Archives: May 2025

Fourth District Court of Appeal Strikes Down San Diego County’s VMT Significance Thresholds

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In Cleveland National Forest Foundation v. County of San Diego __Cal.App.5th__, the Fourth District Court of Appeal held that San Diego County’s thresholds of significance for VMT-related impacts were not supported by substantial evidence.

Background

In 2022, following the shift from traffic congestion to vehicle miles traveled (VMT) as the measure of transportation impacts under CEQA, San Diego County adopted transportation-related thresholds of significance for CEQA review as part of a Transportation Study Guide. Among thresholds for other types of projects, the Transportation Guide included thresholds for infill and small projects. Projects that fell under the applicable threshold would have a less than significant transportation impact and be screened from further VMT analysis.

Cleveland National Forest Foundation and another environmental group sued the County, alleging that the infill threshold violated CEQA because it omitted a numeric VMT target, and that both the infill and the small project thresholds were not supported by substantial evidence.

The trial court upheld both thresholds, finding that they were consistent with CEQA and OPR guidance. The petitioners appealed.

The Court of Appeal’s Decision

Reversing the trial court in part, the Court of Appeal held that the thresholds were not supported by substantial evidence.

The petitioners first argued that the infill threshold violated CEQA because it did not have a numerical VMT target. The court disagreed, finding that CEQA does not prohibit a qualitative infill threshold as a matter of law. The petitioners cited CEQA Guidelines section 15064.3, subdivision (b)(3), which “allows agencies to rely on VMT analysis but only where existing models or methods are not available to estimate VMT.”  The court found, however, that this provision did not apply to thresholds, but rather for individual projects. Additionally, OPR’s Technical Advisory on Transportation Impacts recommends using transportation screening thresholds based on qualitative project characteristics. As such, the absence of a numerical threshold did not violate CEQA.

The court next considered the petitioners’ argument that the thresholds were not supported with substantial evidence. Looking first at the infill threshold, the petitioners argued that the County improperly assumed that because infill development generally results in fewer VMT than non-infill development, any infill development under the threshold would have a less than significant impact. The County countered by pointing to  County staff’s opinion that SB 743 was premised on a legislative conclusion that infill development will typically reduce VMT and greenhouse gas emissions. Siding with the petitioners, the court explained that, while the County may rely on staff opinions for substantial evidence, the opinions must be based on a “firm factual foundation.” The court found the County’s justifications were based on the general assumption rather than facts. The court determined that the County was required to make some showing that development consistent with the infill threshold would normally or likely result in an insignificant transportation effect.

Additionally, the court found other evidence in the record indicating that the County’s assumptions were doubtful. For example, consultant reports in the record stated that additional evidence to support the determination that the infill locations would have a less than significant impact would be required and that most locations in the County tend to generate VMT at or about the regional mean. These statements indicated that the infill threshold did not preclude significant impacts. The court also stated that the California Air Pollution Control Officer’s Association’s Handbook was not helpful to the County’s findings because it expressly exempts infill from its methodologies and is inconsistent with the County’s Transportation Study Guide.

Lastly, the court considered whether there was substantial evidence to support the small project threshold. The petitioners argued that the County utilized a recommendation by OPR but failed to support its adoption of this recommendation with evidence that projects under this threshold would have a less than significant transportation impact based on local conditions in San Diego County. The court again sided with the petitioners. According to the court, the fact that OPR recommended thresholds does not excuse the County from providing evidentiary support for the assumption that projects under the threshold would not create significant transportation impacts under local conditions. Accordingly, the court concluded that the small project threshold was also not supported by substantial evidence.

First District Court of Appeal Clarifies CEQA’s Consultation Requirements Under AB 52

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In Koi Nation of Northern California v. City of Clearlake (2025) ___Cal.App.5th__, the First District Court of Appeal set aside a mitigated negative declaration (MND) for a proposed hotel, holding the City failed to comply with CEQA’s tribal consultation requirements under Assembly Bill (AB) 52. The court found the City did not maintain a sufficient record of tribal consultation, failed to engage in meaningful and agreement-seeking consultation, and failed to properly conclude the consultation.

Background

AB 52, signed into law in 2014, amended CEQA to provide that “[a] project with an effect that may cause a substantial change in the significance of a tribal cultural resource is a project that may have a significant effect on the environment.” (Public Resources Code, § 21084.2) As amended by AB 52, CEQA includes definitions for tribal cultural resources and includes formal tribal notification and consultation requirements to facilitate agencies’ consideration of tribal “expertise concerning their tribal cultural resources.” (Public Resources Code sec. 21080.3.1, subd. (a).)

