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California Supreme Court Issues Decision in CBIA v. BAAQMD

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The Supreme Court issued its opinion in California Building Industry Association v. Bay Area Air Quality Management District (2015) __Cal.4th__ (Case No. S213478). In one of the most closely-watched CEQA cases of the year, the Court addressed whether CEQA requires analysis of the existing environment’s impact on the residents and users of a proposed project.

The case involved a challenge to BAAQMD’s adoption of new CEQA thresholds of significance for air pollutants, including Toxic Air Contaminant (TAC) “receptor thresholds” ­– thresholds for “new receptors” consisting of residents and workers who will be brought to the area as a result of a proposed project – and thresholds for GHGs and PM2.5. The thresholds were published in the District’s 2010 CEQA Air Quality Guidelines. CBIA challenged the adoption of the thresholds on various CEQA grounds. Relevant here, CBIA claimed the receptor thresholds were invalid because CEQA does not require analysis of the impacts that existing hazardous conditions will have on a new project’s occupants.

The Court of Appeal narrowly determined that the receptor thresholds have valid applications irrespective of whether CEQA requires an analysis of how existing environmental conditions impact a project‘s future residents or users, and therefore were “not invalid on their face.”

The Supreme Court granted review, but limited the scope of review to the following issue: Under what circumstances, if any, does CEQA require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

In answering this question, the Court held that “agencies subject to CEQA generally are not required to analyze the impact of existing environmental conditions on a project‘s future users or residents. But when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impact of such hazards on future residents or users. In those specific instances, it is the project’s impact on the environment ­– and not the environment’s impact on the project – that compels an evaluation of how future residents or users could be affected by exacerbated conditions.”

Based on its holding, the Court found CEQA Guidelines section 15126.2, subdivision (a), valid only in part. The Court noted that CEQA Guidelines section 15126.2, subdivision (a), indicates that CEQA generally requires an evaluation of environmental conditions and hazards existing on a proposed project site if such conditions and hazards may cause substantial adverse impacts to future residents or users of the project. Finding that CEQA calls upon an agency to evaluate existing conditions in order to assess whether a project could exacerbate hazards that are already present, the Court held that most of subdivision (a) is valid. The Court, however, found that the following two sentences were clearly erroneous and unauthorized by CEQA: “[A]n EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.” The Court therefore, invalidated these two sentences of the Guidelines.

After marching through relevant CEQA sections, the CEQA Guidelines, and case law, the Court concluded that its holding was consistent with the language and purposes of CEQA. The Court also concluded that its decision was not inconsistent with Court of Appeals cases on this issue, including Baird and Ballona Wetlands, among others.

The issue of whether CEQA requires analysis of the environment on a project is sometimes referred to as “CEQA-in-reverse.” The Supreme Court took issue with that characterization, finding it “misleading and inapt.” The Court explained that “[b]ecause CEQA does sometimes require analysis of the effect of existing conditions on a project‘s future residents or users, such analysis is not the reverse of what CEQA mandates.”

The Supreme Court remanded the case to the Court of Appeal for reconsideration in light of the Court’s holding.

Court of Appeal Upholds EIR for Commercial Sand Mining Project but Remands for Failure to Comply With the Public Trust Doctrine

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The First District Court of Appeal upheld the lower court’s determination in part and reversed in part, finding the State Lands Commission’s EIR for a sand mining project adequate, but holding that the Commission did not comply with the public trust doctrine when it granted mineral extraction leases. (S.F. Baykeeper, Inc. v. Cal. State Lands Commission (November 18, 2015) ___Cal.App.4th ___, Case No. A142449.)

In 2014, the State Lands Commission approved the San Francisco Bay and Delta Sand Mining Project, which granted 10-year extensions of mineral extraction leases for dredge mining for marine aggregate sand under the San Francisco Bay. The lease parcels are all on sovereign lands owned by the State of California and are subject to the public trust.

The Commission published a Notice of Preparation in 2007 and released a draft EIR in 2010. Then, in 2011, using a new five-year average baseline against which the EIR measured environmental impacts, the Commission recirculated a revised draft EIR. In 2012, the Commission published a final EIR and a statement of overriding considerations, and approved a reduced project alternative. San Francisco Baykeeper, Inc. filed a petition for writ of mandate alleging that the Commission failed to comply with CEQA and violated the common law public trust doctrine.

Baykeeper argued that the Commission’s use of a five-year average baseline was improper and that the EIR should have used data from 2007, the year of publication of the NOP. The court, however, held that substantial evidence in the record, including data and statistics showing a significant decrease in production of construction aggregate in 2007, supported the baseline in the EIR.

The court also rejected Baykeeper’s arguments with respect to cumulative impacts from sand mining on erosion. The EIR determined that the project would have less-than-significant impacts because sand mining is not likely to cause measurable sediment depletion outside of mining areas. The draft EIR recognized studies suggesting that sand mining in the Bay contributes to erosion on beaches, but found no direct or empirical causal link. But after receiving numerous comments on this issue, the Commission conducted further analysis including new modeling and a review of two additional scientific articles. Again, the Commission found that there was no causal link, and determined in the final EIR that the project would have less than significant impacts on erosion. The court upheld this determination, rejecting Baykeeper’s argument that the Commission improperly used a ratio theory, as that was only one component of the analysis in the EIR and simply reinforced the Commission’s previous conclusions. Further, the court found that the new studies and analysis did not require recirculation because they did not change any of the substantive conclusions in the DEIR and did not significantly alter the main points of disagreement.

