1 2 3 4 5 DOWNEY BRAND LLP JOHN C. MCCARRON (Bar No. 225217) KATHRYN L. OEHLSCHLAGER (Bar No. 226817) BRADLEY C. CARROLL (Bar No. 300658) 621 Capitol Mall, 18th Floor Sacramento, CA 95814-4731 Telephone: (916) 444-1000 Facsimile: (916) 444-2100 jmccarron@downeybrand.com cdaniels@downeybrand.com 6 7 8 9 KAHN, SOARES & CONWAY, LLP LOUIS A. BROWN (Bar No. 213516) 1415 L Street, Suite 400 Sacramento, CA 95814 Telephone: (916) 448-3826 Facsimile: (916) 448-3850 lbrown@kscsacramento.com E-FILED 5/4/2018 4:46 PM FRESNO COUNTY SUPERIOR COURT By: I. Herrera, Deputy 10 11 Attorneys for Petitioners and Plaintiffs CALIFORNIA GROCERS ASSOCIATION 12 p.. ~ ~ Q ~~ i:i::1 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF FRESNO 15 ~ w z 16 0 Q 17 CALIFORNIA GROCERS ASSOCIATION, a California nonprofit mutual benefit corporation 18 Petitioner, ~ NOTICE OF ENTRY OF ORDER V. 19 20 CASE NO. 17CECG03787 THE CITY OF FRESNO; and DOES 1-10, inclusive, 21 Judge: Dept.: Honorable Jane Cardoza D-52 Respondents. 22 23 24 25 26 27 28 1 1518422.1 NOTICE OF ENTRY OF ORDER 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 30, 2018 the Honorable Jane Cardoza entered the 2 3 Order granting the petition for writ of mandate, and denying the motion for preliminary injunction 4 as moot. A true and correct copy of the Order is attached hereto as Exhibit A. 5 6 DATED: May 4, 2018 7 DOWNEY BRAND LLP By:[ ~ & - - - 8 JOHN C. MCCARRON KATHRYNL. OEHLSCHLAGER BRADLEY C. CARROLL Attorney for Petitioner CALIFORNIA GROCERS ASSOCIATION, a California nonprofit mutual benefit corporation. 9 10 11 12 p... ....l ....l Q 13 z 14 ~ 15 < i:i::: >< J:Ll z ~ 0 Q 16 17 18 19 20 21 22 23 24 25 26 27 28 2 1518422.1 NOTICE OF ENTRY OF ORDER EXHIBIT A [F~llE[D) APR 3 D. 2018 1 2 3 4 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 5 6 7 CALIFORNIA GROCERS ASSOCIATION,) 8 Petitioner, 9 10 11 ) ) vs. ) ) THE CITY OF FRESNO, ) ORDER AFTER HEARING ) Respondent. 12 13 No. 17 CE CG 03787 ) ) ) ) _________________ ) 14 15 I. 16 INTRODUCTION 17 of mandate under the Environmental Quality Act. 19 Association seeks a writ to require the respondent City of Fresno 20 to rescind its recently enacted ordinance that petitioner claims 21 would force the closing of most of the California Redemption Value 22 (CRV) recycling centers in the City. 23 City failed to comply with CEQA in enacting the ordinance, and also 24 that 25 California Beverage Container Recycling and Litter Reduction Act. 26 Petitioner also seeks a preliminary injunction to prevent the City 27 from implementing the new ordinance. the. ordinance is (CEQA), petitioner California 18 28 COUNTY OF FRESNO Fresno, CA In this petition for writ California Grocers Petitioner contends that the unlawful because it is preempted by the The matter 1 came on for hearing on the merits of the writ 2 petition on April 27, 2018 in Department 52 of the Fresno Superior 3 Court, 4 Oehschlager 5 Attorney 6 respondent City of Fresno. 7 parties on the merits of the petition for writ of mandate as well 8 as the motion for preliminary injunction, the court took the matter 9 under submission. the Honorable appeared Anthony Jane for Taylor Attorney Kathryn Cardoza presiding. and argued appeared on for behalf and of argued petitioner. on behalf of After hearing oral argument from the ,-: Having considered the moving and opposing briefs filed by the 10 11 parties and the arguments 12 removes the case from submission and issues its order granting the 13 petition for writ of mandate. 14 writ 15 injunction as moot. petition, the court raised at the hearing, the court now A~so, in light of its ruling on the will deny the motion 16 J:J:. 17 FACTUAL AND PROCEDUQAL BACKGROUND for preliminary The City first began the process of zoning amendments and new 18 19 use 20 December 21 multiple 22 nuisances, 23 Police Department responded to over 260 calls for service at CRV 24 centers from June to December of 2016. 25 voted to initiate proceedings to amend the City's zoning ordinance 26 to limit the locations at which CRV centers may be operated. 27 that time, the amendments would have allowed recycling facilities 28 in industrial districts where recycling processing facilities are regulations 15, for 2016. complaints CRV recycling centers The proposed amendment that the attracting vagrants, CRV centers crime, COUNTY OF FRESNO Fresno, CA -2- within was had the in City on response to become and blight. The public Fresno The City Council therefore At 1 allowed, subject to 2 facilities permit. a conditional use permit and solid waste 3 On August 2, 2017, the Fresno Planning Commission considered 4 and approved a revised proposed zoning amendment that would have 5 permitted CRV recycling facilities in light and heavy industrial 6 districts and within the permitted footprint of a business. 7 staff report for the proposed zoning amendment stated that the City 8 had determined that the project would have no environmental impacts 9 under section 15061 (b) of the CEQA Guidelines, the so-called "common The The report stated that, "[g]iven that 10 sense" exemption to CEQA. 11 the proposed text amendment will only modify application processing, 12 locational restrictions and operational requirements of existing 13 establishments, 14 where new CRV Recycling Centers may locate, the revisions will not 15 result 16 Individual establishments that require a new Conditional Use Permit 17 are subject to CEQA review at the time of application submittal." 18 in a and further refine the already limited locations significant change to the physical environment. On September 21, 2017, the Fresno City Council considered the 19 proposed amendments, but with a major revision. 20 the ordinance only permitted CRV recycling facilities within the 21 permitted interior footprint of a business. 22 stated that there would be no environmental impact from the new 23 ordinance, 24 application 25 requirements 26 already 27 locate. 