed project. (§ 21100,
subd. (b).) The lead agency must certify that the final EIR has been completed in
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compliance with CEQA and that the information therein was considered by the agency
before approving the project. (Id., § 15090.)
“An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial
court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo.” (Vineyard Area Citizens
for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427
(Vineyard Area Citizens).) The court reviews the administrative record for prejudicial
abuse of discretion. (Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal.4th 1112, 1132–1133; Sierra Club v. County of Fresno (2018) 6
Cal.5th 502, 512.) “ ‘[A]n agency may abuse its discretion under CEQA either by failing
to proceed in the manner CEQA provides or by reaching factual conclusions unsupported
by substantial evidence.’ ” (Banning Ranch Conservancy v. City of Newport Beach
(2017) 2 Cal.5th 918, 935.)
The California Supreme Court recently addressed this procedural/factual issues
dichotomy and explained, “ ‘Judicial review of these two types of error differs
significantly: While we determine de novo whether the agency has employed the correct
procedures, “scrupulously enforc[ing] all legislatively mandated CEQA requirements”
[citation], we accord greater deference to the agency’s substantive factual conclusions. In
reviewing for substantial evidence, the reviewing court “may not set aside an agency’s
approval of an EIR on the ground that an opposite conclusion would have been equally or
more reasonable,” for, on factual questions, our task “is not to weigh conflicting evidence
and determine who has the better argument.” ’ ” (Sierra Club v. County of Fresno, supra,
6 Cal.5th at p. 512.)
Substantial evidence “includes fact, a reasonable assumption predicated upon fact,
or expert opinion supported by fact,” but it does not include “argument, speculation,
unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or
evidence of social or economic impacts that do not contribute to, or are not caused by,
physical impacts on the environment.” (§ 21080, subd. (e)(1), (2).) In reviewing for
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substantial evidence, we may not set aside the approval of an EIR on the ground that a
different conclusion would have been equally or more reasonable. (Vineyard Area
Citizens, supra, 40 Cal.4th at p. 435.)
2. Timing of Project Approval
CVP argued, and the trial court agreed, that the District violated CEQA by
approving the Project on November 29, 2016, before fully evaluating the Project’s
potential environmental impacts. (Guidelines, § 15063, subd. (a).) We disagree. The
record and applicable case law demonstrate that the District approved the Project on May
7, 2017, after conducting the requisite environmental review.
a. The Legal Framework: Save Tara
Under CEQA, if an EIR is required, it must precede project approval.3 (§§ 21100,
subd. (a), 21151, subd. (a); Guidelines, § 15004, subd. (a).) Under the Guidelines,
“approval” means “the decision by a public agency which commits the agency to a
definite course of action in regard to a project.” (Guidelines, § 15352, subd. (a); see Save
Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134 (Save Tara).) “The problem
is to determine when an agency’s favoring of and assistance to a project ripens into a
‘commit[ment].’ To be consistent with CEQA’s purposes, the line must be drawn neither
so early that the burden of environmental review impedes the exploration and formulation
of potentially meritorious projects, nor so late that such review loses its power to
influence key public decisions about those projects.” (Save Tara, supra, 45 Cal.4th at
pp. 130–131.) We independently review the issue of whether an agency has approved a
project for purposes of CEQA before the requisite environmental review. (Id. at p. 131.)
In Save Tara, supra, 45 Cal.4th at pp. 124–125, 132, the Supreme Court
confronted the question of whether the City of West Hollywood’s conditional
development agreement with a private developer constituted a project approval prior to
environmental review. There, developers proposed to develop city-owned housing units
3 The parties agree that the proposal to introduce bicycle use on the Middagh Trail is a “project” as defined in CEQA. (§ 21080, subd. (a); Guidelines, §§ 15002, subd. (d), 15378.)
10
for low-income seniors. (Id. at p. 122.) The City conditionally agreed to sell the property
to a private developer and provide it with a $1 million loan. (Id. at p. 124.)
Approximately $475,000 of the loan was slated for predevelopment costs, including
environmental reports and governmental permits and fees, with the remaining
“improvement portion” of the loan designated for the construction phase. (Id. at pp. 124–
125.) Relocation of the existing tenants and all actions necessary to comply with CEQA
were to occur before the City would convey the property to the developer and the
construction phase would begin. The draft agreement stated that its purpose was to
“ ‘caus[e] the reuse and redevelopment of [the property] with affordable housing for
seniors and a neighborhood pocket park, while retaining the historic integrity of the
Site.’ ” (Id. at p. 124.)
The draft agreement also contained conditions precedent to the City’s obligation to
convey the property and disburse the “improvement portion” of the loan, including the
satisfaction of all CEQA requirements “ ‘as reasonably determined by the City
Manager.’ ” (Save Tara, supra, 45 Cal.4th at p. 124.) The City Manager, however, could
waive these conditions. (Ibid.)4
The Supreme Court determined that the City’s draft agreement and execution of
the revised agreement constituted project approval under CEQA. (Save Tara, supra,
45 Cal.4th at p. 140.) The Court applied and elaborated upon the “general principle that
before conducting CEQA review, agencies must not ‘take any action’ that significantly
furthers a project ‘in a manner that forecloses alternatives or mitigation measures that
4 After project opponents asserted the City violated CEQA by failing to prepare an EIR before approving the loan and draft agreement, the City and developer executed a revised agreement that removed the City Manager’s ability to waive CEQA compliance and stated the City retained discretion over “ ‘any actions necessary to comply with CEQA’ ” and had no duty to approve any CEQA documents. (Save Tara, supra, 45 Cal.4th at pp. 124, 126.) Although the revised agreement eliminated this waiver provision, the Court noted that the City’s “apprehensive citizenry” would appropriately be “skeptical as to whether the city council would give adverse impacts disclosed in the EIR full consideration before finally approving the project.” (Save Tara, supra, 45 Cal.4th at p. 141.)
