In Hilltop Group, Inc. v. County of San Diego (2024) 99 Cal.App.5th 890, the Fourth District Court of Appeal ruled that plaintiff Hilltop Group, Inc. (“Hilltop”) could proceed with developing a recycling facility, over the objections of community groups and the San Diego County Board of Supervisors (“Board of Supervisors” or “Board”). The proposed North County Environmental Resources Project (“NCER Project” or “Project”) involved construction of a facility to process and recycle construction debris, wood, asphalt, and other inert material from construction projects. The Court found that Hilltop Group could use the County’s 2011 General Plan Update (“GPU”) and accompanying programmatic environmental impact report (“PEIR”) to comply with CEQA, under the exemption in CEQA Guidelines Section 15183. The Court issued a peremptory writ of mandate directing the County of San Diego (“County”) to set aside its decision requiring preparation of a separate EIR for the NCER Project.
The County adopted the GPU and certified the accompanying PEIR in 2011, intending the PEIR to be used to approve subsequent development activities that the County determined were within the scope of the PEIR, had “no new effects,” and required “no new mitigation measures.” Such qualifying projects would not require any additional environmental review documentation.
In 2012, Hilltop proposed the Project on an industrial-zoned parcel of land and prepared a mitigated negative declaration (“MND”) to use with the PEIR in order to proceed with the Project. In 2014, the County concluded further analysis was required to determine the extent of the Project’s environmental impacts. The County denied Hilltop’s request to rely on the MND and issued a notice of preparation of an environmental impact report (“EIR”) for the Project.
In 2015, Hilltop submitted a draft EIR with more than a dozen studies, assessments, and plans, concluding that mitigation measures would reduce Project impacts to below significant levels. After the draft EIR was submitted, County staff determined that the NCER Project was exempt from CEQA under Guidelines section 15183, as there were no significant or peculiar environmental impacts not already contemplated in the GPU, and approved the CEQA exemption.
In response to community groups’ appeals of County staff’s exemption determination, the Board of Supervisors, against staff recommendations, determined that the NCER Project “would result in peculiar environmental effects that would not be mitigated by uniform policies and procedures,” requiring the preparation of an EIR. Hilltop then filed a petition for writ of mandate, asking the court to (1) set aside the Board’s grant of the appeals and requirement of an EIR, and (2) direct the Board to follow its staff recommendation and find Guidelines section 15183 applied. The trial court denied Hilltop’s petition and Hilltop appealed.
Guidelines Section 15183 Applies to the NCER Project
On appeal, Hilltop argued that any peculiar effects of the Project were already covered in the PEIR for the GPU, and that the Board did not proceed in a manner required by law as its findings were not supported by substantial evidence. The County responded by arguing that the Project was not exempt under section 15183 because “the record supports a finding that the [P]roject will result in significant environmental impacts” that were peculiar to the Project.
Acknowledging that a program EIR may encompass subsequent projects “to the extent it contemplates and adequately analyzes the potential environmental impacts of the project,” the Court determined that the NCER Project was consistent with the GPU and its certified PEIR, and therefore exempt from CEQA under section 15183. The Court found that section 15183 limited environmental review of projects to those effects that are peculiar to the project or not addressed in the previous EIR, but that this inquiry did not render the streamlining process totally inapplicable.
The County’s Initial Study Did Not Preclude Application of 15183
The Court rejected the County’s argument that the NCER Project was wholly ineligible for the section 15183 exemption due to the 2012 initial study’s conclusion that an EIR was required. The Court held that while the County needed more information about the Project’s impacts at the time of the initial study, this did not preclude—as the County had argued—the later determination by County staff that the Project fell under section 15183. The Court also found that to require Hilltop to prepare an EIR based on the initial study, even though County staff later found that the Project qualified for an exemption, would “elevate form over substance,” which the Court refused to do.
Aesthetics and Noise
The Court rejected the County’s arguments that peculiar impacts related to noise and aesthetics precluded application of the exemption. The Court noted that the County’s exemption checklist determined the NCER Project would not significantly impact nearby scenic vistas or views of lower-lying areas, and would not be a new source of substantial light. The checklist also determined the NCER Project would comply with the County’s noise ordinance during operation, and that noise impacts during construction for actions like rock crushing and blasting were mitigable. Further, County staff’s initial project approval was conditioned on enclosure of the processing facility, and determined that any such noise impacts would be less than significant, and would not result in impacts not contemplated in the PEIR.
The Court also rejected arguments offered by community group opponents on the issues of noise and aesthetics, finding that they were speculative and failed to demonstrate that the impacts could not be mitigated through the uniform policies and procedures in the PEIR.
Traffic
Hilltop argued that there was no substantial evidence in the record to support the Board of Supervisor’s determination that the NCER Project would result in significant and peculiar traffic-related impacts. The environmental studies conducted all found no potential for significant impact, and none of the public comments claiming there would be traffic impacts addressed the issue of whether or not the PEIR’s uniform policies and procedures would mitigate the purported traffic impacts. The Court agreed with Hilltop, holding there was no substantial evidence to support the Board’s determination.
Although the County argued that that the Project’s traffic analysis was flawed based on its failure to analyze the NCER Project’s vehicle miles traveled (“VMT”), Hilltop responded, and the court agreed, that the VMT analytical requirement in Guidelines section 15064.3 did not apply because it did not become effective until after Hilltop conducted its traffic analysis and staff approved the CEQA exemption.
Air Quality
Despite County staff’s earlier determination that there were no significant air quality impacts, the County argued on appeal that Hilltop was not entitled to rely on the PEIR because its mitigation measures depended on the County’s 2018 Climate Action Plan (“CAP”), which was subsequently set aside by the Fourth District Court of Appeal in Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467. Hilltop maintained the analysis was valid and showed no significant effects.
Noting the lack of contrary evidence, the Court sided with Hilltop. The Court declined to give credence to public comments on air quality impacts, stating that, “as we have now repeatedly explained, lay opinions may not constitute substantial evidence in an area that requires expert analysis, as is the case with an air quality analysis.”
The Court found that the Board did not proceed in a manner required by law when it denied the exemption for the Project and failed to cabin its further environmental review to those effects enumerated in section 15183. The Court held: (1) section 15183 was applicable to the NCER Project; (2) the County’s initial study did not preclude this application; and (3) there was insufficient evidence in the record to support the Board of Supervisors’ findings. Accordingly, the Court reversed the trial court’s judgment and directed the trial court to grant Hilltop’s petition.
Takeaways
This case is heartening in that it focuses on the evidence; the Court understood the important distinction between lay testimony and expert opinion, and, more importantly, held the County to account for the evidence developed by its own staff. Rarely do we see a project proponent challenge an agency’s refusal to approve a project, and a successful challenge is unusual indeed.