28 the physical environment." as "[t] he proposed processing, text locational locations where Again, the staff report amendment restrictions of existing establishments, limited The new version of new CRV will only modify and operational and ·further refine the Recycling Centers may The text amendment will not result in a direct change to However, COllB'l"l OF FRESNO Fresno. CA -3- Councilman Paul Caprioglio 1 acknowledged that the ordinance would result in the closure of 16 2 of the 22 recycling centers in Fresno. After conducting an open hearing and listening to 3 comments 4 from the public and interested parties, the City Council approved 5 the 6 written 7 Association and other interested parties. and unanimously oral on objections September of 21, petitioner 2017, despite California the Grocers On October 4, 2017, the City issued a notice of exemption under 8 9 amendments section 15061(b) (3) of the CEQA Guidelines. Once again, the City 10 found that there would be no significant environmental impact from 11 the amendment to the ordinance. 12 these code regulations on existing facilities will only result in 13 fewer impacts to the physical environment, not more. 14 noise and aesthetic concerns within existing neighborhoods, thus it 15 is clear that there is no possibility that .the activity in question 16 may 17 establishments that require a new Conditional Use Permit are subject 18 to CEQA review at the time of application submittal." 19 have The a significant ordinance was effect Council on October 12, 2017. 21 law on October 18, 2017. 22 is May 18, 2018. Petitioner filed on confirmed 20 23 ~In addition to this, the at a enforcing It will reduce environment. Individual second vote by the City The Mayor signed the ordinance into The effective date of the amended ordinance the present writ of mandate petition on 24 November 7, 2017, as well as a motion for preliminary injunction to 25 prevent the City from implementing the new ordinance before the 26 matter can be heard and decided on the merits. 27 opposition 28 preliminary injunction. briefs to the writ COUNTY OF FRESNO FrUnO, CA -4- petition Respondent has filed and the motion for 1 III. 2 DISCUSSION 3 A. Petitioner's Opening Brief 4 Petitioner contends that the City violated CEQA by enacting 5 the ordinance even though it will admittedly reduce the number of 6 CRV 7 specifically 8 grocery stores and other beverage container dealers. 9 the City has taken the position that its ordinance will have no recycling in centers requires the City by state-certified environmental impacts. 70%. California recycling centers law near Nevertheless, 10 significant conducted no 11 environmental review before approving the amended ordinance, and 12 thus it prejudicially abused its discretion. The City 13 Also, petitioner contends that the City's finding that there 14 would be no significant environmental impacts from the ordinance is 15 not supported by substantial evidence. 16 ordinance will result in the elimination of 16 of the 22 state- 17 certified recycling 18 possibility that 19 environmental impact. 20 project is exempt from CEQA due to absence of any environmental 21 impact, 22 support this conclusion. the facilities, ordinance yet it The City admits that the claims could result that there in. any is no significant If an agency makes a determination that the it bears the burden of producing substantial evidence to 23 Here, petitioner argues that the City cannot meet its burden, 24 as there is no evidence in the record to support the conclusion 25 that the ordinance is exempt from CEQA. 26 assessment consists of four conclusory sentences on the first draft 27 of the ordinance that were never changed despite major revisions to 28 the ordinance since the first assessment was made. COUNTY OF FRESNO Fresno, CA -5- The City's environmental Simply making 1 a "conclusory recital" that the project is exempt from CEQA under 2 section 3 demonstrate that the project is actually exempt where there is no 4 indication that any preliminary environmental review was conducted 5 before the exemption decision was made. 6 15061 Also, is not enough to show substantial evidence to petitioner argues that the ordinance is preempted by 7 state law, as it directly conflicts with the State Recycling Act by 8 prohibiting recycling centers that are authorized by the Act in an 9 area fully occupied by the state. Therefore, petitioner concludes 10 that the court should issue the writ of mandate and direct the City 11 to rescind the ordinance. 12 B. Respondent's Opposition Brief 13 Respondent contends that petitioner is using CEQA for their 14 own personal financial benefit to attempt to defeat an ordinance 15 that was enacted by the Fresno City Council to protect the health, 16 safety and welfare of the public. 17 the City's Municipal Code related to zoning and use regulations for 18 California Redemption Value (CRV) re·cycling centers within the City. 19 Petitioner claims that the amendments will cause some of the CRV 20 centers to close. 21 environmental 22 points to no evidence in the record that would support its claim 23 that the ordinance will result in environmental harm. 24 While The ordinance made amendments to However, petitioner identifies only speculative impacts petitioner that might result claims that from the ordinance, closing the CRV centers and will 25 result in increased litter and reduced recycling, 26 evidence in the record that there are other means for people to 27 recycle in the City, including curbside recycling bins and recycling 28 centers in grocery stores, as COUNTY OF FIIESNO Fresno, CA -6- well as there is ample recycling centers in fact, the evidence indicates that industrial 2 ordinance will reduce blight and litter, not contribute to it. 3 Also, areas. In 1 the to the extent that petitioner claims that closing the 4 CRV centers will result in economic harm to it and others, 5 Courts of Appeal have recently rejected this argument, finding that 6 CEQA is concerned with enviro;nmental impacts, not economic impacts. 