Tag: Piecemealing

Third District Court of Appeal Holds That a Responsible Agency’s Decision to Prepare a Supplemental EIR Does Not Require It to Step in as a Lead Agency

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In California Coastkeeper Alliance v. State Lands Commission (2021) 64 Cal.App.5th 36, the court upheld the State Lands Commission’s decision to prepare and approve a supplemental Environmental Impact Report for the proposed Lease Modification Project for the Poseidon desalination plant in Huntington Beach, California. The court concluded that the Commission did not engage in piecemealing, improper deferral of environmental review or inadequate consideration of alternatives, and was not required under California Code of Regulations, title 14, section 15052, subdivision (a)(2) (“CEQA Guidelines”) to step in as the lead agency for the lease modification.

Background

In 2010, the City of Huntington Beach approved a subsequent EIR to the initially certified 2005 EIR for the desalination project. There were no legal challenges to the 2010 subsequent EIR.

In 2015, the State Water Resources Control Board amended its Water Quality Control Plan to include a Desalination Amendment, which updated methods for intake and discharge systems in desalination facilities. The Desalination Amendment also required the Regional Water Quality Control Board to conduct an analysis under Water Code section 13142.5, subdivision (b) of all new and expanded desalination facilities and required that the owner or operator evaluate a reasonable range of nearby sites for subsurface intakes. In response, Poseidon modified the project in 2016 and 2017 to include (1) one-millimeter steel screens on the offshore intake pipeline to reduce impingement and entrainment; (2) three-port diffusers to diffuse brine discharge reentering the ocean; and (3) a reduction of the seawater intake volume of the Project by 45.3 million gallons per day.

In 2017, the Commission, as a responsible agency, elected to prepare a supplemental EIR for the proposed lease modification project, which incorporated the 2010 subsequent EIR by reference. California Coastkeeper Alliance filed a petition for writ of mandate challenging the certification of the 2017 EIR.

The Court of Appeal’s Opinion

Decision to Prepare a Supplemental EIR

The court determined that substantial evidence supported the Commission’s decision to prepare a supplemental EIR instead of a subsequent EIR. Pursuant to CEQA Guidelines section 15163, the 2017 version of the project consisted of only minor additions or changes from the 2010 version. Therefore, the Commission did not prejudicially abuse its discretion.

Assuming the Lead Agency Role

Rejecting the petitioners’ contention that the Commission was required to assume lead agency status under CEQA Guidelines section 15052, the court concluded that this requirement was inapplicable. A proper determination to prepare a supplemental EIR, rather than a subsequent EIR, removes the subsequent environmental review from the scope of CEQA Guidelines section 15052. Thus, the Commission was not required to step in as the lead agency. The court also rejected the petitioners’ argument that the Commission “acted like” a lead agency during the review process, stating that it acted like a responsible agency because a supplemental EIR is subject to the same notice and public review requirements as the initial draft EIR.

Piecemealing

Petitioners claimed that the Commission illegally piecemealed the project by only reviewing the lease modification project, and not the entire desalination project. The court explained, however, that the 2017 EIR incorporated by reference the 2010 EIR, which was never challenged and thus presumed to comply with CEQA for purposes of use by the Commission. The Commission was thus only required to analyze the changes to the project since the 2010 subsequent EIR, which it did. Further, the court rejected the petitioners’ contention that the Commission deferred parts of the environmental review analysis to other agencies. Again, the Commission satisfied its requirements by analyzing the impacts associated with the proposed enhancements to the project in combination with the previously analyzed impacts.

Consideration of Alternatives and Current Conditions

Petitioners also challenged the Commission’s consideration of alternatives to the project on several grounds, all of which the court rejected. Pursuant to CEQA Guidelines section 15126.6, the court concluded that the 2017 supplemental EIR considered a reasonable range of alternatives, including an intake pipeline extension and a two-port brine diffuser. The court held that the Commission was not required to reevaluate alternatives that were considered and rejected in the 2010 subsequent EIR, nor was it required to consider alternatives beyond those relevant to the proposed modifications.

