Hilltop Group, Inc. v. County of San Diego

Filed 2/16/24

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

HILLTOP GROUP, INC., et. al., D081124

Plaintiffs and Appellants,

v. (Super. Ct. No. 37-2021-
00023554-CU-TT-CTL)
COUNTY OF SAN DIEGO et. al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Reversed and remanded.
Gatzke Dillon & Ballance, David P. Hubbard and Kendall F. Teal for
Plaintiffs and Appellants.
Claudia G. Silva, County Counsel, and Joshua M. Heinlein, Deputy
County Counsel, for Defendants and Respondents.

INTRODUCTION
The County of San Diego (County) designated a parcel of land for
industrial use as part of its General Plan Update (GPU) in 2011. Plaintiffs,
Hilltop Group, Inc. and ADJ Holdings, LLC (collectively Hilltop Group),
applied to develop the North County Environmental Resources Project
(NCER Project), a “construction, demolition, and inert debris . . . recycling
facility,” on the land. Based on its proximity to nearby residential
communities, the NCER Project faced significant public opposition by
community members, homeowners associations, and the nearby City of
Escondido, all of whom expressed concern over the project’s potential
environmental impacts.
County staff required Hilltop Group to conduct environmental studies
as part of its initial environmental review process under the California

Environmental Quality Act (Pub. Resources Code, §21000 et seq.) 1 (CEQA).
After Hilltop Group submitted a draft environmental impact report and
supplemental environmental studies, staff for the County concluded that the
NCER Project qualified for a CEQA exemption pursuant to section 21083.3
and its companion regulation, Guidelines section 15183. (Cal. Code Regs.,

tit. 14, § 15000 et seq.) 2 The County reached this conclusion through a
Guidelines section 15183 exemption checklist that found the NCER Project
was consistent with the GPU and did not impose significant and peculiar
environmental impacts not already contemplated by the environmental
impact report prepared for the GPU.

1 Further statutory references are to the Public Resources Code unless
otherwise stated.

2 The administrative guidelines adopted by the Secretary of the
California Natural Resources Agency to implement CEQA (Cal. Code Regs.,
tit. 14, § 15000 et seq.) will be referred to as “Guidelines” followed by the
section number. In their briefing on appeal, the parties primarily cite to
Guidelines section 15183, which was promulgated by the authority in section
21083.3. (See Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, 534
(Lucas).) Accordingly, we generally reference the Guidelines, rather than
section 21083.3, throughout this opinion. Any reference to section 21083.3 in
our discussion is intended to encompass Guidelines section 15183.

2
 Multiple groups appealed the approval of the CEQA exemption to the
Board of Supervisors. The Board of Supervisors conducted a public hearing
at which staff for the County’s Planning and Development Services (PDS)
presented findings that the NCER Project qualified for the streamlined
environmental review process in Guidelines section 15183. Despite its own
staff’s recommendation that the appeals should be denied, the Board of
Supervisors voted to grant the appeals, finding that the NCER Project would
result in peculiar environmental effects that would not be mitigated by
uniform policies and procedures.
Hilltop Group filed a petition for writ of mandate in the San Diego
Superior Court, and the court entered judgment in favor of the Board of
Supervisors. Hilltop Group appeals the judgment and argues the Board of
Supervisors did not proceed in a manner required by law and that their
findings are not supported by substantial evidence. Specifically, Hilltop
Group contends the NCER Project will not result in any significant and
peculiar environmental effects that were not already evaluated by the
program EIR for the GPU. The County argues that the Guidelines section
15183 exemption is not applicable to the NCER Project because the record
supports a finding that the project will result in significant environmental
impacts.
As we shall discuss, we conclude Guidelines section 15183 is applicable
to the NCER Project because the project is consistent with the GPU and its
related zoning designation for which a program EIR was certified. Thus,
environmental review of the project shall be limited to those effects
enumerated in Guidelines section 15183, subdivision (b)(1) through (4). The
Board of Supervisors did not appropriately limit environmental review to
only those project-specific peculiar impacts when they directed the

3
preparation of an EIR. Moreover, we conclude the record does not support
the Board of Supervisors’ findings that the NCER Project’s “peculiar” effects
will not be substantially mitigated by previously adopted uniform policies
and procedures.
FACTUAL AND PROCEDURAL BACKGROUND
I. 2011 GPU and Program Environmental Impact Report

Land use in the County of San Diego is governed by a comprehensive
general plan. (Gov. Code, § 65300 et seq. [“the legislative body of each
county . . . shall adopt a comprehensive, long-term general plan for the
physical development of the county”].) The County updated its general plan
in 2011, adopting the GPU to serve as “a blueprint for future land
development in the unincorporated County that meets community desires
and balances the environmental protection goals with the need for housing,
agriculture, infrastructure, and economic vitality.” To balance its goals and
guide future development, the GPU established land use categories and a
corresponding land use map. The land use designations included, among
others, residential, commercial, and industrial.
When the County adopted the GPU, the Board of Supervisors certified
a program environmental impact report (PEIR) to address the GPU’s
potential environmental impacts. The “series of actions analyzed in th[e]
[PEIR] include[d] potential future development” resulting from the build-out
and implementation of the GPU. The PEIR explained that it was intended to
cover “subsequent projects, tiering, and/or streamlining future documentation
to the maximum extent allowed by State law.” Therefore, subsequent
projects and activities within the scope of the PEIR, found by the County to
have “no new effects” or require “no new mitigation measures” would not
require “further environmental documentation.”

4
 However, the PEIR cautioned, “[w]hile the [PEIR] intends to identify
potential impacts that would result from [the GPU] implementation, the level
of analysis is not detailed to the level of site specificity, nor is it intended to
be accurate to this level of specificity.” Therefore, “[i]n most cases, future
project-specific impact analyses would be required to determine whether a
specific development project would or would not result in a potentially
significant impact on the environment, such as impacts to biological
resources, traffic, or air quality.”
The PEIR determined that development from the GPU’s land use
designations may cause significant environmental impacts that would
require mitigation measures. It included an analysis of feasible mitigation
measures intended to reduce or avoid the environmental impacts created by
the GPU and its related development. Even with the implementation of
mitigation measures, the PEIR found significant and unavoidable impacts in
numerous environmental areas, including, inter alia, aesthetics, air quality,
noise, and traffic.
II. NCER Project Description and Application

In 2012, Hilltop Group submitted a project proposal to the County for
the development of the NCER Project. Hilltop Group described the NCER
Project as a recycling facility that would process and recycle trees, logs, wood,
construction debris, asphalt, and other inert material from construction
projects. The project was projected to process 20 tons of material per day and
export 48 tons of repurposed material per day.
The NCER Project site was designated by the GPU as “High Impact
Industrial” with a zoning classification of “General Impact Industrial.”
Recycling facilities such as the NCER Project are permitted on land zoned as

5
“General Impact Industrial.” Thus, Hilltop Group’s proposed use of the land
was consistent with the County’s land use designation in the GPU.
The NCER Project plan included an open space easement intended to
protect 44 acres of natural habitat, and the project was projected to maintain
visual separation from local landmarks. The project site is located directly
west of Interstate 15, in a valley with steep slopes, and adjacent to parcels of
land zoned as “semi-rural residential.” The following map depicts the
location of the project site relative to nearby residential communities.

III. NCER Project Environmental Studies

Following the submission of their project proposal, Hilltop Group asked
the County to proceed through the use of a mitigated negative declaration in

6
March 2014. A site plan meeting for the NCER Project was conducted in
April 2014 and was attended by representatives of Hilltop Group and County
staff. The meeting notes reflect that Hilltop Group asked County staff to rely
on the PEIR to analyze the project, but the staff responded that “the GPU’s
EIR is a programmatic EIR and a project specific EIR is more detailed.”
Thereafter, in September 2014, the County conducted an initial CEQA
study of the NCER Project. The study included a comprehensive description
of the project and acknowledged that the NCER Project was consistent with
the GPU and its related zoning designation. The study also included a
checklist of categories that the County analyzed to determine the project’s
potential environmental effects. The checklist found potentially significant
environmental impacts in the areas of aesthetics, air quality, biological
resources, greenhouse gas (GHG) emissions, hydrology and water quality,
hazards and hazardous materials, and noise. The study concluded that
further analyses were required to determine the extent of the environmental
impacts.
Based on its findings in the initial study, the County issued a notice of
preparation of an EIR and denied Hilltop Group’s request to proceed by a
mitigated negative declaration. Neither the initial study, nor the notice of
preparation of an EIR, indicate whether the NCER Project was evaluated for
an exemption under Guidelines section 15183. In a letter to Hilltop Group, a
planning manager with the County indicated that an EIR was required, in
part, because of the neighboring property owners’ concerns regarding
potential environmental impacts, including the effect of the NCER Project on
community character.
In 2015, Hilltop Group submitted their initial draft EIR to the County.
The draft EIR included more than a dozen studies, assessments, and plans,