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would ordinarily be part of CEQA review of that public project.’ ” (Id. at p. 138) It
explained that the critical question based upon all the surrounding circumstances is
“whether, as a practical matter, the agency has committed itself to the project as a whole
or to any particular features, so as to effectively preclude any alternatives or mitigation
measures, that CEQA would otherwise require to be considered, including the alternative
of not going forward with the project.” (Id. at p. 139.)
In reaching its decision, the Supreme Court relied on the stated purposes in both
agreements “to ‘cause the reuse and redevelopment’ of [the property] in accordance with
the project.” Similarly, a City Council resolution approving the draft agreement set forth
the City’s intent to “ ‘facilitate development of the project,’ ” while permitting public
comment only on “ ‘ the design of project elements.’ ” (Save Tara, supra, 45 Cal.4th at
p. 140, italics added.) It was also significant that the developer was not required to repay
the nearly half-million-dollar predevelopment portion of the loan unless the City gave the
project final approval. (Ibid.) Thus, if the City did not approve the Project, it would
“waste[ ]” $475,000, which the Court found to be “not a trivial outlay” “[f]or a relatively
small government like City’s.” (Id. at p. 140.)
In addition, while both versions of the agreement conditioned conveyance of the
property and disbursement of the second half of the loan on CEQA compliance, the draft
agreement “significantly circumscribed” the City’s authority to enforce CEQA
requirements, as it allowed the City Manager to “reasonably determine[ ]” whether
CEQA requirements had been met, “language that could have left City open to charges it
acted unreasonably, had it ultimately declined to certify the EIR or make any needed
CEQA findings.” (Save Tara, supra, 45 Cal.4th at p. 140.) The draft agreement also
omitted any provision allowing appeal of the Manager’s decision to the City Council,
which improperly delegated the Council’s responsibility under CEQA. (Id. at p. 141.)
Circumstances surrounding approval of the agreements further confirmed the
City’s commitment to and improper approval of the development project before CEQA
compliance. Officials publicly announced that a $4.2 million grant “will be used” for the
project. (Save Tara, supra, 45 Cal.4th at p. 141.) The City Council stated at a meeting
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that alternatives to the project had already been ruled out. (Id. at pp. 141–142.) The
mayor also announced that the City “ ‘must continue on a path that fulfills this
obligation’ to redevelop the property.” (Id. at p. 141.) Further, tenant relocation before
EIR certification and final project approval constituted a “significant step in a
redevelopment project’s progress, and one that is likely to be irreversible.” (Id. at
p. 142.)
Although Save Tara involved an agreement between a public agency and a
developer regarding a private project, the principles articulated therein apply equally to
public projects such as the change in use project here. (See City of Irvine v. County of
Orange (2013) 221 Cal.App.4th 846, 859.)
b. Application of Save Tara to the District’s Actions
The trial court found that the District approved the Project as of November 2016
before evaluating the Project’s environmental impacts. This was error.
Based on our independent review of the record, we find that District did not
approve the Project on November 29, 2016. Although the November 29, 2016 memo
from the County’s Chief of Planning and Acquisition states that the project was
“approved,” that term was used in a section entitled “Recommendations Summary,”
within a document entitled “Update Regarding Pending Proposed Projects in the Alto
Bowl Open Space Preserve.” (Italics added.) The same memo notes that the Project was
subject to several contingencies, including additional design details, resources surveys,
site biological assessment, and, critically, environmental compliance and permitting. The
District also indicated that “[a] complete bio assessment of the flora and fauna of the site”
and “[p]lant surveys” would be required to assess impacts to natural resources. The
District thus expressly conditioned the Project’s approval upon CEQA review.
The public statements in the November 29, 2016 memo stand in sharp contrast to
those in Save Tara. The statements in Save Tara included the City Manager’s comments
that the City “ ‘has approved the sale of the property’ ” and “ ‘will commit’ up to $1
million in financial aid”; the mayor's announcement that a HUD grant “ ‘will be used’ ”
for the project; statements in the City’s newsletter that the City “ ‘will redevelop the
13
property’ ”; and the City’s housing manager’s statement at a City Council meeting that
“while there were ‘options to consider’ regarding project design, options for other uses of
the property (as a park, library, or cultural center) had already been ruled out.” (Save
Tara, supra, 45 Cal.4th at pp. 141–142.) By contrast, the statements in the memo
establish that the District at most prioritized and recommended the Project for
consideration as an option in the District’s budget, consistent with steps 3 and 4 of the
six-step process. (Id. at p. 142, fn. 13 [“expressions of enthusiasm for a project by an
agency’s staff members should not be confused with official approval”; such statements
in isolation “could rarely, if ever, be deemed approvals for CEQA purposes”].)
E-mails between District staff and members of the public also weigh against
finding that the District had committed to a “definite course of action” regarding the
Project. For example, a staff member wrote to an individual, “You are aware that Parks
has recommended the opening of the Bob Middagh trail to bikes following a thoughtful
process and a carefully designed trail realignment in spots to mitigate possible erosion
from its current configuration and to purposely slow down all users.” (Italics added.) In
response to another person’s comment that “[i]t looks like the project itself has now been
approved,” the District stated, “[t]his is essentially correct,” but made clear that “we have
not completed CEQA. . . . We will be working to complete the CEQA review of both the
Bob Middagh project and Gasline project this winter, after the trail logs (technical plots
of the new trail segments) are completed.” In another e-mail, although a District staff
member wrote that the staff “made the decision to improve and open the Bob Middagh
Trail to bicycle use,” he explained that “move forward means continue with the next
steps including design, budgeting, environmental compliance and permitting and
implementation.”
In other e-mails, the District wrote that it remained open to continued dialogue
with the public, including as to environmental review: “[T]here are opportunities to
engage with us around the project including providing input related to project design,
public meetings around our budget process and possible engagement around
14
environmental review.” The District also explained to one individual that the Project
required further approval from its board.
Further, unlike in Save Tara, the District had not committed to or expended any
financial resources for the Project in November 2016. Thus, there was no financial
momentum indicating “a strong incentive to ignore environmental concerns.” (Save
Tara, supra, 45 Cal.4th at p. 135; see also Laurel Heights I, supra, 47 Cal.3d at p. 395.)
