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SUPREME COURT GRANTS REVIEW OF MEDICAL MARIJUANA PATIENTS, INC. V. CITY OF SAN DIEGO

Wednesday, January 25th, 2017

On January 11, 2017, the California Supreme Court unanimously granted review of the Fourth Appellate District’s published opinion, Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103.

In granting review, the Court identified the following issues:

  1. Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?
  2. Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

The Fourth District held that the enactment and amendment of the zoning ordinance did not have the potential for resulting in “a reasonably foreseeable indirect physical change in the environment,” and was thus not a project. (4 Cal.App.5th 103). More specifically, the court ruled that the impacts alleged by appellants concerning increased travel, cultivation, and development did not create a reasonably foreseeable indirect physical change in the environment because these allegations were too speculative. (4 Cal.App.5th 103, 119-124).

NINTH CIRCUIT REJECTS NEPA CHALLENGES TO LOS ANGELES METRO’S LIGHT RAIL EXTENSION PROJECT

Wednesday, January 18th, 2017

In Japanese Village, LLC v. Federal Transit Administration, 2016 U.S. App. LEXIS 21700, the Ninth Circuit affirmed the district court’s rulings and rejected NEPA challenges to the Los Angeles Metropolitan Transportation Authority’s (“Metro”) approval for a 1.9-mile light rail extension line in downtown Los Angeles. The project was proposed to be funded by the Federal Transit Administration (“FTA”).

The project, intended to meet increased demand for public transit, would connect the light rail Gold Line to the Blue and Expo Lines. In January 2012, Metro and FTA (“Agencies”) issued an EIS for the project. Subsequently, the FTA issued the record of decision (“ROD”) approving federal funding for the project. In January 2013, the plaintiffs sued, challenging the project’s NEPA compliance. The lower court granted summary judgment in favor of the Agencies, except for one claim which required them to analyze tunneling alternatives for the project.

On appeal, the court first declined to take judicial notice of three documents on Metro’s website, including the federal ROD and the mitigation and monitoring and reporting program, because they were already included in the appellate record.

 

Second, applying the “arbitrary and capricious” standard under the Administrative Procedure Act, the court held that the EIS adequately analyzed the project’s impacts. The court found that the analysis of construction-related noise and vibration impacts was adequate, given that the Agencies took a “hard look” at alternatives and addressed the extent to which adverse noise effects could be avoided. However, the court declined to decide whether temporary relocation of residents or businesses to mitigate construction-related noise and vibration impacts was a valid mitigation measure under NEPA.

Similarly, the court found that the EIS satisfied NEPA’s “hard look” requirement with respect to the impacts associated with parking, grade separation, and emergency vehicle access. The court also held that the mitigation measures that incorporated “adaptive management” plans concerning traffic, vibration, and noise impacts satisfied the “hard look” requirement. Further, the court held that the mitigation measures to reduce subsidence, which could result from the tunneling under the Japanese Village, did not impermissibly defer required analysis because an expert study addressing potential subsidence impacts was prepared after the EIS was issued and became part of the administrative record for the ROD.

Third, the court held that the Agencies properly rejected the use of closed-face tunnel boring machine, a method of construction that would help minimize disruption to surface traffic and adjacent land uses, in certain project areas. The Agencies’ decision was based on three technical impediments identified. Giving deference to the Agencies’ technical expertise, the court found the Agencies were not arbitrary or capricious in making that decision.

Finally, the court held that a supplemental EIS was not required after variances to the City of Los Angeles’ construction noise restrictions were sought to undertake utility relocations necessary for the project. The court explained that the EIS had already addressed the noise and light impacts of possible nighttime construction.

THIRD APPELLATE DISTRICT REJECTED CONSTITUTIONAL AND CEQA CHALLENGES TO CASINO/HOTEL RESORT PROJECT

Thursday, January 5th, 2017

In United Auburn Indian Community of the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, the Third Appellate District affirmed the trial court and rejected challenges to Governor Brown’s concurrence in a determination made by the Secretary of the Interior (“Secretary”) concerning the Enterprise Rancheria of Maidu Indians of California’s (“Enterprise Tribe”) request to acquire a site in Yuba County to construct a casino/hotel resort complex on the site.

