Tag: Tahoe Regional Planning Agency

THIRD DISTRICT FINDS EIR FOR OLYMPIC VALLEY RESORT PROJECT FAILED TO ADEQUATELY CONSIDER IMPACTS TO LAKE TAHOE’S UNIQUE ENVIRONMENTAL RESOURCES

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In Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, the Third District Court of Appeal found that the EIR for a resort development project in Olympic Valley violated CEQA because it contained an inadequate description of the environmental setting and failed to adequately consider the project’s potential air quality, water quality, and noise impacts on Lake Tahoe and the surrounding Basin.

FACTUAL & PROCEDURAL BACKGROUND

In 1983, Placer County adopted the Squaw Valley General Plan and Land Use Ordinance to guide development and growth within the Olympic Valley (formerly Squaw Valley) area. The 4,700-acre area lies a few miles northwest of Lake Tahoe in the Sierra Nevada mountains.

In 2011, Real Party in Interest Squaw Valley Real Estate LLC proposed the first project under the general plan and ordinance—the Village at Squaw Valley Specific Plan—which included two components to be built over a 25-year timeframe: (1) an 85-acre parcel that included 850 lodging units, approximately 300,000 square feet of commercial space, and 3,000 parking spaces (“the Village”); and (2) an 8.8-acre parcel that included housing for up to 300 employees (“the East Parcel”).

The County approved the project and certified its associated EIR in 2016. Following the County’s approval, Sierra Watch filed a petition for writ of mandate, alleging the County violated CEQA in numerous ways. The trial court rejected Sierra Watch’s claims. Sierra Watch appealed.

COURT OF APPEAL’S DECISION

In the published portion of the opinion, the Third District considered whether the EIR sufficiently described the project’s environmental setting and adequately considered water quality, air quality, and noise impacts.

EIR’s Description of the Environmental Setting

The court first considered whether the EIR’s discussion of the environmental setting adequately addressed Lake Tahoe and the Lake Tahoe Basin, particularly with respect to the settings for water and air quality.

Water Quality Setting

As to water quality, the Court of Appeal agreed with Sierra Watch’s assertion that the EIR’s hydrology and water quality analysis failed to adequately describe the regional setting specific to Lake Tahoe. Though the Draft EIR explained that the project would be “located within the low elevation portion of the approximately eight square mile Squaw Creek watershed, a tributary to the middle reach of the Truckee River (downstream of Lake Tahoe),” it concluded that VMT generated by the project would not exceed TRPA’s cumulative VMT threshold, and thus, would not affect the Lake’s water quality. The court rejected this rationale by noting that the EIR’s description failed to discuss the importance of the Lake’s current condition or the relationship between VMT and the Lake’s water clarity and quality, thereby depriving the public of an ability to evaluate and assess impacts on the Lake.

Air Quality Setting

As to air quality, the court found that the EIR’s description of the air quality setting and baseline was more substantial, and thus, adequate. The EIR properly explained the applicable air quality standards and presented data on the current concentrations and sources of criteria air pollutants in the area.

EIR’s Analysis of Impacts

Air Quality Impacts

The court agreed with Sierra Watch’s assertion that the EIR failed to meaningfully assess the project’s traffic impacts on Lake Tahoe’s air quality. The EIR concluded the project would not exceed TRPA’s cumulative VMT threshold but acknowledged it would likely exceed TRPA’s project-level VMT threshold for basin traffic. Nevertheless, the EIR ultimately concluded that TRPA’s VMT significance thresholds did not apply because the project was not located in the Tahoe Basin. The court found this rationale “provided mixed messages.” Rather than summarizing and declaring TRPA’s VMT thresholds as inapplicable, the court held that the EIR should have determined whether the Project’s impacts on Lake Tahoe and the Basin were potentially significant.

