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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from August, 2014


ALL ABOARD! – High Speed Rail Moves Forward with Bay Area to Central Valley Route After Appellate Court Approval

Friday, August 29th, 2014

In Town of Atherton v. Cal. High-Speed Rail Authority, (2014) Cal. App. LEXIS 670, the Court of Appeal for the Third District upheld the final program environmental impact report (EIR) for the segment of the California High Speed Rail project linking the San Francisco Bay Area to the Central Valley.

In the EIR, the California High Speed Rail Authority (the Authority) identified the Pacheco Pass route, which would direct the train west near Fresno, as the preferred alternative route to the Bay Area.  The Authority also considered the Altamont Pass route, which would turn west closer to Stockton.  Several environmental groups and cities on the San Francisco Peninsula (the Petitioner) challenged the EIR claiming that it violated the California Environmental Quality Act (CEQA) because the EIR did not adequately analyze options for locations to elevate the track along the Peninsula, used a flawed revenue and ridership model, and contained an inadequate range of alternatives.

Despite not raising the issue of preemption with the trial court, the Authority sought to dismiss the case because the Interstate Commerce Commission Termination Act (ICCTA) preempted any CEQA remedy.  The court held that it did not even need to address the “complex, difficult, and controversial subject” of ICCTA preemption because the market participant exception to preemption applied in the case.  Under the market participant exception, because the state is acting as a market participant and building the project, rather than functioning as a regulator, the project is subject to CEQA review.  While it was unusual for the Petitioner to invoke the market participant exception to compel a state agency to comply with state law, the court found no support for the Authority’s assertion that only the public agency could use the doctrine defensively to protect actions it elected to take in the market.    

On the merits of the case, the court first held that the analysis of locations to elevate the track on the Pacheco Pass route was adequate for a program EIR.  A program EIR allows for a tiering process of review where the program EIR provides coverage of general matters, followed by site-specific project-level EIRs that provide a more thorough analysis.  In this case, the court stated that requiring project-level review of different sites for elevating the track would undermine the purpose of tiering and burden the program EIR with details that are more appropriate for a project EIR.

Next, the court held that the revenue and ridership model used in the EIR was adequate.  While experts disagreed on the best model to use, the court stated that disagreement among experts does not make an EIR inadequate and it would be improper for the court to determine the credibility of experts.  As a result, Petitioner failed to satisfy its burden of showing that the model was “clearly inadequate or unsupported” and substantial evidence supported the Authority’s model.

Finally, the court rejected Petitioner’s argument that the Authority needed to include a broader range of alternatives in the EIR.  Petitioner provided several additional alternatives through a European consulting firm, but the court stated that the Authority was not required to consider alternatives that were substantially similar to the alternatives already analyzed in the EIR.  Further, the Authority’s feasibility determination was entitled to significant deference by courts.  Each of Petitioner’s alternatives was either redundant or infeasible and as a result, the court held that the Authority considered an adequate range of alternatives in EIR.

KEY POINT

The market participant doctrine is not just a doctrine for public entities to invoke defensively to refute preemption claims.  As in this case, it can be used by private parties to force public entities to comply with state law.

Additionally, the court reinforced that the purpose of a program EIR is to provide decision-makers with an overview of the cumulative impacts of a project and allow for consideration of broad policy alternatives and program-wide mitigation measures early in the review process.  It is inefficient and counterproductive to include more specific, project-level analysis in a program EIR when a tiered review process is being utilized.

Appellate Court Rejects Challenges to Redevelopment Project in San Francisco Neighborhood

Friday, August 29th, 2014

In a partially published opinion in San Francisco Tomorrow v. City and County of San Francisco, 2014 Cal. App. LEXIS 735, the Court of Appeal for the First Appellate District upheld denial of a petition for a writ of mandate seeking to overturn approval of a 152-acre redevelopment project near Lake Merced in southwest San Francisco.

The Parkmerced Project involves major modifications to an existing 3,221-unit residential and rental complex containing a mix of 13-story towers and 2-story townhouses. The long-term, mixed-use redevelopment project would demolish the townhouses and add 5,679 residential units over a period of 20 to 30 years. San Francisco Tomorrow and Parkmerced Action Coalition (Petitioners) opposed the project and sought to reverse the trial court’s denial of their petition.