The court also dismissed the petitioners’ assertion that changes in Orange County’s water needs supplanted the need for the project because they failed to lay out evidence in support of their position, which was fatal to their claim. Even if they had provided evidence in support of their claim, the court reasoned, substantial evidence in the record supported the Commission’s conclusion that Orange County still needed the project to add to its water supply.

Lastly, the court determined that the Commission was not required to consider the Orange County Water District’s (“OCWD”) construction of a new water distribution option involving injection wells and pipelines as a reasonably foreseeable project change. Based on the record, the court concluded that any consideration by OCWD of a different water distribution system than what was reviewed in the 2010 EIR was merely speculative and not reasonably foreseeable. The court held that the Commission had no way to know the particulars of a potential new distribution system, and therefore an EIR could not provide meaningful information on such a speculative change.

Sixth District Upholds Categorical Exemption Determination for Microcell Transmitter Project

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In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, the Sixth Appellate District upheld a county’s determination that the installation of microcell transmitters on existing utility poles for the purpose of providing wireless coverage was exempt from CEQA review.

The county zoning administrator considered 11 applications for the installation of 13 microcell transmitters in the Day Valley area of Aptos, finding that the project fell within the Class 3 categorical exemption that applies to small structures and that no exceptions to the exemption applied. The petitioner association appealed to the county planning commission, which denied the appeal—and the board of supervisors declined to take jurisdiction over the appeal. The petition for writ of mandate alleged that the county had improperly segmented the project and that several potential exceptions applied to the project, thereby defeating the county’s use of the Class 3 categorical exemption. The petitioner also alleged that the board had abused its discretion in declining to take jurisdiction of the administrative appeal.

With respect to “piecemealing,” the court held that the county had not improperly segmented the project. The applicant’s filing of separate permit applications and the county’s issuance of a separate permit and exemption for each project were not evidence of piecemealing. The court found that throughout the administrative proceedings, the county had considered the entire group of microcell units to be one project. It stated that “[t]he nature of the paperwork required for approval of the project is immaterial.”

Next, the court held that the board had not abused its discretion in finding that new evidence submitted by petitioner about a possible future AT&T project was not significant new evidence relevant to its decision. The petitioner had submitted a declaration from its attorney stating that county staff had been contacted by AT&T about a cell transmitter project in the same area. The court found that the evidence was too vague to support a finding that a possible AT&T project would be of “the same type in the same place.”

The court also held that the location exception to the exemption in CEQA Guidelines section 15300.2, subdivision (a) did not apply. The court rejected the argument that the neighborhood’s residential-agricultural zoning classification designated the area “an environmental resource of hazardous or critical concern,” because nothing in the statement of the purpose for that zoning district indicated as much.

Finally, the court found that the unusual circumstances exception also did not apply because petitioner produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area or in an area zoned residential-agricultural.

Sixth District Rules County of Santa Cruz Did Not Engage in Piecemeal Review of Zoning Ordinances and Upholds Negative Declaration

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In Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, the Sixth District held that the County of Santa Cruz did not engage in piecemeal review when it separately adopted three different zoning ordinances. The court also upheld the negative declaration for an ordinance increasing the height and density of hotels.

The County planning department undertook an effort to overhaul various County code sections, including those dealing with zoning. As part of this effort, the following occurred: (1) in March 2013, the County considered an addendum to a negative declaration prior to adopting an ordinance that authorized administrative approval of minor exceptions to zoning site standards; (2) in September 2013, the planning department circulated a negative declaration finding that an ordinance increasing the height and density for hotels (the “Hotel Ordinance”) would not have a significant effect on the environment; and (3) in October 2013, the planning department prepared a notice of exemption for an amendment modifying the County’s sign ordinance (the “Sign Ordinance”). The Board adopted the Hotel Ordinance and the Sign Ordinance in 2014.

