FILED ‘supanion cous? COUNTY OF ARE 2 JAN 94 2072 3 Up) Woe Nie 4 aR oA ei 7/ 8) ‘SUPERIOR COURT OF THE STATE OF CALIFORNIA 3 COUNTY OF LAKE 0 | CENTER FOR BIOLOGICAL DIVERSITY, ) Case No. CV421152 4 ) Petitioner, ) 2 ) RULING AND ORDER O8 PETIIONS | PEOPLE OF THE STATE OF CALIFORNIA.) FOR WRIT OF MANDATE 18. EX REL, ATTORNEY GENERAL ROB) |90NTA, 16 | Pettioner-itervencr, 1! 16! | GOUNTY OF LAKE, BOARD oF 17 | SUPERVISORS OF THE COUNTY OF |LAnEsent00E8 oun 0 8 Respondents 1 20. LOTUSLAND INVESTMENT HOLDINGS, INC. and DOES 21 through 40, Real Parties in Interest —_) FOR WRIT OF MANDATE6 7 e 10 ” |) Introduction, The Cour's obigation inthis case is to answer the folowing questions: 1._Was there su 2 f id the County fall to proceed in he manner required | (Pu, Res. Code $§ 21168, 211685.) | in answering the frst question the Court ‘must indulge allreasonable inferences, | rom the evidence that would support the agency's determinations and resolve all | conficts in the evidence in favor of the agency's decision." (Save Our Peninsula | Commitee v. Monterey Counly Boa of Supervisors (2001) 87 CalAop 4% 89,117) may no. set aside an agency's approve ian EI [Environmental Impact Repo Ion ine ground inat an opposite conclusion would have been equal or more reasonable. * {ove Heights Improvement Ass. v.Rogont of Univers of Calo (188) 47 Gaisd 376, 300) | Imenswering the second question, the Court must determne if the County | substantially complied withthe procedural requirements of the California Environmental 8 | quality Act (CEQA) (Practice Under the Califomia Environmental Quality Act (2d ed, Cal wv 1 i |ICED) § 22.35 ) While a court may find noncompliance with CEQA requirements to be a \dicial abuse of discretion, there is ne presuraption that such an error is prejusicial * jteup Res. Code § 21005(0),) In determining whother a ature fo comply with CEQA is 20 22 | pvejudiial, a court does not determine whether a diferent outcome would have resulted (rep Res, Core § 21008(a)) —RULNG AD ORDER ON PETITIONS FOR WRIT OF MANDATE | 2ih Willie Risk 2 A. Compression of Miigation Measures nto the Project. 7 When an EIR ingorporates mitigation measures into the project description, then € concludes that the project has no significant impact, the failure to separately iienity + enter mans nde megan as 6 || Department oF Transportation (2014) 225 Cal.App.4 645.) This is because by doing so, | | ler EIR ‘precludes both identification of outential environmental consequences arising | ‘the projact and also thoughiful snalyris oF the sufficiency of measures to mitigate ‘those consequences.” (ld. at p. 858.) 0 1 olus v. Department of Transportation, supra, involved a highway construction +1 ||project through an old growin redwood forest. portion ofthe construction was panned | +2, {19 ee2ur within the structural root zone of & number of trees. The EIR described measures that “have been incorporated inio the project to avoid and minimize impacts ae | 13 4a {}}ell a to mtigate expected impacts.” (Id. at p, $50.) Those measures included «8s ing and repining, inves pln emval ard use ofan arbors and specialized equiptient. Inthe EIR, the agency concluded thet “a significant hionsnenta effects are expected as a result of this project with the implementation of “ine sated special construction techniques." (ld. a p. 651.) i tn concluding thatthe EIR violated CEQA by compressing the analysis of mpacts © | inigation measures into a single lve, the Cour of Appeal expained 0 ‘The EIR faile to indicate which or evan how many protected redwoods will de + || acted beyond the tolerances speci inthe handbook and, by fang to indicate any signifcant mpacs, fas 1 ake the necessary evaluation and so | findings concerning the mitigation measures that ae proposed. Absent a deteimination regarding the significance of the impacts to the root systems of the | 23 || old growth redwood tes, tis imposible to determine wheter mitgaten RULING ANS ORGER GW PETITIONS FOR WRIT OF MANDATE 3|! |) measures