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CEQA Updates

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

Posts Tagged ‘planned residential developments’


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.

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.