HomeMy WebLinkAboutStaff Report 5.A 01/28/2019 Attachment 21RUTAN
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RUTAN & TUCKER, LLP
December 1, 2018
VTA F -MATT,
Honorable David Glass, Mayor
and Members of the Petaluma City Council
City of Petaluma
11 English Court
Petaluma, CA 94952
Re: Safeway Fuel Center Project;
December 3, 2018 City Council Agenda, Item 5.B
Dear Mayor Glass and Members of the City Council:
ATTACHMENT 21
Matthew D. Francois
Direct Dial: (650) 798-5669
E-mail: mfrancois@rutan.com
We write on behalf of our client, Safeway, Inc., regarding the proposed Safeway Fuel Center
Project (the "Project") at 335 S. Mc Dowell Boulevard (the "Property") in the City of Petaluma (the
"City"). The Project has been reviewed by the City for nearly six years and was the subject of
numerous studies prepared by expert consultants as well as a detailed mitigated negative declaration
("MND") prepared by M -Group, the City's contract Planning Staff. We write to urge you to adopt
the resolution denying the appeal and upholding the Planning Commission's approvals for the
Project (Attachment 1 to the Staff Report). As explained below, this is the only lawful action that
the City Council can take on the Project.'
1. The City has been processing the application for the Project, a permitted use,
for nearly six years.
Despite numerous attempts to be placed on an earlier agenda, a MND was finally circulated
for public review from April 5, 2018 to May 7, 2018, and the Project was heard by the Planning
Commission at a duly noticed meeting on May 8, 2018. On May 7, 2018 at 5:05 p.m., Planning
Staff emailed Safeway a letter and peer review of air quality by Environmental Science Associates
on behalf of Petaluma City Schools. Safeway and its expert consultants provided Staff with written
responses to these comments prior to the commencement of the Planning Commission hearing.
Notwithstanding Safeway's immediate reply to the School District's comments, the Planning
Commission opened the public hearing on May 8, 2018, but continued it to a date certain of June 26,
2018.
After duly considering additional public comments as well as supplemental materials
provided by Safeway, the Planning Commission approved the Project on June 26, 2018. On July 9,
1 Unless otherwise noted, emphasis in quotations is supplied and citations are omitted.
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December 1, 2018
Page 2
2018, an appeal of the Planning Commission's action was filed by JoAnn McEachin and sixteen
others ("Appellants"). Nowhere in the appeal form or attached letter do the Appellants claim that an
environmental impact report ("EIR") is needed. The City duly filed a Notice of Determination on
June 29, 2018, which was posted until July 30, 2018. No legal challenge to the MND was filed in
that timeframe.
City Staff initially considered scheduling the appeal for City Council consideration on
September 10, 2018. JoAnn McEachin informed Staff that she would be traveling in Europe on
that date and requested a September 17, 2018 hearing date instead. Staff accommodated Ms.
McEachin's request and scheduled the appeal for Monday, September 17, 2018. On Friday,
September 14, 2018 at 5:24 p.m., Patrick Soluri, on behalf of Joann McEachin and No Gas Here,2
submitted a letter contesting various aspects of the Project (including a peer review of traffic by
Larry Wymer & Associates) and raising for the first time the argument that an EIR was needed.
On Monday, September 17, 2018 at 11:17 a.m., Mr. Soluri submitted a report by Fox/Kapahi
contesting the Project health risk assessment ("HRA"). Also on Monday, September 17, 2018, at
2:57 p.m., the Bay Area Air Quality Management District ("BAAQMD") submitted a letter
regarding the HRA. As a result, the Mayor and City Council continued the appeal hearing to
October 15, 2018, and subsequently to December 3, 2018.
Safeway and its consultants responded in full to the above comment letters and peer
reviews, including by preparing an updated HRA using the American Meteorological Society
(AMS)/EPA Regulatory Model ("AERMOD" ).3 As with the original analysis, the supplemental
analysis prepared by Illingworth & Rodkin dated October 10, 2018, similarly concludes that the
Project meets all thresholds and will not result in any significant impacts related to health risk.
The supplemental analysis was promptly provided to BAAQMD and Mr. Soluri by City Staff.
In a November 8, 2018 letter, Daniel Breen, Deputy Air Pollution Control Officer with
BAAQMD accepted the updated analysis and states that BAAQMD has no further comments on
the Project's HRA, Conversely, Mr. Breen cited "several key concerns" with the Fox/Kapahi
study, including its inappropriate use of Santa Rosa meteorological data and inaccurate application
of emission factors and exposure assumptions. Despite multiple conversations with City Staff in
October 2018 wherein Staff expressed the City's strong desire to receive any additional comments
We are unaware of the full composition or make up of No Gas Here as it has not publicly disclosed its
membership list or funding sources. In an August 25, 2018 Statement of Organization filing for a Super
Political Action Committee with the Federal Election Committee, appellant Adriann Saslow listed herself
as Treasurer of No Gas Here. We are also unaware if Mr. Soluri represents the other sixteen persons who
comprise the Appellants.
3 Contrary to the claim in the Staff Report, the model originally used by the consultant ("ISCST3")
continues to be a U.S. EPA -approved and BAAQMD recommended model. BAAQMD itself used the
ISCST3 model when performing a January 2018 health risk assessment for the Valero Gas Station at 910
Baywood Drive in Petaluma. A copy of that report is attached hereto as Exhibit A.
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"as soon as possible," in a November 19, 2018 email to Staff, Mr. Soluri claimed additional
materials were forthcoming, while incorrectly and inappropriately criticizing BAAQMD Staff for
their analysis of the matter. We were disappointed to learn on November 30, 2018 at 6:05 p.m.
that Mr. Soluri informed City Staff that he will be submitting such materials on Monday, December
3, 2018, i.e., the date of the hearing.4 Since Appellants' counsel had the relevant information for
approximately two months or more, there is absolutely no excuse or justification for such
unprofessional and bad faith behavior.
In connection with the City's consideration of the appeal, Safeway submitted letters dated
September 6, 2018, September 11, 2018, September 14, 2018, September 17, 2018, October 10,
2018, and November 14, 2018 providing updates and voluntary supplemental information for the
benefit of City Council, City Staff, and the public record. Today, we are writing to again provide
voluntary supplemental information regarding the options presented by Staff for you on the
Project. As indicated in the analysis below, the City must adopt the MND prepared for the Project
and cannot lawfully require that an EIR be prepared.'
2. The Planning, Commission's adoption of the MND was not appealed to the City
Council and is now final and no longer subject to challenge.
Appellants never contested the MND or raised the issue that an EIR was required in their
appeal form or letter. Their failure to do so is fatal.
On June 26, 2018, the Planning Commission adopted separate resolutions adopting the
MND and approving the Site Plan and Architectural Review ("SPAR") application for the Project.
(See Planning Commission Resolution No. 2018-21A and Resolution No. 2018-2113, respectively.)
On July 9, 2018, Appellants filed an appeal of the Planning Commission's decision "to approve a
building permit for a Safeway gas station on the corner of Maria Dr. and S. McDowell Blvd."
(Staff Report, Attachment 3-2.) The appeal cites objections to the location, need, and public notice
provided the Project. (M.) Nowhere in the appeal do Appellants raise any CEQA issue or make
any claim that the MND is inadequate.6
The City's own Implementing Zoning Ordinance ("IZO") states that "[i]f no appeal is filed
within the time limits, the decision shall be final." (IZO § 24.070.D.) No appeal of the Planning
Commission's adoption of the MND was filed within the requisite time limits. As such, it is now
4 In an email dated November 9, 2018, Planning Manager Heather Hines acknowledged the City's role
as lead agency under CEQA and confirmed that the City Council hearing would take place on December 3,
2018.
5 This analysis is in response to the Staff Report issued after the close of business on November 27, 2018
and is intended to supplement the analysis provided in our November 14, 2018 memo on this issue
(Attachment 12 to the Staff Report).
6 The portions of the Staff Report claiming that Appellants appealed the Planning Commission's
approval of the MND are incorrect. (See, e.g., Staff Report, p. 23 and Attachment 2.)
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final and immune from further consideration or review. (Tahoe Vista Concerned Citizens v.
County of Placer (2000) 81 Cal.App.4th 577 [by failing to appeal planning commission's adoption
of MND to board of supervisors, opponents waived any right to further challenge the MND]; Park
Area Neighbors v. Town of Fairfax (1994) 29 Cal.App.4th 1442, 1452 [lack of legal representation
does not excuse appellant's duty to exhaust administrative remedies].)
Because the Planning Commission's adoption of the MND was not appealed to the City
Council, it is now final and the City Council has no authority to reconsider or revisit it, except to
readopt it. (Tahoe Vista Concerned Citizens, supra, 81 Cal.App.4th at 593 ["Since plaintiffs did
not challenge the Plarming Commission's approval of the negative declaration, the Board of
Supervisors had no jurisdiction over the negative declaration except to readopt it."].)
3. Because there is no substantial evidence of a fair argument of significant
environmental impacts, the City cannot lawfully require preparation of an
EIR.
Even if Appellants had timely appealed the Planning Commission's adoption of the MND
to the City Council, their request for an EIR still must be rejected. In our prior submittals, we
detail the lack of substantial evidence supporting a fair argument of potentially significant impacts
to health risk and other topics. We respond here to Staff's claim that the City Council may find
substantial evidence of a fair argument of significant environmental impact related to pedestrian
safety issues.
In a single paragraph of the draft resolution purporting to uphold the appeal pending
certification of an EIR, Staff claims that City residents, neighbors, teachers and others have
provided written and oral comments "expressing concern regarding safety of the McDowell
Boulevard and Maria Drive intersection due to traffic volumes and speeds, conflicts with
pedestrians, and increased activity resulting from the [Project]...." The resolution refers to two
commenters who "observed pedestrian/vehicle collisions and near -collisions in the Project area,"
refers to another commenter who stated that "school -aged children walls home by themselves, and
the crosswalk is already a danger," cites a commenter "expressing concern about heavy traffic and
foul balls getting hit next to a busy street" and another commenter "observing cars run stop signs
while working at the snack shack at Murphy Field, and noting Maria Drive is heavily traveled and
one of the main streets in the area." As explained below, these generalized comments are
speculative, unsubstantiated, and/or directly contradicted by expert, factual analysis. As such, they
do not constitute substantial evidence of a fair argument of significant environmental impacts and
cannot lawfully be relied on as the basis to order preparation of an EIR.
7 This resolution is provided as Attachment 2 to the Staff Report.
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a. The Project's potential traffic -related impacts have been extensively
studied and consistently found to be less than significant.
As a preliminary matter, both traffic impacts and pedestrian safety were studied multiple
times by professional traffic engineers with extensive, documented input from City Staff, the
Transit Advisory Committee and the Pedestrian and Bicycle Advisory Committee. (See, e.g.,
Traffic Impact Study (TJKM, August 2014); Traffic Impact Study Update (CHS Consulting
Group, March 2018); and Supplemental Pedestrian Safety Analysis (CHS Consulting Group, June
2018).
The City's General Plan states that traffic levels of service ("LOS") should be maintained
at LOS D or better. Under existing plus project, background plus project, and cumulative plus
project conditions, the intersection of Maria Drive and McDowell Boulevard will operate at LOS
B or better conditions. (Traffic Impact Study Update, March 2018, CHS Consulting Group, Tables
2, 5, 7.) LOS B reflects stable traffic flows with minor delays. Even this good level of service
may be overstated given that the Planning Commission conditioned the Project to prohibit Project
traffic from making a left -in or left -out from the two westerly driveways on Maria Drive. This
means more Project vehicles will access the Project site from McDowell Boulevard or Washington
Street as opposed to Maria Drive. Even without these restrictions, the expert consultant observed
that the majority of Project traffic was already on the relevant street network and would access the
site through the South McDowell Boulevard or East Washington Street entry points.
In the August 2014 Traffic Study, the traffic consultant analyzed pedestrian and transit
accessibility. It noted that: sidewalks exist along both sides of East Washington Street, South
McDowell Boulevard, and Maria Drive in the Project vicinity; the Project is not expected to
generate significant pedestrian traffic from the adjacent neighborhood; and the majority of study
intersections, including McDowell/Maria, have crosswalks and pedestrian signals that provide
controlled access to the Project site.
Section 3.16(f) of the March 2018 MND notes that existing pedestrian facilities in the
Project vicinity include sidewalks and crosswalks providing connectivity to surrounding amenities
and the elementary school. The MND, as adopted by the Planning Commission, states:
Due to the proximity of the adjacent elementary school there will be elementary
school bound pedestrians walking across McDowell Boulevard and Maria Drive
intersection at the same time as the a.m. peak hour traffic. The project, as proposed,
does not make any substantial changes to pedestrian facilities and is not expected
to pose a hazard to pedestrian safety. New crosswalk striping, sidewalks, and curb
iinprovements will enhance the pedestrian facilities onsite and along Maria Drive
proximate to the [Eastside Transit Center]. Therefore, impacts associated with
pedestrian safety will be less than significant.
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At the May 8, 2018 Planning. Commission meeting, commenters expressed concerns
regarding pedestrian safety at the McDowell/Maria intersection. This intersection is signalized
and contains sidewalks on all sides as well as a striped pedestrian crosswalk, pedestrian signals,
and curb ramps. To respond to the comments regarding pedestrian safety, CHS Consulting used
video recordings to conduct pedestrian surveys over a 48-hour period in May 2018.8 CHS also
reviewed the most recent collision data from the Statewide Integrated Traffic Records System for
the McDowell/Maria intersection.
The video recordings of pedestrians crossing at the McDowell/Maria intersection provide
objective, unaltered factual evidence as to the level of pedestrian activity at the intersection.
Moreover, it was conducted in May 2018, when all nearby schools were in session and playoffs
were being held for Little League. Thus, it can fairly be considered to be representative of at least
average, if not "worst case," conditions. Based on this empirical data, CHS concluded that "[t]he
level of pedestrian activity at the [Maria/McDowell] intersection indicates a free flow level of
service with no impedances to pedestrian movements during all peak periods." (Petaluma Safeway
Fuel Center Pedestrian Analysis, CHS Consulting Group, June 6, 2018, p. 3.)
In addition, the collision history at the McDowell/Maria intersection shows a low rate of
collisions over the last five-year reporting period. Between 2012 and 2016, there were a total of
20 collisions at the study intersection with 17 involving vehicles only, three involving pedestrians,
and no bicycle -involved collisions. Two of the pedestrian -involved collisions occurred in 2015
and the third occurred in 2016. All three collisions involving pedestrians were caused by vehicle
violations related to the pedestrian right-of-way as pedestrians were crossing in the crosswalk.
None of the pedestrian -involved collisions involved school -aged children or resulted in severe
injuries.' Based on this empirical data, CHS concluded that there are "no patterns of pedestrian
involved collisions that would suggest a safety concern at the Maria Drive/McDowell Boulevard
intersection." (Petaluma Safeway Fuel Center Pedestrian Analysis, CHS Consulting Group, June
6, 2018, p. 3.)
In response to the comment that there are school -aged children that walk home alone, it is
worth noting that the school entrances and drop-off/pick-up points to McDowell School are
accessed by the opposite side of the school property on McGregor Avenue, i.e., furthest from the
Project site. Children walking to the school from the east would cross at the dedicated crosswalks
at Maria Drive/Park Lane and continue down Park Lane. (Id.) Children walking to the school
from the west were observed using the southern leg of the crosswalk to cross South McDowell.
8 A spreadsheet depicting the pedestrian survey results is attached hereto as Exhibit B.
9 Per the City's July 2015 Safe Routes to School Plan, there were likewise no reported pedestrian -
involved collisions involving school -aged children at the McDowell/Maria intersection between 2003-
2012.
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Based on the above information and in accordance with Staff's recommendation, the
Planning Commission adopted the MND, including its conclusion that the Project would result in
a less than significant impact to pedestrian safety. The Planning Commission imposed conditions
of approval on the Project to ensure that pedestrian safety would, in fact, be enhanced. For
instance, it prohibited fuel trucks from entering and exiting on Maria Drive; it restricted Project
traffic from entering in the two westerly driveways on Maria Drive; it required that damaged
sidewalks, driveways, and curb ramps be replaced; it required installation of a new, accessible and
directional pedestrian ramp; and it required installation of a pedestrian crossing warning sign at
the proposed driveway entrances. Moreover, as part of the Project, Safeway will modify the
Eastside Transit Center to construct a bus turn out area, thereby substantially improving line of
sight for vehicles existing onto Maria Drive from the shopping center and allowing for buses to
queue outside of the Maria Drive travel lane.
b. An EIR cannot legally be required because there is no substantial
evidence of a fair argument that the Project may result in significant
environmental impacts.
An EIR can only legally be required if there is substantial evidence of a fair argument that
the Project may result in a significant effect on the environment. (Citizens Comm. to Save Our
Village v. Claremont (1995) 37 Cal.AppAth 1157, 1171; League for Protection of Oakland's
Historic Resources v. City of Oakland (1997) 52 Cal.AppAth 896, 904.) There is no such evidence
here. As such, the City must adopt the MND. (Public Resources Code § 21080(c)(1); CEQA
Guidelines §§ 15063(b)(2), 15064(f)(2), 15064(f)(3).)
Substantial evidence is defined as evidence of ponderable legal significance, reasonable in
nature, credible, and of solid value. (Lucas Valley Homeowners Assn. v. County of Marin (1991)
233 Cal.App.3d 130, 142.) It includes fact, a reasonable assumption predicated upon fact, or expert
opinion supported by fact. (Public Resources Code § 21080(e)(1).) While relevant personal
observations of area residents on nontechnical subjects may qualify as substantial evidence,
argument, speculation, unsubstantiated opinion or narrative, and evidence that is clearly inaccurate
or erroneous does not comprise substantial evidence. (Public Resources Code § 21080(e)(2).)
