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First District Court of Appeal Reverses Upper Truckee River Restoration and Golf Course Reconfiguration Project, Citing Lack of Identified Preferred Alternative

Thursday, February 8th, 2018

The Lake Tahoe Golf Course looking toward the Sierra Nevada

In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal reversed the California Department of Parks and Recreation’s (“Department”) approval of the Upper Truckee River Restoration and Golf Course Reconfiguration Project (“Project”), finding that the failure to identify a preferred alternative in the Draft EIR compromised the integrity of the EIR process.

In 1984, the State of California acquired a 777-acre parcel encompassing a 2.2-mile stretch of the Upper Truckee River. The parcel was later divided into two units: the Washoe Meadows State Park (“State Park”) created to protect a wetland meadow and the Lake Valley State Recreation Area (“Recreation Area”) created to allow the continuing operation of an existing golf course.

Since the 1990s, erosion of the river bed of the Upper Truckee River has raised environmental concerns. The layout of the golf course, which altered the course of the river, apparently contributed to a deterioration of the habitat and water quality. The Project was proposed to reduce the discharge of sediment that diminishes Lake Tahoe’s clarity and at the same time to provide public recreation opportunities in the State Park and Recreation Area.

The Department issued a scoping notice including four alternative projects and identified one of the alternatives – river restoration with reconfiguration of the golf course – as the preferred alternative. In August 2010, the Department circulated a draft EIR (“DEIR”) for the project. Although the DEIR analyzed five very different alternative projects, including the four alternative projects identified in the scoping notice, it did not identify a preferred alternative. The DEIR stated that the lead agency would determine which alternative or combinations of features from multiple alternatives was the preferred alternative in the final EIR (“FEIR”).

In September 2011, the Department issued the FEIR, identifying a version of the project as the preferred alternative. After the Department approved the preferred alternative project in January 2012, the plaintiff sued. The trial court held in favor of the plaintiff.

On appeal, the court held that the DEIR’s failure to provide the public with an “accurate, stable and finite” project description prejudicially impaired the public’s right to participate in the CEQA process, citing County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185. Noting that a broad range of possible projects presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives, the court found that the presentation of five very different alternative projects in the DEIR without a stable project was an obstacle to informed public participation.

Key Point:

When preparing multiple project alternatives in the course of drafting a DEIR, it is imperative to identify a preferred alternative to prevent prejudicially impairing the public’s ability to participate in the CEQA process.


Friday, June 10th, 2016

In an unpublished opinion, Malibu Community Alliance v. City of Malibu, 2016 Cal. App. Unpub. LEXIS 3116, Division Seven of the Second Appellate District adjudicated a challenge to development permits granted by the City of Malibu (City) to the Santa Monica-Malibu Unified School District (District) for the installation of athletic field lights at Malibu High School. Petitioners sought a writ of mandate ordering the City to revoke the permits. The trial court denied the petition and the appellate court affirmed.

The District had previously used temporary lights for evening athletic events. Permanent field lighting was planned as part of a larger construction project on the Malibu high school and middle school campuses. After issuing the initial study, the school district learned that permanent lighting would be in violation of a condition of its coastal development permit obtained from the California Coastal Commission unless the District obtained an amendment to its campus’s coastal development permit and Malibu’s local coastal program. The District then decided to separate the field lighting project from the larger campus project and conduct an independent environmental review of each project. The District proceeded to draft an environmental impact report (EIR) for the larger construction project and a mitigated negative declaration (MND) for the field lighting project.

During the environmental review process for the EIR and the MND, multiple comments suggested that this division of the projects constituted illegal piecemealing under CEQA and that the cumulative impacts of both projects were not analyzed. In the Final EIR, the District responded to these comments and analyzed the cumulative impacts of the construction project and lighting project. The District certified the EIR, approved the construction project, and issued its notice of determination in February 2012; it adopted the MND, approved the lighting project, and issued its notice of determination in April 2012. These actions were not legally challenged.

Two months later, in June 2012, the City relied on the MND when it granted the conditional use permit to the District for the installation of the lights. It was this permitting process that Petitioners challenged, claiming that the City should have prepared a supplemental environmental review because there had been a “substantial change in circumstances” regarding the project. Specifically, Petitioners pointed to the fact that the applications for the lighting project and larger construction project were pending before the City at the same time. According to Petitioners, this caused the two separate projects to “bec[ome] one project.”

