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FOURTH APPELLATE DISTRICT REJECTS CHALLENGE TO MITIGATED NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT PROJECT

Monday, November 2nd, 2015

In an unpublished decision, Save Desert Rose v. City of Encinitas, 2015 Cal. App. Unpub. LEXIS 7685, the Fourth Appellate District reversed the judgment of the trial court and held Save Desert Rose (Petitioner) failed to demonstrate that substantial evidence supported a fair argument that a proposed 16 single-family home subdivision project (Project) may have a significant effect on the environment.  As a result, the Court found the Encinitas City Council’s reliance on a mitigated negative declaration (MND), rather than an environmental impact report (EIR), to approve the Project complied with the California Environmental Quality Act (CEQA).

In reaching this decision, the Court conducted an independent review of the record to determine if substantial evidence supported a fair argument with respect to any of the nine claims raised by Petitioners. In doing so, the court clarified that the fair argument standard is a question of law and therefore did not defer to either the lead agency’s or trail court’s determination on the issue. However, the Court noted that the Petitioner bore the burden of proof in demonstrating that a fair argument of a potentially significant impact could be made from substantial evidence on the record.

In conducting its independent review, the court undertook a comprehensive analysis of Petitioner’s nine challenges including alleged potentially significant impacts to raptors, wetland habitat, aesthetics and views, community character, stormwater management, erosion during construction, traffic, vehicular safety hazards, and parking. With respect to each, the Court concluded no substantial evidence in the administrative record supported a fair argument the Project may have a significant effect on the environment within the meaning of CEQA.

Notably, the court determined that a traffic study cited by the challengers did not support a fair argument because it was found to be flawed by the City’s traffic engineering division and other independent experts in the field. Further, the court found no fair argument that impacts on biological resources (including riparian habitat and the possible existence of raptors) within the proposed development site could not be mitigated below significance, relying in part on statements from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service in support of the proposed mitigation measures.

Additionally, the court found no fair argument in support of impacts to water quality and drainage because additional permits and conditions for approval were required before the applicant could proceed. Specifically, before issuing a grading permit the City requires compliance with stormwater quality regulations as set forth in its Stormwater Manual and Best Management Practices Manual, as well as preparation of a Stormwater Pollution Prevention Plan as required by the State Water Resources Control Board. Therefore, the court held that no fair argument existed even though precise mitigation details would not be available until the applicant applied for a grading permit.

NEW GUIDANCE ON BASELINES WHEN PROJECT IS REUSING OR REPLACING AN EXISTING BUILDING

Wednesday, October 28th, 2015

On October 9, 2015, the Court of Appeal partially published the Fourth Appellate District’s opinion in North County Advocates v. City of Carlsbad (2015) 2015 Cal.App.LEXIS 891 (North County).

The published portion of the opinion discusses an important exception to the traditional baseline determination under the California Environmental Quality Act (CEQA). Generally, the baseline consists of “the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental review is commenced.”  (CEQA Guidelines, § 1525, subd. (a).)  However, there is an alternative approach in which the lead agency may look back to historic conditions to establish a baseline.  (See Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 327-328; Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 337-338.)

In North County, the City of Carlsbad applied this approach to a commonly occurring situation—renovation or replacement of an existing building that was previously fully occupied and is now vacant or minimally occupied.  The project at issue was the demolition and reconstruction of an existing department store that had been vacated in 2006 and was now only periodically occupied by seasonal retail.  Despite that fact, the City established a traffic baseline using data from when the store was fully occupied.  The Court found this decision was within the City’s discretion and that the selected baseline was supported by substantial evidence.

Because the building had previously been occupied and had generated significant amounts of traffic, the Court distinguished this situation from cases in which the baseline was based on hypothetical conditions that were permissible pursuant to an existing plan or regulation but had not actually occurred “on the ground.” The Court held that due to the fluctuating occupancy of the building, the City had discretion “to consider conditions over a range of time periods” to account for a “temporary lull or spike in operations.”

Key Point:

A lead agency has the discretion to consider conditions over a range of time periods when determining baseline conditions for an existing facility with variable levels of historic operations. The lead agency’s determination should be upheld if supported by substantial evidence.

