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FOURTH APPELLATE DISTRICT REJECTS CHALLENGE TO MITIGATED NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT PROJECT


In an unpublished decision, Save Desert Rose v. City of Encinitas, 2015 Cal. App. Unpub. LEXIS 7685, the Fourth Appellate District reversed the judgment of the trial court and held Save Desert Rose (Petitioner) failed to demonstrate that substantial evidence supported a fair argument that a proposed 16 single-family home subdivision project (Project) may have a significant effect on the environment.  As a result, the Court found the Encinitas City Council’s reliance on a mitigated negative declaration (MND), rather than an environmental impact report (EIR), to approve the Project complied with the California Environmental Quality Act (CEQA).

In reaching this decision, the Court conducted an independent review of the record to determine if substantial evidence supported a fair argument with respect to any of the nine claims raised by Petitioners. In doing so, the court clarified that the fair argument standard is a question of law and therefore did not defer to either the lead agency’s or trail court’s determination on the issue. However, the Court noted that the Petitioner bore the burden of proof in demonstrating that a fair argument of a potentially significant impact could be made from substantial evidence on the record.

In conducting its independent review, the court undertook a comprehensive analysis of Petitioner’s nine challenges including alleged potentially significant impacts to raptors, wetland habitat, aesthetics and views, community character, stormwater management, erosion during construction, traffic, vehicular safety hazards, and parking. With respect to each, the Court concluded no substantial evidence in the administrative record supported a fair argument the Project may have a significant effect on the environment within the meaning of CEQA.

Notably, the court determined that a traffic study cited by the challengers did not support a fair argument because it was found to be flawed by the City’s traffic engineering division and other independent experts in the field. Further, the court found no fair argument that impacts on biological resources (including riparian habitat and the possible existence of raptors) within the proposed development site could not be mitigated below significance, relying in part on statements from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service in support of the proposed mitigation measures.

Additionally, the court found no fair argument in support of impacts to water quality and drainage because additional permits and conditions for approval were required before the applicant could proceed. Specifically, before issuing a grading permit the City requires compliance with stormwater quality regulations as set forth in its Stormwater Manual and Best Management Practices Manual, as well as preparation of a Stormwater Pollution Prevention Plan as required by the State Water Resources Control Board. Therefore, the court held that no fair argument existed even though precise mitigation details would not be available until the applicant applied for a grading permit.



dateNovember 2nd, 2015byby


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