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CEQA Updates

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

Posts from April, 2015


No Foolin’ – Community Group Files Lawsuit April 1 Claiming Sacramento General Plan Update Violates CEQA

Monday, April 20th, 2015

On April 1, 2015, Citizens for Positive Growth & Preservation filed a petition for a writ of mandate in Sacramento Superior Court seeking to invalidate the City of Sacramento’s (City) recent adoption of its 2035 General Plan.

After a “major overhaul” of its 1988 General Plan and adoption of the 2030 General Plan in 2009, the City released a draft of its proposed 2035 General Plan and supporting EIR in August 2014. The City scheduled a hearing for March 3, 2015 to consider adopting the 2035 General Plan and issued several supplemental changes to the 2035 General Plan on February 23, 2015. Despite petitioner’s request to recirculate the EIR in light of the changes, the City adopted the 2035 General Plan as scheduled and issued a Notice of Determination.

The 31-page complaint alleges seven causes of action for violations of the California Environmental Quality Act (CEQA) and state and local planning laws.

Petitioner first alleges the EIR is deficient because the EIR fails to properly analyze the impact on traffic and other impacts related to traffic. The EIR measured traffic impacts using Level of Service (LOS), which uses a grade from A to F (with F meaning failing) to measure vehicle delay on roadways. According to petitioner, the EIR defines LOS F as acceptable and LOS F is not an acceptable LOS for any street in the state. Petitioner claims the City should have classified this as a significant impact and proposed mitigation to reduce the impact. Petitioner also contends the increase in traffic delays on roadways will affect cyclists, who are forced to choose between more congested roads or riding on sidewalks, and air quality due to increased vehicle emissions while idling––none of which the EIR analyzed or attempted to mitigate.

Additionally, petitioner contends the supplemental changes revised several portions of the 2030 General Plan and the City failed to consider the impacts of any of these late additions. By failing to analyze the impacts of the 2035 General Plan and its supplemental changes on air quality, greenhouse gas emissions, and cyclists, petitioner argues the EIR violates CEQA because the project description is inadequate. The final portion of the first cause of action claims the EIR is deficient because it failed to consider any alternatives to the 2035 General Plan in a meaningful way.

The second cause of action contends the City violated CEQA by adopting the 2035 General Plan without recirculating the EIR. Petitioner argues the supplemental changes proposed on February 23 constituted “significant new information” that created new environmental impacts and/or increased the severity of the 2035 General Plan’s impacts, requiring revision and recirculation of the EIR under CEQA Guidelines section 15088.5. Petitioner specifically identified several changes as “significant” including: modifying vehicle LOS exception areas, eliminating requirements for mass transit, and eliminating requirements that the City review flood control impacts, among others.

The third cause of action contends the City’s adoption of a Statement of Overriding Considerations was invalid because it does not reflect the actual impacts of the 2035 General Plan as approved. According to petitioner, the impacts of the supplemental changes and oral modifications at the hearing were not considered when the City adopted the Statement of Overriding Considerations and therefore it is invalid.

The fourth cause of action argues the 2035 General Plan is unlawful because the City failed to give meaningful and adequate notice of the 2035 General Plan’s terms to the public.  Petitioner  points to a portion of the 2035 General Plan that purportedly allows the City to approve projects even if the projects are incompatible  General Plan policies. Petitioner contends this deprives the public of a meaningful understanding of the 2035 General Plan because the public has no way to know the nature and extent of development that is approved if the City granted itself the authority to approve projects inconsistent with the General Plan policies.

The fifth cause of action claims the City violated CEQA by failing to evaluate and respond to the public’s comments on the Draft EIR.  This procedural violation alleges the agencies did not get the required 10-day notice prior to the City certifying the Final EIR on March 3.

The sixth cause of action alleges violations of state planning and zoning laws. Petitioner claims the 2035 General Plan conflicts with Government Code section 65300.5, which states “the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency.” Petitioner specifically points to a section of the 2035 General Plan that purports to give the City sole discretion to determine if a project is consistent with the General Plan and allows the City to “use its discretion to balance and harmonize policies with other complementary or countervailing policies.” In addition, petitioner also alleges Figure M-1 in the 2035 General Plan violates the Office of Planning and Research’s Guidelines by failing to clearly delineate the boundaries of the City’s “Core Area” such that the public is not able to determine where failing traffic conditions will be allowed.

Finally, in the seventh cause of action petitioner seeks a judicial declaration as to whether the City has complied with CEQA, the City’s General Plan, and California planning law.

