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Posts Tagged ‘EIR’


Third District Holds City’s Explanation and Substantial Evidence Supported Traffic Impact Conclusion, Discharge of Writ of Mandate Proper

Thursday, January 3rd, 2019

In reviewing whether the City of Sacramento complied with a peremptory writ of mandate issued by the Sacramento Superior Court (East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5Cal.App.5th 281 (ESPLC I)), the Third District Court of Appeal ruled that the City had explained and provided substantial evidence supporting both its traffic threshold and its conclusion that the traffic impact was less than significant. (East Sacramento Partnership for a Livable City v. City of Sacramento (2018) Cal.App. Case No. C085551.)  In ESPLC I, the Court faulted the City’s use of a General Plan threshold because, the Court concluded, the threshold was not supported by substantial evidence.

Real Parties in Interest, Encore McKinley Village, LLC, proposed a 328-unit residential development (Project), which is now 80% built out. As pertinent here, the Project EIR recognized that the Project potentially impacted four intersections in the core and, utilizing the level of service (LOS) standard from the City’s General Plan, concluded that there would be no significant impacts to traffic. The City of Sacramento (City) reviewed the Project application, certified the Project EIR, and approved the Project. East Sacramento Partnership for a Livable City (ESPLC) filed suit.

The trial court denied the petition for writ of mandate, finding the EIR sufficient. ESPLC appealed. In ESPLC I, the Court of Appeal held that the EIR was sufficient except for its reliance on the General Plan LOS standards without explanation. Specifically, the City was in error in relying on the LOS standards as an automatic determinant that traffic effects at the four intersections in the core were not significant. In doing so, the City failed to provide substantial evidence to support the finding of no significant traffic impact. “The fact that a particular environmental effect meets a particular threshold cannot be used as an automatic determinant that the effect was or was not significant.” Accordingly, the Court remanded the case.

The trial court then entered judgement in favor of ESPLC and issued a preemptory writ of mandate to rescind and set aside the EIR’s certification until the City brought the transportation and circulation sections of the EIR into compliance with CEQA. The City recirculated and certified a revised EIR. The trial court found the revised EIR was sufficient and discharged the writ. ESPLC appealed the order discharging the writ.

ESPLC alleged that the City failed to provide substantial evidence to support the conclusion that the Project’s impacts on traffic at the four intersections in the core are insignificant. ESPLC claimed that it was insufficient to merely provide evidence and an explanation to support the choice of threshold of significance for traffic impacts. ESPLC contended that the City was instead required to prepare a new traffic study to support its determination. The City responded that, among other things, the appeal should be dismissed as untimely.

Here, the Appellate Court held that ESPLC I only asked that the City provide an explanation and substantial evidence for the City’s determination to use the flexible LOS standards. The Court then found that it was to review for abuse of discretion because compliance with a writ is, for all practical purposes, an attempt to comply with CEQA.  

The Court found the revised EIR provided substantial evidence supporting the City’s determination that there would be no significant traffic impacts at the challenged intersections in the core. The revised EIR provided an explanation of how the flexible LOS policy promotes infill development and achieves environmental benefits by reducing vehicle miles traveled (VMT) and greenhouse gas emissions. Further, the revised EIR explained that vehicle delay is not a physical impact on the environment and is preferable to roadway expansion as the latter increases VMT. These conclusions were supported by staff opinions, legislation, studies of flexible LOS, evidence of VMT in the area, and comments from Regional Transit, the Air District, and Sacramento Area Council of Governments.

ESPLC contended that the revised EIR should have studied and quantified the alleged reductions in VMT and greenhouse gas emissions in the Project area. The Court held that it was only required that the City provide “sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action.” Because the City provided sufficient explanation and substantial evidence to support its selection of the threshold of significance for the traffic impacts, the Court affirmed the judgment.

The Court further established that the appeal was not untimely. A post judgment order, like that issued by the trial court discharging the writ, extends the time for filing a notice of appeal. Relying on City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, the Court held that an order relating to the enforcement of a judgment is appealable. Thus, the discharge order, finding the return to the writ adequate, was an appealable post judgement order and subject to reconsideration. As such, the appeal was timely.

As a final point, the Court granted the City’s motion to strike ESPLC’s argument that the City admitted the traffic impacts were significant as defined by the 2030 General Plan because it could have been raised earlier and ESPLC failed to show why the issue was raised for the first time in their reply brief. The Court further noted that adoption of a 2035 General Plan mooted arguments based on the 2030 General Plan.

