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CEQA Updates

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Subsequent CEQA Review Posts


FIRST APPELLATE DISTRICT FINDS WAREHOUSE STORE PROJECT EIR FAILED TO SUFFICIENTLY ANALYZE POTENTIAL ENERGY IMPACTS IN PARTIALLY PUBLISHED OPINION

Wednesday, June 22nd, 2016

On June 21, 2016, the First Appellate District partially published its opinion for Ukiah Citizens for Safety First v. City of Ukiah (Case No. A145581). The case involved a citizen group’s petition for writ of mandate challenging the certification of an environmental impact report (EIR) by the City of Ukiah (City) for the construction of a Costco Wholesale Corporation retail store and gas station (Project).

In the published portion of the opinion, the Court addressed alleged deficiencies in the Project EIR’s energy impacts analysis. Petitioners asserted that the EIR “fails to include adequate information regarding the project’s energy use and does not comply with appendix F of the CEQA Guidelines.” Specifically, Petitioners alleged that the EIR failed to calculate the energy use attributable to vehicle trips generated by the Project and failed to calculate the operational and construction energy use of the project.

In arriving to its decision, the court relied on the standards set forth by the Third Appellate District in California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC), a decision that was filed after the EIR was certified and the petition was filed. Consistent with CCEC, the court found that the EIR failed to calculate the energy impacts of trips generated by the Project. The court also found that the EIR improperly relied on compliance with the California Building Code to mitigate operational and construction energy impacts, without further discussion of the CEQA Guidelines Appendix F criteria. Finally, the court found that the City inappropriately relied on mitigation measures designed to reduce greenhouse gas emissions.

While this litigation was pending and recognizing the deficiencies in its EIR based on the principles set forth in the CCEC opinion, the City adopted an addendum to the EIR. The addendum clarified the EIR’s findings on energy impacts, but did not alter the conclusions reached in the EIR. While the trial court considered the addendum over Petitioners’ objections, the appellate court found this to be an inappropriate expansion of the administrative record. The court explained that the administrative record before a reviewing court should generally only consist of evidence that was before the decision-making body when it rendered its decision. Thus, the court did not address whether the language in the addendum cured the EIR’s defects. Moreover, the court found that the City’s subsequent addendum did not cure the prior approval of an inadequate EIR because the preparation of an addendum assumes that the EIR was properly certified. Because the EIR, as certified, inadequately addressed the energy impacts of the project, the court held that recirculation and consideration of public comments concerning the energy analysis will be necessary before the EIR can be recertified.

In the unpublished portion of the opinion, the court rejected Petitioners’ remaining contentions regarding: (1) the EIR’s analysis of transportation and traffic impacts; (3) the EIR’s analysis of noise impacts; and (3) the Project’s consistency with applicable zoning requirements. The court affirmed the trial court’s decision on the remaining contentions because there was sufficient evidence in the record to support the City’s conclusions.

Key Point: Addendums can only be used to clarify, amplify, or make insignificant modifications to an adequate EIR.

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.

Addendum to Environmental Impact Report Sufficient to Outline Changes in Project’s Proposed Water Sources

Friday, June 12th, 2015

Pala Band of Mission Indians v. County of San Diego Department of Environmental Health (2015) Cal.App. Unpub. LEXIS 3815, California’s Fourth Appellate District affirmed the trial court’s judgment upholding the adequacy of an Addendum to an Environmental Impact Report (EIR) and granted defendants their costs on appeal.

The conflict in Pala Band began in 1994 when San Diego County voters passed Proposition C, approving the Gregory Canyon Landfill (GCL). San Diego County Department of Environmental Health (DEH) certified the Project’s Final Environmental Impact Report (FEIR), and later, a 2005 decision held that the FEIR approved by the DEH failed to consider water sources for the construction and operation of the Project, as well as the impact of obtaining water from off-site sources. The 2005 court set aside both the 2003 FIER certification and the Solid Waste Facility Permit (SWFP). In 2007, the DEH certified a Revised Final EIR (RFEIR).  After certification of the RFIER, GCL contracted with the San Gabriel Valley Water Company (SGVWC) to supply recycled water for the Project, and DEH prepared an addendum to the RFIER (2009 Addendum). The 2009 Addendum addressed primary on-site water sources from the riparian underflow of the San Luis Ray River and percolating groundwater from on-site watersheds, and SGVWC water as an alternative source.

Plaintiffs sued, arguing the 2009 Addendum was inadequate. After the lawsuit was filed, DEH approved a new SWFP for GCL, and sent the certification and SWFP to the California Department of Resources Recycling and Recovery (CalRecycle) for concurrence. When CalRecycle concurred, plaintiffs filed a second action claiming significant changes to the Project required a Supplemental Environmental Impact Report (SEIR). The trial court ruled for defendants and plaintiffs appealed.

Once the EIR is created, the necessary study is presumed done, and the burden shifts to the opposing party to argue why an SEIR is necessary. Plaintiffs contended any changes to the water sources of a project require the preparation of an SEIR. The court disagreed, stating that the plaintiffs’ interpretation was at odds with CEQA Guidelines § 15160 – that SEIR preparation is inappropriate unless the lead agency determines that “substantive changes” require “major revisions” to the prior EIR.  Because the plaintiffs failed to meet their burden of proof, the court rejected their argument that an SEIR was required.

The court next considered the sufficiency of the 2009 Addendum.  First, the court held that the 2009 Addendum correctly concluded that GCL had the right to use riparian water and percolating groundwater from existing wells for ancillary uses, landscape irrigation, and fire protection.  Second, the court found that substantial evidence showed that on-site wells were reliable sources of water as stated in the 2009 Addendum.  Third, contrary to plaintiffs’ argument, the court determined that SGVWC’s CPUC-approved tariff schedule authorized the sale of recycled water to GCL.  Fourth, the court rejected plaintiffs’ argument that the 2009 Addendum was inadequate for failing to analyze the environmental impacts of using third-party clay to build the landfill liner.  The court explained that the environmental effects of a project need not be exhaustive and its sufficiency must be reviewed in the light of what is reasonably feasible.  Finally, while the County Fire Department submitted comments on the 2009 Addendum expressing concern that the Project would have a potentially significant impact on their ability to deliver emergency fire suppression, the court held that the 2003 FEIR had an extensive discussion of fire safety impacts and, thus, the comments did not render the 2009 Addendum inadequate.