7 (Joshua Tree Downtown Business Alliance v. County of San Bernardino 8 (2016) 9 Visalia 1 Cal.App.5th 677, 691; Visalia Retail, (2018) 228 Cal.Rptr.3d 351.) City of v. L.P. the Here, petitioner has failed 10 to show that the ordinance will cause a significant effect on the 11 environment, 12 claim is also supported by mere conjecture rather than evidence, 13 and there is no showing that the economic effects of the ordinance 14 will so severe 15 environment. Even 16 permanently vacant, the result would not necessarily be the kind of 17 change to the physical environment that implicates CEQA." 18 Retail, supra, at p. 354.) 19 be rather than purely economic effects. as to "if a cause a substantial handful of properties Petitioner's effect were on to the remain (Visalia Finally, the City argues that the ordinance is not preempted 20 by the State Recycling Act ("The SRA"). 21 acknowledges that the cities have the power to regulate the location 22 of recycling centers. 23 does state that it solely occupies the field of redemption values, The SRA expressly (Public Resources Code§ 1450l(e) .) The SRA I 24 deposit values, and refund or fee values. 25 § 14529.) 26 these values. 27 imposes no mandatory duty on a public entity on which a plaintiff 28 can base (Public Resources Code However, the City has not attempted to regulate any of a Moreover, private California case law holds that the SRA claim or action COUNTY OF FRESNO Fresno, CA -7- for declaratory relief. 1 III. 2 DISCUSSION 3 A. Petitioner's Opening Brief 4 Petitioner contends that the City violated CEQA by enacting 5 the ordinance even though it will admittedly reduce the number of 6 CRV 7 specifically 8 grocery stores and other beverage container dealers. 9 the City has taken the position that its ordinance will have no recycling in centers requires the City by state-certified environmental impacts. 70%. California recycling centers law near Nevertheless, 10 significant conducted no 11 environmental review before approving the amended ordinance, and 12 thus it prejudicially abused its discretion. The City 13 Also, petitioner contends that the City's finding that there 14 would be no significant environmental impacts from the ordinance is 15 not supported by substantial evidence. 16 ordinance will result in the elimination of 16 of the 22 state- 17 certified recycling 18 possibility that 19 environmental impact. 20 project is exempt from CEQA due to absence of any environmental 21 impact, 22 support this conclusion. the facilities, ordinance yet it The City admits that the claims could result that there in. any is no significant If an agency makes a determination that the it bears the burden of producing substantial evidence to 23 Here, petitioner argues that the City cannot meet its burden, 24 as there is no evidence in the record to support the conclusion 25 that the ordinance is exempt from CEQA. 26 assessment consists of four conclusory sentences on the first draft 27 of the ordinance that were never changed despite major revisions to 28 the ordinance since the first assessment was made. COUNTY OF FRESNO Fresno, CA -5- The City's environmental Simply making 1 Land Use 2 omitted.) Com'n (2007) 41 Cal.4th 372, 381, internal citations 3 "An agency abuses its discretion if there is no basis in the 4 record for its determination that the project was exempt from CEQA." 5 (Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 114, 6 internal citations omitted.) 7 "[A] n agency may abuse its discretion under CEQA either by 8 failing to proceed in the manner CEQA provides or by 9 factual conclusions evidence. unsupported by substantial Judicial review of these two types reaching (§ of error differs 10 21168.5.) 11 significantly: while we determine de novo whether the agency has 12 employed 13 legislatively 14 deference 15 reviewing for substantial evidence, 16 set aside an agency's approval of an EIR on the ground that an 17 opposite conclusion would have been equally or more reasonable,' 18 for, 19 evidence and determine who has the better argument." 20 Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova 21 (2007) 40 Cal.4th 412, 435, . internal citations omitted.) the correct procedures, mandated to the CEQA agency's on factual questions, 'scrupulously requirements', subs tan ti ve we factual enforc[ingJ accord greater conclusions. the reviewing court all In 'may not our task 'is not to weigh conflicting (Vineyard 22 "In evaluating an EIR for CEQA compliance, then, a reviewing 23 court must adjust its scrutiny to the nature of the alleged defect, 24 depending on whether the claim is predominantly one of improper 25 procedure or a dispute over the facts. 26 failed 27 mandated 28 environmental analysis, we held the agency 'failed to proceed in to require by CEQA an applicant and to to include COUNTY OF FRESNO Fresno, CA -9- For example, where an agency provide that certain information information in its 1 the manner prescribed by CEQA.' 2 over 'whether adverse effects have been mitigated or could be better 3 mitigated' , 4 substantial evidence." the agency's "When 5 conclusion would be a reviewed only for internal citations omitted.) (Ibid, faced· with In contrast, in a factual dispute challenge to an agency's exemption 6 determination, the court considers whether the agency proceeded in 7 the 8 supported by substantial evidence. 9 be analyzed as manner required a by 1-aw and question of whether its statutory interpretation and thus subject to independent review. 11 governs our review of the [agency's] 12 project falls within a categorical exemption.'" 