Petitioner argued that the three ordinances in question constituted a single project and the County’s actions amounted to piecemealing in violation of CEQA. The court disagreed. The court found that reforming certain zoning regulations—such as altering density requirements for hotels—was not a reasonably foreseeable consequence of the other regulatory reforms challenged. Because each ordinance operated independently and could be implemented separately, they were not considered a single project. While the ordinances all served the same stated objective of “modernizing the County code,” the court held that this was not the type of tangible objective that forms the basis of a single CEQA project.

The court also upheld the negative declaration for the Hotel Ordinance, finding that the County did not need to consider potential future development because it was too speculative to be reasonably foreseeable. Evidence in the record supported the argument that the County intended to stimulate development when it passed the ordinance, but the court found that still did not demonstrate that such development was reasonably foreseeable. Additionally, the initial study disclosed that the Hotel Ordinance would allow higher density and taller hotels but that the effects of future development were speculative until a specific development was proposed. And, the initial study explained that such development projects would be subject to their own CEQA review. Moreover, the court found that petitioner failed to meet its burden to show a fair argument that significant environmental effects may result from the ordinance.

Sixth District Court of Appeal Upholds EIR for a Quarry Reclamation Plan, Rejecting Arguments Under CEQA and SMARA

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On August 31, 2016, the Sixth District issued a decision in Bay Area Clean Environment v. Santa Clara County (previously published at: 2 Cal.App.5th 1197)* upholding the County’s EIR for a quarry reclamation plan. The non-profit challenger asserted claims under the Surface Mining and Reclamation Act (SMARA) and the California Environmental Quality Act (CEQA). The court concluded that the county had not violated either statute.

The 3,510-acre quarry started producing limestone and aggregate in the early 1900s. In 2006, the Department of Conservation concluded that the quarry was violating SMARA because slope instability issues had not been properly addressed in the earlier 1985 reclamation plan. High selenium levels downstream of the quarry also posed a problem. In 2007 and 2010, Real Party in Interest Lehigh Southwest Cement Company applied to the county for amendments to the 1985 plan that would close one pit while allowing for the opening of new mining areas to replace the reclaimed pit. In particular, the 2010 application proposed a new pit called the South Quarry. But, subsequently, Lehigh applied in 2011 for an amendment to the 1985 reclamation plan that closed the problematic pit without proposing any new pits. This 2011 application superseded all earlier applications.

The county prepared an EIR for the reclamation plan amendment and made the requisite findings under both CEQA and SMARA. The county concluded that the project would result in significant and unavoidable impacts of excess selenium runoff during the 20-year period of reclamation. Bay Area Clean Environment and Midpeninsula Regional Open Space District filed challenges to the project. Midpeninsula ultimately settled with Lehigh, but Bay Area Clean Environment appealed the trial court’s denial of its petition for writ of mandate.

The Sixth District Court of Appeal started by addressing the SMARA claims. First, the court concluded that evidence in the record supported the county’s finding that the reclamation plan complies with SMARA with regard to water quality. The court explained that SMARA provided the county with discretion to allow reclamation activities that may result in adverse impacts—such as the additional deposition of selenium in Permanente Creek—if those actions were necessary to comply with federal and state laws. Second, the court held that evidence in the record supported the county’s conclusion that the project’s impacts to red-legged frogs were mitigated to the extent possible.

The court turned to the CEQA claims next. First, the court rejected the challenger’s argument that the county had failed to analyze the cumulative impact of the potential new South Quarry pit that had been proposed in the earlier 2010 application. The court explained that the South Quarry pit was not a reasonably foreseeable future project because the application for a use permit for the new pit had been withdrawn. The court also noted that the county had not engaged in improper piecemealing because the amendment to the reclamation plan was a stand-alone project that did not depend on the future approval of a South Quarry pit.

