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Project Description/Piecemealing Posts


GHG Guidance Document Containing Threshold of Significance Required to Undergo CEQA Review

Friday, September 28th, 2018

In Golden Door Properties, LLC v. County of San Diego (2018) Cal.App.5th 892, the Fourth District Court of Appeal held San Diego County’s (County) adoption of a guidance document for the evaluation of greenhouse gas (GHG) emissions established a threshold of significance for determining impacts. The County violated CEQA where it adopted the guidance document without first conducting CEQA review, sidestepped required public review and violated the Court’s prior writ.

The County adopted a Climate Action Plan (CAP) in 2012 and related guidelines in 2013. Following successful petitions from the Sierra Club, the County was directed by both the trial court and appellate court to set aside the documents for failing to make required findings and failing to adequately detail deadlines and enforceable measures, amongst other things. In 2016, the County adopted the “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (Guidance Document). Golden Door Properties, LLC and Sierra Club brought suit challenging the adoption.

The trial court consolidated the two suits, granted a writ of mandate and injunction against the County, and entered judgment prohibiting the County from using the Guidance Document. The trial court concluded (1) the claims were ripe; (2) the Guidance Document creates a threshold of significance under CEQA; (3) the Guidance Document violates the County’s general plan mitigation measures; and (4) the Guidance Document is not supported by substantial evidence. The County timely appealed.

The Appellate Court first addressed the ripeness of this action. Ripeness is “primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” However, the Court continued, the issues here are ripe where the Guidance Document provided a generally applicable threshold of significance and there is sufficient public interest in the matter, citing California Building Industry Assn. v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. The ultimate analysis of ripeness, the Court quoted, is “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

The Court then turned to the CEQA arguments. The Court concluded that the Guidance Document is a threshold of significance. CEQA Guidelines section 15064.7 defines a threshold of significance as “an identifiable, quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” The Court found that the Guidance Document provided a “recognized and recommended” efficiency metric for determining significance of GHG emissions, and therefore was a threshold of significance for the purposes of CEQA.

The Court then held that a threshold of significance for general use (as opposed to a project-specific threshold) is subject to CEQA public adoption guidelines, per Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059. The County conceded that the Guidance Document was not formally adopted through a public review process. Thus, the County violated the CEQA requirement that a threshold of significance be adopted “by ordinance, resolution, rule or regulation, and [be] developed through a public review process,” as mandated by CEQA Guidelines section 15064.7.

Further, the Court held, the County failed to provide substantial evidence to support its recommendations in the Guidance Document. Specifically, the County “reli[ed] on statewide data without evidence supporting its relationships to countywide [GHG] reductions.” This approach was legally flawed under the principles set forth in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204. The County failed to address why using the statewide data that did not specifically address the County was appropriate for the County and also failed to account for variations in different types of development.

Finally, the Court held that the County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of CEQA. The County argued that development of a CAP and thresholds of significance were proceeding in compliance with the schedule established in the writ issued after the Court’s prior decision in Sierra Club, and the Guidance Document therefore did not violate that decision.  However, the Court concluded that its earlier decision treated the CAP and thresholds of significance as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds. Considering this, the Court held the County’s 2016 adoption of the Guidance Document was improper piecemealing.

For these reasons, the Court affirmed the trial court’s holding.

Key Point:

A document that provides a threshold of significance is required to undergo CEQA review.

Population Projections Proper Baseline for San Francisco General Plan Housing Element Update

Wednesday, August 22nd, 2018

In San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, the First District Court of Appeal held the City of San Francisco (City) general plan housing element EIR satisfied CEQA in using 2025 population projections as a baseline for a growth-accommodating policy and adequately considered traffic impacts, water needs, and project alternatives.

In 2011, the City updated the housing element to the City’s general plan. The housing element EIR baseline was based on 2025 population projections. San Franciscans for Livable Neighborhoods (SFLN) filed suit alleging the EIR used an improper baseline and failed to adequately address various environmental impacts.

