Thomas Law Blog

CEQA Updates

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

Posts Tagged ‘mitigation’


Supreme Court Holds Inadequate Effort to Explain Nature and Magnitude of Significant Environmental Effect Subject to De Novo Review, Substitution Clause and Sufficient Guidance Make Mitigation Measures Not Vague

Friday, December 28th, 2018

In Sierra Club v. County of Fresno (2018) 2018 Cal.LEXIS 9831, the California Supreme Court held that, where the description of an environmental impact “lacks analysis or omits the magnitude of the [significant] impact,” the reviewing court applies the de novo standard of review.  The substantial evidence standard of review is reserved for wholly factual questions; where a question presented is both legal and factual, the issue shall be reviewed de novo. The Court also found that a substitution clause in a mitigation measure did not constitute deferred mitigation, a mitigation measure that only partially reduced a significant impact did not violate CEQA, and mitigation measures involving HVAC installation and tree selection were adequately enforceable.

The proposed project includes a specific plan and specific plan update covering 942-acres that together contemplate the construction of about 2,500 single and multifamily homes, commercial and recreation areas, and dedicated open space (Project) into a master-planned “pedestrian friendly” community near the unincorporated area of Friant in northern Fresno County (County). The County adopted Project alternative 3 (Northeast Development Configuration, the “environmentally superior alternative”), certified the EIR, and approved the Project.  At the same time, the County adopted a mitigation monitoring program, which noted compliance would be enforced through subsequent conditions on future discretionary actions, including use permits and tentative subdivision maps.

The Sierra Club, Revive San Joaquin, and League of Women Voters of Fresno filed suit alleging that the project approval violated CEQA. The trial court denied the petition for writ of mandate and noted that “it may not exercise its independent judgement on the evidence, but must determine only whether the act or decision is supported by substantial evidence.” Sierra Club timely appealed the decision pertinent to the air quality impacts and certain mitigation measures.

In May 2014, the Fifth District Court of Appeal held that the EIR was inadequate because it failed to include an analysis that “correlated the [P]roject’s emissions of air pollutants to its impact on human health,” only provided air quality impact mitigation measures that were “vague, unenforceable, and lack[ed] specific performance criteria,” and failed to support the claim that the mitigation measures would “substantially” reduce the Project’s significant air quality impacts. The Appellate Court reversed the trial court judgement on those grounds only and directed the preparation of a revised EIR. Real Party, Friant Ranch LP, appealed the Appellate Court decision.

The Supreme Court granted review on the issues of the air quality impact findings and conclusions in the EIR as well as the adequacy of certain mitigation measures.

The Court held that an EIR must (1) include “sufficient detail” to enable readers to understand and to “consider meaningfully” the issues that the proposed project raises, and, (2) make a “reasonable effort to substantively connect” the Project’s significant air quality impacts to likely health consequences.

Further, the Court held a lead agency has not impermissibly deferred mitigation measures where it leaves open the possibility of employing measures consistent with evolving technology nor are such measures impermissibly vague where it can be demonstrated in “good faith” that the measures will be at least partially effective.

The Court first recognized the familiar distinction between the standard of judicial review applicable to claims that the agency failed to proceed in the manner CEQA provides as compared to claims that the agency reached factual conclusions unsupported by substantial evidence: “[w]hile we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [ ] we accord greater deference to the agency’s substantive factual conclusions.” The Court then recognized that “the question whether an agency has followed proper procedures is not always so clear” especially when the issue is “whether the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.’”

Relying heavily on Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights I), the Court found that the standard of review for the adequacy of an EIR’s discussion of certain impacts is subject to de novo review where “a description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of the impact is not a substantial evidence question.”

The Court provided several examples and prior decisions addressing procedural issues subject to the de novo standard of review:

  • Did the agency provide sufficient notice and opportunity to comment on a draft EIR? (Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482, 491-493; Pub. Resources Code, § 21092; Guidelines, § 15087.)
  • Did the agency omit the required discussion of alternatives or consider a reasonable range of alternatives? (Guidelines, § 15126.6; Laurel Heights I.)
  • Did the agency fail to reasonably describe the nature and magnitude of a project’s significant environmental effect?  (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371; Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 514–515.)
  • Did the agency omit material necessary to informed decision making (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712; East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 174)
  • Did the agency respond to comments? (Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1021–1023.)

