Tag: CEQA

THIRD DISTRICT HOLDS CAPITOL BUILDING ANNEX EIR FAILED TO ADEQUATELY DESCRIBE ANNEX DESIGN, ANALYZE IMPACTS TO HISTORIC CAPITOL BUILDING, AND CONSIDER REASONABLE PROJECT ALTERNATIVES

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In Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, the Third District Court of Appeal held that an EIR prepared by the Department of General Services and the Joint Committee on Rules of the California State Senate and Assembly (collectively, DGS) for the demolition and replacement of the State Capitol Building Annex in Sacramento (project) did not comply with CEQA. In particular, the court found that the EIR’s project description, analyses of aesthetics and historical resources, and analysis of alternatives were deficient.

Background

The Legislature enacted the State Capitol Building Annex Act of 2016 authorizing renovation or reconstruction of the Annex and streamlining CEQA review for the project. Pursuant to the Act, the project sought to demolish the existing Annex and construct a new Annex, underground visitor center, and underground parking structure.

In the draft EIR, DGS explained that the project would follow an accelerated design and construction process in which the initial project concept would evolve and become more refined as the process moved forward. After circulating the draft EIR for public comment, DGS redesigned the visitor center and recirculated the draft EIR.

After recirculating the draft EIR, DGS continued to develop and modify the project design. The final EIR included more modifications from the draft EIR. It changed the location and capacity of the underground parking garage and clarified the project’s impacts on trees and landscaping. Additionally, for the first time, the final EIR disclosed the exterior design of the new Annex. DGS concluded that none of the modifications in the final EIR constituted significant new information that would require recirculation, certified the EIR, and approved the modified project.

Save Our Capitol! and Save the Capitol, Save the Trees filed petitions for writ of mandate challenging the EIR’s compliance with CEQA. The trial court denied the petitions, and the cases were consolidated on appeal.

Court of Appeal’s Decision

Project Description

While the court rejected most of petitioner’s arguments, it agreed that DGS’s failure to disclose the exterior design of the Annex before preparing the final EIR rendered the project description inadequate.

The key inquiry in the court’s analysis was whether the changes in the project description “thwarted the public’s ability to participate in the process and comment meaningfully on the EIR.” The court emphasized that the EIR was required to consider the project’s aesthetic impacts on an important historical resource, the Capitol Building, and reasoned that without the description of the Annex design, neither the draft EIR nor the public could consider those impacts before the final EIR was prepared.

The court explained that while the draft EIR stated that the new Annex would be aesthetically “consistent” with the Capitol Building and would create a “one-building” feel, the final EIR described the Annex as aesthetically “compatible” with the Capitol Building and clarified that the “one-building” feel referred to the interior consistencies between the Annex and the Capitol Building. The court also found that the glass exterior, proposed in the final EIR design, was highly relevant to the analysis of impacts, including impacts to the historical Annex building.  The court concluded that the discrepancies between the draft and final EIR, and the important information disclosed in the final EIR, could have misled the public about the design and hindered the opportunity for meaningful public comment about the project’s impacts. Thus, the court determined, the EIR’s description of the Annex’s exterior design deprived the public of an opportunity to comment on environmental impacts and did not satisfy CEQA’s project description requirements.

Analysis of Impacts

The court found that substantial evidence supported much of the EIR’s analysis of impacts; however, it agreed with petitioners that the EIR did not adequately analyze the project’s impacts on historical resources and aesthetics.

First, the court found that the EIR’s analysis of impacts to historical resources was deficient. Because the exterior design of the Annex was never circulated for public comment, DGS did not receive public comments concerning the project’s aesthetic impacts on the historic Capitol Building. Thus, the final EIR did not include written responses to concerns about these impacts. Recognizing that public comments and responses are an essential part of an EIR’s analysis, the court concluded that the analysis of impacts to historical resources did not comply with CEQA.

Second, the court found that the EIR did not adequately analyze the project’s impacts on the scenic vista of the Capitol Building from the west. While the court acknowledged that “CEQA does not expressly require visual simulations,” it nevertheless concluded that the EIR was required to include a visual representation or rendering of the east-facing vista. The court reasoned that the importance of the view of the west façade of the Capitol “[could] not be overstated,” given the significance of the Capitol’s historic role as “the seat of state government” and the Legislature’s development of various programs for the beautification of the area. The court concluded that, without a visual depiction, the EIR did not allow either DGS or the public to meaningfully consider the project’s intrusion on the scenic vista. Thus, the court held, the EIR’s analysis of this aesthetic impact did not comply with CEQA.

Analysis of Alternatives

The court explained that CEQA requires an EIR to describe a range of reasonable alternatives that would both attain most of the project’s objectives and avoid or lessen the project’s environmental impacts. It concluded that DGS failed to meet this standard by selecting clearly inferior alternatives that would be easily eliminated—either by failing to obtain the project objectives or causing a greater environmental impact than the project.

Additionally, while the court concluded that DGS meaningfully considered and rejected alternatives involving Annex renovation instead of demolition, it disagreed with the EIR’s conclusion that a proposed alternative would not lessen any significant impacts and found the alternative would also meet the project’s objectives. Thus, because it deprived the public of the opportunity to participate in the evaluation of reasonable alternatives, the court concluded that the omission of this alternative violated CEQA.

Remedy

On rehearing, the court concluded that the deficient portions of the EIR were severable from the portions of the EIR that addressed the impacts of Annex demolition and the Annex renovation alternatives. Thus, recognizing that any new exterior Annex design will require demolition of the existing Annex, the court concluded that demolition activities could proceed during remand. However, the court prohibited DGS from proceeding with any project activities that would prejudice DGS’s ability to revise the new Annex design based on new analysis.

Accordingly, the court directed the trial court to issue a peremptory writ of mandate directing DGS to partially decertify the EIR and revise and recirculate the deficient portions before recertifying.

Concurring and Dissenting Opinion

Justice Mauro filed a separate opinion concurring with the majority, but dissenting with respect to the conclusion that the EIR did not adequately analyze the project’s aesthetic impacts. The dissent concluded that CEQA did not require the EIR to include additional visual renderings of the project’s impacts on the view of the Capitol Building from the west.

The dissent noted that the EIR discussed the extent to which the new structures west of the Capitol Building would obstruct the view. Additionally, the dissent pointed to visual depictions of the proposed structures from above and cross-sections of the proposed structures from the south of the project site contained in the EIR. The dissent emphasized that the manner of discussion of the project’s aesthetic impacts was left to DGS’s discretion. While DGS could have provided more or different details about the impact, the dissent concluded that the impact discussion and visual schematics, considered together, sufficiently notified the public and decisionmakers about the extent of the aesthetic impact to the east-facing view.