The Indian Reorganization Act (“IRA”) authorizes the Secretary to acquire land for Indians. The federal Indian Gaming Regulatory Act (“IGRA”) permits gaming on Indian lands taken into trust for the benefit of a tribe after October 17, 1988, if the Secretary determines that it would be in the best interest of the tribe and would not be detrimental to the surrounding community and the governor of the state in which the gaming activity is located concurs in the Secretary’s determination.

After the U.S. Department of the Interior (“Department”) completed its NEPA review concerning the Enterprise Tribe’s site acquisition request, the Assistant Secretary for the Indian Affairs (“Assistant Secretary”) made a determination favorable to the Enterprise Tribe. After Governor Brown concurred in the Assistant Secretary’s determination in August 2012, the plaintiff, which owned the Thunder Valley Resort and Casino located approximately 20 miles from the project site, challenged the validity of the Governor’s concurrence on the ground that it constituted an illegal exercise of legislative power.

The court rejected the plaintiff’s argument that the Governor violated the separation of powers clause in the state Constitution by exercising a legislative power when he concurred in the Secretary’s determination. According to the court, the Governor’s concurrence was an executive act because he simply performed one part of IGRA, a federal program in which the state legislature decided to participate. The court also rejected the plaintiff’s contention that the Governor impermissibly exercised a legislative power by setting land use policy or tax policy through his concurrence in the Secretary’s decision.

Without much discussion, the court also held that the Governor’s concurrence was not a project pursuant to CEQA because the Governor is not a public agency.

Key Point:  

The Governor’s concurrence in a determination made by the Secretary of the Interior under IGRA does not violate the separation of the powers clause in the state Constitution. In addition, the Governor’s concurrence in such determinations does not constitute a project because the Governor is not a public agency under CEQA.

FOURTH APPELLATE DISTRICT REJECTED CEQA CHALLENGES TO CITY OF SAN DIEGO’S MEDICAL MARIJUANA ORDINANCE

Thursday, January 5th, 2017

In Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal. App. 5th 103, the City enacted an ordinance adopting regulations for medical marijuana consumer cooperatives (“cooperatives”) in the City. The ordinance permits cooperatives through a conditional use permit in several zones in the City, including certain commercial and industrial zones. It allows up to four cooperatives in each of the City’s nine City Council districts and requires that cooperatives to be located 1,000 feet from public parks, churches, childcare centers, playgrounds, minor-oriented facilities, residential care facilities, schools, and other cooperatives, and 100 feet from residential zones. The ordinance defines the term “cooperative” to mean “a facility where marijuana is transferred to qualified patients or primary caregivers in accordance with the Compassionate Use Act of 1996 and the Medical Marijuana Program Act.”

After the City Council adopted the ordinance without undertaking review under CEQA, the plaintiff filed a petition for writ of mandate against the City in April 2014.

The court held that the enactment of the ordinance did not constitute a project under CEQA. The court explained that the enactment of a zoning ordinance would not constitute a CEQA project unless it might cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.

The court also held that the ordinance would not result in a reasonably foreseeable indirect physical change in the environment, finding all of the plaintiff’s arguments speculative and unwarranted. First, the plaintiff contended that the ordinance, by restricting the location of cooperatives, would force patients to travel to cooperatives far from their residences, creating traffic and air pollution. Second, the plaintiff argued that patients in the City would undertake their own indoor cultivation of marijuana rather than travel to inconveniently located cooperatives and such indoor cultivation would have harmful environmental impacts, including increased electricity use. Finally, the plaintiff argued that the ordinance might result in new construction activity because the cooperatives established under the ordinance would have to be located somewhere.

Key Point:  

Not all zoning ordinances constitute a project under CEQA. Only a zoning ordinance that may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment constitutes a project under CEQA.

FOURTH APPELLATE DISTRICT UPHELD CITY OF SANDIEGO’S SUBSTANTIAL CONFORMANCE REVIEW DECISION

Thursday, January 5th, 2017

In San Diegans for Open Government v. City of San Diego, 2016 Cal. App. LEXIS 1095, the Fourth Appellate District rejected challenges to the City of San Diego’s approval of modifications to a previously-approved master plan for a high-density, mixed-used business park. Sunroad Enterprises and Sunroad Centrum Partners L.P. (“Sunroad”) proposed the project, located on 242 acres in the Kearny Mesa area of San Diego.