The court disagreed, holding that the timing of the applications did not constitute a substantial change that would trigger supplemental environmental review. Further, the court found that Petitioners were required to bring any claim of piecemealing within 30 days of the District filing its notice of determination and were thus precluded from collaterally attacking the environmental review under the guise of a challenge to the City’s later permitting process.


Friday, June 10th, 2016

A proposal to pump fresh groundwater from an underground aquifer located in the Mojave Desert (“Project”) resulted in six related cases. On May 10, 2016, the Fourth Appellate District upheld the Project in all six cases: Delaware Tetra Technologies, Inc. v. County of San Bernardino, 2016 Cal. App. Lexis 380, 2016 Cal. App. Unpub. LEXIS 3434, 2016 Cal. App. Unpub. LEXIS 3438, 2016 Cal. App. Unpub. LEXIS 3439, and Center for Biological Diversity v. County of San Bernardino, 2016 Cal. App. Lexis 382 and 2016 Cal. App. Unpub. LEXIS 3441.

The proposed Project is a public/private partnership designed to prevent water waste caused by brine and evaporation, and to ultimately transport water to customers in Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties. Once in operation, the Project would appropriate an average of 50,000 acre feet of groundwater over a period of 50 years. The groundwater extraction would be subject to the County’s 2002 Groundwater Ordinance, which was designed to ensure that groundwater extractions maintain safe yield of affected aquifers.

In March 2011, the Santa Margarita Water District (“Santa Margarita”) posted a notice of preparation of a draft Environmental Impact Report (“EIR”) for the Project. Under a June 2011 agreement, Santa Margarita agreed to act as the lead agency and San Bernardino County (“County”) agreed to act as a responsible agency. The Draft EIR was released for public review and comment in December 2012. During the EIR process, Santa Margarita, the County, the landowner, and Fenner Valley executed a memorandum of understanding (“MOU”) in which the parties agreed that a groundwater management, monitoring and mitigation plan would be developed in connection with the finalization of the EIR. The Final EIR was certified in July 2012.

Delaware Tetra Technologies

In the first published case, Delaware Tetra Technologies, Inc. challenged the County’s resolution authorizing the execution of the 2012 MOU, arguing that the County should have completed an environmental review under CEQA prior to approving the MOU.

Applying the de novo standard of review, the Court concluded that environmental review was not required because establishing a groundwater management, monitoring and mitigation plan under the MOU would not cause a direct, or a reasonably foreseeable indirect, physical change in the environment. Moreover, the MOU did not foreclose alternatives or mitigation measures, nor commit the County to a particular course of action that would cause an environmental impact. Rather, the MOU established that the County still retained full discretion.

Center for Biological Diversity

In the second published case, the Center for Biological Diversity, the San Bernardino Valley Audubon Society, Sierra Club, and National Parks Conservation Association (collectively, “CBD”) filed a petition for writ of mandate challenging the approval of the Project under CEQA. The Court concluded that Santa Margarita did not abuse its direction when it approved the Project and certified the EIR.

The court first held that Santa Margarita was properly designated as a lead agency because it was jointly undertaking the Project with the landowner and because it was the agency with the principal authority to approve and supervise the Project. Next, the Court held that the Project description, which characterized the Project as “a means of conserving water,” was not misleading because the Project would conserve water otherwise lost to brine and evaporation.

Finally, the Court rejected CBD’s contentions that the EIR did not provide an accurate duration for pumping by the Project and would result in more water being withdrawn than was contemplated and discussed by the EIR. Although the EIR recognized that the parties may choose to extend pumping for an additional term after the stated completion date of the Project, the Court found that the additional term was not reasonably foreseeable and noted that any additional term would require additional environmental review. The court further noted that the EIR did not permit withdrawal of water in excess of the amounts identified.

Key Points:

In holding that the MOU was not a “project,” the Court reaffirmed the principles of Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 regarding when an activity constitutes a “project” subject to environmental review. Memoranda of Understanding will not require environmental review under CEQA where they do not commit a lead agency to a particular course of action, foreclose alternatives or mitigation measures, or result in environmental impacts.

In addition, the Court reaffirmed in several different contexts that a court’s role is not to “pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.”  Petitioners bear the burden of describing the lead agency’s supporting evidence and showing how it is lacking.


