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No EIR Needed For Warehouse Covered By Specific Plan, Court Rules

Approval of an 88-acre warehouse distribution facility at March Air Reserve Base was exempt from environmental review because the project was included in a general plan and a specific plan, both of which received environmental analysis, the Fourth District Court of Appeal has ruled.

The unanimous decision of a three-judge appellate panel overturned a Riverside County judge who had ruled that the Tesco warehouse development was a discretionary project subject to the California Environmental Quality Act (CEQA). The Fourth District, Division Two, determined that the project required only ministerial approval and thus was exempt from CEQA requirements.

During the early 1990s, the Pentagon began scaling back its operations at the site along the I-215 freeway in Moreno Valley by converting a 6,500-acre Air Force base into a 2,000-acre Air Reserve base. The March Joint Powers Authority composed of elected officials from Riverside County and the cities of Moreno Valley, Riverside and Perris adopted, in 1996, a redevelopment plan and accompanying environmental impact report for the land left unused. Three years later, the authority approved a general plan and master EIR for reuse of 4,400 acres. Among other things, the plan allowed for up to 2 million square feet of industrial development on 433 acres. The authority followed up in 2003 with a specific plan and a focused EIR that included a mitigation monitoring and reporting plan. The specific plan established guidelines for future development of a business park as well as office, commercial and other uses. Environmental activists sued to block the 2003 plan and EIR because of concerns over increased air pollution from trucks. The authority settled the suit by agreeing to limit truck traffic.

In 2006, Tesco, the British company that operates Fresh and Easy Neighborhood Markets, applied for approval to build warehouse facilities totaling 1.925 million square feet on an 88-acre site. After finding the proposal was consistent with its specific plan and focused EIR, the authority approved the project and filed a notice of exemption stating that no environmental review was necessary because approval amounted to a ministerial act. The project has been built and is operational.

A group called Health First sued in 2006 to block the Tesco project because, Health First argued, the authority should have completed an EIR for the development. In 2008, Riverside County Superior Court Judge Thomas Cahraman agreed with Health First, ruling that CEQA required the authority to conduct an additional environmental review of the warehouse project.

The question before the Fourth District Court of Appeal was whether the March Joint Powers Authority's approval of the Tesco project was ministerial (exempt from CEQA) or discretionary (requiring CEQA review). In deciding the case, the court cited CEQA, the CEQA Guidelines and case law. A ministerial decision, it held, involves only the use of fixed standards and objective measures and not the personal judgment of a public official. In approving the warehouse project, the authority measured Tesco's design plan application against requirements, fixed standards and proposed mitigation provisions contained in the 2003 specific plan and focused EIR, the court determined. In so doing, the authority "exercised no discretion and instead acted ministerially," Justice Barton Gaut wrote for the majority.

"The Tesco facility is not a discrete CEQA project but one component of the specific plan for the larger March Business Center," Gaut wrote. "In contrast, a project may be deemed discretionary when environmental review has not been completed and further review is anticipated. But such is not the circumstance here, where the specific plan and the focused EIR offer a comprehensive environmental review of the proposed industrial development as eventually implemented by Tesco.

"Instead," Gaut continued, "unless there are substantial changes or new information affecting the specific plan, there is no justification for additional environmental review of Tesco's design plan application."

In its suit, Health First also contended that the Tesco facility did not comply with the 2003 specific plan's mitigation measures, but the court disagreed. "Because the mitigation plan applies to the Tesco facility without alteration or modification, Health First cannot argue that the mitigation measures are being implemented in a discretionary fashion," the court ruled.

While deciding the case on the merits, the court questioned Health First's "standing" to bring the lawsuit in the first place because the group was essentially challenging plans and environmental documents approved in 2003, 1999 and 1996 long after the statute of limitations for legal action had passed. Nevertheless, the court resolved the lawsuit on the merits.

The court hinted that lawyers on both sides of the dispute had gone overboard by loading on the court 70 volumes of administrative records dating to 1971, eight volumes of court proceedings and "almost 300 pages of overly elaborate briefings."

"Our analysis resolves the primary issue involving ministerial, as opposed to discretionary, approval. No further discussion is required of the other issues raised by the parties," Gaut concluded bluntly.


The Case:
Health First v. March Joint Powers Authority, No. E045541, 2009 DJDAR 8441. Filed May 18, 2009. Ordered published June 10, 2009.

The Lawyers:
For Health First: Raymond W. Johnson, Johnson & Sedlack, (951) 506-9925.
For the authority: Michelle Ouellette, Best, Best & Krieger, (951) 686-1450.
For Tesco: Lisabeth Rothman, Brownstein, Hyatt, Farber, Shreck, (310) 440-9996.

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