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Environmental Impact Reports Posts


EIR Addendum to Previously Certified EIR Proper Where No New Significant Environmental Impacts Identified

Wednesday, October 24th, 2018

An artist’s rendering of the Plaza de Panama, Balboa Park, San Diego, as it would appear at the conclusion of the project. (KCM Group)

In Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, the Fourth District Court of Appeal held CEQA Guidelines section 15164 (Section 15164) validly establishes an addendum process that is consistent with the CEQA statute. Specifically, Section 15164 filled in gaps in Public Resources Code section 21166 and accurately implemented CEQA.

In 2012, the City of San Diego (City) approved the Plaza de Panama Project in Balboa Park (Project) and its accompanying EIR in order to restore pedestrian and park uses to the area. Save Our Heritage Organisation (SOHO) appealed the City’s actions related to this Project multiple times on many grounds, winning some and losing on others.

In 2016, the City adopted an addendum to the project EIR addressing several project modifications. These included: (1) bridge modifications to meet CalTrans requirements; (2) adding and redesigning storm water basins; (3) adding parking lot ventilation; (4) making energy efficiency upgrades; (5) increasing the elevation of the excavated soils landfill; and (6) refining construction design. The most significant aspect was that the modified project would add 93 more parking spaces than in the original Project and EIR.

The City reviewed the modified Project’s potential environmental impacts to land use, historical resources, aesthetics, transportation, air quality, biological resources, energy, geologic conditions, greenhouse gas (GHG) emissions, health and safety, and hazardous materials. The City concluded that there were: (1) no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects; (2) no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the EIR; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the EIR would substantially reduce significant effects. As such, the City approved the modifications with no additional EIR and on the basis of an addendum. SOHO filed suit. The trial court denied the petition. SOHO timely appealed.

Reviewing the agency’s action for abuse of discretion, the Court of Appeal affirmed the trial court’s holding. SOHO’s chief claim was that the addendum process, codified in Section 15164, was an invalid extension of the CEQA statute. Section 15164 provides, in pertinent part, “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guideline] 15162 calling for preparation of a subsequent EIR have occurred. …(c) An addendum need not be circulated for public review but can be included in or attached to the final EIR…. (d) The decision-making body shall consider the addendum with the final EIR… prior to making a decision on the project. (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guideline] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record.  The explanation must be supported by substantial evidence.”  The Resources Agency’s discussion of Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs… without recirculating the EIR” and that “[Section 15164] provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.”

The Court held that, under established case law, Section 15164, like any agency action, carries a presumption of validity and the challenging party has the burden of demonstrating its invalidity. Presented with the challenge, the Court is to consider “whether…[the regulation] is (1) consistent with and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.” This analysis depends on whether the regulation is a quasi-legislative regulation or an interpretive regulation. The Court pointed out that no Supreme Court case has definitively said that the CEQA Guidelines are quasi-legislative or interpretive and declined to say so itself. Instead, the Court held it need not decide the issue in order to resolve the case because SOHO had not met their burden to establish Section 15164 was invalid.

While the Court agreed that CEQA does not expressly authorize the addendum process described in Section 15164, the Court stated that the process “fills a gap” in the CEQA process for projects with a previously certified EIR. Further, “CEQA authorizes the Resources Agency to fill such gaps in the statutory scheme, so long as it does so in a manner consistent with the statute.” The Court held Section 15164 is consistent with and furthers the objectives of CEQA section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review. “The addendum process reasonably implements section 21166’s objective of balancing the consideration of environmental consequences in public decision making with interests of finality and efficiency.” After EIR certification, “the interests of finality are favored over the policy of encouraging public comment.” As such, the EIR addendum regulation was in line with the spirit of CEQA and a natural extension of the statutory scheme.

To this point, the Court noted that the Section 15164 was first promulgated in 1983 and the Legislature has never modified CEQA to eliminate it, strongly indicating consistency with legislative intent.

Lastly, the Court easily dismissed SOHO’s argument that additional findings were required for the City to approve the addendum. Such findings were already made in adopting the original EIR and “an addendum is only proper where no new significant environmental impacts are discovered.” Here, where no new significant environmental impacts were discovered, an addendum was proper and findings were not necessary.

The Court affirmed the trial court judgement finding the EIR addendum valid.

Key Point:

An addendum to a previously certified EIR is proper where there no new significant environmental impacts are discovered.

GHG Guidance Document Containing Threshold of Significance Required to Undergo CEQA Review

Friday, September 28th, 2018

The San Diego skyline is shown on a clear day.

