In Separate Opinions, Third District Court of Appeal Reverses Trial Court’s Holding, Rejects Olympic Valley Development Project EIR Based on Insufficient Baseline, Traffic, and Noise Impact Analyses; Finds that After-Hours Dispersal of Updated Project Materials Violated the Brown Act

October 11th, 2021

By: Johannah Kramer



In Sierra Watch v. Placer County (2021) ____ Cal.App. _____, and Sierra Watch v. Placer County (2021) ____ Cal.App. _____, the Third District Court of Appeal considered two appeals from separate trial court decisions concerning a resort project in Olympic Valley near Lake Tahoe. One case challenged certification of the project EIR under CEQA, while the other challenged the agency’s approval of the project’s development agreement under the Brown Act. The Third District reversed the holdings of the trial court in part in both cases. In the CEQA case, the Court found that the County failed to adequately discuss the project’s baseline, traffic impacts, and noise mitigation. In the Brown Act case, the Court found that the after-hours dissemination of updated project materials to the County’s Board of Supervisors impermissibly withheld those documents from the public under a plain reading of the Government Code.

CEQA Case

In 2012, Placer County began environmental review for a proposed resort in Olympic Valley, northwest of Lake Tahoe in the Sierra Nevada. The proposal included two components that would be built over 25 years: an 85 acre “Village” including up to 850 lodging units, almost 300,000 square feet of commercial space, and over 3,000 parking spaces; and an 8.8-acre “East Parcel” providing housing for up to 300 project employees (Project).

Sierra Watch submitted comments on the Project FEIR and alleged that the environmental impact analyses were inadequate for several reasons. Sierra Watch argued that the DEIR failed to sufficiently consider Lake Tahoe in its discussion of the environmental setting for the Project and failed to adequately discuss and mitigate the Project’s impacts on fire evacuation plans for the region, noise levels, climate change, and traffic levels. In 2016, the County issued the FEIR for the Project. Several months later, after receiving additional comments on the FEIR, the County provided additional post-EIR responses. Six days later, the County held a public hearing, certified the EIR, and approved the Project.

Sierra Watch filed suit. The trial court rejected the petition on all grounds, and this appeal followed. In the published portion of the Opinion, the Court considered the EIR’s discussion of the environmental setting, impacts on traffic and air quality, and noise mitigation. In the unpublished portion of the Opinion, the Court considered the Project’s wildfire impacts, climate change impacts, and traffic impacts.

Baseline

Sierra Watch argued that the EIR failed to meaningfully address the Project’s existing environmental setting near Lake Tahoe (Lake) and the Lake Tahoe Basin (Basin), as described in the chapters discussing water quality and air quality setting. The Court agreed. Based on the undisputed characterization of the Lake and Basin as unique and significant environmental resources which would be affected by the Project, the Court held that the EIR should have placed special emphasis on the Lake in its discussion of the environmental setting under CEQA Guidelines section 15125, subdivision (c). Instead, it only made passing reference to the Lake in the hydrology and water quality chapter.

In response to public comment that asserted the Project did not adequately consider the Lake and Basin, the FEIR responded by directing the reader to a master response regarding Tahoe Regional Planning Agency (TRPA) thresholds. The master response contained vehicle miles traveled (VMT) information in the Basin and established a cumulative VMT threshold for the Basin. The FEIR stated that, although the Basin was nearing its 2,067,600 VMT cumulative threshold, the Project’s anticipated 23,842 VMT contribution would not cause an exceedance of the cumulative threshold. The Court noted that while the FEIR offered figures about current and anticipated VMT around the Lake, it never clearly explained how those figures would relate to or impact the Lake. Instead, six days before certifying the Project, the County acknowledged that VMT and its related effects (including increased tailpipe emissions and crushed abrasives) would have an impact on the Lake’s clarity. The Court concluded that this approach impermissibly left the public with “little if any ability to evaluate the relevance of that change” to the Lake prior to Project approval.

The Court also considered the air quality chapter’s discussion of the environmental setting in the Basin, and found that Sierra Watch’s objections were fully resolved in the County’s responses to comment. The FEIR properly discussed TRPA’s environmental carrying capacity for vehicle traffic and noted current daily VMT in the Basin, as well as the anticipated daily cumulative VMT associated with the Project.