Moreover, because the District had not yet considered whether to include the Project in
the District’s budget, the Project had only survived step 3 of the RTMP’s evaluation
process. In contrast to the irretrievable capital outlay and likely “irreversible” measures
taken by the City in Save Tara, at p. 127, the RTMP and the District’s statements
demonstrate both that the Project could have been rejected during the remaining
evaluation process, and that environmental review (with public comment) would be part
of the District’s continued evaluation.
We thus conclude that the court erred in finding that the District violated CEQA
by approving the Project in November 2016 before evaluating its environmental effects.
3. Applicability of Sections 21166 and 21094
The parties also disagree on whether section 21166 or 21094 applies to the
District’s assessment of the Project, and therefore whether a further EIR was required.
a. Overview
CVP argues that the RTMP EIR was not sufficiently comprehensive to serve as
the EIR for the Project because the RTMP EIR did not consider the Project’s potential
effects on hikers and equestrians. CVP argues that the RTMP EIR qualifies only as the
first step of “tiered” environmental review pursuant to section 21094, and that the District
must prepare a new EIR for the Project. 5
5 “Tiering” means “the coverage of general matters and environmental effects in an environmental impact report prepared for a policy, plan, program or ordinance followed by narrower or site-specific environmental impact reports which incorporate by reference the discussion in any prior environmental impact report and which concentrate on the environmental effects which (a) are capable of being mitigated, or (b) were not analyzed as significant effects on the environment in the prior environmental impact
15
By contrast, the District argues that the RTMP EIR adequately assessed the
Project’s potential environmental impacts. Thus, the District contends its evaluation of
the Project is governed by section 21166, which prohibits agencies from requiring
subsequent or supplemental review for a later activity after certifying an initial EIR,
unless the later activity would create significant new or substantially increased
environmental impacts than those evaluated in the original EIR. The District maintains
that it found that no new significant impacts that would require major revisions to the
RTMP EIR. The District therefore concludes it was not required to prepare an initial
study or an additional EIR for the Project.
We agree with the District. We review for substantial evidence an agency’s initial
determination to proceed under section 21166 and Guidelines section 15162. (See
Friends of the College of San Mateo Gardens v. San Mateo Community College Dist.
(2016) 1 Cal.5th 937, 952–953 (San Mateo Gardens).) When an agency is justified in
proceeding thereunder, we also review for substantial evidence an agency’s subsequent
determination that a project is consistent with a prior EIR and presents no significant,
unstudied adverse effect. (Mission Bay Alliance v. Office of Community Investment &
Infrastructure (2016) 6 Cal.App.5th 160, 174.) Under this standard, a court does not
“ ‘ “ ‘weigh conflicting evidence and determine who has the better argument.’ ” ’ ”
(Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal
Transportation Agency (2016) 6 Cal.App.5th 1237, 1248 (T-Line Loop).) “As a result,
‘occasions when a court finds no substantial evidence to support an agency’s decision to
proceed under CEQA’s subsequent review provisions will be rare, and rightly so; “a court
should tread with extraordinary care” before reversing an agency’s determination.’ ”
(Ibid.)
As we explain below, substantial evidence supports the District’s determination
that the RTMP EIR was sufficiently comprehensive to cover the Project and, therefore,
the District permissibly proceeded under section 21166. Substantial evidence also
report.” (§ 21068.5; Guidelines, § 15152, subd. (a).)
16
supports the District’s finding that the Project would not require “major revisions” to its
RTMP EIR, such that no subsequent or supplemental EIR was necessary. Accordingly,
the trial court erred in finding that the District was required to conduct further
environmental review for the Project.
b. Legal Framework
CEQA provides for streamlined environmental review in a number of different
situations. (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act
(Cont.Ed.Bar 2017) CEQA Streamlining and Special EIR Processes, § 10:1.) One such
situation is a “program EIR.” “A program EIR is an EIR which may be prepared on a
series of actions that can be characterized as one large project and are related either: [¶]
(1) Geographically, [or] [¶] (2) As logical parts in the chain of contemplated actions.”
(Guidelines, § 15168, subd. (a); see, e.g., Center for Biological Diversity v. Department
of Fish & Wildlife (2015) 234 Cal.App.4th 214, 233 (Center for Biological Diversity).)
Here, the RTMP EIR addresses future road and trail projects within the Alto Bowl
Preserve, the geographical area where the Project is located. The RTMP EIR also
contemplates improvements to trails in the Alto Bowl Preserve, as well as changes of use
including adding mountain bike use. Thus, we consider the RTMP EIR a program EIR.
Using a program EIR avoids the need to prepare multiple EIRs for the program
and its activities if the program EIR is comprehensive, as explained by the District’s
amici curiae. (Center for Biological Diversity, supra, 234 Cal.App.4th at p. 233.)
“When the environmental effects of a large or complex project have been reviewed in a
program EIR, ‘[s]ubsequent activities in the program must be examined in the light of the
program EIR to determine whether an additional environmental document must be
prepared.’ ” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors
(2010) 48 Cal.4th 32, 55 (Green Foothills); Guidelines, § 15168, subd. (c).)
If the later activity would have effects not examined in the program EIR, an
agency must prepare an initial study, leading to another EIR. (Guidelines, § 15168, subd.
(c)(1).) However, “[i]f the agency finds that pursuant to [s]ection 15162, no subsequent
EIR would be required, the agency can approve the activity as being within the scope of
17
the project covered by the program EIR, and no new environmental document would be
required.” (Id., § 15168, subd. (c)(2) & (c)(5) [noting that many subsequent activities
may be found within the scope of a comprehensive program EIR, such that “no further
environmental documents would be required”].)