In Golden Door Properties, LLC v. County of San Diego (2018) Cal.App.5th 892, the Fourth District Court of Appeal held San Diego County’s (County) adoption of a guidance document for the evaluation of greenhouse gas (GHG) emissions established a threshold of significance for determining impacts. The County violated CEQA where it adopted the guidance document without first conducting CEQA review, sidestepped required public review and violated the Court’s prior writ.

The County adopted a Climate Action Plan (CAP) in 2012 and related guidelines in 2013. Following successful petitions from the Sierra Club, the County was directed by both the trial court and appellate court to set aside the documents for failing to make required findings and failing to adequately detail deadlines and enforceable measures, amongst other things. In 2016, the County adopted the “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (Guidance Document). Golden Door Properties, LLC and Sierra Club brought suit challenging the adoption.

The trial court consolidated the two suits, granted a writ of mandate and injunction against the County, and entered judgment prohibiting the County from using the Guidance Document. The trial court concluded (1) the claims were ripe; (2) the Guidance Document creates a threshold of significance under CEQA; (3) the Guidance Document violates the County’s general plan mitigation measures; and (4) the Guidance Document is not supported by substantial evidence. The County timely appealed.

The Appellate Court first addressed the ripeness of this action. Ripeness is “primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” However, the Court continued, the issues here are ripe where the Guidance Document provided a generally applicable threshold of significance and there is sufficient public interest in the matter, citing California Building Industry Assn. v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. The ultimate analysis of ripeness, the Court quoted, is “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

The Court then turned to the CEQA arguments. The Court concluded that the Guidance Document is a threshold of significance. CEQA Guidelines section 15064.7 defines a threshold of significance as “an identifiable, quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” The Court found that the Guidance Document provided a “recognized and recommended” efficiency metric for determining significance of GHG emissions, and therefore was a threshold of significance for the purposes of CEQA.

The Court then held that a threshold of significance for general use (as opposed to a project-specific threshold) is subject to CEQA public adoption guidelines, per Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059. The County conceded that the Guidance Document was not formally adopted through a public review process. Thus, the County violated the CEQA requirement that a threshold of significance be adopted “by ordinance, resolution, rule or regulation, and [be] developed through a public review process,” as mandated by CEQA Guidelines section 15064.7.

Further, the Court held, the County failed to provide substantial evidence to support its recommendations in the Guidance Document. Specifically, the County “reli[ed] on statewide data without evidence supporting its relationships to countywide [GHG] reductions.” This approach was legally flawed under the principles set forth in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204. The County failed to address why using the statewide data that did not specifically address the County was appropriate for the County and also failed to account for variations in different types of development.

Finally, the Court held that the County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of CEQA. The County argued that development of a CAP and thresholds of significance were proceeding in compliance with the schedule established in the writ issued after the Court’s prior decision in Sierra Club, and the Guidance Document therefore did not violate that decision.  However, the Court concluded that its earlier decision treated the CAP and thresholds of significance as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds. Considering this, the Court held the County’s 2016 adoption of the Guidance Document was improper piecemealing.

For these reasons, the Court affirmed the trial court’s holding.

Key Point:

A document that provides a threshold of significance is required to undergo CEQA review.

Population Projections Proper Baseline for San Francisco General Plan Housing Element Update

Wednesday, August 22nd, 2018

San Francisco residential areas are shown with the commercial district in the background. (Jeremy Brooks)

In San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, the First District Court of Appeal held the City of San Francisco (City) general plan housing element EIR satisfied CEQA in using 2025 population projections as a baseline for a growth-accommodating policy and adequately considered traffic impacts, water needs, and project alternatives.

In 2011, the City updated the housing element to the City’s general plan. The housing element EIR baseline was based on 2025 population projections. San Franciscans for Livable Neighborhoods (SFLN) filed suit alleging the EIR used an improper baseline and failed to adequately address various environmental impacts.

The trial court held that the City complied with CEQA in most respects. Specifically, the trial court agreed with Respondents that the general plan was not internally inconsistent, the City need not have recirculated the EIR after publication, and the EIR contained an adequate project description, sufficient impact analyses, and a reasonable range of project alternatives. However, the trial court found that the EIR was inadequate in its analysis of alternatives and findings regarding potentially feasible mitigation measures. Parties timely appealed.