7
and concluded that mitigation measures would reduce the NCER Project’s
potential environmental impacts to below significant levels. The County
reviewed the draft EIR and determined that revisions were required because
it did not adequately comply with various aspects of CEQA.
Hilltop Group then asked the County to process the NCER Project as a
CEQA exemption under Guidelines section 15183. Hilltop Group asserted,
“numerous technical studies show that the [NCER Project] will have no
specific environmental effect[s] beyond those already assessed in the [PEIR],
which the County certified in August 2011.” According to Hilltop Group, the
County failed to identify any significant project impacts that were not
covered by the PEIR or incapable of being mitigated by the imposition of
uniformly applied policies and standards.
The County initially disagreed that the project was eligible for the
exemption, finding there were “issues peculiar to the [NCER] Project or the
[NCER] Project site which currently prevent the [NCER] Project from using
Guidelines section 15183.” Specifically, the County expressed concern that
the NCER Project would have potentially significant impacts on aesthetics,
and that the visual simulations within the draft EIR did not sufficiently
analyze all of the project’s component parts and structures, or analyze views
from specific trails. The County also identified deficiencies in the analyses of
the project’s effects on air quality, greenhouse gas emissions, biology, cultural
resources, hazards, land use, noise, and water usage, all of which qualified as
peculiar impacts under Guidelines section 15183. Hilltop Group was advised
that if they revised “all technical studies to address the issues identified . . .
to the satisfaction of County staff,” the County would analyze their request to
process the NCER Project under Guidelines section 15183.

8
 Hilltop Group complied with the County’s request and submitted
additional technical environmental studies. Upon submitting the studies,
they informed the County that the NCER Project would not result in any
“peculiar effects and would not require regulation beyond the standard
ordinances and regulatory requirements already in place by the state, and
local agencies.” They further argued that any potential environmental
impacts would be adequately addressed through standard mitigation
measures. In other words, according to Hilltop Group, the NCER Project
would not result in environmental impacts more significant than those
already identified and addressed in the PEIR and related regulatory
ordinances.
IV. Guidelines Section 15183 Checklist

County staff made Hilltop Group’s environmental studies available for
public review and invited public comment. In response, “over 500 people
commented expressing their concern and opposition to the [NCER] Project.”
Nonetheless, based on the revised technical studies, County staff concluded
that the NCER Project qualified for the Guidelines section 15183 exemption
because the project was consistent with the development permitted by the
GPU and analyzed in the PEIR.
Accordingly, the County prepared a Guidelines section 15183 checklist
summarizing their findings that the NCER Project qualified for “an
exemption from additional environmental review.” Their conclusion was
based on findings that: (1) the NCER Project was consistent with the zoning
designations within the GPU; (2) there were no project-specific effects
peculiar to the project or its site which the PEIR failed to analyze as
significant effects; (3) there were no potentially significant off-site and/or
cumulative impacts which the PEIR failed to evaluate; (4) there was no

9
substantial new information that the NCER Project would result in more
severe environmental impacts than those anticipated by the PEIR; and
(5) the NCER Project would undertake feasible mitigation measures specified
in the PEIR. Based on these findings, the County recommended that the
Zoning Administrator issue a CEQA exemption pursuant to Guidelines
section 15183.
V. Zoning Administrator Hearing

The County’s Zoning Administrator conducted a public hearing in June
2020, to determine whether to issue the Guidelines section 15183 exemption.
Prior to the hearing, County staff prepared a report summarizing the
findings of their Guidelines section 15183 exemption checklist. The report
explained that although the County initially anticipated the preparation of
an EIR, “after [a] review of the technical studies, it was determined [that] the
[NCER] Project could qualify for a streamlined environmental review
pursuant to CEQA Guidelines § 15183, because the Project is consistent with
the General Plan and zoning.” The report concluded “[t]he technical studies
showed that the [NCER] Project would not result in any significant impacts
not previously addressed in the [PEIR].”
Staff presented a summary of their findings at the hearing and
recommended that the Zoning Administrator grant the Guidelines section
15183 exemption. Their recommendation was conditioned on the enclosure of
the NCER Project’s processing operations and a requirement that operations
would take place between the hours of 7 a.m. and 7 p.m.
Hilltop Group also provided a presentation at the hearing in which they
maintained that the NCER Project was consistent with the GPU, and that
the project’s facility was “fairly modest” relative to the size of the project site.
They pointed out that although the project site is 140 acres, only 18 acres of

10
the site would be used for the recycling facility. Hilltop Group noted that all
of the environmental studies concluded that the NCER Project would not
result in any peculiar environmental impacts. Accordingly, they opined there
was simply “nothing left to study.”
Several community groups and homeowners associations expressed
their opposition to the NCER Project at the hearing. A representative of the
Twin Oaks Valley Community Sponsor Group informed the Zoning
Administrator that the group had been opposed to the designation of the
project site as “high impact industrial” since the County’s adoption of the
GPU. A representative of the Montreux Homeowners Association also
expressed opposition to the NCER Project, noting that their community was
less than a mile away from the NCER Project and overlooked the project site.
Individual members of the public commented at the hearing to oppose the
Guidelines section 15183 exemption and the NCER Project as a whole.
The Zoning Administrator considered the County’s findings and
reports, as well as the public testimony, and approved the Guidelines section
15183 exemption request. In issuing its decision, the Zoning Administrator
found that the NCER Project was consistent with the GPU, would not result
in any peculiar environmental impacts, and that feasible mitigation
measures identified in the PEIR would be undertaken.
VI. NCER Project Plan Approval

Following the Zoning Administrator’s approval of the Guidelines
section 15183 exemption, PDS approved the NCER Project’s site plan. PDS
included 65 conditions of approval in its decision to ensure that the NCER
Project’s environmental impacts remained less than significant. One of the
conditions of approval required that the project’s processing operations take
place in an enclosed building.

11
 VII. Appeals to the Planning Commission

Four groups—the Montreux Homeowners Association, the Twin Oaks
Valley Community Sponsor Group, the Hidden Meadows Community Sponsor
Group, and the City of Escondido—filed appeals with the Planning
Commission following the NCER Project’s site plan approval and the
Guidelines section 15183 exemption request approval. County staff prepared
a report responding to each of the 34 issues raised in the appeals. The report
also summarized the County’s review of the NCER Project and concluded
that the project qualified for a CEQA exemption because its impacts would be
less than significant in the areas of aesthetics, air quality, GHG emissions,
noise, and traffic.
The Planning Commission conducted a public hearing during which it
heard testimony from members of the public. Following public commentary,
the Planning Commission voted unanimously to deny the appeals. In
denying the appeals, the Planning Commission upheld the Guidelines section
15183 exemption and site plan approval on the condition that the NCER
Project would not start onsite operations before 7:00 a.m.
VIII. Appeals to the Board of Supervisors

Several community groups and homeowners associations, and the City
of Escondido, appealed the Planning Commission’s decision to the Board of
Supervisors. The Board of Supervisors conducted a public hearing at which
County staff with PDS, counsel for Hilltop Group, and members of the public
presented their positions on the NCER Project’s eligibility for the Guidelines
section 15183 exemption.
A. Summary of Appeals

The Twin Oaks Valley Community Sponsor Group argued in its appeal
that the NCER Project would impact a sensitive biological habitat because

12
the project site was located within a pre-approved mitigation area (PAMA)
and a wildlife movement corridor. Although the group acknowledged that the
NCER Project’s facility site was not considered PAMA, they argued that
Hilltop Group previously illegally graded the site, which prevented such a
designation. The Twin Oaks Valley Sponsor Group argued that the NCER
Project’s impacts would not be sufficiently mitigated by measures identified
in the PEIR.
The City of Escondido argued in its appeal that the NCER Project
would result in potentially significant impacts in the areas of aesthetics,
GHG emissions, biological resources, noise, and traffic, all of which required
additional environmental review. Further, it argued that substantial new
information showed the environmental impacts of the NCER Project may be
more significant than those anticipated by the PEIR.
The Montreux Homeowners Association asserted that their residential
community is less than a mile from the NCER Project site and situated at the
same elevation. Based on the NCER Project’s unique location to nearby
residential and low-intensity commercial uses, the association argued that
the project is fundamentally incompatible with surrounding land use. They
further contended that the technical reports relied on by the County were
outdated, incomplete, and unreliable. Finally, because the County’s initial
study called for an EIR, and the County’s notice of preparation of the EIR
was never rescinded, the association asserted that a full EIR was required.
B. County Staff’s Written Response

In preparation for the public hearing, County staff with PDS provided a
written analysis of the NCER Project in a letter to the Board of Supervisors.
They recommended that the appeals should be denied and the Zoning
Administrator’s determination that the NCER Project qualified for a CEQA