Moreover, "[c]onflicting assertions do not ipso facto give rise to substantial fair argument
evidence." (Friends of "B" Street v City of Hajmard (1980) 106 Cal.App.3d 988,1002). Rather,
"[djisagreement of expert opinion regarding significance of an environmental effect only
requires an EIR in marginal cases where it is not clear whether there is substantial evidence
that a project may have a significant effect on the environment."10 (Citizen Action to Serve All
Students v. Thornley (1990) 222 Cal.App.3d 748, 755 [court rejects expert testimony of traffic
impacts, citing conclusions of traffic study and staff to the contrary]; see also CEQA Guidelines
10 The Staff Report misstates this relevant standard by implying an EIR is required "even in margin[al]
cases." (Staff Report, p. 21.)
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§ 15064(g).) Further, contrary evidence must be considered in assessing the weight of the evidence
supporting the asserted environmental impact. (Porterville Citizens for Responsible Hillside
Development v. City ofPorterville (2007) 157 Cal.App.4th 885, 900.)11
A significant effect on the environment means "a substantial, or potentially substantial,
adverse change in any of the physical conditions within the area affected by the project including
land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic
significance." (CEQA Guidelines § 15382.) Based on the Environmental Checklist attached as
Appendix G to the CEQA Guidelines, the City's traffic significance criteria asks whether the
Project would: "[s]ubstantially increase hazards due to a design feature (e.g., sharp curves or
dangerous intersections)" or "[c]onflict with adopted policies, plans, or programs regarding public
transit, bicycle, or pedestrian facilities, or otherwise decrease the performance or safety of such
facilities." With the implementation of Mitigation Measure TRANS -1 to address potential queuing
impacts, the MND concludes that Project impacts to design feature hazards and
transit/bicycle/pedestrian facilities will be less than significant. The MND's conclusions in this
regard were validated by City Staff, embraced by the City Planning Commission, and are fully
supported by substantial evidence in the record, including multiple reports prepared by expert
traffic consultants.
In Lucas Valley Homeowners Assn., the First Appellate District rejected the notion that
claims similar to those cited by residents here constituted a fair argument of impacts. In that case,
opponents of a proposed religious use in a residential neighborhood relayed "fears for the safety
of children and others in light of an anticipated increase in traffic." (233 Cal.App.3d at 155.) The
court ruled that "generalized concerns and fears about traff c and parking impacts ... do[] not
rise to the level of a fair argument that the proposed use will create a substantial, or potentially
substantial, adverse change in the environment." (233 Cal.App.3d at 163.)
In Leonoff v. Monterey County Board of Supervisors (1990) 222 Cal.App.3d 1337, the
Sixth Appellate District likewise upheld a negative declaration for a contractor's service center
against claims alleging dangerous traffic conditions. 12 The court noted that "[ujnsubstantiated
opinions, concerns, and suspicions about a project, though sincere and deeply felt, do not rise
to the level of substantial evidence supporting a fair argument of significant environmental
effect."13 (222 Cal.App.3d at 1352.) The court went on to emphasize that "[e]nvironmental
decisions should be based on facts not feelings." (Ld. at 1353.)
11 (See also Public Resources Code § 21082.2(b) ["The existence of public controversy over the
environmental effects of a project shall not require preparation of an EIR if there is no substantial evidence
in light of the whole record before the lead agency that the project may have a significant effect on the
environment."].)
12 The opinion notes that the project at issue there was located on a congested road and bounded by office
buildings, commercial rentals, and an elementary school.
13 (Accord, Citizen Action to Serve All Students, supra [court rules that speculation and generalizatim
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In Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007)
157 Cal.App.4th 885, the Fifth Appellate District upheld a negative declaration for a 219 -home
project against claims raised by a few neighbors alleging impacts to, among others, aesthetics and
density. The court emphasized that under CEQA, "the question is whether a project will affect the
environment of persons in general, not whether a project will affect particular persons." (157
Cal.App.4th 885.) As to aesthetics, the court noted that the opponents' "vague complaints do not
rise to the level of substantial evidence supporting a fair argument that the housing project may
have a significant adverse aesthetic impact." (157 Cal.AppAth at 903.) In response to a speaker's
claim that the project would bring a large number of schoolchildren into the area and increase
traffic, the court noted that "dire predictions by non -experts regarding the consequences of a
project do not constitute substantial evidence." (157 Cal.App.4th at 906.)
Even accepting them as true, the generalized comments cited by Staff do not provide
substantial evidence of a fair argument of significant traffic -related impacts. These claims raising
dire predictions by non -experts are refuted by empirical and expert analysis. Several of the
comments relate to an entirely different intersection (e.g., Maria Drive/Park Lane). The comments
referring to "near misses" are subjective, speculative, and unsubstantiated. Maria Drive, a two-
lane connector road, is not identified by any plan or study as "one of the main streets" in the area.
None of the comments indicate an acknowledgment of the Project traffic studies let alone make
any attempt to critique the underlying assumptions or conclusions of those studies. The reality is
that by implementing several traffic and pedestrian safety improvement features as part of the
Project, the Project vicinity will be even safer than is currently the case.
C. The Protect Niles decision cited by Staff is distinguishable.
Against the above weight of authorities, City Staff cites a single recently decided case,
Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, in support of its claim that an EIR
may be required. As explained below, that case is distinguishable and thus provides no authority
for the imposition of an EIR here.
Protect Niles involved development of 98 residential units on a site located in the small
community of Niles, a historical district in the City of Fremont. The court found that the record
contained substantial evidence supporting a fair argument of significant traffic impacts
notwithstanding a professional traffic study concluding the anticipated adverse impacts fell below
the city's predetermined thresholds of significance. Specifically, the record contained comments
raising safety concerns related to the location of the project entry near a blind curve on a busy
street where speeding was an issue as well with angled street parking that would cause parked cars
to back into eastbound traffic. (The site plan of the proposed project at issue in Protect Niles is
attached hereto as Exhibit C.)
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The concerns regarding traffic safety impacts associated with the proposed project entry
were raised not only by residents, but by city officials, staff, and the project traffic consultant. In
its study of safety and traffic flow, the traffic consultant concluded that a left -turn pocket was
warranted under national guidelines. A councilmember with traffic engineering expertise noted
that the lack of a left -turn lane created a "pretty dangerous" situation. (25 Cal.App.5th at 1151.)
Another councilmember and the city's community development director testified as to speeding
concerns in the area. A few residents concurred with these statements and also cited traffic
congestion in the vicinity, which the traffic study verified by indicating the project would degrade
traffic conditions at a nearby intersection to LOS F (gridlock) conditions. Nonetheless, the City
did not impose the requirement for a left -turn pocket as a mitigation measure nor explain in any
credible manner how traffic -related safety impacts would be mitigated to a less than significant
level.
In stark contrast to the facts of Protect Niles, the Project here does not propose an unsafe
design feature nor is there any substantial evidence that the Project will result in any other
significant traffic impacts. The Project is a permitted use and situated in an existing commercial
shopping center that has hosted multiple gas stations over the years, not in historical district. It is
located adjacent to a traditional street intersection. It is not located near a blind curve nor does it
contain angled on -street parking. And, unlike the historical community of Niles, the commercial
site is not geographically cut off from the rest of the community such that atypical traffic impacts
may ensue. While the Protect Niles court may have found that the facts justified an EIR in that
case, a completely different set of facts and circumstances apply here. 14
Further, unlike the situation in Protect Niles, the Project traffic consultant did not
recommend traffic safety features that were ignored. Instead, based on actual surveys showing a
low level of pedestrian crossings at the Maria/McDowell intersection coupled with five years of
statistics showing a low level of vehicle -pedestrian collisions at that intersection, the Project traffic
consultant reasonably concluded that any potential impacts to pedestrian safety were less than
significant and thus required no mitigation. And, unlike the LOS F conditions in Protect Niles,
the Maria/McDowell intersection will continue to operate at acceptable LOS B or better conditions
with the Project under all studied conditions.
Moreover, after Protect Niles was decided, the Sixth Appellate District issued an opinion
upholding a MND for an ARCO fuel station, convenience store, and quick serve restaurant. (See
Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan
Bautista, Sixth Appellate District Case No: H044410, November 26, 2018, a copy of which is
14 (See, e.g., CEQA Guidelines § 15064(b) ["The determination of whether a project may have a
significant effect on the environment calls for careful judgment on the part of the public agency
involved, based to the extent possible on scientific and factual data. An iron clad definition of
significant effect is not always possible because the significance of an activity may vary with the
setting."].)
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attached hereto as Exhibit D.) That project consisted of 12 fuel dispensing stations, a 2,980 square
foot convenience store, and a 3,342 square foot fast food restaurant. While smaller in scale and
size, the Project is nonetheless more similar to the gas station development in Alliance of
Concerned Citizens than it is to the 98 -home project at issue in Protect Niles. In Alliance of
Concerned Citizens, the court rejected claims that an EIR was needed due to alleged unmitigated
traffic and noise impacts. 15
d. Preparation of an EIR would serve no valid purpose.
Finally, requiring an EIR would be an idle act and set a troubling precedent. The purpose
of CEQA is "not to generate paper, but to compel government at all levels to make decisions with
environmental consequences in mind." (CEQA Guidelines § 15003(g).) While CEQA requires
that decisions be informed and balanced, it "must not be subverted into an instrument for the
oppression and delay of social, economic, or recreational development and advancement."
(Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; 576.)
In Protect Niles, the court specifically noted that an EIR would facilitate CEQA's goals of
informed self-government by facilitating further analysis of traffic and other issues. By
comparison, no productive purpose would be served by ordering preparation of an EIR here. (See,
e.g., Lucas Valley Homeowners Assn., supra, 233 Cal.App.3d at 164 [in rejecting project
opponents' claim that an EIR was needed, court asks "[w]hat possible traffic or parking impacts
could be unearthed by further environmental review?].) The Project's potential impacts to traffic
and pedestrians safety have been studied multiple times. Each time, the Project has been found to
have impacts that are less than significant.
If an EIR were required simply because residents provide comments regarding traffic or
safety, then nearly every project in Petaluma could require an EIR. Such a construction—which
would apply to public and private projects alike—not only conflicts with the law, but with
principles of good government and common sense. 16
xx���xxxxxxxxxxXxxx
is Staff's claim that an EIR can be required based on changes to "neighborhood spirit" is contrary
to the law. (See, e.g., CEQA Guidelines § 15131 ["Economic or social effects of a project shall
not be treated as significant effects on the environment."] and Preserve Poway v. City of Poway
(2016) 245 Cal.AppAth 460 [rejecting challenge to MND on grounds that project may have a
significant impact on city's "community character"].)
16 If the City were to nonetheless require an EIR here despite it not being legally justified or serving.a
legitimate public purpose, it would violate the applicant's and property owner's rights to due process and
equal protection and substantially deprive them of economically beneficial use of their land. 21-11
2696/031700-0001
13133703.4 a12/01/18
RUTAN
TUCK
RUTAN 6 TUCKER, LLP
Honorable Members of the City Council
December 1, 2018
Page 12
In closing we respectfully urge you to adopt the resolution denying the appeal and upholding
the Planning Commission's approval of the Project. Thank you for your consideration of Safeway's
views on this matter. Representatives of Safeway, including the undersigned, will be in attendance
at your December 3, 2018 hearing on the appeal. In the meantime, please do not hesitate to contact
me with any questions regarding this correspondence.
Very truly yours,
RUTAN & TUCKEA, IAP
t
a4hewD.ncois
MDF:mtr
cc: Heather Hines, Planning Manager, City of Petaluma
Olivia Ervin, Principal Environmental Planner, City of Petaluma
Adam Petersen, Senior Planner, City of Petaluma
Eric Danly, City Attorney, City of Petaluma
Claire Cooper, City Cleric, City of Petaluma
Natalie Mattei, Senior Real Estate Manager, Safeway, Inc.
Mark Friedman, President, Fulcrum Property
21-12
2696/031700-0001
13133703.4 a12/01/18
21-13
This document does not permitthe holder to violate any BAAQMD regulation or any other law. PE R P*W EX E1 RAT KYN DATE
May 01, 2019
49
W Owner Mailing Contact:
Walia Fuels, LLC
910 BAYWOOD DR
PETALUMA , CA 94954-4314
Attn: Jupinder Singh
DEVICES
This document serves as your Permit to Operate the following:
S1 Permitted
GDF
Gasoline Dispensing Operation
Tank Information:
8000 Gallon Underground Tank w/ Diesel
Phase I Vapor Recovery Type: None -Exempt Material
Phase II Vapor Recovery Type: None -Exempt Material
Facility ID: 110736
Walia's Valero
910 Baywood Dr
Petaluma , CA 94954-4314
Owning Entity:
Walla Fuels, LLS
8000 Gallon Underground Tank w/ Gasoline - unleaded
Phase I Vapor Recovery Type: OPW (VR -102)
Phase II Vapor Recovery Type: EMCO WHEATON/VST EVR Phase II with Veeder Root Vapor Polisher and
Veeder-Root ISD (VR -204)
8000 Gallon Underground Tank w/ Gasoline - unleaded
Phase I Vapor Recovery Type: OPW (VR -102)
Phase II Vapor Recovery Type: EMCO WHEATON/VST EVR Phase II with Veeder Root Vapor Polisher and
Veeder-Root ISD (VR -204)
Nozzle Information:
4 Diesel
8 Gasoline - Triple Product
The operating parameters described above are based on information supplied by the permit holder and may differ from
the limits set forth in the attached conditions of this Permit To Operate. The limits of operation in the permit
conditions are not to be exceeded. Exceeding these limits is considered a violation of BAAQMD and is subject to
enforcement action.
The devices described in this document are subject to the following permit conditions:
S1 Subject to Condition #: 100013, 100014, 100015, 100016, 100036, 100037, 100043, 100051
Condition #: 100037 S1
March 20, 2018 Page 1 of 4
375 Beale Street, Suite 600 - San Francisco, CA 94105 - WWW.BAAQMD.GOV 51ID, 410736
I This document does not permit the holder to violate any BAAQMD regulation or any other law. KRPAIy UNRATKX4 DATE
May 01, 2019
The owner/operator shall conduct and pass the following tests at the indicated intervals:
1. A Static Pressure Performance Test, in accordance with CARB procedure TP -201.3 at least once in each 12 -
month period.
2. Phase I Adaptor Static Torque Test on all rotatable Phase I adaptors in accordance with CARB TP -201.1B at
least once in each 36 -month period.
3. One of the following tests in each 36 -month period. The measured leak rate for each component shall be
within the limits set in the applicable CARB Executive Order:
• Stations equipped with drop tube overfill prevention devices ("flapper valves"): a Drop Tube Overfill
Prevention Device and Spill Container Drain Valve Leak Test in accordance with CARB Test
Procedure TP -201.1D and the applicable CARB Executive Order.
• All other stations: a Drop Tube/Drain Valve Assembly Leak Test in accordance with CARB Test
Procedure TP -201.1C and the applicable CARB Executive Order.
Condition #: 100016 SS
The Phase II Balance EVR with V.R. Vapor Polisher and ISD shall be installed, operated, and maintained in
accordance with the most recent revision of the California Air Resources Board (CARE) Executive Order (EO) VR -
204.
Condition #: 100036 S1
The owner/operator shall:
1. Notify Source Test by email (gdfnotice@baaqmd.gov) or Fax (510-758-3087), at least 48 hours prior to any
required testing.
2. Submit test results in a District -approved format within thirty (30) days of testing.
• For start-up tests results, cover sheet shall include the facility number (Facility ID) and application number
of the Authority to Construct permit.
• For annual test results, cover sheet shall include the facility number (Facility ID) and identified as `Annual'
in lieu of the application number.
• Test results shall be emailed (gdfresults@baagmd.gov) or mailed to the District's main office.
Condition #: 100043 S1
March 20, 2018 Page 2 of 4
375 Beale Street, Suite 600 - San Francisco, CA 94105 - WWW.BAAQMD.GOV 52 91�10736
This document does not permit the holder to violate any BAAQMD regulation or any other law. PEP ff E EIRAT KIN DATE
May 01, 2019
The Phase II Balance EVR system with the Veeder-Root Vapor Polisher and ISD shall be capable of demonstrating
on-going compliance with the vapor integrity requirements of CARB Executive Order E.O. VR -204. The owner or
operator shall conduct and pass the following tests at least once in each consecutive 12 -month period following
successful completion of start-up testing. Tests shall be conducted and evaluated using the below referenced test
methods and standards:
1. Dynamic Back Pressure Test - TP -201.4 (7/3/02) in accordance with the condition listed in item 1 of the
Vapor Collection Section of E.O. VR -204, Exhibit 2. The dynamic back pressure shall not exceed 0.35" WC
@ 60 CFH and 0.62" WC @ 80 CFH
2. Liquid Removal Test in accordance with E.O. VR -204, Option 1 (Only test hoses containing more than 25
ml liquid)
3. Vapor Pressure Sensor Verification Test in accordance with E.O. VR -204
4. Veeder-Root Vapor Polisher Operability Test in accordance with E.O. VR -204
5. Veeder-Root Vapor Polisher Emissions Test in accordance with E.O. VR -204
6. ISD Vapor Flow Meter Operability Test in accordance with E.O. VR -204
Condition #: 100014 S1
The owner/operator of the source shall complete source testing per the applicable Executive Order. The
owner/operator shall notify BAAQMD Source Test Division and submit source test results.
Condition #: 100015 S1
The Phase I OPW EVR system shall be installed, operated, and maintained in accordance with the most recent
revision of the California Air Resources Board (CARB) Executive Order (FO) VR -102.
Condition #: 100051 S1
The owner/operator of the facility shall maintain the following records. Records shall be maintained on site and
made available for inspection for a period of 24 months from the date the record is made.
1. Monthly totals of throughput (sales) of gasoline (all -grades) and other fuels pumped and summarized on
an annual basis for each type of fuel (excluding diesel).
2. All scheduled testing and maintenance activities, including:
• the date of maintenance, inspection, failure and, if applicable, ISD alarm history;
• the date and time of maintenance call;
• the maintenance performed;
• Certified Technician ID number or name of individual conducting maintenance and their phone
number.