Traffic Impacts

Sierra Watch argued that the EIR failed to meaningfully assess the Project’s traffic impacts on the Lake and the Basin’s air quality.

The Court found that the EIR provided “mixed messages” on the potential impacts to the Lake and Basin from increased traffic. While the Project would not result in an exceedance of TRPA’s cumulative VMT threshold, it would likely exceed the project-level threshold that TRPA established for the Basin. Rather than follow one of TRPA’s approaches, however, the EIR simply declared that TRPA’s thresholds were inapplicable because the Project would not be located in the Basin. The Court found this approach inappropriate, and held that, in addition to failing to establish the applicable standard, the County failed to provide meaningful information to evaluate the significance of a daily addition of 23,842 VMT on the Lake’s water quality and the Basin’s air quality. “The EIR needed to determine whether the project’s impacts on Lake Tahoe and the basin were potentially significant — not simply summarize, and then declare inapplicable, another agency’s framework for evaluating these types of issues.”  

Additionally, the Court found that the EIR improperly underestimated the expected cumulative VMT in the Basin by ignoring the expected addition of VMT from other anticipated projects. While the County eventually recognized this deficiency (and the lacking connection between VMT and the Lake), its discussion of these impacts was released several months after the FEIR was prepared. The Court found that this ran afoul of the principle that an agency may not make up for an EIR’s deficiencies through post-hoc analyses. While the County argued that the post-EIR responses “elaborated on and confirmed” information in the EIR, in the Court’s view, these responses supplied critical analysis and conclusions entirely (and improperly) absent from the EIR itself.

Noise

Sierra Watch alleged that the EIR failed to properly disclose or estimate the duration of construction noise associated with the Project’s 85-acre Village buildout, given that the EIR estimated the construction noise that would result from buildout of the 8.8-acre East Parcel. The Court rejected this argument, reasoning that the Village portion of the EIR was a programmatic document considering a flexible, market-dependent development that would be constructed over the course of many years. While the EIR considered the smaller, more predictable East Parcel buildout at the project-level in its noise analysis, consideration of a specific buildout scenario for the Village portion of the EIR would be speculative and was not required.

However, the Court found that the EIR failed to analyze the full geographic range of construction noise impacts. The EIR only considered sensitive receptors within a 50-foot radius of anticipated construction activities and concluded that there was a potentially significant impact on those receptors. The failure to consider uses over 50 feet away – and the lack of any explanation as to why other surrounding uses were absent from the analysis – was an act of “arbitrary line drawing” ignoring the full scope of the Project’s potential impacts on the surrounding region. The Court rejected the agency’s argument that this was a methodological issue to which they were afforded deference. While an agency “may” be entitled to deference in its decision as to which methodology to employ, it cannot employ an approach that entirely forecloses consideration of evidence showing impacts to the surrounding area.

Sierra Watch then argued that the EIR’s noise impact mitigation violated CEQA.

First, Sierra Watch argued that the County did not effectively mitigate noise impacts because the EIR failed to adequately analyze construction noise impacts, as discussed above. The Court rejected this argument. While the EIR improperly ignored noise-related impacts beyond a certain radius, it would be premature to conclude whether the unconsidered impacts were sufficiently mitigated by existing measures.

Next, Sierra Watch alleged the EIR arbitrarily applied mitigation measures to benefit specific sensitive receptors while ignoring others. The Court found this disparity acceptable. The County noted it would be “infeasible” to provide similar protections for all affected receptors, and explained that it provided additional mitigation measures to protect the particular primary functions of a nearby school. Sierra Watch contended that this approach failed to protect the primary functions of other equally sensitive receptors nearby. But, given the absence of any information about the other sensitive receptors in Sierra Watch’s briefing, the Court concluded that the County did not act improperly by including additional protections for receptors identified as particularly sensitive to daytime noise.

