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Posts Tagged ‘lead agency’

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.

Unpublished Decision Upholds State Water Resources Control Board’s Decision to Act as the Lead Agency

Tuesday, May 8th, 2012

In an unpublished decision, Outfitter Properties v. State Water Resources Control Board (2012) 2012 Cal.App.Unpub.LEXIS 1986, the Third Appellate District Court (Court) upheld a trial court’s rejection of petitioner’s consolidated petition for writ of mandate, which sought to put a stop to the “Battle Creek Salmon and Steelhead Restoration Project” (Project). Several agencies, including the California Department of Fish and Game (DFG), State Water Resources Control Board (Board), and U.S. Fish and Wildlife Service (FWS) entered into an agreement with PG&E and signed a memorandum of understanding (MOU) outlining the Project, exploring alternatives, and settling on a five-dam proposal so as to restore the fish habitat while minimizing the loss of clean, renewable hydropower.

Petitioner presented seven claims under the California Environmental Quality Act (CEQA), all of which were rejected. The Court first declined to reach the issue of exhaustion because it determined it was more efficient to address the CEQA claims on their merits. In a footnote, however, the court recommended that the Board review its regulations to ensure parties have a clearly defined administrative remedy to address CEQA claims to leave no doubt that a petitioner must appeal a determination of the Executive Director to the Board. Second, the Court held that the Board, and not DFG, was properly designated as lead agency of the Project for CEQA purposes. While the Board does not have the primary authority to “carry out” the Project, it does have the primary authority to “approve of” the Project, and according to CEQA, the lead agency only needs to have the primary authority over one or the other. Moreover, the administrative record included an interagency agreement between DFG and the Board naming the Board as the lead agency. Third, the Court held that petitioner failed to show that changes to Project implementation caused any significant changes to the Project itself. The Court explained that even though the EIR was for a unified project, the later decision to develop the Project in phases did not substantially change the Project to the point where a supplemental EIR was required. Concerning petitioner’s fourth and fifth arguments, the Court found that the Board did not violate CEQA by failing to adopt a Statement of Overriding Considerations or by approving the Project before EIR was completed. The Court explained that the Board’s execution of the MOU was not a project approval pursuant to CEQA for two reasons: 1) it was conditioned on CEQA approval; 2) the EIR exhaustively discussed and considered alternatives, including no project. Because the Board had not yet approved the project pursuant to CEQA, the Board was not yet required to adopt a Statement of Overriding Considerations. Sixth, the Court explained that the Board as a whole did not need to certify the EIR, but could employ personnel necessary to exercise its duties as authorized by the Water Code. Thus, the certification of the EIR by the executive director alone was sufficient. And lastly, the Court held that DFG’s findings were adequate because the petitioner’s challenge simply repeated its unlawful project phasing argument.

Written By: Tina Thomas and Chris Butcher

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