Supreme Court Rejects the California State University System’s Erroneous Interpretation of City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 Regarding its Duty to Mitigate Off-Campus Impacts

Tuesday, August 11th, 2015

After months of anticipation, the Supreme Court issued its ruling on City of San Diego v. Trustees of the California State University, S199557, affirming the appellate court’s ruling that the California State University (CSU) should have evaluated one or more possible project modifications to its Project to reduce or avoid unmitigated off-site traffic impacts.

The case centered on CSU’s plans to expand San Diego State University to accommodate more than 10,000 additional students – part of a statewide program to expand CSU’s statewide enrollment capacity by 107,000. Although CSU has budgeted substantial state and non-state funds to expand its campuses, CSU has repeatedly declined to use its financial resources to reimburse other public agencies for its self-determined fair share of mitigating its projects’ off-campus environmental effects. Instead, CSU argued  that pursuant to City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 (Marina) it may not lawfully pay to mitigate off-campus environmental effects of its projects unless the Legislature makes an appropriation for that specific purpose. CSU argued that, because the Legislature may not make appropriations for CSU’s off-site mitigation purposes, such mitigation was infeasible. Applying its interpretation of Marina, CSU certified the San Diego State University EIR based on a statement of overriding considerations, determining that the project’s benefits outweigh its unmitigated effects.

The Court rejected CSU’s interpretation of Marina, applying a de novo standard of review. The Court held that Marina did not justify CSU’s position that CSU may only contribute funds for off-campus mitigation if designated for that specific purpose. First, the Court held that CSU enjoys some discretion over the use of appropriations. (Citing Ed. Code, §§ 89770, 89771, 89771, 89773, 90083.) Second, neither Marina nor any other decision suggests that mitigation costs for a project funded by the Legislature cannot appropriately be included in the project’s budget and paid with the funds appropriated for the project; this is in-line with CEQA’s directive which requires that “[a]ll state agencies . . . shall request in their budgets the funds necessary to protect the environment in relation to the problems caused by their activities.” (Pub. Resources Code, § 21106; cf. County of San Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 101-105.) Third, no provision of CEQA conditions the duty of a state agency to mitigate its project’s environmental effects on the Legislature’s grant of an earmarked appropriation. Finally, the Board’s improper application of Marina depends on a legally unsupportable distinction between environmental impacts occurring on the project site and those off-site.

The Court stressed that CSU’s proposed interpretation of Marina would lead to unreasonable consequences. The Court recognized that such a holding would apply to all state agencies, effectively forcing the Legislature to sit as “a standing environmental review board to decide on a case-by-case basis whether state agencies’ projects will proceed despite unmitigated off-site environmental effects.” (Opinion, p. 19.) The Court also recognized that under CSU’s interpretation, if the responsible state agency were to proceed with a project without mitigation because the Legislature did not earmark funds, the cost of addressing a project’s contribution to cumulative impacts would place a financial burden on local and regional government agencies. Further, CSU’s interpretation would render off-site mitigation infeasible for many if not all state projects and more projects would proceed without mitigation pursuant to statements of overriding considerations. The Court also rejected CSU’s new arguments under Education Code section 67504, Government Code section 13332.15, and Education Code section 66202.5.

Ultimately, the Court held that its rejection of CSU’s interpretation of Marina would preclude the Board from finding mitigation infeasible due to unavailability of earmarked funding for future projects. While CSU’s core function may be education, it also has a duty to “avoid or mitigate the environmental effects of its projects.” (Opinion, p. 26-27.)

Key Point:

State agencies may not avoid their duty to avoid or mitigate the environmental effects of their projects simply because the Legislature has not earmarked funds for “mitigation.” Lead agencies have a duty to consider alternative mitigation measures or alternative funding measures for off-site impacts where its preferred mitigation is uncertain.

Supplement to 16 year old EIR is Acceptable, Project Proponents Need Not Address Every Comment Following Public Review.

Tuesday, July 7th, 2015

In City of Irvine v. County of Orange, (July 6, 2015, G049527)__Cal.App.4th__, the Fourth District Court of Appeal affirmed the adequacy of a Supplemental Environmental Impact Report (SEIR) prepared approximately 16 years after the original EIR was adopted. The court granted publication on July 7, 2015.