Lastly, Sierra Watch argued the EIR lacked performance standards for most of its mitigation measures, resulting in a lack of assurances that the measures would actually avoid noise impacts. To illustrate its point, Sierra Watch alleged that two mitigation approaches were particularly vague: one that required construction equipment to be properly maintained and equipped with noise-reduction equipment in accordance with manufacturers’ recommendations, and another that required techniques to be replaced with quieter ones (e.g., using welding instead of riveting, mixing concrete off-site instead of on-site) where feasible. The Court rejected Sierra Watch’s challenge to the first measure, reasoning that it established the concrete requirements of maintaining equipment in accordance with the manufacturer’s recommendations, and fitting the equipment with specified noise-reducing technologies. The Court, however, upheld Sierra Watch’s challenge to the second measure. While the measure was specific in terms of its examples, the Court found that the language “where feasible” was impermissibly vague. The Court held that the measure was insufficient as a mitigation measure because it deferred the determination of which construction procedures can feasibly be changed and how the procedures could be modified to be quieter, with no instruction on how either of these determinations were to be made.

In light of these insufficiencies, the Court reversed the judgement of the trial court in part, and instructed the lower court to enter a new judgement granting the petition for writ of mandate in part.

Brown Act Case

During the Project-approval process, the Project developer’s counsel and the state Attorney General entered into an agreement to amend the Project development agreement. Under the amended agreement, developers would pay a TRPA fee in exchange for an assurance that the Attorney General’s office would not file a petition challenging Project approval. The night before the Board meeting on the development agreement (after the County Clerk’s office had closed), County counsel updated the Project development agreement to include the updated developer agreement and TRPA fee change, sent the updated development agreement and a memorandum explaining the change to the County Clerk’s office, and delivered the updated materials to the Board for their review. The next day, the Board made the updated Project documents available at a public table before the meeting, held its meeting, discussed the updated development agreement, and voted to approve the development agreement.

Sierra Watch filed suit against the County under the Brown Act on two grounds. First, Sierra Watch argued that the County violated Government Code section 54954.2 by failing to announce that the Board planned to consider a substantive amendment to the agenda posted 72 hours before the meeting. Second, Sierra Watch argued that the County violated Government Code section 54957.5 by delivering the updated materials to the Board before the public could access those documents. Following a bench trial, the superior court rejected Sierra Watch’s claims, and this appeal followed.

The Third District reversed the holding of the trial court on both claims (note that the published portion of the appellate opinion does not include the section 54954.2 discussion).

The Court considered whether the County violated the public disclosure requirements of section 54957.5. Under section 54957.5, an agency must publicly disclose writings distributed to all or most of the county’s board of supervisors in connection with a matter subject to discussion or consideration at open meeting. When these writings are distributed less than 72 hours before a meeting, they must be simultaneously made available to the public and may be posted online. The County argued that it complied with this requirement because it provided the updated materials to the Clerk’s office after-hours the same evening that it distributed the materials to the Board. Sierra Watch argued that the County failed to meet this requirement because the updated materials were de facto made available for public inspection the next day when the Clerk’s office opened. The Court held in Sierra Watch’s favor. Section 54957.5 is not merely concerned with the time a record is placed in a location allowing for public inspection, rather, it is chiefly concerned with the time a record is actually available for public inspection. The County violated this provision because it only made the updated materials publicly available the morning after distributing them to the Board.

The County argued that this conclusion would cause the absurd result of forcing counties to delay when they distribute materials to their board, to which Sierra Watch responded that counties could alternatively post their materials online to avoid the after-hours posting issue entirely. The Court held that Sierra Watch’s position did not entirely track – the plain language of section 54957.5, which states that agencies “shall” make records available at a physical location and “also may” post the records online. Nevertheless, the Court held that, at times, compliance with the Brown Act requires counties to delay when they distribute materials to their board members. The Court did not find this to be an absurd outcome, given that one of the intents of the section was to ensure that board members and the public have an equal opportunity to review late submissions, even if achieving that requirement could result in less time for board members to review late submissions.

Key Point:

  • Project proponents should proceed with caution when including new or clarifying information impacting the conclusions of an EIR in the days leading up to an agency’s approval vote and cannot shoehorn post-hoc information that supplies critical analysis and conclusions into Project materials to make up for an EIR’s deficiencies at the time of its approval.
  • While agencies are entitled to deference in choosing methodologies tailored to a project’s specific circumstances, chosen methodologies may not foreclose consideration of evidence that the project may have a significant impact.
  • A mitigation measure that only applies ‘where feasible’ without any performance standards impermissibly defers mitigation.
  • To avoid violating the Brown Act, updated project materials circulated 72 hours before an open meeting must be delivered to the majority of an agency’s board at the same time it is made actually available to the public – even if it would result in a shortened period for the board to consider the late materials.