Petitioners first challenged the San Francisco General Plan itself, arguing it did not include adequate standards for population density and building intensity as required by Government Code section 65302. The court emphasized that adoption of a general plan is a legislative act entitled to deference. The court further noted that under section 65302, the City was only required to include recommended densities, rather than inflexible limits as Petitioners contended. The General Plan’s Housing Element included multiple maps, tables, and an index that together provided the required population density information. Similarly, the Urban Design Element incorporated a map with maximum dimensions and heights of buildings in different parts of the city, including the Parkmerced area. The court concluded that a reasonable person could use these elements to determine the population density and building intensity impacts of the project.     

Second, Petitioners claimed that their due process rights as Parkmerced tenants were violated because the project was approved without adequate notice. However, only adjudicative decisions are subject to due process considerations, and the court found the project involved only legislative decisions not subject to due process. Petitioners argued that the development agreement approved as part of the project was an entitlement and thus not a law of general applicability, despite its characterization in statute as a legislative action. The court rejected this “novel” argument. The approval was indisputably a legislative act and no due process rights were attached to the action.

Finally, the court rejected Petitioners’ claim that the trial court erred by including transcripts of hearings in the administrative record that were not considered by the Board of Supervisors prior to certification of the EIR. The transcripts were from advisory committee hearings held prior to the Board’s decision and the transcripts were readily available to decision-makers. Accordingly, the court held the transcripts were properly part of the record.   

The court declined to publish portions of the opinion challenging compliance with the California Environmental Quality Act and consistency with “priority policies” in the General Plan.

KEY POINT

The court distinguished a decision from the Fifth Appellate District, which considered whether an agency was required to include transcripts of hearings in the record.  In Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, the court found that the agency was not compelled to produce transcripts for the record where the agency had not prepared them for several hearings and therefore could not produce such documents. Here, the transcripts were readily available and thus properly included in the record.

OPR Releases a Preliminary Draft of Changes to the CEQA Guidelines Related to SB 743

Monday, August 18th, 2014

On August 6, 2014, the Governor’s Office of Planning and Research (“OPR”) released a Notice of Availability of a Preliminary Discussion Draft of Changes to the California Environmental Quality Act (“CEQA”) Guidelines Related to SB 743 (Steinberg, 2013; “Preliminary Discussion Draft”). These updates are geared towards the evaluation of transportation impacts under CEQA.

Traffic studies used in CEQA documents have historically focused on the impact of projects on traffic flows. By focusing solely on delay, environmental studies have typically required projects to build bigger roads and intersections to mitigate for traffic impacts. However, under the current practice, potential impacts generated by congestion relief mitigation measures are typically not considered as part of the CEQA compliance process for a project.

To bridge the perceived gap in transportation analysis, SB 743 requires OPR to amend the CEQA Guidelines (Title 14 of the California Code of Regulations) to provide an alternative to the level of service methodology for evaluating transportation impacts. Under SB 743, the focus of transportation analysis will shift from the reduction of driver delay to the reduction of greenhouse gas emissions, creation of multimodal networks and promotion of a mix of land uses.

The Preliminary Discussion Draft reflects the information and research contained in OPR’s Preliminary Evaluation of Alternative Methods of Transportation Analysis (December 2013), as well as comments received on that evaluation. OPR proposes to add a new section 15064.3 to the CEQA Guidelines to provide new methods of measuring transportation impacts. The proposed new section 15064.3 contains several subdivisions:

  • Subdivision (a): Purpose – Setting forth the purpose of section 15064.3 and outlining items to consider (such as project effects on the amount and distance of automobile travel, project effects on transit and non-motorized travel, etc.) when analyzing a project’s potential environmental impacts related to transportation.
  • Subdivision (b): Criteria for Analyzing Transportation Impacts – Outlining specific criteria for determining the significance of transportation impacts. This section is further subdivided into: (1) vehicle miles traveled (“VMT”) and land use projects, (2) induced travel and transportation projects, (3) safety, and (4) methodology.
  • Subdivision (c): Mitigation and Alternatives – Identifying several potential mitigation measures and alternatives and including a cross reference to Appendix F. Subdivision (c) also explicitly provides that the section does not limit any public agency’s ability to condition a project pursuant to other laws.
  • Subdivision (d) Applicability – Outlining a phased approach of section 15064.3 implementation to allow lead agencies time to familiarize themselves with the new procedures of the section.