The court also agreed that the EIR underestimated the Project’s expected cumulative VMT in the Basin by failing to consider expected VMT from other anticipated projects. Even though the County addressed this issue in post-FEIR responses to comments, the court held that the public was denied an opportunity to “test, assess, and evaluate the newly revealed information and make an informed judgment as to the validity of the conclusions to be drawn therefrom.”

Construction Noise Impacts

The court rejected Sierra Watch’s initial assertion that the EIR failed to adequately disclose the duration of construction noise at any specific location, particularly at the Village parcel. The EIR properly explained that that portion of the Project would be constructed over 25 years based on market conditions, and thus, it would be too speculative to identify specific noise levels for every single receptor.

The court agreed, however, with Sierra Watch’s assertion that the EIR failed to analyze the project’s full geographic range of noises by ignoring activities occurring farther than 50 feet from sensitive receptors. The court reasoned that a “lead agency cannot ignore a project’s expected impacts merely because they occur…’outside an arbitrary radius.’” The EIR only considered impacts to sensitive receptors within 50 feet of construction—yet, according to the court, “ignore[d] potential impacts to a receptor sitting an inch more distant[,] even though the noise levels at these two distances would presumably be the same.” Though the County explained this analysis was standard practice, the court contended that an agency “cannot employ a methodological approach in a manner that entirely forecloses consideration of evidence showing impacts to the neighboring region [and] beyond a project’s boundaries.”

Finally, the court agreed that mitigation requiring “operations and techniques … be replaced with quieter procedures where feasible and consistent with building codes and other applicable laws and regulations” was too vague because “in effect, [it] only tells construction contractors to be quieter than normal when they can.” The court concluded that the measure improperly deferred which construction procedures can later be modified to be quiet but did not explain how these determinations are to be made.

– Bridget McDonald

*RMM Attorneys Whit Manley, Andee Leisy, Chip Wilkins, and Nathan George represented Real Party in Interest Squaw Valley Real Estate LLC in this litigation. 

Eastern District Denies Sierra Club’s Motion for Summary Judgment, Grants Tahoe Regional Planning Agency’s Cross-Motion for Summary Judgment in Challenge to Lake Tahoe Regional Plan Update

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On April 7, 2014, the United States District Court for the Eastern District of California issued an order in Sierra Club v. Tahoe Regional Planning Agency (April 7, 2014), E. D. Cal. Case No. 2:13-cv-00267 denying plaintiffs Sierra Club and Friends of the West Shore’s motion for summary judgment, and granting defendant Tahoe Regional Planning Agency’s (TRPA’s) cross-motion for summary judgment. The outcome upheld TRPA’s approval of its Regional Plan Update (RPU), which guides all land-use planning and development within the Lake Tahoe Region.

Background

In 2012, TRPA certified the final EIS for and approved its RPU. Key components of the RPU include TRPA’s adoption of a Regional Transportation Plan and the incorporation of Lake Tahoe’s Total Maximum Daily Load (“TMDL”) into its Regional Plan.  Plaintiffs challenged the approval, contending the RPU violated the Tahoe Regional Compact’s requirements.  Plaintiffs overarching contention was that TRPA failed to adequately evaluate potential impacts associated with the RPU’s strategy of loosening certain development restrictions in order to incentivize redevelopment in urban areas and remove existing development in outlying areas, based on the premise that this strategy would enable more environmentally sensible land use.  Plaintiffs also argued TRPA’s findings that the RPU would achieve and maintain adopted threshold standards was not supported substantial evidence as required under the Compact.  TRPA, in contrast, characterized the RPU as incorporating contemporary planning principles, current science, and a focus on redevelopment incentives to convert substandard development into modern, environmentally beneficial, visually attractive, walkable, bikeable communities.   TRPA argued that its finding were supported by substantial evidence and that the PRU would accelerate threshold attainment by creating incentives to restore sensitive lands and increasing BMP compliance.

Both parties agreed that disposition at the summary judgment stage was appropriate given that the case was based on an administrative record. The court refused to consider documents outside the record which post-dated the TRPA’s approval of the RPU. The court reviewed Sierra Club’s claims that TRPA violated the Compact in approving the RPU under an arbitrary and capricious standard, which confers deference to agencies.