3. Weekly, quarterly and annual inspection sheets.
Condition #: 100013 S1
The owner/operator shall not allow the total fuel dispensed at this source to exceed the following limits during any
consecutive 12 -month period:
• 2000000 Gallons of Gasoline - Unleaded (Gasoline - Unleaded)
END OF CONDITIONS
March 20, 2018 Page 3 of 4
375 Beale Street, Suite 600 - San Francisco, CA 94105 - WWW.BAAQMD.GOV MP,l610736
This document does not permit the holder to violate any BAAQMD regulation or any other laver PE RMIT EX f1 RAT KJN OATF
May 01, 2019
IMPLIED CONDITIONS
Unless your specific permit conditions state otherwise, the throughputs, fuel and material consumptions, capacities and
hours of operation described in your permit application will be considered maximum allowable limits.
A new permit will be required before any increase in parameters, such as throughputs, fuel and material consumption,
capacities, and hours of operation, or change in materials, equipment or permit conditions may be made.
RICHT OF ACCESS
In accordance with Regulation 1-440, BAAQMD shall be granted the right of access to any premises on which an air
pollution source s located for the purposes of:
a) The inspection of the source,
b) The sampling of materials used at the source,
c) The conduct of an emission source test, and
d) The inspection of any records required by BAAQMD rule or permit condition
REGULATORY +. '
This Permit To Operate does not authorize violations of the rules and regulations of BAAQMD (may be viewed at
www.baagmd.gov), California or Federal law. Compliance with conditions in this permit does not mean that the permit
holder is currently in compliance with BAAQMD Rules and Regulations It is the responsibility of the permit holder to
have knowledge of and be in compliance with all BAAQMD rules and regulations.
END OF DOCUMENT
March 20, 2018 Page 4 of 4
375 Beale Street, Suite 600 - San Francisco, CA 94105 - WWW.BAAQMD.GOV E�Pj+10736
EVALUATION REPORT
Walia Fuels LLC
910 Baywood Drive
Petaluma, CA 94954
Facility# 110736
Application# 424504
BACKGROUND
Walia Fuels LLC has submitted this application to increase their gasoline throughput limit to 2.0 million
gallons per year for the following device:
S-1 Gasoline Dispensing Facility
Current Configuration
Configuration after Modification
2 — 8,000 gallon gasoline underground tanks
No change
1 — 8,000 gallon diesel underground tank
No change
Phase I OPW EVR (VR -102)
No change
Phase II Balance EVR with Veeder Root
Vapor Polisher and ISD VR -204
No change
8 triple product gasoline nozzles
No change
4 diesel nozzles
No change
600,000 gallons per year throughput limit
2.0 million gallons per year throughput limit
Violation Notice# A57299 was issued on 9/13/17 for exceeding throughput condition limit.
EMISSION CALCULATIONS
This application was evaluated for an increase in the permitted throughput limit from 600,000 gallons per
year to 2.0 million gallons per year.
The owner took over the facility in 2016 and submitted the following throughput levels:
Year
Throughput Level
2017
956,509
2016
833,485
Emissions will be as follows:
Pollutant Emissions Factors
Emissions
Emissions
Emissions
lb/thousandgallon)
lb/da
(lb/year)
(ton/ ear
POC .516
2.8
1,032
0.52
Benzene .0029
0.02
5.8
0.003
21-18
Emission factors are taken from the California Air Resources Board's "Revised Emission Factors for
Gasoline Marketing Operations at California Gasoline Dispensing Facilities" (12/23/13). Emissions of
Precursor Organic Compound (POC) include emissions from loading, breathing, refueling and spillage.
Benzene emissions exceed the chronic trigger level of 2.9 lbs/year.
NEW SOURCE REVIEW
Best Available Control Technology (BACT), Regulation 2-2-301: This station will emit less than 10
pounds of POC in a single day, thus BACT requirement is not triggered.
Offsets, Regulation 2-2-302: Because the total facility emissions will be less than 10 tons per year, the
facility is not required to provide offsets.
Best Available Control Technology for Toxics (TBACT), Regulation 2-5-301: The expected
increased health risk from this project will not exceed 1 per million, thus TBACT requirement is not
triggered.
Project Risk Requirement, Regulation 2-5-302: The increased cancer risk does not exceed 10 in one
million and the chronic hazard index does not exceed 1, and therefore the project complies with the
project risk requirement.
A health risk assessment was performed for this facility. A throughput rate of 2.0 million gallons per year
corresponds to a risk of 0.85 in one million
STATEMENT OF COMPLIANCE
California Environmental Quality Act (CEQA), Regulation 2-1-311: This project is considered to be
ministerial under Regulation 2-1-311 and therefore is not subject to CEQA review. The engineering
review for this project requires only the application of standard permit conditions and standard emission
factors in accordance with Permit Handbook Chapter 3.2 and therefore is not discretionary as defined by
CEQA.
Public Notification, Regulation 2-1-412: The facility is not located within 1000 feet of the outer
boundary of a school and is therefore not subject to the public notification requirements.
Best Available Control Technology for Toxics (TBACT), Regulation 2-5-301: The owner/operator is
expected to comply with TBACT requirements by using Phase I OPW EVR system and Phase II Balance
EVR system with Veeder Root Vapor Polisher and ISD.
Gasoline Dispensing Facilities, Regulation 8-7-301 and 302: The owner/operator is expected to
comply with Phase I and Phase II vapor recovery requirements of BAAQMD Regulation 8, Rule 7.
California Air Resources Board (CARB) Vapor Recovery Certification, VR -102 and VR -204: The
owner/operator is expected to comply with Enhanced Vapor Recovery (EVR) requirements of Phase I
OPW EVR system and Phase II Balance EVR system with Veeder Root Vapor Polisher and ISD.
CONDITIONS
Operating Conditions for S-1
100013
The owner/operator shall not allow the total fuel dispensed at this source to exceed the following limits
during any consecutive 12 -month period:
• 2.0 Million Gallons of Gasoline - unleaded
21-19
100014
The owner/operator of the source shall complete source testing per the applicable Executive Order. The
owner/operator shall notify BAAQMD Source Test Division and submit source test results.
100015
The Phase I OPW EVR system shall be installed, operated, and maintained in accordance with the most
recent revision of the California Air Resources Board (CARB) Executive Order (EO) VR -102.
100016
The Phase II Balance EVR system with Veeder Root Vapor Polisher and ISD shall be installed, operated,
and maintained in accordance with the most recent revision of the California Air Resources Board
(GARB) Executive Order (EO) VR -204.
100036
The owner/operator shall:
1. Notify Source Test by email (gdfnotice@baaqmd.gov) or Fax (510-758-3087), at least 48 hours
prior to any required testing.
2. Submit test results in a District -approved format within thirty (30) days of testing.
• For start-up tests results, cover sheet shall include the facility number (Facility ID) and
application number of the Authority to Construct permit.
• For annual test results, cover sheet shall include the facility number (Facility ID) and
identified as `Annual' in lieu of the application number.
• Test results shall be emailed (gdfresults@baaqmd.gov) or mailed to the District's main
office.
100037
The owner/operator shall conduct and pass the following tests at the indicated intervals:
1. A Static Pressure Performance Test, in accordance with CARB procedure TP -201.3 at least once
in each 12 -month period.
2. Phase I Adaptor Static Torque Test on all rotatable Phase I adaptors in accordance with CARB TP -
201.1B at least once in each 36 -month period.
3. One of the following tests in each 36 -month period. The measured leak rate for each component
shall be within the limits set in the applicable CARB Executive Order:
• Stations equipped with drop tube overfill prevention devices ("flapper valves"): a Drop Tube
Overfill Prevention Device and Spill Container Drain Valve Leak Test in accordance with
CARB Test Procedure TP -201.1D and the applicable CARB Executive Order.
• All other stations: a Drop Tube/Drain Valve Assembly Leak Test in accordance with CARB
Test Procedure TP -201.1C and the applicable CARB Executive Order
100043
The Phase II Balance EVR system with Veeder Root Vapor Polisher and ISD shall be capable of
demonstrating on-going compliance with the vapor integrity requirements of CARB Executive Order E.O.
VR -204. The owner or operator shall conduct and pass the following tests at least once in each
consecutive 12 -month period following successful completion of start-up testing. Tests shall be conducted
and evaluated using the below referenced test methods and standards:
1. Dynamic Back Pressure Test - TP -201.4 (7/3/02) in accordance with the condition listed in item 1
of the Vapor Collection Section of E.O. VR -204. The dynamic back pressure shall not exceed
0.35" WC @ 60 CFH and 0.62" WC @ 80 CFH
2. Liquid Removal Test in accordance with E.O. VR -204, Option 1 (Only test hoses containing
more
3. Vapor Pressure Sensor Verification Test in accordance with E.O. VR -204
4. Veeder-Root Vapor Polisher Operability Test. in accordance with E.O. VR -204
21-20
5. Veeder-Root Vapor Polisher Emissions Test in accordance with E.O. VR -204
6. ISD Vapor Flow Meter Operability Test in accordance with E.O. VR -204
100051
The owner/operator of the facility shall maintain the following records. Records shall be maintained on
site and made available for inspection for a period of 24 months from the date the record is made.
1. Monthly totals of throughput (sales) of gasoline (all -grades) and other fuels pumped and
summarized on an annual basis for each type of fuel (excluding diesel).
2. All scheduled testing and maintenance activities, including:
• the date of maintenance, inspection, failure and, if applicable, ISD alarm history;
• the date and time of maintenance call;
• the maintenance performed;
• Certified Technician ID number or name of individual conducting maintenance and their
phone number.
3. Weekly, quarterly and annual inspection sheets.
RECOMMENDATION
I recommend that a Permit to Operate be issued for the following source:
S-1 Gasoline Dispensing Facility
By: Lorna O. Santiago, Air Quality Permit Technician Date: 01/12/2018
21-21
INTEROFFICE MEMORANDUM
January 8, 2018
TO: John Foster Via: Daphne Y. Chong t�
FROM: Lorna Santiago
SUBJECT: Results of Health Risk Analysis for Walia Fuels LLC (Petaluma, CA), Maximum Allowable
Throughput, Facility #110736, Application #424504
Per your request, a health risk analysis was performed for the gasoline dispensing facility referenced
above, to determine the maximum allowable amount of gasoline that can be pumped. For this project,
the applicant requested for a gasoline throughput limit of 2.0 million gallons per year. Results from the
health risk analysis indicate that a throughput rate of 2.0 million gallons per year corresponds to a
cancer risk of 0.85 in a million and a chronic hazard index of 0.0020. In accordance with District's
Regulation 2, Rule 5, this project complies with the TBACT and project risk requirements.
EMISSIONS: Benzene emissions occur during tank loading and breathing, hose permeation, vehicle
refueling and from spillage. The following emission factors are used in the analysis:
Operations
New emission rate /sec
Loading & Breathing
1.09E-05
Refueling and Hose Permeation
1.59E-06
Spillage
6.11 E-06
MODELING: The ISCST3 air dispersion computer model was used to estimate annual average
ambient air concentrations for a one -million -gallon gasoline throughput. The model was run with
PETALUMA meteorological data to determine the maximum annual average ground -level
concentrations of benzene. Model runs were made with both urban and rural dispersion coefficients.
The highest concentrations occur for the model run using the rural dispersion coefficients, therefore
these values were used in the health risk calculations. Stack and building parameters for the analysis
were based on information provided by the applicant.
RISK: Estimates of residential risk assume potential exposure to annual average TAC concentrations
occur 24 hours per day, 350 days per year, for a 70 -year lifetime. Risk estimates for offsite workers
assume potential exposure occurs 8 hours per day, 245 days per year, for 40 years. Risk estimates for
students assume a higher breathing rate, and potential exposure is assumed to occur 10 hours per day,
36 weeks per year, for 9 years. Cancer risk adjustment factors (CRAFs) were used to calculate all
cancer risk estimates. The estimated health risks for this permit application are presented in the table
below.
Receptor
Cancer Risk
Chronic Non -cancer Hazard
Index
Resident
0.85 chances in a million
0.0003
Worker
0.67 chances in a million
0.0020
21-22
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Emission Rate for Walla Fuels LLC (Facility#110736, Application No.424504)
EVR Phase I, EVR Phase II, 100ml liquid retain nozzles
Four dispensers - 8 triple product nozzles
Operations
New emission rate /sec
Loading & Breathing
1.090E-05
Refueling & Hose Permeation
1.590E-06
Spillage
6.110E-06
21-40
From: satnam singh <sswalia2007@yahoo.com>
Sent: Friday, January 12, 2018 1:49 PM
To: Lorna Santiago
Subject: Fw: FID# 110736/Application# 424504 Walia's Valero
Hey Lorna,
2017: 956,509 total gallons
2016: July 15th to December - 382,004 Total Gallons (833,485 Annualized)
Note: we took ownership on July 15th, 2016
Prior owner has information for remaining 2016 and 2015.
Thanks,
Satnam Singh
707-293-0263
On Tuesday, December 19, 2017 11:44 AM, Lorna Santiago <LSantiago@baagmd.gov> wrote:
Satnam,
Payment was received. Application is deemed complete and under evaluation.
Thank you.
Sincerely,
Lorna O. Santiago
Air Quality Technician I Engineering Division
Bay Area Air Quality Management District
375 Beale Street, Suite 600 1 San Francisco, CA 94105
Office: 415.749.4730 1 Fax: 415.749.5030
Isantiago(a)-baagmd.aov I www.baagmd.gov
From: satnam singh [mailto:sswalia2007@yahoo.com]
Sent: Tuesday, December 19, 2017 11:32 AM
To: Lorna Santiago <LSantiago@baagmd.gov>
Subject: Re: FID# 110736/Application# 424504 Walia's Valero
Hey Lorna,
Could you please confirm if you have received the payment?
The check #1393 was taken from my account. If you have received it, could you please give the
status of my application?
1 21-41
j BAY AREA AIR QUALITY
::"'.=MAN AG EM E NT DISTRICT
375 Beale Street, Suite 600
San Francisco, CA 94105
(415) 749-4990
www,baagmd.gov
PERMIT APPLICATION INVOICE
TO: Walia Fuels, LLC
910 BAYWOOD DR
PETALUMA, CA 94954-4314
ATTN: Jupinder Singh
Application No.: 424504
Project Title: Gasoline Dispensing Facility
Invoice Number:
255319
Invoice Date:
11/06/2017
Due Date:
12/06/2017
Application Number:
424504
Facility ID:
110736
Customer Number:
B200628FI10736
Equipment Location:
Walia's Valero
910 Baywood Dr
Petaluma, CA 94954-4314
Owner: Walia Fuels, LLS
Operator: Jupinder Singh
Walia Fuels, LLC
For questions on fees, please contact:
Lorna Santiago, Air Quality Permit Technician II
4157494730
For questions on payment, please contact (415) 749-4636.
The District accepts check, Visa and MasterCard payments.
Your application is subject to cancellation if payment is not received by the invoice due date. Your application will be reactivated upon payment of this
invoice. Construction or operation of equipment without a permit/registration will result in appropriate enforcement action.
A copy of BAAQMD Regulation 3: Fees is available on the website at http://www.baagmd.gov. You may also obtain a copy of our regulations by calling
Communications and Outreach at (415) 749-4900.
Date Applied
ee Type
Amount
11/30/2017
[FilingFee
$474.00
11/30/2017
isk Screen Fee
$474.00
Total Fees: $948.00
Amount Paid: $0.00
Amount Due: $948.00
Please tear off the bottom portion and mail it with your payment by using the envelope provided. The top portion is for your records.
--————————————————————————————————————————————— — — — — —-
Walia Fuels, LLC
910 BAYWOOD DR
PETALUMA, CA 94954-4314
The maximum amount that can be charged by credit card on a single invoice is $5000.00
Pay by credit card or check. Please make checks�a"jable to "BAAQMD":
Payment Method: 11CheckL_I Credit Card (Visa & MasterCard)
Name On Card:
Card No.: CVV2 Code:
Expiration Date (M MIYY): _ _ / _ _ Zip Code:__
Signature:
BAY AREA AIR QUALITY MGMT DIST.
375 Beale Street, Suite 600
San Francisco, CA 94105
Invoice Number:
255319
Invoice Date:
11/06/2017
Due Date:
12/06/2017
Application No.:
424504
Facility ID:
110736
Customer Number:
B200628F110736
Amount Due: $948.00
Your Permit Application is subject to cancelation if payment is not
received by the invoice due date. Your application will be reactivated
upon payment of this invoice. Construction or operation of equipment
without a permit/registration may result in appropriate enforcement
action.
BAAQMD Regulations are available online at www.baaqmd.gov and
at the District Office: 375 Beale Street, Suite 600 San Francisco, CA
94105. A copy of Regulation 3 -FEES may be obtained by calling the
Communications & Outreach Office at (415) 749-4900.
21-42
BAY AREA At QUALITY
M A N A G E M E N T D 1 S T R I C T
375 Beale Street, Suite 600
San Francisco, CA 94105
(415) 749-4990
www.baaqmd.gov
PERMIT APPLICATION INVOICE
Application No.: 424504
Project Title: Gasoline Dispensing Facility
S1 Gasoline Dispensing Operation
Invoice Number:
255319
Invoice Date:
11/06/2017
Due Date:
12/06/2017
Application Number:
424504
Facility ID:
110736
Customer Number:
B200628F110736
Filing Fee $474.00'.
Risk Screen Fee $474.00'
21-43
From: Lorna Santiago
Sent: Thursday, November 30, 2017 12:52 PM
To: 'satnam singh'
Subject: FID# 110736/Application# 424504 Walia's Valero
Attachments: Applicationlnvoice255319_FID110736_AN424504.pdf
Mr. Singh,
This application is currently incomplete. In order to complete our evaluation, we need the following:
1. Pay the attached invoice. To ensure proper credit, please reference invoice# and facility# or include the bottom
portion of the invoice when you send the payment.
Thank you.
Sincerely,
Lorna 0. Santiago
Air Quality Technician ( Engineering Division
Bay Area Air Quality Management District
375 Beale Street, Suite 600 1 San Francisco, CA 94105
Office: 415.749.4730 1 Fax: 415.749.5030
lsantiago@baagmd.gov I www.baagmd.gov
21-44
PUMP --V nAY AREA AIR OUALITY MANAGEMENT DISTRICT Mail to:
MOM
Fk1 PERMIT APPLICATION COVER FORM Foginoering bivislon
375 Beale St. Suite 600
All fields aro required unless otharwiso noted, flea" type or print, San Frariduo. CA 94105
This form must be submitted with all permit application packages.
