Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act


dateJanuary 5th, 2017 byby

In San Diegans for Open Government v. City of San Diego, 2016 Cal. App. LEXIS 1095, the Fourth Appellate District rejected challenges to the City of San Diego’s approval of modifications to a previously-approved master plan for a high-density, mixed-used business park. Sunroad Enterprises and Sunroad Centrum Partners L.P. (“Sunroad”) proposed the project, located on 242 acres in the Kearny Mesa area of San Diego.

In 1997, the City approved a master plan for the development and certified an EIR. The applicant modified the project in 2000 and 2002, and the City adopted an addendum to the EIR and an MND, respectively. In 2012, Sunroad obtained a permit to begin certain phases of the master plan. In 2013, Sunroad again sought City approval for project modifications through the City process known as substantial conformance review (“SCR”). The modifications included the addition of a podium level pedestrian walkway connecting the deck and pool areas of two residential buildings, the elimination of one level of parking, a reduction in bicycle spaces, and an increase in building height, but did not change the total number of units or stories above ground.

After City staff determined these modifications were consistent with the previously-certified EIR, Addendum, and MND, plaintiffs appealed the staff’s decision to the Planning Commission, and the Planning Commission denied the appeal. Subsequently, plaintiffs attempted to appeal the decision to the City Council, but the City refused to process the appeal. Plaintiffs sued the City, arguing they were entitled to an administrative appeal.

The court rejected plaintiffs’ contention that the SCR decision constituted a determination that the project “is not subject to CEQA,” which may be appealed to the City Council under Public Resources Code section 21151, subdivision (c). The court explained that the SCR decision did nothing to alter the City’s prior determination that the project was subject CEQA. The court also rejected the argument that the project required further environmental review because the SCR decision was discretionary. The court held that the conclusion that an activity is discretionary does not independently require a subsequent EIR, unless other conditions are met. Finally, the court rejected plaintiffs’ argument that staff’s SCR determination was an “environmental determination,” which may be appealed to the City Council under the City’s code.

Key Point:  

When a city staff member makes a determination that modifications to a previously-approved project are consistent with the previously-certified EIR or MND, the lead agency’s elected decisionmaking body is not required to review an appeal of that decision under CEQA.




dateJanuary 5th, 2017 byby

On December 15, 2016, the Supreme Court filed, Orange Citizens for Parks & Recreation v. Superior Court (2016) __ Cal.App.5th __  (2016 Cal. LEXIS 9595), a unanimous opinion finding a 39-unit residential development project proposed on 50 acres of land in the foothills of the Santa Ana Mountains could not be found consistent with the City’s General Plan.  In 1973, the City’s planning commission adopted a resolution recommending the property’s designation be amended from “Open Space” to “Other Open Space and Low Density (1 acre).”  Later in the same year, the City Council adopted the Orange Park Acre Plan, and in 1977, the City Council amended the General Plan to permit low-density residential development in Orange Park Acres, directing that the Orange Park Acre Plan be revised accordingly.  Despite these legislative actions and subsequent amendments to the City’s General Plan in 1989 and 2010, City staff never made changes to the official land use policy map in the General Plan’s land use element, and as a result the property remained designated as “Open Space” in the General Plan.

When the 39-unit residential project was proposed in 2007, the City believed that a General Plan map amendment would be required; however, the City later changed its position based on the Orange Park Acre Plan, as adopted in 1973, which permitted low-density residential uses on the site. Based on this, in June 2011, the City Council certified an EIR for the residential project and amended the General Plan to reflect the original adoption of the Orange Park Acre Plan and to clarify that low-density residential uses were permitted on the project site.