Section 21166, upon which section 15162 of the Guidelines is based, provides in
pertinent part: “[N]o subsequent or supplemental environmental impact report shall be
required by the lead agency . . . , unless one or more of the following events occurs: [¶]
(a) Substantial changes are proposed in the project which will require major revisions of
the environmental impact report. [¶] (b) Substantial changes occur with respect to the
circumstances under which the project is being undertaken which will require major
revisions in the environmental impact report. [¶] (c) New information, which was not
known and could not have been known at the time the environmental impact report was
certified as complete, becomes available.”6
“[S]ection 21166 comes into play precisely because in-depth review has already
occurred, the time for challenging the sufficiency of the original EIR has long since
expired [citation] and the question is whether circumstances have changed enough to
justify repeating a substantial portion of the process.” (Green Foothills, supra,
48 Cal.4th at p. 55.) “[W]e apply a more deferential test to an agency’s decision not to
prepare a further EIR under section 21166” once an EIR has been certified for an overall
program. (T-Line Loop, supra, 6 Cal.App.5th at p. 1247)
By contrast, section 21094 addresses the preparation of a “tiered environmental
impact report” for a “later project” that arises after “a prior environmental impact report
has been prepared and certified for a program, plan, policy, or ordinance.” (§ 21094,
subd. (a).) Unlike section 21166, section 21094 mandates an agency to prepare an EIR
on a later project that “may have a significant effect on the environment.” (Sierra Club v.
6 A “supplement” to an EIR is used instead of a “subsequent” EIR if a subsequent EIR is necessary and “[o]nly minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation.” (Guidelines, § 15163, subd. (a)(2).) “The supplement to the EIR need contain only the information necessary to make the previous EIR adequate for the project as revised.” (Id., subd. (b).)
18
County of Sonoma (1992) 6 Cal.App.4th 1307, 1319, italics omitted.) Thus, under
section 21094, the standard of review is whether substantial evidence supports a fair
argument that a later project may cause significant adverse effects not examined in a prior
EIR. (Id. at p. 1313.) Section 21094 only applies, however, if an agency determines that
the later project “(1) is consistent with the program . . . for which an environmental
impact report has been prepared and certified, [¶] (2) [is c]onsistent with applicable local
land use plans and zoning[,]. . . . [and] [¶] (3) [is n]ot subject to Section 21166.”
(§ 21094, subd. (b), italics added.) Thus, by its own terms, section 21094 does not apply
to later projects that are subject to 21166.
Because the Project is a “later project” as that term is used in section 21094, the
question remains whether the Project is “subject to section 21166.” (§ 21094, subd. (b).)
We note that, while the RTMP EIR calls itself the “Road and Trail Management Plan
Tiered Program Environmental Impact Report,” the “tiered” label does not automatically
trigger application of section 21094’s tiering provisions. (Citizens for a Sustainable
Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1051
[“ ‘It is the substance, rather than the form, of [the environmental] document which
determines its nature and validity’ ”].)7 We do not treat the RTMP EIR as a tiered EIR
because it does not purport to “defer analysis of certain details of later phases of long-
term linked or complex projects until those phases are up for approval.” (See Vineyard
Area Citizens, supra, 40 Cal.4th at p. 431; see also Treasure Island, at p. 1050, fn. 6,
italics added [“We recognize that when an agency attempts to tier its environmental
review for a materially different project onto a prior program EIR,” section 21094
applies].) We discuss below whether substantial evidence supports the District’s decision
to proceed under section 21166 rather than section 21094.
7 It appears the District’s “tiered” labeling refers to its attempt to tier the RTMP to the earlier, broader Countywide Plan. However, the only issue before us concerns the relationship between the RTMP and later projects.
19
4. The District’s Decision to Proceed under Section 21166
Section 21166 governs a later project that is “either the same as or within the
scope” of a program described in an earlier EIR. (Latinos Unidos de Napa v. City of
Napa (2013) 221 Cal.App.4th 192, 202–203; see also Guidelines, § 15168, subd. (c)(2).)
A decision to proceed under section 21166 and section 15162 of the Guidelines “rest[s]
on a determination—whether implicit or explicit—that the original environmental
document retains some informational value.” (San Mateo Gardens, supra, 1 Cal.5th at
p. 951.)
Whether a project falls within the scope of a prior EIR “typically involves two
subsidiary issues: whether the proposed project is consistent with the approved program;
and whether the program EIR fully discussed the site-specific impacts of the later
project.” (See Remy, et al., Guide to CEQA 11th Ed., pp. 650–651.) For example, in T-
Line Loop, a municipal transportation agency properly proceeded under section 21166
after it found that a project to add 900 feet of rail to complete a loop on a light rail line
was analyzed in its prior EIR and was consistent with the city’s ordinances, regulations,
plans and policies and regional transportation development lines. (T-Line Loop, supra,
6 Cal.App.5th at pp. 1251, 1254, fn. 17.) By contrast, in Sierra Club, section 21166 did
not control, because a proposed mining project was unquestionably inconsistent with the
broader program where the applicant sought to change the permissible uses for a parcel of
land that had been designated for agricultural and groundwater recharge uses only.
(Sierra Club, supra, 6 Cal.App.4th at pp. 1320–1321.)
a. The Project is consistent with the RTMP
The District argues that substantial evidence supports its finding that the Project is
consistent with the RTMP and RTMP EIR because both contemplate changes in trail use,
including allowing bicycle use. CVP does not dispute this. By arguing that section
21094 applies, CVP effectively concedes that the Project is consistent with the RTMP
EIR, as section 21094 applies only if the agency has determined that a later project is
“[c]onsistent with the program, plan, policy, or ordinance for which an [EIR] has been
20
prepared.” (§ 21094, subd. (b)(2).) We agree with the District that the Project is
consistent with the program evaluated in the RTMP EIR.
The RTMP expressly contemplates future road and trail projects that involve
changes in use. And one of the RTMP’s stated purposes is to “[i]mprove the visitor
experience and visitor safety for all users, including hikers, mountain bikers, and
equestrians.” (Italics added.) In addition, the Project implements the RTMP’s policies
and goals: As outlined in the District’s “Road and Trail Project Approval” memo, “the
project would improve access and provide a range of desired user experiences within the
Alto Bowl Preserve by improving the trail conditions, reducing slopes, and improving
drainage for year-round access,” consistent with RTMP Policy No. 1. The memo also
states that, consistent with RTMP Policy No. 3, the Project “would minimize impacts to
sensitive resources by designing the alignment to sensitive species, improving drainage[;]
reduce sedimentation to the local waterways[;] and maintain habitat for wildlife.” The
memo also notes that “the project would enhance road and trail connectivity by providing
a link between the communities of Corte Madera and Mill Valley,” in accordance with
Policy No. 5.