Typically, CEQA requires an EIR baseline to employ present environmental conditions for the baseline analysis. However, the Appellate Court held that the use of an alternative baseline was permissible under CEQA so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach. An agency may adjust its baseline conditions at its own discretion and in appropriate circumstances in order to account for a major change in environmental conditions expected to occur before project implementation. For instance, where an amendment to a general plan takes a long view of city planning, the analysis of the amendment’s impacts may do so as well. Here, the City used a hypothetical baseline—population projections for 2025—in order to measure resulting traffic and water impacts related to the housing element. Recognizing “it would be absurd to ask the City to hypothesize the impacts of a long-term housing plan taking hold immediately,” the Court held the City acted within its discretion to define the baseline with 2025 population projections and forecast traffic and water impacts in 2025 rather than compare the existing conditions with and without the housing element.

The Court determined that the housing element sought to accommodate housing needs in response to a growing population, growth that would happen regardless of the housing element, therefore it was a growth-accommodating policy rather than a growth-inducing policy. Cases relied on by SFLN were unconvincing as they analyzed project approvals that would result in population growth in previously undeveloped areas.

With the baseline properly defined, the Court then held the EIR’s analysis of environmental impacts was sufficient. The EIR reasonably concluded that the housing element would not have a substantial impact on visual resources or neighborhood character as it encouraged residential uses in areas that were already allotted or existing and did not change any zoning.

Then focusing on the EIR traffic impact analysis, the Court held the City was not required to study in-the-pipeline projects with potential traffic impacts as they are subject to their own CEQA review and EIR process. Nonetheless, the City did so at sixty intersections and properly relied on 2025 population projections in their analysis for the above reasons.

The Court then held the EIR’s water supply impact analysis was sufficient where it acknowledged the “degree of uncertainty involved, discuss[ed] the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and disclos[ed] the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

Finally, the Court held the EIR’s analysis of alternatives complied with CEQA where it identified and provided “extensive information and analysis regarding the alternatives” for at least three alternatives. SFLN failed to meet their burden to show the range of alternatives are “manifestly unreasonable or deprive[] the decision-makers and the public of information they need to evaluate the project and its impacts.” Where the EIR’s alternatives allowed decision makers a meaningful context to weigh the project’s objective against its environmental impacts, it complied with CEQA.

The Court affirmed the trial court’s holding on these issues.

Key Point:

An alternative project baseline for CEQA purposes may be proper so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach in utilizing it.

Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

Tuesday, June 12th, 2018

Land erosion is visible under steps to Malibu’s Broad Beach. (Melanie Wynne)

In County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, the Second Appellate District upheld a CEQA statutory exemption applied to a project undertaken by the State-created Broad Beach Geologic Hazard Abatement District (BBGHAD) and clarified that a “project” for CEQA consideration may be two separate activities if they serve a single purpose, have the same proponent, and are “inextricably linked.” Further, settlement agreement restrictions were not preempted by state law and do not constitute extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper and therefore void.

The State created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was obliged to restore and restock sand at the beach. The project would involve shipments of 300,000 cubic yards of sand, four subsequent deposits of equal size at five year intervals, and additional shipments of 75,000 cubic yards on an as-needed basis (Project). The sand was to be collected from quarries 30-40 miles away from Broad Beach and transported by trucks to the beach. The initial deposit alone was estimated to require 44,000 one-way truck trips. Possible truck routes from the quarries to the beach required either traveling through the City of Moorpark (City) or on roads adjacent to the community.

In the Project’s planning stages, City officials expressed concern that hauling sand on these routes would negatively impact residents, and therefore entered into a settlement agreement with BBGHAD to manage traffic. BBGHAD agreed to specific haul routes, truck staging requirements, and changes in routes in response to settlement-defined road emergencies. Additionally, the settlement agreement could only be modified with the consent of all parties. Thereafter, the Coastal Commission approved a coastal development permit for the Project, incorporating the settlement agreement.

The County of Ventura (County) filed suit alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by the City to regulate traffic outside of the City limits, and represents an abdication of BBGHAD’s state-granted police power.

The trial court found that the Project was statutorily exempt from CEQA, held that the settlement agreement was not preempted by the state’s Vehicle Code, and was not an improper attempt by the City to regulate traffic outside City limits. However, BBGHAD improperly contracted away its ability to amend the settlement agreement, therefore the trial court struck down the agreement’s mutual assent provision and held that BBGHAD must be able to modify the agreement in response to changed circumstances. The County timely appealed.

The Appellate Court affirmed the trial court’s ruling. In addition to its original claims, the County contended that the settlement agreement is an action distinct from the Broad Beach restoration project, thus beyond the scope of the exemption and subject to CEQA review. The Court disagreed, and found that the settlement agreement between the City and BBGHAD was part of the whole beach restoration effort and one project. The Court stated that when two activities are a coordinated endeavor to obtain an objective or are otherwise related to each other, they constitute a single project for purposes of CEQA. Here, the actions served the single purpose of abating a geologic hazard and were inextricably linked in achieving that goal. Only when the second activity is independent of and not a contemplated future part of the first activity may the two activities be reviewed separately.