The Court contrasted these with factual issues like the decision to use a particular methodology and reject another.

Similar to the facts in Laurel Heights I, the Court found that, while the EIR’s conclusion as to the impact may have been correct, the analysis and discussion of the significant impact was deficient as an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The core purpose of an EIR is to inform the public and decision-making body, regardless of the conclusion drawn. In certifying the EIR, the County failed to disclose the analytic route that it took in making its decision relating to the Project’s significant air quality impact. This was a CEQA procedural issue as the Court determined it resulted in noncompliance with CEQA’s information disclosure provisions. Thus, the Court held, de novo review was proper.  

Applying the de novo standard of review to the EIR’s analysis of the Project’s significant air quality impacts, the Court found that the EIR’s discussion failed to correlate health impacts with the Project’s air emissions as required by CEQA Guidelines section 15126.2. It was insufficient that the EIR provided a “general discussion of adverse health effects associated with certain Project-related pollutants,” recognized “Fresno County suffers from the ‘most severe’ ozone problems,” and acknowledged that a more detailed analysis on health impacts was “not possible at this early planning phase.” Critically, the EIR failed to indicate the anticipated ozone emission levels as a result of the Project. The analysis “[was] not meaningful …because the reader ha[d] no idea how much ozone [would] be produced.”  The Court held that the EIR’s discussion of the Project’s significant air quality impacts was deficient; it must give a sense of the “nature and magnitude of the health and safety problems…resulting from the Project as required by the CEQA Guidelines … [or] explain why it was not feasible to provide an analysis.”

The Court found that briefs from the County, the Real Party, and amici curiae clarifying the connection between air emissions information in the EIR and health impacts information in the EIR were “irrelevant.” Relying on Vineyard, the Court held that the question is not whether the Project’s impacts can be clearly explained, but whether they were at the time that the Project was approved. The County’s plan to require Health Risk Assessments as part of future development projects approved within the specific plan area was also irrelevant where the issue was the sufficiency of the EIR’s discussion of the Project’s significant air quality impacts, not the sufficiency of future studies.

Turning to the Project’s mitigation measures, the Court found that the EIR was incorrect to claim a mitigation measure would “substantially reduce air quality impacts” without factual support.

The Court next held that a mitigation measure is not deficient where it leaves open the opportunity to add or substitute other measures when they become technologically available. The Court established that this kind of substitution clause “should be encouraged….and [was] not an impermissible deferral.”

The Court also held that Project mitigation measures relating to HVAC systems and tree-planting were not impermissibly vague. The first identified the anticipated cost for a HVAC catalyst that was considered feasible and detailed the HVAC brand or equivalent that could be installed. The latter required tree varieties be planted that would shade 25% within 20 years of planting, which “provide[d] sufficient guidance for selecting appropriate shade trees.” Contrary to the Appellate Court’s holding, it was of no issue that the burden of enforcement of mitigation measures was on the County as the EIR and Specific Plan was not impermissibly vague on the means of enforcement.

Finally, the Court held that a lead agency does not violate CEQA for approving a project though the environmental impacts are not reduced to less than significant levels. CEQA is satisfied where a project’s mitigation measures only partially reduced significant impacts “as long as the public is able to identify any adverse health impacts clearly, and the EIR’s discussion of those impacts includes relevant specifics about the environmental changes attributable to the project.” In such a situation, unmitigated effects must be outweighed by the project’s benefits—whether economic, social, technological, or other, as documented in a statement of overriding considerations. 

Key Point:

“[A] sufficient discussion of significant impacts requires not merely a determination of whether an impact is significant, but some effort to explain the nature and magnitude of the impact.” The determination whether an EIR achieves its informational purpose by providing such details is subject to de novo review.