are rwized orto avaliate whether ethar more effective moasurse than | those proposed shoul! be considered. Should Caltrans determine that a specific || 2 tree or group of trees willbe significantly impacted by proposed roadwork, that 3 Finging woulé tigger the nead to consider a range of specifically targeted ‘mitigation measures, including analysis of whether the project itself could be 4 ‘modified to lassen the impact, nd 9,656) | in matcas, the measures contained wit the project were designed to mitigate 7 ‘lane impacts to the heath ofthe trees caused by the consructon. The measures tissue 5 || were “plainly mitigation measures and not part ofthe projec itself." (Id. at p. 656. fn. 8) 9 neatly tose measures astiation meas revere hse vena 10 | tn ER rom determining the gniteanceof ho impact te constucton woud have on ithe health of the tress. (id. at pp. 656-658.) 2 In the instant case, Pottioners' argue certain design elements included in the © | saute Prevention Pian QWPP?, Including dese relating io relating to vegetation |! menagoment and frebreaks, were miscicasified as part of the Project rather than 15 | tigation measures. Athough cetin actions such as vegetation management and °© | mantenance of the frebreaks vl continue wel ster the Project is bul, those ° | componerts ofthe WPP are propery claccified as par of he Project ise. This 18 I because tour memset the measures Lotus v. DoparinentofTansprtaton, 19 Il eu9:9, er9 not designed to rectly the impeets to the anvronment caused by the Project 20 || None of ihe challenged design elements are meant to repair, rehabilitate or resto'e the evpuctee orvironment, Instead, they ave part of the design of the Project meant to avoid 28 | romance nclades nerenoPattonr ale brie stated RULING AN ORDER ON PETITIONS FC3. Adeguacy of A sis of Wildir Risk, 6 Petitioners find fault with the E1R's analysis ofthe wildfire risk and the 7. |nvethodology used to analyze that risk. Although the analysis could have been move 6 |snolough and Leder methodologies could have been used, “challenges to the scope of an I's analysis, the methodology used, or the reliability or accuracy ofthe data underlying 10 Ilan onalysic, must be rejected unless the agency's reasons for proceeding as it did are iy inadequate cr unsupported." (Chico Advocates fora Responsible Economy v. Cy 12 ure (201) 40 Cal App. 88, Ht) Me ERs analysis the Projets impacts on | * ive ik was extensive and spe tbat he Pj anit fcton bout 14 | ranshing he evidence contained in ihe record. ne Cour concludes aubstantal idence 1¢ [supports th Counts ndings regarding the Projects impact on wie ike, wits one | | 15 || caveption which will be discussed in the folowing section, 7 | ©. knpasts on Emergency Evacuation Routes. is) SRT rig” REST Pany airerenniten prejectvacuation ous fit ‘o-)peomnuniggyarea-wide evacuation fpiiee cinadiaUuaGOlROBInLAnese.CL NS 20 | Projets evacuation routes area reverse CEQA issue and need not be adressen RULING AND ORDER ON PETITIONS FOR WAM OF MANDATE | 5| I 2| 21s 52 cate 200 ene wean ago relic span tor cea 2 |[porutants which required project proponents fo evaluate how existing ai potion would 4 || afect inaivicuals within the proposed project. The Supreme Court cencluded, “CEQA « |sseraty doesnt eae an ana of aw est entonmertalontons vi | 3 linc 2 projects future usars or raeidente” (ld at p. 326) CEQA dose, however, require | 7 | ev aati ofa prone potty sigiteantexeceraing eet on etna 1 esonmenta rad flesh ase because the projec ngs ovelopment nd 2 lhonple inte the area affected," (et p. 388; Hales in original) The Supreme Court 10 |ecnad an ER shoul evalu ny potently sgicet pat ct tng 11 [development in other areas susceptbe to hazardous conto (eg, ood 12 | coostines, wile risk areas). (Ibid) 18 Newton Preservation Society v. County of El Dorado (2021) 65 Cal App.5! 