GHG Mitigation Once More Found Lacking in San Diego County EIR; Fourth District Also Identifies General Plan Inconsistency but Upholds Wildfire and Air Quality Analyses in Unpublished Opinion

December 3rd, 2021

By: Dustin Peterson



In the unpublished Elfin Forest Harmony Grove Town Council v. County of San Diego (Oct. 14, 2021, Nos. D077611, D078101) [2021 Cal. App. Unpub. LEXIS 6474], the Fourth District Court of Appeal found that the County of San Diego’s (County) approval of the Harmony Grove Village project’s (Project) environmental impact report (EIR) did not employ adequate greenhouse gas (GHG) mitigation measures and was inconsistent with the affordable housing component of the General Plan. However, the Court upheld the EIR’s wildfire and air quality analyses, as well as the County’s determination that the Project was consistent with a Community Plan’s sewage treatment requirement.

The Project involved development of 453 residences on 111 acres of undeveloped, rural land next to the existing Harmony Grove Village and within the Elfin Forest and Harmony Grove Planning Area of the San Dieguito Community Planning Area. Following EIR certification and Project approval, Elfin Forest Harmony Grove Town Council and environmental groups (collectively, Petitioners) filed suit, arguing that the approval violated state and local laws. The trial court found that the EIR relied on unsupported carbon-offset GHG mitigation measures, failed to address fire safety issues, and failed to include adequate analyses regarding air quality impacts related to consistency with air quality standards and the regional plan Sustainable Communities Strategy (SCS). The trial court also found the Project to be inconsistent with the affordable housing requirement of the County’s General Plan, and with a Community Plan’s septic system policy.  Project proponent and real party in interest, RCS-Harmony Partners, LLC (RCS-Harmony), appealed. After the trial court ruled in the present case, the Fourth District published its opinion in Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467 (Golden Door). In Golden Door, the Court of Appeal upheld a trial court ruling invalidating carbon-offset GHG mitigation measures that the appellant county had adopted under their Climate Action Plan EIR (see TLG’s case summary here).

GHG Mitigation

On appeal, RCS-Harmony argued the Project’s carbon-offset GHG mitigation measures complied with the requirements set forth in Golden Door. Golden Door observed that the value of any offset depends on whether emission reduction had actually occurred – a critical concern because GHG offsets are invisible and predicated on GHGs not being released. Further, Golden Door held that CEQA requires GHG mitigation through offsets to have formalized procedures in place that ensure that credits represent real emission reductions. This can be achieved through the adoption of standards established under state law and by the California Air Resources Board (CARB) for the use of reduction credits in California’s Cap-and-Trade program. However, in Golden Door, the mitigation measures had failed to adequately satisfy those standards.

Here, the Court found that the mitigation measures suffered from many of the same deficiencies as those at issue in Golden Door. They both relied on CARB-approved registries that failed to ensure there were offset protocols in place to guarantee real emission reductions would occur.  Further, the EIR gave the Planning and Development Services Director (Director) discretion to approve the purchase of offsets from non-CARB-approved registries so long as they determined the sources to be “reputable” with no objective standards established to evaluate a registry’s reputation – leaving the determination entirely to the Director’s subjective discretion. Finally, the measures had no restrictions on the Director’s ability to approve of offsets originating in foreign countries, which Golden Door found presented additional concerns due to the need for reliance on host country or third-party validation of the GHG reductions.

RCS-Harmony argued that their mitigation measures were materially different from those in Golden Door because they did not tier from the County’s climate action plan and because they contained objective performance standards lacking in those at issue in the prior case. However, the Court disagreed, and found them to provide no reasonable assurance that claimed GHG reductions would actually occur.