New facilities must subrnita ParjMy
—C"rtjp-n Form and Lacility Contocts Form with this Pgrmit-ApIL11ca lon,
Larmand any other permit application forms.
1. Application Title — For registrations, do not use this form, Apply online at vjvAv'h
Application Title
Requoill 10T lrcreaW Uaso!m garons ornuaf thto4hput to 2,000,1000 AIAI fz -f SO4
Project Upscription ioralboall
2. Facility Identification
Facility Narne RAAQMD Facility ID
WALVA FUELS, LLC 1 110730
3. Application Contact - Select existing contact or fill out Information below.
on' Same asOwner Contact F1 Same as Onarator Contact
First Name
Last Name
j UPINDER
SINGff
Business Name of Contact W d4ferent frofn 6q'ilyl
Contact Title
0%%INFR ,
Address Line I
Address Line 2 jojivon4i)
910 RAY' %*[>013 DR
City
state JF71p
Code
PETALUMA
CA
104954
E-mail Address
GS'IVA4.KM70YAHOO CW
Primary Phone (xxx-xkx-xw)
Alternate Phone (oiler)
Fax Number topflumill
707-293*203
A. Small Business & Green Business Certifications (Optional)
Small Business Eligibility — This section does not apply to gas dispensing facilities,
Does the facility Identified In Part 2 above;
Employ 10 employees or IV55? Yes No
Have a gross annual Income less than or equal to $750,0M? Yes ❑ No
Affiliated with another company? Yes ❑ No
If yes, does the affiliated company employ 10 employees or less? Yes [—] No
if yes, does the affiliated company have a gross annual income IC -55 than or equal to $750,0007 [j Yes 0 No
Green Business Certification
Is the facility Idenflified in Part 2 above currently certified under the Day Area Green Business Program as coordinated by the
Association of Bay Area Governments and Implerritnted by participating counties?
El Yes [I No 1—(=Yt—�s,--5-4-bi!iit-.icopy ,-of the current Green Business Certification.
S. Proximity to a K-12 School
Are any of the devices in this permit application within 1,000 feet of the outer boundary of a school, where a school 15
defined as kindergarten through Grade 12?
El Yes W No
pop 1 of 2 An Ororotifc YeWon of tfus(Ofrn and 11)-iltudiam can ton 1p-jn-d A
21-45
F10111PPIOW SAY AREA AIR QUALITY MANAGEMENT DISTRICT Mail to:
PERMIT APPLICATION COVER FORM
ji uIng DMsfon
376 Reale St, Suite GOO
All fields ere required unless othatwiso nol&& Ploaso typo or print San Fiaaci!=, CA 04105
Tel, (415) 749-40"
6. CEQA — If yes to either que5flon below, complete and submit the CEQA worksheet at the end of this form,
A, Has another public/regulatory agency prepared, required preparation of, or Issued a notice regarding
preparation of a California Environmental Quality Act (CCOA) document (Initial study, negative declaration,
environmental Impact report or other CECtA document) that analyzes Impacts of this project or another
project of which It Is a part or to which It is related? 0 Yes 0 No
8. Are there any other projects, prior or current, for which either of the following statements Is true?
The project that is the subject of this application could not be uncfertaken without the other project(s),
The other project(s) cannot be undertaken without the project that Is the subject of this application.
0 Yes 0 No
7. Application Billing Contact - Select existing contact or fill out information below.
E) Same a� Owner Contact [-] Sante asoperator Contact [] Same a!; 13111ing Conla ct
First Name
Last Name
Signature Date
Phone (oA-xxx-xxxx)
Businez Name of Contact Df different ((am foolityl
Comet Title
Address Line I
Address Line 2 (optionii)
City
fa t e �Zip
Code
E-mail Address
Primary Phone (xxx-x)e(-xxxx) Alternate Phone (optionill Fax Number loptivaill
B. Certification/Signature of person r"ponsiblo for the Information on this form.
I hereby certify that I am authorized to complete this form for the facility and that all Information confalned herein is true
and correct,
Name Title
JUNNOIER SINCII-I OVINER
Signature Date
Phone (oA-xxx-xxxx)
1013112017
page 7 of 2 Ail OW104',1' , 4 W0,1 0I this 10fat aid Iniltuttiu-ni tan bi- found at W)W7016
21-46
PW4MPp'*W BAY AREA AIR QUALITY MANAGEMENT DISTRICT mail to:
GAS DISPENSING FACILITY FORM Engineenn Divt-awfl
Now fumi for stand-aldno Offs only. 375 Beale St, Su4o HO
San Frandsw, CA 94105
All fialds aro roquirad unions othiiirwino n1olad. Ploano typo or print.
Tot: (415) 749-8915
2. Facility Information
Facility Name
I-BAAQMD Facility ID JE -Ming lac tilos qnk,jj
V,'A;A Fuels, LLC
U. ailed Gald,"nor4mgfokind
Facility _Address (5treetiddre.-.% kind uty)
D10 114fAoad Q,, Pablum, CA 04 054
2. General InWMMIO" - RUQNIQ ID is armilrWo d ypti rectilyeda Permit to Operate alter Mwch 1lot 2.
3. Operation Activities
Select the activity associated with this psollne dispensing facility (GDF)? l5ek-'t arse)
0 RefuelingMotor Vehicles (retail) 0 Refueling Motor Vehicles (non-retall) 0 Refueling Agricultural Vehicles
0 Refueling Aircraft (directly) 0 Refueling Marine Vessels
4. Tank and Vapor Recovery Informat'lan — Complete a section for each tank compartment at 015 GDF
%- if you have more than 4 tanks or compartments, submit the additional Information on a separate piece of paper.
Tank Ill
Material Stored
Tank, Type uiarq,!�Le#
Tank/Compartment Volume (GiVanfl
U. ailed Gald,"nor4mgfokind
-
I bwo
Manufacturer
Model
Phase llVaptar Rec�oveT��c
6PN IVR, I 021J
Phase I Vapor Recovery Type
Phase 11 Vapor Recovery Type
L 0M'1(VR'102)
EMCO WimalorNS t wVeede. Rcoll Vopor 116urter (VA,203)
Tank 112
Material Stored
Tank Type IWr.rtrawridor Vindtpowdi
I TjOICarnpariment Volume (Gillon.)
prefnum Uri!.'&did
Manufacturer
Urickwtend
Model
UhiLncmn
Manufacturer
Phase I Vapor Recovery Type
Phase llVaptar Rec�oveT��c
6PN IVR, I 021J
EVC0 VhW-,wW5f 'At %Imdv RW Vapor PeIzOw (VR -20)
Tank J13
Material Stored:TTank
T tow,-KfcwF-dei uftcwawm)
Tonvicompar(ment Volume (Gatlont)
Mosel Fue4 of 7
Unewatourtd
ONO
Manufacturer
Model
UIMMA11
Phase I Vapor Recovery Type
Phase 11 Vapor Recovery -Type
Etelf"Pt
Evcmw.
Tank IM
Material Stored I -Tank Type wid"giount-ii I To nk/Com pa time ii I Volume IGAIlowil
I
Manufacturer Model
Phase I Vapor Recovery Type Phase 11 Vapor Recovery Type
Nip I ill 2 An eteoromlc vorVon of W% toom oi,4 Imiructlow root be faund ot YwtiYi,l371 q-1 w Jr --y, %9512DI6
,,
21-47
PmgMPwmmv BAY AREA AIR QUAUTY MANAGEMENT DISTRICT
GAS DISPENSING FACILITY FORM
Now form for stand-alone G®Fs only.
All flouts oto roqulrad unto%s otherwise notod, Plaas4 typo or print.
S. Oaei
Continuous
0
g Schedule— Select'Contlnuous" or specify specific schedule In the 4 columns
p
.f€ DMall to:
9t%A
Enfpineerl'oo 0IMS100
375 Reate St , Shite 600
San Frnncisco, CA 14145
6, Product fitspensing Nozzles
Enter the number of nozzles you have for each of the following products. Enter '0' If the nozzle type does not exist.
Product Type
9 of Nozzles Produciltype
ti of Nozzles
Gasoline ® Single Product Nozzle
AV Gas
- Date
Gasoline — Dual Product Nozzle
Ethanol (E85)
1ea`31r2417
Gasoline s Triple Product Nozzle
Gasoline ® Four Product Nozzle
a Jet fuel -
Kerosene
Gasoline -- Five Product Nozzle
F Methanol
Diesel
a Other Liquid Fuel
filodiesel
_
7, Facility Plot Pian (See Instructions)
I have completed a facility plot plan and attached it with this form,
a. Liquid Condensate Trap
0 Yes 0 No
Whet type of liquid condensate trap is used at this GDF7 rarer
9. Material Usage Enter the maximum annual usage (dispensed) for each material Identifled in Part n
Material Maximum Dispensed/Year Material Maximum Dispensed/Year
(Gallons) (Gallons)
un!&40dca rr, 1,504. m
Dle!sel Fu41 e 2 5co;4oa
10, Certification/Signature of person responsible for the information on this form.
This form contains confidential Information, Q No 0 Yes (If Yes, see instructions.)
I hereby certify that J am authorized to complete this form for the facility and that oil Information contained herein is true
and correct.
Name Title
3ag!ndet ,'n9h
awnet
=
Si nature
- Date
Phone
;> _ :.
1ea`31r2417
7t1T92 3'[i2 3
Emission calculation mgftrl ly
Default methodology used? Yes ( No
Rownstream Devices & Operations
List any abatement devices or ernlssion points that are immediately downstream of this GDF.
Abatement Device or Emission Paint Name BAAQMD Device ID
'Page 2of2 Airelet trerricvers~enofth'syto,m4rid Instru4nranscinhefou ndat� r+�u.1,r,;rrrdiLy
21-48
PENEW--dr BAY AREA AIR QUALITY MANAGEMENT DISTRICT
GAS DISPENSING FACILITY EQUIPMENT WORKSHEET
Mae All fluids are required unlcms otherwise noted. Ploaso typo or print.
Mall to:
BAAQMD
r:Nnoerinq Wklorl
375 Beale St, Sulte 600
San Francisco, CA '041n5
Tui: (4151749- S
1. Facility Information
Facifity Name BAAQMD Facility ID (F-viong taotitles -nly)
Walij Futll, LLC 1107M
Device ID
* See Instructions
2. Nozzle Types - Provide Information for cqutprnenj that tniptnws gavoltne, eth4nul, mothinal or avl3tton gar,
Material Dispensed
Nozzle Make & Model Material Dispensed Nozzle Make & Model
(301 -01 -no
VST ORVR
134sel Putl 0 2
Hutlee 105
3. Dispenser Information - Provide Intotmation for equipment that dl"m"vi%ellne. etfurml, methanol orovlAtton zim
Material Dispensed
Dispenser Make & Model material Dispemed Dispenser Make & Model
GaU---LMV
G,;bzmo Advantap B70
Dkicl Fuct 0 2
G,-'"rcu AdvantalJ4 E170
4. Additional Tank Information
Are all gaicillnestarage t-anks filled through suhmerged fill pipe? g9e5 No
For aboveground gasoline storage tanks, If any, Is/are dispense( (s) mounted on the lank? [] Yes E) No [W N/A.
If no to any question in Part 4, please explain.
S. Other Equipment -Skip vhnloni that ire noiiriplk-We
Make ,& Model of Liquid Condensate Trap(s) ___[-Number
How many blending valves are at this GOR 14
6. Certification/Signature of person responsible for the Information on this form,
This form contains confidential Information. No [:] Yes (if Yes, see Instructions.)
I hereby certify that I am authorized to complete thisjbrmfor the facility and that all information contained herein Is true
"mi rnj-jrprt.
Norse
Title
jupkod& h
&Nn -t
__Signature Date Rhone
Page 10 1 An vkctrtnlc walm at this loran and lnAjrvnkji% can be talind ;1,W016
� �Iqm_
21-49
PMOBPw-7 DAY AREA AIR QUAUTY MANAGEMENT DISTRICT Mall to:
P11111111000ft I WOMID
HEALTH RISK ASSESSMENT FORM Enqrnoetlng DW ion
0111110ft For permit opplicaflono that cauto ornissio" levels aboya triggom In Rogulation 2, Ruta 6 376 Be,04) SI., Sulo
600
Sari Frrirrcisca. CA 04105
All fields are required unless otherwise noted, Ploaso typo or print
10; (415) 749-4M,
1. Facility Identification
Facility Name
OAAQMD Ficlll!Y ID jBivilrig, =0
Vhf ,a FWA, LLC
1107M I
Z. Area Map 15ce Instructions)
I have corn pleted an area map and attached it with this form, 0 Yes 0 No
31 Building Information — Attach separate sheet if alddli-ionalspace 15 needed,
The dimensions of the buildings listed In this section are In: (stitt ane) 0 Feet 0 Meters
Provide Information on all buildings Identified In the area map from Part 2.
Building N
Building Name
V.a4i Futf% LLC
Height
Ira
Width
Length
TYPO of Occupants
40
31
ErrfA7,-6t1-j
2
3
Rpt6A'ntal A;4rttwn1%
14ns it Apitftnts70
02
92
3D
ID
Rotw'OK0.5
Ro'lldaw'%
4
7-11 a
tp
BD
io
01:rwr W_-A.erN
4. Device Location —Attach separate sheet 11 additional space is needed.
Provide Information on all devices included In title. application. For new devices, skip 8AAQMD Device ID, If device is
outside, skip Buildin
BAAQMD Device ID Device Name Location Building
5, Certification/Signature of person responsible for the information an UIN form.
This form contains confidential information. 0 No 0 Yes (it Yes, see Instructions.)
11f0ehycertify filar tam authorized to complete this form for (lie facility and that off Information contained herein Is true
and correct,
Name Title
Jup1hilef Soon Omar
Signature 'Date - __ phone
101131r,017 707403-0263
Nie I of I An olff>Ironlr voril" of WN form and IMINUIcns can b,- found at wvw W -4 ;MlJULWI 400027
21-50
P91150""'T BAY AREA AIR QUALITY MANAGEMENT DISTRICT Mail to:
OWWOOR&
CE CIA Worksheat EVVQMD
W W-ftCr taarlrta D'+Sjon
Raquirod If answered 'Yos"to plftr questlon In Part 6 of Permit Applicallon Cover Ionil, 375 Beale St" SOO 600
ft -10117 &an Frandsto, CA 94 i 05
ME&
All fields are required tinloss othotwtso noted, Please typo or print. Teli (d15) 7404M
Y. CE QA Documentation (Skip If you answered NO to Part 6A an Permit Application cover form,)
Document or Notice Type (Choose one)
0 Environmental Impact Report 0 Initial Study 0 � ega ' five Declarat'lon
0 Notice of Completion 0 Notice of Determination 0 Notice of Exemption
0 Notice of Preparation -0 Other (epecify):
Date of Documpnt/t4citice,or
Expected Date of Com lotion
Electronic LP a
ink to document, It available http://wwv�.ex. mple.com)
JUMPiDER S114GH
OVAIER
Lead Agency Name
LeadA,en Contact Mame
(xxx-xxx.xxm)
toad Agency Contact Phone (kxx-yyX-x)o(x)
Lead Agency Contact E -mall Address, if avallable,
If not available online, submit a copyof all available documentation with this watksheet.
2. Related Projects (Skip If you answered NO to Part 68 on Permit Application cover form.)
List and describe all other prior or current projects that are related to the project that is subject to this application.
Name or Related Prior or Current Project RAAC MD Application Al wav0ot-lel
Description of Related Project
3. Certification/Slgnature of person re5ponslble for the information an this form.
I hereby certify that I am authorized to complete this form for the facility and rho( 611 information con(olned herein Is true
and correct.
Name
Title
JUMPiDER S114GH
OVAIER
Signature
Date ::::::FPtJone
(xxx-xxx.xxm)
I WJ 110 17
1707,203-0203
iIJA'o I of I Aii ekctronlll YeWan at this fotrn and Initrunions can he found i), wew
21-51
F06ZSF"'�- 8AY AREA AIR QUALITY MANAGEMENT DISTRICT
EMISSION POINT FORM
ftWv All flalds are required unloss otherwise noted. lod. Ploatio type or print.
Submittal type: (Serect one)
0 New emission point (EP)
1. Facility Information
Mall to,
13AAMID
Engineering Division
375 Efoalo Sl" Su'de (300
San Frat ricisco. CA 94105
(F) Existing EP on permit 0 Existing EP not on permit
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21-52
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21-53
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21-61
Filed 11/26/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
ALLIANCE OF CONCERNED
CITIZENS ORGANIZED FOR
RESPONSIBLE DEVELOPMENT,
Plaintiff and Appellant,
V.
CITY OF SAN JUAN BAUTISTA et al.,
Defendants and Respondents;
HARBHAJAN DADWAL,
Real Party in Interest.
H044410
(San Benito County
Super. Ct. No. CU -14-00166)
The Alliance of Concerned Citizens Organized for Responsible Development
(ACCORD) filed a petition for writ of mandate and complaint for injunctive relief
(petition) against the City of San Juan Bautista (City) and its city council (City Council)
(together, respondents) to challenge the approval of a proposed project that consisted of a
fuel station, convenience store, and quick serve restaurant on The Alameda near the
intersection of State Route (SR) 156 and the adoption of a mitigated negative declaration
(MND) for the project. Among other things, the petition sought to force respondents to
vacate project approvals and compel the preparation of an Environmental Impact Report
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III.
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(EIR) under the California Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.).r
On March 14, 2016, the trial court granted a so-called "Peremptory Writ of
Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts"
(March 2016 decision), which required respondents to set aside the resolutions,
reconsider the significance of the project's potential noise impacts, take further action
consistent with CEQA, and file a return to the writ. ACCORD did not appeal from that
decision. It now appeals from the so-called "Final Judgment on Petition for Writ of
Mandamus" subsequently filed on December 12, 2016 (December 2016 decision), which
determined that respondents' supplemental return complied with the peremptory writ and
with CEQA as directed.
