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Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review

Wednesday, August 22nd, 2018

The Niles Historic District’s distinctive style is clear on the building facades of the District’s downtown area. (Craig Miyamoto)

In Protect Niles v. City of Fremont (2018) 2018 Cal.App.LEXIS 700, the First District Court of Appeal held the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence when given by a special commission with particular knowledge. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the city council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six acre lot; HARB recommended the Project be denied. Taking this into consideration, and amidst ample critical comments, the city approved the Project with a mitigated negative declaration (MND).

Community action group Protect Niles petitioned the trial court for a writ of mandamus to set aside the Project approval and prepare an EIR analyzing a handful of environmental impacts. The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic only and set aside the Project approval until an EIR was complete on these issues. Valley Oak appealed this decision.

The Court established that, despite Protect Niles’ claims to the contrary and the Court’s discretion to determine either way, the appeal was not moot. The Valley Oak had already submitted a revised Project application and the city had published a draft EIR therefore “voluntarily complied.” However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims so the Court continued.

The Court set out that CEQA is interpreted to afford the fullest possible protection to the environment. Because of this, an EIR is required where there is any substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect. Public participation is an essential element of that determination.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact is where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Within that framework, aesthetic impacts are highly context-specific. Here, the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, massing, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of an adverse impact on the unusual setting of the Niles HOD as mapped and officially recognized by the city and the city’s reliance on a MND was improper.

Briefly, the Court established that this analysis does not undermine CEQA environmental review of historical resources as that is a more comprehensive analysis, focusing on “direct physical changes to historical resources themselves that materially impair those resources’ historical significance, not a project’s aesthetic impact on its historical setting.”

The Court then criticized the traffic impact analysis. The city had conducted a professional traffic study concluding the impacts would fall below the city’s threshold of significance. Despite this, the Court found the study was shortsighted for operating under the presumption drivers follow the speed limit. The city was also culpable for failing to implement the study’s recommendation to establish a left-turn pocket lane. The record contained critical comments by residents, city officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument the Project will have significant adverse traffic impacts.

The Court affirmed, awarding costs to Protect Niles and directing the city to prepare an EIR if it were to go through with the original project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.

Endangered Species Act Proposed Rules Lighten Required Considerations for Threatened Species, Narrows Agency Responsibilities for Critical Habitats

Friday, July 20th, 2018

Island Foxes, a species no longer listed as endangered, in the Channel Islands National Park in California. (U.S. Fish and Wildlife Service)

On Thursday, July 19, 2018 the U.S. Fish and Wildlife Service (USDFW) and the National Oceanic Atmospheric Administration (NOAA) released proposed revisions to the federal Endangered Species Act (ESA). These proposals amend procedures for species protection by changing requisite considerations and protections afforded “threatened” species, limiting the time scope for such considerations, and streamlining agency consultation.

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out any action that would jeopardize a critical habitat that an endangered or threatened species relies on. Specifically, it is prohibited that any project “take,” or harm, any plants, animals or invertebrates that are listed as threatened or protected. Originally passed in 1973, the Act has been significantly amended in 1978, 1982, and 1988 to meet modern demands.

The proposed rules would extinguish the “blanket rule” under section 4(d) of the ESA, which provides the same level of consideration and protection to threatened species as it does to endangered species. Threatened species are those that are likely to become endangered but are not currently endangered, at risk of extinction. Currently, protections that shield threatened species mirror those for endangered species unless otherwise specified. The proposed rules would permit USDFW to craft specific plans for each threatened species determination that are “necessary and advisable for the conservation of the species,” according to the USDFW press release. While NOAA currently employs a similar practice, it may make it more difficult to shield species.

The proposed rules would shorten the requisite timeline for species endangerment considerations. Currently, “threatened” means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The vagueness of “foreseeable future” has been useful for environmental advocates to promote consideration of how climate change may affect the species. The proposed rules would change this section to mean only so far as can be “reasonably determined” that both the future threats and the species’ responses to those threats are foreseeable. This means that climate change considerations may not be required.

In the same vein, the proposed rules would repeal the prohibition on considering economic factors when deciding whether or not a species should be protected and the procedure to delist a species will now be the same standard as decisions to list the species.