13
exemption should be upheld. County staff based their conclusion that the
appeals should be denied on their prior findings that the NCER Project did
not present any significant or peculiar environmental impacts that were not
previously analyzed in the PEIR. County staff acknowledged that they
initially anticipated the preparation of an EIR due to the potential
environmental impacts of the NCER Project, but explained that after review
of the revised technical studies they were able to determine that the project
qualified for an exemption under Guidelines section 15183. They informed
the Board of Supervisors that, in reaching their conclusion, they considered
the hundreds of public comments submitted in opposition to the project.
County staff’s written response also addressed the 24 issues raised in
the administrative appeals, including an argument that the studies prepared
for the NCER Project were not permitted to rely on the PEIR until all
mitigation measures identified in the PEIR were implemented. The staff
asserted that although one of the mitigation measures in the PEIR, the
County’s Climate Action Plan (CAP), had been rescinded, the rescission did
not invalidate the GPU or PEIR. Nor did Hilltop Group’s GHG emissions
analysis rely on the rescinded CAP.
C. The Public Hearing

At the public hearing, the Board of Supervisors received 150 “e-
comments,” and heard presentations from the parties and commentary from
24 members of the public. The public commentary expressed opposition to
the NCER Project and the CEQA exemption, and the commenters asked the
Board of Supervisors to grant the appeals.
Hilltop Group again argued that the NCER Project qualified for a
CEQA exemption under Guidelines section 15183 because it was consistent
with the GPU and the County’s zoning designation. They summarized the

14
extensive technical analyses supporting the County’s determination that the
project was exempt from further CEQA review. Hilltop Group pointed out
that as a recycling center, the NCER Project would advance the County’s
waste diversion policy.
Following the conclusion of public comments, the Board of Supervisors
expressed concern for the NCER Project’s potential environmental impacts on
air quality, noise, traffic, and GHG emissions. Although they did not identify
what specific aspects of the project created the potential for significant
environmental impacts, the Board of Supervisors nonetheless found that an
“EIR is warranted.” The Director of PDS suggested the following findings,
which the Board of Supervisors included as part of the record:
“[T]he General Plan EIR did not analyze the specific project impacts in
detail which will occur to the project’s proximity to nearby residential uses
from traffic, air quality, noise and [a]esthetic impacts resulting from the
projects industrial operation.
“Implementation of uniformly applied development standards or
policies from the General Plan EIR will not substantially mitigate these
peculiar impacts from the project. Unlike other . . . industrial uses, this
project is peculiarly cited in proximity to other non-industrial . . . and
sensitive uses.
“The unique topographical and climatic conditions of this site need to
be studied further to determine how nearby sensitive land uses will be
affected from the significant dust, noise, and odor impacts from the particular
project.
“The comprehensive environmental review of an EIR is required to
inform the public fully of the project’s specific impacts, ways to mitigate
significant impacts and any alternatives to the project that will reduce or

15
avoid impacts. In short, additional analysis is required to study the peculiar
impact of the project which were not analyzed in the General Plan EIR for
this specific site with its unique features, location, and surrounding uses.”
Following these findings, the Board of Supervisors voted to grant the
appeals. In rendering their decision, they found that the NCER Project
would result in project-specific peculiar impacts in the areas of “air quality,
traffic, noise, and greenhouse gas emissions,” which were not analyzed as
significant in the PEIR. They remanded the matter to the Zoning
Administrator with direction to order the preparation of an EIR.
IX. Petition for Writ of Mandate

Hilltop Group filed a petition for writ of mandate in San Diego County
Superior Court requesting the court to: (1) set aside the Board of
Supervisors’ decision granting the administrative appeals and requiring the
preparation of an EIR; and (2) direct the Board of Supervisors to affirm the
Zoning Administrator’s decision approving the Guidelines section 15183
exemption. In its decision, the trial court noted that the County’s own staff
agreed with Hilltop Group that the NCER Project qualified for an exemption
under Guidelines section 15183. The court found that the Board of
Supervisors’ decision to grant the appeals and deny the exemption was
“inconsistent with the existing record (including the staff’s findings and
recommendations).” Nonetheless, the court denied the petition because it
concluded there was a fair argument that the NCER Project may have
“significant non-mitigable effects on the environment which are peculiar to
the subject project, were not addressed as significant in the prior
environmental impact report, and for which new information shows will be
more significant than described in the prior environmental impact report.”
Hilltop Group timely appealed.

16
 DISCUSSION
I. CEQA Overview

“CEQA was enacted to advance four related purposes: to (1) inform the
government and public about a proposed activity’s potential environmental
impacts; (2) identify ways to reduce, or avoid, environmental damage;
(3) prevent environmental damage by requiring project changes via
alternatives or mitigation measures when feasible; and (4) disclose to the
public the rationale for governmental approval of a project that may
significantly impact the environment.” (California Building Industry Assn. v.
Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, 382.) It
requires that “all agencies of the state government which regulate
activities . . . which are found to affect the quality of the environment, shall
regulate such activities so that major consideration is given to preventing
environmental damage . . . .” (§ 21000, subd. (g).) CEQA and its related
regulatory provisions provide for a multi-tiered review process when an
agency is asked to approve an activity that may significantly affect the
environment. (Lucas, supra, 92 Cal.App.5th at p. 533.)
The initial tier of the CEQA review process requires “the agency to
conduct a preliminary review to determine whether the proposed activity is
subject to CEQA.” (Lucas, supra, 92 Cal.App.5th at p. 534.) At this stage,
the agency determines whether the activity is a “project” within the meaning
of CEQA—in other words whether the activity “may cause either a direct
physical change in the environment, or a reasonably foreseeable indirect
physical change in the environment.” (§ 21065; Union of Medical Marijuana
Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185 (Union).) If the
activity qualifies as a project, the agency must then determine whether the
project is exempt from the CEQA review process under a statutory exemption

17
or a categorical exemption pursuant to the CEQA Guidelines. (Union, supra,
at p. 1186.) If the project is exempt from further CEQA review, the agency
may file a notice of exemption and need not proceed to the next steps of the
review process. (Lucas, supra, at p. 534.)
One such exemption falls within Guidelines section 15183,
subdivision (a), which requires no additional environmental review for
projects “ ‘consistent with the development density established by existing
zoning, community plan, or general plan policies for which an EIR was
certified,’ except as might be necessary to determine whether there are
project-specific significant effects. Guidelines section 15183 was promulgated
on the authority of . . . section 21083.3, which provides a public agency need
examine only those environmental effects that are peculiar to the project and
were not addressed or were insufficiently analyzed as significant effects in
the prior EIR.” (Lucas, supra, 92 Cal.App.5th at p. 534.)
If the agency concludes no exemption applies, the agency proceeds to
the next tier of review. (Union, supra, 7 Cal.5th at p. 1186; Lucas, supra,
92 Cal.app.5th at pp. 534-535.) At this stage, the agency must “conduct an
initial study [to] determine if the project may have a significant effect on the
environment.” (Guidelines, § 15063, subd. (a).) “If the initial study finds no
substantial evidence that the project may have a significant environmental
effect, the lead agency must prepare a negative declaration, and
environmental review ends. [Citation.] If the initial study identifies
potentially significant environmental effects but (1) those effects can be fully
mitigated by changes in the project and (2) the project applicant agrees to
incorporate those changes, the agency must prepare a mitigated negative
declaration. This too ends CEQA review. [Citations.]” (Union, supra, at
pp. 1186–1187.)

18
 “Finally, if the initial study finds substantial evidence that the project
may have a significant environmental impact that cannot be mitigated—and
thus, the project does not qualify for a negative declaration—then the [last]
tier of the CEQA process is reached.” (Lucas, supra, 92 Cal.App.5th at
p. 535.) At this stage, if substantial evidence in the record demonstrates a
project may cause a significant effect on the environment, the agency shall
“prepare and certify an EIR before approving or proceeding with the project.”
(Union, supra, 7 Cal.5th at p. 1187.) When an EIR is required at this stage,
the Guidelines permit the Agency to either: (1) prepare an EIR; (2) use a
previously ordered EIR which the agency determines would adequately
address the project; or (3) “[d]etermine, pursuant to a program EIR, tiering,
or another appropriate process, which of a project’s effects were adequately
examined by an earlier EIR or negative declaration.” (§ 15063, subd.
(b)(1)(A)-(C).)
II. Standard of Review

“Appellate review under CEQA is de novo in the sense that we review
the agency’s actions as opposed to the trial court’s decision.” (Lucas, supra,
92 Cal.App.5th at p. 537.) “In considering a petition for a writ of mandate in
a CEQA case, ‘[o]ur task on appeal is “the same as the trial court’s.”
[Citation.] Thus, we conduct our review independent of the trial court’s
findings.’ [Citation.]” (Banker’s Hill, Hillcrest, Park West Community
Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 257.)
“The County’s determinations as lead agency are reviewed for abuse of
discretion. [Citation.] ‘ “[A]n agency may abuse its discretion under CEQA
either by failing to proceed in the manner CEQA provides or by reaching
factual conclusions unsupported by substantial evidence.” ’ [Citation.]”
(Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th