Accordingly, substantial evidence supports the District’s determination that the
Project is consistent with the RTMP EIR.
b. The RTMP EIR adequately assesses the Project’s potential environmental
impacts
CVP argues that the RTMP EIR neither considered adding mountain bike use on
the Middagh Trail nor addressed the Project’s potentially adverse effects on existing
users. Specifically, CVP maintains that the District failed to consider the risk of
increased accidents between bikers and hikers and equestrians; users’ fear of such risk;
noise from adding bikes; disruption of the “experience of current users enjoying the quiet
setting of the Middagh Trail”; and aesthetic impacts related to erosion and trail rutting,
the loss of visible bird and wildlife, and “groups of speeding bikers now appearing on the
trail.” We disagree.
21
CEQA requires an EIR for project “that may have a significant effect on the
environment.” (§ 21100.) “Environment” is defined as the physical conditions that exist
within an area affected by a proposed project, including land, air, water, minerals, flora
and fauna, noise, and objects of historic or aesthetic significance. (§ 21060.5; Guidelines,
§ 15360.) Appendix G of the Guidelines provides a sample list of factors when
considering if a project may potentially have a significant impact on the environment.
(Guidelines, Appen. G; see Oakland Heritage Alliance v. City of Oakland (2011)
195 Cal.App.4th 884, 896 & fn. 5.) These factors include aesthetics, biological
resources, air quality, geology, water quality, noise, and recreation. (See Guidelines,
Appen. G.)
A project’s economic and social effects are not treated as effects on the
environment. (Guidelines, § 15131, subd. (a).) Thus, economic and social effects that
are not related to physical impacts need not be evaluated in an EIR. (Ibid.) While
economic and social effects ordinarily need not be discussed in an EIR, physical changes
to the environment caused by a project’s economic or social effects are secondary
impacts that must be included in an EIR’s impact analysis if they are significant.
(Guidelines, § 15064, subd. (e), italics added.) In addition, a project’s economic and
social effects may be taken into account to assist in determining the significance of
physical changes caused by the project. (Guidelines, § 15131, subd. (b).) The focus of
CEQA review, then, changes to the “physical conditions” in an area. (§ 21060.5;
Guidelines, § 15360.)
Of the impacts CVP claims the District omitted from the RTMP EIR, CEQA
requires us to consider only the effects on wildlife, biological resources, aesthetics, and
noise, as they are physical conditions within the Project area. We discuss each in turn.
i. Wildlife and biological resources
The RTMP EIR addressed the Project’s potential impact on wildlife and biological
resources. The RTMP EIR incorporates by reference the District’s responses to public
concerns concerning proposed bicycle use that were included in the Draft EIR. Chapter 6
of the Draft EIR contains an analysis of specific studies concerning the potential impacts
22
of trail use, including mountain biking. Citing one study, the District noted that
“mountain biking did not appear to have significantly different impacts on vegetation or
soils than other forms of use.” Citing another study, the District indicated that “[t]he
results of one study indicate that there is little difference in wildlife response to hikers vs.
mountain bikers.” That study also “found no wildlife management related reason for
managing mountain biking any differently than hiking.” However, to protect the
surrounding wildlife, the Draft EIR sets forth a policy prohibiting bicycle use off-trail and
on nonsystem roads and trails, defined as roads and trails that are not located within
preserves and not maintained by the District. The RTMP EIR, which incorporates the
Draft EIR, thus analyzed the potential impact of bicycles on natural resources.
ii. Aesthetics
The RTMP EIR also adequately addresses the impacts biking would pose on the
aesthetics of the District’s open space preserves. The RTMP EIR refers to Chapter 14 of
the Draft EIR, which notes that “modifications to the visual environment due to the
construction of new or rerouted trails would be small in scale and not very visually
intrusive.” The Draft EIR also states that, “[e]ven if the new road or trail is visible, these
unpaved features do not block views of the landscape and are visually consistent with the
open space nature of the preserves.” Further, any replacement of existing trail alignments
with new trail alignments under the Project would have the same width and approximate
length of existing trails. Thus, the District reasonably concluded that designating the
Middagh Trail for bicycle use would have no impact on the visual environment and,
consequently, that no mitigation measures would be necessary.
iii. Erosion and trail damage
In addition, the RTMP EIR addresses potential impacts from bicycle use on
erosion of the District’s open space preserves. As noted above, in the Draft EIR, one
study referenced in the Draft EIR determined that “mountain biking did not appear to
have significantly different impacts on vegetation or soils than other forms of use.”
Another study concluded that “horseback riding may have a greater potential for impacts
than other trail uses due to pollution from horse waste and the spread of invasive
23
species.” One study referenced in the RTMP EIR that “assess[ed] mountain bike impacts
in the southwestern U.S. found that impacts to designated mountain bike trails, such as
user-increased trail width, were similar or less than impacts to hiking trails and less than
impacts to equestrian or off-highway vehicle trails.” As noted above, another study
concluded that there was “no wildlife management related reason for managing mountain
biking any differently than hiking.” The District also cited to a National Park Service
study evaluating sources of trail degradation by erosion and other factors. The study
showed that hikers and bikers had the lowest impacts on erosion, while horses and ATVs
had the highest impacts. And as noted above, the District’s policy in the RTMP EIR
prohibits bicycle use off-trail and on nonsystem roads and trails to help minimize water
quality impacts, such as erosion from off-trail mountain bike riding.