In 1997, the City approved a master plan for the development and certified an EIR. The applicant modified the project in 2000 and 2002, and the City adopted an addendum to the EIR and an MND, respectively. In 2012, Sunroad obtained a permit to begin certain phases of the master plan. In 2013, Sunroad again sought City approval for project modifications through the City process known as substantial conformance review (“SCR”). The modifications included the addition of a podium level pedestrian walkway connecting the deck and pool areas of two residential buildings, the elimination of one level of parking, a reduction in bicycle spaces, and an increase in building height, but did not change the total number of units or stories above ground.

After City staff determined these modifications were consistent with the previously-certified EIR, Addendum, and MND, plaintiffs appealed the staff’s decision to the Planning Commission, and the Planning Commission denied the appeal. Subsequently, plaintiffs attempted to appeal the decision to the City Council, but the City refused to process the appeal. Plaintiffs sued the City, arguing they were entitled to an administrative appeal.

The court rejected plaintiffs’ contention that the SCR decision constituted a determination that the project “is not subject to CEQA,” which may be appealed to the City Council under Public Resources Code section 21151, subdivision (c). The court explained that the SCR decision did nothing to alter the City’s prior determination that the project was subject CEQA. The court also rejected the argument that the project required further environmental review because the SCR decision was discretionary. The court held that the conclusion that an activity is discretionary does not independently require a subsequent EIR, unless other conditions are met. Finally, the court rejected plaintiffs’ argument that staff’s SCR determination was an “environmental determination,” which may be appealed to the City Council under the City’s code.

Key Point:  

When a city staff member makes a determination that modifications to a previously-approved project are consistent with the previously-certified EIR or MND, the lead agency’s elected decisionmaking body is not required to review an appeal of that decision under CEQA.

SUPREME COURT FINDS RESIDENTIAL PROJECT INCONSISTENT WITH THE CITY OF ORANGE’S GENERAL PLAN

Thursday, January 5th, 2017

On December 15, 2016, the Supreme Court filed, Orange Citizens for Parks & Recreation v. Superior Court (2016) __ Cal.App.5th __  (2016 Cal. LEXIS 9595), a unanimous opinion finding a 39-unit residential development project proposed on 50 acres of land in the foothills of the Santa Ana Mountains could not be found consistent with the City’s General Plan.  In 1973, the City’s planning commission adopted a resolution recommending the property’s designation be amended from “Open Space” to “Other Open Space and Low Density (1 acre).”  Later in the same year, the City Council adopted the Orange Park Acre Plan, and in 1977, the City Council amended the General Plan to permit low-density residential development in Orange Park Acres, directing that the Orange Park Acre Plan be revised accordingly.  Despite these legislative actions and subsequent amendments to the City’s General Plan in 1989 and 2010, City staff never made changes to the official land use policy map in the General Plan’s land use element, and as a result the property remained designated as “Open Space” in the General Plan.

When the 39-unit residential project was proposed in 2007, the City believed that a General Plan map amendment would be required; however, the City later changed its position based on the Orange Park Acre Plan, as adopted in 1973, which permitted low-density residential uses on the site. Based on this, in June 2011, the City Council certified an EIR for the residential project and amended the General Plan to reflect the original adoption of the Orange Park Acre Plan and to clarify that low-density residential uses were permitted on the project site.

The Supreme Court held that the project was inconsistent with the City’s General Plan because none of the planning commission resolutions authorizing residential development became integrated into the Orange Park Acre Plan or the General Plan, rejecting the lower court’s finding that the General Plan included “contradictions and ambiguities” requiring deference to the City’s consistency finding. The Court seemed hesitant to give deference to the City partly because it found that no reasonable person could conclude that the property could be developed without a general plan amendment, given that the General Plan required the Orange Park Acre Plan be consistent with the General Plan policies, and that the General Plan map unambiguously designated the Property as open space.