19
467, 504 (Golden Door).) However, the applicable standard of review in
CEQA cases is nuanced because, “within this abuse of discretion standard,
review varies depending on the issue involved.” (Ibid.)
Although the parties agree on the broad principles governing the
standard of review in CEQA cases, they disagree on the applicable standard
to determine the application of the Guidelines section 15183 exemption.
Hilltop Group argues the substantial evidence standard applies to an
evaluation of whether the exemption is applicable. According to the County,
the fair argument standard applies.
The County cites to Gentry v. City of Murrieta (1995) 36 Cal.App.4th
1359 (Gentry), in support of their argument that the fair argument standard
applies to review of a Guidelines section 15183 exemption determination
because the “exemption requires a finding that a project will not have
significant effect on the environment . . . .” However, the authority from
Gentry the County relies upon is a footnote stating the court has previously
“suggested that where a statutory exemption does depend on whether the
project will have significant environmental effects (as does section 21083.3),
the fair argument standard should govern review of an agency determination
that the statutory exemption applies.” (Gentry, supra, at p. 1406, fn. 24, first
italics added, second italics in original.) But the Gentry court did not go so
far as to expressly hold that the fair argument standard applies to review of a
section 21083.3 exemption determination, and the court’s footnote is,
nonetheless, dicta. (People v. Vang (2011) 52 Cal.4th 1038, 1047, fn. 3
[Dictum is “ ‘[a] judicial comment made while delivering a judicial opinion,
but one that is unnecessary to the decision in the case and therefore not
precedential (although it may be considered persuasive). . . .’ ”]; County Line

20
Holdings, LLC v. McClanahan (2018) 22 Cal.App.5th 1067, 1074 [“footnote
dicta” is the “lowest form of dicta”].)
Although the County acknowledges the recent decision in Lucas, supra,
which holds that the substantial evidence standard applies to review of an
agency’s approval of a Guidelines section 15183 exemption, they argue that
the fair argument test applies to review of a determination that the
exemption is not applicable. We find no meaningful distinction between an
agency decision approving a CEQA exemption, and a decision denying an
exemption, that would warrant a differing standard of review. Guidelines
section 15183 is simply a regulation that effectuates the statutory exemption
in section 21083.3, and it therefore functions as a CEQA statutory exemption.
(Gentry, supra, 36 Cal.App.4th at p. 1406 [section 21083.3 “provides a
statutory exemption from CEQA . . .”].) “ ‘In determining whether an
agency’s findings concerning the use of a statutory exemption from CEQA
may be upheld, we review the administrative record to see that substantial
evidence supports each element of the exemption. [Citations.]’ ” (Concerned
Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, 1311.)
Accordingly, we agree with our sister court in Lucas, supra, that the
substantial evidence standard governs our review of a CEQA exemption,
including that of Guidelines section 15183. Contrary to the County’s
argument, the eligibility of a project for the exemption in Guidelines section
15183 does not solely depend on whether a project will have significant
environmental effects. Rather, it also “requires an agency to examine
whether a project’s environmental effects were analyzed as significant
impacts in a prior EIR on a general plan or zoning action with which the
project is consistent . . . .” (Lucas, supra, 92 Cal.App.5th at p. 538.) To
analyze such an issue, the “ ‘[f]air argument is not the proper standard of

21
review. Substantial evidence is the proper standard where . . . an agency
determines that a project consistent with a prior program EIR presents no
significant, unstudied adverse effect.’ [Citations.]” (Ibid.) We note, however,
that the substantial evidence standard requires us to resolve all conflicts in
the evidence in support of the Board of Supervisors’ action and indulge all
reasonable inferences in favor of their findings. (Ibid. [“All conflicts in the
evidence are resolved in support of the agency’s action and we indulge all
reasonable inferences to support the agency’s findings, if possible.”].)
III. Analysis

The parties do not dispute that the NCER Project qualifies as a
“project” for the purposes of CEQA review. (See Union, supra, 7 Cal.5th at
p. 1180 [“In general, a project is an activity that (1) is undertaken or funded
by, or subject to the approval of a public agency and (2) may cause ‘either a
direct physical change in the environment, or a reasonably foreseeable
indirect physical change in the environment.’ [Citation]”].) Nor do the
parties dispute that the NCER Project is consistent with the GPU’s zoning
designation of the project site for “high impact industrial” use. Indeed, the
NCER Project site was zoned for industrial use in 2011 when the Board of
Supervisors approved the GPU as part of its duties to adopt a plan to guide
the physical development of the County. (See Gov. Code, § 65300 et seq. [“the
legislative body of each county” is responsible for adopting a comprehensive
general plan for the county].)
The validity of the project site’s designation for industrial use, or the
wisdom of such a designation, is not before us. Rather, the issue before this
court is the extent to which the NCER Project is exempt from further
environmental review under Guidelines section 15183 based on the project’s
consistency with the PEIR certified in conjunction with the GPU. Although

22
we are mindful of the extent of public opposition to the project voiced at
various public hearings, “ ‘ “[t]he existence of public controversy over the
environmental effects of a project shall not require preparation of an
environmental impact report if there is no substantial evidence in light of the
whole record before the lead agency that the project may have a significant
effect on the environment.” ’ ” (McCann v. City of San Diego (2021)
70 Cal.App.5th 51, 87 (McCann).)
As we shall discuss, we conclude the NCER Project is eligible for the
streamlined environmental review process in Guidelines section 15183, which
County staff elected to utilize, and therefore environmental review shall be
limited to the circumstances enumerated in Guidelines section 15183,
subdivision (b)(1) through (4). The Board of Supervisors’ decision requiring
the comprehensive review of an EIR did not appropriately limit further
environmental review in conformity with Guidelines section 15183, and
therefore their decision did not proceed in a manner required by law.
Moreover, we disagree with the County’s argument that the initial study
required the preparation of an EIR, even in the face of its later findings that
the project qualified for a CEQA exemption. We have not identified
substantial evidence in the record to support the Board of Supervisors’
findings that the NCER Project would result in “peculiar” impacts in the
areas of aesthetics, noise, traffic, GHG emissions, and air quality, within the
meaning of Guidelines section 15183, subdivisions (b)(1) and (f).
A. Guidelines Section 15183 Is Applicable to the NCER
Project

Program EIRs, like the PEIR certified by the County in conjunction
with the 2011 GPU, “are used for a series of related actions that can be
characterized as one large project. If a program EIR is sufficiently

23
comprehensive, the lead agency may dispense with further environmental
review for later activities within the program that are adequately covered in
the program EIR.” (Center for Sierra Nevada Conservation v. County of
El Dorado (2012) 202 Cal.App.4th 1156, 1171 (Center for Sierra Nevada
Conservation); see also Guidelines, § 15168, subd. (c).) “ ‘[A] program EIR
may serve as the EIR for a subsequently proposed project to the extent it
contemplates and adequately analyzes the potential environmental impacts
of the project . . . .’ [Citation.]” (Center for Sierra Nevada Conservation, at
p. 1171.)
“However, ‘[a] program EIR does not always suffice for a later project.
Sometimes a “tiered” EIR is required . . . .’ [Citation.]” (Center for Sierra
Nevada Conservation, supra, 202 Cal.App.4th at p. 1171.) “ ‘CEQA directs
agencies to “tier” EIR’s whenever feasible, in part to streamline regulatory
procedures and eliminate repetitive discussions of the same issues in
successive EIR’s. [Citations.] Section 21068.5 defines “tiering” as the
‘coverage of general matters and environmental effects in an [EIR] prepared
for a policy, plan, program or ordinance followed by narrower or site-specific
[EIR’s] which incorporate by reference the discussion in any prior [EIR] and
which concentrate on the environmental effects which (a) are capable of being
mitigated, or (b) were not analyzed as significant effects on the environment
in the prior [EIR].’ (See Guidelines, § 15152, italics added.)” (Id. at
pp. 1171–1172.)
Although section 21083.3 is not technically a tiering provision, but
rather a CEQA “exemption,” it functions as a streamlining procedure
intended to “reduce[ ] the need to prepare repetitive environmental studies.”
(Guidelines, § 15183, subd. (a).) Thus, “[t]he results of section 21083.3 are
much like those of tiering. If the new project has peculiar effects which were

24
not addressed in the prior EIR, it may be appropriate to use tiering to
streamline review of those effects.” (Gentry, supra, 36 Cal.App.4th at p. 1406;
see also Guidelines, § 15152, subd. (h) [the process delineated in Guidelines
section 15183 for projects consistent with a general plan is a “method[ ] [of]
streamlin[ing] . . . environmental review.”].)
Although agencies have discretion regarding which streamlining
process to utilize (see Guidelines, § 15152, subd. (h)), they are required to
limit their environmental review of a project when a program EIR has been
certified for a general plan and a later project is consistent with the general
plan. (See Guidelines, § 15152, subd. (d) [“Where an EIR has been prepared
and certified for a program . . . any lead agency for a later project pursuant to
or consistent with the program . . . should limit the EIR or negative
declaration on the later project to effects which . . . [w]ere not examined as
significant effects on the environment in the prior EIR . . .”].) Indeed, “ ‘[t]o
hold that a project-specific EIR must be prepared for all activities proposed
after the certification of the program EIR, even where the subsequent activity
is “within the scope of the project described in the program EIR” [citation],
would be directly contrary to one of the essential purposes of program EIR’s,
i.e., to streamline environmental review of projects within the scope of a
previously completed program EIR.’ ” (Center for Biological Diversity v.
Department of Fish & Wildlife (2015) 234 Cal.App.4th 214, 239.)
Consistent with an emphasis on streamlining future environmental
review for projects within the scope of a program EIR, Guidelines section
15183 states that projects consistent with a general plan “shall not require
additional environmental review, except as might be necessary to examine
whether there are project-specific significant effects which are peculiar to the
project or its site.” (Guidelines, § 15183, subd. (a), italics added; see also

