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OPR RELEASES A REVISED PROPOSAL ON UPDATES TO THE CEQA GUIDELINES EVALUATING TRANSPORTATION IMPACTS

Tuesday, January 26th, 2016

On January 20, 2016, the Governor’s Office of Planning and Research (“OPR”) released a Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts. This follows a preliminary discussion draft that was released in August 2014. See more on the earlier draft at: http://www.thomaslaw.com/blog/opr-releases-preliminary-draft-changes-ceqa-guidelines-related-sb-743/#sthash.cm0vbAOa.dpuf

SB 743 (Steinberg, 2013), which shifted the focus of the transportation analysis from the reduction of traffic delay to the reduction of greenhouse gas emissions, creation of multimodal networks, and promotion of a mix of land uses, required OPR to undertake this effort to update the CEQA Guidelines.

OPR proposes to add a new section to the CEQA Guidelines – 15064.3 – that will address how to determine the significance of transportation impacts. The proposed Guideline contains three subdivisions:

  • Subdivision (a): Purpose – states that “generally, vehicle miles traveled [VMT] is the most appropriate measure of a project’s potential transportation impacts.” The Guideline notes that lead agencies can also consider effects on transit, non-motorized travel, and safety of all travelers. A project’s effect on automobile delay, however, cannot constitute a significant environmental impact.
  • Subdivision (b): Criteria for Analyzing Transportation Impacts – outlines specific criteria for determining the significance of transportation impacts. This section is further subdivided into: (1) VMT and land use projects, (2) induced travel and transportation projects, (3) qualitative analysis, and (4) methodology. A subsection in the previous draft that focused on traffic safety has been replaced with the subsection on qualitative analysis. The new proposed subsection states: “If existing models or methods are not available to estimate VMT for the particular project being considered, a lead agency may analyze the project’s VMT qualitatively.” Where a lead agency undertakes a qualitative analysis, the subdivision recommends the agency look at factors such as availability of transit, proximity to other destinations, area demographics, etc.
  • Subdivision (c) Applicability – notes that the changes will apply prospectively – two years from adoption date – though agencies can elect to be governed by the new guideline immediately if the agency has updated its procedures to conform to the new Guideline.

A controversial subdivision from the earlier draft of the Guidelines that would have amended Appendix F (Energy Conservation) to provide suggestions of potential mitigation measures and alternatives has been removed.  Instead, OPR has created a non-regulatory technical advisory that can be altered and updated at any time and addresses methodological considerations in more detail. The technical advisory includes recommended significance thresholds (though it notes that for rural areas, it might be best to determine thresholds on case by case basis):

  • For residential projects, exceeding both existing city household VMT per capital minus 15 percent and existing regional household VMT per capita minus 15 percent may indicate a significant transportation impact. For residential development in unincorporated county areas, a project that exceeds 15 percent below VMT per capita in the aggregate of all unincorporated jurisdictions in that county and exceeds 15 percent below regional VMT per capita may indicate a significant transportation impact.
  • For office projects, exceeding a level of 15 percent below existing regional VMT per employee may indicate a significant transportation impact.
  • For retail projects, OPR recommends analyzing whether there is a net increase in total VMT because retail typically redistributes trips rather than creating new ones.

 

  • For transportation projects, OPR recommends creating a project-level threshold that is derived from CARB’s estimate that statewide VMT can increase no more than 4 percent over 2014 levels in order for California to meet the emissions goals set in Execute Order B-30-15.

The proposed changes to Appendix G have been revised as well. The language now specifically excludes level of service when determining whether there will be a conflict with a circulation policy. The new language states: “Conflict with a plan, ordinance or policy addressing the safety or performance of the circulation system, including transit, roadways, bicycle lanes and pedestrian paths (except for automobile level of service).” Additionally, the Appendix G questions concerning unsafe conditions for pedestrians, bicyclists, transit users, motorists or other users of public rights of way has been deleted.

OPR is requesting public review and comment of the Preliminary Discussion Draft. A copy of the Preliminary Discussion Draft is available at:

https://www.opr.ca.gov/docs/Revised_VMT_CEQA_Guidelines_Proposal_January_20_2016.pdf

All comments should be submitted by February 29, 2016 at 5:00 pm to CEQA.Guidelines@ceres.ca.gov.

Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.)

Wednesday, July 8th, 2015

Petition for Review Granted

December 10, 2014

Current Status

Fully briefed by the parties as of April 30, 2015.

Amicus briefing in progress.

Court’s Statement of Issues Presented

The court will consider two issues:

  1. Does the Interstate Commerce Commission Termination Act (ICCTA) (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act (CEQA) (Pub. Res. Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)?
  2. Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property?

Summary of the Parties’ Arguments

Plaintiffs and Appellants, Friends of the Eel River, et al. (Friends) argue that the ICCTA does not preempt the North Coast Railroad Authority’s (NCRA) actions. Friends argue that in enacting the ICCTA, Congress did not expressly or impliedly preempt any state laws. Rather, they argue, ICCTA only prohibits states from regulating rail transportation, thus furthering the ICCTA’s purpose of deregulating the railroad industry and centralizing the economic regulation of rail transportation. Friends argue that three doctrines defeat federal preemption. First, courts are to construe federal preemption statutes to preserve states’ plenary control over their subdivisions absent an “unmistakably clear” statement that Congress intended to intrude on that sovereign function. Here, California’s Legislature exercised its sovereign power over public agencies, such as NCRA, to conduct CEQA review before carrying out a project. Second, under the market participant doctrine, courts should not infer federal preemption of a state’s proprietary non-regulatory actions. In this matter, California’s requirement of CEQA compliance and enforcement are a proprietary component of an internal business decision involving state funding and the management of state-owned property. Third, Friends argue that federal law does not preempt an entity’s voluntary commitments because self-imposed obligations are not considered regulatory. Here, CEQA was self-imposed and not preempted.

Defendants and Respondents, NCRA, et al. (NCRA) counter that consistent with ICCTA’s plain language, legislative history, and the interpretation of that language by other courts and the Federal Surface Transportation Board (STB), the ICCTA preempts CEQA’s application. NCRA argues that Friends fails to lay out the relevant facts, including the fact that Friends seeks to use CEQA as a state permitting or preclearance law to shut down a privately operated railroad that is currently transporting goods in interstate commerce. NCRA argues that applying CEQA would delay or deny NCRA the ability to conduct its activities, thus interfering with the STB’s jurisdiction, and with the maintenance and operation of rail transportation. NCRA further argues the ICCTA’s preemption of CEQA is not defeated by the market participation doctrine. First, this doctrine does not work as an exception to an express preemption, and second CEQA is regulatory, as it requires public agencies to comply when it chooses to undertake a project; NCRA explains that CEQA “is not narrowly focused on market-oriented actions.” Finally, NCRA argues that their voluntary agreement is not binding and that they did not agree to waive the ICCTA preemption. Rather, the NCRA “mistakenly, but in good faith, believe[d] that it needed to complete” an EIR for resumed rail operations, but had since determined that the ICCTA expressly preempted application of CEQA to the project.