774 involved » bridge construction project where project opponents, many of whom were 1 | saan, eye the pret woul aves nist impact en evacuation The Gout 15 | sopeal hold the evidence presented in inet case ¢id nst "support a fair argument that the +> reset may have a significant impact onthe ervronment or may execerbate existing 18 || ervionmental hazerds.” (ld. at p. 782.) ‘The court determined the camments offered in 19 || opposition tothe project “tacked factual foundation and failed to contadic the | 20 || conclusions by agencies wit expertise in wife evacuations with specif facts caling wvestion the underlying assumptions of their opinions as it pertaned to the project's | 22 || potential environmental impacts.” (id. at p. 791, italics in original) os |! | TN AD ORDER ON PETITIONS FOR WRIT OF MANDATE, 62 Real Party is correct that analysis of community evacuation is not required unless the project might exacerbate existing environmental hazards. (Real Party in interest {i 3 | Lotusiand Investment Holding, Inc.'s Supplemental Brief Re: Evacuation fled November 4 //99, 2021, (Rea: Party's Supplemental Brief, p. 7:7-8.). Here, unlike the case in Newton, ipr, there is evidence that the Project might exacerbate existing environmental 6 || hazards. As pointed out by Petitioners Center for Biological Diversity (CBD) and 7 | cetera Native Plant Socioty (CNPS), a signifeant number of wildfire related deaths in 8 ||Caiifomia occur during attempts to evacuate. (Fetitioners' Opening Brief filed June 15, 2021, pp, 19:26-20:4,) The hazards of a wikfie are certainly exacerbated if community 10 resents are unbie evacuate saely due to congested evaciation routes. Ris 112011, (AR 8608.) I a wildfire occurs, the Projsct’s residents will need to evacuate, These | estimated that te Project wl bring 4,070 vesiaons tothe area. (AR 6612) This isa | sunicant population increase when considering the Project is located in Lake County ‘coves Tracts 12 and 1 which hac en estimated combined population of 10,163 in tisonle wil Hkaly corapete with residents in the :urrounding area fr safe evacuation ‘utes. The additional people competing forthe same limited routes can cause congestion and delay in evacuation, resting in increased wife related deaths, This is | undoubtedly a situation where the Project, by banging significant number of pecple nto {he area, may sigaificantly exacerbate existing environmental hazards; specifically, | wtfres and their associated risks, Therefore, inis isan issue that is required to ke addressed under CEQA “The County concluded the impacts to existing emergency evacuation plants would be less than significant. (AR 6746.) The evidence supporting this conclusion are ETTTIONS FOR WRIT OF MANDATE 71 2 petsmel oa Pry Sipe Sra 9 828: AR 4258 42505 573855740) 3 | ‘Those opinions were not based on any identifiable facts. «l|___ There are two problems wih evidence Fs ths evdenoe pinay accesses 5 lithe issue of whether the Project's residents could safely leave the Project in the event of 6 || awildfre, This evidence does not focus on the issue that is required to be addressed by o -E0A, wheier evacuation of the residents in the nearby area would be affected by the evacuation of the Project's residents during a wildfire. ‘Secand, this evidence cannat be considered substantial evidence. Substantial | Jasutbsiantiated opinion does not constituie substantial evidence. (14 COR §16304(a),) "|The conclusion reached by the County as it relates to emergency evacuation plans is 15 l/harod on unsubstantiated expert opinions. This evidence is legally insufficient to qualify sosisriial evidence under CEOA 15// Because the County faings regarding colamunty emergency avacvation routes 1 | are not suopored by substantial evidence, the EIR does nol comply wth CEGA Ww | i, Gaebon Credit Program. 