25
21083.3, subd. (b) [environmental review of a project consistent with a
general plan for which an EIR was certified shall be limited to those effects
on the environment which are peculiar to the parcel or project and were not
addressed as significant effects in the prior EIR].) Thus, when an agency
utilizes the streamlining process in Guidelines section 15183, the agency
shall limit its examination of significant environmental effects which it
determines: “(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.” (Guidelines,
§ 15183, subd. (b)(1)-(4).)
The County interprets the limitations set forth in Guidelines section
15183, subdivision (b)(1) through (4), to be disqualifying circumstances, the
presence of which render a project entirely ineligible for the exemption. They
assert in their briefing on appeal that “the CEQA Guidelines section 15183
exemption applies only if there are no impacts that are peculiar to the project
or its site.” Hilltop Group similarly asserts that a project otherwise eligible
for the Guidelines section 15183 exemption is “ineligible” if the agency
determines the project has environmental effects peculiar to the project or
project site.
We disagree with such a narrow interpretation of Guidelines section
15183 in which the exemption is entirely inapplicable if there are any

26
peculiar project-specific environmental impacts. (See Kostka & Zischke,
Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2023)
§13.50 (cited hereafter as Kostka & Zischke) [section 21083.3 “provides a
partial exemption that limits the issues that must be discussed in a project-
level EIR to significant impacts that were not covered in the prior planning or
zoning EIR” (italics added)].) Guidelines section 15183 may require
environmental review of aspects of a project not adequately covered by a
program EIR, and exempt other aspects of the same project from further
review because the environmental effects were previously and adequately
addressed. (See Kostka & Zischke, § 10.35 [“Under various limits on the
applicability of . . . § 21083.3, one or more of which may apply, some aspects
of a later project may be exempt from CEQA while other aspects of the project
may require some level of CEQA review.”]; see also Gentry, supra,
36 Cal.App.4th at p. 1405 [examining whether a project was “partially
exempt from CEQA under section 21083.3.” (Capitalization & italics
omitted.)].) The language of Guidelines section 15183 limits environmental
review for qualifying projects to those effects that are peculiar and project-
specific, or not addressed as significant in the prior environmental impact
report, but does not state that such effects render the streamlined process
wholly inapplicable.
Accordingly, because the NCER Project is consistent with the GPU for
which the PEIR was certified, we conclude the streamlined process in
Guidelines section 15183 is applicable to the project. The record
demonstrates that County staff elected to utilize Guidelines section 15183 in
their review of the NCER Project and they were within their discretion to do
so. Therefore, the primary issue before this court is not whether the NCER
Project is, broadly speaking, eligible for the streamlined review process

27
outlined in Guidelines section 15183. The express terms of Guidelines
section 15183, subdivision (d), state that the regulation’s streamlined review
is applicable to the NCER Project because it is consistent with the GPU.
Rather, the issue before this court is the extent to which the process is
streamlined and what further review is required based on substantial
evidence of the project’s peculiar environmental impacts.
B. The County’s Initial Study Did Not Preclude
Application of Guidelines Section 15183 to the NCER
Project

The County argues the NCER Project is altogether ineligible for the
Guidelines section 15183 exemption based on findings from the County’s
initial study that an EIR was required. The timeline of this case is certainly
unusual because it was not until years after Hilltop Group submitted its
initial draft EIR that the County indicated it would consider their request for
a Guidelines section 15183 exemption upon the submission of additional
technical studies. (See Lucas, supra, 92 Cal.App.5th at p. 534 [exemption
eligibility determined in the first tier of CEQA review].) However, under the
unique circumstances of this case, we conclude the initial study did not, as a
matter of law, preclude the County’s later determination that the NCER
Project was eligible for the Guidelines section 15183 exemption following the
submission of supplemental environmental studies.
Here, the County’s initial study did not indicate that it made findings
regarding the NCER Project’s potential environmental impacts in the context
of Guidelines section 15183. Rather, the study indicated that further
analyses were required to determine the extent of the project’s impacts. That
the County did not have sufficient information to determine whether the
NCER Project posed peculiar environmental impacts within the meaning of
Guidelines section 15183 at the time of the initial study, or simply did not

28
undertake this analysis, does not necessarily preclude a later determination
that the project qualified for a streamlined environmental review under
applicable CEQA regulations. To unequivocally require the preparation of an
EIR based on the initial study, even in the face of County staff’s later findings
that the project qualified for an exemption, would elevate form over
substance. We decline to do so, particularly where County staff expressly
represented to Hilltop Group that they would evaluate the NCER Project’s
eligibility for the CEQA exemption if Hilltop Group submitted additional
environmental reports. (See North Coast Rivers Alliance v. Westlands Water
Dist. (2014) 227 Cal.App.4th 832, 877 [court declined “to elevate form over
substance or to interpret CEQA in a manner that would lead to . . . absurd or
oppressive burdens”].)
Our conclusion does not conflict with the cases cited by the County in
support of their argument that the initial study required the preparation of
an EIR because these cases were not decided in the context of a Guidelines
section 15183 exemption. (See Union, supra, 7 Cal.5th at p. 1187 [evaluating
whether a medical marijuana ordinance was a “project” subject to CEQA
review]; Apartment Assn. of Greater Los Angeles v. City of Los Angeles (2001)
90 Cal.App.4th 1162, 1167 [determining whether an initial study was
required to evaluate whether the city’s permanent code enforcement program
qualified for a categorical CEQA exemption].) Further, the County’s reliance
on cases that required the preparation of an EIR based on an initial study
misses the point of the Guidelines section 15183 exemption. The exemption
permits streamlined environmental review not because a project does not
have any potential environmental effects, or because those effects should not
be analyzed—the exemption permits streamlined review because the project’s
effects were already sufficiently taken into account and addressed in a

29
programmatic EIR. Upon findings in an initial study of a project’s potential
environmental effects, the Guidelines expressly authorize an agency to “[u]se
a previously prepared EIR which the lead agency determines would
adequately analyze the project at hand, or . . . [d]etermine, pursuant to a
program EIR, tiering, or another appropriate process, which of a project’s
effects were adequately examined by an earlier EIR or negative declaration.”
(§ 15063, subd. (b)(1)(A)-(C).)
Accordingly, having concluded that Guidelines section 15183 is
applicable to the NCER Project, and that the initial study did not preclude
application of the exemption in this case, we turn to the scope of further
environmental review permitted under the regulation.
C. Insufficient Evidence Supports the Board of
Supervisors’ Findings That Uniform Policies and
Procedures Will Not Substantially Mitigate the NCER
Project’s Potential Environmental Impacts

The Board of Supervisors’ decision to require the preparation of an EIR
was premised upon their finding that the NCER Project would result in
“project-specific peculiar impacts that were not analyzed as significant
impacts in the [PEIR] related to air quality, traffic, noise, and greenhouse gas
emissions.” On appeal, the parties focus on Guidelines section 15183,
subdivision (b)(1), which requires review of environmental impacts that are
“peculiar” to a project. Guidelines section 15183 does not define the term
“peculiar” for the purposes of the exemption, except to state that an effect
shall not be considered peculiar to a project if uniformly applied development
policies or standards will substantially mitigate the effect. (Guidelines,
§ 15183, subd. (f).)
In Wal-Mart Stores, Inc. v. City of Turlock (2006) 138 Cal.App.4th 273
(Wal-Mart), disapproved in part on other grounds as stated in Hernandez v.

