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Court Rejects CEQA and Subdivision Map Act Challenges to Shopping Center in Redlands

Tuesday, April 14th, 2015

In an unpublished opinion in Redlands Good Neighbor Coalition v. City of Redlands, 2015 Cal. App. Unpub. LEXIS 2210, the Fourth District Court of Appeal affirmed the trial court’s decision and denied petitioner’s challenges under the Subdivision Map Act and the California Environmental Quality Act (CEQA) to the City of Redlands’ (City) approval of a tentative parcel map (TPM 19060) and environmental impact report (EIR) for a Walmart Supercenter and 275,500-square-foot shopping center.

The project site, located on approximately 33 acres of fallowed agriculture land, is designated as commercial in the City’s General Plan, but is also within the East Valley Corridor Specific Plan (EVCSP) area. The EVCSP modifies the General Plan policies to facilitate a “high-quality business park environment” that would be a catalyst for development and jobs in the area. Following a unanimous recommendation by the planning commission, the City adopted resolutions certifying the EIR and approving TPM 19060.

After rejecting the City’s procedural argument that petitioner failed to exhaust its administrative remedies, the court moved to the merits of the Subdivision Map Act claim and held TPM 19060 was sufficiently consistent with the City’s General Plan. The court emphasized that judicial review is highly deferential to the local agency and the project did not have to be in perfect conformity with the general plan. Although the City could have incorporated more “Redlands-themed or historical design elements into the project,” the project was not incompatible with the design and historical preservation policies of the general plan.

Similarly, the court rejected petitioner’s contention that the City’s finding of unavoidable impacts on air quality in the EIR required the City to deny the application for TPM 19060. Under section 66474(e) of the Subdivision Map Act, a finding that a subdivision is likely to cause substantial environmental damage requires a lead agency to deny the tentative map application; however, an exception exists when the lead agency adopts a statement of overriding considerations. The court reasoned that even though the resolution approving TPM 19060 improperly stated TPM 19060 was not likely to cause substantial environmental damage, the City adopted a statement of overriding consideration so the error was not prejudicial.

As to the CEQA claims, petitioner first argued the EIR was deficient because it inadequately analyzed the project’s impacts on aesthetics––specifically, the impact of the contemporary design on the “community character” of Redlands and views of the San Bernardino Mountains. However, the court rejected the arguments because petitioner improperly applied a fair argument standard to the City’s findings. Although the court acknowledged there was evidence to support petitioner’s arguments, this did not mean the EIR inadequately addressed the potential impacts. Because the City’s determination of a significant impact is a factual determination, the substantial evidence standard applies and the court held substantial evidence supported the City’s findings on aesthetic impacts.  Petitioner also claimed the EIR inadequately addressed the inconsistencies between the project and the City’s General Plan.  The court disagreed with this argument as well, finding the EIR adequately discussed the applicable regulatory framework, and that the City’s consistency conclusions were supported by substantial evidence.

Court Turns Tide in Favor of Desalination Plant – Holds Ample Substantial Evidence Supports the Project’s EIR

Monday, May 27th, 2013

Almost four years after the Marin Municipal Water District (MMWD) certified an environmental impact report (EIR) and approved a five million gallon a day desalination plant project, the Court of Appeal, First District, in a published opinion (N. Coast Rivers Alliance v. Marin Mun. Water Dist. Bd. of Dirs. (2013) 2013 Cal.App.LEXIS 401), reversed the trial court’s judgment and upheld the adequacy of EIR. At trial, the court determined the EIR violated CEQA in approximately a dozen ways.  Specifically, the trial court concluded the EIR included an inadequate analysis of (1) aesthetic impacts, (2) land use and planning impacts, (3) seismology impacts, (4) water quality impacts caused by shock chlorination, (5) biological impacts caused by entrainment, (6) energy impacts, and (7) greenhouse gas (GHG) emission impacts.  The trial court also concluded that the EIR proposed inadequate mitigation measures for (1) aesthetics, (2) aquatic noise and vibration, and (3) GHG emissions.  Finally, the trial court held that (1) with respect to biological resources the discussion of the existing environmental setting was insufficient, and (2) CEQA required the EIR to be recirculated because a new alternative was included in the Final EIR.  The First District reversed each of the trial court’s holdings.