The trial court held that the City complied with CEQA in most respects. Specifically, the trial court agreed with Respondents that the general plan was not internally inconsistent, the City need not have recirculated the EIR after publication, and the EIR contained an adequate project description, sufficient impact analyses, and a reasonable range of project alternatives. However, the trial court found that the EIR was inadequate in its analysis of alternatives and findings regarding potentially feasible mitigation measures. Parties timely appealed.

Typically, CEQA requires an EIR baseline to employ present environmental conditions for the baseline analysis. However, the Appellate Court held that the use of an alternative baseline was permissible under CEQA so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach. An agency may adjust its baseline conditions at its own discretion and in appropriate circumstances in order to account for a major change in environmental conditions expected to occur before project implementation. For instance, where an amendment to a general plan takes a long view of city planning, the analysis of the amendment’s impacts may do so as well. Here, the City used a hypothetical baseline—population projections for 2025—in order to measure resulting traffic and water impacts related to the housing element. Recognizing “it would be absurd to ask the City to hypothesize the impacts of a long-term housing plan taking hold immediately,” the Court held the City acted within its discretion to define the baseline with 2025 population projections and forecast traffic and water impacts in 2025 rather than compare the existing conditions with and without the housing element.

The Court determined that the housing element sought to accommodate housing needs in response to a growing population, growth that would happen regardless of the housing element, therefore it was a growth-accommodating policy rather than a growth-inducing policy. Cases relied on by SFLN were unconvincing as they analyzed project approvals that would result in population growth in previously undeveloped areas.

With the baseline properly defined, the Court then held the EIR’s analysis of environmental impacts was sufficient. The EIR reasonably concluded that the housing element would not have a substantial impact on visual resources or neighborhood character as it encouraged residential uses in areas that were already allotted or existing and did not change any zoning.

Then focusing on the EIR traffic impact analysis, the Court held the City was not required to study in-the-pipeline projects with potential traffic impacts as they are subject to their own CEQA review and EIR process. Nonetheless, the City did so at sixty intersections and properly relied on 2025 population projections in their analysis for the above reasons.

The Court then held the EIR’s water supply impact analysis was sufficient where it acknowledged the “degree of uncertainty involved, discuss[ed] the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and disclos[ed] the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

Finally, the Court held the EIR’s analysis of alternatives complied with CEQA where it identified and provided “extensive information and analysis regarding the alternatives” for at least three alternatives. SFLN failed to meet their burden to show the range of alternatives are “manifestly unreasonable or deprive[] the decision-makers and the public of information they need to evaluate the project and its impacts.” Where the EIR’s alternatives allowed decision makers a meaningful context to weigh the project’s objective against its environmental impacts, it complied with CEQA.

The Court affirmed the trial court’s holding on these issues.

Key Point:

An alternative project baseline for CEQA purposes may be proper so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach in utilizing it.

Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

Tuesday, June 12th, 2018

In County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, the Second Appellate District upheld a CEQA statutory exemption applied to a project undertaken by the State-created Broad Beach Geologic Hazard Abatement District (BBGHAD) and clarified that a “project” for CEQA consideration may be two separate activities if they serve a single purpose, have the same proponent, and are “inextricably linked.” Further, settlement agreement restrictions were not preempted by state law and do not constitute extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper and therefore void.

The State created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was obliged to restore and restock sand at the beach. The project would involve shipments of 300,000 cubic yards of sand, four subsequent deposits of equal size at five year intervals, and additional shipments of 75,000 cubic yards on an as-needed basis (Project). The sand was to be collected from quarries 30-40 miles away from Broad Beach and transported by trucks to the beach. The initial deposit alone was estimated to require 44,000 one-way truck trips. Possible truck routes from the quarries to the beach required either traveling through the City of Moorpark (City) or on roads adjacent to the community.

