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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Initial Studies Posts


IN UNPUBLISHED OPINION, COURT OF APPEAL UPHOLDS CEQA REVIEW FOR FRESNO’S FULTON MALL PROJECT

Monday, August 15th, 2016

The City of Fresno’s Fulton Street lies in the heart of its downtown and was once a bustling commerce center lined with numerous retailers. Suburbanization drew those retailers to the periphery of town in the 1950s. In the early 1960s, in an attempt to revive its urban core, the City turned Fulton Street into Fulton Mall, a 6-block pedestrian mall. Fulton Mall featured planting beds with shade trees, shrubs, and flowers; water fountains, pools, and streams; shade pavilions, siting areas, and playgrounds; and sculptures and mosaic artwork. Unfortunately, interest in Fulton Mall declined by the 1970s and it soon became plagued by high crime rates, deteriorating physical conditions, and low lease rates.

In 2011, the City of Fresno released a draft Fulton Corridor Specific Plan that identified three ways of improving Fulton Mall: (1) reintroduce two-way car traffic throughout the Mall; (2) reintroduce two-way car traffic but keep selected original features of the Mall; or (3) keep the Mall as pedestrian only and invest funding in restoring and repairing the original features. Option 2 was established as the City’s preference. Thereafter, the City began applying for (and receiving) various state and federal funds to put toward the Fulton Mall project (Project). In 2013, the City began preparing the environmental impact report (EIR) for the Project in compliance with CEQA. An initial study released with the Notice of Preparation determined that the Project may have significant impacts on aesthetics and historical resources, but would not significantly impact air quality, greenhouse gas emissions, parks, traffic, and utilities.

The City certified the final EIR in early 2014 and selected Option 1 as the preferred alternative due to its “straight street” design and the increased number of on-street parking spaces. The Downtown Fresno Coalition (Coalition) filed a petition for writ of mandate, alleging that the City pre-committed to Option 1 through its federal funding agreements and that the EIR inadequately analyzed certain impacts.  In Downtown Fresno Coalition v. City of Fresno, 2106 Cal. App. Unpub. LEXIS 5212, the Fifth District Court of Appeal rejected these claims and found that the City had complied with CEQA.

The Court first held that the Coalition was not collaterally estopped from bringing the CEQA suit even though it had previously brought a suit under the National Environmental Policy Act (NEPA) in federal court against the City, the Federal Highway Administration, Caltrans, and the federal Department of Transportation regarding federal funding that was given to the project without a NEPA review. The Court found the issues in the two cases to be distinct, despite the City’s arguments about the similarities between CEQA and NEPA.

Next, the Court addressed the Coalition’s argument that the federal funding had effectively precluded consideration of an alternative that featured full or partial restoration of the Mall. The Court noted that the grant funding was conditional on full compliance with CEQA and found that the City had fully complied by with the Supreme Court’s requirements in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 by not precluding consideration of any project alternative or mitigation.

Finally, the Court considered the Coalition’s claim that the EIR did not present a legally adequate analysis of the Project’s effects on certain resources. The City had narrowed the scope of the EIR to focus on the Project’s potentially significant effects on short-term visual character and historical resources. The Court found the analysis sufficient because impacts to air quality, greenhouse gas emissions, parks, traffic and utilities were determined to be less than significant; moreover, the initial study had presented extensive rational for that determination.  The Court concluded that the City had no legal obligation to analyze less than significant impacts in the EIR in the manner urged by Coalition.

SECOND APPELLATE DISTRICT FINDS INITIAL STUDY INADEQUATE FOR AFFORDABLE HOUSING PROJECT IN LOS ANGELES

Thursday, November 12th, 2015

In an unpublished opinon, Friends of Highland Park v. City of L.A., 2015 Cal. App. Unpub. LEXIS 8002, the Second Appellate District reversed the trial court, holding that the initial study prepared by the City of Los Angeles for an affordable housing project in Highland Park was inadequate because the study lacked quantified greenhouse gas emission data and failed to report or analyze known soil contamination from a hazardous material.  Based on the initial study, the City had determined that the project would not have a significant effect on the environment and had approved the projected after adopting a mitigated negative declaration (MND).

As a preliminary matter, the Court held that Friends of Highland Park’s CEQA claims were not time-barred by the Subdivision Map Act (SMA), Government Code Section 66499.37, which requires challenges to subdivision map approvals to be filed within 90-days. The Court held the CEQA challenges at issue here do not fall within the SMA filing requirements because the adequacy of an initial study could not have been challenged under the SMA.

Turning to greenhouse gas emissions, the Court found the City’s initial study inadequate because it contained no evidence to support its claim that the potentially significant greenhouse gas emission impacts could be mitigated below a level of significance by using “low and non-VOC containing paints, sealants, adhesives, and solvents” during construction of the project. The Court relied in part on section 15064.4 of the CEQA Guidelines, which requires the use of “a model or methodology to quantify greenhouse gas emissions.” The Court held that the City had not selected a threshold for determining the significance of greenhouse gas emissions and thus there was “no vehicle for judicial review.”

The Court also found the initial study inadequate because it failed to address known lead contamination on the project site. An earlier development agreement acknowledged the existence of lead, but the initial study made no specific mention of lead contamination. However, adoption of the MND was subject to future environmental analyses, which were to be done prior to grading. The Court held that because the lead contamination was known at the time of approval, it should have been analyzed in the initial study.

The Court directed the City to set aside the MND and prepare a new initial study that complies with CEQA.

Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949

Tuesday, May 22nd, 2012

The County of Sonoma (County) approved a development project for a warehouse and beverage distribution center. Prior to approving the project, the County conducted an initial study and issued a mitigated negative declaration (MND). The trial court held that the County had failed to send necessary notice to the Bay Area AQMD (BAAQMD) prior to adopting the MND. Rather than issuing a writ directing the County to rescind the project approval, the trial court held the approval in place while the County remedied its error. Once the County complied, the trial court entered final judgment in favor of the County. Petitioner appealed to the First District Court of Appeal, which ruled in favor of the County for two reasons. The Court first explained that providing notice to the BAAQMD is necessary. While the County had failed to provide notice for its revised negative declaration, the Court ruled the County’s error was not prejudicial because the County provided adequate notice to the public. The Court also upheld the trial court’s action in holding the project’s approval in place while allowing the County to notify the BAAQMD.

Key Point:

Trial courts may fashion CEQA remedies narrowly to address only the violation found by the court.