Section 4 also deals with the procedures for listing, recovery and designating of critical habitats, or areas essential to support the conservation of a species. The proposed rules would revise the procedure for designating critical habitat by incorporating a non-exhaustive list of circumstances where they may find that designation of a critical habitat for a particular species would not be prudent. The agency will first evaluate areas currently occupied by the species before considering unoccupied areas. Additionally, the proposed changes would clarify when they may determine unoccupied areas are essential or not to the conservation of the species.

While none of these changes will be retroactive, they are part of the Trump Administration’s refocusing of federal environmental laws. Last month the administration began the process of overhauling the National Environmental Policy Act (NEPA). The Environmental Protection Agency, meanwhile, has used industry guidance documents and policy memos to dial back its oversight of air pollution under the Clean Air Act.

Deputy Secretary of the Interior Department described the ESA rule proposals as streamlining and improving the regulatory process. Indeed, per the USDFW press release, the changes are meant to narrow consultation requirements and allow federal agencies to simplify their actions with shorter ESA consideration. Opponents are concerned the changes will vacate protections for threatened species and weaken USDFW and NOAA’s abilities to address climate change.

The public has 60 days to issue comments on the proposed rules before the Interior Department and the Department of Commerce finalizes them.

Fourth District Court of Appeal Finds Project Approval Improper in Seaside Subdivision; Cites Inconsistency with Local Law, Health and Safety Violations

Thursday, February 8th, 2018

The La Playa neighborhood is home to some of the most expensive homes in San Diego (Mike McCarthy / The Beacon)

In Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034, the Fourth District Court of Appeal reversed the trial court and upheld the City Council’s findings that a mitigated negative declaration (“MND”) prepared for a vesting tentative parcel map and related construction permits (“Project”) was inadequate.

The Project proposed subdividing a 1.45-acre lot into four lots, retaining an existing two-story residence on one lot, and constructing a new residence on each of the three remaining lots. The Project site is located in the La Playa neighborhood of the Peninsula Community Plan (“Plan”) area, which includes large single-family homes of various ages and architectural styles.

The proposed four lots would share a private driveway, but the slope of the driveway would be too steep for fire trucks to access the property. Accordingly, the Project would include the installation of standpipes near the furthest three residences, which would provide fire personnel with direct access to water connections in an emergency. The Project requested deviations from applicable development regulations, including the minimum rear yard setback, the minimum street frontage, and the maximum height for side yard retaining walls.

After the local community planning board recommended denial of the project based on concerns about fire safety, fire truck access, density, and the appropriateness of the requested deviation, the Planning Commission certified the MND and approved the Project. A citizen appealed the Planning Commission’s decision to the City Council, which found the MND inadequate and reversed the Planning Commission’s decision to approve the Project. The City Council denied the Project because it found it did not meet applicable City requirements, including consistency with the Plan and provisions for public health, safety, and welfare. The owners of the Project site sued the City, alleging violation of their civil rights, inverse condemnation, mandamus, and nuisance. The trial court held for the owners.

On appeal, the court held that evidence in the record supported the City’s findings that the Project was inconsistent with the Plan, particularly the Plan’s goals of conserving the character of existing single-family neighborhoods. The court found that opinions and objections of neighbors, along with expertly prepared renderings of the Project and photographs of the surrounding neighborhood, that lend credence to the neighbors’ opinions, sufficed to support the City’s findings.

The court also held that evidence in the record supported the City’s findings that the Project would be detrimental to public health, safety, and welfare. The record contained expert evidence showing flaws and omissions in the Project’s geotechnical report, as well as evidence showing that the configuration of the residences and steepness of the shared private driveway would present significant challenges for fire services personnel.

Key Point:

To succeed in recourse for City Council disapproval of a project previously approved at Planning Commission, it is essential that the project is aligned with local building requirements and is not detrimental to public health, safety, or welfare.

General Plan Update Size Limit Not Likely to Cause Urban Decay, Local Commercial Real Estate Agent Letter “Speculative,” Not Substantial Evidence for CEQA Review

Monday, January 8th, 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 the 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 the potential for urban decay was not adequately addressed in the EIR. On May 9, 2016, the trial court denied the petition for writ of mandate. The property management company appealed the decision.