Parties/Counsel

Plaintiffs and Appellants:

  • Friends of the Eel River, Represented by Shute Mihaly & Weinberger
  • Californians for Alternatives to Toxics, Represented by Law Offices of Sharon E. Duggan, Klamath Environmental Law Center, Environmental Law and Justice Clinic at Golden Gate University School of Law, Environmental Law Clinic and Mills Legal Clinic at Stanford Law School, Klamath Environmental Law Center

Defendants and Respondents:

  • North Coast Railroad Authority, Represented by North Coast Railroad Authority and Cox Castle and Nicholson LLP
  • Board of Directors of North Coast Railroad Authority, Represented by Christopher J. Neary

Real Party in Interest and Respondent:

  • Real Party in Interest and Respondent Northwestern Pacific Railroad Company, Represented by Cox, Castle & Nicholson

Procedural History

Two environmental groups, Friends of the Eel River and Californians for Alternatives to Toxics, filed petitions for writ of mandate under CEQA to challenge the certification of an EIR and approval of a railroad company’s freight operations by NCRA.  The trial court denied the petitions for writ of mandate, holding that CEQA review was preempted by the ICCTA, and that NCRA and the railroad company were not estopped from claiming federal preemption.

The First District Court of Appeal affirmed the judgement, holding that the ICCTA expressly preempted CEQA review of proposed railroad operations, and that the environmental groups’ CEQA claims fell within that preemption.  The appellate court additionally explained that the market participation doctrine found in Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314, could not be used to avoid such federal preemption.   In Town of Atherton, the California High Speed Rail Authority was taking proprietary actions in the market, acting as an owner of the property and not as a regulator; therefore, the market participation exception to preemption applied.  In contrast, NCRA acts in a regulatory capacity, thus the exception to preemption does not apply.  Lastly, the appellate court explained that while NCRA entered into an agreement with Caltrans, where it volunteered to comply with CEQA, the preemption analysis remains the same.  NCRA’s alleged voluntary agreement to comply with CEQA arose from its contract with the state (CalTrans), not from its acceptance of funds from a bond measure.  The agreement between these two parties does not unambiguously require environmental review for railroad operations where CEQA is preempted and the environmental groups do not have standing to enforce this contract.

Amicus Curiae Briefs – Briefing in Process, Check Back for Updates

  • South Coast Air Quality Management District, Bay Area Air Quality Management District, in support of Appellants;
  • Madera County Farm Bureau, Merced County Farm Bureau, in support of Appellants;
  • Town of Atherton, California Rail Foundation, Transportation Solutions Defense and Education Fund, Community Coalition on High-Speed Rail, Patricia Hogan-Giorni, in support of Appellants;
  • Sierra Club, Coalition for Clean Air, Natural Resources Defense Council, Planning and Conservation League, Communities for a Better Environment, in support of Appellants;
  • Center for Biological Diversity, in support of Appellants;
  • California Environmental Protection Agency, the California Natural Resources Agency, and their Departments and Boards in support of no party; and
  • California High Speed Rail Authority, in support of Respondents.

Case Implications

This case would have implications on federal preemption of CEQA under the ICCTA, as well as the market participant exception to preemption.

Regarding “preemption”:

  • The appellate court stated that whether the ICCTA generally preempts CEQA’s application to a project involving railroad operations is a pure question of law subject to de novo review.   If the California Supreme Court affirms the appellate court’s ruling, this would affirm the federal preemption of the ICCTA.

Regarding “market participant exception to preemption”:

  • In Town of Atherton, the market participant exception to preemption required the California High Speed Rail Authority (Authority) to comply with CEQA for a portion of the rail line.       This exception applied because the court found the Authority was acting in its capacity as the owner of property, not as a regulator. The Supreme Court may take this opportunity to restrict or expand the market participant exception set forth in Town of Atherton.

Key Cases that May be Affected by the Court’s Ruling

  • Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314;  The Court applied the market participant exception to the California High Speed Rail Authority because it was taking proprietary market actions, rather than acting in its regulatory capacity. Thus, the California High Speed Rail Authority was required to comply with CEQA for a portion of the rail line.
  • People v. Burlington N. Santa Fe R.R. (2012) 209 Cal.App.4th 1513; The Court held the ICCTA provides the STB exclusive jurisdiction with respect to the regulation of rail transportation. Thus a PUC general order issued to regulate the time a stopped train can occupy a public rail crossing is preempted by ICCTA, as it attempts to directly manage railroad operations.

Cleveland National Forest Foundation v. San Diego Association of Governments S223603 (D063288; 231 Cal.App.4th 1056; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL.)

Friday, June 26th, 2015

Petition for Review Granted

March 11, 2015

Current Status

Opening brief on the merits filed on May 8, 2015.

Answer brief on the merits is due on July 10, 2015.

Court’s Statement of Issues Presented

Must the environmental impact report (EIR) for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)?

Summary of the Parties’ Arguments

In their Petition for Review, the San Diego Association of Governments (SANDAG) argues that the EIR fully and adequately analyzed the project’s greenhouse gas impacts.  The EIR contains a 39-page analysis of the existing greenhouse gas emission levels and impacts expected to occur from both transportation and non-transportation sources under the project.   SANDAG further argues the analysis complies with CEQA Guidelines, section 15064.4, and SANDAG did not abuse its discretion by relying on that section for the significance criteria used in the EIR’s analysis of greenhouse gas impacts.  SANDAG asserts that the EIR does not omit critical factual information on greenhouse gas emissions and it was not required to include an analysis of the project’s consistency with Executive Order S-03-05 because there is no legal authority requiring such an analysis in the EIR.

In their Answer to Petition for Review, plaintiffs Cleveland National Forest Foundation, et al. (CNFF) argue the Court of Appeal’s decision requiring consideration of Executive Order S-3-05 is firmly grounded in settled CEQA principles.  CNFF assert that SANDAG violated CEQA by failing to analyze its regional transportation plan’s inconsistency with the long-range emissions reduction goals expressed in Executive Order S-3-05.  CNFF argues the EIR’s purpose is to serve as an informational document, and SANDAG’s failure to include such an analysis in the EIR deprived the public and decisionmakers of relevant information.  CNFF also argues the Court of Appeal’s opinion does not create confusion or conflicts of law.  According to CNFF, the case simply involves an agency failing to disclose and analyze a project’s long-term impacts, as required by CEQA.  CNFF further argues the Court of Appeal’s opinion does not undercut agency discretion to determine significance thresholds; it only requires agencies to exercise their discretion in light of CEQA’s fundamental informational purpose.