1 || Pettoners auth carbon rest ropa is inectv as a miigaton messuie 1 ||bovevse if does not include suiiien’ safeguards to oneureofeats are rea, permanent 20 ||vertabie and enforceable. (Botton Door Properties, LLC v. County of Sn Diogo (2020) 21 160 Cal App.5" 467, 608-507.) The enon cr progam wor diced byt pie ur the oe opie of imate pt ad GIG atc lee ded wes antonuton dent managment plan (TDM). The Cont msds RULING ANG ORDER ON PETITIONS FOR WRIT OF MANDATE2 13 14 Here, the carbon credit program was added through an errata to the Final EIR after the public comment period had closed. The County explained: Also we added a mitigation requiring the purchase of greenhouse gas carbon Ctecits to offset the project's remsining greenhouse gas emissions that are above ‘and beyond the stated thresholds in the EIR. However, the EIR’s conclusion of @ significant, unavoidable greenhouse gas impact would not change, given the limited supply of carbon offsets and the urcertainty regarding the availabilty of offset ereits throughout the life ofthe project. (AR42599.) Given the timing of the adaltion ofthis measure to the EIR and the comments made by the County, unlike the mitigation measure in Golden Door Properties, LLC, v County of San Diego, supra, the carbon credit program here was not a mitigation measure that the County ralied upon in making avy findings contained in the EIR. In fact, the County described the modifications to the mitgation measures conteined in the Errata, which included the addition ofthe carbon credit program, 10 be minor and insignificant. (AR 7193) To the estent this measure did not comply with CEQA, the Court determines it does not constitute prejudice! errorbecause inclusion of the measure did ‘not “deprvel | the public and decision makers of substantial relevant information about the Projacts likely adverse impacts.” (Neighbors for Smart Rail v. Exposition Metro Line Const, Auth, (2013) 87 Cal 439, 463.) 4 tor Supply. Petitioners CBD and CNPS take issue with on an off-site groundwater wollloeated Within the Collayami Valley Groundwater Basin. Groundwater from on-site wells and surface water sources are expected to supply allof the projects water demands. tic EDM wbnaaly compa with CEQA. (6. Cin af Mayr. Trasacs of Culifernia State iver (2018) 242 aap” 809, 88-83) RULING AND ORDER ON PETITIONS FOR WRIT OF MANDATE °| es0884-0566) The ote wel wou provide non petal wae if eared (AR 6888) 2 || The County determined because of the characteristics ofthe basin, the potential ‘npacts, 9 it drawing water rom te wel could not be determined. R658) The County | [ert poses mtanton masse 39:3 whch requis apteant to povie foihe i 6 ||the applicant to submit annual monitoring reporis and provide quarterly data for tre first 11 || substantial evidence. This mitigation measure complies with CEQA. Status Finis. |) v. Spee 8 ‘hwo appendices attached tothe EIR? provide ann depth analysis and disclosure 14 ot spoctal status plant, The County’ findings relating othe special stats plants are {5 | suppor by substantial evidence. Which specie plants wil be impacted cannot be 16 lidstenmined inecause the exact location of the bucings onthe site has net been 7 _|cetommined. Mitigation measure MM 3.4-3 is designed to accommodate the uncettainy of the impacts on the plants, it requires pre-construction botanical surveys be cond cted by 2 qualified biologist. f avoidance of a special-siatus plan is not feasible, compensatory ting oF transplanting shall occur, Those plants would he subject to monitoring to 1 i ensure success ofthe plants, (AR 6387-6288) This mitgaion measure comglen wih i he apse re abe as BRA (ARD485-2926) and BRA? (ARZ9Z7-1403). ow sumsni ss ppl vein clesng long popond roadways. (AR 6387) RULING AND ORDER ON PETITIONS FOR WRIT OF MANDATE i ”1 ||CEQA. (of Riato Citizens for Responsible Growth v. City of Rialto (2012) 208 Ca App.4" 2 ||e99. 943) || Vi Project Alternatives. tl 4 || "The wisdom of approving [a] project, a delicate task which requires a balancing of interests, is necessatly left tothe sound discretion ofthe local officials and their 6 | consttuenis who are responsible for such decisions. The law... simply requires “hat 7 | those decisions be informed, and therefore balanced ” (Citizens of Goleta Vai v. Board 6 jor Soporsors (1980) 52 Cal 553, 576) “Ileal under CEQA encompasses € h ‘desirability’ to the extent that desirability is based on a reasonable balancing of the 10 | selevant economic. environmental, social, and technological factors” (City of Del Marv 11 ||Giy of San Diego (1982) 198 CaLApp.20 401, 17.) 