With respect to aesthetic impacts, the First District stated that “[w]here an EIR contains factual evidence supporting the conclusion that aesthetic impacts will be insignificant, that conclusion must be upheld.”  Because the EIR included such facts and the Petitioners merely disagreed with them, the First District reversed the trial court. The First District also rejected the trial court’s ruling that adopting a landscaping plan as mitigation to soften visual impacts of a structure was inadequate absent a commitment to shield a specific percentage (i.e. 25%, 50%, etc.) of the structure from view.   The First District stated “‘where a public agency has evaluated the potential significant impacts of a project and has identified measures that will mitigate those impacts,’ and has committed to mitigating those impacts, the agency may defer precisely how mitigation will be achieved under the identified measures pending further study.” (Original emphasis.)

Next, the First District reversed the trial court’s holding regarding the adequacy of the land use and planning analysis.  The EIR concluded that, with the exception of one issue that was identified and analyzed in the EIR, the project was consistent with applicable local plans.  The trial court concluded a more detailed discussion of how the project would impact various county general plan policies was required.  The First District first noted that “[d]etermining whether a project is consistent with general plan policies is left to the lead agency; ‘[i]t is emphatically, not the role of the courts to micromanage’ such decisions.” (Original emphasis.)  Next, the First District explained CEQA only requires an EIR to discuss inconsistencies between a project and applicable plans, not all the ways in which a project is consistent with such plans.  “The trial court’s ruling is tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan.  CEQA includes no such requirement.”

Turning to the adequacy of the seismology analysis, the First District noted that only generic concerns regarding earthquakes were expressed during the administrative process.  The EIR’s analysis of potential seismology related impacts more than adequately responded to those comments.

The Fist District next rejected the trial court’s conclusion that the EIR’s discussion of potential water quality impacts caused by process used to clean the pipeline (known as shock-chlorination) was inadequate.  The First District began its analysis by stating that “[u]nder the substantial evidence standard, the ‘question is whether [MMWD] reasonably and in good faith discussed [shock-chlorination] in detail sufficient for the public to discern from the []EIR the ‘analytical route … agency traveled from evidence to action.’’” The First District concluded the EIR did.  The First District also rejected the Petitioners argument that it was improper for MMWD to rely on evidence outside of the EIR to support the less than significant impact conclusion reached by the EIR; “when an EIR contains a brief statement of reasons for concluding an impact is less than significant, then the petitioner has the burden of demonstrating ‘the conclusion was not supported by substantial evidence in the administrative record.’” (Original emphasis.)

At trial, the court was particularly critical of the EIR’s conclusions that biological resources impacts caused by entrainment were less than significant. The First District once again disagreed.  The EIR discussed a variety of field sampling techniques employed to evaluate potential entrainment impacts.  The First District stated that “[f]ield sampling is often the sole evidence relied on by lead agencies in evaluating a project’s biological impacts.”  Therefore, “[u]nder the substantial evidence standard of review, the District’s initial sampling effort was more than adequate.”  Nevertheless, MMWD even went further and conducted a year-long pilot-scale desalination program.  NOAA Fisheries and CDFG expressed concerns with one aspect of data collected during the year-long pilot program.  Petitioners argued that MMWD’s decision not to follow the recommendations made by NOAA Fisheries and CDFG rendered the analysis inadequate.  The trial court agreed; however, the First District explained that “[t]his ruling ignores the substantial evidence standard of review.”  Based on the substantial evidence standard, “[t]he issue is not whether other methods might have been used, but whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.” MMWD did.  Therefore, notwithstanding the disagreement with NOAA Fisheries and CDFG, the analysis was adequate for the purposes of CEQA.  Additionally, in part because the environmental setting relied on the same biological resource data that the First District found sufficient, it held  “the EIR’s description of the environmental setting was more than adequate.”

