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You Can’t Abate if You Don’t Correlate: Appellate Court Finds EIR for Proposed Master-Planned Senior-Living Community Included Inadequate Analysis of Air Quality Impacts and Mitigation Measures


In Sierra Club v. County of Fresno, 2014 Cal. App. LEXIS 459, the Court of Appeal for the Fifth Appellate District reversed and remanded the lower court’s denial of a petition for writ of mandate challenging the County’s adoption of a proposed master-planned community.

In February 2011, the County of Fresno certified the Environmental Impact Report (“EIR”)  for the Friant Ranch project, a proposed master-planned community for persons age 55 or older located in north-central Fresno County.  The County concurrently approved a General Plan amendment, updating the Friant Community Plan, and approved  the proposed Friant Ranch Specific Plan.  The County’s approval of the Project would result in the construction of approximately 2,500 residential units and 250,000 square feet of commercial space on 482 acres and the dedication of 460 acres to open space.

Appellant filed a petition for writ of mandate, challenging the County’s approval of the Project and the certification of the final EIR. The appellant alleged that the project was inconsistent with the existing General Plan.

The Fifth Appellate District held that the California Supreme Court’s decision in No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, which addressed the appropriateness of governing bodies’ interpretation of ambiguous general plan policies, supported the County’s general plan amendment. Here, the court held  the General Plan clearly indicated that land use designations are not locked in forever; accordingly, the County did not abuse its discretion in amending the General Plan. Likewise, the County did not abuse its discretion when it interpreted the County’s Ag Use Policy to mean  the County could direct growth to an area where expansion of existing facilities and development of new facilities was required.

Appellant then alleged defects in the CEQA analyses. First, the Appellant contended that the EIR’s discussion of wastewater generated by the proposed treatment plant lacked sufficient information about the amount and location of wastewater application and lacked an adequate discussion of the hydrogeology of the site selected for the proposed treatment plant and storage pond.

The court disagreed, concluding that sufficient detail was provided in the draft EIR, enabling readers to understand how a year’s production of effluent would be handled. Likewise, the draft EIR spoke directly to the existing hydrogeologic conditions of the site. Moreover, the final EIR provided additional information in its response to comments, thereby eliminating any “generality” of the original disclosures in the draft EIR.

Finally, the Appellant alleged defects in the EIR’s air quality impact analysis. Specifically, Appellants alleged that the EIR did not adequately describe the exceedance of the thresholds identified, and that there was no meaningful analysis of the adverse health effects associated with the project’s estimated emissions. Appellants also alleged  the EIR failed to provide sufficient detail rendering an identified mitigation measure amorphous and unenforceable.

Citing Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, the court  found that the EIR was inadequate under CEQA because it did not effectively correlate additional emissions generated by the project to potential adverse human health impacts that could be expected as a result. Specifically, the mere statement “that the significant adverse air quality impacts will have an adverse impact on human health” fails to satisfy CEQA standards by not identifying or quantifying the potential adverse human health impacts.

Turning to the adequacy of the EIR’s air quality mitigation measure, the court found  the EIR was inadequate due to internal inconsistencies with the language of its air quality mitigation measure, which added to the mitigation measure’s inherent “vagueness.” The Court indicated that air quality mitigation was vague on matters essential to enforceability, leaving the reader to speculate who is responsible for carrying out mitigation. Likewise, the mitigation did not include enforceable performance criteria, allowing for an objective determination as to whether mitigation has been completed. Furthermore, the court found that the mitigation measure’s “bare” conclusion that emissions would be “substantially reduced” did not quantify emissions and was thus not supported by facts or analysis.

Key Points:
In preparing air quality and greenhouse gas analyses, Lead Agencies should provide meaningful analysis regarding the link between adverse health impacts and identified air quality impacts. This case also reemphasizes the importance of establishing clear, enforceable mitigation with objective performance standards.



dateJune 3rd, 2014byby


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