Monday, January 4th, 2016

In an unpublished opinion, Save Westwood Village v. Regents of the University of California, 2015 Cal. App. Unpub. LEXIS 9281, the Second Appellate District affirmed the trial court’s rulings and rejected several CEQA challenges to the UC Regents’ approval of the Meyer and Renee Luskin Conference and Guest Center on the UCLA campus. As noted by the appellate court, the petitioner’s opening brief could have been rejected due to its failure to provide an adequate statement of facts, its limited and inaccurate citations to the record for most of its factual assertions, and its legal analyses, which was supported by only four citations to legal authority. Despite these inadequacies, the court considered each of petitioner’s four legal argument in turn, finding each to be unpersuasive.

Specifically, the court found that the Regents did not improperly pre-commit to the proposed project when they accepted a $40 million gift from the Luskins. The court found that the Regents’ acceptance of the gift did not preclude the Regents from considering any alternatives or mitigation measures because the gift was conditioned only on the Regents using the donors’ names for the proposed conference center, providing annual reports on the status of the conference center, and using the gift for charitable purposes. Nor did the court find pre-commitment from the Regents’ approval of the project budget prior to the certification of the Final EIR because the Regents approved the project design on the same day they certified the Final EIR and the approval followed lengthy, interactive planning and review process.

The court quickly rejected petitioner’s remaining claims: (1) that there were differing project descriptions regarding the amount of square footage between the EIR and the document authorizing the expenditure of funds; (2) that the project was a legally infeasible alternative because the guest center would be used for “non-academic purposes” 25% of the time; and (3) that the EIR did not consider the impact of lost parking spaces. The court found the record did not support any of these additional claims.

The lawsuit was filed in October 2012; the unfounded and barely articulated challenges entangled the project in CEQA litigation for more than three years.


Wednesday, December 9th, 2015

In an unpublished opinion, City of Milpitas v. City of San Jose, 2015 Cal. App. Unpub. LEXIS 8610, the Sixth Appellate District upheld the City of San Jose’s Environmental Impact Report (EIR) prepared for the Newby Island Sanitary Landfill and Recyclery. The programmatic EIR assessed the impacts of: (1) increasing the maximum elevation of the landfill to increase the landfill’s capacity; and (2) rezoning the landfill area and Recyclery to conform to existing and proposed landfill activities.

The Court first determined that the document qualified as a programmatic EIR because it involved a comprehensive rezoning and because specific details about construction and operation were not available for a number of uses proposed as part of the project, requiring further environmental review.

Applying the substantial evidence standard of review, the Court rejected the City of Milpitas’ allegation that the City of San Jose utilized an improper baseline that incorporated changes proposed by the project into its assumptions. One of the three baselines considered in the EIR was the “existing conditions (as they are today on the ground, including proposed changes to existing operations).” The Court found that this baseline was appropriate because the EIR first considered the existing conditions and then analyzed the effects of the proposed rezoning at a “first-tier level of detail.”

The Court next addressed whether the impact analysis was adequate. With regard to the light impact analysis, the Court found that, as a program-level document, the City of San Jose’s analysis was proper. The final EIR expressly called for further environmental review for many uses that would be allowed by the rezoning, including expansion of landfill yard activities and construction of new structures. The structures would presumably comply with the City of San Jose’s lighting policy and design guidelines and any potentially significant project-specific impacts would be identified and mitigated as part of later environmental review.

The Court then turned to the EIR’s noise analysis. The City of Milpitas alleged that the final EIR would allow the relocation of certain landfill activities within an identified California clapper rail buffer and the relocation of such landfill activities was not properly analyzed in the EIR. The Court deferred to the City of San Jose’s interpretation of the buffer and found that the project would have no significant operational noise or vibration impacts. To the extent that the City of Milpitas also challenged the use of existing noise conditions in determining whether new uses would be substantially louder, the Court found that the existing noise levels were appropriately part of the environmental baseline.

On the odor analysis, the Court rejected the City of Milpitas’ argument that the final EIR failed to follow the air district’s significance thresholds for odor. The Court held that because the final EIR effectively treated odor impacts as potentially significant and identified mitigation measures to counteract those impacts, any deficiency in compliance with the air district’s guidelines threshold of significance was harmless. The City of Milpitas’ allegation that the EIR failed to analyze the odor impacts of increased landfill gas emissions was also rejected by the Court; the expert conclusion in the record was not contradicted by other expert evidence. The Court also rejected arguments raised by the City of Milpitas regarding volatile organic compounds and sulfur oxides because they were forfeited for failure to exhaust administrative remedies. Even assuming the City of Milpitas had not forfeit those arguments, the Court held that it had not provided any expert evidence to support its assertions on appeal.