The Court affirmed the trial court’s discharge of the writ of mandate.

Note: This case is currently unpublished. Pursuant to California Rules of Court, the deadline to request publication is 20 days from filing –Wednesday, January 16, 2019.

County General Plan EIR Need Only Address “Reasonably Foreseeable Development” Outside the Planning Area, Population Reports in the Record Showed Possible Subdivision Unlikely

Thursday, December 20th, 2018

In High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, the Third District Court of Appeal held a general plan update and EIR were valid where evidence in the record supported the County of Plumas’ (County) determination that there was no “reasonably foreseeable development” outside the planning area. The Court also held that adding building intensity standards and a comprehensive map to the EIR did not require recirculation after close of the comment period where the specific zones were not likely to be developed and the map information was otherwise available during the public comment period.

The County certified a final EIR and approved a general plan update (Project) in December 2013. The update focused on new population growth and housing construction in the “planning area” in order to preclude urban sprawl and degradation of natural resources. The planning area boundary encompassed the existing developed land area and the potential expansion area directly surrounding it. In contrast, rural areas were those “defined as having little to no public infrastructure and services.” High Sierra Rural Alliance (High Sierra) filed suit alleging that the County violated CEQA by failing to consider growth and subdivision development outside the planning area and failing to recirculate the final EIR once adding maps and building intensity standards after the close of the public comment period.

The trial court held that the EIR was a “reasonably crafted…first-tier environmental document that assesses and documents broad environmental impacts of a program with the understanding that a more detailed site-specific review may be required to assess future projects.” Further, substantial evidence supported that the County’s policies and mitigation measures contained in the EIR were sufficient to reduce the severity of any environmental impacts of future projects. Lastly, the addition of building intensity standards and cumulative maps, while possibly in error, was not prejudicial error under CEQA meriting recirculation. High Sierra timely appealed.

The Appellate Court confirmed that its role is not to determine “the correctness of the EIR’s environmental conclusion, but only its sufficiency as an informative document.” Applying these principles, the Court affirmed the judgment.

The Court first addressed High Sierra’s claim that the EIR was functionally deficient for failing to assess the impacts of development, especially subdivision development, outside of the planning area. The Court clarified that CEQA only required the County to address “reasonably foreseeable development” within the County. It is of no consequence to the Court’s determination if this excludes rural areas within the County.

The record showed that the County consulted population and economic data from the Department of Finance and CalTrans and determined that the County growth rate over the planning period would be minimal. This data supported the County’s determination that all reasonably foreseeable growth was to occur almost exclusively in the planning area. Further, sections of the general plan specifically provided restrictions on development in rural areas by requiring adequate, independent fire protection for each new development. Finally, the EIR specifically provided that the minimal amount of development that may occur will be best addressed in a site-specific manner. Thus, the EIR was a proper first-tier environmental document. The Court held that the County adequately addressed development outside of the planning area.

The Court then turned to High Sierra’s argument that the County failed to recirculate the EIR. The Court confirmed that recirculation is required when “significant new information is added…in a way that deprives the public of meaningful opportunity to comment upon a substantial adverse environmental effect.” (CEQA Guidelines 15088.5.)

High Sierra alleged that the County violated CEQA by failing to recirculate the EIR after adding maps and building intensity standards to the final EIR. The Court held that evidence in the record showed that the addition of comprehensive maps to the final EIR was not “significant new information” as the public had access to maps with land use designations for the County throughout the comment period. Further, the addition of building intensity standards for certain rural zones did not constitute “significant new information” where the additions did not change the scope of the Project. Also, the record supported a finding that even fewer structures in those zones would be built during the planning period than the small number in the past decade. Thus, the building intensity standards were nearly inconsequential and not “significant.” Considering these findings, the Court held that the scope of the Project did not change between the draft EIR and final EIR in a manner that requires recirculation.

The Court affirmed the trial court’s judgment and upheld the EIR.

Key Point:

A general plan EIR is only required to address “reasonably foreseeable development,” supported by evidence in the record, outside of the planning area to be sufficient under CEQA.

“Significant new information” meriting recirculation of an EIR does not include maps whose information was available elsewhere during the comment period nor standards that did not change the scope of the project.

