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CEQA Updates

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

Posts from January, 2016


OPR RELEASES A REVISED PROPOSAL ON UPDATES TO THE CEQA GUIDELINES EVALUATING TRANSPORTATION IMPACTS

Tuesday, January 26th, 2016

On January 20, 2016, the Governor’s Office of Planning and Research (“OPR”) released a Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts. This follows a preliminary discussion draft that was released in August 2014. See more on the earlier draft at: http://www.thomaslaw.com/blog/opr-releases-preliminary-draft-changes-ceqa-guidelines-related-sb-743/#sthash.cm0vbAOa.dpuf

SB 743 (Steinberg, 2013), which shifted the focus of the transportation analysis from the reduction of traffic delay to the reduction of greenhouse gas emissions, creation of multimodal networks, and promotion of a mix of land uses, required OPR to undertake this effort to update the CEQA Guidelines.

OPR proposes to add a new section to the CEQA Guidelines – 15064.3 – that will address how to determine the significance of transportation impacts. The proposed Guideline contains three subdivisions:

  • Subdivision (a): Purpose – states that “generally, vehicle miles traveled [VMT] is the most appropriate measure of a project’s potential transportation impacts.” The Guideline notes that lead agencies can also consider effects on transit, non-motorized travel, and safety of all travelers. A project’s effect on automobile delay, however, cannot constitute a significant environmental impact.
  • Subdivision (b): Criteria for Analyzing Transportation Impacts – outlines specific criteria for determining the significance of transportation impacts. This section is further subdivided into: (1) VMT and land use projects, (2) induced travel and transportation projects, (3) qualitative analysis, and (4) methodology. A subsection in the previous draft that focused on traffic safety has been replaced with the subsection on qualitative analysis. The new proposed subsection states: “If existing models or methods are not available to estimate VMT for the particular project being considered, a lead agency may analyze the project’s VMT qualitatively.” Where a lead agency undertakes a qualitative analysis, the subdivision recommends the agency look at factors such as availability of transit, proximity to other destinations, area demographics, etc.
  • Subdivision (c) Applicability – notes that the changes will apply prospectively – two years from adoption date – though agencies can elect to be governed by the new guideline immediately if the agency has updated its procedures to conform to the new Guideline.

A controversial subdivision from the earlier draft of the Guidelines that would have amended Appendix F (Energy Conservation) to provide suggestions of potential mitigation measures and alternatives has been removed.  Instead, OPR has created a non-regulatory technical advisory that can be altered and updated at any time and addresses methodological considerations in more detail. The technical advisory includes recommended significance thresholds (though it notes that for rural areas, it might be best to determine thresholds on case by case basis):

  • For residential projects, exceeding both existing city household VMT per capital minus 15 percent and existing regional household VMT per capita minus 15 percent may indicate a significant transportation impact. For residential development in unincorporated county areas, a project that exceeds 15 percent below VMT per capita in the aggregate of all unincorporated jurisdictions in that county and exceeds 15 percent below regional VMT per capita may indicate a significant transportation impact.
  • For office projects, exceeding a level of 15 percent below existing regional VMT per employee may indicate a significant transportation impact.
  • For retail projects, OPR recommends analyzing whether there is a net increase in total VMT because retail typically redistributes trips rather than creating new ones.

 

  • For transportation projects, OPR recommends creating a project-level threshold that is derived from CARB’s estimate that statewide VMT can increase no more than 4 percent over 2014 levels in order for California to meet the emissions goals set in Execute Order B-30-15.

The proposed changes to Appendix G have been revised as well. The language now specifically excludes level of service when determining whether there will be a conflict with a circulation policy. The new language states: “Conflict with a plan, ordinance or policy addressing the safety or performance of the circulation system, including transit, roadways, bicycle lanes and pedestrian paths (except for automobile level of service).” Additionally, the Appendix G questions concerning unsafe conditions for pedestrians, bicyclists, transit users, motorists or other users of public rights of way has been deleted.

OPR is requesting public review and comment of the Preliminary Discussion Draft. A copy of the Preliminary Discussion Draft is available at:

https://www.opr.ca.gov/docs/Revised_VMT_CEQA_Guidelines_Proposal_January_20_2016.pdf

All comments should be submitted by February 29, 2016 at 5:00 pm to CEQA.Guidelines@ceres.ca.gov.

THIRD DISTRICT PUBLISHES OPINION IN INVASIVE SPECIES EIR CASE

Wednesday, January 6th, 2016

On January 4, 2016, the Third Appellate District published its opinion in North Coast Rivers Alliance v. Kawamura, 2015 Cal. App. LEXIS 1178. In the opinion, the court found a programmatic EIR for a program to deal with the invasive light brown apple moth to be inadequate.  Because of the EIR’s “artificially narrow” project objective to eradicate the pest, its alternatives analysis did not consider a control program and focused solely on eradication methods. For more information on this case, our previous blog post is available at: http://www.thomaslaw.com/blog/third-appellate-district-finds-eir-for-invasive-species-efforts-inadequate/#sthash.g5trXwdO.dpuf

PLACER COUNTY’S HOMEWOOD VILLAGE RESORT EIR COMES UNDER FIRE

Monday, January 4th, 2016

In an unpublished opinion, Cal. Clean Energy Comm. V. County of Placer, 2015 Cal. App. Unpub. LEXIS 9360, the Third Appellate District granted California Clean Energy Committee’s (Clean Energy) petition for writ of mandate challenging the County of Placer’s (County) approval of a proposal to expand an existing ski resort on the West Shore of Lake Tahoe.

