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CEQA Updates

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

Posts Tagged ‘Specific Plan’


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.

Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review

Monday, July 16th, 2018

In Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, the First District Court of Appeal held that the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont (City) subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the City Council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six-acre lot (Project). HARB recommended that the Project be denied because it “would be incompatible in terms of siting, massing, materials, textures, and colors with existing development in the Niles [HOD].” Amidst critical comments, the City approved the Project with a mitigated negative declaration (MND). Protect Niles, a community action group, filed suit alleging the City improperly relied on the MND.

The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic and set aside the Project approval until an EIR was completed. Valley Oak timely appealed.

The Appellate Court first established that, despite Protect Niles’ claims to the contrary, the appeal was not moot. Valley Oak had already submitted a revised Project application and the City had published a draft EIR therefore “voluntarily complied” with CEQA. However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims.

The Court reiterated extensive precedent that CEQA must be interpreted to afford the fullest possible protection to the environment. Further, the Court held that an EIR is required where there is substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact exists where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Aesthetic impacts are context-specific. Here the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in observations of inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of a potential adverse aesthetic impact on the Niles HOD. The City’s reliance on a MND was improper.

The Court also criticized the traffic impact analysis and determined that substantial evidence of a fair argument required preparation of an EIR. The City had conducted a professional traffic study concluding the impacts would fall below the City’s threshold of significance. Despite this, the Court found the study was shortsighted for presuming that drivers follow the speed limit and criticized the City for failing to implement the study’s mitigation measure recommending a left-turn pocket lane. The record contained critical comments by residents, City officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument that the Project will have significant adverse traffic impacts.

The Court affirmed, directing the City to prepare an EIR if it were to go through with the original Project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.

Private Attorney General Doctrine Attorney’s Fees Proper For Party Successful in Invalidating Specific Plan Variances

Thursday, May 3rd, 2018

In La Mirada Neighborhood Association v. City of Los Angeles (2018) 22 Cal.App.5th 1149, the Second District Court of Appeal held that attorneys’ fees were properly awarded per California Code of Civil Procedure section 1021.5 (Section 1021.5) where the challengers were successful in conferring a significant benefit in the public interest—invalidating six of eight specific plan variances approved for a single project.

Under Section 1021.5, a trial court, at its discretion, may award attorneys’ fees to a successful party that acts as the catalyst that motivates a public agency to alter its behavior. A successful party confers a significant benefit on the general public if it enforces an important right affecting the public interest, and that enforcement benefits a large number of individuals. Further, a successful party is not precluded from seeking attorneys’ fees if, after obtaining a judgment that a project violates the zoning laws then in existence, a city later changes the zoning laws.

The City of Los Angeles (City) approved a Target Superstore Project, including eight variances from the applicable specific plan. These variances excused the Project from the specific plan’s height restrictions, many design element requirements, parking space limits, delivery time restrictions, and home delivery requirements. La Mirada Neighborhood Association (La Mirada), a community association, filed suit.

The trial court partially granted and partially denied La Mirada’s writ petition; six of the eight special plan variances were found invalid because they were not supported by substantial evidence. Only the parking variance and home delivery variance were upheld. The judgment also authorized La Mirada to seek attorneys’ fees. La Mirada moved for attorneys’ fees pursuant to Section 1021.5, the “private attorney general doctrine.” The trial court granted $793,817.50 to La Mirada for success in litigating the matter and conferring a significant benefit on the City’s residents. Target and the City appealed this award.

The Appellate Court opined that, while generally parties pay their own attorneys’ fees, Section 1021.5 is an exception to this rule to encourage parties to “pursue meritorious public interest litigation vindicating important rights and benefitting a broad swath of citizens.” Therefore, a party recovering attorneys’ fees must establish “(1) it is a successful party in an action, (2) the action has resulted in the enforcement of an important right affecting the public interest, (3) the action has conferred a significant benefit on the general public or a large class of persons, and (4) an award of attorney fees is appropriate in light of the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity.”

The Court first established that La Mirada is a “successful party.” Under Section 1021.5, a successful party is one that “achieves its objectives.” Contrary to Target’s claim, a party need not receive a final judgement in a case, need not be successful on all claims, and need not personally benefit from a judgement. Instead, the Court stated, the definition is broad and measured by “the impact of the action.” Essentially, a party is successful where the lawsuit serves as a “catalyst that motivate[s] the defendant to alter its behavior.” Here, La Mirada was successful where six of the eight variances were set aside and the lawsuit motivated the City to amend the special plan to allow the Target Superstore. The lawsuit “directly prompt[ed] a legislative fix;” La Miranda was a successful party.

The Court then established that La Mirada conferred a significant benefit on the public in requiring the City to adhere to the law. This determination is a function of “(1) the significance of the benefit, and (2) the size of the class receiving [the] benefit.” The Court stated that “a benefit need not be monetary to be significant.” Rather, a party may secure a nonpecuniary benefit to the public, including the benefit of the proper enforcement of the law, if it can “show that the law being enforced furthers a significant policy.” Here, the Court found that the standard was clearly met because La Mirada’s lawsuit resulted in (1) the City adhering to legal requirements for granting variances, which the California Supreme Court has consistently recognized the importance of preserving the integrity of zoning laws as an important public policy, and (2) benefited a large group of individuals, as all residents of the City “benefit from the trial court’s ruling that holds the City Council’s zoning decisions to the letter and spirit of the Municipal Code.”

Target claimed that La Mirada was not successful because the validity of the Project under the subsequently-amended specific plan is still pending. Target claimed that La Mirada’s objective was to stop the Project from ever being built and that the City may still prevail in obtaining a ruling that the Project is valid under the new zoning law. The Court found that this argument was both factually inaccurate and legally untenable. First, the Court explained that La Mirada’s stated goal in filing the writ petition was to set aside and invalidate the eight variances granted by the City and to enjoin further construction of the Project contingent on the validity of the eight variances. The Court stated that “[a]t no point did [La Mirada] allege that their writ petitions were aimed at stopping the Project forevermore.”

Secondly, the Court explained that success under Section 1021.5 “does not require a showing that the successful party put the entire dispute to rest for once and all.” In fact, the code authorizes “interim attorney fee awards” for successes conferring significant benefits before a matter is finalized. In this case, the Court explained that, since the trial court’s judgment that the specific plan variances were invalid was left intact after the first appeal, the judgment is more final than the typical interim ruling. It can be considered “interim only against the backdrop of the broader litigation between the parties, which continues only because the City amended the zoning laws and thereby promoted a new round of petitions challenging the Project” during this appeal. Further, the Court explained, a Court may only grant writ relief after applying the law in existence at the time of its decision. Target’s argument, on the other hand, would require parties to succeed under the law in existence at time and “as it might be amended in the future.” The Court, however, declined “to define success as requiring one to achieve the impossible.”

The Court held the attorneys’ fee award to La Mirada did not demonstrate an abuse of the trial court’s discretion.

Key Point:

A party is “successful” for the purposes of being granted an award of attorney’s fees under the private attorney general doctrine where it achieves at least a portion of the stated goals of bringing the petition.

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.