On January 15, 2014, the California Supreme Court granted review of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Case No. S214061). The case was previously heard in Division One of the First Appellate District, which issued an unpublished opinion in favor of the petitioner group on September 26, 2013.
The action arose when petitioner Friends challenged the San Mateo County Community College District’s decision to demolish a building complex on the district’s College of San Mateo campus to make room for a new parking lot. The District’s decision was supported by an addendum to a six-year-old previously adopted negative declaration covering campus-wide renovation plans. Friends argued the demolition project violated CEQA and sought to compel the district to prepare an EIR for the demolition and parking lot project as a “new project”, rather than a change to the previously adopted campus renovation plans under CEQA. The trial court granted Friends’ petition. The Court of Appeal affirmed, opining that, as a matter of law, the demolition project was a “new” project, thereby requiring environmental review beyond an addendum.
In its petition for review, the District requested the Supreme Court clarify the appropriate level of judicial deference due to agencies in subsequent environmental review situations. The District presented the following issue to the court: “[i]f a lead agency approves modifications to a previously reviewed and approved project through an addendum, may a court disregard the substantial evidence underlying the agency’s decision to treat the proposed action as a change to a project rather than a new project, and go on to decide as a matter of law that the agency in fact approved a ‘new’ project rather than a modification to a previously approved project, even though this ‘new project’ test is nowhere described in CEQA or the Guidelines?”
Although CEQA sets a relatively low threshold for requiring the preparation of an EIR for a project of first impression, the District noted, Public Resources Code section 21166 establishes a presumption against subsequent review; a later EIR is not required unless new or substantially worse environmental impacts would occur as a result of the changes to the previously-reviewed project. The inquiry was thus whether the District’s project changes would require major revisions of the previous negative declaration “due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” The District argued that the project changes were appropriately presented in the addendum, which showed there would be no more severe environmental impacts due to these changes—in fact, less total building area would be demolished than was originally planned in 2007, due to the District’s interim decisions to renovate, rather than demolish as originally planned, a couple of other buildings on the campus.
The District argued that the Court of Appeal had relied on a heavily criticized outlier case, Save Our Neighborhood v. Lishman, in reaching its decision, furthering a split among the appellate districts regarding the appropriate standard of review to apply to an agency’s conclusions under section 21166. In Lishman, the Third Appellate District announced a new standard whereby it could decide for itself as a threshold matter of law whether a challenged action constituted a change to a previously reviewed and approved project or a new project altogether. The District, in its petition, discouraged the use of Lishman’s “new project” standard, which affords no deference to agencies, does not derive from CEQA or the Guidelines, and does not provide workable guidance to agencies in understanding what factors should be taken into consideration in the “changed project” versus “new project” determination. Instead, the District urged that courts should follow case law holding substantial evidence applies to review of an agency’s determination that section 21166 applies to proposed actions, including a decision to prepare an addendum to a previously reviewed document.
The District also noted that the Court of Appeal failed to identify any flaws in the analysis presented in the addendum and thus no prejudicial error committed by the District. In doing so, the District argued, the appellate court had prioritized form over substance and created needless expense for the district and state taxpayers in requiring that a new initial study be prepared.
RMM attorneys, James G. Moose and Sabrina V. Teller, partners in the firm, and John T. Wheat, associate, represent the San Mateo County Community College District in the litigation.
The docket for the case is available here.