THIRD DISTRICT AFFIRMS FOLSOM’S USE OF A MITIGATED NEGATIVE DECLARATION

November 4th, 2015

By: Thomas Law Group



On October 29, 2015, in Save the American River Association v. City of Folsom, 2015 Cal. App. Unpub. LEXIS 7827, the Third District Court of Appeals affirmed the City of Folsom’s use of a mitigated negative declaration for a project to develop dedicated ADA paths to the waterfront of Lake Natoma; create scenic overlooks; provide landing access for kayaks; remove invasive species; and re-establish native plants.  In an unpublished opinion, the court held that petitioner Save the American River Association (“SARA”) was unable to point to substantial evidence that gave rise to a fair argument that the project was inconsistent with the Folsom Lake State Recreation Area & Folsom Powerhouse State Historic Park General Plan/Resource Management Plan (“General Plan”) and the American River Parkway Plan (“Parkway Plan”).  The decision upholds the trial court’s order dismissing SARA’s petition for a writ of mandate.

The parties and the court agreed that the two plans were adopted, at least in part, for the purpose of avoiding or mitigating an environmental effect—the development and use of the Lake Natoma Area of the American River Parkway. The General Plan classified the project area with a land use designation of low intensity recreation/conservation.   SARA argued that the project’s construction of paved trails, a paved stairway, and non-motorized boating facilities conflicted with this land use designation by changing the area from mostly natural to more developed.

While the court did not disagree that paved trails are “more developed” than unpaved trails, it rejected SARA’s argument due to the lack of citations to substantial evidence in the administrative record. The court disregarded petitioner’s evidence that the City intended to increase use of the area in order to realize an economic benefit in the nearby Folsom Historic District because the City’s supposed intent was not substantial evidence but mere speculation.  Petitioner’s argument that the project conflicted with the Parkway Plan was rejected for the same reason.

Key Point:

Although the fair argument standard is a “low threshold” test for requiring the preparation of an EIR, petitioner groups challenging a negative declaration on the basis of plan consistency must still cite to substantial evidence in the record that supports a fair argument that the proposed project conflicts with an applicable plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect.