In Unpublished Opinion, Court Finds Los Angeles Development Project Description Accurate and Stable Despite a New Alternative Being Added to the FEIR and Approval of a Variation of that New Alternative

March 16th, 2022

By: Dustin Peterson



In the unpublished opinion, Southwest Reg’l Council of Carpenters v. City of L.A. (Mar. 7, 2022, B301374) [nonpub. opn.], the Second District Court of Appeal agreed with the City of Los Angeles (City), represented by Thomas Law Group, that an EIR for a mixed-use commercial and residential development (Project) contained an adequate project description and adequately addressed a comment about sewer capacity, overturning trial court rulings on both issues.

In 2017, the City released for public comment the draft EIR (DEIR), which contained the project location, description of the Project including 422 residential units and 200,000 square feet of commercial development, project objectives, and a general discussion of the project’s technical, economic and environmental considerations as required by CEQA Guidelines section 15124. The DEIR evaluated four smaller alternatives to the Project. Public comments, including those from the Southwest Regional Council of Carpenters and Laborers’ International Union of North America, Local 300 (collectively, Unions), raised issues regarding the Project’s potential for traffic and air quality impacts. The Los Angeles Sanitation Department (LASAN) also commented that the wastewater plant had adequate capacity to serve the project but that detailed gauging may be required to evaluate conveyance lines prior to construction, and expansion of the lines might be required. The City recirculated the DEIR, with revisions primarily to the analysis of traffic impacts. In 2018, the City issued the final EIR (FEIR), which contained a new alternative (Alternative 5), to address public comments concerning the Project’s significant traffic and air quality impacts as well as regional housing shortages. Under Alternative 5, the Project proposed 253 additional residential units and a 140,000 square foot reduction in commercial uses. Alternative 5 resulted in less traffic and air quality impacts than the Project. City staff subsequently recommended that the City approve a smaller version of Alternative 5 (Revised Project), which, as compared to the Project as defined in the DEIR, proposed an increase of 201 residential units and a 140,000 square foot reduction in commercial uses. However, overall, the Revised Project resulted in a slight reduction in total project square footage, as compared to the Project as defined in the DEIR, and further reduced the Project’s significant air quality and traffic impacts.

The Unions filed a verified petition alleging, among other things, that the EIR’s project description was inadequate because the public never had the opportunity to comment on the version of the project ultimately approved by the City Council (Council). The trial court agreed that the Project description was impermissibly unstable because the DEIR described a “materially different” development from that described in the FEIR and approved by the Council. The trial court also held that the City did not adequately respond to LASAN’s comment. The City appealed.

On appeal, the City, supported by four amicus briefs, argued that the trial court erred in applying a “materially different” test not found in CEQA instead of the applicable “significant new information” test for recirculation under CEQA Guidelines section 15088.5. The City also argued that the Unions had waived any argument regarding the applicable recirculation test, that the project description was accurate and stable, and that the City adequately responded to LASAN’s comment. The Unions, supported by an amicus filed by the California Attorney General’s Office, urged the Court to uphold the trial court decision.

The Court addressed stable project description case law, and distinguished a number of these cases in reaching its holding. In contrast to County of Inyo v. City of Los Angeles (1977) Cal.App.3d 185 and Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the Court found the Revised Project here to have the same scale and scope as the project and alternatives evaluated in the DEIR and FEIR. Further, unlike the EIR in STOPTHEMILLENIUM.COM v. City of Los Angeles (2019) 39 Cal.App.5th 1, which contained no meaningful project description, the Court here found the descriptions of the initial project, alternatives, and the Revised Project to be sufficiently detailed. Rather, the Court found the situation here to be analogous to that in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, in which an EIR evaluating two different alternatives that were fully vetted was found not to be misleading or inconsistent. Similarly, the Court here found that the Revised Project was not so significantly different from the project alternatives in the DEIR and FEIR to conclude that the project definition was unstable.

As such, the Court found that project description was sufficiently accurate and stable, noting that the alternatives analysis evaluated various permutations of the residential/commercial ratio. Even though the approved Project had a different mix, and the residential component exceeded that of the alternatives presented in the DEIR, the total square footage was less than the Project as described in the DEIR.  While the Court acknowledged that the public lacked opportunity to comment on Alternative 5, it found that nothing in CEQA requires the public be afforded an opportunity to comment on the final approved project by including it as an alternative in the DEIR or recirculating the EIR with a description of it. The Court declined “to engraft” such a requirement into CEQA, particularly given the state’s housing crisis. As such, the Court found that the City fully complied with CEQA’s informational requirements. It also noted that the Unions, who participated at each City hearing, could show no prejudice from the inclusion of Alternative 5 in the FEIR and approval of the Revised Project, as there had been extensive public commentary and public hearings.

As the Unions maintained that the recirculation test was inapplicable, the Court acknowledged that they had waived any argument that recirculation was required. However, the Court nevertheless considered how CEQA Guidelines section 15088.5’s “significant new information” test applied to this case. The Court first concluded that recirculation was not a per se requirement for project revisions not included in the FEIR. Next, the Court held that recirculation had been unnecessary because the Revised Project was not considerably different from the alternatives analyzed in the DEIR, in that the site footprint and uses remained constant.  Even if the approved project were considered to be considerably “different”, the impacts of the new project were less than those of the projects analyzed in the DEIR and the applicant had agreed to adopt the alternative.  The Court also concluded that it would be inappropriate to “strain to require recirculation under the guise of an unstable project definition or by relying on a ‘materially different’ standard not present in CEQA.”\ 

Finally, the Court found that the City adequately addressed a comment regarding sewage issues because the City’s response verified that there was sufficient wastewater treatment plant capacity for the Project and that the response was clear that any issues regarding the capacity of sewer line from the Project to the mains would be addressed at the time of the building permit, if necessary.  As such, the Court found that no additional environmental review of the Project was required, and the City prevailed on all issues, reversing the trial court’s judgment.