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Bedford v. Santa Barbara County  

Credit:  Leagle, www.leagle.com ~~




BEDFORD v. SANTA BARBARA COUNTY

GEORGE BEDFORD et al., Plaintiffs and Appellants,

v.

SANTA BARBARA COUNTY et al., Defendants and Respondents;

ACCIONA ENERGY USA et al., Real Parties in Interest and Respondents.

2d Civil No. B228958.

Court of Appeals of California, Second District, Division Six.

Filed February 2, 2012.

Brenneman, Juarez & Adam, Richard C. Brenneman, Richard E. Adam, Jr., and Mario A. Juarez Jr. for Plaintiffs and Appellants.
Dennis A. Marshall, County Counsel, Michael C. Ghizzoni, Chief Assistant, William. M. Dillon, Senior Deputy and Michael A. Munoz, Deputy, for Defendants and Respondents.
Foley & Lardner LLP, Leila Nourani, S. Wayne Rosenbaum and Elizabeth A. Cason for Real Parties in Interest.

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GILBERT, P.J.
This case arises under the California Environmental Quality Act (CEQA). (Pub. Resources Code § 21000 et seq.) Parties who own a residence near a proposed wind farm project petitioned for a writ of mandate challenging the County’s approval of the project’s environmental impact report (EIR). The trial court refused to consider some issues raised in the petition for failure to exhaust administrative remedies. The court found the remaining challenges raised in the petition to be without merit, and denied the petition. We affirm.
FACTS
Acciona Energy USA (Acciona) wants to construct a commercial wind farm. The project consists of as many as 65 wind turbine generators (WTGs) on approximately 2,950 acres of agricultural land in Santa Barbara County (County).
A preliminary layout of the WTG locations was prepared for the EIR. Adjustments to the final sitting of the WTGs will be made depending on future and ongoing meteorological studies. The purpose of the studies is to maximize wind energy generation, ensure adequate foundational support and minimize environmental impacts. Nevertheless, the WTGs’ ultimate locations are limited to eight delineated 400-feet-wide construction corridors that occupy 626 of the 2,950 acres. In addition, the final model of the WTG has not been selected. The EIR treats these uncertainties by analyzing the maximum potential impacts under the “worst-case” facts.
In July 2007, the County released the draft EIR. After the release, the County held public hearings and accepted written comments.
On September 5, 2008, the County released the proposed final EIR. On September 30, 2008, the County’s Planning Commission (Commission) held a hearing to consider certification of the EIR. After the hearing, the Commission certified the EIR.
George and Cheryl Bedford (the Bedfords) own property near the proposed project. They appealed the Commission’s action to the County Board of Supervisors (Board). After a hearing, the Board denied the appeal and certified the EIR. The Bedfords petitioned for a peremptory writ of mandate. The trial court denied the petition. In denying the petition, the trial court refused to consider issues that were not raised before the Board.
DISCUSSION
The purpose of an EIR is to inform the public and its responsible officials of the environmental consequences of decisions before they are made. (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, 721.) In reviewing an agency’s determination under CEQA, we must determine whether an agency has prejudicially abused its discretion. (Ibid.) An abuse of discretion occurs where the agency has not proceeded in a manner required by law, or its decision that the EIR is adequate is not supported by substantial evidence. (Ibid.)
I
The Bedfords contend the trial court erred in barring two of their arguments because they failed to exhaust administrative remedies.
The trial court refused to consider the Bedfords’ arguments that the EIR contains an inadequate environmental baseline and that the EIR defers necessary mitigation measures. The court found these issues were not raised in the appeal to the Board.
The Bedfords rely on Federation of Hillside and Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1263, for the proposition that a party may litigate issues that were timely raised by others as long as the party objected to the project on any ground. But Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 589, held that a party who raised an issue in the first administrative hearing, but failed to raise the issue again in an administrative appeal, may not raise the issue in a subsequent court challenge.
Thus even if a party may litigate an issue raised by someone else, it is insufficient that the issue was raised only at the first level of administrative hearings. To raise an issue in a court challenge, the issue must have been raised in the administrative appeal.
The Bedfords assert that they raised the issues of inadequate baseline and deferred mitigation measures in their appeal to the Board. The assertion is based on a list of excerpts from their letter to the Board. The excerpts contain only objections of a general nature such as, “[T]his appeal raises significant questions pertaining to the application of the California Environmental Quality Act . . . [and] the mandates of CEQA.” The Bedfords also rely on brief excerpts of arguments made by the County.
General references to environmental matters or isolated comments will not suffice to raise an issue on appeal to the Board. (See Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 527.) Objections must be sufficiently specific so that the Board has an opportunity to evaluate and respond to them. (See Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535-536.) Here the Bedfords point to nothing in the record that would fairly appraise the Board that they were claiming the EIR contains an inadequate environmental baseline or defers necessary mitigation measures. The trial court did not err in barring those arguments.
II
The Bedfords contend the EIR’s project description is inadequate. They argue the project description fails to adequately discuss or disclose: the make, model, size and location of each WTG; the locations of the WTGs within the construction corridors; and the operational noise level at or near the project site.
