Archives: February 2023

FOURTH DISTRICT HOLDS SUPPLEMENTAL EIR MAY BE REQUIRED FOR PROPOSED OFFICE COMPLEX BECAUSE GHG EMISSIONS WERE NOT WITHIN THE SCOPE OF EARLIER PROGRAM EIR; DUE TO UNUSUAL CIRCUMSTANCES, PROJECT DID NOT QUALIFY FOR INFILL EXEMPTION

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In IBC Business Owners for Sensible Development v. City of Irvine (2023) 88 Cal.App.5th 100, the Fourth District Court of Appeal held that the City of Irvine improperly relied on a CEQA addendum in approving a new office complex – the Gemdale project – on a site that is part of a larger, previously approved business complex. The court found the City’s conclusion that the project would not cause a new or substantially more severe impact related to greenhouse gas emissions than previously identified in a 2010 program EIR (PEIR) prepared for the business complex was not supported by substantial evidence. Additionally, the court held that the unusual circumstances exception precluded the application of the Class 32 Infill Exemption.

Background

The Irvine Business Park was originally developed in the 1970s. It primarily includes office uses, but also includes substantial industrial and warehouse uses and some residential uses. In 2010, the City adopted a Vision Plan for the business park, amending the City’s general plan to establish a development guide for creating a mixed-use community within the park.

The City prepared the 2010 PEIR to assess the environmental effects of the Vision Plan. The 2010 PEIR included an analysis of the buildout of the entire Vision Plan and anticipated that, so long as future site-specific development projects within the business complex would not result in new environmental effects or require additional mitigation measures, the City would approve the future project without additional environmental review. Any future projects not consistent with the assumptions made in the 2010 PEIR’s analysis, however, would potentially require additional environmental review.

In July 2019, real party in interest, Gemdale 2400 Barranca Holdings, LLC (Gemdale), applied to the City to develop an over-five-story, 275,000-square-foot office complex on a site within the Irvine Business Complex currently developed with a two-story, 70,000 square-foot office complex. Although the 2010 PEIR had assumed the project site would not be developed further, the City determined the project was within the scope of the 2010 PEIR. The City prepared an addendum to the 2010 PEIR, concluding that the potentially significant impacts of the Gemdale project had been adequately analyzed in the 2010 PEIR and that those impacts would be avoided or mitigated pursuant to mitigation measures adopted for the Vision Plan. City staff also opined that the project might be exempt from CEQA, but the City did not expressly determine that the project was exempt and did not file a notice of exemption.

The City approved the project in 2020. Petitioner sued. The trial court found in favor of petitioner and issued a writ of mandate directing the City to set aside the project approvals. The City and Gemdale appealed.

Court of Appeal’s Decision

Consistency with the 2010 PEIR

The court first considered whether the City correctly determined that the Gemdale project was consistent with the scope of the 2010 PEIR’s impact analysis, thereby avoiding the need for further environmental review. The court held that the City correctly determined that the project would not cause any new significant traffic impacts, but lacked substantial evidence to support the conclusion that the Gemdale project’s GHG emissions would not be greater than what was assumed in the 2010 PEIR.

Regarding traffic impacts, the addendum concluded that the project would not cause any new impacts because the project would not significantly increase vehicle delays – as measured by the level of service (LOS) methodology that the 2010 PEIR employed – at any of the intersections or roadway segments analyzed in the addendum traffic study. An analysis of the project’s vehicle miles traveled (VMT) was not conducted.

The petitioner argued that section 15064.3 of the CEQA Guidelines, which was added to the CEQA Guidelines in 2018, required the City to conduct a VMT analysis for the project. That Guideline section provides that VMT is the most appropriate measure of transportation impacts and that LOS impacts shall no longer be considered environmental impacts. The court concluded, however, that CEQA Guidelines section 15064.3 did not apply to the addendum. The Guidelines expressly state that agencies need not comply with section 15064.3 until July 1, 2020. Although the City approved the Gemdale project and the addendum on July 14, 2020, the City began preparing the addendum in 2019, well before the effective date of Guidelines section 15064.3.

Regarding GHG emissions, the addendum explained that the project would incorporate all of the climate change mitigation measures included in the 2010 PEIR, and would thus achieve the 2010 PEIR’s “net zero” emissions goal. Further, according to the addendum, the project would not change the overall development intensity for the Irvine Business Complex anticipated in the 2010 PEIR and would therefore not increase GHG emissions beyond what was assumed in the 2010 PEIR. When the City approved the Vision Plan, it granted each parcel within the Irvine Business Complex a “development intensity budget” and allowed parcels to transfer part of this budget to other parcels. Here, the project obtained the necessary development intensity budget from other parcels within the Irvine Business Complex. The City determined that a mere shift in the development intensity from one site in the complex to another would not result in a substantial increase in GHG emissions.

The court disagreed with the City. It explained that the City’s conclusion assumed, without substantial evidence, that transferring development intensity would merely change the source of GHG emissions without changing the total amount of emissions. But neither the 2010 PEIR nor the addendum analyzed the effect of such a transfer on the 2010 PEIR’s net zero emissions goal.  For this reason, the court concluded that substantial evidence did not support the City’s finding that the project’s emissions would be less than significant.

Additionally, the court observed that the City had prepared a draft GHG emissions analysis that indicated that the project might have significant emissions that could not be mitigated to a less-than-significant level. While the City did not ultimately include the analysis in the addendum, the court concluded that the draft analysis constituted record evidence that contradicted the City’s significance finding.

Categorical Exemption

The court rejected the City’s alternative argument that the project was exempt from CEQA review as an infill development project. Without analyzing the elements of the exemption itself, the court held that the project did not qualify for the exemption because the “unusual circumstances” exception applied to the project.

The court explained that the City’s failure to make an express finding as to whether the unusual circumstance exception applied to the project constrained the court’s ability to affirm the City’s conclusion that the project is exempt. Citing Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, the court explained that, to affirm an implied finding, a court must “assume that the entity found that the project involved unusual circumstances and then conclude that the record contains no substantial evidence to support either (1) a finding that any unusual circumstances exist … or (2) a fair argument of a reasonable possibility that any purported unusual circumstances identified by the petitioner will have a significant effect on the environment.” The court declined to affirm under either option.

First, the court concluded that there was substantial evidence to support a finding of unusual circumstances. The court explained that the project was disproportionately large in comparison to the neighboring buildings, required a massive increase in its development intensity budget, and would more than double the amount of office space originally allocated to its parcel despite occupying only a fifth of the parcel.

Second, the court determined that there was a reasonable possibility that the project would have significant environmental impacts. The court pointed to the evidence in the record that the project might have significant GHG emissions that could not be mitigated to a less-than-significant level. The court determined that this impact might be attributed to the unusual size and density of the project. Thus, according to the court, the project fell into the “unusual circumstances” exception and was not categorically exempt from CEQA review.

By Louisa I. Rogers[/vc_column_text][/vc_column][/vc_row]

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