Parties/Counsel

Plaintiffs and Respondents:

  • Cleveland National Forest Foundation, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
  • Sierra Club, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
  • Center for Biological Diversity, Represented by Center for Biological Diversity
  • Creed-21, Represented by Briggs Law Corp
  • Affordable Housing Coalition of San Diego County, Represented by Briggs Law Corp

Defendants and Appellants:

  • San Diego Association of Governments, Represented by Sohagi Law Group, LLP
  • San Diego Association of Governments Board of Directors, Represented by Sohagi Law Group, LLP

Intervener and Appellant:

  • The People of the State of California, Represented by The Attorney General

Procedural History

SANDAG certified an EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (the transportation plan) in October, 2011.  CNFF, et al. filed petitions for writ of mandate, challenging the EIR as insufficient under CEQA.  The Attorney General thereafter moved to intervene on behalf of the People of the State of California.

The Superior Court of San Diego County consolidated the cases and granted the petitions in part, finding the EIR violated CEQA because it failed to: (1) analyze the inconsistency between the transportation plan’s greenhouse gas emissions impacts after 2020 and the state’s policy goals presented in Executive Order S-3-05; and (2) adequately address mitigation measures for the transportation plan’s greenhouse gas emissions impacts.  After making those two findings, the trial court declined to address plaintiff’s other challenges.

On appeal, SANDAG argued the EIR complied with CEQA in both respects above.  CNFF cross-appealed arguing the EIR further violated CEQA by failing to: (1) analyze a reasonable range of alternatives; (2) adequately analyze and mitigate the transportation plan’s air quality impacts; and (3) adequately disclose the transportation plan’s impacts on agriculture.  The People cross-appealed, also arguing the EIR violated CEQA because it did not analyze or mitigate the transportation plan’s impacts from particulate matter pollution.

The Fourth District Court of Appeal agreed with CNFF’s and the People’s arguments, holding the EIR violated CEQA for all of the identified reasons above.  Focusing specifically on the EIR’s analysis of the transportation plan’s greenhouse gas impacts, the court held SANDAG prejudicially abused its discretion by omitting from the EIR a discussion of the transportation plan’s consistency with the state climate policy of continual greenhouse gas emissions reductions, presented in Executive Order S-3-05.  According to the court, failing to include such an analysis deprived the public and decisionmakers of important information regarding the project’s greenhouse gas emissions.  The court additionally found no substantial evidence supported the agency’s determination the EIR adequately addressed mitigation for the transportation plan’s greenhouse gas emissions impacts.

Case Implications

If the Court of Appeal’s opinion is upheld, local agencies would be required to consider consistency with EO S-3-05 and other executive orders related to climate change when analyzing a project’s greenhouse gas impacts.  This interpretation would impose on local agencies new obligations that are not supported by CEQA, the CEQA Guidelines, or California case law.  Requiring agencies to comply with executive orders, specifically EO S-3-05, would take away their discretion to establish their own significance thresholds and to rely on AB 32 when evaluating a project’s greenhouse gas impacts.

Key Cases that May be Affected by the Court’s Ruling

  • Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, Professional Engineers in Cal. Gov’t v. Schwarzenegger (2010) 50 Cal.4th 989;  Here the court held that “it is for the Legislature to make public policy,” rather than the Governor via executive order.
  • Carmel Valley Fire Protection Dist. v. State of Cal. (1987) 190 Cal.App.3d 521;  Here, the court held that executive orders establish state policy and are not binding on local districts.
  • Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327;  The court evaluated the use of AB 32 as a CEQA significance threshold for a project’s greenhouse gas impacts.
  • Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059;  The court discussed the discretion CEQA grants agencies to develop their own significance thresholds.
  • Sacramento Old City Ass’n. v. City Council (1991) 229 Cal.App.3d 1011, Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99;  Here, the court held that the courts may not overturn an agency’s discretionary decisions and substitute their own judgment.

California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. (A135335, A136212; 218 Cal.App.4th 1171; Alameda County Superior Court; RG10548693.)

Friday, June 26th, 2015

Petition for Review Granted

November 26, 2013

Current Status

Fully briefed by the parties as of March 17, 2014.

Amicus briefing complete as of May 28, 2014.

Court’s Statement of Issue(s) Presented

Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., hereinafter CEQA) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

Summary of the Parties’ Arguments

California Building Industry Association (BIA) argues Toxic Air Contaminant (TAC) Receptor Thresholds established by Bay Area Air Quality Management District (BAAQMD) are impermissible because they require an analysis of the impact of the environment on a project and its future users.  BIA argues that the purpose of CEQA is to protect the environment, not to protect projects from the environment.  BIA cites “an unbroken line of cases” that support this position, and cites a “host of other laws” aside from CEQA that protect future users of a project from the environment.  BIA acknowledges that an analysis of impacts of the environment on a project are sometimes required by CEQA in specific situations, but there is currently no general mandate to analyze those impacts, and it is up to the Legislature to create such a mandate if it chooses.  Additionally, BIA argues that CEQA Guidelines section 15126.2(a) and Appendix G, both of which are relied on by BAAQMD, distort the purpose and scope of CEQA, and should thus be rejected.

BAAQMD counters that CEQA properly applies to any project that may expose users to “disagreeable conditions,” regardless of whether the project contributes to those conditions or not.  As relates to its TAC Receptor Thresholds, BAAQMD argues that siting a development in an area with existing odors and high levels of TACs requires the lead agency to analyze those issues and impose mitigation measures to alleviate them, even if the new project makes no contribution to the existing environmental effects.

Parties/Counsel

Plaintiff and Respondent:

  • California Building Industry Association, Represented by Cox Castle and Nicholson LLp

Defendant and Appellant:

  • Bay Area Air Quality Management District, Represented by Bay Area Quality Management District Office of Legal Counsel and Shute Mihaly and Weinberger LLP

Procedural History

BAAQMD formally adopted a series of CEQA thresholds of significance for air contaminants and greenhouse gasses without first conducting CEQA analysis.  BIA filed a petition, challenging the thresholds and the lack of analysis.  The trial court issued a writ of mandate invalidating BAAQMD’s TAC thresholds, agreeing with BIA that adoption of the thresholds was a “project” under CEQA and thus BAAQMD should have conducted environmental review.