Argument and Speculation that a Project will Violate Local Code Requirements is Insufficient to Support a Fair Argument that a Project may have a Potentially Significant Impact on the Environment

Friday, August 10th, 2018

A topigrahical map of riverside, California. (Ryan Niemi /Sunset Dynamics)

In Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, the Fourth District Court of Appeal denied a neighborhood group’s petition to set aside approval of a small housing development where there was no substantial evidence supporting a fair argument of a violation of the land use ordinances and no evidence of an abuse of discretion. The City of Riverside (City) acted within the law in approving a six single-family home development, despite the Friends of Riverside’s Hills’ (FRH) claims to the contrary.

Before this controversy arose, the City established a residential conservation zone to protect the hills, canyons, and unique natural views of the area. Within the residential zone, planned residential developments (PRD) projects meeting certain criteria were permitted to deviate from conventional subdivisions requirements. A PRD applicant could also achieve a “density bonus” if the map and conditions clustered residences in the less steep portions of the site, appointed a conservation group to maintain open space areas, and achieved at least six of eleven “superior design elements” that promote environmentally-conscious design.

In November 2013, Real Parties in Interest Carlton and Raye Lofgren (Lofgrens) submitted plans for a PRD with a density bonus to subdivide a 12-acre site into seven lots and a designated open space. The Planning Commission recommended the City approve the plans with a negative declaration. The City issued a negative declaration (ND) and approved the plans with a revised tract map showing the site as 11.6 acres with six lots clustered on the less steep areas of the property and a designated open space.

FRH brought suit challenging the City’s approval. FRH alleged land use violations because the plan failed to properly cluster the residences and failed to seek a variance for each lot. The trial court denied the petition in its entirety. FRH timely appealed.

The Appellate Court held in favor of the City, finding there were no land use violations and no substantial evidence supporting a fair argument of significant environmental impacts. Such evidence, the Court elaborated, must be founded in facts in the administrative record, not speculation or theory. Here, FRH’s claim that the homes would be unlawfully placed in high grade portions of each lot was merely speculative.  The tract map approved by the City showed division of the site into lots but not where the residence would be on each lot. FRH’s claim that the Lofgrens would not build each residence in accordance with the municipal code was therefore speculative, absent any additional evidence.

FRH claimed the Lofgrens would not comply with the additional conditions required to achieve the “density bonus.” The Court found this claim also to be speculative where there was no evidence the Lofgrens would not comply with the conditions. Indeed, the Court pointed out that to hold differently would absurdly necessitate any project with future conditions be required to complete an EIR. In short, the potential to violate the municipal code is not grounds to mandate the preparation of an EIR.

The Court went on to rule that FRH was incorrect to draw similarities between this case and Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 as the administrative record in that case had “ample” evidence the project violated the city’s land use provisions. Here, the administrative record lacked any similar evidence. As a result, FRH’s claims were speculative and thus rejected.

The Court then turned to FRH’s claim that the City abused its discretion and violated its own municipal code. The Lofgren’s engineer submitted numerous reports throughout the approval process to support the City’s decision to approve the Project. Applying a deferential standard of review, the City was entitled to rely on evidence submitted by the Lofgrens and the Court found substantial evidence supported the City’s determination.

The Court found that there was also no abuse of discretion where the City allowed the Lofgrens to choose which of the eleven design elements to incorporate into the plans. Per the municipal code, this is to be determined by the applicant upon issuance of building permits and the Lofgrens need not have chosen the elements yet because “it is difficult, if not impossible, to know which building or landscaping elements are feasible until later phases of the project like grading or construction.” Despite this, the Lofgrens had already demonstrated in the plans which designs they were to utilize, a fact FRH failed to notice.

The Court affirmed the trial court holding; the negative declaration was sufficient.

Key Point:

Where a challenger alleges violations of local code as a basis for asserting a fair argument that a project may have a significant environmental impact, the challenger has the burden to both demonstrate a violation or conflict with the local code exists and that the local code provisions at issue were adopted for the purpose of avoiding or mitigating an environmental effect.