Second District Prohibits Preparation of Subsequent EIR Where Project-level EIR Covered All “Reasonably Foreseeable Consequences” of Later Plan-level Project; Spot-Zoned Target Store Permissible Where in Public Interest

Thursday, August 23rd, 2018

In Citizens Coalition Los Angeles v. City of Los Angeles, (2018) 26 Cal. App. 5th 561, the Second District Court of Appeal held that the City of Los Angeles’s (City) reliance on an addendum to a prior project-level EIR prepared for a Target store was legally sufficient environmental review for the approval of a later ordinance amending a specific plan applicable to the area containing the Target store. The City’s reliance on the Target EIR and addendum was permissible where the new ordinance did not present “reasonably foreseeable consequences” beyond those presented in the Target EIR.

The City completed an EIR for a Target store and then later passed an ordinance that amended its neighborhood-based specific plan to create a new subzone for large commercial development, and placed the half-built Target store into that new subzone. In passing the ordinance, the City relied on an addendum to the Target store EIR. Citizens Coalition Los Angeles (Citizens) filed suit.

Citizens alleged that the City’s actions violated CEQA by failing to conduct subsequent environmental review when creating the new subzone. The trial court held that the City violated CEQA for treating the action as a follow-on to its prior, initial approval of the Target store. The City and Real Party in Interest, Target Corporation, timely appealed.

The Appellate Court outlined that, where an EIR has been prepared, Public Resource Code section 21166 provides a supplemental EIR may only be required where new information comes to light or there is a substantial change to the project plans or project circumstances that requires a “major revision” to the EIR. Relying on Friends of College of San Mateo Gardens v. San Mateo County Community College District, (2016) 1 Cal. 5th 937, the Court found that only where one of the exceptions of Public Resources Code section 21166 applies may a new EIR be required. If an EIR “retains any relevance in light of the proposed changes,” then an addendum is proper, not a subsequent EIR.

The Court, relying on CEQA Guidelines section 15162 for direction, asked “[did] the existing CEQA document encapsulate all of the environmentally significant impacts of the project?” Further environmental review was only required if the later action was not a “reasonably foreseeable consequence” of the original project-level EIR. The Court awarded “greater deference to a public agency’s determination … than they [would for] whether initial CEQA review is required.”

The Court clarified that a “reasonably foreseeable consequence” is where “that consequence is, as a practical matter, sufficiently certain to happen.” The Court then outlined five such situations: (1) where an agency has already committed itself to undertake the consequence; (2) where a project presupposes the occurrence of consequence – where a consequence is a necessary and essential component of the project itself; (3) where a consequence is already under environmental review; (4) where an agency subjectively intends or anticipates the consequence; and (5) where an agency creates an incentive that is all but certain to result in a consequence.

Here, the Court found that substantial evidence supported the City’s finding that the sole reasonably foreseeable consequence of the ordinance was the construction of the Target store. Evidence in the administrative record showed that the City had not committed to any other large-scale commercial development on parcels meeting the ordinance criteria.  As such, Public Resources Code section 21166 did not merit subsequent or supplemental EIR as all of the reasonably foreseeable consequences of the ordinance had been addressed in the prior EIR and addendum. The Court further clarified that it did not matter that, though unconventional, the plan-level project relied on a project-level EIR.

Having settled the adequacy of the City’s environmental review, the Court then determined that the ordinance did not constitute impermissible spot zoning because extensive evidence in the record showed that the location of the store was in the public interest. Relying on Foothill Communities Coalition v. County of Orange, (2014) 222 Cal.App.4th 1302, the Court defined an island or spot zoning as where a parcel of land is rezoned to give it fewer or greater rights than parcels around it. In reviewing such claims, the Court’s focus is on if the City’s discretionary action is in the public interest. Only where an island is arbitrary, irrational, or unreasonable will it be impermissible. Here, record evidence showed demonstrated numerous benefits of the store being part of a shopping complex near pedestrian walkways and public transportation. Thus, the City’s action was in the public interest.

The Appellate Court reversed the trial court holding. In a separate holding, the Appellate Court awarded attorneys fees to Citizens’ co-petitioners, La Mirada Neighborhood Association. Read more about that in our blog post “Private Attorney General Doctrine Attorney’s Fees Proper For Party Successful in Invalidating Specific Plan Variances

Note that this case was originally published by the Appellate Court and then depublished by the Supreme Court at the same time that the Supreme Court denied review.

Key Point:

Public Resources Code section 21166 prohibits an agency from preparing a subsequent EIR where a project-level EIR covered all “reasonably foreseeable consequences” of a later plan-level project.

A city’s action to spot zone is evaluated by the court for being in the public interest, with great deference given to the city’s determination.

Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

Wednesday, February 28th, 2018

In Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, the Second District Court of Appeal held that parking impacts caused by a project are exempt from CEQA review, per Public Resources Code section 21099. Additionally, the Court found that the City of Covina (City) properly tiered from a prior EIR for a specific plan where potential project-specific impacts were addressed in a project-specific analysis and mitigation measures were imposed to address identified impacts. Further, where impacts are statutorily exempt, as they were here for parking impacts, no further analysis is required in the tiered document. Finally, approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

In 2012, project applicants submitted a proposal to the City of Covina (City) for the construction of a mixed-used urban residential infill project (Project) near the Covina Metrolink commuter rail station. The Project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site. Ultimately, the City approved the Project and issued a mitigated negative declaration (MND). Covina Residents for Responsible Development (CRRD) filed suit alleging the City was required to prepare an EIR, improperly tiered the MND from the specific plan EIR, and violated the Subdivision Map Act by failing to make necessary findings. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence supported CRRD’s claim that the parking shortage would result in environmental impacts; (b) parking impacts from the Project were exempt from environmental review under Public Resources Code section 21099; (c) the City properly tiered its environmental review from the specific plan EIR; and (d) the City did not violate the Subdivision Map Act. CRRD timely appealed.

The Appellate Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “[a]esthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court concluded that parking impacts need not be addressed in the City’s environmental analysis because Section 21099 specifically exempted such analysis for infill sites within a transit priority area. The Court established that the Project was within a transit priority area and that the City had no obligation to analyze parking impacts caused by the Project.

The Court noted that the statutory intent of the bill was to address climate change and the state’s long term environmental goals and to build on prior statutes, including AB 32 and SB 375.

The Court then dismissed Petitioner’s claim that the MND improperly tiered from the specific plan EIR. Traffic impacts from a parking shortage related to an infill project, as discussed above, are exempt from CEQA review though were nevertheless adequately considered in the specific plan EIR.

Finally, the Court dismissed CRRD’s claim that the City’s findings relating to the consistency of the Project’s tentative map were not supported by substantial evidence. Government Code sections 66473.5 and 66474 require local agencies to make findings related to consistency with the specific plan and design of the project. Here, the Court determined the City adopted all necessary findings and CRRD failed to identify evidence in the record that the Project was incompatible with the specific plan.

Key Point:

Public Resources Code section 21099 exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting.

Where impacts are statutorily exempt, no further analysis is required in a tiered EIR.

Approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

First District Court of Appeal Reverses Upper Truckee River Restoration and Golf Course Reconfiguration Project, Citing Lack of Identified Preferred Alternative

Thursday, February 8th, 2018

In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal reversed the California Department of Parks and Recreation’s (“Department”) approval of the Upper Truckee River Restoration and Golf Course Reconfiguration Project (“Project”), finding that the failure to identify a preferred alternative in the Draft EIR compromised the integrity of the EIR process.

In 1984, the State of California acquired a 777-acre parcel encompassing a 2.2-mile stretch of the Upper Truckee River. The parcel was later divided into two units: the Washoe Meadows State Park (“State Park”) created to protect a wetland meadow and the Lake Valley State Recreation Area (“Recreation Area”) created to allow the continuing operation of an existing golf course.

Since the 1990s, erosion of the river bed of the Upper Truckee River has raised environmental concerns. The layout of the golf course, which altered the course of the river, apparently contributed to a deterioration of the habitat and water quality. The Project was proposed to reduce the discharge of sediment that diminishes Lake Tahoe’s clarity and at the same time to provide public recreation opportunities in the State Park and Recreation Area.

The Department issued a scoping notice including four alternative projects and identified one of the alternatives – river restoration with reconfiguration of the golf course – as the preferred alternative. In August 2010, the Department circulated a draft EIR (“DEIR”) for the project. Although the DEIR analyzed five very different alternative projects, including the four alternative projects identified in the scoping notice, it did not identify a preferred alternative. The DEIR stated that the lead agency would determine which alternative or combinations of features from multiple alternatives was the preferred alternative in the final EIR (“FEIR”).

In September 2011, the Department issued the FEIR, identifying a version of the project as the preferred alternative. After the Department approved the preferred alternative project in January 2012, the plaintiff sued. The trial court held in favor of the plaintiff.

On appeal, the court held that the DEIR’s failure to provide the public with an “accurate, stable and finite” project description prejudicially impaired the public’s right to participate in the CEQA process, citing County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185. Noting that a broad range of possible projects presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives, the court found that the presentation of five very different alternative projects in the DEIR without a stable project was an obstacle to informed public participation.