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in the City’s settlement agreement. Vehicle Code section 21 prohibits local authorities from enacting resolutions or ordinances which affect state traffic restrictions. The Court found that because the agreement did not involve an ordinance or resolution (rather, it was the City acting under its contracting power), it was not preempted by Vehicle Code section 21. The Court further found that the agreement merely dictated the routes BBGHAD’s contractors and subcontractors must use when delivering on behalf of the Project. The agreement did not amount to a physical barrier which would redirect traffic, did not close roads, and did not restrict non-project related hauling.

The Court then addressed the extraterritorial regulation claim and held the City was within its contracting rights to further its implied necessary function of preventing public nuisances on their roads—like thousands of sand shipments. Additionally, the Court found the traffic restrictions on BBGHAD shipments were valid, as they only affected activity within the City limits.

Turning to the issue of infringements on BBGHAD’s police power, the Court found that as an entity of the State, BBGHAD was entitled to exercise a portion of the state’s police power. However, BBGHAD erred in part by contracting away its right to exercise its police power in the future. The agreement bound BBGHAD to surrender its discretion to haul routes in the future unless mutual assent was achieved between BBGHAD and the City. The Court found that this grant of veto power infringed upon the State’s police power therefore was invalid. In examining if this error was sufficient to render the entire agreement void, the Court weighed the agreement’s impact on the public and the expressed intentions of the parties, and determined that the aspects of the agreement which infringed on BBGHAD’s State-granted police power were severable from the rest of the agreement. Accordingly, the Court upheld the agreement in part and struck the agreement in part.

The Court affirmed the trial court’s judgement.

Key Point:

While incorporated settlement agreements with local authorities in project planning is allowable as part of one CEQA-defined “project”, when contracting with state entities, it is important to not infringe upon state police powers through the creation of modification clauses requiring assent from all parties.

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 impact analyses for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) properly approved the project. Despite this, the trial court writ of mandate setting aside the project remained intact until certain air quality analyses were complete.

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

Rodeo Citizens Association (Petitioners) challenged the approval on the grounds that the project description was inaccurate for failing to address future projects and imports, 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 at project completion.

Relying on San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, Petitioners alleged the project approval was improper 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 RFEIR. The Appellate 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.

Petitioners also claimed that the project description and RFEIR were insufficient for failing to detail the Project’s environmental impacts from purported changes to the crude oil feedstock, specifically the refining of heavier oils. The Court found that the RFEIR laid out that the Project is not dependent on a change in feedstocks and the Project only plans to utilize existing steam without any additional imports or modifications to the refinery. Thus, substantial evidence in the record supported the conclusion that the Project was independent of any purported change in the crude oil feedstock used at the refinery and would not increase its present capacity to refine heavier oils.

The Court upheld the lead agency’s description of the Project 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.

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 that the Project is part of the State’s solution to climate change. While Petitioners claimed that the RFEIR 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 reducing 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 the County and Phillips’ responsibilities.

Finally, the Court rejected 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.

The Court affirmed the trial court holding on each of these issues.

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.

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

Wednesday, February 28th, 2018

The Covina Metrolink station a short distance from the project site

In Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, the Second District Court of Appeal held that parking impacts caused by a project are exempt from CEQA review, per Public Resources Code section 21099. Additionally, the Court found that the City of Covina (City) properly tiered from a prior EIR for a specific plan where potential project-specific impacts were addressed in a project-specific analysis and mitigation measures were imposed to address identified impacts. Further, where impacts are statutorily exempt, as they were here for parking impacts, no further analysis is required in the tiered document. Finally, approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

In 2012, project applicants submitted a proposal to the City of Covina (City) for the construction of a mixed-used urban residential infill project (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. Ultimately, the City approved the Project and issued a mitigated negative declaration (MND). Covina Residents for Responsible Development (CRRD) filed suit alleging the City was required to prepare an EIR, improperly tiered the MND from the specific plan EIR, and violated the Subdivision Map Act by failing to make necessary findings. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence supported CRRD’s claim that the parking shortage would result in environmental impacts; (b) parking impacts from the Project were exempt from environmental review under Public Resources Code section 21099; (c) the City properly tiered its environmental review from the specific plan EIR; and (d) the City did not violate the Subdivision Map Act. CRRD timely appealed.

The Appellate Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “[a]esthetic 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 concluded that parking impacts need not be addressed in the City’s environmental analysis because Section 21099 specifically exempted such analysis for infill sites within a transit priority area. The Court established that the Project was within a transit priority area and that the City had no obligation to analyze parking impacts caused by the Project.