By Louisa I. Rogers

FIRST DISTRICT UPHOLDS LESS THAN SIGNIFICANT IMPACT DETERMINATION FOR BIOLOGICAL RESOURCES BASED ON SURVEY THAT PREDATES THE NOP, AND ON PUBLIC SAFETY BASED ON CITY STAFF EXPERTISE

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In Save North Petaluma River and Wetlands v. City of Petaluma (2022), 86 Cal.App.5th 207, the First District Court of Appeal upheld an EIR’s analysis of an apartment complex’s impacts on biological resources and public safety. The court concluded that the EIR’s reliance on a special status species survey conducted several years before the NOP was issued, as well as review of more recent databases, was sufficient to support its conclusion that the Project would have a less than significant impact. It also concluded that the City’s reliance on its staff’s expertise was sufficient to support its conclusion that the Project would not have a significant impact on public safety related to emergency evacuation.

Background

In 2007, the City published a Notice of Preparation (NOP) for a 312-unit apartment complex in the City of Petaluma. In May 2008, the applicant submitted an application for a smaller 278-unit complex to comport with the City’s newly adopted 2025 General Plan. In March 2018, the City published a draft EIR for the complex, which included a 2004 consultant report on special status species in the Project area. In October 2019, the City issued a final EIR for the Project, concluding that the changes made in the reduced-scale version of the complex eliminated or reduced several of the potentially significant impacts identified in the Draft EIR. The Planning Commission recommended that the City Council certify the final EIR, but did not recommend approving the necessary zoning amendments.

In January 2020, in response to public comment and input from public agencies, the applicant submitted a second reduced version of the Project with 180 units (hereinafter, the Project), reducing the building footprint and increasing the setback from the Petaluma River, preserving two wetlands near the river and avoiding development in the River Plan Corridor, and preserving additional trees with a flood terrace design adjustment. A City staff report determined that this second revised version of the Project reduced impacts and addressed the Planning Commission’s concerns regarding the zoning amendments, and concluded that the second revised Project was within the reasonable range of alternatives addressed in the EIR and would not result in new or more substantial impacts compared to prior versions. The City certified the EIR and overturned the Planning Commission’s denial of zoning amendments. In February 2020, the City approved the zoning amendments by ordinance.

Save North Petaluma River and Wetlands and Beverly Alexander (Petitioners) field a petition for writ of mandate challenging the adequacy of the EIR on several grounds. The trial court denied the petition and Petitioners appealed.

Court of Appeal’s Decision

Special Status Species Impact Analysis

The court rejected Petitioners’ argument that the EIR’s impact analysis of special status species was deficient.

It explained that the EIR did not fail to investigate the project’s baseline conditions as of 2007 when the NOP was published because the 2004 special status species survey was based on current data at the time, and the EIR included database reviews from more recent years—as recent as 2017. The court further explained that there is no authority suggesting that CEQA is violated where an EIR’s analysis is drawn from site visits, studies, and habitat evaluations undertaken both before and after the NOP. Further, the court noted that Petitioners did not cite any evidence that the biological conditions at the Project site differed from 2004 to 2007, or in later years when updated databases were consulted.

Moreover, the court reasoned that Petitioners failed to challenge the EIR’s description of existing conditions and habitats on the undeveloped Project site, and that there is no evidence that the EIR omitted or inaccurately described the material aspects of the biological conditions on or near the Project site. The court distinguished this case from a string of cases where an EIR purported to measure impacts based on conditions that did not exist on the Project site or on conditions that were forecasted to exist at some point in the distant future. (See, e.g., Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.)

The court held that the EIR’s references to studies and site visits constitute substantial evidence supporting its special status species analysis because factual information in the EIR itself may constitute substantial evidence in the record to support the agency’s action on the project. (CEQA Guidelines, § 15121, subd. (c).) The court explained that it is appropriate to cite, but not include such documents in the EIR.

Therefore, the court held that the EIR’s analysis and information upon which it relied regarding the Project’s impacts on special status species was sufficient, and accordingly rejected Petitioners’ further contend that the EIR failed to offer recommendations that would adequately mitigate the Projects impacts on these species.

Emergency Evacuation & Public Safety Impact Analysis

The court also rejected Petitioners’ argument that the EIR was deficient because it omitted an analysis of egress and evacuation safety based on public comment documenting flooding and grass fires in the area. The court instead held that the EIR’s conclusion that the Project would not impair implementation of, or physically interfere with, an adopted emergency response plan or emergency evacuation plan was supported by substantial evidence, noting thde EIR’s adoption of the 2013 California Fire Code, consultation with the Petaluma Fire Department, and incorporation of additional recommendations and approval from the City Fire Marshal.

The court also explained that an agency may rely on the expertise of its staff to determine that a project will not have a significant impact, and that the City therefore appropriately relied on a City staff memorandum corroborating the public safety analysis in the EIR and reflecting information from the City’s Assistant Fire Chief confirming that the Fire Department does not have significant flood or fire access or egress concerns with development above the 100-year floodplain at the site. Additionally, the court rejected Petitioners’ claim that the City staff memorandum is improper post-EIR analysis, distinguishing this case from Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86.

–Veronika Morrison

California Supreme Court Holds that CEQA is Not Preempted by the Federal Power Act When Used to Make Decisions that are Outside Federal Jurisdiction or Compatible with the Federal Government’s Licensing Authority

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In County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, the California Supreme Court partially reversed an opinion from the Third District Court of Appeal that CEQA is completely preempted by the Federal Power Act (FPA), finding instead that CEQA is only partly preempted. Specifically, the Supreme Court held the FPA preempts an agency’s application of CEQA to the extent that it interferes with the federally established licensing process, but not when CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority.

Background

This consolidated litigation addresses a license renewal for the Oroville Facilities, a collection of public works projects, including hydroelectric facilities, in Butte County. As part of the renewal process, the California Department of Water Resources (DWR) engaged the alternative licensing process (ALP) authorized by the Federal Energy Regulatory Commission (FERC) prior to applying for relicensing. The ALP process allowed DWR to engage with stakeholders and develop a settlement agreement addressing their concerns, which effectively functions as a first draft of the FERC license. Following five years of negotiations, all but two of the stakeholders signed on to the settlement agreement, which DWR submitted to FERC. The Counties of Butte and Plumas did not sign the agreement. Following submission of the settlement agreement and licensing application by DWR, FERC prepared an Environmental Impact Statement (EIS) pursuant to NEPA, which considered several alternatives, including a “staff alternative” with modifications from the FERC staff. The EIS concluded the “staff alternative” was the preferred alternative.