The dispute began in 1996 when the City of Irvine (Irvine) challenged the County of Orange’s (County’s) certification of an Environmental Impact Report (EIR) involving the expansion of the Musick Facility (Musick). The Musick facility is a 1,200 inmate jail, and the proposed expansion would make it a 7,584 inmate jail. In Musick I, the court held that the 1996 EIR was adequate, but the project fell through for financial reasons.

In 2011, newly available state funding revived the Musick project. Irvine immediately challenged the County’s application for state funding, alleging that the application for funding itself required an EIR. In Musick II, the court held that there was no need for a new EIR just to apply for state funds.

The County then prepared an SEIR to the 1996 EIR.  The SEIR reflects major changes that have taken place in the area surrounding Musick over the 16 years separating the two documents. First, a proposed airport that was supposed to be built next to the facility was scrapped in favor of a large park. Second, agricultural land around the facility and in the County almost entirely disappeared. Following the County’s certification of the SEIR, Irvine immediately sued, seeking a writ of mandate to invalidate the SEIR, but the trial court denied Irvine’s petition.

On appeal, Irvine raised four arguments: (1) the changes since the 1996 EIR warranted a new EIR, (2) the EIR’s traffic study was inadequate, (3) the mitigation measures for the loss of agricultural land were inadequate, and (4) the County’s responses to comments on SEIR were inadequate. The court of appeal disagreed with Irvine on all its arguments and held for the County.

Irvine argued that the significant changes between the 1996 EIR and SEIR warranted a new EIR altogether. The court disagreed.  While the CEQA Guidelines state that a lead agency “may” prepare a supplemental EIR where “[o]nly minor additions or changes would be necessary to make the previous EIR adequate to apply to the project in the changed situation” (CEQA Guidelines, § 15163), the court noted that a “subsequent” EIR and a “supplemental” EIR are statutorily similar in their requirements.   Moreover, the court explained that the appropriate judicial approach is to look to the substance of the EIR, not its nominal title.

Next, Irvine challenged the SEIR’s traffic study. It alleged that the SEIR is inconsistent in its descriptions of project phasing because it uses 2014 as the date an initial phase of the prison expansion would be completed when the evidence demonstrates the initial phase will not be completed until 2018.  While the court acknowledged an accurate, stable and finite project description is critical, the court explained that evaluation of interim traffic impacts based on anticipated future construction necessarily cannot be predicted with certainty.  Furthermore, the court concluded even if delays in the start of construction resulted in discrepancies, it was nothing more than an “insubstantial and technical error.”

Irvine also alleged that the mitigation measures for the loss of agricultural land were inadequate. But, the court noted that the price of land in the County had far outgrown any feasible level for agriculture to remain profitable. The court noted that a land price of $60,000 per acre is approximately the break-even point for agricultural profitability, and land in the County was averaging $2 million per acre in 2012.

Finally, Irvine argued that the County’s allegedly deficient responses to their comments on the SEIR required a new EIR. Irvine had submitted 88 comments on SEIR, and challenged eight of the responses given by the County. The court noted that the CEQA Guidelines do not specifically require responses to comments, only responses to “significant environmental issues raised.” The court explained:

When a comment raises a “significant” environmental issue, there must be some genuine confrontation with the issue; it can’t be swept under the rug. Responses that leave big gaps in the analysis of environmental impact are obviously inadequate. By the same token comments that bring some new issue to the table need genuine confrontation. And comments that are only objections to the merits of the project itself may be addressed with cursory responses.

The court held that many of Irvine’s comments were “objections to the merits of the project” that the County adequately addressed with cursory responses. For the remaining comments, the court found the County’s responses to be adequate.  The court noted further that the case was “drowning in ‘paperwork’” and Irvine failed to demonstrate any prejudice resulting from the alleged inadequate responses.

Key Point

Age does not automatically render an EIR invalid.  Additionally, the appropriate judicial approach to evaluating an EIR is to look to its substance, not its nominal title.  Furthermore, CEQA Guidelines only require responses to “significant environmental issues raised.”  Comments that do nothing but object to the project’s merits may be addressed with cursory responses.

Double Dribble: Court Rejects Second CEQA Lawsuit Over the Downtown Sacramento Arena

Thursday, March 5th, 2015

In Saltonstall v. City of Sacramento, 2015 Cal. App. LEXIS 150, the California Third District Court of Appeal affirmed the trial court’s denial of a writ of mandate challenging the environmental impact report (EIR) for an arena in downtown Sacramento (arena project) and held the City of Sacramento (City) did not prematurely commit itself to the downtown arena project before completing the EIR.