The Supreme Court held that the project was inconsistent with the City’s General Plan because none of the planning commission resolutions authorizing residential development became integrated into the Orange Park Acre Plan or the General Plan, rejecting the lower court’s finding that the General Plan included “contradictions and ambiguities” requiring deference to the City’s consistency finding. The Court seemed hesitant to give deference to the City partly because it found that no reasonable person could conclude that the property could be developed without a general plan amendment, given that the General Plan required the Orange Park Acre Plan be consistent with the General Plan policies, and that the General Plan map unambiguously designated the Property as open space.

Key Point:

Local agencies should maintain consistency among various land use documents to the maximum extent possible. A local agency should also keep the general plan updated so that reasonable persons can discern the general plan designation and policies applicable to a given piece of property.




dateJanuary 5th, 2017 byby

In Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal. App. 5th 160, the First Appellate District affirmed the trial court’s ruling that the Office of Community Investment and Infrastructure (OCII) complied fully with CEQA in approving a proposed 488,000-square foot multipurpose event center, which would serve as the Golden State Warriors’ new arena, and a variety of mixed-use structures surrounding the event center including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space.

The litigation proceeded under CEQA’s “environmental leadership development project” procedures, which provide for expedited litigation. Specifically, these procedures state that the litigation, including any appeals, should be resolved within 270 days of certification administrative record. Despite petitioners initially filing the litigation in the wrong venue and other circumstances that delayed the proceeding, the court was nevertheless able to issue its opinion about 270 days from certification of the administrative record.

The Project was proposed in the Mission Bay South Redevelopment Plan (Plan) area of City and County of San Francisco (City). The Plan was approved in late 1998 after certification of a Mission Bay final subsequent environmental impact report (1998 FSEIR), which incorporated information from a prior 1990 FEIR for the Plan area. In approving the Project, OCII prepared a supplemental environmental impact report (SEIR) for the Project, tiered to the 1998 FSEIR.

Petitioners argued that the Project SEIR failed to comply with CEQA because issues that the initial study concluded were insignificant or adequately examined in the 1998 FSEIR, including land use, biological resources, hazardous materials, and recreation impacts, may nevertheless be significant. Petitioners alleged these challenges were subject to the “fair argument” standard of review. The court rejected Petitioners’ argument and held that the “substantial evidence” standard applies. Based on this deferential standard of review, the court rejected each of petitioners’ land use, biological resources, hazardous materials, and recreation impact challenges.

Petitioners also advanced several challenges concerning the transportation analysis. The SEIR demonstrated that the Project presented a number of traffic and congestion concerns. As a result, the Project included a transportation management plan (TMP) and transit service plan (TSP), new or upgraded traffic signals or lane configurations at 20 intersections and construction of six new street segments, as well as expansion or modification of light rail passenger platforms, sidewalks and bicycle lanes.

Petitioners argued that the Project SEIR violated CEQA by including the TSP as part of the project description rather than as a mitigation measure. The court explained that the inclusion of the TSP as part of the Project did not interfere with the identification of the Project’s transportation impacts because the SEIR included analysis both with and without implementation of the TSP, distinguishing this case from Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645. Petitioners also argued that the TSP was inadequate because it may require the diversion of two streetcars from other transit lines in the City and asserted that this diversion may result in significant impacts on the lines from which the cars are diverted. The court rejected this argument as an “entirely speculative environmental impact.” The court also rejected Petitioners’ challenge to a mitigation measure requiring the Warriors to “work with” regional transit providers to provide adequate transit service. The court explained that substantial evidence in the record demonstrated that, through coordination among the regional transit agencies, transit demands in the region could be met. Furthermore, the court rejected petitioners’ demand that the Warriors guarantee transit funding in the event the traditional funding sources fell short. The court acknowledged that the SEIR did not identify specific funding sources, but held that substantial evidence in the record demonstrated that funding sources, such as fair recovery and a countywide sales tax dedication, should be available to address future transit needs.