6 Petitioners contend the County's finding of infeasiity of Aerative C was-not 19 | supported by substantial evidence. Wit: respect to Alternative C, the County concluded, 14 |) 1jven that the Reduced Intensity Aternave woud rest in signicanty fewer \ 1 |ecanomi ena, the County finds he Reduced Itsy Aternatve dee rt 1 | waran apron leu ofthe Proposed Project” Economic benef are Key goal fe 17 | soject. The ated aroject cbjectves included economic gro, expanding high-end 18 "| nospitality and construction employment opportunities, and increasing revenues for the |cuunty (AR 8768, Atematve © would reste the overall luxury market resort and | cadena commun appeal rece rents en wore and euce maeaiy 21 | investors, buyers and consumers in the high-end luxury resort market. (AR 53789- il 3| | OURS BS ACER GH PETTIONS FOR WRT OF MANOATE*I|sa7e1 Te evidence suppons he concision hat erative woul! esut favor = | econeme bento he County? 31] intervenor suagests the County sould have consdeed atarnative locations « I dose to rans slop because GHG emissions would have een reduced in such a 5 |ocaton® The Projet consists highend resident resort, and recreational acest « |is speculate concide consumers the proj wil tavel fom out of the are by 7 | pote rans «| “ise petones burden to demonsttensdequacy othe EIR. (Apttoned > list erfore show be agony find ost ts burden of nthing and anating 1s | ons stone potently ease atematves. zene may not sinay dan he 1 | ageney tae i reset an adequate ange aemabves and ten st back and xe 12 |/tre agency to prove it wrong * Mount Shasta Bloregional Ecology Center v. Couniy of 19 | Sisko (2012) 210 Gal App th 186, 189) Here Inervenor makefa} no atiomptto “ [eo how such an alemative would have mei most of the goals ofthe Project, would | 15 | nave Seen potentialy feasible under the circumstances, or would have reduced overall [environmental impacts of he Projeci.(ic.) The Gounty properly considered and rejected potential alternatives. Vil Recirculation of the EIR. Hl Recirculation of an EIR is not required when the changes merely clarify, arnplity 9 2 ntve was found icant bated an he applicant's expectation oecwcod ‘eens flour cnar Pop of hc Slt of Caloris Opening Dri at Jube 13. 2021 (Pepi Opening Bri J |p Sih6) Thierens 0% apport by the lanag th IR x» whole isthe exonomie bathe 22 | Cougs the appt tat mth ng force behind the County retng, era C peg 5p. 3222-351 ‘RULING AND ORDER ON PETITIONS FOR WRIT OF MANDATEi |jOF make insignificant modifications to an EIR. (Laurel Heights Imorovement Association v, i 2 | Ragonts of Universiy of Cao (Laure Highs (158) 6 Cala” 1112, 1180) Tho 3 | couny found the aa contained miner ets nd clarfsaons which dnt conse 4 | signitcant new ntormation that deprived the public ofa meaningful opportunty to 5 | smament upon a substantial impact reauting from the jet or a mitgaton measure || (SR 7183, This Seterminaion is required io be upheld if supported by substantia 7 |lovidence. (Laurel Heights I), supra, tp. 1136.) Reasonable doubts are to be resolved in favor of the agency's decision. (Ibid) he Elks analysis of the Project's impacts on wildfire risk was extensive. “he 10 | County's finding thatthe EIR did not include any information that showed a substantial 11 | increase in the severity of the wikfire related impacts is supported by substantial 12 jievidence 13 || “The Evreta did add an additional mitigation measure regarding the purchase of 14 | OH cerbow ereaits. Recirculation is required only if anew mitigation measure is not | 15 | stlopted, (Souih County Citizens for Smart Growth v. County of Nevada (2013) 22 | | 16 ||ca.Ano 316, 230) The mitgaton measure inthe Eta was adonted, | amplifications and insignificant modifications to the