The First Appellate District Court reversed the trial court’s holding, finding that the TAC thresholds were not subject to CEQA review for two reasons.  First, the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance, and a prior CEQA review is not part of that process.  Second, the thresholds were not a “project” because the “environmental change” argued by BIA was speculative and not reasonably foreseeable.  The court also held that the TAC Receptor thresholds were not facially invalid and BAAQMD’s approval of them was not arbitrary and capricious because they were supported by substantial evidence.

Amicus Curiae Briefs

  • League of California Cities, County of Tulare, County of Kings, and County of Solano, in Support of Neither Party;  Amici argue CEQA does not require lead agencies to analyze the impacts of the existing environment on projects and their future users.  Amici allege requiring such an analysis would be unnecessary as a policy matter because such impacts are addressed through several other laws and through the exercise of a local public agency’s police power and land use regulations.  Lastly, amici urge the court to affirm the appellate court’s ruling that respondent’s TAC Receptor Threshold do have potentially valid applications.
  • Communities for a Better Environment, in Support of Defendant and Appellant;  Amicus argues CEQA requires an analysis of “existing environmental conditions” where they may have substantial adverse impacts on future users of the project.  Amicus also argues the analysis used for the TAC Receptor Thresholds is an appropriate use of BAAQMD’s authority.  CEQA is a critical tool, both in serving as a venue for communities to participate in decisions that impact them, and in providing a process to ensure informed and well-reasoned decisions are made.  Amicus urges the court to uphold BAAQMD’s interpretation of CEQA, because that would ensure CEQA’s protections extend to all future and existing members of communities suffering from environmental injustice.
  • California Chapter of the American Planning Association and California Association of Environmental Professionals, in Support of Defendant and Appellant;  Amici argue that CEQA’s plain language and clear legislative intent cover human exposure to hazardous or unhealthy environmental conditions.  CEQA provides a clear systematic framework for lead agencies to disclose significant adverse impacts of the existing environment on future users, and lead agencies have been performing this analysis for decades.  Amici argue eliminating this protection by not requiring such an analysis would take away the critically important role CEQA has of maintaining “a quality environment for the people of this state now and in the future.”
  • South Coast Air Quality Management District, in Support of Defendant and Appellant;  Amicus urges the court to conclude that the risk of exposure to TACs should be analyzed under CEQA for a project that proposes to place receptors closer to such risks.  Amicus argues that people living and working near sources of TACs have higher health risks when compared to the general population, and policies promoting infill development can adversely impact environmental justice communities.  Amicus further argues that analyzing the impacts associated with exposing users of a project to TACs is consistent with the requirements of CEQA, as CEQA is full of policies that are specifically aimed at protecting public health and safety.  According to amicus, failing to require such an analysis under CEQA is a lost opportunity to mitigate those impacts.    

Case Implications

If the court rules in favor of BIA, lead agencies would have certainty that they are not required to examine existing environmental effects on a project’s future users, consistent with a long line of cases supporting this position.  A ruling in favor of BAAQMD would add to the analysis lead agencies must undertake to determine a project’s impacts, to also determine whether there will be environmental impacts on project users, arguably an impermissible expansion of the scope of CEQA.

Key Cases that May be Affected by the Court’s Ruling

  • Baird v. County of Contra Coast (1995) 32 Cal.App.4th 1464;  The court held that CEQA does not require an EIR for a project that “might be affected by preexisting conditions, but will not change those conditions or otherwise have a significant effect on the environment.” (Id. at p. 1466.)
  • City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889;  The court stated that the purpose of the EIR under CEQA is to identify significant effects the project will have on the environment, not vice versa.  However, in this case, the school district did analyze risks of exposing staff and students to the existing air contamination because it was specifically required under CEQA section 21151.8.
  • South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604;  The court rejected petitioners’ argument that the lead agency should be required to mitigate for existing odors from an adjacent sewage plant to protect the project’s future residents, stating that CEQA’s legislative intent is to protect the environment, not a project from the environment.
  • Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455;  The court held that CEQA does not require the lead agency to identify environmental effects on the project and its users.  The court in this case also addressed CEQA Guidelines 15162.2(a), stating that it was only valid to the extent it would require analysis of “impacts on the environment caused by the development rather than impacts on the project caused by the environment.”  (Id. at p. 474, fn. 9.)

OPR Released Discussion Draft Technical Advisory: AB 52 and Tribal Cultural Resources in CEQA

Tuesday, June 23rd, 2015

On September 25, 2014, Governor Edmond G. Brown, Jr., signed Assembly Bill (AB) 52, which expands the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000, et seq.)[1] to include a new category of resources that must be evaluated – “tribal cultural resources.” To shed some light on AB 52’s implementation, the Governor’s Office of Planning and Research (OPR) released a Discussion Draft Technical Advisory: AB 52 and Tribal Cultural Resources in CEQA, on May 1, 2015, for 30 days of public comment. The document is intended to provide guidance to lead agencies regarding the substantive and procedural requirements that go into effect on July 1, 2015.

The law requires lead agencies to consider tribal cultural values in their environmental documents, in addition to the scientific and archaeological values that must be evaluated under preexisting provisions of CEQA, when determining impacts and mitigation.  The requirements of AB 52 apply to a project that has a notice of preparation of an environmental impact report (EIR) or a notice of negative declaration or mitigated negative declaration filed on or after July 1, 2015. (Pub. Resources Code, § 21084.3 (c).) Other key amendments to CEQA include:

  • Mandating early tribal consultation prior to and during CEQA review with a requirement to formally conclude consultation. (Pub. Resources Code, §§ 21080.3.1, subd. (b), 21080.3.2.)
  • Establishing tribal cultural resources, a new CEQA category of resources (Pub. Resources Code, § 21074), for which tribes may have expertise. (Pub. Resources Code, § 21080.3.1, subd. (a).)
  • Establishing that a significant impact on tribal cultural resources is a significant effect on the environment. (Pub. Resources Code, § 21084.2.)
  • Requiring OPR to revise the CEQA checklist, to make consideration of tribal impacts separate from consideration of impacts to other cultural resources. (Pub. Resources Code, § 21083.09.) The regulatory process for the adoption of its updates must occur on or before July 1, 2016.