    The most significant change that OPR proposes is to amend CEQA Guidelines, Appendix F by providing suggestions of potential mitigation measures and alternatives that might reduce a project’s VMT.  New VMT Mitigation Measures include: (a) improving or increasing access to transit; (b) increasing access to common goods and services, such as groceries, schools, and daycare; (c) incorporating affordable housing into the project; (d) improving the jobs/housing fit of a community; and (e) incorporating neighborhood electric vehicle network. The Appendix F revisions also address the potential evaluation of a project alternative that relocates a project to an area of the region exhibiting below average VMT.

    In developing the Preliminary Discussion Draft, OPR consulted with a wide variety of affected stakeholders, including local governments, metropolitan planning organizations, state agencies, developers, transportation planners and engineers, environmental organizations, transportation advocates, academics, and others. OPR now seeks public review and comment of the Preliminary Discussion Draft.

    A copy of the Preliminary Discussion Draft is available at:

    http://opr.ca.gov/docs/Final_Preliminary_Discussion_Draft_of_Updates_Implementing_SB_743_080614.pdf

    All comments should be submitted by October 10, 2014 to CEQA.Guidelines@ceres.ca.gov.

Supreme Court Holds that Voter Initiatives with Potential Environmental Impacts Need Not Comply with CEQA Mandates

Friday, August 8th, 2014

In Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County, (August 7, 2014, S207173) __ Cal.4th __, the Supreme Court reversed the appellate court’s issuance of a writ of mandate challenging the City of Sonora’s approval of an ordinance for the expansion of a big box store (Project) without first conducting complete environmental review under the California Environmental Quality Act  (CEQA).

In an effort to streamline approval for construction and operation of the Project, an initiative petition proposed the adoption of a specific plan for the contemplated improvements. The petition was ultimately signed by over 20 percent of the City’s registered voters. The City Council ordered that a section 9212 report be prepared in compliance with the Elections Code to examine the initiative’s consistency with previous planning commission approvals for the Project. After weighing its options, the City adopted the ordinance. Tuolumne Jobs & Small Business Alliance (TJSBA) opposed the ordinance and sought a writ of mandate.

The Court’s analysis focused on the interpretation of Elections Code requirements. When presented with a voter initiative, a city council must do one of three things: (1) adopt the initiative without alteration; (2) submit it to a special election; or (3) order an abbreviated report on the initiative. It has been well established that the provisions of CEQA do not apply to land use initiatives proposed by voters and adopted at an election. This case clarified whether a legislative body must obtain full CEQA review before it may directly adopt a voter initiative.

The Court first analyzed the statutory language of the Elections Code. Specifically, the Court found that if local agencies were required to undertake CEQA review before the adoption of initiatives, it would essentially nullify streamlined direct initiative adoption. The only other option would be to order a report exploring potential impacts of the initiative. Considering the time necessary for agencies to complete CEQA review (a process taking months), the Court found that it would be impossible for a city to complete CEQA review within 10 days before adopting a voter initiative, as required by the Elections Code. Moreover, the Court held that if a city undertook full CEQA review of a voter initiative, the more cursory review available under the Elections Code would be duplicative and unnecessary. The Court also found no evidence that the Legislature intended CEQA to supersede direct initiative adoption procedures. Because the timelines for initiatives and CEQA review are fundamentally incompatible, a requirement of CEQA review before direct adoption would limit local governments to submitting most initiatives to election.

Next, the Court turned to the Legislative Intent behind the Elections Code. The Court indicated it was telling that no law extending CEQA to initiatives has been enacted in over 25 years. Citing DeVita v. County of Napa, (1995) 9 Cal.4th 763, 795, the Court indicated that by not enacting legislation that would subject initiative measures to environmental review, the Legislature has made an attempt to balance the initiative right of the people, with the goal of informing voters and local officials about the consequences of an initiative’s enactment. Thus, local agencies are able to conduct abbreviated environmental review to act promptly on an initiative.