The court then turned to the Commission’s interpretation of CEQA Guidelines appendix G thresholds regarding mineral resources. The Commission interpreted the thresholds to question whether the project would interfere with important mineral resource deposit areas that should be conserved for purposes of extraction and not lost to an incompatible use, whereas Baykeeper posited that the EIR should have analyzed whether the project would deplete the mineral resource. The court pointed out that appendix G thresholds are only suggested and lead agencies have the discretion to develop their own thresholds. In addition, the court said that the Commission’s interpretation was supported by state policies regarding mineral extraction, and Baykeeper failed to provide any authority supporting a different interpretation.

Baykeeper also argued, and the court agreed, that the Commission did not properly provide notice to, nor properly consult with, the Coastal Commission or the City of San Francisco. The court emphasized that such a violation “requires reversal only upon proof of prejudice,” and found that Baykeeper failed to identify any information that would have been provided by these agencies but was omitted from environmental review as a result of the Commission’s notice and consultation violations. In fact, Baykeeper did request that the court take judicial notice of a 2015 letter regarding the project, but the court declined to do so because this did not constitute material information that was actually available when the Commission conducted its review. According to the court, because Baykeeper failed to demonstrate that pertinent information was omitted from the review process, the court could not find that the violation of notice and consultation requirements was prejudicial.

Finally, the court turned to the public trust doctrine and concluded that the Commission had an affirmative duty to consider whether the granting of private sand mining leases constitutes a permissible use under the doctrine, and the Commission failed to comply with that duty. The parties agreed that the project authorized the private use of land that is protected by the public trust, and that the Commission did not make any findings pursuant to the doctrine. The court rejected a series of arguments from the Commission, finding in part that it does not have “unfettered discretion to prefer sand mining as a preauthorized public trust use of the lease parcels.” Further, the court held that conducting a CEQA review alone does not fulfill obligations of the public trust doctrine. Thus, the court held that the Commission failed to conduct the required public trust analysis and remanded accordingly.

California Supreme Court Issues Major CEQA Decision in Newhall Ranch Case

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The California Supreme Court issued its highly-anticipated decision in Center for Biological Diversity v. California Department of Fish and Wildlife. The case, which involved a challenge to an EIR prepared for the Newhall Ranch development project in Southern California, provided the first opportunity for the Supreme Court to weigh in on the analysis of greenhouse gas emissions and climate change impacts under CEQA. The Court also addressed important issues regarding mitigation for protected species and exhaustion of administrative remedies.

Background

In 2010, the California Department of Fish and Wildlife (DFW) and the United States Army Corps of Engineers (the Corps) prepared a joint EIS/EIR for two natural resource plans related to Newhall Ranch ­– a proposed land development that included over 20,000 dwelling units as well as commercial and business uses, schools, golf courses, parks and other community facilities. Of relevance in the case, the EIR found that the project’s emissions of greenhouse gases would have a less-than-significant impact on the global climate, and that the project could significantly impact the unarmored threespine stickleback but adopted mitigation measures would avoid or substantially lessen that impact.

Supreme Court Decision

The Supreme Court addressed three issues: (1) Does the EIR validly determine the development’s greenhouse gas emission would not significantly impact the environment? (2) Are mitigation measures adopted for protection of a freshwater fish, the unarmored threespine stickleback, improper because they involve a prohibited take of the fully-protected species? (3) Were petitioners’ comments on two other issues submitted too late in the environmental review process to exhaust their administrative remedies under Public Resources Code section 21177?

Greenhouse Gas Impacts

In analyzing greenhouse gas emissions, the EIR explained that the project would cause an annual emissions increase of 269,053 MTCO2E. The EIR noted that while the increase is “an obvious change to existing, on-site conditions,” the global nature of climate change and the “absence of scientific and factual information” on the significance of particular amounts of GHG emissions make the change insufficient to support a significance determination. The EIR accordingly went on to consider whether the project’s emissions would impede the state’s compliance with the statutory emissions reduction mandate established by AB 32.

The EIR’s method for determining whether the project would impede achievement of AB 32’s goals was modeled on the Air Resources Board’s use, in its Scoping Plan, of comparison to a “business-as-usual” projection as a measure of the emission reductions needed to meet the 2020 goal (determined to be a reduction of 29-percent from business as usual). Because the EIR’s estimate of actual annual project emissions was 31 percent below its business-as-usual estimate, exceeding the Air Board’s determination of a 29 percent reduction from business as usual needed statewide, the EIR concluded that the project’s GHG emissions would not impede achievement of AB 32’s goals and were therefore less than significant for CEQA purposes.

