Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Final Environmental Impact Reports Must Include Responses to Public Comments, but Need Not Include Economic Feasibility Analyses


The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (January 4, 2012) 202 Cal. App. 4th 603

A citizens group brought suit against the City of Carmel-by-the-Sea challenging the city’s Final EIR prepared in connection with the sale of an historic property known as the Flanders Mansion.  It its action, The Flanders Foundation claimed that the city did not adequately address the Surplus Lands Act, the city was required to include an economic feasibility analysis in the Final EIR and the city failed to respond adequately to a public comment on the Draft EIR.  The court rejected the trial court’s ruling regarding the Surplus Lands Act and the economic feasibility analysis; however, the court agreed with the trial court that the city failed to adequately respond to a Draft EIR comment.

One of the comments submitted on the Flanders Mansion Draft EIR proposed an alternative to the project and suggested that such alternative would mitigate environmental impacts as compared to the project.  The Final EIR failed to provide any response to this comment.  The court reaffirmed a lead agency’s duty to respond to public comments on an EIR and held that where a public comment raises a “significant environmental issue,” the lead agency must at least provide a detailed response explaining why the comment was not accepted.  The Final EIR was faulty for its failure to do so.

The Flanders Foundation also alleged that the Final EIR was inadequate for neglecting to include economic analyses.  On this claim, the court determined that the city was not required to include the feasibility analysis prepared for the project in the Final EIR because such analysis did not discuss or address any environmental issues.  The feasibility analysis was available for public review and was part of the administrative record.  Thus, the court held that substantial evidence in the record supported the infeasibility findings and the city’s statement of overriding considerations.  The Flanders Foundation conceded that there are several cases with this same holding, however, they felt those decisions were incorrect.  This court disagreed with The Flanders Foundation and reaffirmed those previous holdings.

Finally, The Flanders Foundation argued (and the trial court agreed) that the Final EIR was inadequate for failing to analyze the potential environmental impacts of the possible uses a potential purchaser might make of the Flanders Mansion.  Petitioner’s argument was based on the premise that a future owner would not be required to comply with CEQA-mandated mitigation measures in the city’s MMRP and the conservation easement in the recorded CC&R’s.  This court disagreed with the trial court and held that the Surplus Land Act “contains no provision that explicitly prohibits a discarding agency from selling surplus property that is subject to mitigation conditions and conservation easements.”  Those mitigation conditions and conservation easements were created to comply with CEQA and are not negotiable.  The Surplus Land Act clearly provides that it shall not be applied if its provisions conflict with any other provision of statutory law.  Therefore, the court overturned the trial court’s ruling and held that in a sale of surplus land, there is nothing in the Surplus Lands Act that can be interpreted to exclude CEQA-required mitigation conditions and conservation easements to be included in the sale.

Key Points:

Public agencies must respond to comments that raise “significant environmental issues.”  Because an economic feasibility analysis does not address environmental issues it need not be included in the EIR as long as it is included in the administrative record.

Written By: Tina Thomas and Michele Tong

___________
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.

Tags: , , , , , , , , , , , ,



dateJanuary 22nd, 2012byby


Leave a Reply