Next, the court rejected petitioners’ argument that an “ambient plus increment” noise threshold ignores the severity of existing noise levels and is an inadequate noise threshold. The court also rejected petitioners’ claim that the SEIR must include a health-based threshold for noise. The court found that the SEIR adequately disclosed potential health impacts associated with noise and that OCII had the discretion to use an “ambient plus increment” noise threshold. The court noted that the CEQA Guidelines support use of an increment-based threshold. Additionally, the court found that the SEIR took the severity of existing noise levels into account by applying a smaller incremental noise threshold at intersections with noise in excess of 65 dBA.

Petitioners also argued that the wind analysis included in the SEIR was inadequate because it focused on wind impacts at off-site public areas rather than at onsite public areas. Citing Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473, the court held that CEQA does not require an analysis of wind impacts on the Project. Moreover, the court concluded that a discussion of wind at onsite public areas was provided in the SEIR “for informational purposes,” which adequately addressed petitioners’ complaint concerning onsite wind impacts even if it was required.

Turning to the greenhouse gas (GHG) analysis, the court rejected petitioners’ claim that by relying on compliance with the City’s qualitative GHG Strategy the SEIR failed to disclose the magnitude of the Project’s GHG emissions and violated an alleged requirement to quantify a project’s GHG emissions. While the CEQA Guidelines provide that a lead agency “should make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emissions resulting from a project” (quoting CEQA Guidelines section 15064.4, subd. (b)(1)), the “Guidelines do not compel a numeric estimate of every project’s greenhouse gas emissions.” Citing CEQA Guidelines section 15064.4 and 15183.5, the court explained that a lead agency may rely on a qualitative GHG analysis or performance base standards using an area wide plan. Furthermore, the court reiterated that, in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, the “California Supreme Court expressed approval for a methodology that uses consistency with greenhouse gas reduction plans as a significance criterion for project emissions under CEQA.”

Petitioners’ final challenge to the SEIR concerned the analysis of toxic air contaminants (TAC). Petitioners asserted that it was inappropriate to use a 100 in a million total cancer risk (from area sources) as the significance threshold for project-level TAC risk. Instead, petitioners argued that the SEIR should have used a 10 in a million project-only emission standard. Because substantial evidence supported OCII’s choice of significance threshold, the court upheld the approach used in the SEIR.

Petitioners also raised non-CEQA challenges alleging a zoning violation and that the City improperly issued a place of entertainment permit for the Project. With respect to the zoning claim, although the City’s Planning Department defined the event center as a “retail use” for the purposes of the City’s Planning Code, the court held under OCII’s Plan the bulk of the event center did not constitute a “retail use.” As to the City’s issuance of the place of entertainment permit, the court held that the City did not abuse its discretion in issuing the permit, given its finding that the Project would sufficiently protect the peaceful enjoyment of neighboring properties from the Project’s noise impacts.

Key Point:

Where an EIR is prepared, the substantial evidence standard of review applies to challenges concerning analysis included either in the initial study or the EIR. Furthermore, CEQA does not require absolute certainty regarding funding sources for mitigation measures. Finally, a lead agency may rely on a qualitative GHG analysis or performance base standards using an area wide plan.




dateJanuary 5th, 2017 byby

In Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, in an unanimous opinion, the Supreme Court reversed the First Appellate District’s ruling on the grounds that the court applied the wrong standard of review in determining whether a subsequent project constituted a new project for the purposes of CEQA review.

The subsequent project related to a district-wide master facilities improvement plan (“Plan”) previously approved by the San Mateo County Community College District (“District”) based on an MND. The District’s Plan originally proposed nearly $1 billion in new construction and facilities renovations, including renovations of the Building 20 complex (“Complex”) at the College of San Mateo.  The Complex contains a small cast-in-place concrete classroom and lab structure, greenhouse, lath house, garden space, and an interior courtyard.

After the District adopted an MND for the Plan in 2007, the District was unable to obtain funding for the planned renovations of the Complex. Consequently, in 2011 the District modified the Plan by proposing to demolish the complex and replace it with a parking lot.  The District issued an addendum to the MND addressing the modification, and subsequently approved the proposed demolition of the Complex.  The Friends of College of San Mateo Gardens filed suit alleging the District was required to prepare an EIR before approving the Complex demolition project.

