Listen to this post

In an unpublished decision, Forest Tull v. Yuba County (Jan. 11, 2013) 2013 Cal.App.Unpub.LEXIS 247, Forest and Bobbie Tull (the Tulls), challenged Yuba County’s (County) certification of an EIR for a gravel haul road proposed by Teichert & Sons (Teichert).  The Tulls alleged that the EIR failed to consider feasible alternate routes for the haul road, and that the EIR’s drainage, noise, and traffic safety impact analyses were inadequate.  In addition, the Tulls alleged that two Yuba County ordinances, which inform the process of certifying EIRs, violated CEQA.

The court first agreed with the Tulls that the EIR failed to consider feasible alternative routes.  The court pointed specifically to inconsistencies in the EIR’s alternatives analysis.  The court reasoned that after characterizing one particular alternative as “environmentally superior,” the EIR then classified it as infeasible because eminent domain proceedings would be required to acquire the land.  The court held this explanation was insufficient because the “County was perfectly willing to use eminent domain proceedings to acquire land to complete the private haul road.”

Turning to the noise and vibration impacts, the court found the EIR in error because, although it properly identified the threshold of significance, “at minimum, the quietest of the Teichert trucks,” would exceed that threshold.  In addition, the court held that the EIR failed to account for potentially significant impacts from the project because it failed to characterize the noise from the “loudest trucks.”  Furthermore, the court found, the measure of noise used disguised the impact of the project.  The court also rejected/questioned “the EIR’s use of a 24-hour average noise measure [because it] artificially lowers the decibels that can be expected to result from the project.”

The court next held that the EIR failed to disclose the County’s plan to condemn land for a drainage pond and analyze potential hydrology impacts of this plan.  The court reasoned that “under CEQA, it is well established that [a] project description that omits integral components of the project may result in an EIR that fails to disclose the actual impacts of the project.”

In addressing the EIR’s traffic and safety analysis, the court held that the County properly studied the traffic and safety impacts of the haul road.  The court also rejected the Tulls’ criticisms regarding the conclusions found in the traffic and safety analysis, explaining that the Tulls only pointed to “conflicts of evidence” that the County already considered and  the court was not required to “reweigh.”

Finally, the court held that the combined operation of Yuba County ordinance section 11.10.580 and 11.10.581 violated the CEQA Guidelines.  Section 11.10.580 permits the Planning Commission to either certify the EIR as adequate or return it for corrections prior to certification.  The court interpreted section 11.10.580, together with section 11.10.581, which states, “the action of the Planning Commission to certify a Final EIR shall be final unless appealed to the Board of Supervisors within 10 days,” to permit the Planning Commission to certify EIRs without recourse to the Board of Supervisors.  The court held this violated CEQA Guidelines, section 15090, which requires a decision making body review and consider the information contained in the EIR prior to approving the project.

Written By: Tina Thomas , Christopher Butcher and Andrea Lutge (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Leave a Reply

Your email address will not be published. Required fields are marked *