One of the most significant implications of AB 52 is that the lead agency cannot commit to preparation of a negative declaration or a mitigated negative declaration until the newly required tribal cultural resource consultation has occurred since the consultation could result in the need for more detailed analysis appropriate to an EIR. (Pub. Resources Code, § 21080.3.1, subd. (b) [consultation process must be undertaken “prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project”]; see also Pub. Resources Code, § 21080.3.2 [“consultation may include discussion concerning the type of environmental review necessary”].) Because tribes may be considered experts on tribal cultural resources under AB 52, a tribe’s conclusion that a project has the potential to significantly impact a tribal resource may be considered a “fair argument” that the project may have significant environmental impacts. Accordingly, a tribe’s opinion during the consultation process may necessitate the preparation of an EIR.

[1] AB 52 amends Public Resources Code Section 5097.94, and adds Public Resources Code Sections 1073, 21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3.

City of San Diego v. Trustees of the California State University, S199557. (D057446; 201 Cal.App.4th 1134; San Diego County Superior Court; GIC855643, GIC855701, 37-2007-00083692-CU-WM-CTL, 37-2007-00083773-CU-MC-CTL, 37-2007-00083768-CU-TT-CTL.)

Thursday, May 14th, 2015

This post is part of a series highlighting the CEQA cases currently pending before the California Supreme Court.

Petition for Review Granted

April 18, 2012

Current Status

Fully briefed by the parties as of September 18, 2012.

Amicus briefing complete as of December 5, 2012.

Supplemental briefing completed by the parties as of January 29, 2015.

Court’s Statement of Issue(s) Presented

Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

Summary of the Parties’ Arguments

At the Supreme Court, CSU argues that City of Marina v. Board of Trustees (2006) 399 Cal.4th 341 (Marina) is clear; CSU has the power to mitigate off-site environmental effects, subject to the Legislature’s appropriations. CSU argues that requiring otherwise under CEQA would invite not only local agencies, but the public to scrutinize its budget and litigate over how its funds are allocated (in this case, balancing expenditures on education versus traffic impacts). CSU argues that the Court should reverse the ruling and hold that CSU complied with its CEQA obligations.

In contrast, City of San Diego, et al. (City) argues that CSU has not shown any grounds for reversal of the Court of Appeal’s decision. City argues that CSU relied on an erroneous interpretation of Marina by failing to consider additional mitigation measures for off-site traffic impacts. Specifically, City argues that CSU should have considered alternative mitigation measures or alternative funding measures where, as here, the agency’s preferred mitigation is uncertain and potentially infeasible.

Parties/Counsel

Plaintiffs and Appellants:

  • City of San Diego, Represented by the San Diego Office of the City Attorney
  • Redevelopment Agency of the City of San Diego, Represented by the San Diego Office of the City Attorney
  • San Diego Metropolitan Transit System, Represented by The Sohagi Law Group, LLP
  • San Diego Association of Governments, Represented by Deputy General Counsel of the San Diego Association of Governments and the Sohagi Law Group, LLP

Defendant and Respondent:

  • Trustees of the California State University, Represented by Gatzke, Dillon & Ballance LLP and Horvitz & Levy, LLP

Procedural History

In 2005, CSU certified an EIR and approved the Project. While litigation challenging the 2005 EIR was pending, the Supreme Court decided against CSU in Marina. Accordingly, the trial court issued an order setting aside the 2005 EIR and Project approval. Following the Court’s decision against CSU in Marina, CSU revised its original Master Plan and released an EIR for the Project, which was certified in November 2007.

The City challenged CSU’s EIR certification and Project approval. The trial court denied the petitions and discharged the writ, holding that CSU complied with CEQA and complied with the off-site mitigation requirements of Marina.

According to the Court of Appeal, CSU failed to consider other funding sources besides legislative appropriations that may be available for mitigation. Moreover, CSU should have evaluated one or more possible project modifications to the Project that would reduce or avoid unmitigated off-site traffic impacts. The Court of Appeal reversed in part, ruling that such deficiencies rendered the EIR inadequate under CEQA.

Amicus Curiae Briefs

  • California Chamber of Commerce and California Business Roundtable, In Support of Defendant and Respondent;
  • Amici argue that the State’s economy is dependent on highly educated workers, particularly those in the technology, communications and biotechnology industries. Changes in technology, coupled with the changing demographics widen the gap between the demands of the State’s economy and supply of college-educated workers. The proposed expansion universities in the CSU and University of California system will help close the projected skills gaps of the State’s workers.
  • League of California Cities and California State Association of Counties, In Support of Petitioners and Appellants; 
  • Amici argue that the question for the Court is not whether dollars “would be better spent” on education or transportation, as CSU argues, but one of “shared sacrifice.” Thus, Amici allege that CSU abused its discretion by relying on a misinterpretation of Marina to justify its failure to include a reasonable range of mitigation measures in its EIR to address significant off-site traffic impacts. Amici argue that ruling in favor of CSU would allow public institutions to circumvent their duty under CEQA to develop feasible mitigation, thereby granting agencies a “false choice” between CEQA compliance and exercising agency discretion or implementing agency mandates. As a result local agencies would be unduly burdened, being forced to shoulder the burdens of funding mitigation or suffering environmental effects caused by CSU’s projects.
  • Hayward Area Planning Association and City of Hayward, In Support of Petitioners and Appellants;
  • Amici argue that CSU’s position violates Public Resources Code, Section 21002, which provides that public agencies “should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available.” Moreover, ruling in favor of CSU would create a huge exemption from the mitigation requirement of Public Resources Code, Section 21001.1, which requires that public projects “be subject to the same level of review and consideration . . . as private projects.” Amici argue that although CSU is subject to the funding requirements of legislature, it is not relieved of its duty to mitigate significant effects under CEQA. Ruling in favor of CSU would effectively create an exemption for Public Institutions from properly mitigating project effects, forcing local agencies bear the costs of mitigation for off-campus impacts created by the CSU.

Case Implications

City of San Diego v. Trustees of the California State University is the latest in a line of cases involving the CSU system as it strives to accommodate increasing student populations at its campuses statewide. The Court’s ruling would serve to clarify its earlier ruling in Marina, which previously evaluated CSU’s duty to mitigate off-site environmental effects through payment to a third party. The Court’s ruling would not only affect the CSU system, but all state agencies grappling with projects that potentially create off-site impacts that could burden local agencies.

Key Cases that May be Affected by the Court’s Ruling

  • City of Marina v. Board of Trustees (2006) 399 Cal.4th 341; CSU certified an EIR for the Monterey Bay Campus’ master plan. The EIR noted that campus improvements would create significant off-campus traffic, water, sewage and fire safety impacts; however, such offsite impacts would remain significant and unavoidable because the Trustees did not have the authority to implement offsite mitigation. The Supreme Court held that the Trustees violated CEQA, because the Trustees had a duty to mitigate offsite impacts (e.g., CSU could have feasibly paid a third party to mitigate those impacts).

