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CEQA Updates

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

Posts from March, 2018


Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

Wednesday, March 28th, 2018

The Covina Metrolink station a short distance from the project site

In Covina Residents for Responsible Development v. City of Covina, 2018 Cal. App. 5th 712, the Second District Court of Appeal determined the judicial history and development of Public Resources Code section 21099 settles the apparent conflict between San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 and Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, and clarified what constitutes adequate environmental review and project parking allocation under CEQA.

In 2012, project applicants submitted a proposal to the City of Covina for the construction of a mixed-used urban residential infill project near the Covina Metrolink commuter rail station. The project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site by appellants, Covina Residents for Responsible Development (CRRD). Post-project approval, CRRD sued the City for approving the project without preparing an EIR, for tiering the MND from a General Plan EIR, and for violating the Subdivision Map Act by failing to make the necessary findings for approval of the project. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence to support CRRD’s claim the parking shortage would result in environmental impacts; (b) any parking impacts from the project were exempt from environmental review under section 21099; (c) the City properly tiered its environmental review from the General Plan EIR; and (d) the City did not violate the Subdivision Map Act. The Second Circuit affirmed the trial court.

The Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court examined the scope and purpose of section 21099 by analyzing San Franciscans and Taxpayers; in which opposing outcomes were found where it was alleged that projects’ parking-related “secondary impacts” could cause an environmental effect. The Court found the cases, while facially appearing diametric in conclusion, are consistent with each other and section 21099 by contextualizing not only the effect on parking a project has by virtue of its physical scope, but by the area in which a project is planned. In Taxpayers, the Court considered a suburban project and found the “secondary impacts” of the parking shortage significantly affected the narrow, canyon road environment. In San Franciscans, the Court considered an urban project and found the “secondary impacts” of the parking shortage, close to numerous public transit options, did not significantly affect the environment.

The Second Circuit clarified that, while secondary parking impacts caused by ensuing traffic congestion must be addressed, parking shortfalls relative to demand are not considered significant environmental impacts in urban contexts. In order to challenge a project’s allegedly inadequate parking provisions, petitioners must do so by submitting evidence of resultant secondary environmental impacts to the surrounding area—not by simply raising concerns that the project would result in a lack of parking spaces nearby. The Court concluded CRRD failed to make such a showing. The Court also found, when the secondary effects of parking do not impact environmental quality of the area of the project, parking shortage claims are exempt from CEQA under section 21099.

The Court also dismissed the allegation the General Plan EIR was inconsistent with the Subdivision Map Act. The Court held the City’s parking analysis did not “cherry-pick” certain circulation elements of the General Plan while ignoring others, the project was consistent with the City’s General Plan traffic provisions encouraging biking and pedestrian use. As a “higher density, mixed-use residential, transit-oriented project, the project inherently encourages alternative travel modes”, and in reviewing changes to the subdivision map, the City was right to find the project’s inherent promotion of walking and bicycling was sufficient to comport with the General Plan’s goal of offering a balanced circulation system offering multiple travel options.

Key Point:

Public Resources Code section 21099 subdivision (d)(1) exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting. Practitioners seeking to apply the Taxpayer standard in non-urban areas must take the project’s surroundings into account and make a showing that the project’s parking impacts would constitute a significant secondary environmental impact and may not simply assert concerns that the project would result in a lack of parking spaces.

Additionally, practitioners seeking to challenge the adequacy of a project’s environmental review via inconsistency between a tiered MND from a General Plan EIR and the Subdivision Map Act should take care to recognize the inherent impacts of the project. For example, if a high density transit-oriented residential project is built as infill near a Metrolink station, it likely will be found by a court to constitute a project with encourages alternative travel modes (even if its environmental documents do not explicitly state as such!).

First District Court of Appeal Finds Project Description, Downstream GHG Emissions Analysis, and Existing Train Hazards Analysis Sufficient, Upholds Oil Recovery Project RFEIR

Tuesday, March 20th, 2018

An oil refinery against the evening sky (Michael Mep)

In Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal. App. 5th 214, the First District Court of Appeal held the project description, greenhouse gas (GHG) emissions analysis, and hazard impacts for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) was correct to approve the project in these areas. Despite this, the trial Court writ of mandate setting aside the project remained intact until certain air quality analyses were complete, issues not addressed by the Court here.

Phillips 66 Company (Phillips) applied for a permit to upgrade the facility and operations at an existing oil refinery propane recovery project. Specifically, the project would add and modify existing facilities to enable Phillips to recover butane and propane from its refinery and ship it by rail. After completing draft circulation and public comment periods, the County approved a recirculated final EIR (RFEIR).

Rodeo Citizens Association (Petitioners) challenged the approval on the grounds the project description was inaccurate, the analysis of cumulative impacts, air quality and GHG impacts were insufficient, and the RFEIR overlooked the increased risk of accidents from train derailments or explosions from project completion.

Plaintiffs allege approval was improper under the standard articulated in San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, because the project description was not “accurate, stable, and finite” where Phillips executives had made public comments about future projects whose impacts would run seemingly contrary to the EIR. The Court held even if a project applicant’s statements indicate an anticipated or potential future change to a site, petitioners must also present evidence showing a connection between the project and any intended change. None of the statements established the future projects were dependent on a change or intended change in the proposed project.

Accordingly, the Opinion deferred to the lead agency’s description of the project, distinguished the facts of the case from those of Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, and concluded that petitioners failed to provide evidence that the lead agency’s approval of the project inappropriately approved any potential future changes not included in the project description. Therefore so long as the description was not “inadequate or misleading” it was sufficient.