On appeal, ACCORD argues that (1) the City was required to prepare an EIR
because there was substantial evidence in the record supporting a fair argument that the
proposed project may have significant, unmitigated traffic and noise impacts and that
(2) the project violated the City's municipal code governing "formula retail businesses."
This court requested supplemental briefing to determine (1) whether the
March 14, 2016 decision—which resolved all issues raised by the petition, granted a
peremptory writ, and required a return—was in fact the final judgment, (2) whether the
December 2016 decision was an order after judgment, and (3) the proper scope of
appellate review. We now conclude that the March 2016 decision was the final judgment
and the December 2016 decision was a postjudgment order. We consider ACCORD's
' All further statutory references are to the Public Resources Code unless
otherwise specified. All references to "Guidelines" are to the state CEQA Guidelines
implementing CEQA (Cal. Code Regs., tit. 14, § 15000 et seq.) "[C]ourts should afford
great weight to the Guidelines except when a provision is clearly unauthorized or
erroneous under CEQA. [Citation.]" (Laurel Heights Improvement Assn. v. Regents of
University of California (1988) 47 Cal.3d 376, 391, fn. 2.)
21-63
2
contentions insofar as they are cognizable in this appeal and find them meritless.
Accordingly, we affirm the December 2016 decision.
Administrative and Procedural History
Harbhajan Dadwal (Dadwal), the real party in interest (RPI), filed an application
for informal project review.
An Initial Study and Mitigated Negative Declaration (IS/MND), dated
"January 2014," was prepared for the City concerning the proposed project.
A notice of intent to adopt a mitigated negative declaration (MND) was filed on
January 14, 2014.
By resolution adopted on February 4, 2014 (Resolution 2014-04), the City's
planning commission (Planning Commission) approved Dadwal's application for a
design review permit (Design Review Project No. DR 2014-101) and his application for a
conditional use permit (CUP 2014-101), subject to certain conditions and mitigation
measures. By letter dated February 11, 2014, Leal Vineyards, Inc. appealed the Planning
Commission's approvals.
A second IS/MND, dated July 31, 2014, concerning the project was prepared for
City.
A comment letter received from the California Department of Transportation
(Caltrans) on September 9, 2014 offered two comments. The first comment concerned
"the need for an eastbound right turn channelization/turning lane" for traffic entering
SR 156 from The Alameda. Caltrans stated in the letter: "Considering the speeds on
SR 156 and the fact that this project will essentially double the amount of vehicle slowing
in the through lane to navigate the turn (from existing 55 to 99 trips), these impacts are
project -specific and should be mitigated prior to opening day of the project. This
improvement is important for safety of the intersection since serious rear -end collisions
can occur under these circumstances." The second comment concerned the requirement
21-64
of an encroachment permit. Caltrans's letter explained that "[a]ny work within the State
right-of-way will require an encroachment permit issued from Caltrans." It stated that
"[d]etailed information such as complete drawings, biological and cultural resource
findings, hydraulic calculations, environmental reports, traffic study, etc., may need to be
submitted as part of the encroachment permit process."
Another notice of intent to adopt an MND was filed on October 14, 2014.
By resolution adopted on November 18, 2014 (Resolution 2014-43), the City
Council (1) made findings concerning CEQA, the second IS/MND, and the project and
(2) approved the second IS/MND and the mitigation monitoring program. By a second
resolution adopted on November 18, 2014 (Resolution 2014-44), the City Council
(1) denied the appeal of Leal Vineyards, Inc., (2) approved the Planning Commission's
approvals of Dadwal's applications for a conditional use permit and a design review
permit, and (3) approved the project, subject to the conditions and mitigation measures
imposed by the Planning Commission in its Resolution 2014-04, Exhibit C. In its second
resolution, the City Council also made CEQA and project findings and approved
conditions of project approval.
A notice of determination was filed on November 19, 2014.
On December 19, 2014, ACCORD filed its petition. It described the proposed
project as follows: "[A]n ARCO gas station including 6 gas pumps, 12 fuel dispensing
stations, a 2,980 square foot convenience store, and a 3,342 square foot fast food
restaurant to be illuminated with lighted signs and open from 5 a.m. until 11 p.m. every
day with daily truck deliveries."
The petition alleged multiple CEQA violations including that the City violated
CEQA by not preparing an EIR because construction and operation of the project would
cause significant environmental impacts. It also alleged that substantial evidence in the
record showed that the project conflicted with the City's general plan and that in
approving the project, the City violated state planning and zoning law, its own zoning
21-65
4
code, and its municipal code provision applicable to formula retail or restaurant
businesses (San Juan Bautista Mun. Code, § 11-04-110).2
The petition sought a writ of mandate compelling the City to (1) vacate and set
aside its 2014 resolution approving the project (Resolution 2014-44), (2) comply with
CEQA, state planning and zoning law and its own general plan and municipal code, and
(3) suspend all activity under the resolution that could affect the environment until such
compliance. It also sought an injunction prohibiting the City and the RPI from "taking
any action to implement or enforce the Resolution, including any action to begin grading
or construction of the Project."
Hearings were held on the petition on February 8, 2016 and February 22, 2016.
After the hearings, the court issued the March 2016 decision, which had been prepared by
attorneys for the RPI.
The March 2016 decision indicated the trial court determined that the issue of
potential noise impacts was severable pursuant to section 21168.9 and that the project and
the challenged actions of respondents were otherwise "in compliance with CEQA." The
decision found in favor of respondents and the RPI on all other "issues raised in the
Petition."
The March 2016 decision compelled respondents to set aside Resolutions 2014-43
and 2014-44, and it directed respondents to reconsider the'noise impacts of the proposed
project, to determine whether any significant noise impacts could be mitigated to less
than significant levels, to adopt any appropriate and feasible mitigation measures, and to
adopt the appropriate environmental document or take other appropriate action consistent
with CEQA. The decision also prohibited respondents from permitting, and the RPI from
2 The City's municipal code defines "[fJormula retail or restaurant business
development" to mean "a retail, restaurant, or fast-food business that is required by
contractual or other arrangement to maintain standardized services, merchandise, menus,
ingredients, food preparation, uniforms, decor, logos, architecture, signs, or similar
features." (San Juan Bautista Mun. Code, § 11-29-010.)
21-66
undertaking, any project construction activities that could result in any change or
alteration to the physical environment until the resolutions had been "reconsidered" and
"brought ... into compliance with CEQA."
The March 2016 decision directed the City to take the following action: "CITY
shall undertake such further studies and proceedings as may be necessary and appropriate
to evaluate and consider the proposed Project's noise impacts on the environment,
determine whether any such impacts that may be significant can be mitigated to less than
significant levels, and if appropriate and feasible, adopt mitigation measures. Such
compliance may take the ultimate form of adoption of a negative declaration, [an MND],
[a] focused EIR, rejection of any of the above, or such other action consistent with CEQA
as may be appropriate." The City was also directed to "comply with all notice and
procedural requirements of CEQA, including an opportunity for public review, comment,
and a hearing on any further action proposed by [the City]." It ordered respondents to
file a return to the writ no later than October 10, 2016.
Respondents' supplemental return to the writ stated that respondents had filed a
return to the writ prior to the return date of October 10, 2016 and that the supplemental
return had been filed "to advise the court that the Project was approved after a public
hearing on October 18, 2016." The supplemental return stated: "On April 19, 2016, the
Respondents adopted Resolutions [sic] 2016 -21, setting aside Resolutions 2014-43 and
2014-44, which approved the Project. A new noise analysis for the project was prepared
by Charles M. Salter Associates Inc. and completed on April 18, 2016. A new [IS/MND]
was prepared, by Hatch, Mott, and McDonald on July 11, 2016, which incorporated the
new noise analysis. The matter was fully and legally noticed and full rights were given
by the public to participate in the process. After hearing all information presented by the
public, the City Council at the hearing on appeal on November 18, 2014, after having
reviewed all materials included with the agenda packet, heard and considered all
comments and materials made and submitted by Petitioner, Applicant, staff, and other
21-67
6
interested parties approved the project and adopted Resolutions 2016-47 and 2016-48
approving the Project." The City requested entry of final judgment.
ACCORD filed its opposition and objections to the supplemental return and
proposed final judgment. It argued that respondents' supplemental return did not
demonstrate compliance with CEQA or the peremptory writ and that adoption of an
MND was an abuse of discretion. ACCORD maintained that there was a fair argument
that the project could potentially result in adverse environmental noise impacts and
therefore, preparation of an EIR was required. The RPI filed a reply to ACCORD's
opposition and objections.
The December 2016 decision stated that "at the February 22, 2016 hearing[, the
trial court had] ruled in favor of RPI and Respondent on all matters presented by the
Petitioner except for the issue of whether the project would produce noise impacts
sufficient to produce an EIR." It recited that "[p]ursuant to this Court's Peremptory Writ,
Respondent[s] set aside Resolutions 2014-43 and 2014-44 on April 19, 2016, and
prepared a new noise analysis utilizing the traffic data from the traffic report in the
previously adopted [MND]. The new noise analysis was prepared by Charles M. Salter
Associates, Inc. and found the Project would not produce significant noise impacts, with
mitigation measures.... A Revised [IS/MND] ... was prepared by Hutch Mott
MacDonald on July 11, 2016 which incorporated the new noise analysis and mitigation
measures."
The December 2016 decision stated that "[i]n compliance with the terns of the
Peremptory Writ, Respondent filed a Return to the Writ on October 10, 2016 stating that
the Project was set for hearing on October 18, 2016 and that Respondent would inform
the Court as to the action taken in that hearing via a supplemental return." It also recited:
"After hearing and considering comments and materials submitted by the public, the
Petitioner, the Applicant, staff, and other interested parties, and after reviewing all
materials included in the staff report and agenda packet at the public hearing before the
21-68
7
City Council of San Juan Bautista on October 18, 2016, the City Council approved the
project and adopted Resolutions 2016-47 and 2016-48. Resolution 2016-48 served to
approve the project with conditions and appropriate mitigation measures[] and deny the
appeal of the project, and Resolution 2016-47 served to adopt the Revised [IS/MND]."
The December 2016 decision stated that respondents had filed a supplemental
return demonstrating compliance with the peremptory writ and CEQA. Although the
court had already resolved the petition's allegations and granted a peremptory writ, it
ostensibly "denied" ACCORD's petition for writ of mandamus and entered "U]udgment"
in favor of respondents and the RPI "in all matters." Attached as exhibits to the
December 2016 decision were the new noise analysis prepared for the City, dated
April 18, 2016, and the City's new resolutions (Resolutions 2016-47 and Resolution
2016-48).3
By notice of appeal filed on February 17, 2017, ACCORD appeals from the
December 2016 decision.
II
Cognizable Contentions on Appeal
This court directed the parties and the RPI to address in supplemental briefing the
following issues: (1) whether the March 2016 decision was the final judgment despite its
label; (2) whether the December 2016 decision was a postjudgment order despite its
label; and (3) whether ACCORD's contentions had been forfeited and are not cognizable
3 By resolution adopted on Octoberl8, 2016 (Resolution 2016-47), the City
Council approved a new IS/MND and a mitigation monitoring program. By a second
resolution adopted on that same date (Resolution 2016-48), the City Council adopted
CEQA and project findings, approved conditions of project approval, denied an appeal of
the Planning Commission's approvals of the project, approved the Planning
Commission's decision to approve applications CUP 2014-11 and DR 2014-11, and
approved the project, subject to the conditions and mitigation measures imposed. Both
resolutions contained a factual recital indicating that a new IS/MND had been prepared,
which incorporated the new noise analysis.
21-69
8
on this appeal except insofar as they relate to whether the trial court erred in determining
that respondents fully complied with its March 2016 decision.4
A. Grant of the Peremptory Writ was the Final Judgment for Appeal Purposes
"The right to appeal is wholly statutory. [Citation.]" (Dana Point Safe Harbor
Collective v. Superior Court (2010) 51 CalAth 1, 5.) In general, a civil appeal may be
taken "[f]rom a judgment, except an interlocutory judgment." (Code Civ. Proc., § 904.1,
subd. (a)(I).) An appeal may also be taken from "an order made after a judgment made
appealable by" Code of Civil Procedure section 904.1, subdivision (a)(1). (Code Civ.
Proc., § 904.1, subd. (a)(2).)
In general, "[a] judgment is the final determination of the rights of the parties in an
action or proceeding." (Code Civ. Proc., § 577, italics added.) Likewise, "[a] judgment
in a special proceeding is the final determination of the rights of the parties therein. ,5
(Code Civ. Proc., § 1064; see Code Civ. Proc., § 1109.) Writs of mandamus are "special
proceedings of a civil nature" governed by provisions in Part 3 of the Code of Civil
Procedure. (See Code Civ. Proc., § 1084 et seq.; see also Dhillon v. John Muir Health,
supra, 2 Cal. 5th at p. 1115.)
"Under the one final judgment rule, ` "an appeal may be taken only from the final
judgment in an entire action." ' [Citation.] ` "The theory [behind the rule] is that
piecemeal disposition and multiple appeals in a single action would be oppressive and
4 On this court's own motion, we strike the "Declaration of Zachary Walton" filed
on behalf of ACCORD on the same date as its supplemental briefing and the "Declaration
of Cody Phillips" filed on behalf of the RPI as part of his supplemental brief. Both were
filed without this court's permission and went beyond the request for supplemental
briefing. Respondents join in the RPI's supplemental brief.
5 "[U]nless the statute creating the special proceeding prohibits an appeal, there is
an appeal from a final judgment entered in a special proceeding. [Citation.]" (Knoll v.
Davidson (1974) 12 Cal.3d 335, 343 [peremptory writ of mandate]; accord Dhillon v.
John Muir Health (2017) 2 Cal. 5th 1109, 1115.)
6 A "writ of mandamus may be denominated a writ of mandate." (Code Civ.
Proc., § 1084.)
21-70
9
costly, and that a review of intermediate rulings should await the final disposition of the
case." ' [Citations.]" (In re Baycol Cases I & II (2011)51 Cal.4th 751, 756.)
"It is not the form of the decree but the substance and effect of the adjudication
which is determinative. As a general test, which must be adapted to the particular
circumstances of the individual case, it may be said that where no issue is left for future
consideration except the fact of compliance or noncompliance with the terms of the first
decree, that decree is final, but where anything further in the nature of judicial action on
the part of the court is essential to a final determination of the rights of the parties, the
decree is interlocutory." (Lyon v. Goss (1942) 19 Cal.2d 659, 670; accord, Griset v. Fair
Political Practices Com'n (2001) 25 Ca1.4th 688, 698-699 (Griset).) "[A] judgment is
final, and therefore appealable, ` " `when it terminates the litigation between the parties
on the merits of the case and leaves nothing to be done but to enforce by execution what
has been determined.' " ' [Citation.]" (Dhillon v. John Muir Health, supra, 2 Cal.5th at
p. 1115.) For example, "[a] decree in equity which is denominated `interlocutory' and
directs a further hearing for certain purposes, may make so complete and final an
adjudication of all issues of fact and law as to constitute a `final judgment' within the
meaning of that term as used in the statutes concerning appeals." (Lyon v. Goss, supra,
19 Cal.2d at p. 669.)
A judgment labeled "interlocutory" nevertheless may be final for purposes of
appeal if it is a final determination of the parties' rights. In Eldridge v. Burns (1978) 76
Cal.App.3 d 396, the trial court issued a decision labeled " `Interlocutory Judgment' " (id.
at p. 402) which expressly stated that "[t]his is an interlocutory judgment and the court
retains jurisdiction to resolve disputes between [the parties] ...." (Ibid., fn. 1.) The
appellate court observed that "[t]he mere fact that other proceedings were deemed
necessary by the court to carry the judgment into effect did not render the judgment
interlocutory rather than final." (Id. at p. 405.) It concluded that the so-called
interlocutory judgment was an appealable final judgment because "there was nothing
21-71
10
further in the nature of judicial action on the part of the court essential to a final
determination of the asserted rights of the respective parties" in that "[t]hose rights were
fully established by the judgment." (Ibid.)
Contrariwise, an order labeled a " `final judgment' " may not be a final judgment.
"[N]o effect can or should be given to [a final judgment] label if the judgment does not in
fact conclude matters between the parties. [Citation.]" (Jackson v. Wells Fargo Bank
(1997) 54 Cal.App.4th 240, 244].) "It is the substance and effect of the court's order or
judgment and not the label that determines whether or not it is appealable. [Citation.]"
(Art Movers, Inc. v. Ni West, Inc. (1992) 3 Ca1.App.4th 640, 645.)
"In its most fundamental sense, `finality' is an attribute of every judgment at the
moment it is rendered; indeed, if a judicial determination is not immediately `final' in this
sense it is not a judgment, no matter what it is denominated. The Legislature has
incorporated this meaning of finality into the very definition of a judgment: `A judgment
is the final determination of the rights of the parties in an action or proceeding.' (Code
Civ. Proc., § 577, italics added.)" (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th
288, 304.) "Finality in this sense not only makes a judicial determination a judgment, it
also makes that judgment appealable.... `A judgment that leaves no issue to be
determined except the fact of compliance with its terms is appealable.' [Citation.]"
(Ibid.)
As indicated, "[a] judgment in a special proceeding is the final determination of
the rights of the parties therein" (Code Civ. Proc., § 1064), and writs of mandamus are
"special proceedings of a civil nature." (See Code Civ. Proc., § 1084 et seq.; see also
Dhillon v. John Muir Health, supra, 2 Cal.5th at p. 1115.) A writ of mandate "may be
either alternative or peremptory." (Code Civ. Proc., § 1087.) An alternative writ of
mandate "command[s] the party to whom it is directed immediately after the receipt of
the writ, or at some other specified time, to do the act required to be performed, or to
show cause before the court at a time and place then or thereafter specified by court order
21-72
11
why he has not done so." (Ibid.) In contrast, a peremptory writ of mandate commands a
party to do the act required. (Ibid.)
Where a petitioner seeks a writ of mandate, statutory law allows a peremptory writ
to be issued in the first instance "if the application is upon due notice and the writ is
allowed." (Code Civ. Proc., § 1088.) Thus, a peremptory writ is either preceded by
issuance of an alternative writ or issued in the first instance. (See Asimow et al., Cal.
