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COURT OF APPEAL PARTIALLY PUBLISHES RECENT URBAN DECAY MND CASE

Thursday, July 14th, 2016

On July 13, 2016, the Fourth Appellate District ordered the partial publication of its recent decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino. Thomas Law Group requested publication on behalf of the California Infill Builders Federation.

The opinion addresses challenges to a proposed retail store on the basis of alleged urban decay impacts and community plan inconsistencies. While these issues frequently arise in California Environmental Quality Act challenges to a Mitigated Negative Declaration (MND), existing published case law is sparse. Significantly, the opinion is the first published decision in nearly a decade to address an urban decay challenge in the context of an MND. In addition, the opinion articulates that the abuse of discretion standard of review, as opposed to the fair argument standard, is appropriate for land use plan consistency determinations relating to policies that “were not adopted to mitigate environmental impacts.”

The only portion of the opinion that was not published by the Court was Section IV, which addresses whether the County was required to disclose that the future occupant of the project was Dollar General.

For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH DISTRICT UPHOLDS COUNTY’S MITIGATED NEGATIVE DECLARATION FOR DOLLAR GENERAL STORE IN JOSHUA TREE

Friday, July 1st, 2016

In an unpublished opinion, Joshua Tree Downtown Business Alliance v. County of San Bernardino, 2016 Cal. App. Unpub. LEXIS 4405, the Fourth Appellate District rejected a challenge to the County’s approval of a 9,100-square-foot Dollar General store (“Project”) proposed by Dynamic Development (“Dynamic”) in Joshua Tree.

The County circulated an initial study and proposed negative declaration in August 2012. Many of the nearby property owners raised concerns that the Project would be out of character with the family-owned business community in Joshua Tree. In response to such concerns, the County changed its environmental determination from a negative declaration to a mitigated negative declaration and recirculated it in November 2012. After the County Board of Supervisors approved the Project in January 2013, the Joshua Tree Downtown Business Alliance (“Alliance”) filed a petition for writ of mandate, alleging that the County violated the California Environmental Quality Act (“CEQA”) by failing to analyze the Project’s potential for causing urban decay and blight. The Alliance also alleged that the County violated CEQA by attempting to hide the identity of the intended occupant and by approving a project that was inconsistent with the Joshua Tree Community Plan (“Community Plan”).

The trial court held that an EIR was required because there was substantial evidence to support a fair argument that the Project could cause urban decay. The trial court relied on the comments made by Ms. Doyle, a member of the Alliance and a lawyer who had previously counseled on land use issues as an Assistant Attorney General in the Oregon Department of Justice. The trial court reasoned that her experience demonstrated sufficient relevant personal observations that constituted substantial evidence under CEQA. Dynamic appealed and the Alliance cross-appealed on the remaining claims.

On appeal, the court reversed the trial court on the urban decay claim, holding that the mere fact that the Project may have potential economic impacts did not require an EIR where the economic impacts would not cause reasonably foreseeable indirect environmental impacts. The court found that the County properly considered that this was a “small box” retail project rather than the typical “big box” retail project analyzed in urban decay cases. The court also rejected the Alliance’s contention that Ms. Doyle’s opinions should have been considered substantial evidence. The court explained that Ms. Doyle was not qualified to opine on the Project’s economic impacts because she was not an economist and, moreover, her conclusions that urban decay would occur were speculative because they had no factual basis.

Next, the court rejected the Alliance’s allegation that the County violated CEQA by failing to identify the end user of the Project. The court recognized that CEQA does not require a lead agency to disclose an end user generally, but there may be times where the identity of the end user would be considered “environmentally relevant.” That was not the case here because Alliance did not produce any evidence that a Dollar General would have adverse environmental impacts beyond that of a “general retail store.”

Finally, the court rejected the Alliance’s argument that Project required an EIR because it was inconsistent with the Community Plan. The court declined Alliance’s request to view this as a CEQA issue that should be reviewed under the fair argument standard. Instead, the court applied the usual standard for a claim of inconsistency with a land use plan: abuse of discretion. The court held that the mere fact that the Project might compete with established local businesses did not make it inconsistent with the Community Plan’s provisions encouraging small businesses, and found that the terms “encourage” and “support” to be amorphous policy terms that gave the County discretion when making its consistency determination. Accordingly, the court found that the County had not abused its discretion.