Also following submittal of the relicensing application, DWR prepared an EIR pursuant to CEQA, analyzing implementation of the settlement agreement and continued operation of the Oroville Facilities as the “project” under CEQA and the same alternatives considered by FERC. DWR prepared the EIR to comply with additional permitting requirements under the Clean Water Act, for which the State Water Resources Control Board was the lead agency, and to help DWR determine whether to accept a license containing the original terms or the “staff alternative.”

Procedural History

Butte County and Plumas County separately filed petitions for writ of mandate, each challenging DWR’s compliance with CEQA in connection with the relicensing of Oroville Facilities. The cases were later consolidated.

The trial court found DWR’s EIR adequate, and the Counties appealed. On appeal, the Third District declined to reach the merits of the case, holding that the Counties’ CEQA claims were entirely preempted by the FPA, the purpose of which is to “facilitate the development of the nation’s hydropower resources” by centralizing regulatory authority over dams, reservoirs, and hydroelectric power plants in the federal government. The California Supreme Court granted the Counties’ petition for review but subsequently transferred the matter back to the Court of Appeal for reconsideration in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677 (Friends), which held that the Interstate Commerce Commission Termination Act (ICCTA) does not necessarily preempt a State agency’ compliance with CEQA for a new railroad project, and that State, as a railroad operator, could voluntarily subject itself to compliance with CEQA without conflicting with the ICCTA. On remand, the Third District affirmed its earlier holding that CEQA was preempted by the FPA.

The California Supreme Court again granted the Counties’ petition for review to determine whether the FPA preempts CEQA when the state is acting on its own behalf and exercising discretion in relicensing a hydroelectric dam.

The California Supreme Court’s Decision on Preemption

A five justice majority of the California Supreme Court held that CEQA claims are preempted insofar as they conflict with the FPA’s licensing scheme, but not where CEQA is used to make decisions concerning matters outside federal jurisdiction or those compatible with the federal government’s exclusive licensing authority. Specifically, the court determined that any CEQA challenge to the ALP and the terms of the settlement agreement and license being considered by FERC were preempted by the FPA. However, because DWR’s compliance with CEQA was not limited to the FERC relicensing, the Counties’ broader challenges to the adequacy of DWR’s EIR were not preempted. The Court concluded that DWR could use the environmental conclusions reached through the CEQA process to aid its decision whether to accept FERC’s “staff alternative” or request modification to the terms of the license issued by FERC, which the FPA allows.

The Court discussed the federal and state law principles applicable to the case before it, including the presumption against preemption for a state-owned, or state-operated project. The FPA does not include an “express” preemption clause, so the issue was whether “conflict” or “field” preemption applied. The Court concluded that the distinction between the two types of preemption was not meaningful here, particularly considering the presumption that, absent a clear statement of Congressional intent that state regulation is preempted, federal law will not be interpreted as interfering with state-owned or state-operated projects. The Court also found federal caselaw applying “field” preemption to state regulatory schemes related to the FPA distinguishable because those cases addressed state attempts to regulate private actors seeking licensing under the FPA. The Court stated that CEQA, in the context of a state agency applying for a federal license, constitutes “self-governance” rather than traditional state regulation of private actors that has been held preempted in the past.

The Court acknowledged that state courts could not require a CEQA remedy inconsistent with federal law, including the FPA, but noted that the Counties had dropped their previous request to enjoin FERC’s licensing process pending DWR’s compliance with CEQA. The Court reasoned, however, that DWR’s compliance with both CEQA and the FPA was possible without creating any conflict. Specifically, DWR used CEQA analysis, in part, to determine whether it should accept a license from FERC containing the proposed terms or those modified by FERC staff. Similarly, the FPA allows applicants to amend their licensing applications or request that FERC modify the terms of the license. DWR could thus use the environmental conclusions reached in the CEQA process to make its own decisions and then make appropriate requests to FERC without intruding on FERC’s jurisdiction. Just as FERC was not required to issue a license wholly consistent with the terms of the settlement agreement, FERC retained jurisdiction to consider, but in no way be bound by, any subsequent requests from DWR. For these reason, environmental review at both levels of government did not overlap to invoke conflict preemption.

The Court also concluded that any preemption issues related to DWR’s adoption of specific mitigation measures demanded by the Counties were premature, as no court had ruled that any additional mitigation was required. The question before the Court was whether any CEQA challenge to DWR’s EIR was preempted by the FPA, the Court ruled such a challenge, in the abstract, was not inherently preempted. Additionally, the Court noted that it may be possible for DWR to adopt mitigation measures that are either outside of FERC’s jurisdiction or compatible with FERC’s licensing authority. Again, FERC could simply deny any request from DWR that conflicted with the FPA or FERC’s licensing authority.

In sum, where the Counties’ CEQA challenges seek to undermine a FERC license or associated terms, they are preempted by the federal government’s exclusive licensing authority under the FPA. However, Counties’ CEQA claims which implicate the sufficiency of an EIR to inform state self-governance and decision-making are not preempted.

The Concurring and Dissenting Opinion

Notably, the Chief Justice, and author of the Friends decision, filed a concurring and dissenting opinion. The Chief Justice agreed that any CEQA challenge to FERC’s licensing process including the settlement agreement was preempted but disagreed that broader CEQA challenges were not similarly preempted. The dissent reasoned that, in addition to “field” and “conflict” preemption, state law that constitutes an “obstacle” to the purposes and objectives of federal law would be similarly preempted. Here, given the history of federal caselaw concluding that state regulation of hydroelectric facilities is preempted by the FPA, and the express “savings clause” in the FPA reserving regulation of water rights to the states, the Chief Justice concluded that CEQA is an “obstacle” to the objectives and purpose of the FPA, particularly where the FPA licensing process included multiple equivalents of CEQA through the ALP and FERC’s compliance with NEPA and does not contemplate delays caused by state court review of CEQA compliance.

The dissent also concluded that CEQA was subject to “field” preemption because CEQA did not involve state regulation of water rights. The Chief Justice also noted that, while none of the federal FPA preemption cases addressed state-operated projects, the concept of “field” preemption (i.e., where Congress truly intends to “occupy the field”) is broad enough to preempt all state regulation, regardless of who the operator is.