Appellant claimed the EIR was insufficient for failing to consider potential for urban decay where large stores would be discouraged from establishing themselves in the neighborhood under the new restriction. 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.

Appellant’s main evidence that it was essential the EIR consider urban decay was a letter prepared by a local commercial real estate agent who claimed the 40,000 square foot cap will cause grocers to refuse to locate in neighborhood commercial centers, “which will cause vacancies, which in turn will result in urban decay.” His evidence for these claims was (1) he is 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 the site; (3) a recent line of 10,000 – 20,000 square feet stores were unsuccessful; and (4) three Visalia stores under 40,000 square feet went out of business.

The Court found the entirety of the letter to be speculative, not raising to the level of substantial evidence on which a fair argument of urban decay could be predicted, a standard set by CEQA. First, the limit of his personal knowledge does not preclude the existence of stores that may come to the area or that some stores would be willing to have an atypical sized store. Further, the fact that other stores failed, some a quarter the size of the cap, is 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 for 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, that 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 Fifth District Court of Appeal affirmed the trial court judgement.

Key Point:

Where CEQA is concerned with environmental impacts, a claim for urban decay supported only by economic impacts is insufficient. 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.

ON REMAND, DIVISION FIVE OF THE FIRST APPELLATE DISTRICT LIMITS APPLICABILITY OF BAAQMD RECEPTOR THRESHOLDS

Thursday, September 29th, 2016

The Bay Area Air Quality Management District’s (BAAQMD) “CEQA Air Quality Guidelines” have been the source of litigation since they were first adopted in 2010. Most recently, courts have grappled with certain thresholds for assessing the health risks of siting new sensitive receptors near existing sources of toxic air contaminants, often referred to as the “Receptor Thresholds.”

In California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the Supreme Court held that the scope of CEQA did not require lead agencies to consider the effect of the existing environment on a future users of a project unless the project will exacerbate those existing conditions. See http://www.thomaslaw.com/blog/supreme-court-strikes-down-reverse-ceqa-and-part-of-the-ceqa-guidelines/. The First Appellate District was tasked with determining on remand how that holding affected the Receptor Thresholds adopted by BAAQMD.

In California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 758, the appellate court considered BAAQMD’s argument that approval of the receptor thresholds did not need to be set aside because there were possible valid uses.  These uses included: (1) voluntary applications by a lead agency; (2) the determination of whether a project will exacerbate existing conditions; (3) the assessment of the health risks to students and staff at a proposed school site; and (4) the evaluation of whether a housing project is exempt from CEQA.

The Court agreed with BAAQMD, but cautioned that “any effort by an agency to require an EIR, mitigating measures, or other CEQA review under the Receptor Thresholds when one is not authorized would be subject to a strong legal challenge.” The Court remanded the case to the trial court with instructions to issue an order invalidating the portions of the BAAQMD Guidelines that suggested that lead agencies should routinely assess the effect of existing environmental considerations on future users or occupants of a project.

BAAQMD subsequently filed a petition for rehearing and argued that writ relief was inappropriate because the Guidelines are a nonbinding, advisory document and any review was premature because there was no specific controversy regarding an application of the Guidelines. (See California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 752.) The Court disagreed and found BAAQMD’s Guidelines to be akin to the guidelines at issue in Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158. They were not “interim steps in a larger review process,” where a court may decline to use the remedy of mandamus. Therefore, the Court denied the petition for rehearing.

GOVERNOR SIGNS SWEEPING CLIMATE CHANGE BILL, SENATE BILL 32, INTO LAW

Tuesday, September 27th, 2016

Governor Jerry Brown signed Senate Bill (S.B.) 32, which will extend the State’s greenhouse gas targets from 2020 to 2030. The legislation builds on Assembly Bill (A.B.) 32, the California Global Warming Solutions Act of 2006, which required California to reduce greenhouse gas levels to 1990-era levels by 2020. Under S.B. 32, the State will be required to reduce its greenhouse gas emissions to 40 percent below 1990 levels by 2030.

S.B. 32 codifies the interim 2030 greenhouse gas target included in the Executive Order (B-30-15) issued by Governor Brown on April 29, 2015. The interim target is intended to ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050.  The Assembly passed the bill with only one vote to spare during a largely party-line vote.