In addition to the declaratory relief sought in the seventh cause of action, petitioner seeks a stay and writ of mandate setting aside the City’s adoption of the 2035 General Plan until the City complies with state and local planning laws.

Judge Rules Against Petitioner’s Lawsuit Challenging EIR for McKinley Village Infill Project

Monday, April 20th, 2015

In an opinion issued April 9, 2015, Sacramento Superior Court Judge Timothy Frawley denied a petition for a writ of mandate challenging the environmental impact report (EIR) for the McKinley Village infill development project in East Sacramento. The court also rejected petitioner’s argument that McKinley Village conflicted with the City of Sacramento’s General Plan. Thomas Law Group successfully represented the developer in defending against the suit.

The McKinley Village project broke ground in summer 2014 on 336 residential units and associated infrastructure. The vacant 49-acre lot is bounded by a freeway to the north and railroad tracks to the south along with a former landfill site beyond the freeway to the north. Following a recommendation by the City’s Planning and Design Commission, the City Council certified the EIR and approved the McKinley Village project. Petitioner “East Sacramento Partnerships for a Livable City” subsequently filed a petition seeking to set aside the City’s approval of the project.

Petitioner first claimed the EIR did not adequately analyze how the project’s proximity to a freeway, railroad tracks, and former landfill site may adversely affect the health and safety of future McKinley Village residents. However, the court held the California Environmental Quality Act (CEQA) only requires a lead agency to analyze the impacts a project will have on the existing environment––as opposed to the affects the environment will have on a project. Therefore, the City could not have violated CEQA by failing to “adequately” analyze the impacts of the existing environmental conditions on the project because CEQA did not require any analysis of those impacts at all.

Next, petitioner contended the City violated CEQA by not recirculating the EIR after making “significant and fundamental” changes to the project. The purported changes compelling recirculation included a third vehicular access at Alhambra Boulevard, a proposal to remove Sutter’s Landing Parkway from the City’s General Plan, a half-street closure at the intersection of 28th and C streets, as well as approvals for a development agreement, a rezoning request to allow multi-family residential uses, and a variance for driveway widths.

The court held neither the proposal to consider another vehicular underpass at Alhambra Boulevard access nor the proposal to remove Sutter’s Landing Parkway from the City’s General Plan were part of the project approved by the City. As the City would have to complete additional environmental review if either proposal moved forward, the City did not have to recirculate the EIR due to these proposals.

With respect to the development agreement and driveway variance, the court agreed with petitioner that they should have been included in the draft EIR as approvals needed to implement the project. However, the City’s failure to include them did not preclude public participation and therefore was not a prejudicial abuse of discretion. Additionally, while the City decided to rezone to allow multi-family dwelling units after circulating the draft EIR, the court held petitioner failed to satisfy its burden of showing this constituted significant new information and the City did not abuse its discretion by not recirculating the EIR.

Similarly, the court held the half-street closure at 28th and C streets did not constitute significant new information. The court agreed with the City that the closure diverted traffic to another street with greater capacity and did not substantially increase the severity of traffic impacts in the EIR.

Petitioner also contended the EIR violated CEQA because it failed to properly identify, analyze and mitigate traffic impacts. However, the court held substantial evidence supported the City’s traffic impact conclusions. Further, the City did not abuse its discretion by using a flexible Level of Service (LOS) metric from the General Plan as the significance threshold to measure the traffic impacts on intersections. Although using the flexible LOS standard allowed otherwise significant levels of traffic congestion to exist without constituting a significant impact, it avoided more detrimental mitigation measures to reduce traffic impacts such as widening lanes and building new roads.

Finally, the court rejected petitioner’s argument that the McKinley Village project was inconsistent with the City’s General Plan. Petitioner listed eighteen General Plan policies that allegedly conflicted with the project; however, the court explained that many of the policies were amorphous and subjective such as “supporting transit service” and “promoting complete neighborhoods.” Accordingly, petitioner’s perceived inconsistencies with these imprecise policies was insufficient to render the project inconsistent with the General Plan as a whole. Where the policies were more discrete in nature such as investigating the site for hazardous materials, the court held adequate evidence supported a finding of consistency.

Only one General Plan policy gave the court pause––a requirement that new neighborhoods include transit stops within a half mile of all dwellings. The court ultimately concluded that given other portions of the General Plan discouraging users from focusing on individual General Plan elements, the City reasonably could have concluded the policy was an advisory policy and strict compliance was not mandatory. Therefore, the court held the City did not abuse its discretion in finding McKinley Village was consistent with the General Plan.