13 Community Advocates But 'the substantial evidence test 14 Unified 15 internal citations omitted.) factual determination that a for Responsible Educ. (2006) Dist. is The scope of an exemption may 10 School determination 139 (San Lorenzo Valley v. San Cal.App.4th Lorenzo Valley 1356, 1381-1382, 16 "In applying the substantial evidence standard, 'the reviewing 17 court must resolve reasonable doubts in favor of the administrative 18 finding and decision.' 19 as 'enough relevant information and reasonable inferences from this 20 information 21 conclusion, even though other conclusions might also be reached.'" 22 (Laurel 23 California 24 that Heights a The Guidelines define 'substantial evidence' fair argument Improvement Assn. can v. be made Regents of to support University a of (1988) 47 Cal.3d 376, 393, internal citations omitted.) "'Substantial evidence includes facts, reasonable assumptions 25 predicated upon facts, 26 [Citations.] 27 unsubstantiated opinion or narrative, [or] evidence which is clearly 28 inaccurate or erroneous .... " [Citations.]' It does and not expert opinion include C:OtJN'l"l OF FRESNO Fresno, CA -10- supported "[a]rgurnent, by facts. speculation, 'Complaints, fears, and 1 suspicions 2 likewise 3 (Joshua Tree Downtown Business Alliance v. County of San Bernardino 4 (2016) 1 Cal.App.5th 677, 690-691, internal citations omitted.) 5 about do a not project's constitute potential s;ubstantial environmental evidence. impact [Ci tat ions.]'" Also, "'Members of the public may ... provide opinion evidence 6 where special expertise is not required. 7 '[i]nterpretation of technical or scientific information requires 8 an expert evaluation. 9 issues does not [Citations.]' However, Testimony by members of the public on such qualify as substantial evidence. [Ci tat ions.]' 10 '[I]n the abs~nce of a specific factual foundation in the record, 11 dire predictions 12 project 13 (Ibid, internal citations omitted.) do not by nonexperts constitute 14 D. 15 In the present regarding substantial the consequences evidence. of a [Citations.]'" The "Common Sense" Exemption case, the City determined that the exempt from CEQA because amended 16 ordinance was it had no potential for 17 causing a significant effect on the environment, and thus there was 18 no need to conduct any further study of any environmental effects. 19 Under California Code of Regulations, Title 14, section 15061, 20 subdivision (b) (3), "A project is exempt from CEQA if: 21 activity is covered by the general rule that CEQA applies only to 22 projects which have the potential for causing a significant effect 23 on the environment. Where it can be seen with certainty that there 24 is that 25 significant effect on the environment, the activity is not subject 26 to CEQA." 27 28 no possibility the activity (Cal. Code Regs., tit. 14, "In order to environment, § in question 15061, subd. .. (3) The may_ have a (b)(3).) '[e]nsure that the long-term protection of the consistent with the provision of a COtfflT'C OF FRESNO Fresno. CA -11- decent home and 1 suitable living environment for every Californian, 2 guiding criterion in public decisions', CEQA and its implementing 3 administrative regulations (CEQA Guidelines} establish a three-tier 4 process to ensure that public agencies inform their decisions with 5 environmental considerations. 6 requiring that an agency conduct a preliminary review to determine 7 whether an activity is subject to CEQA. 8 ,project' 9 Guidelines is not subject to CEQA." The first tier is shall be the jurisdictional, An activity that is not a as defined in the Public Resources Code and the CEQA (Muzzy Ranch Co. County 11 internal citations omitted; 12 Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265, 1271.) 13 Land Use Com' n see also 41 Cal. 4th Union "CEQA defines a project (in part) as of Medical 37 9-380, Marijuana , [a] n activity directly 14 undertaken by any public agency' 15 physical change in the environment, 16 indirect physical change in the environment.' 17 § 18 undertaken by a public agency and thus potential 'projects' under 19 CEQA. '" 20 Upland, 21 omitted, italics in original.) 22 15378.) that 372, Solano 10 Airport (2007) v. 'may cause either a direct or a reasonably foreseeable (§ 21065; Guidelines, ,Ordinances passed by cities are clearly activities ( Union supra, However, of Medical Marijuana 245 "[a] Cal.App.4 th municipal at Patients, p. ordinance 1272, that Inc. v. internal merely City of citations restates or 23 ratifies existing law does not constitute a project and is therefore 24 not subject to environmental review under CEQA." 25 internal citations omitted.) (Id. at p. 1273, 26 "The second tier concerns exemptions from CEQA review. 27 Legislature has provided that certain projects, such as ministerial 28 projects and repairs to public service facilities of an emergency COUNTY OF FRESNO Fresno, CA -12- The In addition, nature, 2 command, the CEQA Guidelines list categorical exemptions or 'classes 3 of projects' that the Resources Agency has determined to be exempt 4 per 5 environment." 6 omitted.) se "A 7 are exempt. pursuant to the Legislature's 1 because they do not (Muzzy Ranch, prdject that have a significant effect on the supra, at p. 380, internal citations qualifies for neither a statutory nor a 8 categorical exemption may nonetheless be found exempt under what is 9 sometimes called the 'common sense' exemption, which applies 10 '[w]here it can be seen with certainty that there is no possibility 11 that the activity in question may have a significant effect on the 12 environment'." 13 (Ibid, internal citations omitted.) "If a public agency properly finds that a project is exempt 14 from CEQA, no further environmental review is necessary. 15 need 16 relevant statute or section of the CEQA Guidelines and including a 17 brief statement of reasons to support the finding of exemption." 