Guidelines1 section 15124, subdivision (c) requires that an EIR have a “[a] general description of the project’s technical, economic, and environmental characteristics . . . .” The Bedfords challenge to the general description appears to be that it is “conceptual,” with the precise details to be determined at a later date. They claim such a conceptual or hypothetical analysis is as a matter of law inadequate under CEQA.
A similar challenge was rejected in Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20. There, a citizens group challenged the project description for a mining permit that required a creek bypass channel, cutoff walls and in-stream diversion structures. The project description was conceptual, with the precise design to be determined after the project’s approval.
In rejecting the challenge to the project description, the court determined that a “general description” of the project requires only the main features, rather than details or particulars. (Dry Creek Citizens Coalition v. County of Tulare, supra, 70 Cal.App.4th at p. 28.) The degree of specificity required depends on the type of project. (Ibid.) The court noted the challengers failed to carry their burden of showing the description is insufficient to understand the environmental impacts of the proposed project, narrowed the scope of environmental review or minimized the environmental impacts. (Id. at p. 36.)
Here the project description provides the design criteria for the WTGs, including their size and maximum noise level. It also provides approximate locations for the WTGs within construction corridors. That is sufficient for a general description of the project. There is no need for the level of detail the Bedfords claim the project description requires. As the trial court found, the Bedfords have failed to carry their burden of showing how additional information would enhance environmental review.
The Bedfords’ reliance on Stanislaus National Heritage Project v. County of Stanislaus (1996) 48 Cal.App.4th 182, is misplaced. There, the EIR failed to identify a water source for a 5000-residential-unit project after the first 5 years of the project. Here there is no such complete failure to identify a significant environmental impact.
The Bedfords argue that because the precise location of the WTGs are not set, one cannot determine the visual impacts on private residences. They concede the EIR is not required to analyze the visual impacts on private residences. (See Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-494.) They claim, however, it necessary follows the EIR cannot analyze any other visual impact.
But it does not follow at all. It is true the precise location of the WTGs is unknown. But the EIR’s analysis of visual impacts is based on the maximum potential impact that the project could have. In fact, it analyzes the maximum visual impact from such public places as Jalama Beach and Miguelito County Park.
Similarly, although the precise type of WTGs that will be used is currently not known, the EIR analyzes the maximum potential noise impact of the project.
Finally, the EIR analyzes the greatest impact on biological resources throughout the entire construction corridor. The project description allows flexibility in the precise placement of the WTGs within the corridor, so that the actual impact might be less.
III
The Bedfords contend the EIR does not contain an adequate analysis of project alternatives.
Guidelines section 15126.6, subdivision (a) provides in part: “An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives. An EIR need not consider every conceivable alternative to a project. Rather it must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation. An EIR is not required to consider alternatives which are infeasible. . . . There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.”
Here the EIR considered four alternative locations for the project: The Zaca Lake region, the Channel Islands, offshore areas near Vandenberg Air Force Base (VAFB), and the Hollister Ranch region. The EIR concluded that none of the alternative sites are feasible alternatives because development in the area would not meet the objective of having the project operating in time to meet milestones of an existing power purchase agreement and qualifying for tax credits as well as the public objective of having renewable power available by 2010. In support the EIR cites such factors as the need for extensive oceanographic studies for the island and offshore areas, lack of infrastructure such as sub-sea cables, inconsistencies with the County’s coastal zone plans, and delays in obtaining control over the alternative sites by lease or other agreements. The EIR also pointed out that the alternative sites would not avoid or substantially reduce environmental impacts.
The Bedfords cite to no facts or findings to challenge the EIR’s conclusion that the alternative sites are not feasible. They simply assert that the EIR’s analysis is based on “vague and unsupported statements . . . .” But the EIR’s conclusions are not vague and unsupported. Instead, the EIR presents cogent reasons why alternative sites are not feasible. In fact, the Bedfords fail to point to a suggestion by anyone challenging the project that any specific site would be a feasible alternative. Wind farms by their very nature fit into a very limited number of sites.
The Bedfords also challenge the EIR’s analysis of the feasibility of a smaller project alternative on the same site. The EIR discussed two such alternatives. In alternative one, the number of WTGs would be reduced or “microsited” in portions of the project. In alternative two only phase I of the project would be completed. The EIR itself does not provide evidence to show why the alternatives are not feasible. But evidence supporting a finding of infeasibility need not be set forth in the EIR itself. (See San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, 690-691.) Instead, the evidence may be contained in the administrative record. (Ibid.)
Here Acciona’s wind resource expert explained in a letter that alternative projects at the same site discussed in the EIR would fail to generate sufficient electricity to meet the project’s objective of developing a commercially viable wind energy facility. A County staff report agreed with that assessment based on wind resource maps obtained from the California Energy Commission. That is sufficient evidence to support the finding of no feasible alternative.