EIR, ‘ecirculation of the EIR was not required zo [vm onus net Pine Sty sme TULING AND GROER ON PETITIONS FOR WRIT OF MANDATE 3all other ssues raised by Petitioners nol specifically discussed herein, the Court has | 2 | setemins at tnings made by e County were suppor by substan evince ard 3 [the County otherwise substantily complied withthe requirements of CEQA. | 1%. Timeliness of niervenor’s Claims, 5 | A subsequent pleading may relate back othe aighal plang for statute of 6 |[leitaton purposes it 1) rests onthe same general facts as the orginal 2) nvctves the 7 jane Injury; and (3) refers to the same instrumentality (Norgart v. Upjohn Co (1998) 24 8 |ical4 60,408, |The timelines of intenenors pftion is moct aso al claims denied byte Court 18) |As discussed above, the Court has concluded the EIR was deficient because the 11 [coms sng regain cnmuniy enegenyevciaton rae ero spre '? |llbv subsiantal eviionce, This issue was addressed by causes of action in the Pet tions | led by GBO anc CNPS. Therefore, the claim raleted to this issue was timely fi 16 | pursuant to the relation-back doctrine. 15 || % Constusion. 16 || Because the County's findings regarding community emergency evacuation routes ij 17 || are not supported by substantial evidence, the £1R does not comply with CEQA. Had the 1S findings cegarding emergency evacuation roules been supported by substantial evidence, 19: ve Court would have concluded the EIR complied with CEQA and therefore denisd each 20 forme Pe ail ae il The Cour orders ae ftons: af __ TOUS TN OROER OH PETTTONS FOR WRT OF MANDATE | | 4+ | psminitrative Record fled August 17,2021, s granted. Exhibits A and B attached tthe i Declaration of Charmaine G. Yuin Support of Respondents and Reel Paty in interest’ ¢ |doin Motion to Augment the Administrative Record ar hereby aed tothe administrative record in this ction? 4 5] __2_ The People's Request fo Judicial Notice in Support of Opening Brief fled June «5 | 15-2921. granted. The Cour takes jus! notice of Exits 1 and 2 attached othe _ | Deelaration of Androw R. Contivias, || 3. The Objection to the Declaration of Van Bustic Regarding E-Mail ||cosnmunication in the Record fled October 15, 2021, Is sustained. [Fa a.tament wiissve granting a peremploy wit of mandate ordering | Respondent County of Lake io set aside its (a) certification ofthe final EIR, (b) findings 11 || relating to impacis to an adopted emergency evacuation plan, and (c) approval ct the 12 |] Project, 13 | __ & ltterwronPatiioner People ofthe Sat of Caloris drcte to prepare a 14 ;HHorm of judgment and peremptory writ of mandate. i | 6 the issues of costs and attorney fees are reserved. 7 bate: sanuary 208 i Judge of the Superior Court ilk ane, anime of motions wore by the paris, Tho Cour led on thse muons pie ctf cou! oders lating ee tons are comaned her, 23-1 Poort rmeommensmt tte a At TRULING AND ORDER ON PETITIONS FOR WAIT OF MANDATE 6 | \Center tor Biological Diversity vs, County of Lake et al CV421152 SERVICE | am & Deputy Clerk cf the Superior Court of California, County of Lake, am over the puny tothe action to which this document is attached, sanuaty 4, 2022- On ths date, | mailed a true copy of the attached document to the person(s) whose name(s) are set forth below by placing said copy in a sealed envelope aciessed fo each of said person(s), at the address set forth below. which envelonie wes then sealed and postage fully prepeid, and deposited in the mail at Lakepo i, Calicena io be deiverod by United States mail Peter Broderick-Center for Biological Diviersity 3217 Broadway. Sta 800 Oakiana, CA 94612 Meow Johnson & Anita Grant ~ by courhouse mailbox ‘sntiwe ® Coon - Miller Steer Regalia SOR) # Celilornia Blvd, 9° Ft Wislna: Crock CA 84806 Anaiow ConireirawAttonney General of Cali PO sor 65206 in Uiago, CA 92901 Jonatiian R, Bass/COULENTZ PATCH DUFFY & BASS ‘One Montgomery St, STE 3000 San Francisen, CA 84104-5500 Krista D. LeVier, Court Clerk Dated: January 4, 2022 By ‘landa Bu Deputy Court Clark