The First District also concluded the mitigation measure proposed to address the project’s potentially significant aquatic noise and vibration impact was adequate.  The trial court found that the measure was not sufficiently specific.  The First District disagreed.  The Court explained that “the commitment to undertake consultation with NOAA Fisheries does not impermissibly defer to the future the identification measures.  Consultation with NOAA Fisheries must occur, both as part of the federal permitting process under the CWA and ESA, and under the express terms of the mitigation measure.  Such mitigation is adequate under CEQA.” (Original emphasis.)

Next, the First District rejected the trial court’s conclusion that the EIR should have included a green energy alternative.  The Court explained that “alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project.” (Original emphasis.)  The EIR concluded the project’s energy impacts were less than significant and the trial court held that conclusion was supported by substantial evidence. Therefore, “the EIR did not need to discuss further green energy credits as an alternative mitigation measure for the energy impacts of the Project.”

With respect to the GHG analysis, the First District reversed the trial court. Based on Assembly Bill No. 32 and MMWD’s own more aggressive goal to reduce GHG emissions, the threshold used in the EIR was whether the project would interfere with Marin County’s goal of reducing GHG emissions to 15 percent below 1990 levels by 2020.  The EIR concluded the project would not interfere with achieving that goal and, as a result, the project’s cumulative contribution was less than significant.  Additionally, in approving the project, the MMWD Board adopted a policy requiring all project-related GHG emissions be offset and the evidence demonstrated this policy commitment was feasible.  The Court also concluded the analysis and policy commitment were supported by substantial evidence.  Therefore, Petitioners’ challenge constituted nothing more than a disagreement with the conclusion reached in the EIR.  Such disagreement does not render an EIR inadequate.

Finally, Petitioners argued and the trial court agreed that the inclusion of a new alternative in the Final EIR required the EIR to be recirculated before certification.  The First District again disagreed.  The Court noted that “recirculation is ‘an exception rather than the general rule.’”  Therefore, “[a]n agency’s decision not to recirculate the draft EIR is entitled to substantial deference.”  The Court found that substantial evidence demonstrated that the new alternative was neither considerably different from other alternatives included in the Draft EIR nor feasible.  The alternative also failed to meet one of the project’s basic objectives.  As substantial evidence supported the finding that the alternative was not feasible, the First District concluded its inclusion in the Final EIR did not trigger recirculation.

The First District, therefore, reversed the trial court’s judgment against MMWD in its entirety.

Key Point:

Due to the substantial number of issues raised in this appeal, this decision is extremely helpful for lead agencies and project proponents. The decision helps to clarify the meaning and application of the substantial evidence standard of review in CEQA litigation. The decision also demonstrates that disagreements between a lead agency and other responsible and/or trustee agencies do not render an EIR inadequate. The decision further emphasizes that an EIR’s analysis of less than significant impacts need only be brief and a conclusion of less than significant may properly be supported by evidence outside the EIR and contained elsewhere in the administrative record. Finally, the decision supports the conclusion that 15% below 1990 GHG emissions by 2020 is an adequate significance threshold for analyzing GHG impacts.

Written By: Tina Thomas and Christopher Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

A Dark Day for Hoover High School – Court Finds Mitigated Negative Declaration for Stadium Improvements Inadequate

Tuesday, May 7th, 2013

In a decision that was ordered published on April 25, 2013, Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (March 26, 2013) 2013 Cal.App.LEXIS 324, the Court of Appeal, Fourth Appellate District, held that a high school could not use general obligation bond revenue to pay for new stadium lighting because the bond measure approved by voters did not specifically include new stadium lighting. The court further held that, under the California Environmental Quality Act (CEQA), the School District (District) improperly relied on a Mitigated Negative Declaration (MND) and instead was required to prepare an Environmental Impact Report. The court found evidence in the record sufficient to constitute a fair argument that the project may have significant environmental impacts due to increased traffic and parking demand. In reaching its conclusion regarding parking, the court disagreed with the Second Appellate District’s holding in San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656 that parking need only be considered a secondary impact under CEQA. In addition, the court upheld the MND’s project description and its analysis of aesthetics and historic resources. Lastly, the court upheld the District’s action exempting its 12 high schools from local zoning and land use laws, and held that such an action was not a “project” under CEQA.