Finally, the Bedfords argue the EIR should have considered alternative components such as vertical shaft turbines. The Bedfords claim that vertical shaft turbines are more efficient and far less environmentally intrusive than horizontal shaft turbines. But the requirement that the EIR consider alternatives applies only to the project as a whole, not to its components. (See Big Rock Mesas Property Owners Assn. v. Board of Supervisors (1977) 73 Cal.App.3d 218, 227.)
The Bedfords’ reliance on Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, is misplaced. There, the EIR for a private residential development concluded that a parcel owned by the Bureau of Land Management (BLM) was not feasible as a project alternative. The conclusion was based on the grounds that the BLM was not interested in a land swap, the quality of the parcel was inferior due to “aesthetic/view issues,” and the developer could not expect to achieve the same economic objectives as with the proposed site. (Id. at p. 1459.) The court held the analysis was insufficient. The evidence showed the BLM was interested in a land swap, and the land could be developed for residences; the reference to “aesthetic/view issues” was too vague, and was based entirely on the opinion of the developer; and the developer is not entitled to the same economic objective from the alternative site, instead the question is whether the reduced profitability from the alternative site is sufficiently severe as to render it impractical. (Id. at pp. 1459-1461.)
Here the alternative sites were not deemed infeasible because, contrary to the evidence, they could not be acquired. Nor were they deemed unfeasible based on vague references to aesthetics. Nor were they deemed unfeasible because they would not be as profitable as the proposed site. Instead, the alternatives were deemed unfeasible based on sound objective criteria such as the time necessary to develop alternative sites, and the inability of alternative configurations of the WTGs on the proposed site to generate sufficient electricity.
IV
The Bedfords contend that the EIR’s noise analysis is inadequate.
The Bedfords argue the noise analysis is based on speculation. They point out the EIR admits that noise levels would depend on the make, model and size of the WTGs selected for installation; that the setback from private property would be from 300 to 500 feet; and that the turbines “are anticipated” to have a maximum sound level of 112 dBA.
But, although the EIR admits there are unknown factors, its analysis is based on the worst case. Thus the noise analysis is based on 80 WTGs up to 500 feet high; whereas the project description includes only 65 WTGs no higher than 397 feet.
Moreover, the maximum anticipated sound level of 112 dBA is irrelevant. That is the noise generated at the WTGs. Presumably, residents who are not participating in the wind farm project will not be standing immediately next to a WTG. A mitigation measure in the EIR limits noise levels from the project to 43.3 dBA at nonparticipating residences. The County’s noise element of its comprehensive plan establishes 65 dBA as the maximum exterior noise exposure for residential use.
The Bedfords complain that no ambient noise level studies were conducted at their residence or at the project site. Instead, the EIR bases its analysis on general studies created by the BLM and Environmental Protection Agency (EPA) of ambient noise levels in rural environments. The Bedfords claim the use of such general studies was ruled insufficient in Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, 1381-1382. But in Berkeley, the EIR contained no studies or analysis of ambient noise levels. Instead, the EIR simply assumed that any noise impact under 65 dBA was compatible with residential uses. (Id. at p. 1381.) The Bedfords cite no authority that the use of BLM and EPA studies is insufficient.
The Bedfords argue that in light of the described level discrepancies found within the BLM and EPA studies, the use of such studies constitutes speculation. They claim the studies show ambient noise levels ranging from 30 to 45 dBA. The BLM study shows background noise of 40 dBA during the day to 30 dBA at night for rural areas. The EPA study shows background noise of 40 dBA in rural residential areas. Under the circumstances, 40 dBA is a reasonable estimate of the background noise in rural residential areas. Reasonable estimates may be used in the EIR analysis. (See Guidelines § 15384, subd. (b).)
V
The Bedfords contend the project is inconsistent with local policies and objectives.
(a) Ridgeline and Hillside Guidelines
The Bedfords contend the project violates the County’s ridgeline and hillside development guidelines.
The County’s ordinance states in part: “The height of any structure should not exceed 16 feet whenever there is a 16 foot drop in elevation within 100 feet of the proposed structural location . . . .” (Italics added.) The Bedfords argue the County’s ordinance leaves no room to deviate from the 16-foot standard. But the ordinance uses the word “should.” Had the ordinance intended not to allow an exercise of discretion it would have used the word, “shall.”
(b) Noise
The County’s noise policy for nonparticipating residences is as follows: “WTG noise levels that exceed 43.3 dBA . . . or cause an increase of more than 10 dBA at nonparticipating residences would be considered significant.”
The Bedfords argue that it cannot be determined whether the noise level will increase more than 10 dBA without baseline studies. But as we have stated, the EIR properly used BLM and EPA studies to establish a baseline at 40 dBA. Mitigation measures assure the noise level would not exceed 43.3 dBA. The noise level from the project meets local policies and objectives.
The judgment is affirmed. Costs are awarded to respondents.
YEGAN, J. and PERREN, J., concurs.


Footnotes


1. All references to “Guidelines” are to the California Code of Regulations, Title 14, section 15000 et seq.

Source:  Leagle, www.leagle.com

This article is the work of the source indicated. Any opinions expressed in it are not necessarily those of National Wind Watch.

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