The District Court’s Decision

Plaintiffs first argued that TRPA failed to analyze the potential localized impacts from concentrating impervious surface coverage in urban centers. Plaintiffs contended that TRPA’s failure to conduct a watershed-level analysis on the effect of geologically-concentrated coverage and its decision to conduct only a region-wide study was arbitrary and capricious. The court disagreed holding TRPA’s choice of modeling was an exercise of its scientific expertise and entitled to deference. In reaching this conclusion, the court stated that although Plaintiffs may prefer a different model, TRPA’s choice of the TMDL model was supported by substantial evidence and the EIS explained why Plaintiffs’ proposed watershed-level analyses were neither feasible nor necessary given the programmatic nature of the EIS.  The court further held that TRPA was not required to address “every possible scientific uncertainty” and that the EIS’s region-wide analysis was consistent with the regional scale of the RPU.  The court found TRPA’s decision to defer site-level analysis was reasonable because site-level analysis was required under the RPU when local jurisdictions approve Area Plans or when specific development projects are proposed.   The court also rejected Plaintiffs’ argument that compliance with Tahoe TMDL was not mandatory and that TRPA could not rely on the TMDL to support its findings that water quality thresholds would be attained under the RPU.

Plaintiffs’ second argument was that the EIS failed to examine the cumulative impacts to soil conservation resulting from increased development and concentrated impervious surface coverage in urban centers. The court, however, found that TRPA’s conclusion that the RPU would not have a significant effect on local soil conditions was supported by the record. The court stated although EIS’s discussion of the RPU’s soil related impacts was not as thorough as its discussion of water-quality impacts, this was consistent with the fact that the vast majority of comments focused on RPU’s potential impact on water quality.

Next, Plaintiffs argued that TRPA improperly relied on BMP installation and maintenance in concluding that the RPU would not significantly affect water quality.  TRPA responded to this argument noting that under the RPU all new or re-development is required to install and maintain BMPs as a condition of project approval.  Plaintiffs took issue with the past failures of the agency to enforce BMP retrofit requirements for existing development, but the court found that this view overlooked the RPU’s inclusion of programs designed to incentivize and improve the maintenance of BMPs for these parcels. Given that BMP maintenance is mandatory under TRPA ordinances, the court opined, the agency was entitled to conclude that its BMP ordinance would be largely followed.

Finally, TRPA argued that, contrary to plaintiffs’ assertions, its conclusion that the RPU would attain and maintain ozone threshold standards was supported by substantial evidence. The court found TRPA was not required to make a finding that the Lake Tahoe Air Basin is currently in attainment of all threshold standards. Rather, it was only required to find that the RPU implemented a plan that would achieve and maintain threshold standards. The RPU implemented a number of programs and policies designed to reduce automobile dependency. This, with other findings, constituted substantial evidence supporting TRPA’s conclusion that the Regional Plan, as amended by the RPU, would achieve and maintain ozone threshold standards.

The court also rejected Plaintiffs’ argument that TRPA failed to adequately explain its rationale for changing its conclusion regarding one of its ozone threshold in the Final EIS.  The court noted that data unavailable when TRPA published its draft EIS had led to a change its conclusion.  This new data indicated the region was in attainment with the all ozone threshold standards. The court deferred to TRPA’s scientific determination that data from a single Nevada monitoring site was representative of conditions throughout the Lake Tahoe Air Basin based on historical trends and that this data was sufficient to evaluate attainment of ozone thresholds.  The court noted that TPRA acknowledged the limited data available from monitoring sites during the relevant time frame and took this into account in its determination that there was a “moderate” confidence level for this conclusion.  The court found TRPA’s conclusion was supported by substantial evidence stating that TRPA was not required to demonstrate complete certainty in its findings.

RMM partners Whitman Manley and Howard (Chip) Wilkins represented TRPA.