Key Point:

When preparing multiple project alternatives in the course of drafting a DEIR, it is imperative to identify a preferred alternative to prevent prejudicially impairing the public’s ability to participate in the CEQA process.

Second District Court of Appeal Upholds Conservation Alternatives, Even in Absence of Additional Conceptual Designs; Defers to Lead Agency in Presence of Substantial Evidence

Thursday, February 8th, 2018

In L.A. Conservancy v. City of W. Hollywood (2017) 18 Cal. App. 5th 1031, the Second District Court of Appeal affirmed the trial court’s decision upholding the adequacy of the environmental impact report (EIR) and supporting CEQA findings made by the City of West Hollywood (City) concerning approval of a mixed-use project on a three-acre “gateway” site in the City.

The Project, as proposed, required demolition of a building built in 1928 and remodeled in 1938, which was considered eligible for listing on the California Register of Historical Resources. The EIR acknowledged that demolition of the building constituted a significant and unavoidable impact.  As a result, the EIR included a project alternative that proposed redesigning the Project in order to preserve the historic building.  In approving the Project, the City rejected the preservation alternative, but required that portions of the historic building façade be incorporated into the Project design.

Plaintiff Los Angeles Conservancy (plaintiff) alleged that the City violated CEQA because the analysis of the preservation alternative was inadequate, the Final EIR failed to sufficiently respond to comments concerning preservation of the historic building, and evidence did not support the City’s findings that the preservation alternative was infeasible. The trial court denied the plaintiff’s petition. On appeal, the court affirmed.

First, the court held that the EIR’s analysis of the conservation alternative was detailed enough to permit informed decision making and public participation. The court rejected plaintiff’s argument that the City was required to prepare a “conceptual design” for the alternative.  The court noted that no legal authority required a conceptual design to be prepared for an alternative included in an EIR.

Second, the court found that comments on the draft EIR cited by the plaintiff did not raise new issues or disclose any analytical gap in the EIR’s analysis. The court noted that to respond to comments that merely expressed general Project objections and support for the preservation alternative, the City could properly refer the commenters back to discussion included in the draft EIR concerning the historic building on the project site.

Finally, the court stated that a court must uphold the lead agency’s findings concluding an alternative is infeasible if supported by substantial evidence. In undertaking this inquiry, “[a]n agency’s finding of infeasibility… is ‘entitled to great deference’ and ‘presumed correct.’” While the court noted that the plaintiff may have demonstrated that the City could have concluded the preservation alternative was not infeasible, other evidence in the record supported the City’s determination that the alternative was impractical or undesirable from a policy standpoint.  Thus, substantial evidence supported the City’s infeasibility findings.

Key Point:

Environmental project review documents providing detailed conservation alternatives to demolishing existing sites eligible for California Register of Historical Resources designation need not include additional conceptual designs to support these alternatives. Additionally, courts must uphold a lead agency’s finding concluding that an alternative is infeasible if supported by substantial evidence.

General Plan Update Size Limit Not Likely to Cause Urban Decay, Local Commercial Real Estate Agent Letter “Speculative,” Not Substantial Evidence of a Fair Argument

Thursday, January 4th, 2018

In Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1, the Fifth District Court of Appeal affirmed a trial court judgment maintaining a general plan amendment and accompanying EIR limiting commercial tenants to 40,000 square feet of space. A letter from a local commercial real estate agent predicting that the size cap would cause grocers to refuse to locate in the neighborhood commercial centers leading to a “downward spiral of physical deterioration” was insufficient to support a fair argument of an environmental impact.

On October 14, 2014, Visalia City Council approved a final EIR for the City’s general plan update establishing a 40,000 square foot cap on tenants in neighborhood commercial zones. Visalia Retail, LP brought suit claiming that the potential for urban decay was not adequately addressed in the EIR. The trial court denied the petition. Visalia Retail timely appealed.

Appellant claimed that the EIR was insufficient for failing to consider the potential for urban decay as large stores would be discouraged from establishing themselves in the neighborhood under the new restriction on square footage. The Court, unconvinced, found that CEQA is focused on significant environmental effects, not purely economic impacts. Relying on Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, the Court found CEQA environmental review of potential for urban decay is only appropriate where there is a potential for physical deterioration. Absent such a showing, CEQA is satisfied.