Wildfire

The Project was in an area designated as a very high fire hazard zone. Relying on their expert’s statements, Petitioners argued that the Project failed to account for the increased risk of wildfire ignition that population increase would bring, and that the analysis of evacuation issues was insufficient. While the Court accepted that increases in wildfire ignition risks were potential impacts under CEQA, it was not persuaded by Petitioners’ arguments. It noted the EIR’s extensive public safety mitigation measures, including a 100-page fire protection and evacuation plan that was accepted by the San Diego Fire Authority (SDFA) and the Rancho Santa Fe Fire Protection District (RSFFPD). The Court concluded that disagreement between the Petitioners’ expert and those from SDFA and RSFFPD was not a sufficient basis to conclude that the EIR was inadequate. Further, even though the Project had only one code-conforming evacuation route, the analyses identified a second road accessible to passenger vehicles, and also found shelter-in-place to be a viable last resort option. The Court found that the SDFA and RSFFPD expert studies supplied substantial evidence supporting the conclusion that fire hazards had been reduced to insignificant levels.

Air Quality

The EIR acknowledged that the Project’s increase in dwelling units would be inconsistent with the County’s Regional Air Quality Standards (RAQS), which included land use projections based on the County’s General Plan.  Although the EIR concluded this inconsistency would be a significant cumulative impact, Petitioners argued that the EIR failed to inform the public about the severity of the Project’s air quality impacts because it did not describe the increase in air pollutant emissions that would result from the Project’s unplanned growth.  Further, Petitioners argued that the EIR failed to provide information about the nature and scope of the inconsistency beyond simple generic statements, and that this inconsistency with the RAQS required more in-depth discussion in the EIR. 

The Court disagreed, relying on San Diego Navy Broadway Complex Coalition v. California Coastal Com. (2019) 40 Cal.App.5th 563, which found that a subsequent update to the RAQS adequately mitigated a similar inconsistency in that case. Here too, the Court found that the subsequent update to growth projections resolved the inconsistency. The Court also noted that CEQA does not require an agency to make particular findings regarding consistency or inconsistency, but simply requires a good faith effort at disclosure. With respect to actual air quality impacts caused by the inconsistency, the Court found that the EIR evaluated construction, operation, and cumulative impacts of the Project, all of which were found to be less than significant, and the Court noted that Petitioners did not challenge these findings.

The EIR also discussed the Project’s consistency with San Diego Forward, the region’s SCS. The SCS contains maps forecasting the location of future development, but the Project site was not identified in the growth area. Nonetheless, the EIR concluded that the Project was consistent with the SCS due to its alignment with the SCS’s goals to cluster development, thereby reducing vehicle mileage and GHGs. The Court agreed, noting the Project’s alignment with the goals of the SCS, and observing that an SCS is not a land use plan, nor does it supersede land use authority. The Court also emphasized the presumption that an EIR’s findings are correct, and that burden is on the Petitioners to show that the County unreasonably determined the Project was consistent with the Plan. Citing Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 544 (see TLG’s case summary here), the Court found that the County was owed great deference in its consistency finding, and held that Petitioners did not meet their burden to overcome this.

General Plan Consistency

The County’s General Plan requires developers to provide an affordable housing component when requesting a General Plan amendment. Though the Project requested a General Plan amendment, it proposed no affordable housing. County staff found the Project to be consistent nonetheless because the County lacked an inclusionary ordinance it could use to require affordable units. Appellant argued that their consistency determination was subject to deference, and, because the policy is not fundamental, mandatory, or clear, it should be subject to a balancing of the interests. While the Court acknowledged that they give “great deference” to findings of consistency, it held that no reasonable person could find the Project’s complete lack of affordable housing consistent with and conforming to the General Plan policy, as the County had not established an inability to impose such a requirement absent an inclusionary ordinance – a position contrary to established case law.

Community Plan Consistency

The Court rejected Petitioners’ final argument, that the Project was in conflict with Elfin Village’s Community Plan septic system requirement. It found that the Project’s boundaries were entirely within the Harmony Grove community – not the Elfin Forest community approximately 4 miles to the west. Accordingly, Petitioners failed to present substantial evidence supporting an argument that the Project conflicted with this requirement.




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