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NEW GUIDANCE ON BASELINES WHEN PROJECT IS REUSING OR REPLACING AN EXISTING BUILDING


On October 9, 2015, the Court of Appeal partially published the Fourth Appellate District’s opinion in North County Advocates v. City of Carlsbad (2015) 2015 Cal.App.LEXIS 891 (North County).

The published portion of the opinion discusses an important exception to the traditional baseline determination under the California Environmental Quality Act (CEQA). Generally, the baseline consists of “the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental review is commenced.”  (CEQA Guidelines, § 1525, subd. (a).)  However, there is an alternative approach in which the lead agency may look back to historic conditions to establish a baseline.  (See Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 327-328; Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 337-338.)

In North County, the City of Carlsbad applied this approach to a commonly occurring situation—renovation or replacement of an existing building that was previously fully occupied and is now vacant or minimally occupied.  The project at issue was the demolition and reconstruction of an existing department store that had been vacated in 2006 and was now only periodically occupied by seasonal retail.  Despite that fact, the City established a traffic baseline using data from when the store was fully occupied.  The Court found this decision was within the City’s discretion and that the selected baseline was supported by substantial evidence.

Because the building had previously been occupied and had generated significant amounts of traffic, the Court distinguished this situation from cases in which the baseline was based on hypothetical conditions that were permissible pursuant to an existing plan or regulation but had not actually occurred “on the ground.” The Court held that due to the fluctuating occupancy of the building, the City had discretion “to consider conditions over a range of time periods” to account for a “temporary lull or spike in operations.”

Key Point:

A lead agency has the discretion to consider conditions over a range of time periods when determining baseline conditions for an existing facility with variable levels of historic operations. The lead agency’s determination should be upheld if supported by substantial evidence.



dateOctober 28th, 2015byby


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