Turning to Friends, the Chief Justice characterized her decision in that case as concluding that CEQA is exempt from preemption under the ICCTA as an example of “self-governance” by the State. Given the purpose of the ICCTA was to deregulate railroads, and thereby allow greater “self-governance” by railroad operators, the State’s voluntary compliance with CEQA was not preempted. In contrast, the dissent concluded that the FPA’s purpose and objectives is to vest exclusive regulation of hydroelectric facilities in FERC and to exclude all state regulation, with the exception of water rights. The Chief Justice concluded that, unlike the ICCTA, the FPA (including the federal caselaw interpreting the FPA) made it “unmistakably clear” that all state regulation of hydroelectricity facilities, except regulation of water rights, is preempted.

Lastly, the dissent concluded that finding CEQA only partially preempted was unworkable because a ruling that DWR’s CEQA compliance deficient would not impact FERC’s decision on whether to issue the license. Forcing DWR to perform additional analysis or consider additional mitigation or alternatives would be an exercise in generating paper, without any practical effect. As the Majority Opinion acknowledges, FERC has complete discretion to deny any request to alter the terms of the license, regardless of whether DWR believes such changes to be necessary to comply with CEQA. The dissent also found that requiring CEQA compliance in this case, where multiple environmental studies have been prepared for FERC’s consideration during the licensing process, would be redundant and have little practical benefit.

By Jordan Wright and Nathan George

FIRST DISTRICT HOLDS CITY’S CURTAILMENT OF WATER DELIVERY TO LEASED PROPERTIES WAS NOT A NEW PROJECT SUBJECT TO CEQA REVIEW

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In County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657, the First District Court of Appeal held that the city’s 2018 water allocation to lessees was not a change in water use policy, but merely an exercise of the city’s discretion to curtail water deliveries for the purposes of increasing water deliveries to city residents, which was allowed subject to the terms of a lease agreement approved in 2010.

Background

In 2010, the city approved leases (2010 Leases) governing approximately 6,100 acres of city-owned land to petitioner and others. Relevant here, the 2010 Leases provide for the delivery of no more than 5 acre-feet of water per acre (AF/acre) per irrigation season subject to certain conditions. These conditions made clear that the city’s water use was paramount to rights under the 2010 Leases and that the actual amount of water delivered in any given year is to be determined solely by the city and may be reduced in dry years based on water availability. The 2010 Leases further provided that the supply of water could be discontinued at any time and that lessee has no claim against the city should the city exercise its right to withhold water for its own residents. The initial lease term ran from January 2009 to the end of 2013 after which the leases allow the lessees to holdover as tenant at will. Accordingly, the city and the lessees have proceeded under the 2010 Leases in holdover status since 2013.

In March 2018, the city sent copies of a new form of leases (Proposed Dry Leases), which provided that the city would no longer provide irrigation water to the lessee, but rather from time to time the city may spread water on the leased properties. The Proposed Dry Leases included similar provisions reserving the city’s rights to discontinue water delivery. The city issued a Notice of Preparation (NOP) that it would prepare an environmental impact report for the Proposed Dry Leases in August 2018.

In May 2018 correspondence between the city and petitioner, the city indicated that it was evaluating the impacts of reducing water on the leased ranch land, but that based on the snowpack and anticipated runoff it determined that the city could provide lessees 0.71 AF/acre of water, which was consistent with what it had provided two years earlier when the runoff was 82 percent of normal.

Petitioner challenged the city’s decision to curtail water deliveries in 2018 alleging it violated CEQA in that it committed to the Proposed Dry Leases without environmental review.

Court of Appeal’s Decision

The appellate court initially discussed the propriety of considering a declaration filed by the city which asserted that in 2019 and 2020 the city had delivered 6.6 AF/acre and 3 AF/acre of water, respectively. The trial court denied the city’s request to augment the record with the declaration because it was untimely (filed after the court had issued its tentative order granting the writ petition) yet the trial court relied on the 2019 and 2020 water allocations for purposes of setting the historical baseline and fashioning the remedy. The appellate court found that while the declaration was admissible extra-record evidence under Western States Petroleum Assn. v. Super. Ct. (29915) 9 Cal.4th 559, 576 because the 2018 water allocation is an informal or ministerial administrative action, it agreed with the trial court that the declaration was untimely. Nevertheless, the appellate court held that the trial court’s reliance on the contents of the declaration for purposes of the scope of the remedy was inappropriate given that the trial court had not considered the declaration for purposes of the merits.  Accordingly, the appellate court held that it would consider the declaration.

Next the court considered whether the 2018 water allocation was a new reduced water project or part of either the 2010 leases or the Proposed Dry Leases. In doing so, the court noted that the definition of a CEQA “project” involves three distinct components: “agency involvement, physical change to the environment, and whole of an action including multiple discretionary approvals.” Based on the terms of the 2010 Leases, the history of water allocations under them, and the city’s post-2018 water allocations set forth in the declaration, the court found that the 2018 water allocation was merely a “string of water allocations that the 2010 Leases” allowed the city to make. It was therefore not a new project subject to CEQA.

The court rejected petitioner’s contention that the terms of the 2010 Leases did not allow it to curtail water deliveries. Rather, based on the discussion of water supplies in the 2010 Leases, which expressly provided that lessee understood and acknowledged that any water supplied to leased land was “subject to the paramount rights” of the city and that the city could discontinue water deliveries in whole or in part at any time, the court held that the 2010 Leases reserve the city’s right to curtail water deliveries.

Petitioner argued that the court’s interpretation would allow the city to end all water deliveries under the 2010 Leases. However, the city agreed that eliminating water deliveries would require environmental review. Based on this concession, the court of appeal concluded that the 2010 Leases reserved the city’s rights to reduce water allocations subject to changing water availability so long as such reductions did not convert the 2010 Leases into dry leases.

The court further rejected petitioner’s reliance on Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310. While that case establishes that the city would need to consider the actual amounts of irrigation water provided in the past, rather than a hypothetical right to eliminate water deliveries, it further establishes that doing so does not prevent the city from exercising its right under the 2010 Leases to curtail or reduce water deliveries.

The court also found that the city’s past practices did not support petitioner’s claim that the 2018 allocation was an implementation of a new low- or zero-water delivery policy. While petitioner claimed that the city historically provided up to 5 AF/acre of water reduced proportionally based on deviations in snowpack and anticipated runoff, the court found that the actual water deliveries under the 2010 Leases did not have a linear relationship with runoff. In considering the declaration previously excluded by the trial court as evidence, the court also found that the higher allocations in 2019 and 2020 demonstrate that the 2018 water allocation was an implementation of the 2010 Leases, not a new project.