Key Point:

Local agencies should maintain consistency among various land use documents to the maximum extent possible. A local agency should also keep the general plan updated so that reasonable persons can discern the general plan designation and policies applicable to a given piece of property.

: FIRST APPELLATE DISTRICT UPHOLDS ADEQUACY OF THE SUPPLEMENTAL EIR PREPARED FOR THE GOLDEN STATE WARRIORS NEW ARENA

Thursday, January 5th, 2017

In Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal. App. 5th 160, the First Appellate District affirmed the trial court’s ruling that the Office of Community Investment and Infrastructure (OCII) complied fully with CEQA in approving a proposed 488,000-square foot multipurpose event center, which would serve as the Golden State Warriors’ new arena, and a variety of mixed-use structures surrounding the event center including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space.

The litigation proceeded under CEQA’s “environmental leadership development project” procedures, which provide for expedited litigation. Specifically, these procedures state that the litigation, including any appeals, should be resolved within 270 days of certification administrative record. Despite petitioners initially filing the litigation in the wrong venue and other circumstances that delayed the proceeding, the court was nevertheless able to issue its opinion about 270 days from certification of the administrative record.

The Project was proposed in the Mission Bay South Redevelopment Plan (Plan) area of City and County of San Francisco (City). The Plan was approved in late 1998 after certification of a Mission Bay final subsequent environmental impact report (1998 FSEIR), which incorporated information from a prior 1990 FEIR for the Plan area. In approving the Project, OCII prepared a supplemental environmental impact report (SEIR) for the Project, tiered to the 1998 FSEIR.

Petitioners argued that the Project SEIR failed to comply with CEQA because issues that the initial study concluded were insignificant or adequately examined in the 1998 FSEIR, including land use, biological resources, hazardous materials, and recreation impacts, may nevertheless be significant. Petitioners alleged these challenges were subject to the “fair argument” standard of review. The court rejected Petitioners’ argument and held that the “substantial evidence” standard applies. Based on this deferential standard of review, the court rejected each of petitioners’ land use, biological resources, hazardous materials, and recreation impact challenges.

Petitioners also advanced several challenges concerning the transportation analysis. The SEIR demonstrated that the Project presented a number of traffic and congestion concerns. As a result, the Project included a transportation management plan (TMP) and transit service plan (TSP), new or upgraded traffic signals or lane configurations at 20 intersections and construction of six new street segments, as well as expansion or modification of light rail passenger platforms, sidewalks and bicycle lanes.

Petitioners argued that the Project SEIR violated CEQA by including the TSP as part of the project description rather than as a mitigation measure. The court explained that the inclusion of the TSP as part of the Project did not interfere with the identification of the Project’s transportation impacts because the SEIR included analysis both with and without implementation of the TSP, distinguishing this case from Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645. Petitioners also argued that the TSP was inadequate because it may require the diversion of two streetcars from other transit lines in the City and asserted that this diversion may result in significant impacts on the lines from which the cars are diverted. The court rejected this argument as an “entirely speculative environmental impact.” The court also rejected Petitioners’ challenge to a mitigation measure requiring the Warriors to “work with” regional transit providers to provide adequate transit service. The court explained that substantial evidence in the record demonstrated that, through coordination among the regional transit agencies, transit demands in the region could be met. Furthermore, the court rejected petitioners’ demand that the Warriors guarantee transit funding in the event the traditional funding sources fell short. The court acknowledged that the SEIR did not identify specific funding sources, but held that substantial evidence in the record demonstrated that funding sources, such as fair recovery and a countywide sales tax dedication, should be available to address future transit needs.

Next, the court rejected petitioners’ argument that an “ambient plus increment” noise threshold ignores the severity of existing noise levels and is an inadequate noise threshold. The court also rejected petitioners’ claim that the SEIR must include a health-based threshold for noise. The court found that the SEIR adequately disclosed potential health impacts associated with noise and that OCII had the discretion to use an “ambient plus increment” noise threshold. The court noted that the CEQA Guidelines support use of an increment-based threshold. Additionally, the court found that the SEIR took the severity of existing noise levels into account by applying a smaller incremental noise threshold at intersections with noise in excess of 65 dBA.

