Appellate Court Upholds City’s Approval of Large Commercial Project Even with Unknown Impacts on Greenhouse Gas Emissions, Deferred Mitigation, and Rejected Alternative
UPDATE: On August 27, 2012, the Fourth Appellate District Court certified Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849 for full publication.
In a decision certified for partial publication, Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849, the Fourth Appellate District Court upheld the City of Rialto’s (City) approval of a 230,000 square-foot commercial retail center with a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth (Citizens) challenged the City’s certification of the environmental impact report (EIR) and approval of the project alleging violations of the Planning and Zoning Law and the California Environmental Quality Act (CEQA). After reviewing the City’s actions, the appellate court found no prejudicial abuse of discretion and overturned the lower court’s judgment in its entirety.
In the published portion of the opinion, Citizens argued the City violated the Planning and Zoning Law by releasing a notice of public hearing omitting the planning commission’s recommendations, and by approving the development agreement without expressly making a finding that the agreement was consistent with the general and specific plans of the project site. The court agreed with Citizens on both counts. However, due to Citizens’ failure to show prejudice, substantial injury, or probability of a different result, the court concluded the errors were harmless and upheld the City’s actions.
In the unpublished portion of the decision, Citizens alleged that the City had violated CEQA; the court upheld the City’s actions and the EIR on all counts. First, the court found the project description was incomplete because it did not include the development agreement in a listing of “permits and other approvals required to implement the project.” However, the omission did not prevent informed decision-making and therefore the purposes of CEQA were still fulfilled.
Second, the court held the EIR had adequately analyzed the project’s cumulative impacts on both traffic and air quality. The court explained that the traffic analysis complied with CEQA by relying on a summary of projections contained in a prior environmental document. With regard to air quality, the EIR concluded the project would have a significant cumulative impact since the project alone would release emissions beyond the recommended threshold. The court therefore affirmed the City’s decision to analyze the project’s cumulative impacts on air quality based on the project’s emissions alone, as opposed to in relation to other nearby projects.
Third, the court upheld the EIR’s discussion on the project’s cumulative impacts on greenhouse gas emissions and global climate change, as well as its conclusion that the impacts were too speculative to determine. According to CEQA, if an agency conducts a thorough investigation and finds that an impact is too speculative for evaluation, “the agency should note its conclusion and terminate discussion of the impact.” The court found the City had conducted a thorough investigation and researched the methodologies that were available. Given the absence of established guidelines or methodologies with which to measure the project’s individual impact on greenhouse gases, the court held the City did not abuse its discretion in concluding the impacts were too speculative to determine.
Fourth, the court found the EIR’s mitigation measures to reduce biological impacts on potentially occurring “special status” plant and animal species were sufficiently definite and did not constitute improper deferral. The court explained that the mitigation measures incorporated specific performance criteria, such as “formal consultation” with either the U.S. Fish and Wildlife Services or the California Department of Fish and Game, and therefore were not so open-ended as to allow potential impacts on the species to remain significant.
Lastly, the court concluded the City properly rejected the “reduced density alternative.” Pursuant to CEQA, an agency cannot approve a project with significant environmental impacts unless it looks at alternatives, but it can reject an alternative as infeasible if the alternative does not meet the project’s objectives. While the City’s project has significant impacts and is environmentally inferior to the “reduced density alternative,” the court found substantial evidence supporting the City’s infeasibility determination.
Pursuant to Government Code section 65010, a party challenging an agency’s actions based on violations of the Planning and Zoning Law must establish that such errors were prejudicial. The CEQA portion of the decision was not published. The decision addresses a number of reoccurring CEQA issues. If published, the decision would provide important guidance concerning analysis of cumulative impacts, greenhouse gas emissions, alternatives, and deferred mitigation.
Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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