30
City of Hanford (2007) 41 Cal.4th 279, 297, the court addressed the meaning
of the term “peculiar to” within the context of Guidelines section 15183. The
court applied the dictionary definition of the term to its analysis of whether a
city ordinance was eligible for the exemption. (Wal-Mart, supra, at p. 294
[“Webster’s Third New International Dictionary (1986) page 1663 defines
‘peculiar’ as ‘1a: belonging exclusively or esp. to a person or group . . .
3: tending to be a characteristic of one only: distinctive.’ ”].) The court
considered an environmental impact to be “peculiar to” a project if the impact
belonged exclusively or especially to the project or if it was characteristic of
only the project. (Ibid.) The Wal-Mart court explained that its interpretation
of the term “peculiar” was “consistent with the view that environmental
review documents should be general when they cover general possibilities
and specific when the specifics of a project are reasonably foreseeable.” (Id.
at p. 295.) Thus, the court concluded that although a program EIR may cover
the general possibility that a location will be developed, when “a specific
project is proposed for that location, its details will be presented to [the
agency] for approval and [the agency] will be required to conduct another
preliminary review to determine what additional environmental review, if
any, is necessary for CEQA compliance.” (Id. at p. 296.)
Unlike Wal-Mart, which analyzed whether a zoning ordinance would
result in “peculiar” impacts, here we consider the application of the
Guidelines section 15183 exemption to an individual industrial facility
consistent with a zoning designation created by the GPU. The Wal-Mart
court did not determine whether individual projects consistent with a zoning
ordinance would require further environmental review under Guidelines
section 15183. Nor does there appear to be published case law, in the context
of Guidelines section 15183, that determines the extent to which individual

31
projects within a zoning ordinance require further environmental review
when the zoning ordinance has already been adequately analyzed in a
program EIR.
Nonetheless, we find Wal-Mart’s interpretation of the term “peculiar” to
be consistent with the stated goal of Guidelines section 15183—that projects
consistent with a general plan for which a program EIR was certified shall
not require additional review except as necessary to evaluate project-specific
effects. (Guidelines, § 15183, subd. (a).) Under Wal-Mart’s interpretation,
the environmental effects of the NCER Project—both during its construction
and operational phases—are certainly “peculiar” in the sense that they are
unique to the project and the PEIR could not have possibly anticipated the
project’s specific impacts to the surrounding environment. Although the
PEIR considered the general environmental impacts of the GPU’s zoning
designations, the PEIR’s own terms explain that, “[o]n a programmatic level,
the [PEIR] does not, and cannot, speculate on the individual environmental
impacts of specific future development projects in the County.” Its level of
analysis is “not detailed to the level of site specificity, nor is it intended to be
accurate to this level of specificity.”
However, this does not end our analysis. Even if evidence in the record
demonstrates the existence of project-specific environmental effects, an
environmental impact “shall not be considered peculiar to the project or the
parcel . . . if uniformly applied development policies or standards have been
previously adopted by the city or county with a finding that the development
policies or standards will substantially mitigate that environmental effect
when applied to future projects, unless substantial new information shows
that the policies or standards will not substantially mitigate the
environmental effect.” (Guidelines, § 15183, subd. (f).) Thus, contrary to the

32
County’s assertions, the issue is not simply whether sufficient evidence in the
record supports a finding that “the [NCER] Project may have significant
environmental impacts.” Rather, the issue is whether substantial evidence in
the record supports the Board of Supervisors’ findings that there are project-
specific impacts that will not be substantially mitigated by previously
adopted and uniformly applied policies and procedures. We address the
parties’ contentions regarding the substantial evidence, or lack thereof, that
would support the Board of Supervisors’ findings of “peculiar” impacts in the
areas of aesthetics, noise, traffic, GHG emissions, and air quality, in turn,

below. 3
However, before we turn to our analysis, we note that in their decision,
the Board of Supervisors failed to identify the specific nature of the NCER
Project’s “peculiar” impacts that required environmental review, except to
point to broad environmental categories. Nor did the Board of Supervisors
address, with specificity, the effect of uniform policies and procedures on
these purported impacts. The PDS Director’s statement at the appeals
hearing that, “uniformly applied development standards or policies from [the
PEIR] will not substantially mitigate these peculiar impacts,” similarly
lacked specificity.
The brevity of the Board of Supervisors’ statement in support of their
decision fails to “set forth findings to bridge the analytic gap between the raw
evidence and ultimate decision or order.” (Topanga Assn. for a Scenic
Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515.) Although we
must indulge all inferences in favor of the Board of Supervisors’ decision, the

3 Throughout our discussion, we point to the County’s citations to the
record as the party defending the Board of Supervisors’ decision. However,
we are mindful that the County, as the respondent, does not bear the burden
on appeal. (See Stevens v. Parke, Davis & Co. (1973) 9 Cal.3d 51, 70.)

33
ambiguity of their findings in support of their ultimate decision makes
meaningful judicial review challenging considering the record is over 48,000
pages. The nature of their decision requires us to “grope through the record
to determine whether some combination of credible evidentiary items which
supported some line of factual and legal conclusions supported the ultimate
order or decision of the agency.” (Topanga Assn., supra, at p. 516.)
Considering the Board of Supervisors’ findings are contradicted by its own
staff’s reports and the technical environmental studies evaluated by the
County, the parties face a similarly daunting task of attempting to piece
together substantial evidence in the voluminous record.
In their briefing on appeal, the County attempts to bridge this analytic
gap by pointing to various public comments submitted during the course of
the Guidelines section 15183 exemption determination, as well as to
comments within the administrative appeals and staff communications. The
County argues that these comments, which largely consist of lay opinion and
personal observations, provide substantial evidence the NCER Project “may
have significant environmental impacts.”
Although substantial evidence may include “ ‘ “[r]elevant personal
observations of area residents on nontechnical subjects,” ’ ” (McCann, supra,
70 Cal.App.5th at p. 87) it may not include “mere argument, speculation, and
unsubstantiated opinion, even expert opinion . . . .” (Pocket Protectors v. City
of Sacramento (2004) 124 Cal.App.4th 903, 928; Make UC A Good Neighbor v.
Regents of University of California (2023) 88 Cal.App.5th 656, 686 (Make UC
A Good Neighbor) [“Substantial evidence may include personal observations
of residents, expert opinions, and reasonable inferences based on facts, but
not argument, speculation, or unsubstantiated opinions.”].) The public
commentary relied upon by the County largely consists of speculation of the

34
NCER Project’s anticipated impacts on nearby residents. Although these
comments discuss ways in which individuals and the broader community may
be personally impacted by the NCER Project, they altogether fail to address
whether the purported project-specific impacts will be substantially mitigated
by uniform policies in the PEIR. These residents may very well be able to
hear, see, or otherwise perceive some aspects of the NCER Project, but this is
not the threshold for determining the applicability of Guidelines section
15183. Further, the County does not suggest that any of the commenters,
whether individuals commenting at the public hearings, or representatives of
nearby municipalities and homeowners associations, were experts or
qualified to contribute expert testimony. (See Bowman v. City of Berkeley
(2004) 122 Cal.App.4th 572, 583 [“lay reading” of expert reports does not
constitute substantial evidence to support a contrary conclusion reached in
an expert report].) We are guided by these principles in our discussion below.

1. Aesthetics 4
In their initial review of the NCER Project, the County expressed
concern that the project could have potentially significant impacts on

4 The parties dispute whether aesthetics was a basis for the Board of
Supervisors’ decision to deny the exemption and require an EIR. Although
the Board of Supervisors did not include aesthetics as one of the impacts
requiring the preparation of an EIR during their oral motion at the public
hearing, the PDS Director read a statement into the record stating that the
PEIR did not adequately analyze the project-specific impacts of the NCER
Project in the area of aesthetics. Considering that the substantial evidence
standard requires us to indulge all inferences in favor of the agency’s findings
and decision, we infer that the Board of Supervisors based its decision, in
part, on the potential aesthetic impacts of the project, and we therefore
consider whether there is sufficient evidence of these impacts to warrant
further environmental review. (Lucas, supra, 92 Cal.App.5th at p. 538 [“All
conflicts in the evidence are resolved in support of the agency’s action and we

35
aesthetics, and that the visual simulations conducted by Hilltop Group to
evaluate the project’s aesthetic impacts were insufficient. Consequently,
Hilltop Group submitted an additional visual impact analysis and a
memorandum summarizing its results. The analysis concluded that visual
impacts from the NCER Project would be less than significant, particularly
once landscaping surrounding the processing facility reached full growth and
concealed visible aspects of the project.
After reviewing the additional visual impact studies, the County found
that the aesthetic impacts of the NCER Project would be less than significant
and would not result in impacts not adequately evaluated or mitigated by the

PEIR. 5 Specifically, through the use of their Guidelines section 15183
checklist, County staff determined the NCER Project would not pose
significant effects on nearby scenic vistas because the processing facility
would be out of view of lower lying areas and would be obstructed from
further view by intervening topography and additional vegetation, fencing,
and landscaping. The checklist further concluded that the project would not
substantially damage scenic resources, degrade the existing visual character
of the project site and its surrounding areas, or create a new source of
substantial light. The checklist reached this conclusion, in part, because the
grading that would occur due to the facility’s construction would take place

indulge all reasonable inferences to support the agency’s findings, if
possible.”].)

5 The PEIR concluded that the GPU’s development would result in
potentially significant aesthetic impacts in the areas of scenic vistas and
resources, but would be less than significant upon the use of mitigation. It
further determined that there would be significant and unavoidable impacts
in the areas of visual character or quality and light or glare. The PEIR
included mitigation measures that must be undertaken by a project that will
cause environmental impacts in the area of aesthetics.