Finally, the Court rejected the City of Milpitas’ assertion that the EIR’s project objectives were drawn so narrowly that they precluded effective analysis of alternatives to the project. The Court recognized that CEQA does not forbid site-specific project objectives and found that the site specific nature of the EIR’s project objectives did not preclude effective alternatives analysis. The Court also held that the City Council’s conclusion that none of the alternatives was feasible was supported by substantial evidence.

Two Wins for the Railyards Development in Third District Court of Appeal

Tuesday, October 20th, 2015

This month, the Third District Court of Appeal issued two unpublished opinions on pending CEQA suits challenging the Railyards development in Sacramento. Both opinions affirm the decisions of the trial court and conclude that the City of Sacramento complied with CEQA when it adopted the Railyards Specific Plan and the Railyards Redevelopment Plan.

In Sacramento Citizens Concerned About the Railyards v. City of Sacramento (C065220, Oct. 7, 2015), the Court held that the program EIR for the Railyards Specific Plan adequately described historic and archaeological resources, provided adequate information regarding water quality impacts, appropriately described the project, did not improperly segment review of the project’s cistern, and adequately analyzed traffic and air quality impacts.

In the second case, Castro v. City of Sacramento (C062091, Oct. 9, 2015), the petitioners challenged the City’s decision to amend the 1990 Richards Boulevard Plan to remove 300 acres from its boundaries and rename it the River District Redevelopment Plan. Those 300 acres then became the new Railyards Redevelopment Plan. Petitioners challenged the City’s adoption of the Railyards Redevelopment Plan under CEQA, arguing that the EIR improperly tiered from the Railyards Specific Plan EIR, the environmental review was improperly segmented, and the EIR failed to analyze and mitigate toxic air contaminants. The Court disagreed and affirmed the trial court’s judgment in the City’s favor.

A Project under CEQA is the Whole of the Action Proposed

Monday, June 15th, 2015

In Mountains Recreation & Conservation Authority v. City of Whittier 2015 Cal. App. Unpub. LEXIS 3859, the Second District Court of Appeal reiterated that a “project” under the California Environmental Quality Act (CEQA) is not each individual governmental approval, but rather the whole of an action.

The facts leading up to the case began when the City of Whittier (City) purchased over 1,000 acres of undeveloped land, including land formerly owned by Chevron U.S.A. Inc. (Chevron) and covered in part by a conservation easement, using a grant from the Los Angeles County Regional Park and Open Space District (District). Upon purchase of the land, the City and the District entered into a Project Agreement (Agreement) requiring the City to seek the District’s approval of any proposed leases on the land. Thereafter, after certifying an EIR, the City entered into a lease with Matrix Oil Corporation for the drilling and production of oil on seven acres of the protected land (Project), yet the City did not first obtain approval from the District.

Mountains Recreation & Conservation Authority sued the District and the City, but its suit was settled and its claims were dismissed.  The District filed a cross-complaint against the City, alleging among other causes of action, that the City failed to comply with CEQA when it entered an Amendment and Partial Release of Declaration and Easement of Restricted Use with Chevron to make clear that the existing conservation easement did not prohibit the Project (Chevron Release).

With respect to the District’s CEQA claim, the District argued that the City was required to conduct environmental review of its decision to approve the “Chevron Release.”  The court explained that while approval of the “Chevron Release,” viewed in isolation, could potentially result in environmental impacts, the Release was not a distinct project on its own but rather one part of the oil drilling project as a whole that previously underwent CEQA review.  A “project” under CEQA means “the whole of the action,” not “each separate governmental approval.”  Thus, since the “Chevron Release” was one governmental approval in the midst of a larger project, the City was not required to conduct an environmental review of its approval. Furthermore, the court found that any possible environmental impacts of the “Chevron Release” were fully considered in the oil drilling project’s EIR.

Appellate Court Upholds EIR for Perris Dam Remediation Project in Riverside County

Tuesday, November 18th, 2014

In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”


The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.

Court Upholds Discussion of Project Objectives and Alternatives in an EIR for an Infill Project in San Diego

Tuesday, August 5th, 2014

In an unpublished decision in Save Our Heritage Organisation v. County of San Diego, (2014) Cal. App. Unpub. LEXIS 5121, the Court of Appeal for the Fourth District reversed the trial court and ordered the trial court to deny a writ of mandate challenging the adequacy of the environmental impact report (EIR) for a mixed-use development in downtown San Diego (project).

