Modification: World Business Academy v. Cal. State Lands Commission

WORLD BUSINESS ACADEMY,

Petitioner and Appellant,

v.

CALIFORNIA STATE LANDS COMMISSION,

Defendant and Respondent;

PACIFIC GAS & ELECTRIC COMPANY,

Real Party in Interest and Respondent.

No. B284300

(Los Angeles County

Super. Ct. No. BS163811)

California Courts of Appeal

Second Appellate District

Division Four

Filed July 10, 2018

ORDER MODIFYING OPINION AND

DENYING REHEARING PETITION

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 13, 2018 be modified as follows:

1. On page 15, in final full paragraph that begins "The party advocating" delete the sentence "Thus, the project moves forward without preparation of an EIR."

The modified paragraph now reads as follows:

The party advocating for the application of the unusual circumstances exception bears the burden of demonstrating that the project falls within the exception. (Fairbank v. City of Mill Valley, supra, 75 Cal.App.4th at p. 1259.) If the agency determines that an exemption applies, and no exception forecloses its application, the project is exempt from CEQA and no further environmental review is required. (Tomlinson, supra, 54 Cal.4th at p. 286.) That is the posture in which this appeal has arisen.

2. The paragraph commencing on page 17 and ending on page 18, before IV. Existing Facilities Exemption has been modified by adding a sentence at the end of the paragraph. It now reads as follows:

This court has no obligation to perfect an inadequate record. To the contrary, the general rule is that "[f]ailure to provide an adequate record concerning an issue challenged on appeal requires that the issue be resolved against the appellants." (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 366 (Eureka).) We exercise our discretion in favor of not applying that general rule here, however, because appellant belatedly lodged the administrative record on April 26, 2018. We have fully reviewed the lengthy record.

3. On page 28, fifth line of first full paragraph delete the word "certainly"

Revised sentence now reads: If a project will have a significant environmental effect, that project necessarily presents unusual circumstances and the party does not need to separately establish that some feature of the project distinguishes it from others in the exempt class.

4. On page 38, the first full paragraph delete the following sentences:

Evidence of an "exponential" impact on surrounding marine life may well support a fair argument that the lease replacement will have a significant environmental effect. Yet appellant does not point to any such evidence in support of its sweeping claim.

Revised paragraph now reads: None of the evidence to which appellant points shows that the lease replacement will change or expand the plant's current marine life impacts beyond the baseline conditions. Indeed, the sole cited evidence regarding endangered species---a public comment regarding the plant's effect on marine life---does not support its assertions regarding endangered species habitats at all.

The Petition for Rehearing is denied.

EPSTEIN, J.

WILLHITE, J.

COLLINS, J.