Thomas Law Blog

CEQA Updates

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

Posts Tagged ‘alternatives’


Unpublished Decision Holds that a Comparative Analysis is Required to Support the Conclusion that an Alternative is Economically Infeasible

Tuesday, May 8th, 2012

In an unpublished decision, Quartz Hill Cares v. City of Lancaster (2012) 2012 Cal.App.Unpub. LEXIS 2026, petitioner sought a writ of administrative mandate to overturn the City of Lancaster’s (City) approval of a 395,000-square-foot commercial project on land previously zoned for residential use under the Planning and Zoning Law and the California Environmental Quality Act (CEQA).  The Second Appellate District Court (Court) held that the City erred in certifying its Final Environmental Impact Report (FEIR).  Pertaining to the Planning and Zoning Law, the Court dismissed the petitioner’s procedural issues, holding that the errors committed by the City were not prejudicial.  The Court dismissed all of the petitioner’s substantive issues under the Planning and Zoning Law as well, explaining that the petitioner had failed to carry its burden of providing sufficient evidence to show that the City violated Article 10.6 of the Planning and Zoning Law by rezoning property previously designated for residential uses to commercial uses.  The Court found that the City still had four times the amount of residentially-zoned land to meet its need for low to moderate-income housing.

However, under CEQA, the Court found that the City failed to provide sufficient evidence in its FEIR to support its conclusion that the Reduced Commission Density Alternative (RCDA) was “not economically viable.”  The Court explained that an EIR must include sufficient information about each alternative to allow for a meaningful evaluation and comparison in connection with a proposed project.  While the discussion of alternatives does not need to be exhaustive, it does need to include the “analytic route” the agency took to reach a conclusion on the alternatives.  The Court explained that the FEIR should have included comparative economic data and analysis between the project and the reduced size alternative. Therefore, despite concluding that the EIR included a reasonable range of alternatives, the Court held that the analysis of alternatives lacked sufficient information.

Written By: Tina Thomas and Chris Butcher

___________

For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

Court Upholds EIR for a Wind Energy Project Despite the Conceptual Nature of the Project Description

Tuesday, February 21st, 2012

In an unpublished decision, Bedford v. Santa Barbara County, 2012 Cal.App.Unpub.LEXIS 886, the Second Appellate District upheld a trial court’s ruling denying a petition challenging the adequacy of an environmental impact report for a wind farm project in Santa Barbara County. First, the Court upheld the trial court’s determination that the Petitioners failed to exhaust their administrative remedies relating to the adequacy of the environmental baseline and propriety of deferring certain mitigation measures. The Court explained that objections must be sufficiently specific so that the lead agency has an opportunity to evaluate and respond to them. Here, Petitioners failed to meet this burden.

Second, the Court rejected Petitioners’ challenges to the project description concluding that while the project description was conceptual, it was sufficient for the purposes of CEQA review. In reaching its holding, the Court stated that “[i]t is true the precise location of the [wind turbine generators] is unknown. But the EIR’s analysis of visual impacts is based on the maximum potential impact that the project could have. In fact, it analyzes the maximum visual impact from [] public places…” The Court also rejected Petitioners’ argument that the project description must disclose the exact type of turbines the project would use. The Court found that by disclosing the maximum height and noise allowed, the project description was not required to disclose the type of generator that would be utilized.

Third, the Court held that the four alternatives included in the EIR constituted a reasonable range of alternatives and that the EIR was not required to analyze alternatives to components of the Project. The Court also explained that the EIR properly rejected certain alternative sites as infeasible “based on sound objective criteria such as the time necessary to develop alternative sites, and the inability of alternative configurations of the WTGs on the proposed site to generate sufficient electricity.”

Fourth, the Court found the noise analysis was supported by substantial evidence because it was based on the worst case scenario. Therefore, while exact noise levels are not known, the EIR properly evaluated the potential for the project to result in significant noise impacts.

Finally, the Court rejected Petitioners’ challenges relating to the Project’s consistency with local land use policies because the policies either were not mandatory or that mitigation included in the EIR ensured compliance.

Key Points:

CEQA requires that an EIR is commenced early in the planning process. Therefore, complete and final project details are not always known during preparation of an EIR. Here, the Court held that because the project description and impact analyses in an EIR for a wind energy project provided sufficient detail to consider the worst case scenario, the EIR complied with CEQA.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Agencies Can Make Adjustments to Environmental Baseline Early in the Review Process

Sunday, January 22nd, 2012

In Citizens for East Shore Parks v. California State Lands Commission (Dec. 30, 2011) 202 Cal.App.4th 549, a citizen group challenged the California State Lands Commission’s (Commission) approval of a lease renewal for Chevron’s marine terminal in the San Francisco Bay near its refinery in Richmond, California.  At the onset of the review process, the Commission stated it would analyze the lease renewal project in relation to an environmental baseline that assumed no terminal operations ever existed.  After release of the notice of preparation, but prior to release of the Draft EIR, the Commission changed its position and concluded that the environmental baseline must consider existing conditions, including existing terminal operations.

The court upheld the Commission’s revised baseline, explaining that Chevron’s terminal was a valid existing condition and the baseline should consider all existing conditions, even when those conditions have never been reviewed previously.  The court rejected petitioner’s argument that the Commission improperly changed its position concerning the appropriate baseline, finding that agencies not only can, but should make appropriate adjustments as the environmental review process unfolds.

Petitioners also challenged the adequacy of the project description, alternatives analysis, cumulative analysis, and land use compatibility.  The court rejected each of these arguments in short order, emphasizing that petitioner’s arguments were premised on a misunderstanding of the scope of the lease renewal project and an inappropriate baseline.  The court also found that the Commission complied with its responsibility to consult trustee agencies and to adequately respond to public comments.   The court declined to consider petitioner’s attack on the Commission’s CEQA findings because the arguments constituted nothing more than “a recycled medley” of their challenges to the EIR.

The court also disagreed with petitioner’s argument that the lease renewal violated the public trust doctrine, explaining that because the lease renewal simply continued a permissible and long-standing trust use, there was no violation.

Key Points:  

The decision demonstrates that a lead agency does not violate CEQA by reconsidering methodologies utilized during the environmental review process.  The adjustments in this case occurred prior to the release of the Draft EIR; therefore, a lead agency must still consider whether recirculation is required when changes in methodology occur after the release of the Draft or Final EIR.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.