FEDERAL COURT GRANTS SUMMARY JUDGMENT ON MOST CLAIMS TO LOCAL AND FEDERAL AGENCIES FOR CEQA AND NEPA CHALLENGES TO LOS ANGELES LIGHT RAIL PROJECT

Tuesday, November 10th, 2015

In Crenshaw Subway Coalition v. Los Angeles County Metropolitan Transportation Authority, 2015 U.S. Dist. LEXIS 143642, the United States District Court for the Central District of California granted summary judgment on all but one claim in favor of the Los Angeles Metropolitan Transportation Authority (“Metro”) and the Federal Traffic Administration (“FTA”) against Crenshaw Subway Coalition’s (“Plaintiff”) challenges to the approval of the Crenshaw/LAX Transit Corridor Project.

The Draft EIS/EIR for the Project analyzed four alternatives—no-build, Transportation System Management (TSM), Bus Rapid Transit (BRT), and Light Rail Transit (LRT). The agencies chose LRT as the locally preferred alternative and prepared an EIS/EIR to analyze potentially significant environmental impacts of the Project.

Specifically at issue in the case was the grade separation analysis for a section of track along Crenshaw Boulevard—where the LRT would shift from running below-grade to running at-grade for approximately six blocks until transitioning to an aerial structure. Plaintiff argued that the EIS/EIR violated CEQA and NEPA by failing to evaluate a reasonable alternative to the at-grade segment of the Project, namely a tunnel.

Initially, the Court suggested that CEQA did not require an analysis of any segment specific options (such a below-grade tunnel for the Crenshaw Boulevard section) because these options are just a component of the Project and did not rise to the level of an “alternative.” Therefore, under the Court’s view, Metro had no duty to analyze “alternatives” to the at-grade design feature. Nonetheless, the Court analyzed the issue as if the below-grade option were a CEQA alternative—in part because the issue was briefed as such by both parties.

The Court first held that the EIS/EIR’s alternatives analysis did not violate CEQA because Metro had determined in the scoping process that running the entire length of Crenshaw Boulevard below-grade was economically infeasible as it would increase the cost of the Project by 27 to 35 percent. Infeasible alternatives do not need to be analyzed in an EIR, and courts can look at the administrative record for evidence of infeasibility; specific “infeasibility findings” are not required.

The Court then held that the alternatives analysis did not violate NEPA because the below-grade alternative was not reasonable or necessary. Specifically, an economically infeasible alternative would not meet the Project’s stated goal of cost effective and affordable transit improvements and a study by Metro had determined that at-grade crossings were compatible with the level of traffic on the Boulevard. Accordingly, the Court held that it was not improper for the FTA to only briefly address the below-grade segment in a response to comment. The Court also rejected an argument that FTA had “predetermined” that the segment would be at-grade, holding that a preferred alternative does not equate to an improperly predetermined outcome under NEPA.

The Court next addressed Plaintiffs’ substantive challenges to the EIS/EIR’s land use, urban decay, parking, safety impacts, and environmental justice analyses. Because these were substantive and not procedural challenges, the Court gave more deference to the agencies’ conclusions and determined that they were supported by substantial evidence. The Court also rejected Plaintiff’s claims that the mitigation measures were not described with sufficient detail and that a supplemental EIS should have been prepared under NEPA.

Notably, the Court did not grant summary judgement to either party for Petitioner’s claim that Metro engaged in unlawful racial discriminated in its site selection for the Project in violation of Government Code section 11135, though the Court seemed to imply that Metro seemed “quite likely to succeed” in the litigation. The Court held that there was simply not enough evidence on the administrative record to properly analyze the issue, and thus summary judgment was inappropriate.