Petitioners also argued that the wind analysis included in the SEIR was inadequate because it focused on wind impacts at off-site public areas rather than at onsite public areas. Citing Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473, the court held that CEQA does not require an analysis of wind impacts on the Project. Moreover, the court concluded that a discussion of wind at onsite public areas was provided in the SEIR “for informational purposes,” which adequately addressed petitioners’ complaint concerning onsite wind impacts even if it was required.

Turning to the greenhouse gas (GHG) analysis, the court rejected petitioners’ claim that by relying on compliance with the City’s qualitative GHG Strategy the SEIR failed to disclose the magnitude of the Project’s GHG emissions and violated an alleged requirement to quantify a project’s GHG emissions. While the CEQA Guidelines provide that a lead agency “should make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project” (quoting CEQA Guidelines section 15064.4, subd. (b)(1)), the “Guidelines do not compel a numeric estimate of every project’s greenhouse gas emissions.” Citing CEQA Guidelines section 15064.4 and 15183.5, the court explained that a lead agency may rely on a qualitative GHG analysis or performance base standards using an area wide plan. Furthermore, the court reiterated that, in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, the “California Supreme Court expressed approval for a methodology that uses consistency with greenhouse gas reduction plans as a significance criterion for project emissions under CEQA.”

Petitioners’ final challenge to the SEIR concerned the analysis of toxic air contaminants (TAC). Petitioners asserted that it was inappropriate to use a 100 in a million total cancer risk (from area sources) as the significance threshold for project-level TAC risk. Instead, petitioners argued that the SEIR should have used a 10 in a million project-only emission standard. Because substantial evidence supported OCII’s choice of significance threshold, the court upheld the approach used in the SEIR.

Petitioners also raised non-CEQA challenges alleging a zoning violation and that the City improperly issued a place of entertainment permit for the Project. With respect to the zoning claim, although the City’s Planning Department defined the event center as a “retail use” for the purposes of the City’s Planning Code, the court held under OCII’s Plan the bulk of the event center did not constitute a “retail use.” As to the City’s issuance of the place of entertainment permit, the court held that the City did not abuse its discretion in issuing the permit, given its finding that the Project would sufficiently protect the peaceful enjoyment of neighboring properties from the Project’s noise impacts.

Key Point:

Where an EIR is prepared, the substantial evidence standard of review applies to challenges concerning analysis included either in the initial study or the EIR. Furthermore, CEQA does not require absolute certainty regarding funding sources for mitigation measures. Finally, a lead agency may rely on a qualitative GHG analysis or performance base standards using an area wide plan.

SUPREME COURT CLARIFIES THE STANDARD OF REVIEW APPLICABLE TO CHALLENGES OVER SUBSEQUENT CEQA REVIEW FOR PROJECT CHANGES

Thursday, January 5th, 2017

In Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, in an unanimous opinion, the Supreme Court reversed the First Appellate District’s ruling on the grounds that the court applied the wrong standard of review in determining whether a subsequent project constituted a new project for the purposes of CEQA review.

The subsequent project related to a district-wide master facilities improvement plan (“Plan”) previously approved by the San Mateo County Community College District (“District”) based on an MND. The District’s Plan originally proposed nearly $1 billion in new construction and facilities renovations, including renovations of the Building 20 complex (“Complex”) at the College of San Mateo.  The Complex contains a small cast-in-place concrete classroom and lab structure, greenhouse, lath house, garden space, and an interior courtyard.

After the District adopted an MND for the Plan in 2007, the District was unable to obtain funding for the planned renovations of the Complex. Consequently, in 2011 the District modified the Plan by proposing to demolish the complex and replace it with a parking lot.  The District issued an addendum to the MND addressing the modification, and subsequently approved the proposed demolition of the Complex.  The Friends of College of San Mateo Gardens filed suit alleging the District was required to prepare an EIR before approving the Complex demolition project.

Both the trial court and appellate court ruled in favor of Friends of College of San Mateo Gardens. Specifically, the court of appeal held that it was “clear” as a matter of law that the District’s proposed demolition of the Complex was not merely a change to its previously approved project, but a new project altogether.