Contrary to CVP’s assertions, the record reflects that the District did consider the
potential impact of bicycle use on erosion and trail damage.
iv. Noise
While the District acknowledged in the Draft EIR that changes in use could
indirectly increase noise levels in specific locations within a preserve, it found that
“[i]mplementation of the RTMP would not substantially increase overall visitation to
preserves.” The District also found that “[o]ngoing or periodic, large-scale recreational
activities could provide an unlikely, though potential, source of noise if they occurred
adjacent to residences.” The District acknowledged that “[y]elling by recreational users
was identified as annoying in comments received” by the District. However, the District
stated it relied on current noise ordinances, including Section 02.02 of the Marin County
Code which specifically addresses noise within the District’s open space preserves. The
ordinance prohibits any “loud, unnecessary or unusual noise which disturbs the peace and
quiet within any area within the district or which causes discomfort or annoyance to any
reasonable person of normal sensitivity utilizing any facility of the district.” (Marin
County Code, § 02.02.100.)
The District thus considered the potential impact of noise levels from bicycle use,
and its reliance on currently applicable noise ordinances was reasonable.
24
v. “User conflict” effects CVP alleges were excluded
The remaining effects from bicycle use that CVP alleges were omitted from the
RTMP EIR are purely social effects that do not require CEQA analysis.
We reject CVP’s argument that the District was required to evaluate the increased
risk of bike accidents with other trail users. In support of its assertion, CVP relies on
Bicycle Trails Council of Marin v. Babbitt (N.D. Cal. 1994 No. C-93-0009 EFL) WL
508892 (Babbitt ), affd. (9th Cir. 1996) 82 F.3d 1445. There, bicycle advocates
challenged the National Park Service’s (NPS) trail plan that included restricting or
prohibiting bicycle access on certain trails. (Babbitt, at * 20.) Proponents submitted
letters recounting stories of collisions or near misses with bikers on trails. (Ibid.) Relying
on those letters and a county study containing statistics of accidents, the district court
upheld the NPS’s decision to approve its rules. (Id. at * 19.) CVP cites to these letters in
support of its position that similar accidents between bikers and current users on the
Middagh Trail are foreseeable effects of the Project. (Id. at * 20.) However, CVP’s
reliance on this portion of Babbitt is misplaced, as the district court applied federal
administrative law under a far less stringent, rational basis standard of review for
upholding the NPS’s adoption of its rules. (Ibid.) The anecdotal evidence presented in
Babbitt thus does not govern or illuminate our analysis.
Moreover, CVP ignores the aspect of Babbitt that has persuasive value–its analysis
of the National Environmental Policy Act (NEPA). (See Western Placer Citizens for an
Agricultural & Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890, 902–
03 [NEPA cases are persuasive authority in California].) The opponents in Babbitt
argued that the NPS violated NEPA by failing to prepare an environmental impact
statement evaluating the increased the risk of accidents between bicyclists and motor
vehicles resulting from the trail closure. (Babbitt, supra, WL 508892 at *20.) The
district court disagreed, concluding that “[a]n increased risk of accident is not an impact
to the physical environment.” (Id. at * 21.) The court explained that a “risk is, by
definition, unrealized in the physical world.” (Ibid.) Thus, it concluded the opponents
failed to show that the trail plan had any significant impact on the physical environment
25
such that NPS was required to prepare an environment impact statement. (Ibid.) We are
likewise persuaded that the social effects identified by CVP are not tied to physical
conditions that require CEQA review.
CVP’s complaints that current users will experience less recreational enjoyment
due to “groups of speeding bikers,” noise, or fear from bike accidents are similarly not
concerns tied to the physical environment. Rather, they concern the subjective and
psychological feelings of trail users towards other users. “CEQA does not require an
analysis of subjective psychological feelings or social impacts.” (Preserve Poway v. City
of Poway (2016) 245 Cal.App.4th 560, 579 [the psychological and social impact on the
community’s character due to closure of a horse boarding facility and construction of
homes was not a significant environmental effect requiring a new EIR]; accord Chico
Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839 [no
CEQA violation where EIR did not analyze a retail store expansion project’s likely
elimination of “close and convenient shopping” because such impact was psychological
and social and had no significant effect on the environment].) Similar to a project
allowing off-leash dog use on a state beach in Lighthouse Field Beach Rescue v. City of
Santa Cruz (2005) 131 Cal.App.4th 1170, the effects of which CVP complains are purely
social: “While evidence in the record suggests that recreational users vigorously disagree
regarding the propriety of the dogs, leashed and unleashed, at the State Beach and that the
presence of dogs may decrease the enjoyment of some visitors to the state park or deter
others from visiting at all, these effects are essentially social.” (Id. at p. 1206.) As
appropriately noted by the District’s amici curiae, CEQA does not require analysis of
“the psychological or social impacts stemming solely from the prospect of sharing the
trail with other users.” (Guidelines, § 15131, subd. (a).) The trial court erred in
concluding otherwise.
We note that, although not required, the District did address public concerns of
user displacement and potential conflict with bikes. For example, the Draft EIR includes
a policy that “will permit bicycling and saddle animals on trails designated and signed for
their use.” Policy 4 prohibits off-road and off-trail bicycle use. Policy 13 prohibits
26
biking activities that exceed the established speed limit or are reckless or pose a danger to
the rider or other trail users. Policy 14 mandates that mountain bikers yield to both hikers
and equestrians and announce their presence by using a bell or calling out when
overtaking other trail users. Policy 17 aims to prevent displacement of equestrians and
pedestrians by mountain bikers and considers designating trails as single-use or priority-
use for user groups historically using those trails. CVP overlooks the District’s adoption
of these policies.
In sum, because the Project is consistent with the RTMP EIR and because the
RTMP EIR adequately discussed the environmental impacts of the Project, the District
properly proceeded under section 21166 and Guidelines section 15162.
5. The District’s Decision Not to Prepare Another EIR
Having determined that substantial evidence supports the District’s decision to
proceed under CEQA’s subsequent review provisions (§ 21166; Guidelines, § 15162),
“the next—and critical—step is to determine whether the agency has properly determined
how to comply with its obligations under those provisions.” (San Mateo Gardens, supra,
1 Cal.5th at p. 953.)8 “[U]nder section 21166 we apply the deferential substantial
evidence test in reviewing the determination that no further CEQA review was required.”