The case is the second time the Third District Court of Appeal ruled on the arena project in three months. (Summary of Saltonstall I by the Thomas Law Group available here: http://www.thomaslaw.com/blog/appellate-court-upholds-ceqa-amendments-streamlining-approval-sacramento-arena-project/) In that case, the court held the amendments to the California Environmental Quality Act (CEQA) streamlining the review of the arena project did not violate the constitutional separation of powers.

In the instant case, the court first rejected petitioners’ argument that the City violated CEQA by committing itself to the arena before completing the proper environmental review. The court explained the City’s nonbinding term sheet with the arena project developer expressly provided that all proposed terms of the development were subject to CEQA review. Also, the exercise of eminent domain to secure a site for the arena project did not constitute a commitment to the ultimate project site requiring prior CEQA review. The court reasoned that together CEQA Guidelines section 15004, which permits entering into land acquisition agreements as long as the public agency conditions the future use of the site on CEQA compliance, and Public Resources Code section 21168.6.6, which expressly authorized the City to prosecute the eminent domain action at issue prior to completing CEQA environmental review, demonstrated the City’s eminent domain action did not improperly commit it to the arena project.

Next, the court held the EIR was not deficient for failing to include a remodel of the City’s current basketball arena as a project alternative. The City’s objectives for the arena project included the revitalization of downtown and building a state-of-the-art entertainment venue. Even if remodeling the existing arena might be environmentally superior, the court concluded a remodeled arena would not meet the City’s downtown redevelopment objectives.

 

The court also rejected petitioners’ other challenges to the arena project. The court held substantial evidence supported the City’s traffic analysis conclusions and the City was under no obligation to conduct further studies simply because petitioners desired a more thorough review. The court also rejected petitioners’ argument that the EIR was deficient for not including an analysis of crowd safety impacts. The court reasoned CEQA was limited to impacts to the physical environment, which did not include crowd safety. Finally, the court stated petitioners forfeited their request to introduce certain material into the administrative record by failing to offer any meaningful analysis on the issue.

KEY POINT

The CEQA objectives for a project are critical when courts review the alternatives analysis in an EIR. Because the City established its objectives as requiring revitalization of downtown, other alternatives outside of the downtown area that may have had less of an environmental impact could properly be rejected.

When is Agency Action Considered a Project under CEQA? When the Legislature Says So.

Wednesday, October 1st, 2014

In Rominger v. County of Colusa, 2014 Cal. App. LEXIS 813, the Court of Appeal for the Third District overturned the trial court and held a proposed subdivision approved by Colusa County was a project under the California Environmental Quality Act (CEQA), even though the proposal did not include any specific plans for development. The appellate court went on to find that substantial evidence in the record supported a fair argument that the project may have a significant unmitigated impact on traffic at a particular intersection adjacent to the project site. Accordingly, the appellate court reversed and remanded for the preparation of an environmental impact report (EIR).

In 2009, real party in interest, Adams Group Inc., filed an application for a tentative subdivision map to divide four parcels into sixteen parcels. The application included no specific plan for future use of the property. The County conducted an initial study and then a revised study, and eventually adopted a mitigated negative declaration, concluding that impacts of the project could be mitigated to a less-than-significant level. Neighbors opposed the project throughout the review process and sought to compel preparation of an EIR for the subdivision.

The court first reversed the trial court and determined that the subdivision was a project under CEQA. Section 21080 of the Public Resources Code specifically includes approval of a tentative subdivision map as a project under CEQA. The court also found that the common sense exemption to CEQA review did not apply because the County could not show there was no possibility that approval of the subdivision could lead to a significant effect on the environment at some point in the future.  

The court then considered each of the seven environmental areas that the petitioners contended would be significantly impacted by the subdivision. The petitioners’ traffic expert showed the County improperly relied on a continued agricultural use for the subdivision when the County conducted its analysis. The court considered the traffic expert’s specific facts, such as the subdivision’s proximity to a major highway, and concluded substantial evidence supported a fair argument that the subdivision may have a significant environmental impact on traffic.

The court dismissed arguments related to impacts on agriculture, odor, noise, air quality, greenhouse gas emissions, and water supply. The mitigation measures the County required to address these areas adequately addressed any significant environmental impacts and no substantial evidence to the contrary had been provided.