Finally, the court held that without some evidence beyond the simply the timing of correspondence between the city and petitioner and the city’s issuance of an NOP for the Proposed Dry Leases, it could not find that the NOP meant that the city’s reliance on the 2010 Leases for the 2018 allocation was a pretext for implementing that project.

Because the court found that the 2018 water allocation was within the scope of the 2010 Leases, it held that petitioner’s lawsuit effectively challenged the 2018 implementation of a project approved in 2010 and was therefore barred by CEQA’s statute of limitations.

By Christina L. Berglund

SIXTH DISTRICT HOLDS CEQA ACTION IS BARRED UNDER COVID-19 EMERGENCY RULE 9’S EXTENDED STATUTE OF LIMITATIONS

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In Committee for Sound Water and Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, certified for publication on June 1, 2022, the Sixth District Court of Appeal held that a nonprofit group’s CEQA claims were time-barred by the statute of limitations, even with the extended period afforded by Emergency rule 9, which the Judicial Council adopted in response to the COVID-19 pandemic.

Background

This case involves the City of Seaside’s certification of an EIR for the Campus Town 122-acre development project located on the former Ford Ord military base.

On March 6, 2020, the City issued a notice of determination for the Project. On April 5, the Committee for Sound Water and Land Development (the Committee), a nonprofit organization, submitted a request to the Fort Ord Reuse Authority (FORA) to receive written notice of (1) the City’s request of FORA to determine the Project’s consistency with the Fort Ord Reuse Plan (Reuse Plan), and (2) FORA’s consistency determination hearing. On June 6, FORA held a hearing at which it determined the Project was consistent with the Reuse Plan. It did not notify the Committee.

On April 6, 2020, the Committee filed a petition for writ of mandate challenging the City’s approval of the Project and FORA’s consistency determination under CEQA. The trial court subsequently granted its request to dismiss the petition without prejudice. On September 1, 2020, the Committee filed a second petition, alleging that the City violated CEQA and that FORA violated its constitutional due process rights.

The trial court sustained the City’s and Real Party’s demurrers on the grounds that (1) the CEQA claims were time-barred, (2) the due process causes were moot because FORA ceased existing as of June 30, 2020, and (3) the second writ petition was a sham pleading because it was only filed to cure the Committee’s failure to request a hearing within 90 days of filing the original petition, as required by Public Resources Code section 21167.4. The Court of Appeal affirmed the trial court’s dismissal.

The Court of Appeal’s Decision

Statute of Limitations

First, the court held that the petition was time-barred under the deadlines established by Public Resources Code section 21167, subdivision (c), as extended by Emergency Rule 9, subdivision (b).

The original Emergency rule, adopted by the Judicial Council on April 6, 2020 in response to the COVID-19 pandemic, tolled the statute of limitations in civil cases for 90 days until Governor Gavin Newsom lifts the state of emergency order that the Governor had declared on March 4, 2020. In response to requests from the CEQA bar, the rule was subsequently amended to end the tolling period on August 3, 2020 for 30-day statute of limitations applicable to CEQA causes of action. Thus, the last day for the Committee to file its CEQA petition was August 4, 2020. The Committee relied on the original version of Emergency rule 9 and claimed that its counsel was unaware of the amendment. The petition, filed on September 1, 2020, was therefore untimely.

The court was unpersuaded by the Committee’s argument that the amendment of the rule resulted in impermissible “truncation” of the limitations period. It explained that the rule was not unreasonable because the 30-day period would have ended on April 6, 2020—several months earlier—but for Emergency rule 9, as amended.

The court, consequently, did not address the sham pleading doctrine issue.

Mootness

The court also held that no effectual relief could be provided to the Committee for the alleged due process violation because the relief requested—that the City re-notice and conduct a new consistency determination hearing regarding the Project—could not be granted because the law requiring the consistency determination was repealed. By law, former Government Code sections 67650–67700 were repealed, dissolving FORA and eliminating the statutory requirement for FORA to determine whether projects at the base are consistent with the Reuse Plan.

The court rejected the Committee’s arguments that the City is a “successor in interest” to FORA’s obligations under the Reuse Plan and should be charged with correcting the improperly unnoticed hearing. It explained that the repeal of the law means that there is currently no requirement for a Reuse Plan consistency determination. Therefore, the Committee’s due process cause of action is moot.

Because the matter was moot, declaratory relief was also not available, and the court accordingly held that it was appropriate for the trial court to sustain the demurrers without leave to amend.

Third District Holds EIR’s Project Objectives Were Too Narrow and Recirculation Was Required Due to Increase in Significant and Unavoidable GHG Emissions

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In We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal. App.5th 683, the Third District Court of Appeal held that Siskiyou County’s environmental analysis of a bottling plant was deficient because the project objectives were too narrow, and because the County failed to recirculate the EIR despite a discrepancy in the estimated carbon dioxide emissions from the draft EIR to the final EIR (FEIR). Though the discrepancy did not change the EIR’s ultimate conclusions, recirculation was necessary to provide the public with meaningful opportunity to review and comment on the project’s environmental impacts. In We Advocate Through Environmental Review v. City of Mount Shasta (April 12, 2022, No. C091012) ___ Cal.App.5th___ [2022 WL 1487832], petitioners challenged city’s approval of wastewater permit for the same project.

Background

Real Party in Interest, Crystal Geyser, purchased a non-operational bottling facility in Siskiyou County in 2013, seeking to revive the plant for beverage production. To initiate the project, Crystal Geyser requested permits from the County to build a caretaker’s residence, and the City of Mount Shasta for discharging wastewater into the City’s sewer system. Both permits were approved.

We Advocate Through Environmental Review and the Winnehem Wintu Tribe sued the County alleging the EIR violated CEQA because it (1) provided an inaccurate description of the project, (2) defined the project’s objectives in an impermissibly narrow manner, (3) improperly evaluated several of the project’s impacts, and (4) approved the project though it would be inconsistent with the County’s and City’s general plans.

The trial court rejected all of petitioners’ claims. This appeal followed.

The Court of Appeal’s Decision

The Court of Appeal reversed the trial court in part, holding in the published portions of the decision that the project objectives were too narrow and that recirculation was required because the FEIR estimated that the project would generate significantly more carbon dioxide emissions than disclosed in the DEIR. The fact that the DEIR concluded that this impact was significant and unavoidable did not mean the increase in greenhouse gas emissions was “insignificant” under CEQA.