The primary evidence of urban decay submitted by Appellant was a letter prepared by a local commercial real estate agent who claimed the 40,000 square foot cap would discourage grocers from locating in neighborhood commercial centers, “which will cause vacancies, which in turn will result in urban decay.” The real estate agency offered the following support for these claims: (1) the real estate agent was personally unaware of any grocers willing to build new stores under 40,000 square feet; (2) a “typical” large grocer requires at least 50,000 square feet to profit at any one site; (3) a recent line of 10,000 – 20,000 square foot stores was unsuccessful; and (4) three Visalia stores under 40,000 square feet went out of business.

The Court found the letter to be speculative and not rising to the level of substantial evidence on which a fair argument of urban decay could be predicated. First, the limit of the real estate agent’s personal knowledge did not preclude the existence of stores that may be willing to come into the area or have an atypical store size. Further, the fact that other stores were unsuccessful, some a quarter the size of the cap, was not evidence that stores will fail in the City in the future, especially absent discussion or explanation of why they failed. The letter demonstrated speculative causation and failed to show that urban decay would likely result from the cap.

Appellants also claimed the cap made the City’s general plan internally inconsistent by discouraging development in neighborhood commercial sites where the general plan encourages such infill. The Court, presuming the general plan amendment was correct under established precedent, clarified that “just because the general plan prioritizes infill development, avoiding urban sprawl, does not mean all of its policies must encourage all types of infill development. General plans must balance various interests and the fact that one stated goal must yield to another does not mean the general plan is fatally inconsistent.” Essentially, the general plan may give preference to infill that has a 40,000 square foot cap and still be internally consistent.

The Court affirmed the trial court judgement.

Key Point:

Evidence of economic impacts alone is insufficient to support a claim that a project will result in urban decay; urban decay need only be addressed by an EIR where there is potential for physical deterioration.

A single comment letter, unsupported by facts, explanation, or critical analysis, does not raise to the level of “substantial evidence of a fair argument” required by CEQA.

Fourth District Court of Appeal Upholds Environmental Review of Master-Planned Community, Finds Project Changes After Tentative Approval Non-Actionable

Friday, September 15th, 2017

In Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, the Fourth District Court of Appeal affirmed the trial court and upheld the County’s approval of the Keller Crossing Specific Plan Project (“Project”), a master-planned community proposed by Hanna Marital Trust (“Trust”). The Project proposed residential, mixed-use, commercial and open space components on approximately 200 acres of undeveloped land in the French Valley region of the County. The Project included a general plan amendment, a zoning amendment, and a specific plan (Specific Plan 380).

After finding that the Project’s air quality and noise impacts could not be reduced below the level of significance after mitigation, the County approved the Project and the plaintiffs sued, asserting the County failed to comply with procedural, informational, and substantive provisions of CEQA. The trial court held in favor of the County and the Trust.

On appeal, the court rejected the plaintiff’s argument that the Trust and the County substantially modified the Project after the Board of Supervisors certified an EIR for the Project and approved the Project on December 18, 2012. The court explained that the administrative record clearly showed that the Board only tentatively approved the Project on December 18, 2012 and the Board approved the final version of the Project on November 5, 2013 after planning staff and the Trust had codified the plan changes discussed at the December 18, 2012 hearing.

Second, the court held that errors contained in the notice of determination did not justify unwinding the County’s approval. These errors were related to the description of the Project, such as the number of planning areas, the size of commercial office development, the number of residential units, and the acreage for residential, commercial, and mixed uses. Finding that much of the Project description in the notice was accurate, the court concluded the notice substantially complied with CEQA’s informational requirements by providing the public with the information it needed to weigh the environmental consequences of the County’s determination.

Third, the court rejected the plaintiff’s argument that the County failed to revise and recirculate the EIR after changes were made to Specific Plan 380. The plaintiff contended these changes might cause significant traffic, biological, and noise impacts. Finding these changes related to the details of the allocation and arrangement of uses within the Project site, the court held the EIR adequately addressed potential impacts that might result from the changes to the plan.

Fourth, the court rejected the plaintiff’s argument that the EIR failed to adequately analyze the air quality, noise, and traffic impacts from the mixed-use planning area in the Project. Specifically, the plaintiff contended that, although the EIR analyzed the impacts of development of a continuing care retirement community (“CCRC”) in the mixed-use planning area, the EIR failed to analyze the impact of higher-impact uses that could be allowed. Because the plan included a provision that uses other than a CCRC are allowed only if such uses are compatible with the adjacent planning areas and no additional environmental impacts would occur (based on review by the County) the court held that the County did not improperly defer environmental analysis of other uses.