Following the court’s decision, an attorney for the petitioner told the Sacramento Business Journal the petitioner is considering its options including whether to file an appeal.

 

Fourth District Court of Appeal Publishes Case Reducing Attorney Fees Following Limited Success on CEQA Challenge

Wednesday, April 15th, 2015

On April 13, 2015, the California Court of Appeal for the Fourth District granted a request by respondent County of San Bernardino (County) and real party Al-Nur Islamic Center to publish its recent decision in Save Our Uniquely Rural Community Environment v. County of San Bernardino, 2015 Cal. App. LEXIS 307 (Cal. App. 4th Dist. Mar. 18, 2015). In the decision, the appellate court affirmed the trial court’s 80% reduction of requested attorney fees following a challenge under the California Environmental Quality Act to a proposed Islamic community center and mosque (project).

The key issue on appeal involved petitioner’s degree of success at trial and whether the final judgment merited recovery of full attorney fees. Petitioner initially sought to vacate a Mitigated Negative Declaration (MND) and all related project approvals and enjoin further work on the project until the County prepared an Environmental Impact Report.  However, the relief granted by the trial court was limited to setting aside the MND for the sole purpose of analyzing the project’s impact on wastewater treatment. After analyzing the relief petitioner sought compared to the relief petitioner obtained, the court held petitioner failed to satisfy its burden of proving the trial court abused its discretion.

The court also upheld the trial court’s reduction in the number of hours and hourly rate charged by petitioner’s attorney.

A complete summary of the case is available here: http://www.thomaslaw.com/blog/court-substantially-reduces-attorney-fees-following-limited-success-on-ceqa-challenge-to-islamic-center-in-san-bernardino-county/.

Court Rejects CEQA and Subdivision Map Act Challenges to Shopping Center in Redlands

Tuesday, April 14th, 2015

In an unpublished opinion in Redlands Good Neighbor Coalition v. City of Redlands, 2015 Cal. App. Unpub. LEXIS 2210, the Fourth District Court of Appeal affirmed the trial court’s decision and denied petitioner’s challenges under the Subdivision Map Act and the California Environmental Quality Act (CEQA) to the City of Redlands’ (City) approval of a tentative parcel map (TPM 19060) and environmental impact report (EIR) for a Walmart Supercenter and 275,500-square-foot shopping center.

The project site, located on approximately 33 acres of fallowed agriculture land, is designated as commercial in the City’s General Plan, but is also within the East Valley Corridor Specific Plan (EVCSP) area. The EVCSP modifies the General Plan policies to facilitate a “high-quality business park environment” that would be a catalyst for development and jobs in the area. Following a unanimous recommendation by the planning commission, the City adopted resolutions certifying the EIR and approving TPM 19060.

After rejecting the City’s procedural argument that petitioner failed to exhaust its administrative remedies, the court moved to the merits of the Subdivision Map Act claim and held TPM 19060 was sufficiently consistent with the City’s General Plan. The court emphasized that judicial review is highly deferential to the local agency and the project did not have to be in perfect conformity with the general plan. Although the City could have incorporated more “Redlands-themed or historical design elements into the project,” the project was not incompatible with the design and historical preservation policies of the general plan.

Similarly, the court rejected petitioner’s contention that the City’s finding of unavoidable impacts on air quality in the EIR required the City to deny the application for TPM 19060. Under section 66474(e) of the Subdivision Map Act, a finding that a subdivision is likely to cause substantial environmental damage requires a lead agency to deny the tentative map application; however, an exception exists when the lead agency adopts a statement of overriding considerations. The court reasoned that even though the resolution approving TPM 19060 improperly stated TPM 19060 was not likely to cause substantial environmental damage, the City adopted a statement of overriding consideration so the error was not prejudicial.

As to the CEQA claims, petitioner first argued the EIR was deficient because it inadequately analyzed the project’s impacts on aesthetics––specifically, the impact of the contemporary design on the “community character” of Redlands and views of the San Bernardino Mountains. However, the court rejected the arguments because petitioner improperly applied a fair argument standard to the City’s findings. Although the court acknowledged there was evidence to support petitioner’s arguments, this did not mean the EIR inadequately addressed the potential impacts. Because the City’s determination of a significant impact is a factual determination, the substantial evidence standard applies and the court held substantial evidence supported the City’s findings on aesthetic impacts.  Petitioner also claimed the EIR inadequately addressed the inconsistencies between the project and the City’s General Plan.  The court disagreed with this argument as well, finding the EIR adequately discussed the applicable regulatory framework, and that the City’s consistency conclusions were supported by substantial evidence.