 

California Building Industry Assn. v. City of San Jose, S212072. (H038563; 216 Cal.App.4th 1373; Santa Clara County Superior Court; 1-10-CV167289.)

Wednesday, May 13th, 2015

This post is part of a series highlighting the CEQA cases currently pending before the California Supreme Court.

Petition for Review Granted

September 11, 2013

Current Status

Fully briefed by the parties as of January 31, 2014.

Amicus briefing complete as of March 27, 2014.

Oral Argument April 8, 2015.

Court’s Statement of Issues Presented

What standard of judicial review applies to a facial constitutional challenge to inclusionary housing ordinances that require set asides or in lieu fees as a condition of approving a development permit? (See San Remo Hotel L.P. v. City & County of San Francisco (2002) 27 Cal.4th 643, 670.)

Summary of the Parties’ Arguments

Petitioner California Building Industry Association (BIA) observes that San Remo Hotel, supra, requires “legislatively imposed development exactions” to “‘bear a reasonable relationship, in both intended use and amount, to the deleterious public impact of the development.’” BIA argues that the City of San Jose’s Inclusionary Housing Ordinance (Ordinance) is a “legislatively imposed development exaction” that should be reviewed under the San Remo Hotel standard, and as such, “can only be sustained if both its purpose and extent are reasonably related to some negative public impact proximately caused by the new home projects on which the exaction would be imposed.”

Respondent City of San Jose (City) conversely argues that the more deferential “police power” standard of review applies to the Ordinance.  City also argues that the Ordinance cannot be facially unconstitutional because of a provision that gives the City discretion to adjust, reduce, or waive the requirements of the Ordinance on a case by case basis.

Interveners and Appellants challenged Petitioner’s reading of San Remo Hotel as requiring heightened scrutiny, and argued for application of the “police power” standard.

Parties/Counsel

Plaintiff/Petitioner and Respondent:

  • California Building Industry Association, Represented by Pacific Legal Foundation, Rutan and Tucker LLP, California Building Industry Association, and Building Industry Association of the Bay Area

Defendant/Respondent and Appellant:

  • City of San Jose, Represented by Office of the City Attorney and Berliner Cohen

Interveners and Appellants:

  • Affordable Housing Network of Santa Clara County, Represented by The Public Interest Law Project/CA Affordable Housing Law Project, Wilson Sonsini Goodrich and Rosait PC, and Law Foundation Of Silicon Valley
  • Housing of California, Represented by Public Interest Law Project, Wilson Sonsini Goodrich and Rosait PC, and Law Foundation Of Silicon Valley
  • California Coalition for Rural Housing, Represented by Louis David Nefouse
  • Non-Profit Housing Association of Northern California, Represented by The Public Interest Law Project/CA Affordable Housing Law Project
  • Southern California Association of Non-Profit Housing, Represented by The Public Interest Law Project/CA Affordable Housing Law Project
  • San Diego Housing Federation, Represented by The Public Interest Law Project/CA Affordable Housing Law Project

Procedural History

The Ordinance at issue was adopted January 26, 2010, and effective February 26, 2010.  Plaintiff and Petitioner California Building Industry Association filed its timely Complaint and Petition for Writ of Mandate as a facial challenge to the constitutionality of the Ordinance on March 24, 2010.

The trial court ruled in favor of Petitioner, and granted injunctive relief on May 25, 2012.  The City appealed.

The Court of Appeal, Sixth District, reversed on June 6, 2013, holding that the San Remo Hotel case was not applicable to the Ordinance.  Instead, the Court of Appeal held the Ordinance was only reviewable as an exercise of the City’s police power.

Amicus Curiae Briefs

  • California Association of Realtors, in support of Plaintiff and Respondent; Amicus argued a facial challenge to the Ordinance was the only means of meaningful review because an as-applied challenge would have no chance of success due to the wording of the Ordinance.  Amicus also argued due process grounds for increased scrutiny of the Ordinance, and argued the Ordinance represents an unlawful exaction.
  • League of California Cities, California State Association of Counties, in support of Defendant and Appellant; Amici argued separation of powers required deference to the City Council.  Amici also argued the San Remo standard does not apply because the Ordinance is a “quintessential” land use or zoning ordinance.  Even if San Remo applies, amici argued, the Ordinance satisfies such intermediate scrutiny because the City Council made findings that are entitled to deference. Finally, amici argued the facial challenge to the Ordinance was not ripe because the Ordinance contained an administrative waiver provision.
  • California Attorney General Kamala D. Harris; in support of Defendant and Appellant; Amicus argues the Ordinance is a land use and planning regulation that falls within the City’s police power, and thus should be given deference.  Amicus also argued that the Ordinance should not be subject to a takings analysis because it does not require conveyance of a property interest, but rather is a permissible exercise of the police power in the form of a non-confiscatory price control.
  • National Housing Law Project, Public Advocates, Western Center on Law and Poverty, Public Counsel, in support of Defendant and Appellant; Amici observed that inclusionary housing policies are used to combat segregation and comply with Federal fair housing obligations.  Amici also opined that combating segregation leads to upward mobility, educational achievement, and better health outcomes.
  • Silicon Valley Leadership Group, Working Partnerships USA, in support of Defendant and Appellant; Interveners and Appellants; Amici opined that the Ordinance meets goals of increasing affordable housing and income integration, to address an “acute scarcity” in the San Jose area.  Amici also opined that affordable housing reduces the harms of long-distance commuting, lack of affordable housing hinders employee retention, compliance with the Ordinance is financially feasible for developers, and there are few alternatives to the Ordinance for producing affordable homes.
  • National Association of Home Builders, in support of neither party; Amicus opined that the Respondent and Interveners have improperly conflated affordable housing with inclusionary housing, observing that inclusionary housing programs actually increase the market price of new homes, thereby increasing the number of people who are priced out of the market.  Amicus also opined that mandatory private housing subsidies are detrimental to small business home builders, and that application of the San Remo standard in this case will encourage, rather than constrict, creative affordable housing strategies.
  • Leo T. McCarthy Center For Public Service and the Common Good, et al., in support of Defendant and Appellant; Amici provide a lengthy brief containing context for the parties’ legal arguments, covering topics such as racial and economic segregation, legal and policy responses to such segregation, land use challenges, and the benefits of inclusionary housing.

Case Implications

A ruling for BIA would affirm that the San Remo Hotel standard of review applies to inclusionary housing ordinances, which would require local agencies to show a reasonable relationship between an ordinance and the impacts of the project that are required to comply with the terms of such an ordinance.