Finally, the court held that the EIR adequately considered specific suggestions for mitigating the impact of the Project on air quality and noise levels. The court found that the Planning Department properly determined that an air quality mitigation measure proposed by the South Coast Air Quality Management District – requiring all off-road diesel-powered construction equipment greater than 50 horsepower to meet Tier 3 off-road emissions standards – was not feasible because the applicant provided evidence that such equipment would not be available at the time of construction. Further, the court held that the County was not required to respond to the plaintiff’s comments in which it proposed several noise mitigation measures because they were submitted more than 14 months after the comment period ended.

Key Point:

Changes made to a project do not constitute legally actionable substantial modifications when approvals made on the project prior to modification were tentative in nature.

Second District Court of Appeal Upholds Interlocutory Remand in Shopping Center Project Challenge, Clarifies General Plan Relationship with Projects

Monday, July 31st, 2017

In The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, the Sixth District Court of Appeal affirmed the trial court and upheld the County’s approval of a shopping center proposed by Omni Resources LLC (“Omni”), known as the Corral de Tierra Neighborhood Retail Village (“Project”).

The Project, proposed for construction on eleven acres of land located at the intersection of Highway 68 and Corral de Tierra Road in Monterey County, consists of ten retail buildings, including a grocery store, a two-story office building, and other retail spaces for a sporting goods store, bank, florist, mail store, post office branch, or a barber/beauty salon.

After the Board of Supervisors certified an EIR and approved the project in February 2012, the plaintiff sued the County, alleging failure to comply with CEQA. The trial court rejected the plaintiff’s claims of CEQA violations, but issued an order of interlocutory remand to allow the County to clarify whether the Project was consistent with the County’s general plan requirement that the Project have a long-term, sustainable water supply.

On remand, the Board adopted a resolution finding that the Project was consistent with the County’s general plan. In March 2015, the plaintiff filed its opening brief, contending that the County violated both CEQA and procedural due process during the remand proceedings. In 2015, the trial court again held for the County and Omni.

In the published portion of the opinion, the court rejected the plaintiff’s argument that the trial court erred in issuing an interlocutory remand. According to plaintiff, where an agency abused its discretion, the only allowable procedure, as provided by Public Resources Code (“PRC”) section 21168.9, was an order compelling compliance with CEQA. The court found that the mandate procedures in PRC section 21168.9 did not apply because the issue of whether a proposed project was consistent with a county’s general plan was not a CEQA issue. Citing Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499, the court concluded that the trial court’s choice to issue an interlocutory remand was eminently practical and well within the court’s inherent power. Because there was a single, discrete non-CEQA issue of general plan consistency that required clarification before the County’s approval of the Project could be upheld, the court concluded interlocutory remand was proper in this case.

The court rejected the plaintiff’s contention that the EIR failed to analyze whether the project was consistent with the County’s 2010 general plan. The court found that, although CEQA requires an analysis of general plan inconsistency, CEQA does not require an analysis of general plan consistency. The court also rejected the plaintiff’s argument that the County’s finding on interlocutory remand that the project was consistent with the County’s general plan and had a long-term sustainable water supply was not supported by substantial evidence.

Key Point:

The Sixth District Court of Appeal found that PRC section 21168.9 addresses CEQA issues, and is not applicable to an inquiry into whether or not a proposed project is consistent with a county’s general plan. The Court also held that interlocutory remand is proper where there is a single, discrete, non-CEQA issue of general plan consistency that the trial court determined required clarification before approval of a proposed project.

Proper CEQA Baseline for a Project Normally is the Conditions Existing When the Environmental Review of the Project Commences

Monday, July 24th, 2017

In Poet v. State Air Resources Board (2017) 12 Cal.App.5th 52, the Fifth Appellate District held that the Air Resources Board (ARB) violated several procedural requirements imposed by the California Environmental Quality Act (CEQA) and the California Administrative Procedure Act (APA) through noncompliance with a previous writ compelling the agency to address its NOx emissions from biodiesel in accordance with the California Global Warming Solutions Act of 2006 and its subsequent low carbon fuel standards (LCFS).