In the Project’s planning stages, City officials expressed concern that hauling sand on these routes would negatively impact residents, and therefore entered into a settlement agreement with BBGHAD to manage traffic. BBGHAD agreed to specific haul routes, truck staging requirements, and changes in routes in response to settlement-defined road emergencies. Additionally, the settlement agreement could only be modified with the consent of all parties. Thereafter, the Coastal Commission approved a coastal development permit for the Project, incorporating the settlement agreement.

The County of Ventura (County) filed suit alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by the City to regulate traffic outside of the City limits, and represents an abdication of BBGHAD’s state-granted police power.

The trial court found that the Project was statutorily exempt from CEQA, held that the settlement agreement was not preempted by the state’s Vehicle Code, and was not an improper attempt by the City to regulate traffic outside City limits. However, BBGHAD improperly contracted away its ability to amend the settlement agreement, therefore the trial court struck down the agreement’s mutual assent provision and held that BBGHAD must be able to modify the agreement in response to changed circumstances. The County timely appealed.

The Appellate Court affirmed the trial court’s ruling. In addition to its original claims, the County contended that the settlement agreement is an action distinct from the Broad Beach restoration project, thus beyond the scope of the exemption and subject to CEQA review. The Court disagreed, and found that the settlement agreement between the City and BBGHAD was part of the whole beach restoration effort and one project. The Court stated that when two activities are a coordinated endeavor to obtain an objective or are otherwise related to each other, they constitute a single project for purposes of CEQA. Here, the actions served the single purpose of abating a geologic hazard and were inextricably linked in achieving that goal. Only when the second activity is independent of and not a contemplated future part of the first activity may the two activities be reviewed separately.

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in the City’s settlement agreement. Vehicle Code section 21 prohibits local authorities from enacting resolutions or ordinances which affect state traffic restrictions. The Court found that because the agreement did not involve an ordinance or resolution (rather, it was the City acting under its contracting power), it was not preempted by Vehicle Code section 21. The Court further found that the agreement merely dictated the routes BBGHAD’s contractors and subcontractors must use when delivering on behalf of the Project. The agreement did not amount to a physical barrier which would redirect traffic, did not close roads, and did not restrict non-project related hauling.

The Court then addressed the extraterritorial regulation claim and held the City was within its contracting rights to further its implied necessary function of preventing public nuisances on their roads—like thousands of sand shipments. Additionally, the Court found the traffic restrictions on BBGHAD shipments were valid, as they only affected activity within the City limits.

Turning to the issue of infringements on BBGHAD’s police power, the Court found that as an entity of the State, BBGHAD was entitled to exercise a portion of the state’s police power. However, BBGHAD erred in part by contracting away its right to exercise its police power in the future. The agreement bound BBGHAD to surrender its discretion to haul routes in the future unless mutual assent was achieved between BBGHAD and the City. The Court found that this grant of veto power infringed upon the State’s police power therefore was invalid. In examining if this error was sufficient to render the entire agreement void, the Court weighed the agreement’s impact on the public and the expressed intentions of the parties, and determined that the aspects of the agreement which infringed on BBGHAD’s State-granted police power were severable from the rest of the agreement. Accordingly, the Court upheld the agreement in part and struck the agreement in part.

The Court affirmed the trial court’s judgement.

Key Point:

While incorporated settlement agreements with local authorities in project planning is allowable as part of one CEQA-defined “project”, when contracting with state entities, it is important to not infringe upon state police powers through the creation of modification clauses requiring assent from all parties.

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

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.

SECOND DISTRICT UPHOLDS CITY’S PERMITTING PROCESS FOR MALIBU HIGH SCHOOL PROJECT IN UNPUBLISHED DECISION

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.

FOURTH APPELLATE DISTRICT UPHOLDS MOJAVE DESERT GROUNDWATER EXTRACTION IN TWO PUBLISHED OPINIONS

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.

SECOND APPELLATE DISTRICT UPHOLDS EIR FOR PROPOSED UCLA CONFERENCE CENTER

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.

CITY OF SAN JOSE’S LANDFILL EIR UPHELD BY COURT

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.