The Court noted that the statutory intent of the bill was to address climate change and the state’s long term environmental goals and to build on prior statutes, including AB 32 and SB 375.

The Court then dismissed Petitioner’s claim that the MND improperly tiered from the specific plan EIR. Traffic impacts from a parking shortage related to an infill project, as discussed above, are exempt from CEQA review though were nevertheless adequately considered in the specific plan EIR.

Finally, the Court dismissed CRRD’s claim that the City’s findings relating to the consistency of the Project’s tentative map were not supported by substantial evidence. Government Code sections 66473.5 and 66474 require local agencies to make findings related to consistency with the specific plan and design of the project. Here, the Court determined the City adopted all necessary findings and CRRD failed to identify evidence in the record that the Project was incompatible with the specific plan.

Key Point:

Public Resources Code section 21099 exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting.

Where impacts are statutorily exempt, no further analysis is required in a tiered EIR.

Approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

Sixth District Court of Appeal Upholds Application of CEQA Exemption for Small Facility —Utility Extension In the Absence of Petitioner Carrying Its Burden to Demonstrate the Location, Cumulative Impact, or Unusual Circumstances Exceptions Applied

Monday, February 5th, 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 found a Class 3 categorical exemption for “small structures” applied to multiple small projects considered as a group. The Court held 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 in Interest Crown Castle Inc.’s (Crown) project application proposed installation of multiple microcell distributed antenna systems (DAS) in rural County areas (Project). These installations 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 application. However, Crown presented, and the County considered, the installations together as a single project. The County approved the Project, finding the DAS systems exempt from CEQA as categorically exempt “small facilities.” Aptos Resident Association (ARA) filed suit against the County.

ARA contended that the Project was not exempt from CEQA because the County improperly segmented the Project and the Project fell within multiple exceptions to the exemption based on its location (CEQA Guidelines, § 15300.2(a)), cumulative impact (CEQA Guidelines, § 15300.2 (b)), and unusual circumstances (CEQA Guidelines, § 15300.2(c)). The trial court disagreed and upheld the County’s approval of the Project. ARA timely appealed the decision.

The Appellate Court held the County properly found the project to be categorically exempt from CEQA as a Class 3 exemption (CEQA Guidelines, § 15303) and thus, no environmental review was required. Class 3 exemptions include projects that propose the construction of limited small facilities or structures, as well as the installation of small equipment and facilities in small structures, incorporating electrical, gas, and utility extensions. Relying on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, the Court found that substantial evidence supported the County’s Class 3 exemption because the Project constituted “the installation of small new equipment on numerous existing small structures in scattered locations.”

The Court then found ARA’s segmenting claim lacked merit where the County “considered the entire group of microcell units to be the Project.” Although Crown filed separate permit applications for the individual microcell units and the County issued separate permits and exemptions for each unit, the Project was considered as a group. Rejecting the segmentation argument, the Court noted that “[t]he nature of the paperwork required for approval of the project is immaterial.”

The Court also denied ARA’s claim that the Project would fall within a cumulative impact exception (CEQA Guidelines, § 15300.2(b)) because other cell carriers would mirror Crown’s microcell project’s approval within the County, thus increasing the visual impact. The court found ARA’s argument baseless and speculative where evidence in the record suggested to the contrary. 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. Thus, the possibility of additional installations on the same poles was remote.

The Court then found the location exception (CEQA Guidelines, § 15300.2(a)) to the Class 3 exemption did not apply. The location exception is restricted to projects that “may impact 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 County Code designating the area as “rural” and “residential agricultural” did not have any language in the statement of purpose designating the area as an environmental resource of hazardous or critical concern. ARA presented no evidence that Project site qualified.

Finally, the Court found that the County did not abuse its discretion by finding no exception based on unusual circumstances. (CEQA Guidelines, § 15300.2(c).) Relying on Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court 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 the trial court and found the DAS installations were properly exempt from CEQA.

Key Point:

When challenging CEQA exemptions, the burden lies on petitioners to show clear and unrefuted evidence that the classification was improper; speculation and hearsay are insufficient.

Further, CEQA allows the exemption for small facilities to apply to multiple small facilities at once within a project. Agriculture zoning is inadequate to successfully claim the location exception, facts must show that the project site is actually “an environmental resource of hazardous or critical concern.”