Key Point:

Alternatives analysis is a key component of any environmental impact report. However, whether an alternative can be rejected during the scoping process (and thus does not need to be analyzed in an EIR or EIS) depends on whether it is feasible (CEQA) or reasonable (NEPA). This case may provide support for an argument that alternative “design features” within the project do not even rise to the level of a project alternative.

COURT FINDS PROGRAMMATIC EIR FOR RETAIL DEVELOPMENT INCLUDED INADQUATE ANALYSIS OF URBAN DECAY AND ENERGY IMPACTS

Monday, April 7th, 2014

In California Clean Energy Committee v. City of Woodland, 2014 Cal. App. LEXIS 300, certified for partial publication on April 1, 2014, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate to vacate the City of Woodland’s certification of an EIR for a regional shopping center.

In 2007, a developer applied to annex 154 acres of agricultural land to the City and rezone it to general commercial use in order to build a regional commercial center known as “Gateway II.” After preparing an EIR, the city council approved the project, but reduced its size to 61.3 acres. The California Clean Energy Committee, a nonprofit organization, filed a petition for writ of mandate challenging project approval and certification of the EIR.

The court considered the sufficiency of the City’s mitigation measures for urban decay under CEQA. The court upheld a measure requiring primarily “regional retail” uses at Gateway II, upholding the City’s conclusion that the measures would help lessen, although not avoid completely, the potential urban decay impacts. The court, however, agreed with the Committee that a measure requiring the developer to submit a market study and urban decay analysis for future specific projects within Gateway II improperly delegated to the applicant responsibility for studying impacts in violation of CEQA. Further, the court agreed with the Committee’s contention that the market study measure provided no performance standards for evaluating whether additional mitigation should be required, in violation of CEQA.

Additional measures the court deemed inadequate required the developer to contribute fifty percent toward the cost of a retail strategic plan and an implementation strategy for the City’s Downtown Specific Plan. The court noted that these measures committed the developer to pay fees, but the fees were not tied to any planned action that would obligate the City to undertake actual mitigation of urban decay.

The court then addressed whether the City had given sufficient consideration to a mixed use alternative to the project.  The draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council findings rejected the alternative as environmentally inferior to the project.  The court explained that there was no support for the council’s determination, since the EIR concluded that environmental impacts of the alternative would be similar to the project impacts.

Finally, the court considered the City’s treatment of energy impacts. The court noted that the EIR discussion of energy comprised less than one page; included no assessment of or mitigation for transportation energy impacts; concluded that compliance with the Building Code and CALGreen alone would adequately mitigate construction and operational energy impacts; failed to address the energy impacts of the non-retail uses proposed for the site (including office and hotel); and gave no consideration to renewable energy options. Based on these facts, the court concluded that the analysis was deficient.

In an unpublished portion of the opinion, the court considered whether the City’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the City’s General Plan policy of revitalizing its downtown.  According to the Committee, Gateway II had the potential to cause urban decay by attracting retail development to the City’s periphery. The court held the Committee had failed to preserve this argument because its complaint had focused on the CEQA implications of urban decay, and had not apprised the City of an alleged violation of the Planning and Zoning Law.

KEY POINTS:

Under the court’s ruling, mitigation requiring a developer to undertake future studies of urban decay is inadequate mitigation. Instead, the agency itself must undertake the study, and some performance standard must be included to assess whether additional mitigation is needed at the time site-specific projects are considered.

In addition, an agency should not adopt a rationale different from that included in the EIR for rejecting project alternatives unless the agency’s finding is supported by substantial evidence elsewhere in the record.

Lastly, even in a programmatic EIR, this court found that CEQA’s requirement for consideration of energy impacts requires a comprehensive analysis that addresses all aspects of a project’s potential energy usage and whether renewable energy technologies can play a role in mitigating impacts.

COURT FINDS PROGRAMMATIC EIR FOR RETAIL DEVELOPMENT INCLUDED INADQUATE ANALYSIS OF URBAN DECAY AND ENERGY IMPACTS

Thursday, March 20th, 2014

In an unpublished opinion, California Clean Energy Committee v. City of Woodland, 2014 Cal. App. Unpub. LEXIS 1481, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate to vacate the City of Woodland’s certification of an EIR for a regional shopping center.

