January 5th, 2017

By: Chris Butcher

In East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, Plaintiffs alleged the City of Sacramento failed to comply with CEQA on a number of grounds in approving a 328-unit residential development, along with a community recreation center and three parks, on an approximately 49-acre infill development site in East Sacramento (“Project”). The trial court denied the petition and upheld the adequacy of the City’s EIR. The Third Appellate District upheld the trial court ruling and rejected arguments regarding the City’s findings of consistency with its General Plan, as well as challenges to the EIR’s project description and analysis of health risks and methane migration, but reversed the trial court on a single issue related to the traffic significance threshold.

With respect to the traffic analysis, the EIR stated that the significance criteria used to evaluate the project impacts were based on, among other things, the thresholds adopted by the City in its General Plan. The EIR found that the project would not have a significant traffic impact on three intersections that would operate at level of service (LOS) F under cumulative plus project conditions because the General Plan deemed LOS F conditions to be acceptable in the core area of the City in an effort to encourage infill projects. The court held that compliance with a general plan’s traffic mobility policy alone did not establish that the project would not result in significant impacts because the EIR did not explain why increases in traffic were not significant impacts, citing Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099. In reaching its holding, the court seemingly applied the “fair argument” standard of review, ignoring longstanding CEQA precedent for affording deference to an agency’s selection of significance thresholds. The Court rejected a petition for rehearing on grounds that the Court applied the incorrect standard of review.

Next, the court rejected the plaintiff’s argument that the EIR should have analyzed a development agreement associated with the project. The court explained that the EIR must only make reference to the development agreement to alert interested individuals. The court also held that the EIR was not required to analyze the construction of a vehicular tunnel at Alhambra Boulevard, which would provide additional access to the project site, because the City had merely agreed to study its feasibility without approving it.

Finally, the court held that the EIR was not required to analyze the significant health risks to future residents of the project that could potentially result due to the project site’s proximity to a freeway, railroad trucks, and a former landfill, citing California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369. The court provided that what must be analyzed under CEQA is “a project’s potentially significant exacerbating effects on existing environmental hazards – effects that arise because the project brings ‘development and people into the area affected.’”

Key Point:

SB 743 (Steinberg, 2013) initiated a process to change the way that transportation impacts are analyzed under CEQA. Specifically, SB 743 requires the Governor’s Office of Planning and Research (OPR) to amend the CEQA Guidelines to provide an alternative to LOS for evaluating transportation impacts. Some local agencies, such as the City of Sacramento, have adopted policies that advance these objectives by shifting the focus from LOS to other metrics for evaluating traffic impacts in more densely populated areas within their jurisdictions. But, LOS remains the most common and readily understood way of discussing traffic impacts in CEQA documents. This decision is evidence that the transition to other methods of evaluating traffic impacts, although they may advance the State’s smart growth objectives, nevertheless present legal risks until such alternatives, and associated environmental benefits, are more widely understood.