The court also found the County abused its discretion by failing to provide a full thirty-day public review period for the mitigated negative declaration. The County issued notice that the public comment period would be August 7 to September 5.  Since September 5 was a holiday, the comment period was only twenty-nine days. However, the court ultimately concluded this was not a prejudicial error

KEY POINT

Whether an approval is considered a project for purposes of CEQA review is not a fact-based inquiry when the type of activity is expressly listed in Public Resources Code section 21080 subdivision (a). The Legislature determined that certain activities always have the potential to impact the environment and a lead agency’s determination of no significant impact does not alter this conclusion.

Mining the Administrative Record for Answers: Appellate Court Reverses Trial Court for Ignoring Substantial Evidence and Making Improper De Novo Determinations on Quarry Project

Thursday, June 12th, 2014

In an unpublished decision, Citizens Advocating for Roblar Rural Community v. County of Sonoma, 2014 Cal. App. Unpub. LEXIS 3393, the Court of Appeal for the First District reversed the trial court’s decision granting a petition for writ of mandate that challenged County certification of a final environmental impact report (EIR) and issuance of necessary land use permits for an aggregate quarry.

In December 2010, the County of Sonoma certified an EIR for development of a 65-acre quarry pit for mining and processing of approximately 570,000 cubic yards of aggregate material annually.  Petitioner filed a petition for a writ of mandate challenging the county’s quarry project approvals in January 2011. The trial court granted the petition in part, finding that failure to study potential water quality contamination from a neighboring landfill resulted in factual conclusions unsupported by substantial evidence.  The trial court also found that mitigation measures were inadequate or constituted a prohibited deferral of mitigation, and that the EIR’s analysis of the impact of widening an access road on an adjacent creek was inadequate.

On appeal, the court reversed, finding that the trial court improperly ignored substantial evidence supporting the county’s actions and made improper de novo determinations.  First, with respect to petitioner’s argument that the EIR did not adequately study potential groundwater quality impacts, the EIR acknowledged the risk that contaminants from the landfill could seep into the quarry site as a result of mining operations.  Petitioner contended that the county should have conducted testing to determine the risk posed to regional water quality.  Instead, the county relied on groundwater monitoring well data and subsurface exploration to support its finding that the risk to groundwater quality was less than significant.  The court of appeal found substantial evidence supported the county’s conclusion, which must be upheld even if another conclusion could have been reached.

Next, the court addressed allegations that the EIR failed to properly analyze traffic mitigation.  The County concluded that roadway improvements on Roblar Road , which were required to mitigate traffic impacts, would have less than significant secondary impacts on the adjacent Americano Creek. The court found that the secondary environmental impacts of offsite mitigation measures, including widening of access roadways, were catalogued and discussed in significant detail in the EIR. Petitioner argued that the road widening was an integral aspect of the project as a whole requiring complete analysis. The court rejected this argument since this would eliminate any distinction between primary and secondary environmental impacts by making all proposed mitigation a “project component.”

Finally, petitioner contended that the EIR was inadequate because mitigation measures to address impacts to protected species did not describe, analyze, or mention the site of a required offsite mitigation preserve, precluding the county from determining if the mitigation was even feasible. The court found that the county did not defer mitigation because it properly identified a specific means of mitigating for the loss of habitat through the creation of habitat or preservation of existing habitat at a ratio consistent with state and federal law. The county could rely on future study to identify the particular details of mitigation measure implementation, including habitat location.

Key Point:

This case highlights the deferential treatment that courts give to lead agencies in reviewing EIR adequacy; despite the potential to arrive to alternate conclusions, the lead agency’s determination will be upheld as long as it is supported by substantial evidence. In addition, this case upholds reliance on later approvals from responsible agencies to mitigate for loss of habitat where the EIR species the impact and requires replacement of lost habitat in a manner consistent with state and federal law.

California Supreme Court Issues Neighbors for Smart Rail Decision: Predicted Conditions Baseline Allowable Under CEQA in Limited Circumstances

Monday, August 5th, 2013

In a much anticipated decision, the California Supreme Court held in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority that lead agencies can use future predicted conditions as an environmental baseline in assessing the impacts of proposed projects. The court held that in order for an agency to omit the normally required existing conditions baseline analysis and rely solely on a predicted conditions baseline, it must first demonstrate that the existing conditions analysis would be uninformative or misleading. In doing so, the court disapproved of the holdings in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale) and the Fifth Appellate District’s decision in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (MOC).