In 2007, a developer applied to annex 154 acres of agricultural land to the City and rezone it to general commercial use in order to build a regional commercial center known as “Gateway II.” After preparing an EIR, the city council approved the project, but reduced its size to 61.3 acres. The California Clean Energy Committee, a nonprofit organization, filed a petition for writ of mandate challenging project approval and certification of the EIR.

The Committee first argued that the City’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the City’s General Plan policy of revitalizing its downtown.  According to the Committee, Gateway II had the potential to cause urban decay by attracting retail development to the City’s periphery. The court held the Committee had failed to preserve this argument because its complaint had focused on the CEQA implications of urban decay, and had not apprised the City of an alleged violation of the Planning and Zoning Law.

The court next considered the sufficiency of the City’s mitigation measures for urban decay under CEQA. The court upheld a measure requiring primarily “regional retail” uses at Gateway II, upholding the City’s conclusion that the measures would help lessen, although not avoid completely, the potential urban decay impacts. The court, however, agreed with the Committee that a measure requiring the developer to submit a market study and urban decay analysis for future specific projects within Gateway II improperly delegated to the applicant responsibility for studying impacts in violation of CEQA. Further, the court agreed with the Committee’s contention that the market study measure provided no performance standards for evaluating whether additional mitigation should be required, in violation of CEQA.

Additional measures the court deemed inadequate required the developer to contribute fifty percent toward the cost of a retail strategic plan and an implementation strategy for the City’s Downtown Specific Plan. The court noted that these measures committed the developer to pay fees, but the fees were not tied to any planned action that would obligate the City to undertake actual mitigation of urban decay.

The court then addressed whether the City had given sufficient consideration to a mixed use alternative to the project.  The draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council findings rejected the alternative as environmentally inferior to the project.  The court explained that there was no support for the council’s determination, since the EIR concluded that environmental impacts of the alternative would be similar to the project impacts.

Finally, the court considered the City’s treatment of energy impacts. The court noted that the EIR discussion of energy comprised less than one page; included no assessment of or mitigation for transportation energy impacts; concluded that compliance with the Building Code and CALGreen alone would adequately mitigate construction and operational energy impacts; failed to address the energy impacts of the non-retail uses proposed for the site (including office and hotel); and gave no consideration to renewable energy options. Based on these facts, the court concluded that the analysis was deficient.

KEY POINTS:

Under the court’s ruling, mitigation requiring a developer to undertake future studies of urban decay is inadequate mitigation. Instead, the agency itself must undertake the study, and some performance standard must be included to assess whether additional mitigation is needed at the time site-specific projects are considered.

In addition, an agency should not adopt a rationale different from that included in the EIR for rejecting project alternatives unless the agency’s finding is supported by substantial evidence elsewhere in the record.

Lastly, even in a programmatic EIR, this court found that CEQA’s requirement for consideration of energy impacts requires a comprehensive analysis that addresses all aspects of a project’s potential energy usage and whether renewable energy technologies can play a role in mitigating impacts.

Glendora Wal-Mart Expansion is a Go—Court Finds the EIR Not in Violation of CEQA

Wednesday, March 6th, 2013

In Creed 21 v. City of Glendora (Feb. 19, 2013) 2013 Cal.App.Unpub.LEXIS 1193, the Second District Court of Appeal upheld the trial court’s denial of Creed-21’s (Creed) petition for a writ of mandate against the City of Glendora.  Creed contended the Environmental Impact Report (EIR) for the approval of an expansion of an existing Wal-Mart store violated the California Environmental Quality Act (CEQA).  The court rejected each of Creed’s arguments.