18 (Ibid, internal citations omitted.) 19 only prepare and file a notice of exemption, The agency citing the "[W] hether a particular activity qualifies for the common sense 20 exemption presents an issue of fact, 21 the 22 agency's duty to provide such factual 23 important where the record shows, as it does here, that opponents 24 of the project have raised arguments regarding possible significant 25 en·vironmental impacts. '" 26 City of San Jose (1997) 54 Cal.App.4th 106, 114.) exemption has [and] that the agency invoking the burden of demonstrating (Id. support it applies. An 'is all the more at p. 386, citing Davidon Homes v. 27 28 COUNTY OF FRESNO Fresno, CA -13- 1 "An agency abuses its discretion if there is no basis in the 2 record for its determination that the project was exempt from CEQA." 3 (Davidon Homes, supra, at p. 114, internal citations omitted.) 4 "[T]he agency must itself provide the support for its decision 5 before the burden shifts to the challenger. 6 members of_the public in the first instance to prove a possibility 7 for substantial adverse environmental impact would frustrate CEQA's 8 fundamental purpose of ensuring that government officials 9 decisions with environmental consequences in mind.'" 10 11 Imposing the burden on (Id. 'make at p. 116, internal citation omitted.) In Davidon Homes, the court held that the agency's finding 12 that the project would have no significant environmental impacts 13 and thus fell under the common sense exemption was not supported by 14 any evidence in the record, and thus was an abuse of discretion. 15 "In this case the City's action was supported only by a conclusory 16 recital in the preamble of the Ordinance that the project was exempt 17 under section 15061, subdivision (b) (3). 18 that any preli~inary environmental review was conducted before the 19 exemption decision was made. 20 support its decision and we find no mention of CEQA in the various 21 staff reports. 22 with further environmental review at the earliest possible stage 23 requires 24 determination 25 demonstrating that the 26 impacts in reaching its decision." 27 28 ~An There is no indication The agency produced no evidence to A determination which has the effect of dispensing something more. must agency's be We conclude supported by the agency's evidence in exemption the record agency considered possible environmental obligation to (Id. at pp.116-117.) produce substantial evidence supporting its exemption decision is all the more important where COUNTY OF FRESNO Fresno, CA -14- 1 the record shows, as it does here, that opponents of the project 2 have raised arguments regarding possible significant environmental 3 impacts." (Id. at p. 117.) "Moreover, 4 the showing required of a party challenging an 5 exemption under subdivision (b) (3) is slight, since that exemption 6 requires the agency to be certain that there is no possibility the 7 project may cause significant environmental impacts. 8 questions can be raised about whether the project might have a 9 significant impact and there is any dispute about the possibility 10 of such an impact, the agency cannot find with certainty that a 11 project is exempt. 12 observed, the exemption under subdivision (b) (3) should be reserved 13 for 14 precise 15 omitted, italics in original.) 16 those As the court in Myers v. Board of Supervisors 'obviously exempt' language If legitimate projects, clearly applies.'" 'where (Ibid, its absolute and internal citations On the other hand, "We do not agree with appellant that any 17 possibility 18 outlandish, will be sufficient in every case to remove a project 19 from exempt status under section 15061, subdivision (b) (3). 20 would render the common sense exemption meaningless. 21 however, 22 possibility that a project will cause a significant environmental 23 impact, 24 finding that the exemption applies." 25 original.) 26 of that an if a environmental reasonable impact, argument however is made remote or That We believe, to suggest a the agency must refute that claim to a certainty before "Finally, (Id. at p. 118, italics in it cannot be assumed that activities intended to 27 protect or preserve the environment are immune from environmental 28 review." (Id. at p. 119, internal citations omitted.) COUNTY OF FRESNO Presno, CA -15- However, 1 "Determining whether a project qualifies for the 2 common sense exemption need not necessarily be preceded by detailed 3 or extensive factfinding. 4 in issue is all that is required. 5 not always 'required to make a detailed analysis of the impacts of 6 a project on [future] housing and growth.' ... The detail required 7 in on 8 factors, including, but not limited to, the nature of the project, 9 the directness or indirectness of the contemplated impact and the 10 ability to forecast the actual effects the project will have on the 11 physical environment.'" 12 Land Use Com'n, 13 omitted, italics in original.) any 14 15 E. particular The case supra, City Evidence appropriate to the CEQA stage Under CEQA, a public agency is necessarily depends a multitude of (Muzzy Ranch Co. v. Solano County Airport 41 Cal.4th at p. Bas Failed to Show 388, that internal citations the Common Sense Exemption Applied to the Amended Ordinance 16 Here, the City relied on the common sense exemption to find 17 that the project did not require further study as it would not cause 18 any significant environmental impacts under CEQA. 19 proposed text amendment will only modify locational restrictions 20 and operational requirements of new and existing establishments, 21 and further 22 Recycling Centers may locate, the revisions will not result in a 23 significant change to the physical environment. In addition to this, 24 enforcing these code regulations on existing facilities will only 25 result in fewer impacts to the physical environment, not more. It 26 will 27 neighborhoods, thus