Second, the court addressed the argument that the county’s findings about impacts to the red-legged frog were insufficient and not supported by substantial evidence. The EIR reported that direct impacts to the frog would be less than significant. The EIR also determined that impacts to aquatic life, of which the frog is included, from excess selenium runoff in the downstream areas would be significant and unavoidable. The court concluded that substantial evidence in the record supported the EIR’s conclusions about both direct and indirect impacts to the frog. The court also held that a statement of overriding considerations for impacts to the frog was not required because the potential direct impacts to the frog were less than significant. Although it is not clear from the opinion, presumably the county adopted a statement of overriding considerations for the significant and unavoidable impact to aquatic life from excess selenium runoff. The court rejected the petitioner’s argument that a statement of overriding considerations directed specifically to the frog was required.

Finally, the court affirmed the trial court’s decision to grant Lehigh’s motion to augment the administrative record. Lehigh had argued that an email between a herpetologist and staff of the Department of Fish and Wildlife (DFW) should be included in the record under Public Resources Code section 21167.6, subdivision (e)(10). In the email, Dr. Mark Jennings explained to DFW staff that his 2007 report contained typographical errors and that he had in fact never observed the red-legged frog in one particular pond. This email was sent to the consulting firm that prepared the biological resources assessment for the EIR. The court concluded that the email could be properly included in the record as evidence of the presence or absence of the frog in the reclamation area that was relied upon by the consultants who prepared the biological study for the EIR.

* Review Denied and Ordered Not to be Officially Published ,December 14, 2016, per Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125.

Fourth District Court of Appeal Upholds Newport Beach’s Environmental Impact Report for the Sunset Ridge Park Project, Finding That the City Did Not Improperly “Piecemeal” the Project and That Substantial Evidence Supported the City’s Analyses of Cumulative Impacts and Growth-Inducing Impacts

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On December 12, 2012, the Fourth District Court of Appeal, in Banning Ranch Conservancy v. City of Newport Beach (2012) ___Cal.App.4th___ (Case No. G045622), affirmed the judgment of the Superior Court of Orange County that the City of Newport Beach complied with CEQA with respect to the City’s review and approval of the Sunset Ridge Park Project.

Background

In 2006, the City of Newport Beach purchased land in the northwest corner of the West Coast Highway and Superior Avenue. The western boundary of the parcel abuts Banning Ranch, a “primarily undeveloped” approximately 400-acre site controlled by Newport Banning Ranch, LLC (NBR LLC). A majority of the Banning Ranch site is located in unincorporated Orange County, but is within the City’s Sphere of Influence (SOI).

In March 2009, the City announced that it was acting as the lead agency to prepare an EIR for the Newport Banning Ranch Project. The City’s Notice of Preparation (NOP) explained that Newport Banning Ranch Project proposes the development of residential, commercial, and overnight resort accommodations on the Banning Ranch site. The NOP also explained that, as part of the project, an access road, “Bluff Road,” would be constructed from a southern terminus at West Coast Highway to a northern terminus at 19th Street and that Bluff Road would serve as the primary roadway through the project site.  Further, the NOP stated that the unincorporated areas of the site would be annexed to the City as part of the project. Lastly, the NOP repeatedly referred to the City’s plans to build a park, the Sunset Ridge Park, adjacent to Banning Ranch.

Two months after the City issued the NOP for the Newport Banning Ranch Project, the City issued a notice of preparation for the Sunset Ridge Park Project. The NOP for the park project explained that the City proposed to develop an approximately 18.9-acre site with active and passive recreational uses and an access road to the park through Newport Banning Ranch.

Thereafter, in October 2009, the City issued a draft EIR for the park project. The draft EIR analyzed, among other things, the park’s access road. Petitioner Banning Ranch Conservancy submitted comments contending that the draft EIR had “piecemealed” the project by failing to acknowledge the full extent of the project. In particular, petitioner noted that it appeared that the park access road in the draft EIR for the park and the Bluff Road proposed in the Newport Banning Ranch Project were the same road. Petitioner further asserted that the draft EIR failed to adequately analyze growth-inducing impacts, cumulative impacts, and impacts to the California gnatcatcher.