First, Creed claimed the EIR failed to consider mitigation measures promoting the use of alternative modes of transportation to reduce the project’s traffic impacts.  The court disagreed, explaining the only additional mitigation measures necessary in this case were those related to the one significant impact identified that could not be mitigated to less than significant, which was an increase in trip rates at one specific intersection.  The court explained the mitigation measure proposed by Creed was aimed at a general reduction of greenhouse gases and vehicle miles traveled, and was not likely to result in a reduction in the trip rates at the impacted intersection.  Additionally, the court upheld the city’s reliance on traffic impact analysis guidelines issued by the Los Angeles County Department of Public Works, which explicitly stated that use of anticipated reductions from measures promoting alternative modes of transportation was not appropriate when determining whether the impacts would be reduced to a less than significant level.

Second, Creed claimed the EIR failed to adequately analyze the project’s potential urban decay impacts because the methodology used in the city’s study was improper.  The court rejected the argument, finding Creed did not meet the burden to show that the urban decay study relied upon by the city was clearly inadequate or unsupported.  The court concluded the city’s finding that there would be no significant urban decay impact was supported by substantial evidence.

Finally, Creed claimed the city improperly rejected an environmentally superior alternative to the project by rejecting a reduced intensity alternative without making an infeasibility finding.  The court disagreed, explaining Creed improperly interpreted a statement by the city that the reduced intensity alternative would, to some degree, meet project objectives to mean that the city did not find the alternative infeasible.  The court pointed to a more detailed explanation within the findings that clearly revealed the city determined the alternative would not meet many of the project’s objectives, and was therefore infeasible.  Creed also argued that, to the extent the city had found the alternative infeasible, its finding was not supported by substantial evidence.  The court rejected this argument, explaining the city’s findings that the reduced intensity alternative would not meet several of the project’s objectives constituted sufficient evidence.

Written By: Tina Thomas, Amy Higuera and Andrea Lutge (law clerk)
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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.

Happy Holidays for Wal-Mart Shoppers in Merced and Antioch

Wednesday, December 5th, 2012

Merced Alliance v. City of Merced, 2012 Cal.Unpub. LEXIS 8739

After years battling it out in public hearings and in court, the City of Merced claimed victory in its attempt to bring a 1 million square foot regional Wal-Mart distribution center to a 230-acre industrial site in the southeast section of the City. In an unpublished decision, the Fifth District Court of Appeal affirmed the lower court’s decision to deny the petition for writ of mandate filed by petitioners Merced Alliance for Responsible Growth. Petitioners had alleged numerous claims under CEQA, including that the EIR was inadequate for failure to consider a no-project alternative and failure to adequately assess the project’s impact on air quality, hydrology and water quality, traffic, urban decay, visual impacts and greenhouse gases and global climate change. In addition, Petitioners argued the EIR should have been recirculated because the City added significant new information to the final EIR and added new information to the administrative record after the release of the final EIR. The court rejected all claims.

Of note, the court found that the no-project alternative, which assumed a similar 1 million square foot development would be built if the Wal-Mart project did not proceed, was adequate because the EIR also included a discussion of the existing conditions, the general environmental setting, and the impacts of the project compared with the existing conditions. In addition, substantial evidence supported the determination that, if the Wal-Mart proposal did not go forward, the project site would likely be developed for another industrial or warehouse use. Thus, the court concluded that the EIR sufficiently discussed the impacts of the project compared with existing physical conditions as required by CEQA Guidelines 15126.6, subdivision (e2).

The court also upheld the city’s determination that the project would not create urban decay because it is not a retail facility; rather, it is a regional warehouse that would supply retail facilities within a large radius of the project site. According to the court, any discussion of urban decay effects that may be caused by future Wal-Mart stores that could be built and that would possibly foster urban decay would be too speculative and not reasonably foreseeable.

California Health Communities Network v. City of Antioch, 2012 Cal.App.Unpub. LEXIS 8571

The City of Antioch approved a proposed expansion of a Wal-Mart Store in the City’s Williamson Ranch shopping center without first requiring supplemental environmental review under CEQA. The City argued the expansion was consistent with a development plan that had already been reviewed under CEQA and thus only design review was required. The development plan for the Williamson Ranch shopping center was approved in 1998 and the environmental impacts were analyzed in a mitigated negative declaration. The plan established the allowable square footage for the shopping center and contemplated a grocery store as one of the permissible uses. The City determined that Wal-Mart’s proposed expansion, which fell within the allowable square footage and called for the addition of grocery sales, was consistent with the plan. Because the environmental impacts of the plan had been previously analyzed, the City found the only discretionary action required for the project was design review.