This case arose out of a proposed four-story hotel on 2.8 acres in the City of Clearlake. During initial planning, the City informed the Koi Nation of the proposed project and learned that the site was located near property where a Koi Nation ancestor had resided. Following formal notification from the City, and a meeting between the Koi Nation and City representatives, the Koi Nation submitted a letter requesting mitigation measures to avoid potential impacts to tribal cultural resources. Despite this letter and other follow-up letters, the Koi Nation did not receive any other communication from the City until the Notice of Intent to adopt an MND was circulated.

After the City adopted the MND, the Koi Nation filed a petition for writ of mandate alleging that City failed violated CEQA, including the requirements of AB 52. The trial court denied the petition, finding the Koi Nation did not satisfy the formal response requirements to initiate consultation. The Koi Nation appealed.

The Court of Appeal’s Decision

Formal Notice and Request for Consultation Were Satisfied

The court held that formal notification and response requirements were satisfied by both the City and the Koi Nation. The City sent formal notification to the Koi Nation representative and the Koi Nation representative responded with a written request for consultation. Despite some lack of clarity, the court held there was sufficient context to establish the City was aware the request for consultation was on behalf of the Koi Nation.

The City Failed to Maintain a Sufficient Administrative Record

Following the court’s determination that consultation was properly requested, the court found that the administrative record was insufficient to conclude that the consultation met CEQA’s statutory requirements. CEQA requires that an environmental document must include a general description of the information obtained during consultation, which in this case should have been included in the MND (or in a confidential appendix). Here, the City did not include any information discussed in their meetings with the Koi Nation, the Koi Nation’s concerns, nor any information regarding the mitigation measures requested by Koi Nation. Additionally, there was no record to indicate why the City had adopted some mitigation measures but not others. Rather, the MND only indicated that a meeting with the Koi Nation occurred. Given the lack of information, the court held that the MND did not sufficiently inform decisionmakers or the public.

The City Failed to Engage in Meaningful Consultation

The court also held that the City did not meet AB 52’s consultation requirements.  Consultation is defined as the “[m]eaningful and timely process of seeking, discussing, and considering carefully the views of others, in a manner that is cognizant of all parties’ cultural values and, where feasible, seeking agreement.” (Gov. Code, § 65352.4.) The court determined there was no discussion with the Koi Nation regarding the City’s decision to reject some of the tribe’s requested mitigation measures, nor did the City inform the Koi Nation of such decisions.

The court also found that the City failed to consult with the Koi Nation regarding its determination that the project would have no significant impacts on tribal cultural resources. The City and the Koi Nation did not discuss the contents of the archeological consultant’s report upon which the City’s determination was based, and despite their requests, the City did not give the Koi Nation a copy of the report.  As a result, the court found that the City failed to consider the value and significance of resources to the Koi Nation, which is the purpose of AB 52.

Additionally, AB 52 requires agencies to seek agreement where feasible during consultation. Specifically, the parties in the consultation are required to act in good faith and make reasonable effort to reach a mutual agreement. (Pub. Resources Code, § 21080.3.2, subd. (b)(2).) The court found nothing in the record to indicate that the City sought an agreement with the Koi Nation or that an agreement was infeasible. Since there was no discussion about the City’s reasoning or conclusions related to the project, there was no opportunity for the parties to come to a mutual agreement.

The City Failed to Complete Consultation

While not necessary for the court to consider since there was no meaningful consultation, the court also noted that the City never concluded the consultation process. An agency may certify an EIR or adopt an MND for a project with a significant impact on an identified tribal resource only if: (1) the consultation process occurred and concluded, or (2) the tribe requested consultation and failed to engage in the consultation process, or  (3) the agency provided formal notification and the tribe failed to request consultation within 30 days. (Pub. Resources Code, § 21082.3, subd. (d).) Consultation is considered concluded when the “parties agree to measures to mitigate or avoid a significant effect, if a significant effect exists, on a tribal cultural resource,” or when “[a] party, acting in good faith and after reasonable effort, concludes that mutual agreement cannot be reached.” (Pub. Resources Code, § 21080.3.2, subd. (b).)

The City argued there was no evidence of a significant effect on tribal cultural resources, and therefore, consultation was properly concluded. The court held, however, that the “report did not obviate the need for the City to consider the significance of resources to the Koi Nation in identifying tribal cultural resources.” Without such consideration, the City’s determination that there would be no significant impacts to tribal cultural resources carried no weight. And since there was no evidence that the City made a reasonable effort to reach a mutual agreement with the Koi Nation, the consultation could not be deemed concluded.

The court concluded that the City’s failure to comply with AB 52 was a failure to proceed in a manner required by law. The court also found the City’s failure to comply with the AB 52 consultation requirements meant that information the Legislature has deemed necessary for informed decision-making and public participation was not provided to the decisionmakers or the public, resulting in a prejudicial abuse of discretion.