Notably, to help garner the required votes, S.B. 32 was amended to provide that it would only become operative if A.B. 197 was also enacted. A.B. 197, which was passed by the Legislature by a much less narrow vote than S.B. 32, increases legislative oversight of the California Air Resources Board (CARB) by putting two legislators on CARB as nonvoting members and requiring CARB to report annually to a newly created joint legislative committee on climate change policies. It also directs CARB to prioritize emissions rules and regulations that limit economic impact on the State’s disadvantaged communities and regions reliant on agriculture.  S.B. 32 and A.B. 197 were approved by Governor Brown on September 8, 2016, and will become effective on January 1, 2017.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT URBAN DECAY MND CASE

Thursday, July 14th, 2016

On July 13, 2016, the Fourth Appellate District ordered the partial publication of its recent decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino. Thomas Law Group requested publication on behalf of the California Infill Builders Federation.

The opinion addresses challenges to a proposed retail store on the basis of alleged urban decay impacts and community plan inconsistencies. While these issues frequently arise in California Environmental Quality Act challenges to a Mitigated Negative Declaration (MND), existing published case law is sparse. Significantly, the opinion is the first published decision in nearly a decade to address an urban decay challenge in the context of an MND. In addition, the opinion articulates that the abuse of discretion standard of review, as opposed to the fair argument standard, is appropriate for land use plan consistency determinations relating to policies that “were not adopted to mitigate environmental impacts.”

The only portion of the opinion that was not published by the Court was Section IV, which addresses whether the County was required to disclose that the future occupant of the project was Dollar General.

For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FIRST APPELLATE DISTRICT UPHOLDS MTC AND ABAG’S APPROVAL OF PLAN BAY AREA

Wednesday, July 6th, 2016

In a recently published opinion, Bay Area Citizens v. Association of Bay Area Governments, 2016 Cal. App. LEXIS 531, the First Appellate District affirmed the trial court’s judgment and upheld the approval of Plan Bay Area by the Bay Area Metropolitan Transportation Commission (“MTC”) and the Association of Bay Area Governments (“ABAG”) (collectively, “Agencies”). Thomas Law Group represented the Agencies in successfully defending against the suit.

Plan Bay Area is the regional transportation plan and sustainable communities strategy for the nine-county Bay Area region, adopted by the Agencies pursuant to SB 375. It establishes a plan for reducing greenhouse gas emissions by reducing vehicle miles traveled through combined land use and transportation strategies. Bay Area Citizens (“Citizens”) filed a petition in August 2013, challenging certification of the environmental impact report (“EIR”) prepared for Plan Bay Area under the requirements of the California Environmental Quality Act.

Citizens’ primary contention was that the Agencies failed to consider greenhouse gas emission reductions expected from existing statewide mandates, such as clean car and low carbon fuel standards. Due to this omission, Citizens contended that the Agencies unnecessarily imposed “draconian” high-density land use patterns to reduce vehicle miles traveled (“VMT”) to satisfy the California Air Resources Board’s (“CARB”) greenhouse gas emissions targets. The trial court rejected Citizens’ argument, holding that reliance on the statewide mandates to meet CARB’s targets under SB 375 was expressly prohibited by the legislation and would constitute improper double-counting of greenhouse gas emissions reductions.

The appellate court also rejected Citizens’ argument, calling its interpretation of SB 375 “absurd.” The court held that Citizens’ interpretation effectively made SB 375 superfluous because it would allow the Agencies to rely on reductions already expected from the statewide mandates without achieving additional SB 375 emission reductions through land use and transportation strategies. Pointing to CARB’s interpretation – that SB 375 calls for such strategies in addition to emissions reductions expected from the statewide mandates – the court concluded that Citizens’ interpretation was incorrect.

Turning to Citizens’ EIR contentions, the court found that because the Agencies properly interpreted the requirements of SB 375, Citizens’ challenge of Plan Bay Area’s EIR objectives was without merit. The court similarly rejected Citizens’ alternatives analysis arguments. Specifically, the court found that the “no project” alternative appropriately captured the continuation of existing regional policy. With regard to the Citizens’ proposed alternative, the court found that many of the aspects of the Citizens’ alternative were already captured in the other alternatives considered by the Agencies. Moreover, because the Citizens’ proposed alternative double-counted statewide emissions mandates, it was not feasible in light of the emission reduction requirements of SB 375.