CARB Regulatory Advisory “Project Approval” Triggers CEQA Review Despite Agency Certified Regulatory Program, Public Testimony Must Be Adequately Addressed to Meet Cal APA Standards

Wednesday, January 31st, 2018

Commercial delivery trucks like those subject to the modified CARB Regulations at issue. (ModiusDaXter)

In John R. Lawson Rock & Oil, Inc. v. State Air Resource Board (2018) 20 Cal. App. 5th 77, the Fifth District Court of Appeal found the California Air Resources Board’s (CARB) issuance of a regulatory advisory was “project approval” triggering CEQA review. Doing so prior to completion of environmental review violated CEQA timing requirements. Later, CARB relied on a negative declaration, which the Court also set aside. Further, CARB failed to comply with the California Administrative Procedures Act (CalAPA). As such, the Court directed CARB to comply with CEQA in modifying a set of 2008 regulations known as the Truck and Bus Regulations (Regulations).

CARB issued the Regulations to reduce greenhouse gas emissions from large vehicles by, as pertinent here, requiring vehicle owners to retrofit and upgrade existing vehicles by January 2014. In mid-2013, CARB staff found the global recession substantially reduced trucking activity making compliance with the Regulations financially difficult, especially for those in rural areas and small business settings. CARB responded by delaying reporting deadlines and requesting modification proposals. In November 2013, CARB issued a regulatory advisory stating a handful of modifications to the Regulations would be implemented. Specific changes included: delaying compliance dates, eliminating filter replacement requirements for certain light trucks, and providing a 10-year window where only engines less than 20-years-old would require modernization. After circulating a staff report and proposed modifications in March 2014, CARB issued its final approval in December 2014. Plaintiffs and Respondents filed suit on behalf of fleets that had already incurred significant cost in complying with the unmodified regulations, alleging CARB failed to comply with CEQA and CalAPA requirements.

The Appellate Court found agencies that operate under a certified regulatory program are exempt from certain elements of CEQA review yet still subject to the “functional equivalent” of CEQA environmental review, per the Court’s holding in POET, LLC v. State Air Resources Control Board (2013) 218 Cal.App.4th 681. CARB’s regulatory program requires the preparation of a public staff report at least 45 days before public hearing on a proposed regulation, discussion of environmental alternatives, response to public comment, and compliance with CEQA. Within the regulatory scheme, documents like the CARB staff report are expected to be analyzed and considered before project approval in the same way that CEQA documents are considered.

Applying CEQA principles, the Court determined that project approval triggering CEQA or its equivalent occurred where the regulatory advisory “opened the way” for a project to proceed. CARB conduct following the advisory was “detrimental to further fair environmental analysis.” That the final approval was not to be until 2014 and there was stated CARB authority to change the modifications before that time was insufficient to show the regulatory advisory was not project approval. Language in the advisory that truckers could immediately take advantage of certain programs and the subsequent CARB reliance on the advisory “foreclosed alternatives” to the proposed modifications. Because the advisory was issued before environmental review was complete, CARB failed to comply with CEQA timing requirements.

Next, the Court held the proper baseline for CEQA consideration in this case is the actual environmental conditions at the time of review, not those allowable by the current regulations. As such, CARB acted within its discretion to use a baseline that recognized some trucks and buses were not yet in compliance

Despite this, substantial evidence supported a fair argument that modifications to the Regulations would negatively and significantly impact air quality therefore CARB was incorrect to rely on a negative declaration. CARB failed to address that the modifications, while continuing to decrease emissions in the long term, would increase emissions in the short term. CARB also failed to address the inconsistencies between the proposed project’s emissions and applicable general plans, specific plans, and regional plans.

Notwithstanding these findings, the Court held that the trial court incorrectly directed CARB to prepare an EIR, or its functional equivalent. Such a remedy is only appropriate where the agency no longer has discretion to act in compliance with CEQA. Here, CARB still retained such discretion so the proper remedy is to simply direct CARB to comply with CEQA.

Lastly, CARB failed to comply with CalAPA where it did not adequately address economic impacts to intrastate commerce. While the Court usually gives deference to the agency on determinations of economic impacts, there is no deference for improperly adopted regulations. Here, CARB heard public testimony that relaxing the regulations would impact intrastate competition where those in compliance took on a large expense to be so and others would be able to undercut them. The Court held that testimony, while not written in a formal letter or report, nonetheless put CARB on notice of such issues. While CARB claimed it answered this issue in other comment answers, the Court found that its responses were not supported by any record evidence or meaningful analysis.

Key Point:

A regulatory advisory may be “project approval” triggering CEQA where it forecloses project alternatives therefore environmental review must be complete before its issuance. This standard applies to partially-exempt regulatory bodies and state agencies when their certified regulatory programs are intended to be CEQA-compliant.