Both the trial court and appellate court ruled in favor of Friends of College of San Mateo Gardens. Specifically, the court of appeal held that it was “clear” as a matter of law that the District’s proposed demolition of the Complex was not merely a change to its previously approved project, but a new project altogether.

The Supreme Court disagreed. The Court explained that pursuant to CEQA, a lead agency’s environmental review obligations depend on the effect of the proposed changes on the decisionmaking process, rather than on any abstract characterization of the project as “new” or “old.” Thus, the Court stated that the proper framework for the analysis is to ask “[i]f the original environmental document retains some informational value despite the proposed changes….” The Court held that this inquiry is subject to the substantial evidence standard of review.  The Court emphasized that it “expect[s] occasions when a court finds no substantial evidence to support an agency’s decision to proceed under CEQA’s subsequent review provisions will be rare….”

However, once a lead agency determines to proceed under CEQA’s subsequent review provisions, the next question concerns the type of subsequent document to prepare. In this context, the question is whether there is “substantial evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require major revisions of the previous EIR or negative declaration due to the involvement’ of new or significantly more severe environmental effects.” Applying this test, the Court held that, where the original environmental document was a negative declaration (and not an EIR), the lead agency must prepare a subsequent EIR whenever the changes to the previously approved project may have a significant environmental impact not considered at the time of the previous environmental review.

Finally, the Court rejected the plaintiff’s argument that because the original project was a Plan, CEQA’s provisions relating to programmatic environmental review were applicable. The Court found that the MND for the Plan expressly concluded that it constituted a project-specific analysis and not a phased project or program. Thus, Public Resources Code section 20194 and related provisions concerning “tiered” environmental review had no direct application.

The Court remanded the case for further proceedings consistent with the holding. The Court noted that the issues that would need to be addressed by the appellate court included plaintiff’s claim that CEQA Guidelines sections 15162 through 15164 improperly authorize lead agencies to approve certain proposed project modifications through the use of addenda without public comment, rather than requiring the issuance of a subsequent or supplemental EIR or negative declaration.

Key Point:

The Supreme Court affirmed that an agency’s decision whether a subsequent project can be analyzed under CEQA’s subsequent review provisions is subject to the substantial evidence standard of review. Similarly, the Supreme Court held that agency’s decision as to the type of subsequent environmental review to perform is also subject to the substantial evidence standard of review where original environmental document is an EIR. However, where the original document is a negative declaration or mitigated negative declaration, a subsequent or supplemental EIR is required where there is a fair argument that the project may have a significant environmental impact not considered at the time of the previous environmental review.




dateJanuary 5th, 2017 byby

In East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, Plaintiffs alleged the City of Sacramento failed to comply with CEQA on a number of grounds in approving a 328-unit residential development, along with a community recreation center and three parks, on an approximately 49-acre infill development site in East Sacramento (“Project”). The trial court denied the petition and upheld the adequacy of the City’s EIR. The Third Appellate District upheld the trial court ruling and rejected arguments regarding the City’s findings of consistency with its General Plan, as well as challenges to the EIR’s project description and analysis of health risks and methane migration, but reversed the trial court on a single issue related to the traffic significance threshold.

With respect to the traffic analysis, the EIR stated that the significance criteria used to evaluate the project impacts were based on, among other things, the thresholds adopted by the City in its General Plan. The EIR found that the project would not have a significant traffic impact on three intersections that would operate at level of service (LOS) F under cumulative plus project conditions because the General Plan deemed LOS F conditions to be acceptable in the core area of the City in an effort to encourage infill projects. The court held that compliance with a general plan’s traffic mobility policy alone did not establish that the project would not result in significant impacts because the EIR did not explain why increases in traffic were not significant impacts, citing Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099. In reaching its holding, the court seemingly applied the “fair argument” standard of review, ignoring longstanding CEQA precedent for affording deference to an agency’s selection of significance thresholds. The Court rejected a petition for rehearing on grounds that the Court applied the incorrect standard of review.