A ruling for the City would likely have to overrule the City of Patterson case, and would allow inclusionary housing ordinances to be reviewed under the more deferential police power standard.

Key Cases that May be Affected by the Court’s Ruling

  • San Remo Hotel L.P. v. City and County of San Francisco (2002) 27 Cal.4th 643; The Court held there must be a reasonable relationship between exactions and the deleterious impact of the projects on which they are imposed.
  • Building Industry Association of Central California v. City of Patterson (2009) 171 Cal.App.4th 886; The court held that San Remo Hotel applies to inclusionary housing ordinances.
  • San Remo Hotel L.P. v. City and County of San Francisco (2002) 27 Cal.4th 643; The court held there must be a reasonable relationship between exactions and the deleterious impact of the projects on which they are imposed.
  • Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4th 1193; The Court held that affordable housing set-asides are exactions under the Mitigation Fee Act.

Executive Order Establishes New 2030 Mid-Term Greenhouse Gas Emissions Reduction Target

Friday, May 1st, 2015

On April 29, 2015, Governor Jerry Brown signed Executive Order B-30-15, which establishes “[a] new interim greenhouse gas emission reduction target to reduce greenhouse gas emissions to 40 percent below 1990 levels by 2030…” (Executive Order B-30-15, ¶ 1, at http://gov.ca.gov/news.php?id=18938.)  The Executive Order requires the California Air Resources Board to express the 2030 target in terms of million metric tons of carbon dioxide equivalent. (Id. at ¶ 3.)  The Executive Order also requires state agencies consider “full life-cycle cost accounting” when making future planning and investment decisions. (Id. at ¶ 6.)  To help state agencies incorporate climate change impacts into planning and investment decisions, the Executive order requires the Governor’s Office of Planning and Research to establish a technical, advisory group on the issue.

 On June 1, 2005, Governor Arnold Schwarzenegger signed Executive Order S-3-05, which among other goals established a target to achieve statewide GHG emissions that are 80 percent below the 1990 levels by 2050.  Governor Brown’s Executive Order B-30-15 does not replace Governor Schwarzenegger earlier 2050 target.  Rather, as explained in Executive Order B-30-15, this new interim target will “ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050.” (Ibid.)  Therefore, Executive Order B-30-15 provides support for the conclusion that a project found consistent with Executive Order B-30-15 is consistent with Executive Order S-3-05.

 In addition to establishing a new interim target, the Executive Order requires the California Natural Resources Agency (Resources Agency) to update the state’s climate adaptation strategy, Safeguarding California, every three years and to ensure that the strategy is fully implemented.  Among other requirements, the strategy must identify a lead agency or group of agencies that are responsible for adaptation efforts in, at least, the following sectors:  water, energy, transportation, public health, agriculture, emergency services, forestry, biodiversity and habitat, and ocean and coastal resources. (Executive Order B-30-15, ¶ 4.)  The lead agencies for each sector must, by September 2015, outline the actions in their sector that will be taken as identified in Safeguarding California and must report back to the Resources Agency on their success by June 2016. (Id., ¶ 5.) 

 Finally, the Executive Order also requires the state to take current and future climate change impacts into account in all infrastructure projects identified in the state’s Five-Year Infrastructure Plan. (Executive Order B-30-15, ¶ 8.) 

 Several bills are pending this legislative session that relate to future GHG targets for the state.  For example, AB 21 would require a statewide greenhouse gas emissions limit for 2030 to be established by 2018.  SB 32 would require a statewide GHG emission limit equivalent to Executive Order S-3-05’s goal of 80% below the 1990 level by 2050 and authorizes interim greenhouse gas emissions level targets to be established for 2030 and 2040.  AB 33 would establish a Climate Change Advisory Council with the duty to develop and analyze strategies to achieve the statewide GHG emissions limit as defined by AB 32 in 2006.  Thomas Law Group will continue to monitor if and how pending legislation is amended to respond to Executive Order B-30-15. 

 

No Foolin’ – Community Group Files Lawsuit April 1 Claiming Sacramento General Plan Update Violates CEQA

Monday, April 20th, 2015

On April 1, 2015, Citizens for Positive Growth & Preservation filed a petition for a writ of mandate in Sacramento Superior Court seeking to invalidate the City of Sacramento’s (City) recent adoption of its 2035 General Plan.

After a “major overhaul” of its 1988 General Plan and adoption of the 2030 General Plan in 2009, the City released a draft of its proposed 2035 General Plan and supporting EIR in August 2014. The City scheduled a hearing for March 3, 2015 to consider adopting the 2035 General Plan and issued several supplemental changes to the 2035 General Plan on February 23, 2015. Despite petitioner’s request to recirculate the EIR in light of the changes, the City adopted the 2035 General Plan as scheduled and issued a Notice of Determination.

The 31-page complaint alleges seven causes of action for violations of the California Environmental Quality Act (CEQA) and state and local planning laws.

Petitioner first alleges the EIR is deficient because the EIR fails to properly analyze the impact on traffic and other impacts related to traffic. The EIR measured traffic impacts using Level of Service (LOS), which uses a grade from A to F (with F meaning failing) to measure vehicle delay on roadways. According to petitioner, the EIR defines LOS F as acceptable and LOS F is not an acceptable LOS for any street in the state. Petitioner claims the City should have classified this as a significant impact and proposed mitigation to reduce the impact. Petitioner also contends the increase in traffic delays on roadways will affect cyclists, who are forced to choose between more congested roads or riding on sidewalks, and air quality due to increased vehicle emissions while idling––none of which the EIR analyzed or attempted to mitigate.

Additionally, petitioner contends the supplemental changes revised several portions of the 2030 General Plan and the City failed to consider the impacts of any of these late additions. By failing to analyze the impacts of the 2035 General Plan and its supplemental changes on air quality, greenhouse gas emissions, and cyclists, petitioner argues the EIR violates CEQA because the project description is inadequate. The final portion of the first cause of action claims the EIR is deficient because it failed to consider any alternatives to the 2035 General Plan in a meaningful way.

The second cause of action contends the City violated CEQA by adopting the 2035 General Plan without recirculating the EIR. Petitioner argues the supplemental changes proposed on February 23 constituted “significant new information” that created new environmental impacts and/or increased the severity of the 2035 General Plan’s impacts, requiring revision and recirculation of the EIR under CEQA Guidelines section 15088.5. Petitioner specifically identified several changes as “significant” including: modifying vehicle LOS exception areas, eliminating requirements for mass transit, and eliminating requirements that the City review flood control impacts, among others.