First District Court of Appeals Affirms, Remands LA Railyard Project FEIR, Attorney General Exempt from Exhaustion Requirements, CEQA Analyses Must Be Presented to Adequately Inform

Friday, January 12th, 2018

The Port of Los Angeles meets the Pacific Ocean waters at sunrise (Pete)

In City of Long Beach v. City of L.A. (2018) 19 Cal.App. 5th 465,

The First District Court of Appeal concluded that the Port of Los Angeles (Port) Project description was accurate, not misleading, and did not result in piecemealing. As such, the Court affirmed in part and remanded in part a judgement setting aside the City of Los Angeles (City) and Real Party in Interest BNSF Railway Company (BSNF) (collectively Appellants) final EIR related to BNSF’s railyard construction project. The Court also found that the Attorney General has no obligation to exhaust administrative remedies.

At the Port, shipping containers are loaded onto trains at railyard facilities for transport across the Country. The Port is currently served by one “near-dock” railyard facility. Trucks take some containers to “off-dock” railyards, like BSNF’s current facility (Hobart Yard) twenty-four miles from the Port. BSNF proposed a new 153-acre near-dock railyard approximately four miles from the Port, diverting traffic headed to Hobart Yard and increasing the volume of cargo transported in the Port-railway interface (Project).

In 2005, the Port staff issued an initial study and NOP and, later, a supplemental NOP. In 2011, they released a draft Environmental Impact Report (EIR) for the project. In response to public comment, the Port staff revised major portions of the draft and released a revised draft EIR in September 2012 for 45-day public review. Thereafter, a final EIR (FEIR) was issued, identifying significant unavoidable environmental impacts on air quality, noise, GHG emissions, and traffic. Following public review, the board of harbor commissioners certified the FEIR and approved the Project. The resolution was appealed to the Los Angeles City Council, which affirmed certification of the EIR and approval of the Project.

Seven suits were filed in multiple Counties. The Attorney General intervened on one. The trial court, after consolidating the petitions, set aside the certification of the FEIR and project approval. Specifically, the trial court found the FEIR project description and analysis of growth-inducing impacts, cumulative impacts, noise, traffic, air quality, greenhouse gas emissions, and mitigation measures were inadequate. Appellants timely appealed.

The Appellate Court first addressed the Attorney General’s intervention. Appellants alleged the Attorney General failed to abide by exhaustion requirements because he/she did not raise the issues in the administrative hearing that he/she brought in the intervening action. Indeed, no party had raised the claims. The Court found that neither a plain reading of Public Resources Code section 21177’s exhaustion requirements nor the legislative history supported applying the section’s requirements to the Attorney General. The Court found that the Attorney General need not be a party in the administrative hearings nor is he/she limited to raising issues raised during the administrative proceedings because he/she is specifically exempt from both identity and issue exhaustion requirements. (Pub. Res. Code, § 21177 (d).)

The Court next considered the adequacy of the project description. The Court agreed with the trial court that the FEIR project description was sufficient because it was not “misleading or inaccurate.” Unlike San Juaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, the project description at issue in this case did not send any “conflicting signals to decision makers about the nature and scope of the Project” as no part of the FEIR suggested the overall rail capacity would remain unchanged.

The Court then addressed claims that the FEIR failed to address indirect physical changes to the original off-dock railyards. CEQA requires consideration of all “reasonably foreseeable” indirect environmental effects. Here, substantial evidence in the form of worldwide and domestic intermodal business studies supported the City’s conclusion that a predicted amount of economic growth could occur with or without the Project. While the proposed near-dock site would increase the cargo capacity of the Port, because the Project would retire an equal amount of use at the Hobart site and growth would occur regardless of the Project, the Project did not increase the demand or volume of cargo at the Port, it merely changed the place at which the cargo is distributed. The Court found this analysis was adequate.

The Court upheld the conclusion of the trial court that the FEIR failed to adequately inform decision makers and neighbors about the concentration of pollutants in the project vicinity. Despite Appellant’s claim that it performed worst-case-scenario analyses and disclosed air quality concentration impacts, the information was spread throughout the FEIR, never analyzed or discussed, and did not disclose the frequency of significant concentration occurrences. The Court stated that the FEIR was deficient because it did not disclose or estimate how frequently and for what length of time the level of particulate air pollution in the area would exceed the standard of significance—e.g., the duration of the worst case scenario.

The Court was careful to state it did not agree with the trial court’s determination that the composite emissions or the methodology was misleading, but the analysis was instead incomplete because a reader could not compare air pollution concentrations at any given point in time. The Court determined that this deficiency rendered the public and decision makers unable to consider alternatives or mitigation measures, or balance competing considerations before adopting a statement of overriding considerations.