The dispute in Neighbors for Smart Rail originated over the second-phase of a transit project called the Exposition Transit Corridor, a proposed light rail line connecting downtown Los Angeles with Santa Monica. The Exposition Metro Line Construction Authority (“Expo Authority”) approved the project on February 4th,
2010.

The central issue in the case is the environmental baseline that was used to evaluate traffic, air quality, and greenhouse gases. CEQA Guidelines section 15125(a) states that an EIR “must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, … [t]his environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” Lead agencies have relied on the use of the word “normally” in the guideline to use environmental baseline based on conditions that exist after the publication of a notice of preparation (“NOP”). This typically happens for large projects that will be constructed over a long period of time. Lead agencies often argue that a future environmental baseline reflecting the likely conditions in which the project will be built gives a more accurate assessment of the project’s impacts.

The Supreme Court addressed a related environmental baseline issue in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310 (“CBE”). There, the court held that a petroleum refinery project must use actual historical emissions as its environmental baseline for evaluating a proposed expansion; it was impermissible to use maximum permitted capacity as a hypothetical baseline. The court noted that neither CEQA nor the CEQA Guidelines “mandates a uniform, inflexible rule for determination of the existing conditions baseline. Rather, an agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can most realistically be measured, subject to review, as with all CEQA factual determinations, for support by substantial evidence.” The court did not address whether a future baseline reflecting an agency’s projected environmental setting could be used as the basis for analysis in an EIR.

Since CBE, two appellate districts have held that agency’s may not use a projected environmental setting beyond the date of project approval. The Sixth Appellate District’s decision in Sunnyvale and the Fifth Appellate District’s decision in MOC both held that projected future conditions provide an improper baseline for determining traffic impacts.

In preparing the EIR for the Exposition Transit Corridor, the Expo Authority determined that a 2009 baseline (when the NOP was published) would not provide a reasonable basis for determining the project’s traffic and air quality impacts. The EIR instead uses a 2030 baseline that the agency determined based on projected changes in the environmental setting between 2009 and 2030. This approach would be a clear violation of CEQA under Sunnyvale or MOC.

The Second District disagreed with the Sunnyvale and MOC opinions and upheld the Expo Authority’s use of a future baseline. The Second District held that “in a proper case, and when supported by substantial evidence, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air quality and greenhouse gas emissions. As a major transportation project that will not even begin to operate until 2015 at the earliest, its impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public.”

The Supreme Court struck a balance between the split in the appellate districts. The court agreed with the Second District, and correspondingly disapproved of Sunnyvale and MOC, in holding that agencies may rely solely on a predicted conditions baseline. The court’s decision also imposes a new requirement that will result in a more restrictive use of future baselines than what would have otherwise been permissible under the Second District’s ruling. The court held that agencies can rely solely on a predicted conditions baseline only after they justify the omission of an existing conditions baseline. Before an agency can eliminate an analysis based on existing conditions, it must first determine, based on substantial evidence, that the inclusion of an existing conditions analysis would be misleading or without informational value.

The court stated, “[t]o the extent a departure from the ‘norm[]’ of an existing conditions baseline (Guidelines, § 15125(a)) promotes public participation and more informed decisionmaking by providing a more accurate picture of a proposed project’s likely impacts, CEQA permits the departure. Thus an agency may forego analysis of a project’s impacts on existing environmental conditions if such an analysis would be uninformative or misleading to decision makers and the public.”

The court then applied this rule to the present case and held that, while Expo demonstrated that a predicted baseline was a more informative analysis, there was no evidence in the record that an existing conditions analysis would have been uninformative or misleading. The court implied that in this case, the lead agency should have analyzed the project’s impacts against an existing conditions baseline as well as a predicted baseline. Nonetheless, the court held that under these circumstances, the omission of an existing conditions baseline did not deprive decision makers or the public of substantial information relevant to approving the project, and was therefore a non-prejudicial error.