it is clear that there is no possibility that 28 the activity in question may have reduce "Given that the refine the already limited locations where new CRV noise and aesthetic COIJlll'l'Y 0 11 FRESNO Fresno, CA -16- concerns a within significant effect existing on the 1 environment. Individual establishments that require a . new 2 Conditional Use Permit are subject to CEQA review at the time of 3 application submittal." However, the City's cited reasons for finding that the common 4 5 sense exemption conclusions and 6 generalities rather than any substantial evidence or analysis. The 7 City simply states that the proposed amended ordinance "will only 8 modify locational restrictions and operational requirements of new 9 and existing establishments, and further refine the already limited 10 locations where new CRV Recycling Centers may locate, the revisions 11 will 12 environment." 13 presentation 14 "affect" and result in the closure of 16 of the 22 CRV recycling 15 facilities in the City. 16 On its face, not applies result in a rely ·on speculation, significant change to the physical Yet, Councilman Paul Caprioglio acknowledged in his to the Council that the amended ordinance would this admission alone suggests that the amended 17 ordinance might have a significant impact on the environment, since 18 the 19 foreseeably affect the ability of City residents to recycle items 20 that might otherwise go into landfills or become litter. 21 the State agency in charge of recycling, 22 letter 23 amendment, 24 reduce 25 recycling centers close in Fresno, for some ,residents the nearest 26 center will be located in the City of Clovis. 27 amendment . 28 elimination to the of a City expressing opportunities large during number the concern for recycling the centers CalRecycle, consideration that Fresno of of Indeed, submitted a the proposed amended ordinance residents to could recycle. would "[I]if Therefore, the could reduce opportunities to redeem for residents in your city." (Ibid.) Thus, there was substantial evidence in the COllNTY 01' FRESNO Fresno, CA -17- 1 record to suggest that there might be at least a possibility of 2 significant 3 ordinance. environmental impact from the proposed amended 4 The City contends that the closure of 16 out of 22 recycling 5 centers in the City would not create any significant impact on the 6 environment 7 recycling bins provided by the City, go to grocery stores to redeem 8 their recyclable items, 9 industrial or light industrial areas. because residents can still use the blue curbside or go to one of the recycling centers in However, as CalRecycle noted 10 in its letter, the remaining six recycling centers are located in 11 widespread sections of the City that are not easily accessible to 12 many residents. 13 use the recycling centers, as they are not conveniently located and 14 may 15 transportation. 16 not be Thus, it is foreseeable that residents might not accessible In addition, at all to residents without access to to the extent that the City relies on the fact 17 that grocery stores can still take in recycling and thus fill th~ 18 void left by the closure of the CRV centers, there is evidence in 19 the record that many grocery stores are not interested in taking in 20 recycling 21 because of the health and safety issues involved, 22 additional time burden and inconvenience that accepting recycling 23 would cause. 24 stores simply opt to pay the $100 per day fine to the State rather 25 than accept recycling because they do not want to have dirty cans 26 and bottles in their stores near the fresh food, 27 have any storage for recyclables. 28 stores testified that closing the CRV recycling centers would be for redemption, and that they would refuse to do so as well as the I The Senior Director of save Mart testified that his and they do not The owners of two Grocery Outlet COUNTY OF FRESNO Fresno, CA -18- 1 "devastating" to their businesses and would force them to clos~, 2 because 3 creates a health and safety concern as well as · a security threat, 4 or pay a $100 per day fine, which they cannot afford. 5 was substantial evidence in the record that grocery stores would 6 not be willing or able to accept recyclables, and consequently the 7 City's claim that grocery stores would fill the void left by the 8 closed CRV centers is not supported by any evidence in the record. 9 Also, the owners of the Grocery Outlet stores testified that 10 the ordinance would force them out of business by requiring them to 11 either pay the $100 per day fine to the State or accept recyclables 12 in their stores, which they are not able to do. 13 substantial evidence that the amended ordinance could cause urban 14 decay. 15 that should be considered under CEQA. 16 v. City of Woodland (2014) 225 Cal.App.4th 173, 188-89.) 17 The City argues in opposition that several courts, it would force them to either accept recycling, which Thus, there Thus, there was Urban blight has been recognized as an environmental impact (Cal. Clean Energy Committee including 18 the Fifth District Court of Appeal, have found that economic impacts 19 such as the closure of some stores are not the type of environmental 20 effects that must be considered under CEQA. 21 with significant effects on the environment (§ 21100, subd. 22 not with purely economic impacts. 23 certain businesses is not an effect covered by CEQA, unless that 24 impact on business causes a significant effect on the environment." 25 (Visalia Retail, LP v. City of Visalia 26 internal citations omitted.) Thus, 27 28 some "CEQA is concerned (b) ), The fact that a policy may hurt (2018) 20 Cal.App.5th 1, 5, "even if the land use policy would undoubtedly cause adverse economic consequences, COUNTY OF FRESNO Fresno, CA -19- appellant's expert offered 1 little to show that 'the magnitude of this effect' may lead to a 2 substantial impact on the environment. 