The Supreme Court disagreed. The Court explained that pursuant to CEQA, a lead agency’s environmental review obligations depend on the effect of the proposed changes on the decisionmaking process, rather than on any abstract characterization of the project as “new” or “old.” Thus, the Court stated that the proper framework for the analysis is to ask “[i]f the original environmental document retains some informational value despite the proposed changes….” The Court held that this inquiry is subject to the substantial evidence standard of review.  The Court emphasized that it “expect[s] occasions when a court finds no substantial evidence to support an agency’s decision to proceed under CEQA’s subsequent review provisions will be rare….”

However, once a lead agency determines to proceed under CEQA’s subsequent review provisions, the next question concerns the type of subsequent document to prepare. In this context, the question is whether there is “substantial evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require major revisions of the previous EIR or negative declaration due to the involvement’ of new or significantly more severe environmental effects.” Applying this test, the Court held that, where the original environmental document was a negative declaration (and not an EIR), the lead agency must prepare a subsequent EIR whenever the changes to the previously approved project may have a significant environmental impact not considered at the time of the previous environmental review.

Finally, the Court rejected the plaintiff’s argument that because the original project was a Plan, CEQA’s provisions relating to programmatic environmental review were applicable. The Court found that the MND for the Plan expressly concluded that it constituted a project-specific analysis and not a phased project or program. Thus, Public Resources Code section 20194 and related provisions concerning “tiered” environmental review had no direct application.

The Court remanded the case for further proceedings consistent with the holding. The Court noted that the issues that would need to be addressed by the appellate court included plaintiff’s claim that CEQA Guidelines sections 15162 through 15164 improperly authorize lead agencies to approve certain proposed project modifications through the use of addenda without public comment, rather than requiring the issuance of a subsequent or supplemental EIR or negative declaration.

Key Point:

The Supreme Court affirmed that an agency’s decision whether a subsequent project can be analyzed under CEQA’s subsequent review provisions is subject to the substantial evidence standard of review. Similarly, the Supreme Court held that agency’s decision as to the type of subsequent environmental review to perform is also subject to the substantial evidence standard of review where original environmental document is an EIR. However, where the original document is a negative declaration or mitigated negative declaration, a subsequent or supplemental EIR is required where there is a fair argument that the project may have a significant environmental impact not considered at the time of the previous environmental review.

THIRD APPELLATE DISTRICT REJECTS CITY’S USE OF ITS GENERAL PLAN’S TRAFFIC MOBILITY POLICY AS A CEQA SIGNIFICANCE THRESHOLD

Thursday, January 5th, 2017

In East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, Plaintiffs alleged the City of Sacramento failed to comply with CEQA on a number of grounds in approving a 328-unit residential development, along with a community recreation center and three parks, on an approximately 49-acre infill development site in East Sacramento (“Project”). The trial court denied the petition and upheld the adequacy of the City’s EIR. The Third Appellate District upheld the trial court ruling and rejected arguments regarding the City’s findings of consistency with its General Plan, as well as challenges to the EIR’s project description and analysis of health risks and methane migration, but reversed the trial court on a single issue related to the traffic significance threshold.

With respect to the traffic analysis, the EIR stated that the significance criteria used to evaluate the project impacts were based on, among other things, the thresholds adopted by the City in its General Plan. The EIR found that the project would not have a significant traffic impact on three intersections that would operate at level of service (LOS) F under cumulative plus project conditions because the General Plan deemed LOS F conditions to be acceptable in the core area of the City in an effort to encourage infill projects. The court held that compliance with a general plan’s traffic mobility policy alone did not establish that the project would not result in significant impacts because the EIR did not explain why increases in traffic were not significant impacts, citing Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099. In reaching its holding, the court seemingly applied the “fair argument” standard of review, ignoring longstanding CEQA precedent for affording deference to an agency’s selection of significance thresholds. The Court rejected a petition for rehearing on grounds that the Court applied the incorrect standard of review.

Next, the court rejected the plaintiff’s argument that the EIR should have analyzed a development agreement associated with the project. The court explained that the EIR must only make reference to the development agreement to alert interested individuals. The court also held that the EIR was not required to analyze the construction of a vehicular tunnel at Alhambra Boulevard, which would provide additional access to the project site, because the City had merely agreed to study its feasibility without approving it.