The City responded to the public comments and prepared a final EIR. The responses acknowledged that the proposed Sunset Ridge Park Project access road and the Bluff Road proposed for the Newport Banning Ranch Project assume generally the same roadway alignment from West Coast Highway, but disagreed with the suggestion that the Newport Banning Ranch Project is part of the Sunset Ridge Park Project and therefore should be analyzed in the same EIR as a single project. The responses to comments explained that the two projects were distinct and also that both the City’s general plan and Orange County’s master plan envision a similar north-south roadway through the Newport Banning Ranch property extending from West Coast Highway to 19th Street.

The City certified the final EIR at its public hearing on March 23, 2010. At the same hearing, the City approved an “access agreement” between it and NBR LLC. In exchange for the Banning Ranch easement, the City agreed to design and construct the access road improvements from the West Coast Highway to the park to match the proposed vertical and horizontal alignment of the east side of the proposed Bluff.

Petitioner thereafter brought suit in the Superior Court of Orange County, alleging that the City had violated CEQA in certifying the EIR for the Sunset Ridge Project. The trial court denied the petition and petitioner appealed.

The Court of Appeal’s Decision

The appellate court first considered petitioner’s claim that the City had impermissibly “piecemealed” the project by not treating the Newport Banning Ranch Project and the Sunset Ridge Park Project as the same project. CEQA generally prohibits an agency from “chopping up” a large project into many little ones, each of which might have individually minimal environmental consequences, but collectively may have significant environmental impacts. This “chopping up” of a large project is known as “piecemealing.”

The court explained that the California Supreme Court set forth a piecemealing test in Laurel Heights Improvement Association v. Regents of University of California (1988) 47 Cal.3d 376, 396. Specifically, the Supreme Court held that an EIR must include an analysis of the environmental effects of future expansion if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.

The court in this case explained that application of the Laurel Heights piecemealing test in the courts of appeal has been fact-specific and the case law is not easily harmonized. Nevertheless, the court found that the leading cases could be grouped into potentially useful categories. For instance, there may be improper piecemealing when the purpose of the reviewed project is to be the first step toward future development. There may also be improper piecemealing when the reviewed project legally compels or practically presumes the completion of another action. On the other hand, two projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects have different proponents, serve different purposes or can be implemented independently.

 In this case, petitioner contended the EIR incorrectly defined the project to include only the park and access road. According to petitioner, the “project,” within the meaning of CEQA, included both the Newport Banning Ranch Project and the Sunset Ridge Park Project. Applying the two-part test set forth in Laurel Heights, the court agreed with petitioner that the Newport Banning Ranch Project is “reasonably foreseeable.” Indeed, it appears to be imminent in that the City is already preparing an EIR for that project.

The court disagreed, however, that the Newport Banning Ranch Project “will likely change the scope or nature of the initial project or its environmental effects.” In particular, the court found that the Newport Banning Ranch Project would not be a “consequence” of the City’s park project. For instance, explained the court, the park’s access road is only a “baby step” toward the Newport Banning Ranch Project. Further, the projects have different project proponents, serve different purposes in that one will provide recreational opportunities for existing residents and the other develops a new neighborhood. Moreover, the City’s general plan calls for construction of Bluff Road or its equivalent; the City intends to build the road regardless of whether Newport Banning Ranch is developed. For these reasons, the court rejected petitioner’s claim that the City had impermissibly piecemealed the Sunset Ridge Park Project.