Real Party in Interest, Homewood Village Resorts, LLC, proposed improvements to the Homewood Mountain Resort (Project), which would include: the redevelopment of the “North Base” for mixed-use; the “South Base” for residences; and the “Mid-Mountain area” for a lodge and beginner ski area. After a comprehensive Environmental Impact Report (EIR) process, the County Board of Supervisors approved the Project and certified the EIR. The County concluded that the Project’s social and economic “benefits outweigh the Project’s significant and unmitigated adverse impacts,” and “the adverse environmental impacts of the Project that are not fully mitigated are acceptable.” On review, the trial court issued a written ruling concluding the General Plan substantially complied with the statutory mandate to “address” wildfire evacuation routes; the County had broad discretion to determine the appropriate “threshold” for evaluating environmental impacts; and substantial evidence supported the County’s findings.

On appeal, Clean Energy contended that the County’s approval of the Project involved defects in the Placer County General Plan (General Plan) in violation of the Planning and Zoning laws (Gov. Code, § 65000 et seq.), because the General Plan does not “address evacuation routes” for the Project area, a high-risk wildlife area, as required by Government Code, Section 65302. Clean Energy also contended that the County violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) because the EIR for the Project failed to consider: (1) increased wildfire evacuation risks; (2) energy impacts for expanded snowmaking; (3) other energy impacts; (4) world travel impacts; and (5) because the evidence is insufficient to support the findings of infeasibility of carbon offsets and rail packages as climate disruption mitigation measures.

The Court first addressed alleged procedural defects in Clean Energy’s General Plan claims, concluding that Clean Energy’s Subdivision Map Act claim was neither forfeited nor barred by any statute of limitations. The Court then found that even though Clean Energy did not file a direct attack on the General Plan within the specified time period after its approval, Clean Energy had filed a timely lawsuit challenging the Board’s approval of a specific project; there was a nexus between the Project and General Plan to address contentions related to wildfire evacuation routes. Turning to Clean Energy’s substantive claim that the General Plan failed to “address” wildlife evacuation routes as required by Government Code, Section 65302, subdivision (g)(1), the Court applied a deferential standard of review and rejected Clean Energy’s argument. The Court concluded that the County’s General Plan is in substantial compliance with the former Government Code, Section 65302, subdivision (g) requirement to “address evacuation routes” related to “identified fire hazards.”

The Court then turned to Clean Energy’s CEQA claims. Clean Energy argued that the EIR failed to evaluate both components of wildlife evacuation risk – evacuation by residents, workers, and visitors, and the impact of that evacuation on access by emergency entities responding to wildfire. The Court concluded the EIR failed to adequately identify, describe, and analyze the wildfire evacuation risk associated with residents, workers, and visitors fleeing the area and the impact that evacuation will have on emergency response access.   The court explained that the EIR too narrowly focused the public safety discussion on emergency vehicle access, but even then, did so without discussing how emergency responders could share the same inadequate roads with vehicles occupied by residents, workers, and visitors evacuating the area.

Next, the Court rejected Clean Energy’s remaining CEQA claims involving energy impacts, world travel impacts, and climate impacts because Clean Energy failed to establish that any of those arguments are grounds for reversal. Specifically, the Court found that Clean Energy failed to exhaust on its claims related to transportation and equipment energy impacts, renewable energy resources, worldwide tourism impacts, and climate disruption mitigation. The Court rejected Clean Energy’s remaining energy claims and found that the EIR’s treatment of energy impacts complied with CEQA.

The Court reversed the judgment based on Clean Energy’s wildfire evacuation hazard CEQA claim and remanded the matter to the trial court with directions to enter a new judgment granting the petition for writ of mandate.

SECOND APPELLATE DISTRICT UPHOLDS EIR FOR PROPOSED UCLA CONFERENCE CENTER

Monday, January 4th, 2016

In an unpublished opinion, Save Westwood Village v. Regents of the University of California, 2015 Cal. App. Unpub. LEXIS 9281, the Second Appellate District affirmed the trial court’s rulings and rejected several CEQA challenges to the UC Regents’ approval of the Meyer and Renee Luskin Conference and Guest Center on the UCLA campus. As noted by the appellate court, the petitioner’s opening brief could have been rejected due to its failure to provide an adequate statement of facts, its limited and inaccurate citations to the record for most of its factual assertions, and its legal analyses, which was supported by only four citations to legal authority. Despite these inadequacies, the court considered each of petitioner’s four legal argument in turn, finding each to be unpersuasive.

Specifically, the court found that the Regents did not improperly pre-commit to the proposed project when they accepted a $40 million gift from the Luskins. The court found that the Regents’ acceptance of the gift did not preclude the Regents from considering any alternatives or mitigation measures because the gift was conditioned only on the Regents using the donors’ names for the proposed conference center, providing annual reports on the status of the conference center, and using the gift for charitable purposes. Nor did the court find pre-commitment from the Regents’ approval of the project budget prior to the certification of the Final EIR because the Regents approved the project design on the same day they certified the Final EIR and the approval followed lengthy, interactive planning and review process.

The court quickly rejected petitioner’s remaining claims: (1) that there were differing project descriptions regarding the amount of square footage between the EIR and the document authorizing the expenditure of funds; (2) that the project was a legally infeasible alternative because the guest center would be used for “non-academic purposes” 25% of the time; and (3) that the EIR did not consider the impact of lost parking spaces. The court found the record did not support any of these additional claims.

The lawsuit was filed in October 2012; the unfounded and barely articulated challenges entangled the project in CEQA litigation for more than three years.