Project Objectives

The Court agreed with Appellant’s contention that the EIR defined the project objectives too narrowly, because the County defined the project objectives in a manner that precluded all alternatives other than the proposed project. For example, one objective was to “site the proposed facility at the Plant . . . to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property.” Another objective aimed to “utilize the full production capacity of the existing plant based on its current size.” According to the Court, this narrow approach was unacceptable because it transformed the alternatives section of the EIR into an “empty formality,” rather than served the purpose of enabling meaningful environmental review of a project. The Court concluded the County’s error was prejudicial because it foreclosed viable alternatives.

Climate Change Impacts Analysis

Appellants challenged the EIR’s discussion and mitigation of climate change impacts, arguing (1) the County failed to recirculate the EIR to address the discrepancy in carbon dioxide emissions estimations between the DEIR and the FEIR, (2) the County failed to analyze foreseeable emissions from “preform” bottles, and (3) the EIR’s mitigation measures were not properly amended to reflect the emissions change from the DEIR to the FEIR.

The Court agreed that the County violated CEQA by failing to recirculate the EIR after changing the greenhouse gas emissions estimate from 35,486 metric tons of carbon dioxide per year in the DEIR, to 61,281 metric tons in the FEIR. The County argued recirculation was unnecessary because the impact remained above the “significant and unavoidable” threshold in both versions of the EIR. The Court held that the estimated increase of over 25,000 metric tons of carbon dioxide per year between the versions was significant enough to require recirculation, though it did not change the EIR’s ultimate conclusions. Failing to recirculate “wrongly deprived the public of a meaningful opportunity to comment on a project’s substantial environmental impacts.”

The Court rejected Appellants’ other arguments regarding climate change impacts. On the subject of “preforms,” the Court rejected Appellants’ argument because they failed to concretely show that “each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced.” Additionally, the Court held that the mitigation measures were valid and enforceable because the County revised and reevaluated mitigation measures to reflect increased emissions in the FEIR.

— Jordan Wright

First District Holds Stipulated Federal Court Judgments Do Not Preclude Independent Review Under CEQA

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In Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, the First District Court of Appeal held that Marin County properly limited the scope of its environmental review to comport with its legal obligations pursuant to two stipulated federal judgments. In the same vein, the Court rejected appellants’ claim challenging the scope of the EIR’s project description, which incorporated the constraints imposed by the judgments. The Court also rejected appellants’ claims that the County abused its discretion by rejecting a scaled down project alternative, and making several mitigation findings for impacts to traffic safety and density, a threatened species, and water supply and fire flow.

Background

Real Party in Interest, the Martha Company (Martha), owns a 110-acre property on a mountaintop in Marin County that overlooks the Town of Tiburon. For several decades, Martha attempted to develop single family homes on the property, yet all proposed projects befell to forceful opposition from residents of the Town of Tiburon and the County.

The current dispute is predated by two stints in federal court that resulted in stipulated judgements.

The first federal case occurred in 1975, when the County adopted a re-zoning measure that drastically reduced the number of residences Martha could build on the property from a minimum of 300 to a maximum of 34. Martha sued the County in federal district court, alleging the re-zoning constituted a regulatory taking of property. The case resolved in 1976 by stipulated settlement that (1) Martha could develop no fewer than 43 single family homes on a minimum of half-acre lots; (2) Martha could place some homes on portions of the property named the Ridge and the Upland Greenbelt; and (3) 43 single family homes on half-acre lots is consistent with the goals of the County’s general plan while allowing owners a feasible economic use of their property.

Between federal cases, Martha submitted a project proposal to the County, which directed Martha to file an application with the Town of Tiburon for approval. The Town conducted years of environmental study without rendering a decision, and eventually Martha withdrew its application. In 2005, Martha submitted a new project proposal. The County refused to process Martha’s second application just as it refused to process the first.

The County returned to federal court, seeking relief from the 1976 stipulated settlement. It alleged that California environmental laws had changed in the 30 years since 1976, such that it would be against public policy of the state to “allow a development of this magnitude, on environmentally sensitive and constrained land to proceed without the development and density being subject to CEQA review.” The district court dismissed the County’s complaint and granted the 2007 stipulated settlement, which set a timeline and procedures for enforcing the 1976 judgement.

Martha submitted a third development application for a 43-unit residential development project (the Project). The County circulated a draft EIR for the project in 2011.

In 2017, after years of administrative proceedings, further environmental review, and litigation concerning the project, Martha submitted a modified Master Plan of the development project to comply with the County Board of Supervisors’ request for a “more specific proposal.” Additionally, Martha agreed to a phased review of its development application. The Marin County Board of Supervisors certified the EIR by a 3-2 vote.

Tiburon Open Space Committee and the Town of Tiburon (collectively, the Town) each filed petitions for a Writ of Mandate against the County, alleging the EIR was legally inadequate in numerous respects, and the County’s review process was legally deficient. The trial court denied both petitions. The Town appealed.

The Court of Appeal’s Decision

Implications of the Stipulated Judgments

The Town’s principal allegation was that the County violated CEQA by failing to exercise the full measure of its statutory discretion when it complied with the stipulated judgements. In essence, the Town claimed the County illegally “contracted away its police powers.”

The Court of Appeal rejected these claims, explaining that the Board proceeded “along lines that are in fact expressly embedded in CEQA,” and did not circumvent its obligations under the statute.

First, the Court concluded that the EIR was not a “pro forma” exercise, nor had a preordained outcome as the Town contends. The Court underscored the fact that the EIR underwent several revisions, spanned 850 pages, involved consultation with other agencies, provided meaningful opportunity for public review and comment, and cost considerable time and money. Furthermore, the County retained discretion to shape the contours of the Project during the later phases of approval. Specifically, the Court noted, the EIR proceedings were not “rushed, perfunctory, or short circuited” and were “utterly at odds with the conduct of a public entity that believed itself free to blow off CEQA.”

Second, the County appropriately limited its CEQA analysis to the scope of its discretionary authority. The Court cited Sequoyah Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 for the holding that an agency’s discretion under CEQA is limited by its own legal obligations. For example, the Court remarked that CEQA imposes a duty to mitigate environmental impacts only to the extent feasible. Applied here, the County had a legal obligation to comply with the conditions imposed by the stipulated judgements. Since the stipulated judgments limit the scope of the County’s discretion by requiring certain conditions for the project be met, they also limited the scope of its environmental review. Thus, while legally feasible alternatives and mitigation measures had to be examined by the County, alternatives or mitigation measures that contradicted its obligations under the stipulated judgements were legally infeasible and did not need to be examined. Accordingly, the Court held that the County’s approval of a project that complied with the conditions set by the stipulated settlements was proper.