Practice Guide: Administrative Law (The Rutter Group 2017) ¶ 20:210, p. 20-24; see also
id., ¶ 18:262, p. 18-37.)
In general, "[w]hen the trial court issues its judgment granting a peremptory writ,
the respondent has two choices: to appeal that judgment or to comply with it." (Los
Angeles Intern. Charter High School v. Los Angeles Unified School Dist. (2012) 209
Cal.App.4th 1348, 1354.) But if a writ petition has been joined with other causes of
action and a decision leaves substantive issues or causes of action to be resolved in future
proceedings, there may not be a final judgment yet. (See Griset, supra, 25 Cal.4th at
7 The issuance of an alternative writ of mandate contemplates responsive
pleadings, including a return (by Way of demurrer, a verified answer, or both) (Code Civ.
Proc., § 1089; see id., § 1089.5) and a reply (see In re Scott (1928) 205 Cal. 525, 526-
527; see also Code Civ. Proc., § 1091; Hunt v. Mayor and Council of City ofRiverside
(1948) 31 Cal.2d 619, 623 [allegations of answer will be accepted as true if not
controverted]), and a hearing and possibly evidentiary proceedings (see Code Civ. Proc.,
§§ 1087-1088, 1090, 1091, 1094; see also Gomez v. Superior Court (2012) 54 Ca1.4th
293, 301). If a petitioner prevails on an alternative writ, the trial court grants a
peremptory writ of mandate (see.Code Civ. Proc., § 1095). When the respondent
prevails, a court denies a peremptory writ and discharges the alternative writ. (See Cal.
Civ. Writ Practice (Cont. Ed. Bar 4th ed. 2018) § 9.48, p. 9-18; Cal. Judges Benchbook:
Civ. Proc. After Trial (2017 ed:) Other Writ Proceedings in Superior Court, § 5.26,
p. 352) In the situation where a respondent performs the act required in the alternative
writ before judgment, "the writ has accomplished the purpose of the mandamus
proceedings and the petition should be dismissed as moot. [Citations.]" (Bruce v.
Gregory (1967) 65 Cal.2d 666, 671; see Environmental Protection Information Center,
Inc. v. State Bd. of Forestry (1993) 20 Cal.App.4th 27, 28 ["after an alternative writ of
mandate is fully complied with by the respondent, the issuing court retains no continuing
jurisdiction in such proceedings over the subject matter of the writ petition"].)
21-73
12
pp: 696-697; see also id. at p. 699 ["denial of plaintiffs' petition for a writ of mandate
disposed of all issues in the action" and was a final judgment]; Morehart v. County of
Santa Barbara (1994) 7 CalAth 725, 743 ["an appeal cannot be taken from a judgment
that fails to complete the disposition of all the causes of action between the parties even if
the causes of action disposed of by the judgment have been ordered to be tried separately,
or may be characterized as `separate and independent' from those remaining"].)
The grant of a peremptory writ "may include a return date as a technique for
ensuring compliance and closure." (Cal. Judges Benchbook: Civ. Proc. After Trial
(CEJR 2017) Other Writ Proceedings in Superior Court, § 5.27, p. 353.) Although also
called a "return," the return to a peremptory writ is different from a return to an
alternative writ in that its purpose is to ensure that respondent took the actions required
by the writ. (See 1 Cal. Civ. Writ Practice (Cont. Ed. Bar 4th ed. 2018) §§ 8.2, 9.42,
10.3-10.9, pp. 8-4, 9-17, 10-2 to 10-5; Los Angeles Intern. Charter High School v. Los
Angeles Unified School Dist., supra, 209 Cal.AppAth at p. 1355.) "Generally, the return
to the peremptory writ will take one of two forms: that respondent has complied or that it
has appealed or otherwise has grounds not to have complied." (Asimow et al., Cal.
Practice Guide: Administrative Law (The Rutter Group 2017) ¶ 21:280, p. 21-35.) The
fact that "there are additional proceedings involving the return on the [peremptory] writ
does not change the finality of the judgment issuing the writ. [Citation.] The order
following the hearing into the adequacy of [a respondent's] return on the writ is
appealable as an order enforcing the judgment. [Citations.]" (Los Angeles. Intern.
Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.AppAth 1348,
1354-1355.) "On appeal from an order discharging a [peremptory] writ, the issue is
whether the trial court erred in ruling that the respondent ... complied with the writ."
(Id. at p. 1355.)
We note that the confusingly titled March 2016 decision ("Peremptory Writ of
Mandate of Interlocutory Remand ...") was prepared by the attorneys for the RPI. Its
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label is seemingly self-contradictory because an interlocutory remand is not a final
judgment, whereas the grant of a peremptory writ is ordinarily a final judgment unless
there remain undecided claims or pending causes of action (such as where there is a
combined pleading and the entire controversy is not resolved). (See Griset, supra, 25
Cal.4th at p. 697.) We now examine the substance and effect of the decision to determine
whether it was the final judgment in this case.
The March 2016 decision disposed of all CEQA and non-CEQA issues raised by
the petition and concluded that respondents had not complied with CEQA with respect to
the potential noise impacts of the project. The decision was not tentative or partial. The
March 2016 decision left for future determination only whether respondents had obeyed
the peremptory writ, and they were required to demonstrate their compliance by a return.
The issue to be determined at a future hearing was whether respondents' new actions
complied with the peremptory writ, which required reconsideration of the project's
potential noise impacts and compliance with CEQA going forward. Of course, the
petition did not raise any claim of error regarding those new actions.
But the March 2016 decision itself stated that it was not the final judgment in the
case. It stated that following the return, the court would "conduct such further
proceedings as are necessary and appropriate and determine whether to enter a final
Judgment." It further declared: "Nothing contained herein shall be construed as a final
Judgment for purposes of appellate review by any party to this action."
The parties have not directed us to any California case holding that the subjective
intentions of the court or the parties as to the finality of a decree can trump its actual
substance and effect for purposes of appeal. Although the March 2016 decision had the
effect of sending the matter back to respondents for further action and thus could be
regarded as a remand in the most general sense, its self -description as a nonappealable,
interlocutory remand was not determinative.
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The substance and effect of the March 2016 decision, which granted a peremptory
writ, compel our conclusion that it was the final judgment for purposes of appeal. (See
Griset, supra, 25 CalAth at p. 700; see also Dhillon v. John Muir Health, supra, 2 Cal.5th
at p. 1117; Public Defenders' Organization v. County of Riverside (2003) 106
Cal.AppAth 1403, 1410 [where rights put at issue by petition for writ of mandate had
been adjudicated, the issue "[w]hether the County [was] complying with that judgment
[granting a petition for writ of mandate] is not relevant to whether the judgment is final
and appealable."].) While a trial court has continuing jurisdiction to ensure compliance
with a peremptory writ of mandate (see County of Inyo v. City of Los Angeles (1976) 61
Cal.App.3d 91, 95; Code Civ. Proc., § 1097), the writ's validity is not at issue on appeal
from an order enforcing the writ. (See Robles v. Employment Development
Department (2015) 236 Ca1.App.4th 530, 546.) The reviewing court's focus is on a
respondent's response to the grant of the writ and "the trial court's assessment of that
response. [Citation.]" (Ibid.)
In light of our conclusion, the December 2016 decision could not be the final
judgment, regardless of its title. "[A]n order regarding adequacy of a return [is an order]
relating to enforcement of a judgment" (City of Carmel -By -The -Sea v. Board of
Supervisors (1982) 137 Cal.App.3d 964, 971), and it is appealable as an order after an
appealable judgment. (Ibid.; see Ballona Wetlands Land Trust v. City of Los Angeles
(2011) 201 Cal.AppAth 455, 464, fn. 2 (Ballona); Code Civ. Proc., 904.1, subd. (a)(2);
Leftridge v. City of Sacramento (1941) 48 Cal.App.2d 589, 595 [order discharging
peremptory writ was an appealable postjudgment order].) Accordingly, despite its label,
the December 2016 decision was actually an appealable postjudgment order (Code Civ.
Proc., § 904. 1, subd. (a)(2)), which is most reasonably construed as an order discharging
the peremptory writ.
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15
B. Interlocutory Remands
ACCORD urges us to conclude that the March 2016 decision was an interlocutory
remand order from which it could not appeal. ACCORD relies heavily on Voices of the
Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499 (Voices), a non-
CEQA, administrative mandamus action (Code Civ. Proc., § 1094.5). In Voices, the trial
court ordered an interlocutory remand to a regional water board, requiring it to reconsider
a finding. (Voices, supra, 52 Cal.4th at pp. 511-513, 535.) ACCORD has not shown by
reference to the record that review by petition for writ of administrative mandamus was
available to review respondents' challenged actions.$ (See Code Civ. Proc., 1094.5,
subd. (a).)
In Voices, "the administrative record did not support one finding by the agency in
support of its issuance of a permit essential to the peimittee's operations." (Voices,
supra, 52 Cal.4th at p. 535.) The California Supreme Court concluded that the trial court
could properly order a limited, prejudgment remand to allow the administrative agency to
reconsider its findings that lacked sufficient evidentiary support and the agency could
consider additional evidence upon remand. (Id. at p. 526; see id. at pp. 530 ["no error in
the trial court's use of an interlocutory remand to resolve perceived deficiencies" in
regional water board's fmdirig], 535 [trial court "acted properly by remanding to the
agency for additional evidence and analysis"].)
In Voices, the Supreme Court stated that "properly understood and interpreted,
subdivisions (e) and (f) of section 1094.5 impose no absolute bar on the use of
8 The inquiry in an administrative mandamus proceeding "extend[s] to the
questions whether the respondent has proceeded without, or in excess of, jurisdiction;
whether there was a fair trial; and whether there was any prejudicial abuse of discretion."
(Code Civ. Proc., § 1094.5, subd. (b).) "Abuse of discretion is established if the
respondent has not proceeded in the manner required by law, the order or decision is not
supported by the findings, or the findings are not supported by the evidence." (Ibid.)
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16
prejudgment limited remand procedures such as the one employed here."9 (Voices,
supra, 52 CalAth at p. 526.) The court disapproved two cases (Sierra Club v. Contra
Costa County (1992) 10 Cal.AppAth 1212; Resource Defense Fund v. Local Agency
Formation Com. (1987) 191 Cal.App.3d 886) to the extent they concluded that section
1094.5, subdivision (f), imposed a "blanket prohibition on the appropriate use, in an
administrative mandamus action, of a prejudgment remand for agency reconsideration of
one or more issues pertinent to the agency's [quasi-judicial] decision." (Voices, supra, 52
9 Section 1094.5, subdivision (e), provides that "[w]here the court finds that there
is relevant evidence that, in the exercise of reasonable diligence, could not have been
produced or that was improperly excluded at the hearing before respondent, it may enter
judgment as provided in subdivision (f) remanding the case to be reconsidered in the light
of that evidence; or, in cases in which the court is authorized by law to exercise its
independent judgment on the evidence, the court may admit the evidence at the hearing
on the writ without remanding the case." Section 1094.5, subdivision (f), states: "The
court shall enter judgment either commanding respondent to set aside the order or
decision, or denying the writ. Where the judgment commands that the order or decision
be set aside, it may order the reconsideration of the case in light of the court's opinion
and judgment and may order respondent to .take such further action as is specially
enjoined upon it by law, but the judgment shall not limit or control in any way the
discretion legally vested in the respondent." In Voices, the Supreme Court reasoned that
"[o]n its face, subdivision (f) of section 1094.5 indicates the form of final judgment the
court may issue in an administrative mandamus action" (Voices, supra, 52 CalAth at
p. 526) and that "nothing in subdivision (f) of section 1094.5 purports to limit procedures
the court may appropriately employ before it renders a final judgment." (Ibid.) The
court construed subdivision (e) of section 1094.5 as "merely confirm[ing] that while, in
most cases, the court is limited to the face of the administrative record in deciding
whether the agency's decision is valid as it stands, in fairness, the court may consider, or
may permit the agency to consider, extra -record evidence for a contrary outcome, if
persuaded that such evidence was not available, or was improperly excluded, at the
original agency proceeding. [Citations.]" (Voices, supra, 52 CalAth at p. 532.) It
determined that section 1094.5, subdivision (e) did not "prevent the court, upon finding
that the administrative record itself lacks evidence sufficient to support the agency's
decision, from remanding for consideration of additional evidence" in the administrative
mandamus proceeding. (Id. at p. 532.) It concluded that "when a court has properly
remanded for agency reconsideration on grounds that all, or part, of the original
administrative decision has insufficient support in the record developed before the
agency, the statute does not preclude the agency from accepting and considering
additional evidence to fill the gap the court has identified." (Id. at p. 526.)
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17
CalAth at p. 529.) The court also disapproved two other cases (Ashford v. Culver City
Unified School Dist. (2005) 130 Cal.App.4th 344 and Newman v. State Personnel Bd.
(1992) 10 Cal.AppAth 41) to the extent that their analyses were inconsistent with its
conclusions that "once the court has reviewed the administrative record, and has found it
wanting, section 1094.5 does not preclude the court from remanding for the agency's
reconsideration in appropriate proceedings that allow the agency to fill the evidentiary
gap." (Voices, supra, 52 CalAth at p. 535.)
In a separate concurring opinion in Voices, Justice Werdegar, joined by Chief
Justice Cantil-Salcauye, recognized the limited scope of the court's decision. (Voices,
supra, 52 CalAth at pp. 539-540.) Both justices had concurred in the majority opinion.
The concurring opinion stated that "the majority has no occasion here to consider
whether a trial court may, similarly, order remand for reconsideration of an agency
decision for compliance with CEQA without issuing a writ of mandate." (Voices, supra,
52 CalAth at p. 539.) It discussed section 21168.9, a CEQA provision that applies to
CEQA challenges and requires a trial court to issue a peremptory writ if it finds that a
public agency's finding or decision was made in violation of CEQA. (Voices, supra, 52
CalAth at pp. 539-540.) It observed that "CEQA contains its own detailed and balanced
remedial scheme" (id. at p. 540) and concluded that "the majority's analysis of the
administrative mandate procedure in this non-CEQA case [did not] speak[] to the
procedures to be followed when an agency's action is found to have violated CEQA." 10
(Ibid.)
10 In Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, this
court "determine[d] that the issue of whether a proposed project is consistent with a
county's general plan is not a CEQA issue, and therefore the mandate procedures
provided for CEQA violations at section 21168.9 [did] not apply." (Id. at p. 893.) This
court recognized that "an agency's decisions regarding general plan consistency are
reviewed by ordinary mandamus." (Id. at p. 894.) Based on Voices, this court then
rejected a claim that "the trial court was not authorized to utilize the interlocutory remand
procedure" with respect to "a discrete, non-CEQA issue of general plan consistency."
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18
The California Supreme Court has not decided the propriety of an interlocutory
remand in CEQA cases. "A party may seek to set aside an administrative decision for
failure to comply with CEQA by petitioning for either administrative mandamus (Code
Civ. Proc., § 1094.5) or traditional mandamus (Id., § 1085). A petition for administrative
mandamus is appropriate when the party seeks review of a `determination, finding, or
decision of a public agency, made as a result of a proceeding in which by law a hearing is
required to be given, evidence is required to be taken and discretion in the determination
of facts is vested in a public agency, on the grounds of noncompliance with [CEQA],'
generally referred to as an `adjudicatory' or 'quasi-judicial' decision. [Citations.] A
petition for traditional mandamus is appropriate in all other actions brought `to attack,
review, set aside, void or annul a determination, finding, or decision of a public agency
on the grounds of noncompliance with [CEQA]. [Citations.]" 11 (Western States
Petroleum Assn. v. Superior Court (1995) 9 CalAth 559, 566-567 (Western States).); see
§§ 21168, 21168.5, 21168.7.)
In a writ proceeding under CEQA, a mandate order must "be made by the issuance
of a peremptory writ of mandate specifying what action by the public agency is necessary
to comply." (§ 21168.9, subd. (b), italics added.) Under section 21168.9, "[i]f a court
finds ... that any determination, finding, or decision of a public agency has been made
without compliance with this division, the court shall enter an order that includes one or
(Id. at p.895.) In this case, we have no occasion to reconsider whether an interlocutory
remand is an appropriate order in a non-CEQA traditional mandate proceeding. .
11 "In a CEQA case, as in other mandamus cases, [appellate] review of the
administrative record for error is the same as the trial court's; we review the agency's
action, not the trial court's decision. [Citations.]" (Muzzy Ranch Co. v. Solano County
Airport Land Use Com. (2007) 41 CalAth 372, 381.) "[J]udicial review of agency
decisions under CEQA is governed by sections 21168 (administrative mandamus)
and 21168.5 (traditional mandamus)." (Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 CalAth 1112, 1135, italics omitted; see Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392,
fn. 5.)
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more of the following: [¶] (1) A mandate that the determination, finding, or decision be
voided by the public agency, in whole or in part. [¶] (2) If the court finds that a specific
project activity or activities will prejudice the consideration or implementation of
particular mitigation measures or alternatives to the project, a mandate that the public
agency and any real parties in interest suspend any or all specific project activity or
activities, pursuant to the determination, finding, or decision, that could result in an
adverse change or alteration to the physical environment, until the public agency has
taken any actions that may be necessary to bring the determination, finding, or decision
into compliance with this division. [J[] (3) A mandate that the public agency take specific
action as may be necessary to bring the determination, finding, or decision into
compliance with this division." (§ 21168.9, subd. (a)(1)-(3).)
The grant of writ relief made pursuant to section 21168.9 must "include only those
mandates which are necessary to achieve compliance with [CEQA] and only those
specific project activities in noncompliance with [CEQA]." (§ 21168.9, subd. (b).) The
order must "be limited to that portion of a determination, finding, or decision or the
specific project activity or activities found to be in noncompliance only if a court finds
that (1) the portion or specific project activity or activities are severable, (2) severance
will not prejudice complete and full compliance with this division, and (3) the court has
not found the remainder of the project to be in noncompliance with this division." (Ibid.)
The statute states that trial court must "retain jurisdiction over the public agency's
proceedings by way of a return to the peremptory writ until the court has determined that
the public agency has complied with [CEQA]." (§ 21168.9, subd. (b), italics added.)
