City of turlock court of appeal of california, fifth appellate district 138 Cal. App. 4th 273, 41 Cal. Rptr. 3d 420, 2006 Cal. App. Lexis 474 (2006)

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§ 21065, subd. (a) [definition of project]; Guidelines, § 15064, subd. (d) [determining significance of project's environmental effects].)

Wal-Mart contends there will be significant environmental effects peculiar to the Ordinance "as it will inevitably lead either to the development of a [*289] multi-tenant shopping center in the place of the proposed Wal-Mart Supercenter, or to the development of a Wal-Mart Supercenter outside the City limits, either of which will have negative impacts on traffic and air quality." Accordingly, the possible physical changes in the environment that Wal-Mart asserts may be caused by the enactment of the Ordinance are derived from two sources. First are the physical changes Wal-Mart predicts will result from the possible development of a multitenant shopping center where Wal-Mart initially planned to build its supercenter and thus will result indirectly from the enactment of the Ordinance. Second are the physical changes related to the possible construction of a Wal-Mart Supercenter outside the boundaries of City, [***26] which we will regard as potential "off-site impacts" of the kind mentioned in subdivision (b)(3) of Guidelines section 15183. n8

n8 The entirety of subdivision (b) of Guidelines section 15183 provides:

"In approving a project meeting the requirements of this section, a public agency shall limit its examination of environmental effects to those which the agency determines, in an initial study or other analysis:

"(1) Are peculiar to the project or the parcel on which the project would be located,

"(2) Were not analyzed as significant effects in a prior EIR on the zoning action, general plan or community plan with which the project is consistent,

"(3) Are potentially significant off-site impacts and cumulative impacts which were not discussed in the prior EIR prepared for the general plan, community plan or zoning action, or

"(4) Are previously identified significant effects which, as a result of substantial new information which was not known at the time the EIR was certified, are determined to have a more severe adverse impact than discussed in the prior EIR."

[***27] [**430]

1. Identifying the "change" relevant to CEQA analysis

An analysis of each of these sources of potential physical change in the environment begins with a proper identification of the relevant change. Fundamentally, a physical change is identified by comparing existing physical conditions with the physical conditions that are predicted to exist at a later point in time, after the proposed activity has been implemented. (City of Carmel-by-the-Sea v. Board of Supervisors, supra, 183 Cal. App. 3d at pp. 246-247 [effects of rezoning are evaluated against existing physical conditions, not against hypothetical conditions permitted by land use plan].) n9 The difference between these two sets of physical conditions is the relevant physical change.
n9 Existing physical conditions can be described as "baseline" conditions. (See Guidelines, § 15125, subd. (a) [the environmental setting described in an EIR is the "baseline physical conditions" used to evaluate the significance of an impact].)


Using the idea of photographic snapshots to illustrate our point, the baseline environment can be depicted in a snapshot of the physical conditions that exist at the time when the environmental review of the proposed activity begins. Next, an array of snapshots is created by picturing the physical [*290] conditions that one can reasonably foresee existing in the future. n10 The physical changes that are reasonably foreseeable are the differences between the baseline snapshot and any one of the snapshots depicting future conditions.
n10 The process of picturing future conditions can be described as predicting, forecasting or estimating what will occur in the future. (See County Sanitation, supra, 127 Cal.App.4th at p. 1586, fn. 43.) An array of snapshots, rather than a single snapshot, is created by this process because (1) more than one set of future conditions are reasonably foreseeable and (2) each reasonably foreseeable development scenario will generate a series of snapshots that represent different times in the future. For example, the air pollution resulting from the growth-inducing impact of building a new sewage treatment plant would not be seen in a series of time-lapse photographs of the growth until enough time had passed for the growth to reach the stage where the resulting pollution could be observed. (See Guidelines, § 15064, subd. (d)(2) [air pollution from growth caused by building a sewage treatment plant used as an example of an "indirect physical change in the environment"].)