Petitioners filed a petition for writ of mandate alleging that CEQA review was required and the superior court granted the petition and issued the writ, holding the City’s municipal code granted the City the power to address environmental issues as part of its design review process. In an unpublished decision, the First District Court of Appeal reversed the lower court, allowing the expansion to proceed without additional CEQA review.

The question before the court was whether the City’s Design Review Board had the authority to address environmental concerns that might be raised in a supplemental EIR. If so, supplemental analysis was required as part of the design review process due to the changes in the area surrounding the project; if not, the City properly concluded no additional review was required. The court held that the City’s municipal code was not sufficiently precise to give the Design Review Board the power to broadly condition a design approval on off-site environmental issues such as traffic and urban decay. Thus, the City properly determined that design review was limited to design and aesthetic issues. No supplemental EIR was required.

Written By: Tina Thomas and Ashle Crocker
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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.

Third Appellate District Grants Partial Publication of CEQA Decision Relating to Agricultural Mitigation, Urban Decay, Res Judicata, and the Deliberative Process Privilege

Wednesday, April 25th, 2012

In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit for a proposed shopping center to be anchored by a Wal-Mart Supercenter (Project) after the original EIR for the Project was revised and recertified. The trial court denied Petitioners’ writ and the Third Appellate District affirmed.

The appellate court found the trial court abused its discretion in permitting the City of Lodi to withhold various emails pursuant to the deliberative process privilege because the City did not meet its burden of proof that the doctrine was applicable. However, the Court concluded that Petitioners failed to meet their burden to show that the City’s improper exclusion of the emails from the administrative record constituted prejudicial error. The Court explained that to show prejudice Petitioners should have sought writ review of the trial court’s decision to exclude the emails. Because it failed to do so, Petitioners were not entitled to reversal on appeal for this error.

In an unpublished portion of the decision, Petitioners argued that other documents withheld as attorney-client privilege lost such privileged status after the City shared the documents with the Real Parties. The Court disagreed. The Court explained that it did not matter whether the documents were shared with the Real Parties’ attorneys or the Real Parties directly: “It was still communication between parties on the same side of the litigation aimed at sharing information with one another to produce an EIR that would withstand a legal challenge for noncompliance with CEQA.”

Turning to the substantive adequacy of the revised EIR, Petitioners alleged that the EIR failed to adequately address urban decay, agricultural, climate change, and water supply impacts, and that the EIR failed to include a reasonable range of alternatives. The Court did not publish the portions of its decision addressing the substantive merits of Petitioners climate change and water supply claims. The Court did, however, publish the portion of its decision addressing the relationship of the Doctrine of Res Judicata to Petitioner Lodi First’s challenge to the water supply analysis. Each of the published portions of the decision is addressed below.

The Court held that the record contained sufficient evidence to support the conclusion that the revised EIR included a reasonable range of alternative. Based on the rule of reason and an understanding that CEQA provides no ironclad rule governing the nature or scope of alternatives, the Court concluded the City’s failure to identify a feasible alternative that could achieve most of the project objectives and avoid or significantly reduce the Project’s significant and unavoidable impacts was not error. The EIR considered five alternatives (no project, alternative land use, reduced density, reduced size, and alternative location). Reduced density and alternative land use alternatives were rejected from detailed consideration in the revised EIR. The Court upheld the City’s decision to reject these alternatives from detailed consideration. The Court explained, based on the facts in this case, that the City was not required to analyze an alternative that was inconsistent with the zoning for a project site and that substantial evidence supported the conclusion that the reduced density alternative was not economically feasible. The Court also held that the three alternatives that were analyzed in detail within the EIR (no project, reduced size, and alternative location) constituted a reasonable range of alternatives. Lastly, the court determined that substantial evidence supported the City’s rejection of the environmentally superior alternatives (no project and reduced size) because the record demonstrated that neither alternative would entirely fulfill the applicant’s or City’s objectives.