Finally, the Court reviewed whether direct adoption of a voter initiative without fulfilling CEQA mandates is against public policy. The Court found that by amending the constitution, voters intended to empower their government to enact a qualified initiative immediately, without the need for an election and its associated delay and cost. Furthermore, the Court indicated that the Elections Code does not play favorites; the possibility that interested parties may use initiatives to advance their own interests is part of the democratic process. Voters have statutory remedies available through the referendum process if direct adoption of an initiative results in the enactment of an undesirable law.

KEY POINT

The Court established that “CEQA review is contrary to the statutory language and legislative history pertaining to voter initiatives.” Accordingly, voter backed initiatives for proposed projects may be considered an effective option for CEQA streamlining. However, as the Court noted, because the initiative process is neutral, it may also be used as a tool by project opponents to thwart development.

Appellate Court Upholds Trial Court’s Jurisdiction to Discharge Writ for Huntington Beach Senior Center

Tuesday, August 5th, 2014

In an unpublished decision, Parks Legal Defense Fund v. City of Huntington Beach, (2014) Cal. App. Unpub. LEXIS 5050, the Fourth District Court of Appeal upheld the trial court’s jurisdiction to discharge a writ of mandate, but reversed and remanded the trial court’s determination that the subsequent environmental impact report complied with the California Environmental Quality Act (CEQA), finding this determination outside the limited scope of the writ.

In 2008, Parks Legal Defense Fund (Parks) filed a petition for a writ of mandate challenging the City of Huntington Beach’s certification of an environmental impact report (EIR) for a senior center in a city park.  The trial court issued a writ ordering the City to vacate its approvals and prepare a subsequent EIR to address the suitability of alternative off-site locations and requiring the City to a file a return to the writ.  The appellate court affirmed the trial court’s decision in December 2010, finding that the EIR had multiple flaws.

A second appeal addressing attorney fees was dismissed in April 2011, following the stipulation of the parties in furtherance of a settlement agreement.  Once the trial court vacated the fee award pursuant to the settlement agreement, the City requested that the court close the case.  The trial court declined to relinquish its jurisdiction until the City complied with the appellate court’s decision requiring the City to set aside certification of the EIR and issuance of project approvals. Once the City took the necessary action, the trial court held another status conference in July 2011, during which the court deemed the matter in compliance with the appellate court’s orders and stated that it would take no further action.

In May 2012, Parks filed a new lawsuit; however, the City continued to pursue the original litigation and filed its return to the writ in February of 2013, along with a motion to discharge the writ.  Parks opposed the motion, arguing that the original proceeding was over and the trial court had no further jurisdiction over the matter.  The trial court determined that it had jurisdiction and granted the motion, and also held that the subsequent EIR prepared by the City was in compliance with CEQA in all respects.

On appeal, the court rejected Parks’ claim that the trial court did not have jurisdiction to discharge the charge.  Under Public Resources Code section 21168.9, subdivision (b), the trial court retains jurisdiction over the proceedings until it deems that the public agency has complied with the writ.  While the City had prepared a subsequent EIR and set aside certification of the original EIR, at no point in the case’s procedural history prior to February, 2013 did the City file a return to the writ.  Nor did the trial court dismiss the case.

The appellate court held, however, that the trial court acted outside the scope of its jurisdiction when it issued an order stating that the subsequent EIR complied with CEQA in all respects.  The trial court was limited in its review to the matters included in the writ; however, the language in the trial court’s order finding compliance with CEQA in all respects could be interpreted to mean that the City had complied not only with respect to the issues addressed in the original judgment, but also with respect to every conceivable issue arising under CEQA.  The appellate court found this language overbroad and remanded to the trial court to issue a new order that only discharged the writ.

Finally, the court made a point to observe that Parks repeatedly failed to organize its brief in a coherent manner and neglected to properly support its arguments with citations to the record or legal authority.  The court declined to sort out these muddled arguments and treated them as waived.