Next, the court rejected the plaintiff’s argument that the EIR should have analyzed a development agreement associated with the project. The court explained that the EIR must only make reference to the development agreement to alert interested individuals. The court also held that the EIR was not required to analyze the construction of a vehicular tunnel at Alhambra Boulevard, which would provide additional access to the project site, because the City had merely agreed to study its feasibility without approving it.

Finally, the court held that the EIR was not required to analyze the significant health risks to future residents of the project that could potentially result due to the project site’s proximity to a freeway, railroad trucks, and a former landfill, citing California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369. The court provided that what must be analyzed under CEQA is “a project’s potentially significant exacerbating effects on existing environmental hazards – effects that arise because the project brings ‘development and people into the area affected.’”

Key Point:

SB 743 (Steinberg, 2013) initiated a process to change the way that transportation impacts are analyzed under CEQA. Specifically, SB 743 requires the Governor’s Office of Planning and Research (OPR) to amend the CEQA Guidelines to provide an alternative to LOS for evaluating transportation impacts. Some local agencies, such as the City of Sacramento, have adopted policies that advance these objectives by shifting the focus from LOS to other metrics for evaluating traffic impacts in more densely populated areas within their jurisdictions. But, LOS remains the most common and readily understood way of discussing traffic impacts in CEQA documents. This decision is evidence that the transition to other methods of evaluating traffic impacts, although they may advance the State’s smart growth objectives, nevertheless present legal risks until such alternatives, and associated environmental benefits, are more widely understood.




dateJanuary 3rd, 2017 byby

In an unpublished opinion, Ventura Realty & Investment Company v. City of San Buenaventura, 2016 Cal. App. Unpub. LEXIS 7486, the Second Appellate District affirmed the trial court’s rulings and upheld the City of San Buenaventura’s (City) approval of changes to a plan to redevelop a 15-acre hospital district (Hospital Plan) proposed by Community Memorial Health System’s (CMH).

In 2010, the City prepared and EIR and approved the Hospital Plan along with a memorandum of understanding (MOU) between CMH and the City. The MOU made the City responsible for the parking structure, but provided CMH with the option to take responsibility for the construction, funding, and maintenance of the parking structure. In 2014, CMH exercised its option, shifting the City’s responsibility for the parking structure to CMH, and proposed to make the structure taller and with more spaces. Using an addendum to the prior EIR, the City approved CMH’s proposed changes to the Hospital Plan that same year.

During the design review for the changes proposed by CMH, the City discovered that the existing general plan designation for the parking structure site was residential. To ensure consistency with the general plan, the City initiated a general plan amendment changing the site designation from residential to commercial and approved the amendment in 2015.

The plaintiff, who wished to obtain spaces in the parking structure for its own commercial project in an adjacent area, filed a petition for writ of mandate, claiming that the City’s approvals violated CEQA. 

First, the court rejected the plaintiff’s argument that the City impermissibly deferred consultations required by Senate Bill (SB) 18, which requires the City to conduct consultation with certain Native American tribes before adoption of a general plan amendment. The court explained that the plaintiff forfeited its SB 18 claim because it had not exhausted its administrative remedies. The court also held that the City’s consultation undertaken after the 2014 approvals, but before the approval of the general plan amendment, would have been permissible even if the plaintiff had exhausted its administrative remedies. According to the court, SB 18 does not impose additional requirements to CEQA.