(T-Line Loop, supra, 6 Cal.App.5th at p. 1251.) CVP has the burden to show a lack of
substantial evidence supporting the decision not to prepare a further EIR. (Id. at p. 1252.)
CVP cannot meet its burden. CVP contends that, even if section 21166 applies,
“the District still abused its discretion in failing to conduct further CEQA review on the
substantial use change proposed by the Project.” We disagree. CVP’s insistence upon a
8 CEQA does not require any specific procedure for agencies to follow in determining whether a further EIR is required. (See T-Line Loop, supra, 6 Cal.App.5th at p. 1256.) The Guidelines provide that a brief explanation of the findings should be included in an addendum or elsewhere in the record. (Guidelines, § 15164, subd. (e).) “The method used to determine whether a subsequent or supplemental EIR is required is not important. . . . Any procedure showing that the agency considered the relevant issues and the basis for its decision is sufficient.” (Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2017) Any Procedure That Results in Fact-Based Determination Is Sufficient, § 19.45.)
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further EIR rests again on the flawed assertion that the District was required to consider
social effects of the Project in the EIR. As explained above, those social effects are not
reviewable under CEQA.
Having reviewed the record, we find that substantial evidence supports the
District’s finding that the Project raises no new significant impacts that would require
major revisions to the RTMP EIR. The District properly relies on its 196-page
Consistency Assessment, which “compare[s] environmental impacts associated with the
proposed project to those identified in the 2014 RTMP EIR.” (§ 21166; Guidelines,
§§ 15162, 15168, subd. (c)(2).) The Consistency Assessment analyzes whether the
RTMP EIR and the Project have similar impacts and mitigating measures with respect to
several environmental factors contained in the “Environmental Checklist Form” in
Appendix G of the Guidelines. That checklist may be used in determining whether a
project may have a significant effect on the environment and whether it is necessary to
prepare a negative declaration or an EIR. (See Oakland Heritage Alliance v. City of
Oakland, supra, 195 Cal.App.4th at p. 896 & fn. 5.) These environmental factors include
aesthetics, biological resources, cultural resources, mineral resources, noise, geology or
soils, and recreation. (Guidelines, Appen. G.)
Specifically, the Consistency Assessment tracks the language of section 21166 and
section 15162 of the Guidelines and asks the following questions within the context of
each of those environmental factors: (1) “Do Proposed Changes Involve New or
Substantially More Severe Significant Impacts?”; (2) “Do Any New Circumstances
Involve New or Substantially More Severe Impacts?”; (3) “[Is There ]Any New
Information of Substantial Importance Requiring New Analysis or Verification?”; and (4)
“Do Previously Adopted [RTMP EIR] Policies and BMPs [best management practices]
Address/Resolve impacts?”9 The District summarizes its responses to these questions in
9 Section 21166 and Guidelines section 15162 provide that no subsequent EIR shall be prepared for a later project unless the agency finds that: “(1) Substantial changes are proposed in the project which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; [¶] (2)
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a checklist, followed by paragraphs consisting of background information, relevant
photographs, the Project’s relationship to the RTMP, applicable policies and best
management practices, and the District’s conclusion.
For example, under “Aesthetics,” the District addressed whether the Project would
(a) have a substantial adverse effect on a scenic vista; (b) substantially damage scenic
resources such as trees, rocks, or historic buildings; (c) substantially degrade the existing
visual character or quality of the site; or (d) create a new source of substantial light or
glare that would adversely affect day or nighttime views in the area.
Under category (a) regarding scenic vistas, the District explains in the
“Background” section that “scenic vista” means “an area that is designated, signed, and
accessible to the public for purposes of viewing and sightseeing.” The District then
describes existing resources within the Alto Bowl Preserve, including grasslands, mixed
oak woodlands, and some riparian vegetation. It also attaches photographs of pertinent
roads and trails in the Alto Bowl Preserve.
Under “Project Impacts,” the District states that “[d]esignating the Bob Middagh
Trail for bicycle use would have no impact on the visual environment.” It dedicates
nearly one full page to explaining that trail improvements, reroutes, and trail
decommissioning involve small modifications to the visual environment. The District
also found that tree removals would be minor, and that visual change would not be
detectable. Next, under “Relationship to the RTMP,” the District cites to the RTMP
Substantial changes occur with respect to the circumstances under which the project is undertaken which will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or [¶] (3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the negative declaration was adopted” shows new significant effects either “not discussed” or “substantially more severe” than shown in the previous EIR, or that mitigation measures or alternatives are “considerably different.” (Guidelines, § 15162, subd. (a); § 21166, subd. (a)–(c).)
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where it similarly concluded that new or rerouted trail construction would present small
modifications to the visual environment and would not be very visually intrusive.
Finally, under “Conclusion,” the District states that “the proposed project would
have minor short-term visual impacts consistent with those anticipated under the RTMP
EIR (less than significant) and therefore the proposed project would not result in new
significant or substantially more severe impacts different from those evaluated in the
RTMP EIR.”
The District repeats this same analysis for every environmental factor listed in
Appendix G of the Guidelines. (Guidelines, Appen. G.) The District concludes that the
Project would neither pose new or more significant effects nor reveal new or different
mitigation measures than those identified in the RTMP EIR with respect to aesthetics;
agricultural and forestry resources; air quality; biological resources; cultural resources;
hydrology and air water quality; geology, soils, and seismicity; greenhouse gas
emissions; hazards; land use and planning; mineral resources; noise; population and
housing; recreation; public services; transportation and traffic; and utilities and service
systems. The District also found the Project will not result in new significant cumulative
impacts beyond those assessed in the RTMP EIR.
This record reflects an exhaustive study of all anticipated environmental impacts
and mitigation measures to lessen adverse impacts. Accordingly, substantial evidence
supports the District’s decision not to prepare an initial study or subsequent or
supplemental EIR. Indeed, the trial court appropriately recognized that the “Consistency
Assessment appears to be of exceptional quality,” and that “the District commendably
engaged in substantial public participation helping guide its decision.”