One can identify an error in Wal-Mart's analysis of physical change by using this photography illustration. Wal-Mart argues that "the Ordinance will likely result in alternative developments that will have worse environmental effects than the banned Discount Superstores." By comparing alternative developments on one hand with the discount superstores prohibited by the Ordinance on the other hand, Wal-Mart has compared two snapshots of future conditions and failed to use the snapshot of existing baseline conditions. This comparison by Wal-Mart fails to identify the relevant change. Instead, it identifies changes to the changes n11 in the [**431] physical environment, which is a step removed from the inquiry relevant to CEQA. (See Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal. App. 3d 350, 358 [182 Cal. Rptr. 317] [error to compare population capacities designated under existing general plan with population capacities designated in two-area plan proposed as amendments to general plan; the impact of development associated with proposed area plans must be determined by comparing that development with existing physical conditions].)
n11 This error is similar to the error committed by (1) an accident reconstruction expert who should calculate a vehicle's speed at the instant of impact and instead calculates its deceleration (change in speed) or (2) the mathematician who is asked to use calculus to determine a function's first derivative (its instantaneous rate of change) and proceeds to calculate the function's second derivative (the rate of change of the rate of change). (Britannica Concise Encyclopedia (2006) derivative [as of Apr. 5, 2006].) In this appeal, Wal-Mart has not attempted to show that the Legislature intended the provisions of CEQA to reach changes to future changes in the environment.


The correct analysis of the relevant physical change in the environment involves a comparison of (1) the physical conditions that existed at the time the Ordinance was proposed or approved n12 with (2) forecasts of reasonably [*291] foreseeable future conditions that may occur as a result of the adoption of the Ordinance. As we shall discuss post, however, there is insufficient evidence in the administrative record to establish that the physical changes predicted by Wal-Mart are reasonably foreseeable, much less peculiar to the Ordinance.
n12 We need not decide whether the appropriate day for establishing the baseline is (1) September 23, 2003, when the City Council passed a motion directing City's Planning Commission to prepare a proposed zoning ordinance, (2) January 13, 2004, when the City Council approved the Ordinance, or (3) a day in between those two dates, because the physical conditions relevant to this case were essentially the same over that period of time.

2. Asserted changes within City [***31]

Wal-Mart claims that the Ordinance "will inevitably lead ... to the development of a multi-tenant shopping center in the place of the proposed Wal-Mart Supercenter ... ." In the language of CEQA, this claim can be restated as asserting that the development of a multitenant shopping center at the location proposed for a Wal-Mart Supercenter is a reasonably foreseeable indirect physical change to the environment that may be caused by the enactment of the Ordinance. Thus, according to Wal-Mart's analysis, there are "project-specific significant effects which are peculiar to the project or its site," and the enactment of the Ordinance falls outside the scope of Guidelines section 15183.

a. Reasonable foreseeability

(6) The question whether alleged physical changes are reasonably foreseeable requires an examination of the evidence presented in the administrative record. For example, in County Sanitation, supra, 127 Cal.App.4th 1544, this court reviewed the administrative record to identify which alternative methods of disposing of sewage sludge were reasonably foreseeable after the County of Kern prohibited the land application of certain types of sewage sludge [***32] within its jurisdiction. We concluded that incineration was a foreseeable alternative disposal method because applicable rules of law allowed it and the administrative record described it as an alternative. (Id. at pp. 1583-1584.) Despite being foreseeable, however, the quality and quantity of evidence in the administrative record did not show a reasonable possibility that incineration would be used in the future. (Id. at pp. 1585-1587.) The evidence indicated that incineration of sewage sludge was an unlikely alternative because of its negative effects on air quality. As a result, this court concluded that incineration was not a reasonably foreseeable [**432] alternative method of sewage sludge disposal. (Id. at p. 1587.)

In this case, we examine the administrative record to determine whether it includes substantial evidence that the development of a multitenant shopping center at the location Wal-Mart had chosen for its facility is reasonably foreseeable. In this regard, we note, first, that Wal-Mart cites no evidence to support and, indeed, makes no argument either (1) that the Ordinance is the [*292] catalyst for, or part of, a larger set [***33] of actions designed to achieve such a development at that location or (2) that, at the time the preliminary review was being conducted, one or more developers had expressed any interest in developing a multitenant shopping center at that location, much less taken any steps toward initiating it.

(7) Second, we note that the assertion in Wal-Mart's opening brief that such a shopping center is "inevitable" (or, at least, reasonably foreseeable) is not supported by a citation to the administrative record. (See Cal. Rules of Court, rule 14(a)(1)(C); ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011 [113 Cal. Rptr. 2d 625] [factual assertions in appellate briefs should be supported with specific cites to the record].) The assertion cannot, in itself, be treated as evidence because it is merely argument or unsupported opinion. (

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