Second, the court held that the 2014 approvals did not introduce new information requiring a supplemental EIR. The plaintiff argued that the 2014 approvals required a supplemental EIR because an associated ground lease gave CMH discretion to accept or deny requests for parking necessary for nearby development projects, which the plaintiff believed would lead to a parking shortage for future development. The court rejected this argument, because the 2010 MOU discussed CMH’s discretion to take over the parking structure project and no objections were raised. The court also reasoned that the lease set aside 199 spaces as the minimum number of spaces for future developers and that CMH was not authorized to unilaterally reduce the number of such spaces without the City’s consent.

Third, the court held that the general plan amendment did not result in substantial changes to, or new information about, the project. The court also found that the 2014 addendum to the EIR adequately considered the potential for environmental impacts to result from the general plan amendment.

Finally, the court rejected the plaintiff’s contentions that the City violated local and state laws, including the City’s Municipal Code requirements related to parking determinations, the City charter concerning public works contracts, and the Government Code section 53083 relative to economic development subsidies.




dateJanuary 3rd, 2017 byby

In an unpublished opinion, Fudge v. California Coastal Commission, 2016 Cal. App. Unpub. LEXIS 8765, the Second Appellate District affirmed the trial court’s rulings granting the City of Laguna Beach’s (City) demurrer to several causes of action in a lawsuit challenging actions by the City and Coastal Commission concerning a project proposed by Laguna Beach Golf and Bungalow Village, LLC (Developer) to remodel and expand an existing hotel, dining, retail and golf course facilities on an 84-acre parcel in Aliso Canyon.

On May 14, 2014, the City Planning Commission approved a coastal development permit (CDP), conditional use permit (CUP), and design review permit (DRP) for the project and determined that the project was exempt from CEQA under the Class 3 categorical exemption. On June 16, 2014, Appellant appealed the CDP approval to the Coastal Commission. The Coastal Commission approved the CDP on January 8, 2015 and took further actions to approve the CDP on April 15, 2015. Appellant filed the lawsuit on March 5, 2015.

The City and the Developer filed demurrers to three causes of action alleged against the City: the first cause of action alleged a violation of CEQA in connection with the Planning Commission’s determination that the CDP was exempt from CEQA; the third cause of action alleged the City violated the LBMC in connection with the Planning Commission’s approval of the project; and the fourth “cause of action” sought declaratory and injunctive relief. The trial court entered an order granting the demurrers and dismissed the City from the litigation. Appellant appealed from the order.

The Court held the first and third causes of action were time-barred. The Court explained that both causes of action challenged the Planning Commission’s May 2014 approval of the project. Appellant’s challenge of the CDP to the Coastal Commission did not affect the validity of the Notice of Exemption (NOE) issued by the Planning Commission or issuance of the CUP. The 35-day statute of limitations (SOL) under the Public Resources Code section 21167, subdivision (d), was applicable to the first cause of action, and the 90-day SOL under Government Code section 65009 was applicable to the third cause of action. As the lawsuit was filed in March of 2015, it was filed over nine months after the Planning Commission approved the project. As a result, the lawsuit was untimely as to the first and third causes of action.

Lastly, the Court held that Appellant’s fourth cause of action – seeking declaratory and injunctive relief – was barred as a matter of law. The Court reasoned that a petition for writ of mandate under the Code of Civil Procedure section 1094.5, not declaratory relief, is the sole means to challenge the City’s permit approvals. Further, the Court provided that there is no stand-alone cause of action for injunctive relief, which is an equitable remedy that may only be requested incidental to an independently cognizable cause of action. As the first and third causes of action against the City were time-barred, the fourth cause of action was not incidental to an independently cognizable cause of action against the City.




dateDecember 29th, 2016 byby

In The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency 2016 Cal. App. LEXIS ___ (originally filed as an unpublished decision and later certified for publication), the First Appellate District upheld the trial court and rejected Petitioners’ argument that further CEQA review was required before the San Francisco Municipal Transportation Agency (Muni) approved construction of a 900-foot segment of light rail track needed to complete a partially constructed loop on the T-Line.