Key Point: The court affirmed that metropolitan planning organizations may not rely on emissions reductions expected from pre-existing statewide mandates in order to meet CARB’s regional greenhouse gas emissions targets when preparing plans required under SB 375.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT GENERAL PLAN CONSISTENCY CASE

Tuesday, July 5th, 2016

On July 1, 2016, the Fifth Appellate District granted Thomas Law Group’s request to publish the general plan consistency argument in Naraghi Lakes Neighborhood Preservation Association v. City of Modesto. This newly published discussion is a useful aid to practitioners and local governments, providing clarification on when general plan policies should be treated as “mandatory development standards.” The sections on the rezoning findings and CEQA arguments remain unpublished. For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH DISTRICT UPHOLDS COUNTY’S MITIGATED NEGATIVE DECLARATION FOR DOLLAR GENERAL STORE IN JOSHUA TREE

Friday, July 1st, 2016

In an unpublished opinion, Joshua Tree Downtown Business Alliance v. County of San Bernardino, 2016 Cal. App. Unpub. LEXIS 4405, the Fourth Appellate District rejected a challenge to the County’s approval of a 9,100-square-foot Dollar General store (“Project”) proposed by Dynamic Development (“Dynamic”) in Joshua Tree.

The County circulated an initial study and proposed negative declaration in August 2012. Many of the nearby property owners raised concerns that the Project would be out of character with the family-owned business community in Joshua Tree. In response to such concerns, the County changed its environmental determination from a negative declaration to a mitigated negative declaration and recirculated it in November 2012. After the County Board of Supervisors approved the Project in January 2013, the Joshua Tree Downtown Business Alliance (“Alliance”) filed a petition for writ of mandate, alleging that the County violated the California Environmental Quality Act (“CEQA”) by failing to analyze the Project’s potential for causing urban decay and blight. The Alliance also alleged that the County violated CEQA by attempting to hide the identity of the intended occupant and by approving a project that was inconsistent with the Joshua Tree Community Plan (“Community Plan”).

The trial court held that an EIR was required because there was substantial evidence to support a fair argument that the Project could cause urban decay. The trial court relied on the comments made by Ms. Doyle, a member of the Alliance and a lawyer who had previously counseled on land use issues as an Assistant Attorney General in the Oregon Department of Justice. The trial court reasoned that her experience demonstrated sufficient relevant personal observations that constituted substantial evidence under CEQA. Dynamic appealed and the Alliance cross-appealed on the remaining claims.

On appeal, the court reversed the trial court on the urban decay claim, holding that the mere fact that the Project may have potential economic impacts did not require an EIR where the economic impacts would not cause reasonably foreseeable indirect environmental impacts. The court found that the County properly considered that this was a “small box” retail project rather than the typical “big box” retail project analyzed in urban decay cases. The court also rejected the Alliance’s contention that Ms. Doyle’s opinions should have been considered substantial evidence. The court explained that Ms. Doyle was not qualified to opine on the Project’s economic impacts because she was not an economist and, moreover, her conclusions that urban decay would occur were speculative because they had no factual basis.

Next, the court rejected the Alliance’s allegation that the County violated CEQA by failing to identify the end user of the Project. The court recognized that CEQA does not require a lead agency to disclose an end user generally, but there may be times where the identity of the end user would be considered “environmentally relevant.” That was not the case here because Alliance did not produce any evidence that a Dollar General would have adverse environmental impacts beyond that of a “general retail store.”

Finally, the court rejected the Alliance’s argument that Project required an EIR because it was inconsistent with the Community Plan. The court declined Alliance’s request to view this as a CEQA issue that should be reviewed under the fair argument standard. Instead, the court applied the usual standard for a claim of inconsistency with a land use plan: abuse of discretion. The court held that the mere fact that the Project might compete with established local businesses did not make it inconsistent with the Community Plan’s provisions encouraging small businesses, and found that the terms “encourage” and “support” to be amorphous policy terms that gave the County discretion when making its consistency determination. Accordingly, the court found that the County had not abused its discretion.