Mitigation Fee Programs Must Be Analyzed In An EIR Prior to Adoption

Tuesday, January 24th, 2012

Center for Sierra Nevada Conservation et al. v. County of El Dorado (January 20, 2012) 202 Cal. App.4th 1156 (Superior Court Case No. PC20080336)

El Dorado County adopted an oak woodland management plan (Management Plan) and mitigation fee program (Fee Program) without first certifying an EIR.  Instead, the County issued a negative declaration that allegedly tiered from the County’s previously approved General Plan and Program EIR.  The General Plan and Program EIR allowed developers of more than 10 acres to conserve oak woodlands on site at a 1:1 ratio as a mitigation “Option A” and also considered mitigation under an “Option B”, which would allow developers to pay a mitigation fee under a yet-to-be-adopted oak woodland management plan instead of providing on-site mitigation.  Importantly, however, neither the General Plan nor the Program EIR specified the fee rate for Option B, or provided how the collected fees would actually be used to mitigate the impact to oak woodlands.

Petitioners challenged the County’s adoption of the Management Plan and Fee Program and related negative declaration.  The County argued that the Management Plan and Fee Program were within the scope of the General Pan and the impacts were adequately addressed in the General Plan Program EIR.  While the trial court agreed with the County, the Third District Court of Appeal did not.  Siding with petitioners, the court held that the County was required to prepare a tiered EIR before its adoption of the Management Plan and implementation of the Fee Program.  The court acknowledged that the Program EIR anticipated development of a Management Plan and Fee Program, however the prior EIR did not provide adequate environmental analysis to conclude the Management Plan and Fee Program would have no greater adverse environmental effects than analyzed and anticipated in the Program EIR.  Specifically, the Program EIR did not set the fee rate, define how the acreage subject to the fee should be measured (e.g., measuring tree canopy by tree canopy cover or by total area including the space between canopies), or explain how the off-site oak woodland losses would be mitigated by the fees.  Each of these factors is critical in determining whether the Management Plan and Fee Program provide effective litigation.

The County also argued that any EIR analysis for the Management Plan could be postponed until formulation of the Plan had been completed.  The court disagreed, noting that “approval” of a project under CEQA occurs when a public agency’s decision commits it to a definite course of action.  Here, the County’s approval of the Management Plan had the effect of allowing developers to pay a fee under the Option B Fee Program instead of preserving a substantial number of trees on-site under Option A.  Thus, consistent with longstanding case law, the County was required to conduct an EIR review before approving the Management Plan and Fee Program.

Lastly, the court agreed with Petitioners’ argument that the County violated CEQA by issuing a negative declaration because the administrative record supported a “fair argument” that the Management plan and Fee Program would have a potentially significant effect on the environment and thus an EIR was required to consider the effects on the environment.   While the County did not assert that the Management Plan and Fee Program would have no environmental impacts, as discussed above it argued that the Program EIR already took any significant adverse effects into account.  This argument was undermined by the project’s Initial Study and other evidence in the record acknowledging potentially significant effects on the environment.  The fact that the Program EIR contemplated adverse impacts from development under the General Plan does not remove the need for a tiered EIR for the Management Plan and Fee Program.  Indeed, the court noted that a Program EIR is distinct from a Project EIR which is prepared for a specific project and provides site-specific analysis.  In this case, the court held that the Management Plan and Fee Program constituted the specific project at issue and required a tiered EIR to examine its potential environmental impacts.

The court’s holding in this case is consistent with California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, which held that an EIR was required to properly review a fee program.

Key Points:

An EIR must inform the formulation and approval of a mitigation fee program.  To avoid the need for a project level EIR for a mitigation fee program, a public agency proposing to adopt a land use plan could develop within that plan the specific terms of any contemplated fee programs and analyze potential environmental impacts of those fee programs.  This approach would allow the public agency to analyze the fee program within the EIR for the plan and avoid future environmental review.

This decision also adds to recent case law addressing the fair argument standard.  In light of recent decisions, we note that it is becoming nearly impossible for a negative declaration to withstand challenge if any evidence is produced regarding the potential for environmental impacts.

Written By: Tina Thomas and Ashle Crocker

___________
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.