Finally, the court held that the EIR was not required to analyze the significant health risks to future residents of the project that could potentially result due to the project site’s proximity to a freeway, railroad trucks, and a former landfill, citing California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369. The court provided that what must be analyzed under CEQA is “a project’s potentially significant exacerbating effects on existing environmental hazards – effects that arise because the project brings ‘development and people into the area affected.’”

Key Point:

SB 743 (Steinberg, 2013) initiated a process to change the way that transportation impacts are analyzed under CEQA. Specifically, SB 743 requires the Governor’s Office of Planning and Research (OPR) to amend the CEQA Guidelines to provide an alternative to LOS for evaluating transportation impacts. Some local agencies, such as the City of Sacramento, have adopted policies that advance these objectives by shifting the focus from LOS to other metrics for evaluating traffic impacts in more densely populated areas within their jurisdictions. But, LOS remains the most common and readily understood way of discussing traffic impacts in CEQA documents. This decision is evidence that the transition to other methods of evaluating traffic impacts, although they may advance the State’s smart growth objectives, nevertheless present legal risks until such alternatives, and associated environmental benefits, are more widely understood.

SECOND APPELLATE DISTRICT REJECTS CEQA CHALLENGE TO CHANGES TO A HOSPITAL REDEVELOPMENT PLAN

Tuesday, January 3rd, 2017

In an unpublished opinion, Ventura Realty & Investment Company v. City of San Buenaventura, 2016 Cal. App. Unpub. LEXIS 7486, the Second Appellate District affirmed the trial court’s rulings and upheld the City of San Buenaventura’s (City) approval of changes to a plan to redevelop a 15-acre hospital district (Hospital Plan) proposed by Community Memorial Health System’s (CMH).

In 2010, the City prepared and EIR and approved the Hospital Plan along with a memorandum of understanding (MOU) between CMH and the City. The MOU made the City responsible for the parking structure, but provided CMH with the option to take responsibility for the construction, funding, and maintenance of the parking structure. In 2014, CMH exercised its option, shifting the City’s responsibility for the parking structure to CMH, and proposed to make the structure taller and with more spaces. Using an addendum to the prior EIR, the City approved CMH’s proposed changes to the Hospital Plan that same year.

During the design review for the changes proposed by CMH, the City discovered that the existing general plan designation for the parking structure site was residential. To ensure consistency with the general plan, the City initiated a general plan amendment changing the site designation from residential to commercial and approved the amendment in 2015.

The plaintiff, who wished to obtain spaces in the parking structure for its own commercial project in an adjacent area, filed a petition for writ of mandate, claiming that the City’s approvals violated CEQA. 

First, the court rejected the plaintiff’s argument that the City impermissibly deferred consultations required by Senate Bill (SB) 18, which requires the City to conduct consultation with certain Native American tribes before adoption of a general plan amendment. The court explained that the plaintiff forfeited its SB 18 claim because it had not exhausted its administrative remedies. The court also held that the City’s consultation undertaken after the 2014 approvals, but before the approval of the general plan amendment, would have been permissible even if the plaintiff had exhausted its administrative remedies. According to the court, SB 18 does not impose additional requirements to CEQA.

Second, the court held that the 2014 approvals did not introduce new information requiring a supplemental EIR. The plaintiff argued that the 2014 approvals required a supplemental EIR because an associated ground lease gave CMH discretion to accept or deny requests for parking necessary for nearby development projects, which the plaintiff believed would lead to a parking shortage for future development. The court rejected this argument, because the 2010 MOU discussed CMH’s discretion to take over the parking structure project and no objections were raised. The court also reasoned that the lease set aside 199 spaces as the minimum number of spaces for future developers and that CMH was not authorized to unilaterally reduce the number of such spaces without the City’s consent.

Third, the court held that the general plan amendment did not result in substantial changes to, or new information about, the project. The court also found that the 2014 addendum to the EIR adequately considered the potential for environmental impacts to result from the general plan amendment.

Finally, the court rejected the plaintiff’s contentions that the City violated local and state laws, including the City’s Municipal Code requirements related to parking determinations, the City charter concerning public works contracts, and the Government Code section 53083 relative to economic development subsidies.