"This statutory provision for the retention of jurisdiction reflects the rule that a court
issuing a peremptory writ of mandate retains jurisdiction to determine the adequacy of
the return and ensure full compliance with the writ. [Citations.]" (Ballona, supra, 201
Cal.App.4th at p. 479.)
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While we question whether an interlocutory remand is permissible under
section 21168.9, which requires relief (where warranted) by peremptory writ rather than
by an alternative writ or order to show cause, 12 it is unnecessary to resolve the legal
question here. As explained, in substance and effect, the March 2016 decision was the
final determination of the parties' rights—i.e., the final judgment, in this case. (Code
Civ. Proc., § 1064.)
C. Scope of Review and Cognizable Issues on Appeal
Code of Civil Procedure section 906 provides that "[u]pon an appeal pursuant to
[s]ection 904.1 or 904.2, "the reviewing court may review the ... decision and any
intermediate ruling, proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which substantially affects the
rights of a party ...." (Code Civ. Proc., § 906.) But Code of Civil Procedure
section 906 makes clear that "[t]he provisions of this section do not authorize the
reviewing court to review any decision or order from which an appeal might have been
taken."
"California follows a `one shot' rule under which, if an order is appealable, appeal
must be taken or the right to appellate review is forfeited. [Citations.]" (Baycol, supra,
51 Cal.4th at p. 762, fn. 8.) Since the March 2016 decision was actually an appealable
final judgment, "it follows that it had to be timely appealed or the right to challenge its
particulars [was] forever lost." (Ibid.)
12 It is possible that this peremptory writ requirement precludes interlocutory
remands. (See Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41
Cal.4th 372, 381 [courts "must bear in mind that `[t]he foremost principle under CEQA is
that the Legislature intended the act "to be interpreted in such manner as to afford the
fullest possible protection to the environment within the reasonable scope of the statutory
language." ' [Citation.]"; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1265
(conc. opn. of Baxter, J.) ["The legislative authorization for issuance of a peremptory writ
in the first instance reflects recognition that, on occasion, immediate judicial action is
necessary to prevent or correct unauthorized or erroneous action by the respondent or to
compel the respondent to act when required to do so."].)
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By failing to appeal from the March 2016 decision, ACCORD forfeited appellate
review of the trial court's findings under section 21168.9 and its other CEQA and non-
CEQA determinations, express or implied, in favor of respondents. 13 A "trial court's
retained jurisdiction under Public Resources Code section 21168.9, subdivision (b) is
limited to ensuring compliance with the peremptory writ of mandate." (Ballona, supra,
201 Cal.App.4th at p. 480; see Code Civ. Proc., § 1097.) After considering a petitioner's
CEQA challenges and "rendering a final judgment and peremptory writ of mandate, a
trial court evaluating a return to the writ may not consider any newly asserted challenges
arising from the same material facts in existence at the time of the judgment" because
"[t]o do so would undermine the finality of the judgment." (Ballona, supra, at p. 480.)
We conclude that on appeal from the December 2016 decision, which is a post-
judgment order, our review is limited to that decision. We lack jurisdiction to review the
grant of the peremptory writ since it was the final judgment from which an appeal might
have been taken. (Code Civ. Proc., §§ 904. 1, subd. (a)(1), 906, 1064.) Accordingly,
ACCORD's present claims that an EIR was required to address the potentially significant
traffic impacts of the project and that the project violates the substantive requirements of
the City's municipal code governing formula retail businesses (see San Juan Bautista
Mun. Code, §§ 11-04-110,11-29-010) are not cognizable. We may review, however,
ACCORD's contentions insofar as they assert that, due to the project's potential noise
impacts, preparation of an EIR was necessary to comply with the peremptory writ.
D. Fairness and Dice Process
ACCORD also asserts that it was "entitled to rely upon the trial court's
characterization of its [March 14, 2016] order as an interlocutory remand" and urges this
court to recognize that the order was "a non -appealable interlocutory remand order" as a
13 The court's grant of a peremptory writ applied only to ACCORD's CEQA claim
regarding noise impacts and not to its other CEQA claims or its non-CEQA claims.
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matter of fundamental fairness. The cases cited by ACCORD are not on point or are
distinguishable.
As we have discussed, Voices was not a CEQA case. (See Voices, supra, 52
Cal. 4th at p. 539 (conc. opn. of Werdegar, J.).) It did not consider whether an
interlocutory remand is permissible under section 21168.9. Most relevant to this case,
there was no occasion in Voices to consider whether the interlocutory remand order in
that case was in fact a final judgment based on its substance and effect. "A decision, of
course, is not authority for what it does not consider. [Citation.]" (Mercury Ins. Group v.
Superior Court (1998) 19 Cal.4th 332, 348; see People v. Gilbert (1969) 1 Ca1.3d 475,
482, fn. 7 ["It is axiomatic that cases are not authority for propositions not considered."].)
Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949 (Schenck), which is
mentioned by ACCORD, involved a plaintiff s "appeal from a judgment in an action
challenging the approval of a [development] project ... on grounds that the County of
Sonoma failed to comply with [CEQA] before issuing [an MND]." (Id. at p. 952.) The
plaintiff "challenged the County's compliance with CEQA and approval of the project by
way of a petition for peremptory writ of mandate and injunctive relief filed in the trial
court ...." (Id. at p. 955.) "[T]he trial court filed an order that found the County failed
to furnish proper notice of the Board's intent to adopt the [MND] to the Bay Area Air
Quality Management District ([BAAQMD])." (Ibid.) The trial court granted the petition,
requiring a real party in interest "to provide adequate notice to the BAAQMD, with the
`results of such notice' to determine the `further course of action' needed to `cure the
defects and ensure proper CEQA review of this project.' " (Id. at p. 956.) "The court
retained jurisdiction over the matter to ultimately determine the issue of the County's
compliance with the notice provisions of CEQA." (Ibid.)
Schenck's recitation of procedural history mentioned that the plaintiff had "filed
an appeal from the trial court's order," which the appellate court had dismissed.
(Schenck, supra, 198 Cal.App.4th at p. 956.) According to the opinion, "the County filed
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a `Certificate of Compliance' ... on April 29, 2010, which informed the court `of the
County's timely and complete compliance' with the order to provide proper notice to the
BAAQMD, and requested dismissal of the petition for writ of mandate with prejudice."
(Ibid.) "The parties subsequently filed a stipulation that the County's Certificate of
Compliance served as a return to the writ of mandate (Code Civ. Proc., § 1108), and to
entry of the trial court's prior order as a `final, appealable judgment' in the case.
Pursuant to the stipulation, on July 19, 2010, the trial court issued a final judgment in the
terms of the prior order." (Ibid., italics added.)
On appeal in Schenck, the plaintiff sought to characterize "the trial court's order as
`an improper interlocutory remand,' and [the plaintiff] maintain[ed] that the court was
`required to set aside Project approval for failure to provide notice to a responsible
agency.' " (Schenck, supra, 198 Cal.App.4th at p. 960.) The Court of Appeal, First
District, Division 1, found "nothing in the trial court's order that contravened the
remedial procedures sanctioned by CEQA" in section 21168.9. (Id. at p. 961.) The
appellate court also determined that the plaintiff had "forfeited any objection to the form
of relief' by failing to object in the trial court. (Ibid.)
We see nothing in Schenck that supports ACCORD'S current claim that
fundamental fairness and due process require this court to reach its challenges to the
March 2016 decision, which we have concluded was the final judgment, on appeal from
the trial court's subsequent December 2016 decision, which we have concluded is a post-
judgment order determining the adequacy of respondents' return to the peremptory writ.
While the Court of Appeal, First District, may have dismissed the plaintiff s original
appeal in Schenck, for a reason we might only surmise, Schenck contains no holding that
supports ACCORD's fairness argument. An appellate decision is authority "only `for the
points actually involved and actually decided.' [Citations.]" (Santisas v. Goodin (1998)
17 Cal.4th 599, 620.)
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24
ACCORD asserts that if this court recharacterizes the March 2016 decision as a
final judgment, ACCORD would be deprived of "its due process rights to full judicial
review" and that fundamental fairness requires this court to hear its appeal from that
decision. It cites two cases to support those assertions.
In Adoption of Alexander S. (1988) 44 Cal.3d 857 (Alexander S.), an adoption
proceeding, a natural mother filed a petition to withdraw consent to an independent
adoption, which the trial court denied. (Id. at pp. 859, 861.) The mother did not appeal
from that denial "within the limitations period of the California Rules of Court" and it
became final. (Id. at 859.) The mother timely appealed from the subsequent denial of
"her petition to declare a father -child relationship." (Id. at p. 863.)
On appeal from the subsequent denial of her petition to declare a father -child
relationship in Alexander S., the mother raised "her belated claims" regarding the denial
of her petition to withdraw consent. (Alexander S., supra, 44 Cal.3d at p. 863.) "[O]n its
own initiative and without notice to the parties," the appellate court treated the mother's
belated claims as a petition for a writ of habeas corpus. (Ibid.) The appellate court
"issued a writ of habeas corpus, ordered the trial court to vacate its judgment denying [the
mother's] petition for withdrawal of consent" (id. at pp. 863-864), and denied the
prospective adoptive parents' request to file a return to the writ. (Id. p. 864.)
On review in Alexander S., the California Supreme Court determined that, since
the mother had not appealed from the denial of her petition to withdraw consent, which
was appealable, and did not file a petition for writ of habeas corpus in the appellate court,
"[o]nce the Court of Appeal had addressed the issue of the father -child relationship, it
should have stopped there and not addressed [the mother's] belated claims." (Alexander
S., supra, 44 Ca1.3d at p. 864.) The court concluded that the appellate court had "ei7ed in
substituting habeas corpus relief for the available remedy of appeal" because "[i]t is well
settled that `habeas corpus cannot serve as a substitute for an appeal, and, in the absence
of special circumstances constituting an excuse for failure to employ that remedy, the
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writ will not lie where the claimed errors could have been, but were not, raised upon a
timely appeal from a judgment ....' (In re Dixon (1953) 41 Cal.2d 756, 759.)" (Id. at
p. 865.) The Supreme Court held that "habeas corpus may not be used to collaterally
attack a final nonmodifiable judgment in an adoption -related action where the trial court
had jurisdiction to render the final judgment." (Id. at pp. 867-868.)
Alexander S. is not helpful to ACCORD. The case does not, as ACCORD
suggests, stand for the proposition that due process is "a valid consideration in
determining whether procedural irregularities affect appellate jurisdiction" or may "under
certain `special circumstances,' " render "appellate review ... proper regardless of the
timeliness of the filing of a notice of appeal." When it mentioned "special
circumstances" (Alexander S., supra, 44 Cal.3d at p. 865), the Supreme Court was merely
discussing the availability of habeas corpus relief and referring to the general rule that
such relief is barred where a claim of error could have been, but was not, raised on direct
appeal. (See In re Reno (2012) 55 CalAth 428, 490-491 [Dixon rule subject to four
exceptions]; In re Harris (1993) 5 CalAth 813, 825, fn. 3, 829.)
In Estate of Hanley (1943) 23 Cal.2d 120, the appellant, in her individual capacity,
filed a notice of appeal from an order approving the "First Account and Report" in the
administration of an estate, but she filed it "one day beyond the applicable statutory
period" for filing a notice of appeal. (Id. at p. 120.) The notice of entry of the order had
misstated the date of filing, and an attorney acting for appellant in her separate capacity
as executrix had served the notice upon appellant's counsel representing her in her
individual capacity. (Id. at pp. 120-121.) In addition, during a telephone conversation,
the attorney acting for her as the executrix told her counsel representing her as an
individual that "the date stated in the notice was correct and the time for appeal should be
computed accordingly." (Id. at p. 122.) The appellant opposed a motion to dismiss the
appeal, asserting that "under appropriate circumstances, such as innocent and justifiable
reliance upon misrepresentations, one may be relieved from the effect of delay in filing a
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notice of appeal; or, adopting a different theory, the respondent whose misrepresentations
were the cause of the delay may be estopped to take advantage of it by a motion to
dismiss." (Id. at p. 122.)
The California Supreme Court was not persuaded by that argument. It stated: "[I]t
is immaterial whether the misrepresentations concerning the date upon which the order
was filed were wilful or inadvertent, whether the reliance thereon was reasonable or
unreasonable, or whether the parties seeking to dismiss are acting in good faith or not. It
may be assumed that the appellant has presented grounds for relief which would be
sufficient if relief could be granted. But the requirement as to the time for taking an
appeal is mandatory, and the court is without jurisdiction to consider one which has been
taken subsequent to the expiration of the statutory period. [Citations.]" (Estate of
Hanley, supra, 23 Cal.2d at pp. 122-123.) It further explained: "In the absence of
statutory authorization, neither the trial nor appellate courts may extend or shorten the
time for appeal [citation], even to relieve against mistake, inadvertence, accident, or
misfortune [citations]. Nor can jurisdiction be conferred upon the appellate court by the
consent or stipulation of the parties, estoppel, or waiver. [Citations.] If it appears that the
appeal was not taken within the 60 -day period, the court has no discretion but must
dismiss the appeal of its own motion even if no objection is made. [Citations.]" (Id. at
p. 123.) The Supreme Court dismissed the appeal. (Id. at p. 124.)
In dicta, the Supreme Court suggested that equitable relief from an untimely filing
of an appeal from a judgment might be available where a party was prevented from
timely appealing by another party's fraud or duress or "circumstances over which he has
no control." (Estate of Hanley, supra; 23 Cal.2d at p. 124.) ACCORD relies on this
language but overlooks a subsequent clarifying decision.
In Hollister ConvalescentHosp., Inc. v. Rico (1975) 15 Cal.3d 660, the Supreme
Court made' clear that the "notion of estoppel" has no "place in determining whether a
timely notice of appeal has been filed within the jurisdictional period therefor." (Id. at
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p. 674.) The court stated that "[t]he expiration of a jurisdictional period is not, and by its
nature cannot, be affected by the actions of the parties." (Ibid.) It held that when a notice
of appeal "has not in fact been filed within the relevant jurisdictional period—and when
applicable rules of construction and interpretation fail to require that it be deemed in law
to have been so filed—the appellate court, absent statutory authorization to extend the
jurisdictional period, lacks all power to consider the appeal on its merits and must
dismiss, on its own motion if necessary, without regard to considerations of estoppel or
excuse." (Ibid.)
This court is not changing the character of the March 2016 decision. We merely
recognize its actual substance and effect as the final judgment. The December 2016
decision was mischaracterized as the final judgment.
III
The Project's Potential Noise Impacts
ACCORD maintains that preparation of an EIR was required because the project's
potential, unmitigated noise impacts may significantly affect the environment.
A. CEQA
"To ensure that governmental agencies and the public are adequately informed
about the environmental impact of public decisions, [CEQA] requires a lead agency (id.,
§ 21067) to prepare an [EIR] before approving a new project that `may have a significant
effect on the environment.' (Id., § 21151, subd. (a).)" (Friends of College of San Mateo
Gardens v. San Mateo County Community College Dist. (2016) 1 Cal. 5th 937, 943
(Friends).) " `Significant effect on the environment' means a substantial, or potentially
substantial, adverse change in the environment." (§ 21068.) " `Significant effect on the
environment' " includes any substantial, or potentially substantial, adverse change in any
of the physical conditions within the area affected by the project, including ambient
noise. (Guidelines, § 15382.)
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An EIR is "the public document used by the governmental agency to analyze the
significant environmental effects of a proposed project, to identify alternatives, and to
disclose possible ways to reduce or avoid the possible environmental damage."
(Guidelines, § 15002, subd. (f); see §§ 21002.1, 21061; Banning Ranch Conservancy v.
City of Newport Beach (2017) 2 Cal.5th 918, 937.) " `The EIR has been aptly described
as the "heart of CEQA." [Citations.] Its purpose is to inform the public and its
responsible officials of the environmental consequences of their decision before they are
made.' [Citation.]" (Friends of the Eel River v. North Coast Railroad Authority (2017) 3
Cal.5th 677, 713.)
"Under CEQA and its implementing guidelines, an agency generally conducts an
initial study to determine `if the project may have a significant effect on the
environment.' (CEQA Guidelines, § 15063, subd. (a).) If there is substantial evidence
that the project may have a significant effect on the environment, then the agency must
prepare and certify an EIR before approving the project. [Citations.] On the other hand,
no EIR is required if the initial study reveals that `there is no substantial evidence that the
project or any of its aspects may cause a significant effect on the environment.' (CEQA
Guidelines, § 15063, subd. (b)(2).) The agency instead prepares a negative declaration
`briefly describing the reasons that a proposed project ... will not have a significant
effect on the environment and therefore does not require the preparation of an EIR.' (Id.,
§ 15371; see id., § 15070.) Even when an initial study shows a project may have
significant environmental effects, an EIR is not always required. The public agency may
instead prepare [an MND] if `(1) revisions in the project plans ... before the proposed
negative declaration and initial study are released for public review would avoid the
effects or mitigate the effects to a point where clearly no significant effect on the
environment would occur, and (2) there is no substantial evidence in light of the whole
record before the public agency that the project, as revised, may have a significant effect
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on the environment.' (Pub. Resources Code, § 21064.5.)" (Friends, supra, 1 Cal.5th at
p. 945.)
"[W]hen an agency initially proposes a project, an EIR is required `whenever it
can be fairly argued on the basis of substantial evidence that [a] project may have
significant environmental impact.' [Citations.]" (Friends, supra, 1 Cal.5th at p. 957.)
The Guidelines set forth the fair argument standard: "If the lead agency determines there
is substantial evidence in the record that the project may have a significant effect on the
environment, the lead agency shall prepare an EIR [citation]. Said another way, if a lead
agency is presented with'a fair argument that a project may have a significant effect on
the environment, the lead agency shall prepare an EIR even though it may also be
presented with other substantial evidence that the project will not have a significant effect
[citation]." (Guidelines, § 15064, subd. (f)(1).) The fair argument standard "applies by
its terms to determinations of a lead agency, not of a court." (Berkeley Hillside
Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112 (Berkeley Hillside
Preservation).)