3 of properties were to remain permanently vacant, the result would 4 not necessarily be the kind of change the physical environment that 5 implicates CEQA.'" That is, (Id. at p. 6, internal citations omitted.) "[CJ ourts have recognized that CEQA is 6 against 'even if a handful all possible 7 deployed 8 although CEQA requires public agencies to evaluate the possible 9 negative environmental development not a weapon to be effects of ills. constructing For example, big-box retail 10 stores (e.g., air pollution from traffic, noise and light pollution, 11 destruction of open space), the fact that they may drive smaller 12 retailers 13 [Citation.] 14 environment - for example, by causing or increasing urban decay - 15 will CEQA be engaged. 16 Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1614.) 17 In the cases cited by respondent, however, there had at least 18 been some studies performed regarding the environmental impacts from 19 the closure of the stores. 20 no study of the magnitude of the economic effects that might result 21 from the ordinance. 22 whether the ordinance will result in the closure of a few stores, 23 many stores, or none at all. 24 the common sense exemption applied, 25 conduct an initial study or complete an EIR. 26 some evidence in the record, h,o wever, that the ordinance might cause 27 the -28 suggest at least the possibility of the type of environmental impact out of business is not an effect covered by CEQA. Only if the loss of businesses affects the physical closure of [Citations.]" (South Orange County Wastewater Here, on the other hand, there has been It is impossible to say from the present record This is because the City found that some Grocery Outlet COIIN'l'Y OF FRESNO Fresno. CA -20- and thus it did not need to stores, There was at least which is enough to 1 from urban blight that would require an EIR. 2 substantial evidence to rebut the store owners' testimony that they 3 would be forced to close. 4 unsupported opinion that taking recyclables inside the stores was 5 not likely to be a problem for stores. The City offered no At most, Mr. Capriogolio offered his 6 The City has also concluded that the project would have no 7 impact based on the occurrence of a speculative future event, namely 8 that grocery stores would begin accepting recyclables 9 However, the agency is required to consider the environment as it 10 exists 11 circumstances 12 Resources Code§ 21060.5; CEQA Guidelines§ 15125, subd. 13 at the time of the proposed project, that might exist at some in-store. not another set of future time. "A long line of Court of Appeal decisions holds, (Public (a).) in similar 14 terms, that the impacts of a proposed project are ordinarily to be 15 compared to the actual environmental conditions existing at the 16 time of CEQA analysis, rather than to allowable conditions defined 17 by a plan or regulatory framework ... 18 the appellate court concluded the baseline for CEQA analysis must 19 be the 20 is, the '"real conditions on the ground"', rather than the level of 21 development or activity that 22 according to a 23 Environment v. South Coast Air Quality Management Dist. 24 Cal.4th 310, 320-321, internal citations omitted.) 25 In each of these decisions, 'existing physical conditions in the affected area', Here, could or plan or regulation." that should have been present {Communities For A Better (2010) 48 there was substantial evidence on the record that the 26 environmental baseline was that stores do not accept recyclables 27 in-store, 28 possible future so the City should not have used the occurrence of some event to find that the ordinance would have no COIJNTYOF FRESNO Fresno, CA -21- 1 "An agency abuses its discretion if there is no basis in the 2 record for its determination that the project was exempt from CEQA." 3 (Davidon Homes, supra, at p. 114, internal citations omitted.) 4 "[T]he agency must itself provide the support for its decision 5 before the burden shifts to the challenger. 6 members of_the public in the first instance to prove a possibility 7 for substantial adverse environmental impact would frustrate CEQA's 8 fundamental purpose of ensuring that government officials 9 decisions with environmental consequences in mind.'" 10 11 Imposing the burden on (Id. 'make at p. 116, internal citation omitted.) In Davidon Homes, the court held that the agency's finding 12 that the project would have no significant environmental impacts 13 and thus fell under the common sense exemption was not supported by 14 any evidence in the record, and thus was an abuse of discretion. 15 "In this case the City's action was supported only by a conclusory 16 recital in the preamble of the Ordinance that the project was exempt 17 under section 15061, subdivision (b) (3). 18 that any preli~inary environmental review was conducted before the 19 exemption decision was made. 20 support its decision and we find no mention of CEQA in the various 21 staff reports. 22 with further environmental review at the earliest possible stage 23 requires 24 determination 25 demonstrating that the 26 impacts in reaching its decision." 27 28 ~An There is no indication The agency produced no evidence to A determination which has the effect of dispensing something more. must agency's be We conclude supported by the agency's evidence in exemption the record agency considered possible environmental obligation to (Id. at pp.116-117.) produce substantial evidence supporting its exemption decision is all the more important where COUNTY OF FRESNO Fresno, CA -14- 1 However, while there is some evidence in the record that the 2 ordinance would have a beneficial effect on the environment, there 3 was 4 environment by closing recycling facilities and potentially causing 5 urban blight due to grocery store closures. 