The court also upheld the adequacy of mitigation for spillover parking effects, which was the only other issue before the court. The court held that the agency made the proper findings for reliance on local jurisdictions to implement mitigation measures and that the findings were supported by substantial evidence. The Petitioner’s speculation that local agencies may not agree to permit the parking facilities was not sufficient to show that the mitigation measures violated CEQA.

Key Point: The baseline issue has important implications for all environmental review documents under CEQA as it affects the underlying basis of the analysis. After this decision, agencies have the discretion to rely solely on a predicted conditions baseline; however, in doing so, agencies must be sure to demonstrate that the inclusion of an existing conditions baseline would be uninformative or misleading. It is not enough to show that the predicted conditions baseline is supported by substantial evidence or that it is more informative than the existing conditions baseline. Agencies would be wise to include explicit findings in their project approval documents supporting the determination to rely solely on a predicted conditions baseline.

Appellate Court Does Not Review City’s Nonpecuniary Interests to Determine If City Qualifies for Attorney Fees, But Rather Bases Award of Fees on Number of Issues Won

Tuesday, August 7th, 2012

In City of Maywood v. Los Angeles Unified School District (2012) __ Cal.App.4th __ (Case No. B233739), the City of Maywood (City) filed a petition for writ of mandate to overturn the Los Angeles Unified School District’s (LAUSD) certification of a final environmental impact report (FEIR) prepared for a high school. The Second District Court of Appeal upheld the FEIR, with the exception of the pedestrian safety analysis, and addressed the issue of attorney fees in the published portion of the decision.

City’s petition for writ of mandate challenged the FEIR as deficient under the California Environmental Quality Act (CEQA) on a number of grounds, and alleged also that the FEIR violated the Education Code. While the trial court rejected the majority of City’s claims, it found that the FEIR was deficient by failing to adequately assess pedestrian safety, discuss project alternatives, investigate potential impacts from hazardous materials, and comply with Education Code Sections 17211 and 17213.1. The trial court issued a peremptory writ and awarded City approximately $670,000.00 in attorney fees under Code of Civil Procedure section 1021.5. The Appellate Court affirmed the section of the writ addressing pedestrian safety, and reversed the remainder, including the award of attorney fees.

In the unpublished portion of the opinion, the court began by affirming that LAUSD must revise its FEIR to include an analysis of potential pedestrian safety impacts caused by the proposed project design, specifically the continued use of the roadway bisecting the campus, and how a pedestrian bridge traversing the road would alleviate those impacts.

The remainder of the writ was reversed. The court concluded that LAUSD was not required to analyze the cumulative impacts of the I-710 corridor project. Because the I-710 corridor project was still in the planning stages, City had to prove that the project was a “reasonably foreseeable probable future” project. City failed to do so; therefore the court ruled that the FEIR’s impact analysis was adequate.

The court also upheld LAUSD’s discussion of environmental impacts from hazardous materials. Even though LAUSD certified the FEIR and approved the project site before completing a remediation plan, the court explained that if an agency determined the impacts, examined various mitigation measures, and committed itself to mitigating those impacts, then choosing the specific mitigation measure can be deferred.

Next, the court concluded that the FEIR contained a meaningful analysis of alternatives and provided reasonable explanation for electing not to include alternatives recommended by City. The court concluded that substantial evidence in the record supported LAUSD’s determination that the alternative proposed by City was infeasible and that the FEIR’s assessment of alternatives was adequate. Therefore, the court upheld the alternatives analysis.

The court also upheld the FEIR as compliant with the Education Code. Education Code sections 17211 and 17213.1 require school districts to fulfill certain requirements before acquiring a school site. LAUSD only certified a FEIR and approved a school site; it did not violate the Education Code because it had yet to acquire the project site.

In the only published portion of the opinion, the court reversed the award of attorney fees. On appeal, LAUSD argued that City failed to satisfy the “necessity and financial burden” criteria of section 1021.5 because the lawsuit was self-serving. City responded that its non-financial interests should not play a role in determining whether it qualifies for fees. To resolve this issue, the court turned to the California Supreme Court’s decision in Conservatorship of Whitley (2010) 50 Cal.4th 1214 (Whitley), which clarified that a party’s personal, nonpecuniary interests may not be used to disqualify the party from obtaining fees under Section 1021.5. Whitley involved a private enforcement action; however, the court extrapolated the holding to apply to public entities as well. Based on the court’s application of the Whitley holding to this case, the court concluded that an award was proper but explained that the award should be adjusted to the new judgment. Therefore, the court ordered the trial court to reassess whether fees are appropriate given the new judgment, and if so, to determine the appropriate amount of fees.