The Town also raised a corollary argument that the stipulated judgements deprived the members of the County Board of Supervisors from exercising their “independent judgement.” The Court refuted this argument by highlighting its logical flaw; that is, if it can be said that federal judgements are not binding on a public official’s independent discretion, then it can equally be said that inconvenient provisions of state law, namely CEQA, are not binding on independent discretion either.

The Court therefore concluded that the EIR fulfilled the central purpose of CEQA to “disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose,” and the County’s review process appropriately limited the scope of its environmental review to match its discretionary authority.

Project Description

The Court also rejected the Town’s claim that Final EIR’s 34-page project description was “artificially narrow” because it incorporated the legal constraints imposed by the stipulated judgments. The Court explained that the project description provided more detail than CEQA requires, and this argument was a mere variation of the claim that the County “abdicated” its responsibilities under CEQA by complying with the judgments—which it already rejected.

Alternatives

The Court held that the County did not abuse its discretion by rejecting a 32-unit alternative because that alternative was legally infeasible due to the legal requirements imposed by the stipulated judgments. It emphasized that an EIR is not required to review infeasible alternatives “even when such alternatives might be imagined to be environmentally superior.”

Environmental Impacts and Mitigation Findings

The Court of Appeal held that substantial evidence supported the County’s findings that several of the Project’s impacts would be mitigated to a less than significant level.

First, the Court upheld the County’s finding that traffic safety impacts could be mitigated by measures that required the Town to implement them—including removing traffic obstacles such as trash receptacles and enforcing speed limits on narrow winding road. The Court explained that CEQA only requires a “reasonable plan” for mitigation and allows for the approval of a project with a finding that mitigation should be adopted by another entity that has exclusive jurisdiction.

The Court also concluded that substantial evidence supported the EIR’s “level of service” (LOS) methodology for calculating the Project’s traffic density impacts, noting that LOS was an established standard required in the County. Quoting the trial court, the Court of Appeal held that the traffic analyst was entitled to rely on this methodology because it “had the prerogative to resolve conflicting factual conclusions” about the traffic congestion impacts of the Project.

The Court upheld the EIR’s use of best management practices (BMPs) for the mitigation of impacts on the threatened California red-legged frog. It explained that the BMPs did not defer mitigation, but rather qualified as “revisions in the project plans” agreed to by Martha because they were accepted as conditions of approval. Further, the Court noted, the BMPs were already in existence because they were included in the Project’s Stormwater Control Plan. Accordingly, the Court determined that the BMPs were incorporated by reference in the EIR.

The Town’s claims regarding the County’s water supply and fire flow mitigation measures were barred due to its failure to exhaust the issues during the County’s administrative process. The Court nonetheless concluded that the measures requiring Martha to work with local water and fire authorities were sufficient and would not allow Martha to do “nothing” because failing to comply would result in the County not issuing the permits required to proceed with the Project. The Court also concluded that the Town’s demand for more detail in the water supply plan went beyond what CEQA requires.

Lastly, the Court concluded that substantial evidence—specifically, construction and traffic experts’ opinions—supported the County’s determination that mitigation would reduce the Project’s safety impacts resulting from a temporary on-site construction road to less than significant. The Court explained that alternative evidence does not negate the substantial evidence that the County relied on, and that it is within the agency’s discretion to evaluate the credibility of such evidence. It also emphasized that the safety risks were limited to the workers building the Project, and CEQA only requires review of safety risks posed to the public in general.

The Court’s Closing Remarks

The Court of Appeal concluded its opinion by expressing its inclination to afford the trial court’s decision great weight in counties with designated CEQA judges. The Court also generally criticized the use of CEQA lawsuits as “tool[s] of obstruction,” especially for housing developments.

— Jordan Wright & Veronika Morrison

First District Holds Petitioner Exhausted Its Remedies by Raising General Objections That the Project Site Should Be Preserved as Open Space, Finds “No Project” Alternative Analysis Defective

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In the published portions of Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, the First District Court of Appeal held that Petitioner Save the Hill’s failure to specifically reference the recirculated EIR or the no-project alternative in its comments to the City Council did not bar its CEQA claims regarding preservation of the Project site.

Background

This case involves the City of Livermore’s approval of a development application for a housing development in the Garaventa Hills. The Project underwent multiple revisions, and the Project at issue is a scaled-down version of the original 76-unit residential development. The final Project is a 44-unit development with pedestrian across Altamont creek that also serves as a secondary emergency vehicle access road. The City published a Recirculated Final EIR (RFEIR) for this final revised Project.

Save the Hill filed a petition for writ of mandate challenging the City’s approval of the Project and certification of the RFEIR for failure to consider significant environmental impacts, adequately investigate and evaluate the no-project alternative, and mitigate significant environmental impacts. The trial court denied the petition, determining that Save the Hill failed to exhaust its administrative remedies in challenging the RFEIR. Save the Hill appealed.

The Court of Appeal’s Decision

Exhaustion

The Court of Appeal held that Save the Hill did not fail to exhaust its administrative remedies before challenging the City’s failure to evaluate the no-project alternative. While Save the Hill did not mention the environmental documents or the lack of a no-project alternative specifically, it did express its desire to preserve the Project site as open space. The Court emphasized that CEQA does not require public interest groups such as Save the Hill—which are often unrepresented by counsel at administrative hearings—to do more than “fairly apprise” the agency of their complaints to preserve them for appeal.

Several Save the Hill representatives voiced support for preserving the Project site as open space in perpetuity at the City Council hearing for the RFEIR’s certification. These comments sparked questions from city councilmembers regarding the possibility of preserving the Project site and a discussion of available funding to purchase Garaventa Hills for conservation. This option was shut down by the City Attorney, who advised the City Council that its evaluation should be limited to the Project as set before them, and that if it were to change the zoning to permanent open space on the property, the City would likely face a takings lawsuit.

The Court determined that these comments and the ensuing discussion reflected the City Council’s consideration of a no-project alternative as a result of Save the Hill’s objections. It concluded that Save the Hill’s failure to specifically refer to the RFEIR’s Project alternatives evaluation was immaterial to the fact that it fairly appraised the City of its position. The court further explained that even if Save the Hill framed its arguments in the context of the RFEIR’s no-project alternative, “the evidence is overwhelmingly that, had it done so, the result would have been the same: [t]he City would have rejected the group’s proposal and certified the RFEIR” because it was improperly instructed to limit its focus to the presented Project.