6 reasonable 7 significant effect on the environment, 8 (Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. {1992) 9 9 Cal.App.4th 10 also other evidence possibility 644, that that it a would project negatively affect u[W]here there is a or activity may have a an exemption is improper." disapproved on other grounds 657, the in Western States Petroleum Assn v. Superior Court {1995) 9 Cal.4th 559.) 11 "When the · impact may be either adverse or beneficial, it is 12 particularly appropriate to apply CEQA which is carefully conceived 13 for the purpose of increasing the likelihood that the environmental 14 effects will be beneficial rather than adverse." 15 v. Chickering (1976) 17 Cal.3d 190, 206, internal citations omitted, 16 superseded by statute on other grounds, as stated in Berkeley Hills 17 Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1107-1108.) Here, 18 there was evidence of both ( Wildlife Alive positive and adverse 19 environmental consequences from the amended ordinance. 20 presented evidence that the amendment would have positive effects 21 because 22 primarily because the CRV recycling centers have become hubs for 23 homeless activity, crime, vandalism, loitering, etc. 24 hand, 25 City to lose many of its ~ecycling facilities, 26 in the closure of businesses and the potential for urban blight and 27 other 28 discretion in determining without further study that the amended it would reduce crime, noise and aesthetic The City concerns, On the other there was also evidence that the ordinance would cause the environmental impacts. Therefore, COUNTY OF FRESNO Fresno. CA -23- the which could result City abused its 1 ordinance 2 environment. would not result in any significant effect on the 3 Because there was no substantial evidence in the record to 4 support the City's finding that the amended ordinance would not 5 have any significant effect on the environment, the City abused its 6 discretion in determining that the common sense exemption applied 7 to the ordinance. 8 for . writ of mandate and orders the City to rescind its amended 9 ordinance and conduct further proceedings in compliance with CEQA. 1 10 F. 11 As a result, the court hereby grants.the petition Motion fox Pre1iminary Injunction Petitioner has also moved for a preliminary injunction to 12 prevent implementation of the amended ordinance, 13 its members will suffer irreparable harm if the ordinance is allowed 14 to go into ef feet because they will be forced to either accept 15 recyclables in-store, 16 out of business if they have to pay fines to the State. 17 in light of the court's ruling on the merits of the petition for 18 writ of mandate, the motion for a preliminary injunction is moot. 19 Therefore, the court denies the motion for preliminary injunction. 2 20 Ill contending that whici poses health and safety risks, or go However, 21 22 23 24 25 26 27 28 COUN'l'Y OF FRESNO Fresno~ CA 1 Because the court will grant the writ based on the lack of evidence of no significant environmental impact, there is no need for the court to reach the petitioner's alternative argument regarding statutory preemption. 2 The City objects to petitioner's evidence in support of the injunction, which consists of declarations from several owner/operators of CRV centers who state that the ordinance will drive them out of business, and that they have been unable to find any stores willing to allow them to operate inside their facilities. The City claims that these declarations are improper extra-record evidence, and that they are irrelevant to the issues raised by petitioner because they are not statements from the petitioner's members. However, the court overrules the objections, since the evidence may be considered in support of the preliminary injunction application, if not the writ petition. Also, the evidence is relevant to the issue of whether there are any stores that will accept CRV recycling, as well as whether the ordinance will force CRV centers out of the area. -24- 1 'IV. 2 CONCLOSJ:ON 3 The petition for writ of mandate is granted. 4 ordered 5 proceedings regarding the environmental effects of the ordinance in 6 accordance with CEQA. 7 denied, as it is moot in light of the court's ruling on the writ 8 petition. 9 to rescind its amended 12 13 14 and conduct further The motion for preliminary injunction is It is so ordered. 10 11 ordinance The City is DATED this ~~ day of April, 2018. / / A . ~~% Hon.JaeCardoza Judge of the Superior Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COUNTY OF FRESNO Fresno, CA -25- 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is Downey Brand LLP, 455 Market Street, Suite 1500, San Francisco, California 94105. On May 4, 2018, I served the within document(s): 3 NOTICE OF ENTRY OF ORDER 4 • • 5 6 7 BY FAX: by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below on this date before 5:00 p.m. BY E-MAIL: by transmitting via my electronic service address (ealcantara@downeybrand.com) the document(s) listed above to the person(s) at the e-mail address(es) set forth below. 8 BY MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below. 9 10 • • 11 12 ~ ...:i ...:i Q 13 z 14 CQ 15 < ~ ~ 16 0 17 ~ Q 18 19 20 21 22 BY PERSONAL DELIVERY: by causing personal delivery by _ _ _ _ of the document(s) listed above to the person(s) at the address(es) set forth below. ALESHIRE & WYNDER, LLP Anthony R. Taylor Christine M. Carson 18881 Von Karman Avenue, Suite 1700 Irvine, CA 92612 >-< z BY OVERNIGHT MAIL: by causing document(s) to be picked up by an overnight delivery service company for delivery to the addressee(s) on the next business day. CITY OF FRESNO Douglas T. Sloan, City Attorney Francine M. Kanne, Chief Assistant City Attorney 2600 Fresno Street, Second Floor Fresno, CA 93721-7533 I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 4, 2018, at San Francisco, California. 23 24 25 26 27 28 1518424.1 PROOF OF SERVICE