On July 23, 2008, the District Board of Education (Board) approved Proposition S, authorizing the District to sell up to $2.1 billion in general obligation bonds for the construction, reconstruction, or replacement of school facilities, including a project to upgrade Hoover High School athletics facilities (project). The project would include football stadium bleacher replacement and new lighting for the football field. The District completed an initial study and the Board adopted a mitigated negative declaration (MND) finding there was no substantial evidence the project, as mitigated, would have a significant effect on the environment. Additionally, the Board adopted a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws.

The court first looked at whether the District could use Proposition S funds to provide new stadium lighting at Hoover High School. The voters’ pamphlet description of Proposition S enumerated specific projects that would be funded by the bonds. The pamphlet included the words “field lighting,” however, the court held that the measure only provided lighting costs that were necessary for the completion of the enumerated projects, which did not include new stadium lights.

Regarding the CEQA claims, Taxpayers alleged the project description was misleading and caused the District to underestimate the project’s potential environmental impacts. Specifically, Taxpayers argued the description of the anticipated number of evening events to be held at the football stadium after project completion was misleading. The court disagreed, explaining that CEQA only required the District to make a “fair assessment or “estimate” of the number of evening events and that the District’s estimate was adequate. Additionally, the court held CEQA does not require the District to limit evening events to a finite number in the project description.

Taxpayers also argued the MND was flawed because it improperly calculated evening event attendance. The District used zero as a baseline for attendance at evening events because no evening events currently existed. The District then calculated the expected attendance after completion of the project based on the average attendance at football games at five of the District’s 16 high schools. The court found this methodology flawed because the baseline should have taken into consideration attendance of afternoon games at Hoover High School and the record lacked evidence to support the estimated attendance. The court held the District was therefore unable to adequately compare the baseline attendance to expected attendance in determining whether there was a fair argument that the project may have significant impact on traffic and/or parking.

The court also agreed with Taxpayers that an EIR was required for the project because a fair argument could be made that the project may result in significant parking and traffic impacts. The court disagreed with the District’s assertion that parking impacts do not constitute a significant impact on the environment under CEQA. In doing so, the court expressly disagreed with a Second Circuit opinion, San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656, which held that parking was merely a social inconvenience that could only be addressed under CEQA as a secondary impact, if at all. The court pointed to CEQA Guidelines explaining that while the guidelines do not set forth an exclusive list of all potential impacts that must be addressed if “substantial evidence of potential impacts that are not listed . . . must also be considered.” (Guidelines, append. G.) The Court held that parked cars are physical objects and can therefore have a direct impact on the physical environment. The court explained personal observations and opinions of local residents constituted substantial evidence that the project may have a significant impact on parking and therefore parking impacts should have been treated as a direct physical impact.

The court also found there was substantial evidence to support a fair argument that the project may have significant traffic impacts. The court explained that, despite the District’s faulty attendance analysis (discussed above), consensus was the project would cause evening attendance to increase, and therefore a fair argument existed that the project may have significant impacts on traffic and circulation.

Lastly, the court held the Board’s adoption of a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws was proper and was not a “project” within the meaning of CEQA. The court held the adoption of the resolution was neither an “approval” nor a “project.” It was not an “approval” because it did not commit the District to “a definite course of action in regard to a project.” (Guidelines, § 15352, subd. (a).) It was not a “project” because it was not itself “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code, § 21065.) The term project does not mean each separate governmental approval. (CEQA Guidelines, § 15378, subd (c).) However, the actual approval of each of the 12 projects, which the resolution makes exempt from city zoning and land use laws, are considered projects under CEQA. Each will require CEQA review before approval.

Key Point:

The decision creates a split in authority concerning the requirement to analyze parking shortages pursuant to CEQA. Until the Supreme Court addresses this disagreement between First and Fourth District Courts of Appeal, the cautious approach would be to analyze potential impacts to parking as part of the environmental analysis for projects.