In 1998, an EIR was prepared to analyze the impacts of the Third Street Light Rail Project. The EIR divided the project into two phases: the Initial Operating Segment, and a New Central Subway. The EIR analyzed the Initial Operating Segment at the project-level and the New Central Subway at the program-level.  The bulk of the Initial Operating Segment was completed by 2003, however, the loop connection at issue in this litigation was deferred until demand warranted its completion.  In 2012, Muni pursued federal grant funding to complete the loop and, as part of that process, it considered whether further CEQA review was required before the loop project was approved. Muni and the San Francisco Planning Department (Department) agreed that the 1998 EIR adequately analyzed impacts of the loop and that no further CEQA review was required.  However, further NEPA review was conducted and a “Finding of No Significant Impact” was issued by the Federal Transit Administration. Once again, in 2014, when Muni was prepared to move forward with the loop project, Muni and the Department considered whether any changed circumstances required further CEQA review.  They again concluded no further review was required pursuant to CEQA Guidelines sections 15162-15164. Thereafter, Muni approved construction of the missing 900-foot link in the T-Line loop.

Petitioners filed suit alleging that the loop project was not covered by the 1998 EIR and that, even if it was, Muni was required to conduct supplemental review pursuant to Public Resources Code section 21166. After holding that both of Petitioners’ challenges are subject to the substantial evidence, and not fair argument, standard of review, the Court quickly rejected Petitioners’ arguments.

Citing extensively to the 1998 EIR, the Court held that substantial evidence in the record demonstrates that the loop project was part of the project described in the 1998 EIR. The Court also held that the loop was part of the Initial Operating Segment as defined in the 1998 EIR and not the New Central Subway. Thus, the loop was analyzed at the project-level in the 1998 EIR.  The Court also noted that, to the extent Petitioners desired to challenge the adequacy of the analysis in the 1998 EIR, that challenge is untimely and should have been advanced when the 1998 EIR was adopted.

Next, the Court held that Muni’s and the Department’s 2012 and 2014 determinations, and supporting evidence, that no further review was required pursuant to Public Resources Code section 21166 constituted substantial evidence supporting that conclusion. Furthermore, the Court stated that the 2013 NEPA analysis constituted additional substantial evidence supporting Muni’s decision. The Court was also unpersuaded by Petitioners’ counterarguments noting that “mere delay in completing construction [does not] constitute[] a substantial change in a project under section 21166” and “changes in a neighborhood do not constitute a change in circumstances that requires a new EIR under section 21166, unless the changes require ‘major revisions’ to an existing EIR.”  The neighborhood changes at issue did not require ‘major revisions’ because the 1998 EIR expressly contemplated and analyzed cumulative impacts associated with potential future changes to the neighborhood.

Finally, the Court rejected Petitioners’ claim that Muni failed to comply with required procedures in deciding no further CEQA review was required. The Court stated that “CEQA does not set forth any particular procedure to support an agency’s decision that a new EIR is not required.” Specifically, “CEQA does not require an initial study or public hearing” before an agency concludes no further CEQA review is required pursuant to Public Resources Code section 21166.

Key Point:

After a lead agency prepares an EIR for a project, the substantial evidence standard of review is applicable both the lead agency’s decision whether (1) future approvals are within the scope of the previously approved project, and (2) additional CEQA review is required pursuant to Public Resources Code section 21166.




dateSeptember 29th, 2016 byby

The Bay Area Air Quality Management District’s (BAAQMD) “CEQA Air Quality Guidelines” have been the source of litigation since they were first adopted in 2010. Most recently, courts have grappled with certain thresholds for assessing the health risks of siting new sensitive receptors near existing sources of toxic air contaminants, often referred to as the “Receptor Thresholds.”

In California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the Supreme Court held that the scope of CEQA did not require lead agencies to consider the effect of the existing environment on a future users of a project unless the project will exacerbate those existing conditions. See The First Appellate District was tasked with determining on remand how that holding affected the Receptor Thresholds adopted by BAAQMD.