In the published portion of the opinion addressing urban decay, the Court held that the revised EIR did not need to address urban “blight” conditions. The Court concluded that the record demonstrated that urban decay and urban blight are two separate phenomena. The record demonstrated that deteriorated homes and other existing blighted properties in the Project area have no relationship to the condition of the retail environment, which needed to be evaluated to consider the Project’s potential urban decay impact. Therefore, the Court concluded that the baseline used to analyze potential urban decay impacts of the Project was not required to disclose urban blight within the Project vicinity.

The Court also affirmed the trial court’s ruling that it was proper for the City to rely on the economic baseline from 2006 and 2007 (the baseline at the time the NOP was published) in evaluating urban decay impacts in the revised EIR. The court reviewed the City’s determination not to update the baseline for an abuse of discretion. Based on this standard, the Court concluded the City was not required to update the baseline because evidence in the record demonstrated that updating the baseline was problematic as economic conditions are rapidly changing and these rapidly changing conditions did not affect the urban decay findings. Therefore, the Court held the City did not abuse its discretion in declining to update the economic baseline.

With respect to Petitioners’ challenge to the adequacy of the agricultural mitigation ratio adopted by the City, the Court concluded Petitioners’ argument demonstrated a misunderstanding of CEQA. The City concluded that no feasible mitigation could reduce impacts to agriculture to a less than significant level. Specifically, the EIR explained that because agricultural conservation is not true mitigation no level of conservation can be scientifically justified as correct and the level of mitigation is a matter of local concern. For this reason, the Court explained that the question is not whether substantial evidence supported the determination that a greater mitigation ratio was infeasible. The question is whether substantial evidence supported the conclusion that no feasible mitigation was available. The Court found the record included such evidence.

In rejecting the water supply arguments advanced by one of the Petitioners, the Court held that the claim was barred by the doctrine of res judicata. As explained by the Court, res judicata applies and bars a petitioner from re-litigating issues that were or could have been previously litigated where the prior proceeding is final on the merits and the present proceeding is on the same cause of action as the prior proceeding. Here, there was no dispute that the prior proceeding was final on the merits and the conditions and facts upon which the new proceeding was based were not materially different from the original proceeding. Therefore, because Petitioner could have raised its water supply claims in the prior proceeding, res judicata barred the claim in this proceeding.

Lastly, in the unpublished portion of the opinion addressing climate change, the Court found that the revised EIR failed to properly analyze potential climate change impacts. The Court stated that an EIR cannot refuse to analyze an impact based on the conclusion that it would be speculative. Rather, an EIR must disclose after thorough analysis of an issue the reasons further analysis is considered too speculative for evaluation. However, the Court found that the City prepared the required climate change analysis after the FEIR was released to the public. While this approach violated CEQA, a CEQA violation only invalidates an EIR if it is prejudicial. The Court concluded that CEQA Guidelines section 15088.5, subdivision (a)(4), only requires recirculation when an EIR is fundamentally and basically inadequate and conclusory. Here, only a portion of the EIR was fundamentally and basically inadequate. The Court concluded this flawed portion was not significant because the climate change analysis prepared after the FEIR was released demonstrated that the Project would not have a significant impact on climate change. The record included no evidence submitted before or after the study was produced to support the conclusion that climate change impacts were significant. Therefore, the City’s failure to analyze climate change impacts in the EIR was not prejudicial.

Key Points:

Where no level of mitigation will reduce an impact to less than significant, the mitigation measure(s) adopted by the lead agency to reduce the impact to the extent possible constitutes a policy determination that will be upheld if supported by substantial evidence.

To utilize the deliberative process doctrine to withhold documents from inclusion in the administrative record, the lead agency must ensure that the record supports the conclusion that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Lastly, in CEQA litigation in which a petitioner challenges both an original EIR and revised EIR, res judicata bars the litigation not only of issues that were actually litigated in the original lawsuit but also issues that could have been litigated.

Written By: Tina Thomas and Chris Butcher
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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.