Further, the Court held while the cumulative impact analysis of noncancerous health risks was sufficient, the discussion of cumulative air quality impacts failed to be a “good faith and reasonable disclosure” for the same reasons detailed above. Finally, the Court upheld the FEIR’s GHG analysis, noting that the Project relocating shipping activities twenty miles closer to the ship yard would result in less emissions than not building the Project at all.

The Court affirmed the trial court’s decision to set aside certification of the FEIR and suspend project activities until the City could bring ambient air pollutant concentrations and cumulative impacts analysis into CEQA compliance. The Court reversed the trial court’s judgements on the GHG emissions, noise, transportation and cumulative impact (for noncancerous health risks only).

The Court affirmed in part and remanded in part for further proceedings.

Key Point:

An EIR must display statistical and quantitative reports in a manner which can be understood and easily accessed by laypersons. Although the information may be present in documents, if it cannot be fairly compared and understood (here, it was spread throughout thousands of pages), it will likely not stand up to a CEQA challenge.

The Attorney General is exempt from CEQA identity and issue exhaustion requirements.

General Plan Update Size Limit Not Likely to Cause Urban Decay, Local Commercial Real Estate Agent Letter “Speculative,” Not Substantial Evidence of a Fair Argument

Thursday, January 4th, 2018

Packwood Shopping Center in the Visalia’s neighborhood commercial zone and subject to the 40,000 sq.ft. cap on tenants. (The Registry SF)

In Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, the Fifth District Court of Appeal affirmed a trial court judgment maintaining a general plan amendment and accompanying EIR limiting commercial tenants to 40,000 square feet of space. A letter from a local commercial real estate agent predicting that the size cap would cause grocers to refuse to locate in the neighborhood commercial centers leading to a “downward spiral of physical deterioration” was insufficient to support a fair argument of an environmental impact.

On October 14, 2014, Visalia City Council approved a final EIR for the City’s general plan update establishing a 40,000 square foot cap on tenants in neighborhood commercial zones. Visalia Retail, LP brought suit claiming that the potential for urban decay was not adequately addressed in the EIR. The trial court denied the petition. Visalia Retail timely appealed.

Appellant claimed that the EIR was insufficient for failing to consider the potential for urban decay as large stores would be discouraged from establishing themselves in the neighborhood under the new restriction on square footage. The Court, unconvinced, found that CEQA is focused on significant environmental effects, not purely economic impacts. Relying on Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, the Court found CEQA environmental review of potential for urban decay is only appropriate where there is a potential for physical deterioration. Absent such a showing, CEQA is satisfied.

The primary evidence of urban decay submitted by Appellant was a letter prepared by a local commercial real estate agent who claimed the 40,000 square foot cap would discourage grocers from locating in neighborhood commercial centers, “which will cause vacancies, which in turn will result in urban decay.” The real estate agency offered the following support for these claims: (1) the real estate agent was personally unaware of any grocers willing to build new stores under 40,000 square feet; (2) a “typical” large grocer requires at least 50,000 square feet to profit at any one site; (3) a recent line of 10,000 – 20,000 square foot stores was unsuccessful; and (4) three Visalia stores under 40,000 square feet went out of business.

The Court found the letter to be speculative and not rising to the level of substantial evidence on which a fair argument of urban decay could be predicated. First, the limit of the real estate agent’s personal knowledge did not preclude the existence of stores that may be willing to come into the area or have an atypical store size. Further, the fact that other stores were unsuccessful, some a quarter the size of the cap, was not evidence that stores will fail in the City in the future, especially absent discussion or explanation of why they failed. The letter demonstrated speculative causation and failed to show that urban decay would likely result from the cap.

Appellants also claimed the cap made the City’s general plan internally inconsistent by discouraging development in neighborhood commercial sites where the general plan encourages such infill. The Court, presuming the general plan amendment was correct under established precedent, clarified that “just because the general plan prioritizes infill development, avoiding urban sprawl, does not mean all of its policies must encourage all types of infill development. General plans must balance various interests and the fact that one stated goal must yield to another does not mean the general plan is fatally inconsistent.” Essentially, the general plan may give preference to infill that has a 40,000 square foot cap and still be internally consistent.

The Court affirmed the trial court judgement.

Key Point:

Evidence of economic impacts alone is insufficient to support a claim that a project will result in urban decay; urban decay need only be addressed by an EIR where there is potential for physical deterioration.

A single comment letter, unsupported by facts, explanation, or critical analysis, does not raise to the level of “substantial evidence of a fair argument” required by CEQA.