36
on previously disturbed areas of land and because there was a significant
elevation difference between the project site and surrounding areas. The
checklist further noted that the NCER Project plan was consistent with the
“I-15 Corridor Scenic Preservation Guidelines.”
Notwithstanding these analyses and findings, the County argues on
appeal that commentary submitted at various public hearings provides
substantial evidence of the project’s significant impacts in the area of
aesthetics. The County provides a string cite to various comments in the
record that mention the project’s potential visual impacts, and they highlight
a comment by the City of Escondido alleging that the visual impact reports
failed to consider the project’s impact on a development that has yet to be
built.
As the County rightly notes, lay opinion from the community regarding
a project’s aesthetic impacts may provide substantial evidence that a project
will have a significant impact on the environment. (See McCann, supra,
70 Cal.App.5th at p. 87 [“ ‘ “Relevant personal observations of area residents
on nontechnical subjects may qualify as substantial evidence . . . .
[Citations.]” ’ ”].) However, “ ‘ “[s]ubstantial evidence is not argument,
speculation, unsubstantiated opinion or narrative, evidence that is clearly
inaccurate or erroneous, or evidence of social or economic impacts that do not
contribute to, or are not caused by, physical impacts on the environment.”
[Citation.]’ ” In many cases, “individualized claims of aesthetic impact do not
constitute substantial evidence.” (Id. at p. 88.)
The public comments cited by the County are largely speculative and
do not discuss whether the purported visual impacts of the project would be
addressed by uniform policies within the PEIR. The commenters mostly
remark on whether they will be able to personally observe the project site

37
from their residences and communities. For example, one commenter
observed, “[o]ur house has an unubstructed [sic] view looking directly toward
the proposed plant location.” Another commenter stated, “[n]ever mind the
fact that over 6,100 of the residents will now have to look at this industrial
site rather than the hills we have enjoyed in the past.” Other commenters
noted that Hilltop Group’s visual impact analysis did not evaluate how a
nearby future residential development may be affected. These lay opinions
and observations do not provide substantial evidence that any aesthetic
impacts by the NCER Project will not be substantially mitigated by uniform
policies in the PEIR.
Further, the comments that take issue with the technical studies
conducted by Hilltop Group do not provide foundation for their opinions or
sufficient expertise to support their conclusions. For example, one
commenter at the public hearing before the Board of Supervisors stated,
“[t]he original [view impact analysis] accepted by the planning department
employed outdated techniques and only addressed six views. Take 360
degrees, divided by six, that’s an average one view every 60 degrees. I ask for
analysis from nine neighborhoods using modern techniques and analysis.”
This lay opinion was “based on technical information that requires expertise
[and] does not qualify as substantial evidence.” (Newtown Preservation
Society v. County of El Dorado (2021) 65 Cal.App.5th 771, 789 (Newtown
Preservation Society).)
In sum, the public commentary discussed by the County does not
provide substantial evidence of whether the NCER Project’s visual impacts
will be substantially mitigated by the uniform policies laid out in the PEIR.
The public commenters largely express concern regarding their views of the
NCER Project from various surrounding areas, including their own homes.

38
However, they do not address the relevant standard for the application of the
exemption: whether any significant project-specific impacts will be mitigated
by the measures included in the PEIR pursuant to Guidelines section 15183,
subdivision (f). Accordingly, we conclude substantial evidence in the record
does not support the Board of Supervisors’ finding that the NCER Project will
result in peculiar aesthetic impacts.

2. Noise 6
The GPU requires the County to utilize “Noise Compatibility
Guidelines” to determine the combability of land uses when evaluating
proposed development projects. The County’s initial study of the NCER
Project found that it could potentially result in the generation of noise in
excess of noise standards established in the GPU and a local noise ordinance.
Accordingly, the initial study determined a noise analysis report was
necessary to evaluate noise generating sources during the NCER Project’s
construction and its operational phases, in comparison with then-existing
noise levels on the project site and the permissible noise levels in the GPU.
Hilltop Group conducted a noise analysis and reported their findings in
their initial draft EIR. The analysis concluded that noise from the operation
of the facility would comply with the County’s noise ordinance and be less
than significant. It also concluded that noise from rock crushing during the
project’s operational phase would be less than significant due to intervening

6 The Legislature has declared that it is the state’s policy to “ ‘[t]ake all
action necessary to provide the people of this state with . . . freedom from
excessive noise.’ (CEQA, § 21001, subd. (b).)” (Make UC A Good Neighbor,
supra, 88 Cal.App.5th at p. 685.) For the purposes of a CEQA analysis, noise
is included as part of the “ ‘[e]nvironment.’ ” (§§ 21060.5, 21068.)
Accordingly, “the noise caused by a project can result in a significant effect on
the environment.” (King & Gardiner Farms, LLC v. County of Kern (2020)
45 Cal.App.5th 814, 883 (King & Gardiner Farms, LLC).)

39
topography. However, the draft EIR concluded that the impacts from
blasting during the construction of the facility would require mitigation
measures to reduce the impact to less than significant levels. The mitigation
measures included the creation of a blasting plan which limited the duration
of blasting, notification to potentially impacted residential communities, and
the incorporation of noise reducing measures required by the County’s noise
ordinance.
Thereafter, in its Guidelines section 15183 exemption checklist, the
County concluded the NCER Project would not result in any significant noise-
related impacts that were not adequately addressed by the mitigation
measures within the PEIR. Their conclusion was based on Hilltop Group’s
noise analysis report prepared in 2013, and a supplement noise report
prepared in 2019. County staff concluded that the facility’s operational noise
would comply with the County’s noise standards due to the distance of the
operating equipment from surrounding residential property lines, as well as
the intervening topography. Although the exemption checklist acknowledged
that noise from the NCER Project’s construction would reach relatively high

levels, it was not projected to exceed the allowable “75 dBA” 7 during the
hours of operation. The checklist also considered the impact of noise from
additional traffic and concluded the project would not result in a noise impact
that would exceed the limits of the GPU. Ultimately, the exemption checklist
determined the NCER Project would comply with the County’s noise

7 “A decibel (dB) is a unit that describes the amplitude of sound and is
expressed on a logarithmic scale. A common metric is the overall A-weighted
sound level measurement (dBA), which measures sound in a fashion similar
to the way a person perceives or hears sound.” (King & Gardiner Farms,
LLC, supra, 45 Cal.App.5th at p. 885, fn. 36.)

40
ordinance in both its operational and construction phase, as required by the
PEIR.
Notably, after the checklist was completed, a condition of the NCER
Project’s approval was that its processing facility must be enclosed. Based on
this additional noise reduction, County staff again concluded that the
project’s noise levels would comply with uniform noise standards in the
County’s noise ordinance and would be less than significant.
County staff reported their noise-related findings to the Board of
Supervisors prior to the public hearing. Their report determined that noise
generated from the NCER Project would not result in significant impacts to
any surrounding sensitive land uses, during either construction or the
project’s operational phase, particularly due to the enclosure of the processing
facility. According to the County’s report, the project’s noise levels would
comply with “applicable uniform noise standards in the Noise Ordinance at
all the adjacent residentially zoned properties, substantially mitigating the
effects of the Project.”
In their briefing on appeal, the County argues in a single, four-sentence
paragraph, that public commentary submitted at various hearings
constitutes substantial evidence of “significant noise impacts.” Specifically,
the County contends that the public commentary provided evidence that
prevailing winds carry noise much farther and louder than accounted for in
the environmental studies and will potentially impact a pending residential
community. The County also argues that the comments pointed out flaws in
the noise-related technical studies.
The comments cited by the County do not discuss whether the NCER
Project’s potential noise impacts will be mitigated by uniform policies in the
PEIR or local noise ordinances. Rather, the comments largely provide

41
personal anecdotes of residents describing their experience with noise in the
area. For example, at the hearing before the Zoning Administrator,
commenters noted they were able to hear roosters crowing in a nearby valley
and motorcycles and trucks driving from Twin Oaks Valley. Based on these
observations, one commenter opined that the industrial noise from the NCER
Project would be a “major problem.” Another commenter felt that the project
would force them “to listen to loud crushing machines all hours of the day.”
At the 2021 Planning Commission hearing, commenters opined that the
marine layer and wind would amplify noise from the project at particular
times of the day. Similarly, at the appeals hearing before the Board of
Supervisors, the chairman of the Hidden Meadows Community Sponsor
Group commented that the “residential uses are down wind from the project
which means that they will have a potential of being impacted by noise,
odors, and dust . . . .” The Vice President for the Montreux Homeowners
Association observed that prevailing winds blow through a neighboring valley
near her home and allow her to hear bells and children playing from a nearby
school. Based on this observation, she opined that noise from the NCER
Project’s processing facility would be “loud” from her residence. In an email
sent in opposition to the project, one resident commented that they routinely
hear gunshots from the project site and expressed concern that noise from the
NCER Project would travel at similar levels.
Other community members commented that the noise analysis did not
take into account variation in noise levels based on weather conditions. The
Montreux Homeowners Association argued in their appeal to the Board of
Supervisors that Hilltop Group’s noise consultant report applied the wrong
standard and that foreseeable noise levels were not accounted for in the