Upon the adoption of the California Global Warming Solutions Act of 2006, which sought to reduce greenhouse gases to 1990 levels by 2020, ARB adopted LCFS regulations. ARB sought to adhere to these LCFS regulations and reduce greenhouse gas emissions by promoting the use of biodiesel as a substitution or blend with petroleum-based diesel fuel. However, ARB failed to analyze potential increases in the emission of NOx resulting from increased biodiesel use, and the possibility of unmitigated adverse environmental consequences of promoting the alternative fuel. In the prior CEQA litigation, Poet I, the trial court issued a writ of mandate directing that:

“ARB shall address whether the project will have a significant adverse effect on the environment as a result of increased NOx emissions, make findings (supported by substantial evidence) regarding the potential adverse environmental effect of increased NOx emissions, and adopt mitigation measures in the event the environmental effects are found to be significant.”

In addressing the writ, ARB produced a set of findings and statement of overriding considerations and adopted the 2015 modified version of the LCFS regulations. The mandated environmental analysis found that while use of biodiesel may increase NOx emissions in some engines, depending on feedstock and blend level, that the total NOx emissions from biodiesel would decline from the 2014 baseline level under the proposed LCFS and alternative diesel fuel (ADF) standards. The study further concluded that the use of biodiesel was consistent with the proposed ADF and would not constitute a significant adverse impact to air quality.

In its environmental analysis, ARB adopted 2014 NOx emissions data as the baseline to conduct its study, citing that because biodiesel had only recently become incentivized in 2009 (and was used in blends with petroleum-based oils with much less frequency at that time), that biodiesel NOx emissions in 2009 were minimal and improper to use as the baseline. ARB defended its use of the 2014 data, citing that use of earlier data would be misleading, was not required by law, and was not required by the writ issued in Poet I.

In November 2015, ARB filed its return to the February 2014 writ. POET challenged the return arguing that ARB failed to consider the original LCFS regulation, and that it was inappropriate to use the 2014 baseline in its environmental analysis, which allegedly allowed ARB to avoid acknowledging 2010-2015 NOx emission increases caused by the original LCFS regulations. Additionally, POET criticized ARB for skewing analysis of the impact of NOx emissions by comparing predicted future emissions to a baseline made higher by the original LCFS regulations. Additionally, ARB objected to the return on the grounds that it violated the third paragraph of the writ by assuming that the effect of the original LCFS regulation was not an environmental impact attributable to the project as a whole.

In January 2016, the trial court filed an order discharging the 2014 writ, and found ARB satisfactorily responded to the writ. Upon appeal, the appellate court reversed this discharge, finding that while ARB addressed NOx emissions from biodiesel pursuant to the third paragraph of the 2014 writ, it misconstrued the term “project” and erroneously determined the original LCFS regulations were not part of the “project.”

The appellate court held that ARB’s misinterpretation of the term “project” was not objectively reasonable, that the remedial actions taken in response to the writ of mandate did not appear to be a sincere attempt to provide the public and decision makers with the information required by CEQA. Further, the court held that the baseline for a primary environmental analysis under CEQA must ordinarily be the actually existing physical conditions, rather than hypothetical conditions that could have existed under applicable permits and regulations, and held that the correct baseline would be the data from the environmental conditions before the 2009 LCFS regulations were instated.

The appellate court concluded that most of ARB’s corrective action in response to the February 2014 writ satisfied a subjective good faith standard, but the part of ARB’s corrective action addressing NOx emissions from biodiesel did not. Further, the court held that since 2009, ARB has been in violation of CEQA because its environmental disclosure documents have not provided the public with statutorily required information about the project’s NOx emissions. As a result, the court found that ARB’s corrective action taken in reliance on those environmental disclosure documents did not comply with CEQA.

Subsequently, the order discharging the 2014 peremptory writ of mandate was reversed. The superior court was directed to vacate the previous order and enter a new order stating that ARB’s return did not demonstrate compliance with the third paragraph of the peremptory writ of mandate.

In its discussion of remedial action, the appellate court severed the ADF regulations and the 2015 LCFS regulation, citing that the ADF regulations were not tainted by the continuing CEQA violations. Further, the court found that suspending the diesel provisions of the LCFS regulations would result in adverse environmental impacts due to the increased emissions of greenhouse gases, and elected to leave the LCFS regulations in place, deeming it would provide more protection for the environment than suspending their operation pending ARB’s compliance with CEQA; citing that the possibility that the use of biodiesel during the interim would produce more NOx emissions (than the petroleum-based diesel it replaces) does not justify nullifying all LCFS regulation while waiting for proper compliance with the CEQA.

Key Point:

Where a proposed project commences during CEQA litigation, if a writ of mandate is issued that directs the lead agency to conduct further CEQA review, then baseline conditions on remand normally should be treated as the environmental conditions before the original project was approved.