Key Point:

Nonpecuniary interests do not prevent a petitioner from obtaining attorney fees under Section 1021.5. However, where an appellate court overturns some of the issues upon which a petitioner prevailed at trial, the court may remand the award for the trial court to reconsider the amount of the award based on the new judgment.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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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.

Appellate Court Upholds City’s Approval of Large Commercial Project Even with Unknown Impacts on Greenhouse Gas Emissions, Deferred Mitigation, and Rejected Alternative

Monday, August 6th, 2012

UPDATE: On August 27, 2012, the Fourth Appellate District Court certified Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849 for full publication.

In a decision certified for partial publication, Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849, the Fourth Appellate District Court upheld the City of Rialto’s (City) approval of a 230,000 square-foot commercial retail center with a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth (Citizens) challenged the City’s certification of the environmental impact report (EIR) and approval of the project alleging violations of the Planning and Zoning Law and the California Environmental Quality Act (CEQA). After reviewing the City’s actions, the appellate court found no prejudicial abuse of discretion and overturned the lower court’s judgment in its entirety.

In the published portion of the opinion, Citizens argued the City violated the Planning and Zoning Law by releasing a notice of public hearing omitting the planning commission’s recommendations, and by approving the development agreement without expressly making a finding that the agreement was consistent with the general and specific plans of the project site. The court agreed with Citizens on both counts. However, due to Citizens’ failure to show prejudice, substantial injury, or probability of a different result, the court concluded the errors were harmless and upheld the City’s actions.

In the unpublished portion of the decision, Citizens alleged that the City had violated CEQA; the court upheld the City’s actions and the EIR on all counts. First, the court found the project description was incomplete because it did not include the development agreement in a listing of “permits and other approvals required to implement the project.” However, the omission did not prevent informed decision-making and therefore the purposes of CEQA were still fulfilled.

Second, the court held the EIR had adequately analyzed the project’s cumulative impacts on both traffic and air quality. The court explained that the traffic analysis complied with CEQA by relying on a summary of projections contained in a prior environmental document. With regard to air quality, the EIR concluded the project would have a significant cumulative impact since the project alone would release emissions beyond the recommended threshold. The court therefore affirmed the City’s decision to analyze the project’s cumulative impacts on air quality based on the project’s emissions alone, as opposed to in relation to other nearby projects.

Third, the court upheld the EIR’s discussion on the project’s cumulative impacts on greenhouse gas emissions and global climate change, as well as its conclusion that the impacts were too speculative to determine. According to CEQA, if an agency conducts a thorough investigation and finds that an impact is too speculative for evaluation, “the agency should note its conclusion and terminate discussion of the impact.” The court found the City had conducted a thorough investigation and researched the methodologies that were available. Given the absence of established guidelines or methodologies with which to measure the project’s individual impact on greenhouse gases, the court held the City did not abuse its discretion in concluding the impacts were too speculative to determine.

Fourth, the court found the EIR’s mitigation measures to reduce biological impacts on potentially occurring “special status” plant and animal species were sufficiently definite and did not constitute improper deferral. The court explained that the mitigation measures incorporated specific performance criteria, such as “formal consultation” with either the U.S. Fish and Wildlife Services or the California Department of Fish and Game, and therefore were not so open-ended as to allow potential impacts on the species to remain significant.

Lastly, the court concluded the City properly rejected the “reduced density alternative.” Pursuant to CEQA, an agency cannot approve a project with significant environmental impacts unless it looks at alternatives, but it can reject an alternative as infeasible if the alternative does not meet the project’s objectives. While the City’s project has significant impacts and is environmentally inferior to the “reduced density alternative,” the court found substantial evidence supporting the City’s infeasibility determination.

Key Point:

Pursuant to Government Code section 65010, a party challenging an agency’s actions based on violations of the Planning and Zoning Law must establish that such errors were prejudicial. The CEQA portion of the decision was not published. The decision addresses a number of reoccurring CEQA issues. If published, the decision would provide important guidance concerning analysis of cumulative impacts, greenhouse gas emissions, alternatives, and deferred mitigation.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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