In sum, we conclude that the District properly declined to prepare an initial study
or separate EIR for the Project under section 21166. Accordingly, we reverse the trial
court’s finding that the District violated CEQA.
B. Mandamus Petition
Separate from its CEQA challenge, CVP also sought a writ of mandate under
Code of Civil Procedure section 1085. CVP argues, and the trial court agreed, that the
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District’s failure to “score” certain project proposals violated the District’s rules in the
RTMP relating to evaluation of proposals. We agree and affirm this aspect of the
judgment.
1. Legal Framework
In relevant part, Code of Civil Procedure section 1085, subdivision (a), permits a
court to issue a writ of mandate “to compel the performance of an act which the law
specially enjoins, as a duty resulting from an office, trust, or station, or to compel the
admission of a party to the use and enjoyment of a right or office to which the party is
entitled, and from which the party is unlawfully precluded by that . . . board, or person.”
When a court reviews an administrative decision pursuant to Code of Civil Procedure
section 1085, it merely asks whether the agency’s action was arbitrary, capricious, or
entirely lacking in evidentiary support, or whether the agency failed to follow the
procedure and give the notices the law requires.” (Kreeft v. City of Oakland (1998) 68
Cal.App.4th 46, 53.) In mandamus actions, we review an agency’s action de novo.
(California Oak Foundation v. Regents of University of California (2010) 188
Cal.App.4th 227, 247.)
2. The District’s Evaluation of Proposals
a. Steps 1 and 2 of the RTMP’s Evaluation Process
As explained above, the District’s RTMP sets forth a six-step decisionmaking
process for potential road and trail projects. As pertinent here, under step 1, the District
solicits project proposals and reviews them once per year. The District distinguishes
between the types of road and trail projects that are eligible to compete in the evaluation
process and those that are not. Projects that may compete include those that involve
“reconstruction,” which is defined as “[a]ctions taken to correct significant defects or to
repair, replace, or restore major components of a road or trail that have been destroyed,
damaged, or significantly deteriorated during the life of the facility.” Examples of
reconstruction include “resurfacing, replacing, or restoring the trail tread; installing new
water bars and other drainage features, stabilizing a severely eroded hillside, and
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replacing a bridge. Reopening a trail or road that has not been maintained is also
considered reconstruction.” Another type of project eligible to compete is “rerouting,”
which means “[a]ctions taken to change the alignment of a road or trail or any portion of
its length.”
Under step 2, the District screens submitted proposals for consistency with the
RTMP’s policies.
b. The District’s Scoring Results
After finalizing the RTMP EIR, the District received several proposals related to
the Middagh Trail from individuals and organizations. The proposals included the
Project in question here, as well as others advocating no project or no change in use on
the Middagh Trail. Pursuant to step 2, the District released its scoring results, which
were organized in two tables. One table included only those proposals scored by the
District. The second table listed proposals “that Were Not Scoreable or Did Not Show
Net Baseline Improvement.” Among the unscored proposals were the “[n]o [p]roject”
proposal, which advocated for no change of use on the Middagh Trail, and a proposal
from the Mill Valley Homeowners’ Association, which sought to update a heavily used
fire road, including widening, stabilizing, and constructing wide step switchbacks on
deeply eroded trails.
Other proposals were submitted but not included in either scoring results table.
These include a proposal from a Mr. and Mrs. Orth on behalf of the Meadowcrest
Homeowners association, advocating (among other things) the installation of horse-
friendly steps on the trails connecting Horse Hill Trail to the Middagh Trail and surfacing
the Alto Bowl Fire Road and Middagh Trail with crushed granite to encourage foot
traffic. Another proposal not included in the table was a proposal by Friends of Marin
Open Space to reroute a short section of the Horse Hill Trail and to remediate the trail by
continuing foot use only.
3. Analysis
The trial court did not err in granting the writ, as it correctly concluded that some
of the unscored proposals were in fact scoreable based on the RTMP’s own methodology
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for evaluating proposals. As an example, the trial court explained that the
“Orth/Meadowcrest Homeowners’ proposal” could be scored because it “advocated a
physical change to the trail bed by installing crushed granite.” This proposal satisfies the
definition of “reconstruction” and was therefore a project eligible for scoring under the
RTMP. The same is true with respect to the Mill Valley Homeowners’ Association’s
proposal, which involved rerouting. The Friends of Marin Open Space’s proposal
similarly advocated rerouting and was therefore scoreable.
By failing to score certain proposals that met its criteria for competing in the
evaluation process, the District failed to adhere to its own rules governing the assessment
of project proposals. This amounted to an abuse of its discretion. (See, e.g., Ellena v.
Dept. of Ins. (2014) 230 Cal.App.4th 198, 217 [employee who was denied disability
benefits alleged a mandamus claim against Department of Insurance for violating
mandatory duty under Insurance Code statutes to review a new group disability insurance
policy form for compliance with the law prior to approving the policy for distribution in
the state].) While a footnote in the District’s scoring sheet states that some of the
proposals were not scored because they either lacked “sufficient detail to be scored using
the criteria based tool” or “would [n]ever produce measurable changes to the evaluation
criteria, regardless of the level of detail provided,” it is unclear which of the proposals the
District ruled out based on these perceived deficiencies. Further, the omission of
scoreable proposals from the scoring sheet, such as the above-described proposals that
advocated reconstruction and rerouting, also demonstrates that the District’s evaluation of
proposals was arbitrary.
We conclude the trial court correctly granted CVP’s mandamus petition.
III. DISPOSITION
We reverse the portion of the judgment finding that the District violated CEQA.
We affirm the portion of the judgment granting CVP mandamus relief under Code of
Civil Procedure section 1085.
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_________________________BROWN, J.
WE CONCUR:
_________________________POLLAK, P. J.
_________________________STREETER, J.
Community Venture Partners v. Marin Open Space District (A154867)