Court Publishes Portion of a Decision Upholding the Adequacy of a Wind Farm EIR

Tuesday, August 5th, 2014

On July 25, 2014, the Court of Appeal for the Fifth District granted a request to publish a portion of the recent case Citizens Opposing a Dangerous Environment v. County of Kern, 2014 Cal. App. LEXIS 679.  In the decision, the appellate court affirmed Kern County’s approval of a wind farm near a private airport and found that mitigation measures in the environmental impact report (EIR) were legally feasible.

The court published all of the opinion except for parts IV, V, and VI of the Discussion, which addressed the County’s response to late comments on the EIR, the adequacy of the evidence supporting the mitigation measures in the EIR, and the County’s obligation to consider alternatives in addition to the ones already considered in the EIR.

A complete summary of the case (including both the unpublished and published portions) is available here: http://www.thomaslaw.com/blog/court-grounds-lawsuits-challenging-wind-farms-impacts-airport-kern-county/.

KEY POINT

The FAA is the federal agency created to ensure safe and efficient use of the nation’s airspace.   Therefore, a lead agency may properly mitigate potential aviation hazards by requiring a future determination by FAA’s Obstruction Evaluation Service as to whether the proposed project may present an aviation hazard along with a commitment by the lead agency, pursuant to its police power, to prohibit construction until such a no hazard determination is made.

Court Upholds Discussion of Project Objectives and Alternatives in an EIR for an Infill Project in San Diego

Tuesday, August 5th, 2014

In an unpublished decision in Save Our Heritage Organisation v. County of San Diego, (2014) Cal. App. Unpub. LEXIS 5121, the Court of Appeal for the Fourth District reversed the trial court and ordered the trial court to deny a writ of mandate challenging the adequacy of the environmental impact report (EIR) for a mixed-use development in downtown San Diego (project).

The project site contains a parking lot, warehouse, and an office building built in 1911 that the City of San Diego had previously designated as an historical structure.  The first phase of the project included demolition of the warehouse and office building and construction of a parking structure.  In the next phase, San Diego County (the County) would partner with a private developer to build a five-story office and retail building and a 19-story residential building on the remaining portions of the parcel.

While acknowledging the significant unmitigable environmental impacts of the project, the County adopted a statement of overriding considerations and approved the proposed development.  The County balanced four objectives of the project in the EIR, which included maximizing revenue, providing parking, establishing a public-private partnership, and obtaining a LEED certification.

The court first reversed the trial court’s ruling that maximizing revenue was an improper objective under the California Environmental Quality Act (CEQA).  Save Our Heritage Organisation (SOHO) contended that maximizing revenue was too narrow of an objective because it would preclude meaningful analysis of project alternatives.  However, neither CEQA nor the CEQA Guidelines impose limits on the project objectives in an EIR and courts do not have the authority to impose a limitation such as prohibiting a certain project objective in an EIR.  Additionally, maximizing revenue was one of four objectives and not the only factor the County considered.  As a result, the court held that considering maximizing revenue as a project objective did not by itself constitute an abuse of discretion by the County.

Next, the court held that the EIR contained an adequate range of alternatives and that the evidence was sufficient to support the County’s finding that the alternatives were infeasible.  Citing Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, the court stated that the County’s selection of alternatives would be upheld unless they were “manifestly unreasonable.”  In this case, the County considered a no project alternative, an alternative that left the historic structure intact with buildings around it, and an alternative that incorporated the historic structure into one of the buildings.  Emphasizing that under CEQA courts should be highly deferential to an agency’s decision, the court found these alternatives were not manifestly unreasonable.

In looking at whether substantial evidence supported the County’s decision, the court stated that the feasibility of the project alternatives must be evaluated in the context of the project.  An expert analysis of the anticipated revenue from the project expected over 79 million dollars from the proposed project compared to 27 million and 29.6 million for the alternatives.  Based on this evidence, the court held that SOHO had failed to meet its burden of proving there was not substantial evidence to support the County’s decision.

Finally, the court reversed the trial court’s ruling that the County’s responses to three public comment letters were inadequate.  The three public comment letters at issue included modifications of the project alternatives. However, as the court pointed out, CEQA does not require an analysis of every possible alternative. The County explained why each suggestion was infeasible in reference to the alternatives analyzed in the EIR and, as a result, SOHO failed to meets its burden of showing the County’s responses were inadequate.