A community college board’s decision to close and demolish a shooting range, clean up lead contamination at the site and transfer shooting range operations to a new location amounts to a "project" that requires review under the California Environmental Quality Act (CEQA), the Fifth District Court of Appeal has ruled.
The court rejected the Yosemite Community College District’s arguments that the actions were not a project under CEQA , were exempt from CEQA and that a lawsuit against the district was moot because the district has completed the actions.
"Because CEQA must be construed to effectuate its purpose of protecting the environment, and because a group of interrelated actions may not be chopped into bite-size pieces to avoid CEQA review, we conclude that the closure and removal of the [Modesto Junior College] Range, the cleanup activity, and the transfer of shooting range activity and classes to another range are all part of a single, coordinated endeavor," Justice Betty Dawson wrote for the court. "As a result, those activities constitute the whole of the action that we consider for purposes of determining the existence of a ‘project’ for purposes of CEQA."
The shooting range in question opened on the edge of Modesto Junior College (MJC) in 1975 and was used by local law enforcement agencies and for the school’s criminal justice training program. As early as 1991, a college master plan contemplated closing the firing range because of campus growth in the direction of the range. On October 15, 2001, the district Board of Trustees adopted a resolution that authorized a lead abatement process, closing the range and donating the salvageable portions of the range to the Tuolumne County Sheriff’s Office. On October 18, an addendum was prepared that said the district had not made a decision on whether to dismantle or demolish the range.
In November 2001, a group called Association for a Cleaner Environment (ACE) sued the district for failing to comply with CEQA. Stanislaus County Superior Court Judge William Mayhew accepted the district’s arguments that the actions were not a project, and that the issue was moot anyway. ACE appealed, and the unanimous three-judge panel of the Fifth District overturned the lower court.
The central questions in the case were whether the community college district’s actions constituted a project, and, if so, whether that project was exempt from CEQA review. The district contended there was no project and, anyway, the activities were exempt.
The court first decided what actions should be considered part of the potential project. The district, pointing to the October 18 addendum, argued that the Board of Trustees did not decide to demolish the range at the same time it chose to close and clean up the facility, so demolition could not be considered part of a project. That argument did not fly.
"The record includes the following information to the contrary," Justice Dawson wrote. "First, the board minutes clearly indicate that plans for the removal of the MJC Range have been in place for almost a decade. Second, these plans have been reiterated in correspondence by district personnel. Third, the implementation of the range removal plans has been advanced by the district’s decision to develop the land near the range and by its neglect of range maintenance."
Thus, closing the range — along with the cleanup plan and transfer of activities elsewhere — must be considered part of a potential project. Taken together, these are activities "directly undertaken by any public agency" under CEQA. Because the actions fit that definition, the district should have determined whether the actions could result in a direct or reasonably foreseeable indirect change in the environment, which would trigger formal environmental review. The court focused on the possible spread of lead contamination from the site to determine that the activities had the potential for impacting the environment directly. Thus, the district should have prepared an initial study to determine whether a negative declaration or an environmental impact report was required.
The district argued for two different exemptions: CEQA Guidelines § 15322 exemption for alterations in educational programs and physical changes to the interior of existing school buildings, and CEQA Guidelines § 15330 exemption for minor cleanup actions costing less than $1 million. The court ruled that the exemptions did not apply because they did not cover the whole of the action that constituted the project.
As for mootness, the court pointed to its opinion in Woodward Park Homeowners Assn. v. Garreks, Inc., (2000) 77 Cal.App.4th 880 (see CP&DR Legal Digest, March 2000). In that case, the court required the preparation of an EIR, even though the car wash at issue had already been constructed and was operating. The EIR could still result in project modifications or even removal, the court held in Woodward Park.
"Similarly," Dawson wrote, " in this case there is a possibility that directing the respondents to conduct an initial study may result in a mitigated negative declaration or an environmental impact report containing mitigation measures."
The court directed the community college district to prepare that initial study but declined to rule on the merits of the project.
Association for a Cleaner Environment v. Yosemite Community College District, No. F042272, 04 C.D.O.S. 2003, 2004 DJDAR 2931. Filed February 4, 2004. Ordered published March 4, 2004.
For ACE: C.D. Michel, Trutanich & Michel, (310) 548-0410.
For the district: Marilyn Kaplan, (510) 845-3500.