|
Monday, puly 29, 2013 _..Dally Appel
<br />includuig Ilium on behalf of Masonite, the
<br />Planning Commission certified the EIR and
<br />npproved the .umse permit and reclamation plan,
<br />The Pl•mningComission adopted a a Cement
<br />of overriding considerations noting, among other
<br />things, that Hie Project would provide "a reliable
<br />20-year supply of construed n aggregate in the
<br />Mendocino County area."
<br />Maspp ta, and Russian Riverkeeper appealed
<br />the plaftning,goomilssion decisions to the County
<br />Board ofSullerAsurs. The appeals were heard by
<br />the board donauly27, 2010. The dayof die hearing,
<br />Masonite filed a 49-page letter brief challenging
<br />die EIR on approxhmately 20 grounds, The board
<br />denied both gppeals.
<br />- .Masonite -and Russian Mverkeeper filed
<br />Petitions for writ of mandate seeking to overturn
<br />the CouinVs approval of the Project due to
<br />violations of CEQA The petitions were denied,
<br />and Magnolia and Russian Riverkeeper appealed
<br />from the judgments, Russian l iverkeeper's
<br />appeal was dismissed after settlement,
<br />11. DISCUSSION
<br />A Scope of Review
<br />"Id reviewing no agencyrs compliance with
<br />CECjA -., , the courts' inquiry 'shall extend
<br />only, to. whether there was a prejudicial abuse
<br />Of discretion.' [Citation) Such an abuse is
<br />established dt Hie agency has not proceeded in a
<br />record rot legal error and substantial evidence In
<br />a CEQA case , , . is the same as the trial court's:
<br />The appellate court reviews the agency's action,
<br />not, the trial cour4s decision; In that sense
<br />appellate judicial review under CEQA is denovo,
<br />[Citations,] We therefore resolve the substantive
<br />CEQA issues ... by independently determining
<br />whether the administrative record demonstrates
<br />any legal error by die County and whether it
<br />contains substantial evidence to support the
<br />CotuaVs tactual determinations." (Vineyard
<br />Area Citizens for.Respousible Growth. L)1e. a City'
<br />In. emitted (Vineyard))
<br />B, . R.eeirculadon of the E1R
<br />(1) Arguments and Standards
<br />Masonite contends that the BR ' hould have
<br />been recirculated for public review because the
<br />Project as approved was "different markedly"
<br />from the one analyzed in the Drat: and lied inure
<br />severe environmental impacts, and because the
<br />EIR Identified a new slgnificauC impacEon the
<br />Frog,- . . .
<br />", (Cal. Code Rags., Ht 14, § 15088,5,.
<br />he. CEQA Guidelines in Cal. Code
<br />, 05000, at seq. are hereafter cited
<br />late Report 9785
<br />as Guldelinesj; Pub, Resources Code, § 21092.1.)
<br />"I "Pjhe addition of new- information to an EIR
<br />after the close of the public comment period
<br />Is not'signiticane unless the EIR is changed in
<br />a way that, deprives the public of a.meaningful
<br />opportunity turn eatupon asu6standa /adverse
<br />environmental. effect of fha project or a feasible
<br />Wray to midgate or avoid such an effect" (Laurel
<br />Heights Improvement Asni, a Regenls of Universily
<br />of Califarnla (1993) 0 Ca1.41h 1112,1129 urel
<br />(la
<br />Heights T!)t see also Vineyard, supra, 40 .4th
<br />at p, 447, quodng Lautel Heights ll,). "Signifienot
<br />new Information" includes a disclosure showing
<br />that "[a] new significant environmental impact
<br />would result from the project . , , ," (Guidelines,
<br />§ 15088,5, subd. (a) (1),)
<br />(2) ProjeetAlteratious
<br />The Projectwas changed in two respects from
<br />the one originally envisioned,
<br />(a) Pond-River Connection in Lieu of a
<br />Weir and Fuse Plug -
<br />Granite's applicadon for the use perhdtand
<br />reclamation plan recognized that, 'because of
<br />Its proximity to the Russian Diver lad Ke.knrman
<br />for these species relative to the proposed project
<br />is the potential for fish entrapment in, the pit
<br />during floods high enough to inundate the site."
<br />The application noted.with respect to 'hydrology
<br />and drainage doia "as an alluvial terrace adjacent
<br />to the Russian River and Ackerman Creek," Hie
<br />Project site "is subject to perigdicJ nundation• , ,
<br />Extensive hydrologic modeling was conducted to
<br />design an overflow structure thetwould mialmLe
<br />the potential for fish to become entrapped in the
<br />pit, and prevent erosion of pit batiks and walls
<br />during a 100 -year flood event, - , - r•.
<br />'Granite's application,proposed taf.addreas
<br />the potential for flooding and trapped:fish with
<br />construction of aflood control.weir.,and fuse plug.
<br />'The armored:overflow weir gives.the creek and
<br />river a. controlled . access and dndnnve .v,inr 9n,•
<br />>m
<br />to the stream" would provide better oug'term
<br />protection for endangered salmonids than the
<br />proposed weir and fuse plug. Granite's study of
<br />the WITS proposal, attached as Appendix F to
<br />the Draft, eoncluded that itwould: be preferable to
<br />use connection channel between the mine pond
<br />and the Russhux River in lieu of the weir and fuse
<br />plug..
<br />The Project as proposed in the Draft provided
<br />rteir Ilse hwe- lbr nd fuse.plug,,but:the pond.
<br />ver conorlhatmel
<br />design was :presented
<br />as "Alternative 3" - it.replaced•the.weir and fuse
<br />Plug with "a culvert (or culverts): suitable for the
<br />75B -22
<br />
|