The project site contains a parking lot, warehouse, and an office building built in 1911 that the City of San Diego had previously designated as an historical structure.  The first phase of the project included demolition of the warehouse and office building and construction of a parking structure.  In the next phase, San Diego County (the County) would partner with a private developer to build a five-story office and retail building and a 19-story residential building on the remaining portions of the parcel.

While acknowledging the significant unmitigable environmental impacts of the project, the County adopted a statement of overriding considerations and approved the proposed development.  The County balanced four objectives of the project in the EIR, which included maximizing revenue, providing parking, establishing a public-private partnership, and obtaining a LEED certification.

The court first reversed the trial court’s ruling that maximizing revenue was an improper objective under the California Environmental Quality Act (CEQA).  Save Our Heritage Organisation (SOHO) contended that maximizing revenue was too narrow of an objective because it would preclude meaningful analysis of project alternatives.  However, neither CEQA nor the CEQA Guidelines impose limits on the project objectives in an EIR and courts do not have the authority to impose a limitation such as prohibiting a certain project objective in an EIR.  Additionally, maximizing revenue was one of four objectives and not the only factor the County considered.  As a result, the court held that considering maximizing revenue as a project objective did not by itself constitute an abuse of discretion by the County.

Next, the court held that the EIR contained an adequate range of alternatives and that the evidence was sufficient to support the County’s finding that the alternatives were infeasible.  Citing Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, the court stated that the County’s selection of alternatives would be upheld unless they were “manifestly unreasonable.”  In this case, the County considered a no project alternative, an alternative that left the historic structure intact with buildings around it, and an alternative that incorporated the historic structure into one of the buildings.  Emphasizing that under CEQA courts should be highly deferential to an agency’s decision, the court found these alternatives were not manifestly unreasonable.

In looking at whether substantial evidence supported the County’s decision, the court stated that the feasibility of the project alternatives must be evaluated in the context of the project.  An expert analysis of the anticipated revenue from the project expected over 79 million dollars from the proposed project compared to 27 million and 29.6 million for the alternatives.  Based on this evidence, the court held that SOHO had failed to meet its burden of proving there was not substantial evidence to support the County’s decision.

Finally, the court reversed the trial court’s ruling that the County’s responses to three public comment letters were inadequate.  The three public comment letters at issue included modifications of the project alternatives. However, as the court pointed out, CEQA does not require an analysis of every possible alternative. The County explained why each suggestion was infeasible in reference to the alternatives analyzed in the EIR and, as a result, SOHO failed to meets its burden of showing the County’s responses were inadequate.

City Properly Analyzed Community Park Project Separately from Adjacent Housing Development

Wednesday, January 2nd, 2013

In Banning Ranch Conservancy v. City of Newport Beach (2012) 2012 Cal.App.LEXIS 1259, the Fourth District Court of Appeal issued a decision upholding the trial court’s denial of Banning Ranch Conservancy’s challenge to the City of Newport Beach’s (City) environmental impact report (EIR) for Sunset Ridge Park (Park Project).  Petitioner alleged that the Park EIR failed to comply with the California Environmental Quality Act (CEQA) because, to avoid improper piecemealing, the Park Project should have been evaluated in conjunction with a pending residential and commercial development project proposed on an adjacent property (Housing Project).  Petitioner also alleged the EIR inadequately analyzed five issues relating to the Park Project: (1) the cumulative traffic impact, (2) the growth-inducing impact, (3) the cumulative biological impact, (4) the impact on habitat for the California gnatcatcher, and (5) its consistency with the Coastal Act.  The court rejected each of Petitioner’s arguments.

In reviewing case law concerning piecemealing the court identified three potential categories.  First, there may be improper piecemealing when the purpose of the reviewed project is to be the first step toward future development. Second, there may be improper piecemealing when the reviewed project legally compels or practically presumes completion of another action.  Third, an agency may not be guilty of piecemealing when the projects have different proponents, serve different purposes, or can be implemented independently.

Here, the court concluded the Park Project and the Housing Project most closely fit into the third category.  The court acknowledged that the Housing Project may make reasonably foreseeable changes to the scope and nature of the Park Project due to the fact that the access road to the Park may be designed in a manner that anticipates the potential construction of the Housing Project. However, to constitute piecemealing the court stated that the Housing Project must be a reasonably foreseeable consequence of the Park Project.  While the roadway would ease the way for the Housing Project, the court found that “the park’s access road is only a baby step toward the [Housing] project.”  In light of its relatively small benefit, and the facts that the projects have different proponents, serve different purposes, and may be constructed independently of each other, the court held that the City did not improperly piecemeal the projects by analyzing them separately.