Next, the Court found the GHG considerations detailed in the RFEIR were “reasonable” under the circumstances; environmental review documents may find a project’s contribution to GHG emissions will be less than cumulatively considerable if there is sufficient showing the project is part of the state’s solution to climate change. While Petitioners claimed the EIR failed to consider GHG emissions resulting from the combustion of project-captured propane and butane sold to downstream users, such a claim misconstrued the situation. Phillips considered downstream users in the RFEIR but was unable to definitively pinpoint the buyers’ uses. Indeed, the Court highlighted, propane and butane are low-GHG emitting gasolines mostly used in place of high-GHG emitting gasolines therefore saving in overall GHG emissions. An agency’s inability to quantify all down-stream emissions from project-related activities does not compel the agency to conclude that the project creates a significant and detrimental contribution to GHG impacts. Any possible negative environmental impacts were too speculative for evaluation; investigating these possibilities were beyond County and applicant control.

Finally, the Court looked to Petitioners’ allegations that the RFEIR overlooked the increased risk of accidents from train derailments or explosions as a result of the project. In the RFEIR Phillips properly addressed significance of the project’s impacts without reference to existing risks posed by operation of the refinery, reasonably determined that the potential impacts were less than significant, and underscored that comparative worst case scenario analyses may reasonably consider only those impacts that have moderate or high consequence of occurrence.

Key Point:

Project descriptions are sufficient where not misleading or inaccurate. Greenhouse gas emission considerations under CEQA may be sufficient where the project emissions are downstream and evidence supports the project aligns with statewide solutions to climate change.

Sixth District Court of Appeal Upholds CEQA Exception to Small Facility—Utility Extension Exemption Absent Petitioner’s Burden of Evidence for Additional Installations on Existing Rural Utility Poles

Friday, March 9th, 2018

A distributed antenna system for mobile data communications is secured to a tower. (CBS)

In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal. App. 5th 1039, the Sixth District Court of Appeal affirmed the denial of Aptos Residents Association’s (ARA) writ of mandate. The Court found that ARA’s CEQA contentions lacked merit as the County of Santa Cruz (County) acted properly in reviewing a series of CEQA-exempt utility pole installations individually and as an aggregate project.

Real party Crown Castle Inc. (Crown) proposed installation of multiple microcell DAS systems in rural county areas. Microcell DAS systems are two-foot by one-foot antennas attached to existing utility poles operated by a single wireless carrier. Crown submitted each microcell system proposal in a separate permit though presented, and the County considered the installations as a singular project. The County approved the project, finding it exempt from CEQA for being a categorically exempt “small facility,” which specifically includes utility extensions.

The project was challenged by ARA, who contended Crown’s project was not exempt from CEQA because the County improperly segmented the project while reviewing it, and because it fell within certain exceptions to the exemption based on its location, cumulative impact, and unusual circumstances. The trial court disagreed with these claims and upheld the County’s project approval. ARA appealed to the Sixth District Court of Appeal with the same claims and one additional argument: because the area was zoned residential agricultural, it was a mapped designation for environmental protection.

The Appellate Court first stated the County properly found the project to be categorically exempt from CEQA review, and thus no environmental review was required. Projects that pertain to the construction of limited small facilities or structures; as well as the installation of small equipment and facilities in small structures including electrical, gas, and utility extensions are exempt from CEQA review. The Court, relying on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, found that the classification was correct, because the DAS microcell project constituted the installation of small new pieces of equipment on numerous existing small structures in scattered locations, and did not rise to a level of significance which warranted environmental review, both in the aggregate and separately.

The Court then found ARA’s improper segmenting claim lacked merit. ARA appealed that the County improperly considered the project as individual units because Crown filed separate permit applications for the individual microcell units and the County issued separate permits and exemptions for the each. Actions by the County’s planner, Zoning Administrator, Planning Commission, and Board all considered the entire group of microcell units to be one project—not individual projects. The Court summarily denied the assertion, stating: “[t]he nature of the paperwork required for approval of the project is immaterial,” actions by the County show where was no segmentation issue.

The Court also denied ARA’s claim that the project would form a cumulative impact exception. Allegations that other cell carriers would mirror DAS microcell project’s approval with the County, thus increasing the visual impact, were held to be baseless and speculative. The Northern California Joint Pole Association controlled access to the utility poles; access was only available if all of those using the pole agreed and the pole would not be overloaded by additional equipment. In dismissing the claim, the Court found circumstances suggesting the possibility of another project installation on the same poles was remote.

The Court then found there was no location exception to the CEQA exemption, and that the County did not abuse its discretion by not finding the poles were in certain protected areas. The location exception is restricted to projects that “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” The ARA presented no evidence the contested area, or any of the specific poles qualified as a such-designated location. The County’s General Plan zoning of the area as rural and agricultural did not automatically qualify it as an environmental resource of hazardous or critical concern area.

Finally, the Court found that the County did not abuse its discretion by failing to find an exception based on unusual circumstances. The Court, relying on Berkeley Hillside (2015) 60 Cal.4th 1086, held ARA did not meet the burden of showing a reasonable possibility the activity would have a significant effect on the environment due to unusual circumstances. ARA produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area, or in areas zoned residential agricultural.

Having dismissed each of ARA’s contentions on appeal, the Court affirmed, concluding the County did not abuse its discretion in finding ARA’s contentions lacked merit and upheld the CEQA exemption.

Key Point:

When challenging projects designated as small facility CEQA exempt, the burden lies on petitioners to show clear and unrefuted evidence that the classification was improper. When reviewing these determinations, courts will not accept hearsay, speculation of other parties’ interpretations of the classification, or tenuous connections between zoning ordinances and an explicit delineation that an area is subject to an exception to the categorical exemption.