Next, the court addressed petitioner’s claims that the EIR had not adequately addressed the Park Project’s environmental impacts. Petitioner argued that the EIR’s cumulative traffic impact analysis violated CEQA in that it did not list the Newport Banning Ranch Project as one of the projects that could contribute to cumulatively significant impacts. The court found, however, that the EIR accounted for traffic at Banning Ranch because the EIR’s analysis assumed build-out of the City’s general plan, which included a proposed Bluff Road (or equivalent). The court explained that although the EIR could have been clearer on this point, an EIR need not achieve “perfection.”

Second, petitioner argued that the EIR’s conclusion that the Sunset Ridge Park Project would not cause significant growth-inducing impacts lacked substantial evidence because its proposed infrastructure could help serve Newport Banning Ranch. The court explained that an EIR’s growth-inducing impact analysis need not be detailed and the detail required in any particular case depends upon a multitude of facts, including the nature of the project, and the ability to forecast the actual effects the project will have on the environment. Here, the court explained that substantial evidence supported the EIR’s conclusion that the park will not have a growth-inducing impact in regard to the Newport Banning Ranch Project because that project was proposed first. It therefore was not a consequence of the Park Project.

Third, petitioner argued that the EIR’s cumulative biological impacts analysis violated CEQA because it did not mention the Newport Banning Ranch Project. But, as the court explained, the City’s final EIR responses to comments explained that the draft EIR did account for that project in its biological cumulative impacts analysis in that both projects are within the boundaries of the Natural Communities Conservation Plan (NCCP). Compliance with the NCCP will ensure that cumulative impacts are not significant.

Fourth, petitioner argued that the EIR downplayed the Park Project’s significant impact on the habitat of a threatened bird, the California gnatcatcher. Again, the court disagreed. The court explained that substantial evidence in the form of the observation and opinions of the City’s biologist supported the conclusion that the project would only impact 0.68 acres of gnatcatcher habitat. Further, substantial evidence showed the mitigation measures for this impact, which required replacing 0.41 acres of scrub at a two-to-one ratio, was adequate. The court refused to second-guess the expert opinions of the City’s biologists.

Lastly, petitioner argued that the EIR failed to disclose the Park Project’s alleged inconsistency with the California Coastal Act. In particular, petitioner argued that the EIR wrongly concluded that the Park Project was consistent with the Coastal Act’s protection of “environmentally sensitive habitat areas” (ESHAs). The court rejected this claim, finding that the EIR accurately disclosed that no area of the project had been designated an ESHA.

Banning Ranch Conservancy v. City of Newport Beach

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(2012) 211 Cal.App.4th 1209

On December 12, 2012, the Fourth Appellate District upheld the City of Newport Beach’s EIR for the Sunset Ridge Park Project, finding that the city did not improperly “piecemeal” the project and that substantial evidence supported the city’s analyses of cumulative impacts and growth-inducing impacts.

In March 2009, the City announced that it was acting as the lead agency to prepare an EIR for the Newport Banning Ranch Project. The City’s Notice of Preparation (NOP) explained that Newport Banning Ranch Project proposes the development of residential, commercial, and overnight resort accommodations on the Banning Ranch site. Two months after the City issued the NOP for the Newport Banning Ranch Project, the City issued a NOP for the Sunset Ridge Park Project. The NOP for the park project explained that the City proposed to develop an approximately 18.9-acre site with active and passive recreational uses and an access road to the park through Newport Banning Ranch.

The challenge brought by Banning Ranch Conservancy alleged that the City had violated CEQA in certifying the EIR for the Sunset Ridge Project. The trial court denied the petition and petitioner appealed.

Petitioner contended the “project” analyzed in the EIR should have included both the Newport Banning Ranch Project and the Sunset Ridge Park Project. The appellate court disagreed, finding that that the Newport Banning Ranch Project would not be a “consequence” of the City’s park project. The court also rejected all of petitioner’s claims that the EIR had not adequately addressed the Park Project’s environmental impacts, including cumulative and growth-inducing impacts. [RMM Partner Whitman F. Manley and Senior Counsel Jennifer S. Holman represented respondent City].