In dicta the court stated further that some tipping point exists at which the Park Project would do so much of the work needed by the Housing Project that the two projects would become one. Their implementation would be sufficiently interdependent in practice, even if theoretically separable, and a piecemealing challenge would be well founded.  But, the court found that the “baby steps taken here fall short of that point.”

Turning to Petitioner’s additional CEQA arguments, the court dismissed each quickly.  First, Petitioner argued that the EIR failed to properly evaluate the cumulative impacts of the Park and Housing Projects.  The court concluded substantial evidence in the record demonstrated these cumulative impacts were considered in the EIR.   The court acknowledged that the impact analysis “could have been set forth more directly.”  However, an EIR need not achieve “perfection” and the analysis was adequate.

Second, Petitioner argued that the EIR improperly concludes the Park Project will have no growth inducing impacts.  The court concluded that the need for additional park facilities is documented in the City’s General Plan.  Moreover, the Housing Project was proposed by the developer before the Park Project was proposed by the City.  The court found that the Park Project could not induce a project that was already being planned.

Third, Petitioner alleged that the draft EIR was inadequate because the cumulative biological impact analysis did not mention the Housing Project.  However, the final EIR clarified the manner in which the draft EIR accounted for the Housing Project and listed five reasons the projects would not cumulatively result in a significant biological impact.  The court held that, with the clarifications in the final EIR, the EIR sufficiently satisfied its dual role as an informational document and a document of accountability.

Fourth, Petitioner asserted the EIR downplayed the Park Project’s impact on California gnatcatcher habitat.  The court found that no case law supports the conclusion that where critical habitat is impacted by a project, the project’s impact is per se significant.  Instead, the court explained that to determine if the impact is significant the question is whether the project as mitigated will have a “potential substantial impact on endangered, rare or threatened species…”  If a potential impact is not found to be substantial, then it is not a significant impact.  The court explained that the determination of substantiality is a question of fact reviewed under the substantial evidence test.  Applying the substantial evidence test, the court held that the “observations and opinions of the City’s biologist” sufficiently supported the determination that the project’s impact to California gnatcatcher habitat was less than significant.  Although Petitioner contended the two to one ratio proposed to mitigate impacts to California gnatcatcher habitat was insufficient, the court stated that “this is the type of second-guessing that [a court] will not do on appeal.”  The court also noted that in developing mitigation a lead agency is not required to “acquiesce to different mitigation measures proposed by the United States Army Corps of Engineers or anyone else.”

Finally, Petitioner argued that the EIR failed to disclose the Project’s inconsistency with the Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.).  Petitioner’s argument was premised on two theories.  First, Petitioner alleged the Coastal Commission intended to designate the project area as environmentally sensitive habitat areas (ESHAs).  The court rejected that this potential change in designation was relevant.  The court explained that there are no inconsistencies at the moment.  Second, Petitioner alleged that the project area included wetlands.  The biological technical report prepared for the EIR determined that the site did not include wetlands as defined by the Coastal Act.  To contradict the technical report, Petitioner pointed to a comment by a City Planner acknowledging that coastal staff may determine the site contains wetlands.  But the court stated that the question is whether substantial evidence supports the City’s approval of the EIR, not whether “an opposite conclusion would have been equally or more reasonable.”  Because under the substantial evidence standard of review the court was not permitted to “weigh conflicting evidence and determine who has the better argument” the court held that the biological technical report sufficiently supported the conclusion in the EIR.

Key Point:

Projects with different proponents, different purposes, and which can be implemented independently, typically can be analyzed separately for the purposes of CEQA without violating the rule against piecemealed review.

The CEQA Guidelines provide that CEQA “must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development or advancement.” (CEQA Guidelines, § 15003, subd. (j).)  In Banning Ranch, supra, Petitioner’s attempted to derail the Housing Project before it got off the ground by attacking a Park Project that, once developed, would preserve open space and provide recreational activities for the general public.  CEQA reform is necessary to provide consistency and clarity in interpreting the statute and to discourage litigation where the statute has been carefully complied with.

Written By: Tina Thomas and Christopher Butcher
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.