In California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 758, the appellate court considered BAAQMD’s argument that approval of the receptor thresholds did not need to be set aside because there were possible valid uses.  These uses included: (1) voluntary applications by a lead agency; (2) the determination of whether a project will exacerbate existing conditions; (3) the assessment of the health risks to students and staff at a proposed school site; and (4) the evaluation of whether a housing project is exempt from CEQA.

The Court agreed with BAAQMD, but cautioned that “any effort by an agency to require an EIR, mitigating measures, or other CEQA review under the Receptor Thresholds when one is not authorized would be subject to a strong legal challenge.” The Court remanded the case to the trial court with instructions to issue an order invalidating the portions of the BAAQMD Guidelines that suggested that lead agencies should routinely assess the effect of existing environmental considerations on future users or occupants of a project.

BAAQMD subsequently filed a petition for rehearing and argued that writ relief was inappropriate because the Guidelines are a nonbinding, advisory document and any review was premature because there was no specific controversy regarding an application of the Guidelines. (See California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 752.) The Court disagreed and found BAAQMD’s Guidelines to be akin to the guidelines at issue in Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158. They were not “interim steps in a larger review process,” where a court may decline to use the remedy of mandamus. Therefore, the Court denied the petition for rehearing.




dateSeptember 28th, 2016 byby

The City of Ceres approved the development of a 300,000 sq. ft. shopping center anchored by a 190,000 sq. ft. Wal-Mart Supercenter to replace an existing Wal-Mart store after an extensive environmental review process. Citizens for Ceres (Citizens) filed a petition for writ of mandate pursuant to CEQA, alleging several defects in the environmental documents the City certified when it approved the project. The trial court denied the petition and Citizens appealed.

After prevailing in the trial court Wal-Mart, as the real party in interest, filed a memorandum of costs in which it requested, among other things, an award against Citizens of $48,889.71 for the cost of preparing the administrative record. Wal-Mart incurred these costs because the City required Wal-Mart to reimburse the City’s costs to have outside counsel prepare the record. The trial court struck this item from Wal-Mart’s memorandum of costs and Wal-Mart filed a separate appeal.

In a partially published opinion, Citizens for Ceres v. City of Ceres, 2016 Cal. App. LEXIS 759, the Fifth Appellate District affirmed the trial court’s denial of Citizens’ petition for writ of mandate, and reversed as to Wal-Mart’s appeal on the cost of preparing the administrative record.

In the unpublished portion of the opinion, the Court rejected Citizens’ CEQA claims that: (1) the EIR certified by the city did not mandate adequate mitigation measures for the urban decay impact of the project; (2) the EIR did not sufficiently analyze the project’s impacts on landfill and recycling facilities and did not mandate adequate mitigation measures for those impacts; (3) the EIR failed to contain adequate information correlating the project’s air pollution impacts with resulting effects on human health; and (4) the City’s statement of overriding considerations was not supported by substantial evidence.

The Court then addressed Citizens’ motion to tax costs. Wal-Mart argued that the trial court erred when it applied Hayward Area Planning v. City of Hayward (2005) 128 Cal.App.4th 176 (Hayward) to bar an award of costs to Wal-Mart for preparation of the administrative record. The Court agreed, explaining that Code of Civil Procedure section 1032 states that a prevailing party is “entitled” to a cost award “as a matter of right” in “any action or proceeding,” except “as otherwise expressly provided by statute.” While Public Resources Code section 21167.6 requires an agreement with the petitioner before an agency can delegate record preparation to a real party, as stated in Hayward, the Court held that an agreement with the petitioner was not required where a real party covers an agency’s costs after the record has been prepared by the agency.

Key Point: Prevailing real parties in interest in CEQA matters may recover costs associated with the preparation of an administrative record where it reimburses an agency’s costs after the record has been prepared by the agency.