42
PEIR. Similarly, another commenter opined that Hilltop Group’s noise
analysis relied on a dated, “unsigned and uncertified” analysis.
These comments do not address, much less provide substantial
evidence, of whether uniform policies and procedures will substantially
mitigate noise generated by the NCER Project. Rather, the comments
speculate as to the amount of noise the project may produce, and ways in
which the surrounding community may be able to perceive the noise. The lay
opinions and observations calling into question the bases and results of the
noise-related technical studies do not establish their expertise to provide such
evidence, nor do they provide sufficient evidence of the alleged flaws in the
technical studies. (See Newtown Preservation Society, supra, 65 Cal.App.5th
at pp. 790-791 [substantial evidence does not include lay opinion based on
technical information that requires expertise, or lay observations unrelated
to similar projects in the past].) Accordingly, we are unable to identify
substantial evidence within the record that supports the Board of
Supervisors’ finding of noise-related impacts that would not be mitigated by
uniform policies and procedures in the PEIR or other noise ordinances.
3. Traffic
Hilltop Group argues there is no substantial evidence in the record to
support the Board of Supervisions’ determination that the NCER Project
would result in peculiar traffic-related impacts. Hilltop Group notes that
County staff concluded the NCER Project would not result in significant
impacts in this area based on the traffic analysis and data submitted within
their technical studies. According to Hilltop Group, the administrative record
contains no data that conflicts with the traffic analysis or would demonstrate
significant and peculiar traffic-related impacts.

43
 The County points to comments in the record questioning the validity
of Hilltop Group’s traffic analysis as substantial evidence to support the
Board of Supervisors’ findings. The comments opine that Hilltop Group’s
traffic study was not based on the maximum potential use of the facility and
that Hilltop Group failed to submit a “Haul Route Plan” as part of their
environmental review. The County further argues that the traffic analysis
did not comply with current CEQA Guidelines because there was no analysis
of the NCER Project’s vehicle miles travelled (VMT).
Like the evidence relating to aesthetics and noise, the public
commentary cited by the County does not address the relevant issue of
whether uniform policies will mitigate the project’s purported traffic effects.
By contrast, the environmental studies submitted by Hilltop Group, the
County’s exemption checklist and reports, the Zoning Administrator’s
findings, and the Planning Commission’s findings, all concluded that the
NCER Project will not result in any significant traffic-related impacts. We
point out this distinction not to reweigh the evidence, but to emphasize that
the lay commenters discussing the validity of the technical traffic analyses do
not provide sufficient foundation for their expertise to provide their testimony
or to undermine the factual premises upon which the technical studies based
their conclusions. (See Newtow Preservation Society, supra, 65 Cal.App.5th
at pp. 790-791.) Accordingly, we cannot identify substantial evidence in the
record to support a finding that the NCER Project’s traffic-related impacts
would not be mitigated by uniform policies and procedures.
Further, we find no merit to the County’s argument that Hilltop
Group’s traffic analysis was flawed for failing to analyze the NCER Project’s
VMT. As Hilltop Group notes, the VMT analytical requirement in Guidelines
section 15064.3 did not become effective until July 1, 2020—a date after

44
Hilltop Group conducted their traffic analysis and the Zoning Administrator
approved the CEQA exemption. The express terms of Guidelines section
15064.3 state that its provisions shall apply prospectively. (Guidelines,
§ 15064.3, subd. (c); see also IBC Business Owners for Sensible Development
v. City of Irvine (2023) 88 Cal.App.5th 100, 123-124 [concluding that an
agency was not required to perform a VMT analysis because their service-
based traffic study was already undertaken before the effective date of
Guidelines section 15064.3].)
4. Air Quality and GHG Emissions
As part of the initial environmental analysis requested by the County,
Hilltop Group submitted an Air Quality and Greenhouse Gas Emissions
Assessment to County specialists. County staff reviewed the assessment and
determined that the NCER Project’s GHG emissions and pollutants would be
under the threshold established by the California Air Pollution Control
Officers Association (CAPCOA). Hilltop Group notes that the County utilizes
this screening threshold to determine GHG emission significance for the
purposes of CEQA review. Based on this threshold, County staff concluded
that the project’s GHG emissions and air quality impacts would be less than
significant. By contrast, the administrative record does not reveal any expert
evidence concluding that the NCER Project’s GHG emissions and air quality
impacts would be significant and peculiar within the meaning of Guidelines
section 15183, subdivisions (b)(1) and (f).
However, the County argues that Hilltop Group was not permitted to
rely on the PEIR in their analysis of the NCER Project’s GHG emissions
because the PEIR’s mitigation measures in this area depended on the
County’s 2018 Climate Action Plan (CAP). As the County notes, the CAP was
set aside by this court in Golden Door, supra, 50 Cal.App.5th 467. The

45
County also takes issue with the screening threshold used in Hilltop Group’s
technical studies and points to public commentary in the record that
questions the validity of the analytical methods used in the studies.
Hilltop Group acknowledges that the CAP was previously set aside but
argues that the NCER Project’s emissions were appropriately measured
against a screening threshold established by the CAPCOA. Because the
project’s GHG emissions were projected to be below this threshold, Hilltop
Group contends the record does not demonstrate significant environmental
effects. Further, Hilltop Group disagrees with the factual bases of public
commentary calling into question their technical analyses of the project’s
GHG emissions and air quality, but regardless, they contend that these
comments were submitted by lay persons without the requisite expertise to
challenge the technical studies.
Hilltop Group’s technical studies, and the County’s own specialists who
analyzed the studies, concluded the NCER Project would not result in
significant impacts in the areas of GHG emissions and air quality. By
contrast, public commenters, who did not lay foundation for their expertise in
these areas, opined that the GHG emission studies were inadequate and that
the specialists relied upon mitigation measures no longer in effect. We
recognize that we may not reweigh the evidence on appeal to determine
whether the Board of Supervisors could have reached a contrary outcome
(Gentry, supra, 36 Cal.App.4th at pp. 1399-1400), but the parties have simply
not pointed to substantial evidence in the record, by those qualified to provide
such evidence, that the NCER Project poses peculiar impacts as defined by
Guidelines section 15183, subdivisions (b)(1) and (f), in the areas of GHG
emissions and air quality. As we have now repeatedly explained, lay opinions
may not constitute substantial evidence in an area that requires expert

46
analysis, as is the case with an air quality analysis. (Newtown Preservation
Society, supra, 65 Cal.App.5th at p. 789.) The Board of Supervisors’ broad
statement that uniform policies will not substantially mitigate the effects of
the NCER Project in the areas of GHG emissions and air quality does not
bridge the analytic gap between this finding and the scientific data and
County reports that conclude the opposite. Nor does the County cite to
authority suggesting that there are no uniform polices or procedures that
would appropriately mitigate the NCER Project’s projected GHG emissions
after the rescission of the CAP in 2018. Thus, we cannot conclude, based on
the record before us, that substantial evidence supports the Board of
Supervisors’ determination that previously adopted uniform policies and
procedures will not adequately mitigate the NCER Project’s environmental
impacts in the areas of air quality and GHG emissions.
IV. Conclusion
In summary, we conclude Guidelines section 15183 is applicable to the
NCER Project because it is consistent with the GPU for which a program EIR
was certified. The Board of Supervisors did not proceed in a manner required
by law when they denied the exemption and failed to limit further
environmental review to those effects enumerated in Guidelines section
15183, subdivision (b)(1) through (4). The Board of Supervisors’ findings of
peculiar environmental effects—effects that will not be mitigated by
previously adopted uniform policies and procedures—in the areas of
aesthetics, noise, traffic, air quality, and GHG emissions, is not supported by
substantial evidence in the record. Accordingly, we conclude the Board of
Supervisors’ decision denying the CEQA exemption and requiring the
preparation of an EIR constituted a prejudicial abuse of discretion.

47
 We also find no merit to the County’s argument that Hilltop Group
cannot demonstrate prejudice because the NCER Project application was not
denied, but merely subjected to further environmental review. The County
cites to no authority that would support such an interpretation of the term
“prejudice,” and under their interpretation Hilltop Group could be subject to
an indefinite review process without judicial recourse so long as the project
application is not formally denied. For the purposes of CEQA compliance, a
“prejudicial” abuse of discretion “is established if the agency has not
proceeded in a manner required by law or if the determination or decision is
not supported by substantial evidence.” (§ 21168.5.) Such a prejudicial abuse
of discretion has been demonstrated here.
DISPOSITION
The trial court’s judgment is reversed. The trial court is directed to
enter a new judgment granting the petition and issuing a peremptory writ of
mandate directing the County to set aside its decision granting the
administrative appeals and requiring the preparation of an EIR. Hilltop
Group shall recover its costs on appeal.

O’ROURKE, J.

WE CONCUR:

MCCONNELL, P. J.

IRION, J.

48