(2013) 221 Cal.App.4th 316

The Third District Court of Appeal held that Nevada County did not need to recirculate a draft EIR after a new “potentially feasible” alternative was proposed following circulation of the draft document. In this case, which involved a proposed shopping center, the county planning commission endorsed a staff-recommended alternative that emerged after the county published the final EIR. The petitioner argued that the county should have prepared and recirculated a revised draft EIR adding the alternative proposal. The court disagreed. According to the court, the duty to recirculate arises only if the information is “significant new information,” and the agency’s determination whether the new information is “significant” will be upheld if supported by substantial evidence.

The opinion provides helpful guidance on when the need for recirculation is triggered by a new “potentially feasible” alternative that is proposed after the draft EIR has been circulated. The decision carefully explains the burden of proof and the elements of proof for a challenge brought under CEQA Guidelines section 15088.5, subdivision (a)(3). In essence, a petitioner has the burden to demonstrate that no substantial evidence supported the agency’s decision not to recirculate the EIR. To demonstrate an abuse of discretion, a petitioner must show that no substantial evidence supports any of the following express or implied “negative findings” by a CEQA lead agency: The alternative was not actually feasible; the alternative was not “considerably different from” alternatives already analyzed in the EIR; and the alternative would not “clearly lessen the significant environmental impacts” of the project as approved.

Here, the court concluded that the petitioner did not meet its burden to show that the staff alternative was considerably different from those already analyzed in the EIR. The EIR looked at four alternatives. Staff’s recommendation provided more open space than any of these alternatives, but that in itself was not enough to show that it was considerably different from those already analyzed in the EIR. Nor did the petitioner explain how the staff alternative would clearly lessen the significant impacts of the project.

The petitioner also argued the county violated CEQA by failing to adopt findings regarding the feasibility of the staff alternative. According to the petitioner, once the planning commission found the staff alternative sufficiently feasible to recommend approval of the alternative to the board, the board had to either adopt the staff alternative or make findings setting forth the reasons why the staff alternative was not feasible. Again, the court disagreed. The petitioner did not argue, and thus conceded, that the draft EIR analyzed a reasonable range of alternatives. Under such circumstances, the board was not required to make an express finding of feasibility as to an alternative that emerged after publication of the EIR.

Finally, the petitioner argued the county violated CEQA by relying on future, unapproved traffic improvements to conclude the project’s traffic impacts would be insignificant. The road in question – Combie Road – was projected to operate at LOS F under its existing designation as a “major collector.” The county’s traffic study determined that the road actually functioned as a “minor arterial” because it served as a thoroughfare through the area. Under this alternative functional designation, LOS was adequate. The court ruled the county acted within its discretion in focusing on how the road actually functioned, rather than based on its formal designation. The record showed the county planned to widen Combie Road, and that the project was fully funded, lending further support to the county’s decision to evaluate the road as a “minor arterial.” Because the analysis focused on the functioning of the road, rather than on future traffic improvements, the county was not obliged to condition the project on the future expansion of the roadway.

(RMM attorneys James G. Moose, Tiffany K. Wright and Laura M. Harris represented the real party in interest and respondent, KKP Lake of the Pines, LLC.)

(2014) 226 Cal.App.4th 1572

The First District Court of Appeal determined that a petitioner’s lawsuit involving the removal of trees on a college campus was time-barred under CEQA’s statute of limitations. The case, which was filed June 17, 2014, shows the importance of filing timely CEQA lawsuits.

The controversy arose when the San Mateo Community College District removed and pruned more than 200 eucalyptus trees on the northern edge of the its campus. The district began removing trees on December 28, 2010. Citizens for a Green San Mateo petitioned the trial court for a writ of mandate on July 1, 2011, alleging that the district violated CEQA and was required to prepare an EIR to study the tree removal. The trial court found the challenge timely and granted the petition, finding the district violated CEQA. On appeal, the district argued the 30-day statute of limitations period established by Public Resources Code section 21167, subdivisions (b) or (e) applied to bar the CEQA lawsuit because the district filed a Notice of Determination. The NOD described the mitigated negative declaration prepared by the district when it approved an overall community college expansion project in 2007. The negative declaration determined that the proposed project would result in the removal and pruning of an unknown number of trees, but that tree plantings would mitigate any unavoidable tree removal, resulting in a less than significant impact.

The appellate court rejected the petitioner’s claim that the tree removal was “materially different” from the activities discussed in the mitigated negative declaration and subsequent NOD. The court emphasized that the term “project,” for the purposes of CEQA, does not mean each separate governmental approval that may ultimately be required to complete the proposed action. The court concluded that the record demonstrated the tree removal was a subsequent activity encompassed within the scope of the overall expansion project. Since the district filed an NOD recording its approval of the expansion project, and the public was on notice that trees could be removed anywhere on campus as a result of expansion project, the 30-day statute of limitations established by section 21167, subdivisions (b) and (e) applied to bar the lawsuit.

The court went on to determine that even if the 180-day limitations period, which applies when no NOD is filed, applied to this case, the suit was still time-barred because the district committed to the tree removal at a public meeting November 17, 2010, and the petitioner did not file for a writ with the trial court until July 1, 2011. The appellate court emphasized that section 21167, subdivision (a), does not require any special notice requirement to start the 180-day clock; all that is required is a formal decision by a public agency to carry out or approve the project. Therefore, the petition was time-barred, even assuming the tree removal was not described in the mitigated negative declaration certified for the campus expansion project.

(RMM attorneys James G. Moose, Sabrina V. Teller and John T. Wheat represented the San Mateo Community College District.)