The third cause of action contends the City’s adoption of a Statement of Overriding Considerations was invalid because it does not reflect the actual impacts of the 2035 General Plan as approved. According to petitioner, the impacts of the supplemental changes and oral modifications at the hearing were not considered when the City adopted the Statement of Overriding Considerations and therefore it is invalid.

The fourth cause of action argues the 2035 General Plan is unlawful because the City failed to give meaningful and adequate notice of the 2035 General Plan’s terms to the public.  Petitioner  points to a portion of the 2035 General Plan that purportedly allows the City to approve projects even if the projects are incompatible  General Plan policies. Petitioner contends this deprives the public of a meaningful understanding of the 2035 General Plan because the public has no way to know the nature and extent of development that is approved if the City granted itself the authority to approve projects inconsistent with the General Plan policies.

The fifth cause of action claims the City violated CEQA by failing to evaluate and respond to the public’s comments on the Draft EIR.  This procedural violation alleges the agencies did not get the required 10-day notice prior to the City certifying the Final EIR on March 3.

The sixth cause of action alleges violations of state planning and zoning laws. Petitioner claims the 2035 General Plan conflicts with Government Code section 65300.5, which states “the general plan and elements and parts thereof comprise an integrated, internally consistent and compatible statement of policies for the adopting agency.” Petitioner specifically points to a section of the 2035 General Plan that purports to give the City sole discretion to determine if a project is consistent with the General Plan and allows the City to “use its discretion to balance and harmonize policies with other complementary or countervailing policies.” In addition, petitioner also alleges Figure M-1 in the 2035 General Plan violates the Office of Planning and Research’s Guidelines by failing to clearly delineate the boundaries of the City’s “Core Area” such that the public is not able to determine where failing traffic conditions will be allowed.

Finally, in the seventh cause of action petitioner seeks a judicial declaration as to whether the City has complied with CEQA, the City’s General Plan, and California planning law.

In addition to the declaratory relief sought in the seventh cause of action, petitioner seeks a stay and writ of mandate setting aside the City’s adoption of the 2035 General Plan until the City complies with state and local planning laws.

Judge Rules Against Petitioner’s Lawsuit Challenging EIR for McKinley Village Infill Project

Monday, April 20th, 2015

In an opinion issued April 9, 2015, Sacramento Superior Court Judge Timothy Frawley denied a petition for a writ of mandate challenging the environmental impact report (EIR) for the McKinley Village infill development project in East Sacramento. The court also rejected petitioner’s argument that McKinley Village conflicted with the City of Sacramento’s General Plan. Thomas Law Group successfully represented the developer in defending against the suit.

The McKinley Village project broke ground in summer 2014 on 336 residential units and associated infrastructure. The vacant 49-acre lot is bounded by a freeway to the north and railroad tracks to the south along with a former landfill site beyond the freeway to the north. Following a recommendation by the City’s Planning and Design Commission, the City Council certified the EIR and approved the McKinley Village project. Petitioner “East Sacramento Partnerships for a Livable City” subsequently filed a petition seeking to set aside the City’s approval of the project.

Petitioner first claimed the EIR did not adequately analyze how the project’s proximity to a freeway, railroad tracks, and former landfill site may adversely affect the health and safety of future McKinley Village residents. However, the court held the California Environmental Quality Act (CEQA) only requires a lead agency to analyze the impacts a project will have on the existing environment––as opposed to the affects the environment will have on a project. Therefore, the City could not have violated CEQA by failing to “adequately” analyze the impacts of the existing environmental conditions on the project because CEQA did not require any analysis of those impacts at all.

Next, petitioner contended the City violated CEQA by not recirculating the EIR after making “significant and fundamental” changes to the project. The purported changes compelling recirculation included a third vehicular access at Alhambra Boulevard, a proposal to remove Sutter’s Landing Parkway from the City’s General Plan, a half-street closure at the intersection of 28th and C streets, as well as approvals for a development agreement, a rezoning request to allow multi-family residential uses, and a variance for driveway widths.

The court held neither the proposal to consider another vehicular underpass at Alhambra Boulevard access nor the proposal to remove Sutter’s Landing Parkway from the City’s General Plan were part of the project approved by the City. As the City would have to complete additional environmental review if either proposal moved forward, the City did not have to recirculate the EIR due to these proposals.

With respect to the development agreement and driveway variance, the court agreed with petitioner that they should have been included in the draft EIR as approvals needed to implement the project. However, the City’s failure to include them did not preclude public participation and therefore was not a prejudicial abuse of discretion. Additionally, while the City decided to rezone to allow multi-family dwelling units after circulating the draft EIR, the court held petitioner failed to satisfy its burden of showing this constituted significant new information and the City did not abuse its discretion by not recirculating the EIR.

Similarly, the court held the half-street closure at 28th and C streets did not constitute significant new information. The court agreed with the City that the closure diverted traffic to another street with greater capacity and did not substantially increase the severity of traffic impacts in the EIR.

Petitioner also contended the EIR violated CEQA because it failed to properly identify, analyze and mitigate traffic impacts. However, the court held substantial evidence supported the City’s traffic impact conclusions. Further, the City did not abuse its discretion by using a flexible Level of Service (LOS) metric from the General Plan as the significance threshold to measure the traffic impacts on intersections. Although using the flexible LOS standard allowed otherwise significant levels of traffic congestion to exist without constituting a significant impact, it avoided more detrimental mitigation measures to reduce traffic impacts such as widening lanes and building new roads.

Finally, the court rejected petitioner’s argument that the McKinley Village project was inconsistent with the City’s General Plan. Petitioner listed eighteen General Plan policies that allegedly conflicted with the project; however, the court explained that many of the policies were amorphous and subjective such as “supporting transit service” and “promoting complete neighborhoods.” Accordingly, petitioner’s perceived inconsistencies with these imprecise policies was insufficient to render the project inconsistent with the General Plan as a whole. Where the policies were more discrete in nature such as investigating the site for hazardous materials, the court held adequate evidence supported a finding of consistency.

Only one General Plan policy gave the court pause––a requirement that new neighborhoods include transit stops within a half mile of all dwellings. The court ultimately concluded that given other portions of the General Plan discouraging users from focusing on individual General Plan elements, the City reasonably could have concluded the policy was an advisory policy and strict compliance was not mandatory. Therefore, the court held the City did not abuse its discretion in finding McKinley Village was consistent with the General Plan.

Following the court’s decision, an attorney for the petitioner told the Sacramento Business Journal the petitioner is considering its options including whether to file an appeal.