Where no evidentiary hearing was required by law, courts review an agency's
initial decision to adopt an MND rather than prepare an EIR for compliance with CEQA
pursuant to section 21168.5 (see Western States, supra, 9 Cal.4th at pp. 567-568). Such
inquiry "extend[s] only to whether there was a prejudicial abuse of discretion."
(§ 21168.5; cf. § 21168; Code Civ. Proc., § 1094.5, subd. (a).) "Abuse of discretion is
established if the agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence." (§ 21168.5.)
But "a reviewing court may not uphold an agency's decision [not to prepare an
EIR under the fair argument test during its initial environmental review of a project]
`merely because substantial evidence was presented that the project would not have [a
significant environmental] impact." (Berkeley Hillside Preservation, supra, 60 Cal.4th at
p. 1112; c£ Friends, supra, 1 Cal.5th 937.) "The [reviewing] court's function is to
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determine whether substantial evidence support[s] the agency's conclusion as to whether
the prescribed "fair argument" could be made. If there [is] substantial evidence that the
proposed project might have a significant environmental impact, evidence to the contrary
is not sufficient to support a decision to dispense with preparation of an EIR and adopt a
negative declaration, because it [can] be "fairly argued" that the project might have a
significant environmental impact. Stated another way, if the [reviewing] court perceives
substantial evidence that the project might have such an impact, but the agency failed to
secure preparation of the required EIR, the agency's action is to be set aside because the
agency abused its discretion by failing to proceed " in a manner required by law." '
[Citation.]" (Berkeley Hillside Preservation, supra, 60 CalAth at p. 1112.)
B. Analysis
ACCORD argues that the proposed project may create significant, unmitigated
impacts and that, consequently, preparation of an EIR was required under CEQA. The
implicit corollary argument is that the trial court should not have determined that
respondents had complied with CEQA after reconsidering the project's potential noise
impacts and that it should have determined that respondents' return did not comply with
the peremptory writ. ACCORD broadly contends that "[t]he fact that the City was
forced to prepare three MNDs simply confirms what ACCORD has been arguing for
nearly four years — a Project of this scope in San Juan Bautista needs to have an EIR
prepared in order to comply with CEQA."
The third IS/MND, dated July 11, 2016, explained the trial court's directive to
reconsider the project's potential noise impacts. It stated: "As required by the Court, on
April 19, 2016, the City adopted Resolution 2016-21, setting aside Resolutions 2014-43
and 2014-44, which approved the Project.... [T]he City undertook a new noise
analysis using the current Project description. A new [IS/MND] was prepared using the
new noise analysis."
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In arguing on appeal that the project may create significant, unmitigated noise
impacts, ACCORD directs us to the July 31, 2014 IS/MND, which was prepared by
Hatch Mott MacDonald (fEVIlVI) (the second IS/MND), 14 the June 17, 2014 noise study
(prepared by Environmental Consulting Services and incorporated into the second
ISlMND as Exhibit E), and a couple of emails concerning that noise study.
The second IS/MND relied on the June 17, 2014 noise study and stated with
respect to project -generated noise impacts that "[p]otentially significant increases in
nearby traffic in the future for the receptor locations away from State Route 156
(particularly receptor locations 1 and 2) are represented by the noise levels in Exhibit 3
([s]ee Appendix E)." It further stated that "[t]he anticipated increase in noise levels at
receptor locations 1 and 2 would be very noticeable and potentially disturbing, although
within the range of noise levels considered `Conditionally Acceptable' for Low Density
Residential uses (Exhibit 2 of Appendix E) by San Juan Bautista planning standards."
The second IS/WIND set forth a mitigation measure to address project -generated traffic
noises: "Protection from project -related traffic noise at nearby receptors on The
Alameda and adjacent to the site can be provided to some extent by appropriate noise
wall protection. Noise walls or combination wall and landscape berm up to 6 feet high
(6 -feet maximum per zoning ordinance) of either double wood construction, masonry,
Plexiglas, or glass, or some combination of these materials, around yards and on the
south property line of the project, could reduce traffic noise levels 6-8 dB in the adjacent
sensitive receptor areas."
The June 17, 2014 noise study stated that "[t]raffic volumes on the Alameda
ha[d] been estimated for peak Cumulative Conditions ([in the year] 2035), which
include[d] project -generated traffic and traffic increases by other approved projects in
the area, in the HMM project traffic study . . . . " Exhibit 3 of the noise study showed the
14 The first IS/MND was prepared by the City's planning department.
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existing traffic noise impacts and the cumulative traffic noise impacts from the project
in terms of Ldn (dBA) at three locations. 15
A June 19, 2014 email, sent to the City's planning department from a senior
project scientist working for IIMM, offered comments on the noise study. It stated:
"Mitigation for `Cumulative Conditions' involves the construction of soundwalls [sic] at
the residential homes. It states that they would reduce noise levels by 6 to 8 DB if
constructed around the yards. I assume this would mean along the front yard. This may
not be feasible considering it would significantly limit site distance for vehicles exiting
those driveways along The Alameda (in proximity to Highway 156). Please note that
this could potentially be considered a significant cumulative impact if the mitigation is
not feasible." The message disclosed, however, that "HMM is updating the trip
generation for the proposed project to account for an increase in the square footage of
the convenience store, eliminating the drive through, etc." It pointed out that "the trip
generation for the project as currently proposed is lower than the previous trip
generation in the prior traffic analysis."
A July 3, 2014 email message, sent to the environmental consultant who
produced the June 17, 2014 noise study from a senior project planner working for
fMM, likewise stated that "[t]he trip generation for the project as currently proposed is
lower than the previous trip generation in the prior traffic analysis," and it indicated that
a "revised traffic analysis and exhibits" were attached to the email. It substantially
" The third ISIMND explains that Ldn refers to the "Day -Night Average Sound
Level," which is "[a] descriptor established by the U.S. Environmental Protection Agency
to describe the average day -night level with a penalty applied to noise occurring during
the nighttime hours (10 pm -7 am) to account for the increased sensitivity of people
during sleeping hours." The new noise study explains that a "frequency weighting"
system called " `A' -weighting" "reflects the fact that human hearing is less sensitive at
low frequencies and at extreme high frequencies relative to the mid-range" and that "[t]he
unit of A -weighted sound level is sometimes abbreviated `dBA.' "
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reiterated the concern in the June 19, 2014 email message about the mitigation measure
meant to address cumulative conditions.
UMM's updated traffic report, dated July 1, 2014, was attached as Exhibit F to
the second IS/MND. The July 1, 2014 traffic report appears to have been completed
after the June 17, 2014 noise study. The July 1, 2014 report revised project trip
generation, project trip distribution, and by-pass trips.(trips made to the site by traffic
already on the surrounding street system) since the project description had changed
since BAIM's traffic report dated December 30, 2013.16
ACCORD now argues that there is no evidence in the record that (1) noise walls
were a feasible mitigation measure, that (2) landscape berms or six-foot walls would be
sufficient to reduce noise impacts to less than significant when the earlier noise study
suggested noise walls "as high as 8 feet," or that (3) reducing noise impacts to some
extent by appropriate noise wall protection would sufficiently mitigate "an otherwise
significant impact." With respect to the alleged deficiencies in the second IS/MND and
the June 17, 2014 noise study, ACCORD is fighting an old battle. As the result of the
trial court's grant of a peremptory writ directing respondents to reconsider the project's
potential noise impacts, a new noise study was conducted and a new IS/MND was
prepared.
The third IS/MND relied upon the RAM's July 1, 2014 traffic report and upon a
new noise study (dated April 18, 2016), which was incorporated into the third IS/MND
as an appendix. The third IS/MND used the following thresholds of significance to
16 The December 30, 2013 traffic report provided a traffic impact analysis for the
earlier version of the project, which included "a gasoline/service station capable of
servicing up to 16 vehicles at once," "an associated convenience store," and "a 74 -seat
fast-food restaurant with a drive-through window." That report had indicated that "the
project would generate a net new 1,823 weekday daily trips ... and 1,959 Saturday daily
trips ...." The July 1, 2014 updated traffic report indicated that the revised project
"would generate a net new 1,391 weekday daily trips ... and 1,370 Saturday daily
trips ...."
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determine whether the proposed project would result in significant noise impacts:
(1) "[a]n increase in the day -night average noise level (Ld„) of three decibels or greater
at noise -sensitive receptors would be considered significant when projected noise levels
would exceed those considered `normally acceptable' for the affected land use" (fn.
omitted) and (2) "[a]n increase of five decibels or greater would be considered
significant when projected noise levels would continue to meet those considered
satisfactory for the affected land use."
The third IS/MND stated: "Based on the existing traffic volumes and the increase
in traffic volumes due to the project, an increase in traffic noise (La) of up to two
decibels was calculated along The Alameda in the vicinity of the project site. Further
from the project site, the projected noise increase would be less. Increased traffic along
SR 156 would increase nearby noise levels by less than one decibel. These noise
increases are less than the three -decibel significance threshold. Therefore, there would
be no significant noise impact from project -related traffic." (Fn. omitted.) No
mitigation measures for project -generated traffic noise were proposed because it was
determined that such noise would have a less than significant impact.
The new noise study, entitled "Noise Impact Assessment" (and attached to the
third IS/MND as Appendix E), found that the project -generated traffic noise would
result in a less than significant impact without mitigation. The noise study explained its
analysis: "Measured traffic noise levels along the local roadways are above the
`normally acceptable' threshold of City and County guidelines for residential land uses.
Future traffic noise levels will exceed this threshold as well. Therefore, our analysis of
permanent traffic noise increases is based on relative noise increase."
The new noise study stated: "The traffic report for the project, prepared by
[HMM], dated 1 July 2014, projects additional traffic volumes on adjacent roadways
that would be associated with the project. We evaluated the projected project traffic
volumes relative to the existing traffic volumes. We calculated that the project would
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result in up to a two decibel increase in traffic noise (Ld„) along The Alameda in the
vicinity of the project site. Further from the project site, the. projected noise increase
would be less. Increased traffic along SR 156 would increase nearby noise levels by
less than a decibel. These noise increases are less than the significance threshold of a
three decibel increase. Therefore, there would be no significant noise impact from
project -related traffic." (Fn. omitted.) It also stated: "In the year 2035, traffic noise on
The Alameda is predicted to increase by 8 dB. Less than 1 dB of this future noise
increase is attributed to project traffic. Therefore, project traffic does not constitute a
significant portion of the future increase." It concluded that no mitigation measures
were required for project -generated traffic noise because the potential noise impact was
less than significant.
On appeal, ACCORD does not attack the third IS/MND's evaluation of the
significance of project -generated traffic noise or show that the cited email comments
had continuing significance. Those comments criticized a noise study that has been
superseded. ACCORD's only criticism of the third ISNIND is that some noise impacts
remain "speculative and uncertain." In support of this criticism, it points to statements
in the document concerning "project equipment mechanical noise" and "project
equipment ambient noise."
The third ISNIND stated that "[t]he project's building would be equipped with
heating, ventilation, and air-conditioning equipment and other equipment that could be
located in areas exposed to adjacent property lines" and that similarly "[t]he project's
building would be equipped with heating, ventilation, and air-conditioning equipment
and other equipment that could contribute to a permanent increase in the nearby ambient
noise levels." It commented that "[t]he noise levels of project equipment" and "[t]he
permanent increase in ambient noise levels due to project equipment" could not "yet be
calculated since the equipment locations and model selection have not yet been
determined."
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ACCORD invokes those statements without considering the identified mitigation
measures or the third IS/MND's conclusion that noise impacts would be less than
significant with incorporated mitigation measures. The third IS/MTND explained: "To
be considered `[n]ormally acceptable' according to the City General Plan and Municipal
Code, mechanical noise would need to be limited to DNL 60 dB at the nearest
residential property line and DNL 65 dB at the nearby hotel property line. These noise
levels would also satisfy the County General Plan Goal HS -8.11 guidelines." It also
stated that "[t]o meet the draft City Noise Ordinance limits and the County General Plan
Goal HS -8.1, noise levels at the nearest residential receivers are to be limited to an
hourly Leq of 55 dB and maximum noise level of 70 dB during the daytime hours and
hourly Leq 45 dB and a maximum noise level of 65 dB during nighttime hours." 17
The third IS/MND further stated that "[t]he project's mechanical systems are
expected to include common commercial air-conditioning and ventilation equipment,"
and the proposed mitigation measure was to [s] elect or mitigate mechanical equipment
to meet applicable noise standards." It indicated that "standard construction methods
including selecting quieter equipment models, strategic siting, equipment setback, noise
barriers or enclosures, acoustical louvers, and equipment noise attenuators should be
sufficient." It stated that "[a] qualified acoustical professional should be involved
during the design phase of the project to advise the design team regarding effective
noise reduction measures."
The third IS/MIND stated as to project equipment ambient noise: "On-site noise
measurements indicate that the existing ambient noise levels at adjacent properties are
between DNL 62 dB and DNL 78 dB, which varies by location and proximity to the
17 In Appendix A of the April 18, 2016 noise study, Leq was explained as follows:
"In simple but accurate technical language, the Leq is the average A -weighted sound level
in a stated time period. The Leq is particularly useful in describing the subjective change
in an environment where the source of noise remains the same but there is change in the
level of activity."
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roadways. To reduce the impact of mechanical equipment, it must be designed such that
noise levels do not increase by three decibels or more at adjacent properties. Specific
equipment plans have not been developed, and it is possible that mechanical equipment
could exceed the threshold. Project equipment that generates a noise level of
DNL 62 dB at the southern property line would be expected to increase ambient noise
levels by up to three decibels. Therefore, project equipment that might generate noise
exceeding DNL 62 dB at adjacent properties is to be evaluated further. Additional
measures are to be incorporated to reduce equipment noise to DNL 62 dB or quieter."
The third IS/MND proposed the identical mitigation measure for project equipment
ambient noise that it had for project equipment mechanical noise, "including selecting
quieter equipment models, strategic siting, equipment setback, noise barriers or
enclosures, acoustical louvers, and equipment noise attenuators" and using a qualified
acoustical professional during the design phase.
ACCORD does not directly challenge the thresholds of significance used in the
third IS/MND or establish that their use constituted an abuse of discretion.18 The third
IS/MND expressly concluded that potential noise effects were less than significant with
the mitigation measures. ACCORD claims, without any further citation to the record,
that "[r]ecord evidence demonstrates that the [p]roject will cause significant (but not
thoroughly understood) noise impacts, that the proposed mitigation measures may be
infeasible or ineffective, and that an EIR is required." But ACCORD has not directed us
18 "A threshold of significance is an identifiable quantitative, qualitative or
performance level of a particular environmental effect, non-compliance with which
means the effect will normally be determined to be significant by the agency and
compliance with which means the effect normally will be determined to be less than
significant." (Guidelines, § 15064.7, subd. (a)) `Bach public agency is encouraged to
develop and publish thresholds of significance that the agency uses in the determination
of the significance of environmental effects." (Ibid.) "Thresholds of significance to be
adopted for general use as part of the lead agency's environmental review process must
be adopted by ordinance, resolution, rule, or regulation, and developed through a public
review process and be supported by substantial evidence." (Ibid., subd. (b).)
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to any evidence in the record showing that the noise mitigation measures identified in the
third IS/MND would be infeasible or ineffective. ACCORD has not shown that the third
IS/MND improperly deferred determination of the mitigation specifics or that
respondents were not committed to the implementation of the identified mitigation
measures to ensure that any potential noise impacts would be insignificant based on the
stated standards. 19 (See Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal.3d 376, 418 [upholding noise mitigation measures identified in
EIR]; see also Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011,
1028-1029 [" `For kinds of impacts for which mitigation is known to be feasible, but
where practical considerations prohibit devising such measures early in the planning
process ... , the agency can commit itself to eventually devising measures that will
satisfy specific performance criteria articulated at the time of project approval....'
[Citation.]"].)
"An EIR is not required on any project proposed to be carried out or approved
unless substantial evidence in light of the whole record supports a fair argument that the
proposed project may have a significant effect on the environment. (Laurel Heights
ImprovementAssn. v. Regents of University of California (1993) 6 Cal.4th 1112,
1123.) ... [Citations.] The burden is on the petitioner to demonstrate by citation to the
record the existence of such substantial evidence. [Citation.]" (Citizens for Responsible
Development v. City of West Hollywood (1995) 39 Cal.App.4th 490, 498-499,
fn. omitted; see Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 886.)
ACCORD bore "the burden of identifying in the record substantial evidence of a fair
argument that the project may have a significant effect on the environment that would not
19 Section 21081.6 requires the public agency to "provide that measures to mitigate
or avoid significant effects on the environment are fully enforceable through permit
conditions, agreements, or other measures" (id., subd. (b)) and adopt a mitigation
monitoring program "designed to ensure compliance during project implementation" (id.,
subd. (a)(1); see Guidelines, § 15097, subd. (a).)
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be mitigated. (See Citizens for Responsible and Open Government v. City of Grand
Terrace (2008) 160 Cal.App.4th 1323, 1332.)" (Clews Land & Livestock, LLC v. City of
San Diego (2017) 19 Cal.App.5th 161, 193.) ACCORD has not carried its burden on
appeal.
DISPOSITION
The December 12, 2016 order is affirmed.
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40
ELIA, ACTING P. J.
WE CONCUR:
BAMATTRE-MANOUKIAN, J.
Alliance of Concerned Citizens Organized v. City of San Juan BautistaH044410
21-102
Trial Court:
Trial Judge:
Attorneys for Plaintiff and Appellant
Alliance of Concerned Citizens Organized
for Responsible Development:
Attorneys for Defendants and Respondents
City of San Juan Bautista et al.:
Attorneys for Real Party in Interest
Harbhajan Dadwal:
San Benito County Superior Court
Superior Court No.: CU -14-00166
The Honorable Steven R. Sanders
SSL Law Firm LLP
Andrew F. Brimmer
Zachary R. Walton
Elizabeth L. Bridges
Robert B. Martin III
Wellington Law Offices
Deborah Mall
Anthony Lombardo & Associates
Anthony L. Lombardo
Cody J. Phillips
Alliance of Concerned Citizens Organized v. City of San Juan Bautista
H044410
21-103
42