Accordingly, the Court held that an exception to the exhaustion requirement applied because the aggrieved party—Save the Hill—could “positively state” what the lead agency’s decision would be in its particular case.

No Project Alternative Analysis

On the merits of Save the Hill’s alternative analysis claim, the Court held that the RFEIR failed to disclose and analyze information regarding the availability of funding sources that could have been used to purchase and permanently conserve the Project site. The Court explained that zoning changes are within the City’s police power, and the RFEIR accordingly should have discussed the feasibility of rezoning the site as permanent open space.

Mitigation Measures Adequacy

Save the Hill asserted that the mitigation measures for impacts to vernal pool fairy shrimp were inadequate because they would only be implemented if the fairy shrimp were detected at the site. The Court explained that CEQA allows deferred mitigation where the agency commits to achieving specific performance standards, which it did here, and that the mitigation measures were adequate because the RFEIR assumed that the fairy shrimp were present.

The Court also held that the preservation of an 85-acre compensatory mitigation site was adequate, despite Save the Hill’s contention that the City’s General Plan required the location to be preserved as open space. The Court concluded that the General Plan is “merely aspirational,” while the RFEIR’s mitigation measure created a “perpetual legal restraint on development” at the site, including requiring funding for upkeep and enforcement. Moreover, distinguishing this case from King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (“King”), the Court explained that this Project involved the loss of only 32 acres—as opposed to the loss of 6,450 acres in King—and CEQA does not require mitigation measures to “completely eliminate the environmental impacts of a project.”

Hydrological Impacts Adequacy

The Court held that the City’s finding of no significant hydrological impacts was supported by substantial evidence because Save the Hill failed to refute the City’s points in its reply brief. The Court refused to afford any weight to Save the Hill’s argument that the Project would degrade downstream water quality because a larger development project (which originally included this Project) would have a significant downstream water quality impact. The Court determined that impacts from a project almost 200 acres larger than this Project were not relevant.

Settlement Agreement Obligation Claims

Lastly, the Court held that that Save the Hill forfeited its claim that the City violated CEQA by failing to preserve the Project site to satisfy its obligations under two settlement agreements by failing to raise the issue prior to appeal. Moreover, Save the Hill was not a party to either settlement agreement and thus lacked standing to enforce those obligations.

FIRST DISTRICT HOLDS RESIDENTIAL DEVELOPMENT PROJECT THAT IS CONSISTENT WITH SPECIFIC PLAN AREA IS EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW

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In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal upheld the city’s determination that a residential project within a specific plan area was exempt from further environmental review under Government Code section 65457, which provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.

Background

In 2010, the city certified an environmental impact report (EIR) for a specific plan. The specific plan allowed for development of up to 1,260 residential units, and a golf course and related facilities spread across identified subareas (Areas 3 and 4). Area 4 contained wetland habitat for the salt marsh harvest mouse, a state-protected species. After petitioners filed suit under CEQA, the trial court found several deficiencies with the EIR.

In response, the city prepared a recirculated EIR (REIR), which stated that it was a program-level analysis of the impacts related to development of housing and the golf course in Areas 3 and 4 because the final design of those components was not yet known. In March 2015, the city certified the final REIR and re-adopted the 2010 specific plan.

In 2019, the developer submitted a proposed subdivision map for approval of 469 residential lots, omitting the golf course that was previously authorized by the specific plan.

The city prepared a checklist to determine whether the REIR adequately analyzed the environmental impacts of the proposed subdivision map and concluded that the project was consistent with the specific plan and that there were no changed circumstances or new information that might trigger additional environmental review. Accordingly, the city determined the project qualified for the statutory CEQA exemption under Government Code section 65457.

Petitioners challenged the city’s determination, arguing that a subsequent EIR was required due to changes in the project showing that it would have new significant impacts on the endangered harvest mouse.

Court of Appeal’s Decision

To qualify for the Government Code section 65457 exemption, a project must be for residential development, must be consistent with a specific plan for which an EIR was previously certified, and circumstances requiring subsequent environmental review (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) must not be present.

Petitioners alleged that three changes to the project created new significant impacts triggering the requirement for a subsequent EIR:

(1) Fill of only uplands and not wetlands inhibited wetland migration;

(2) Omission of the golf course deprived the harvest mouse of escape habitat; and

(3) Use of riprap on the banks of elevated upland increased predation of the harvest mouse.

The court disagreed, finding that substantial evidence supported the city’s conclusion that none of the changes significantly increased the impacts on the harvest mouse beyond what the REIR analyzed, i.e., the impacts of the complete development of all of Area 4. The court noted that the project as approved would develop fewer total acres and include far fewer residential units than analyzed in the REIR.

In regard to petitioners’ specific arguments of new impacts, the court held the REIR addressed the impact of loss of upland escape habitat and found that the impact would be less than significant because the uplands did not provide high quality transitional habitat as they were regularly used for agriculture. The project would develop less upland than previously analyzed, meaning the project would eliminate less, not more, upland escape habitat. Additionally, because of the low value of upland habitat, the REIR’s less-than-significant determination did not depend on the golf course continuing to provide upland habitat. Accordingly, the elimination of the golf course did not affect that determination.

While the REIR did not discuss the use of riprap to stabilize the slopes of the filled and raised development areas, the court found this did not require subsequent environmental review because the REIR already examined the issue of rat predation on the harvest mouse and petitioners cited to no evidence that the riprap would substantially increase the severity of predation effects. The court acknowledged that there could be some potential increase in predation due to riprap but recognized that the Section 65457 exemption sets a higher threshold for environmental review. Like other statutory exemptions, the court said, Section 65457 reflects the Legislature’s determination that the interest promoted, which here was to increase the housing supply, was important enough to justify foregoing the benefits of environmental review.

The court also rejected petitioners’ claim that changed circumstances and new information related to sea level rise triggered subsequent review. Petitioners argued that the city was required, due to new scientific insights concerning the amount and rate of sea level rise, to analyze whether the project would exacerbate the effects of sea level rise because of how the project would interact with wetlands in the area (e.g., wetland migration). Even assuming wetland migration must be analyzed under CEQA, the court found that it was mentioned in the original 2010 EIR and the REIR assumed that all developable areas would be impacted. Accordingly, the court concluded that petitioners should have raised this argument in response to the REIR, or even the 2010 EIR.

Finally, the court rejected petitioners’ claim that an adaptive management approach to sea level rise was impermissibly deferred mitigation. The court held that the city’s adaptive responses were not mitigation because sea level rise is not an environmental impact caused by the project that needs to be analyzed under CEQA.

– Nina Berglund

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