The Court first addressed whether consistency with AB 32’s emissions-reduction goals was an appropriate significance threshold for greenhouse gas emissions. In upholding the use of the threshold, the Court noted that, to the extent a project incorporates efficiency and conservation measures sufficient to contribute its portion of the overall greenhouse gas reductions necessary, one can reasonably argue that the project‘s impact is not cumulatively considerable, because it is helping to solve the cumulative problem of greenhouse gas emissions as envisioned by California law. Under these circumstances, the court explained, evaluating the significance of a residential or mixed use project‘s greenhouse gas emissions by their effect on the state‘s efforts to meet its long-term goals makes at least as much sense as measuring them against an absolute numerical threshold.

Although the Court determined that the EIR employed a legally permissible threshold of significance, it held that the EIR’s finding that the project’s emissions would not be significant under that threshold was “not supported by a reasoned explanation based on substantial evidence.”

The Court explained that DFW erred in assuming that because the Scoping Plan concluded that the State of California, as a whole, had to reduce its GHG emissions by 29 percent compared with the hypothetical “business-as-usual” scenario, the project would not have significant GHG-related impacts if the project itself also reduced its own GHG emissions by 29 percent compared with what would have occurred under a business-as-usual scenario. The Court explained that “the EIR’s deficiency stems from taking a quantitative comparison method developed by the Scoping Plan as a measure of the greenhouse gas emissions reduction effort required by the state as a whole, and attempting to use that method, without consideration of any changes or adjustments, for a purpose very different from its original design: To measure the efficiency and conservation measures incorporated in a specific land use development proposed for a specific location.” In other words, the EIR simply assumed that the level of effort required in one context, a 29-percent reduction from business as usual statewide, would suffice in the other, a specific land use development. The Court held there was no substantial evidence to support that assumption. Therefore, the EIR’s reliance on the project-specific reduction in GHG emissions compared to the business as usual scenario was not sufficient to support the conclusion that GHG impacts would be less than significant.

Although the Court found DFW’s record to be inadequate to support the conclusion that GHG-related impacts were less than significant, the Court did provide some guidance regarding potential alternative approaches to GHG impact assessment that other agencies around the State might follow going forward in the future.

Mitigation for Fully Protected Species

Finding that the project could result in significant impacts to special status wildlife and plant species, DFW adopted numerous mitigation measures for biological impacts. Two mitigation measures provided for collection and relocation of special status fish, including the fully protected unarmored threespine stickleback, during construction in, or diversion of, the Santa Clara River.

The Court held that specifying these actions as mitigation in an EIR violated the Fish and Game Code section 5515’s prohibition on authorizing the taking or possession of fully protected fish in mitigation of project impacts under CEQA. The Court explained that DFW may conduct or authorize capture and relocation of the stickleback as a conservation measure to protect the fish and aid in its recovery, but the agency may not rely in a CEQA document on the prospect of capture and relocation as mitigating a project’s adverse impacts.

Exhaustion of Administrative Remedies

The Court of Appeal held two of the petitioners’ challenges to the EIR, regarding impacts on Native American cultural resources and on steelhead smolt, were not preserved because they were not brought to DFW’s attention until after the public comment period on the Draft EIR had closed.

The Supreme Court disagreed. It held that the petitioners adequately exhausted their administrative remedies for these issues because the issues were presented to DFW during the public review period provided by the Corps pursuant to NEPA, which, under the circumstances, constituted a “public comment period” for purposes of CEQA. The Court was careful to note that it need not decide whether every federally mandated comment period on a final combined EIS/EIR also constitutes a CEQA comment period for purposes of section 21177, subdivision (a). The Court explained that because DFW independently reviewed petitioners’ comments on the final EIS/EIR, contributed its expertise to the drafting of responses and revisions based on those comments, and included those responses and revisions in the final version of the EIR it certified and relied on in making its approval decision, the purpose of the exhaustion requirement had been served. Therefore, the Court concluded that the disputed comments were timely under section 21177, subdivision (a) because they were submitted during a public comment period provided by CEQA.

Concurring and Dissenting Opinions

Justice Corrigan issued a concurring and dissenting opinion. She agreed with the majority that the mitigation measures described in the EIR for the unarmored threespine stickleback constitute a taking prohibited by the Fish and Game Code. She also agreed that the methodology used to assess the significance of GHG emissions was consistent with CEQA. She disagreed, however, with the portion of the majority opinion finding that the GHG analysis was not supported by substantial evidence. According the Justice Corrigan, the level of detail the majority demanded from the EIR was contrary to both the deferential standard of review and the majority’s approval of the methodology used to assess GHG significance.

Justice Chin issued a strongly worded dissenting opinion. He agreed that the threshold of significance used in the EIR to assess GHG impacts was appropriate but disagreed with the majority‘s conclusion that the EIR did not adequately explain why a projected 31 percent reduction in GHG emissions is consistent with legally mandated reduction goals in AB 32. Justice Chin also disagreed with the majority‘s holding that the proposal to move the unarmored threespine stickleback fish out of harm‘s way was a taking under the Fish and Game Code, and that, therefore, the EIR could not call the program a mitigation measure.

Court Upholds EIR for Westside Subway Project

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The Westside Subway Extension public transit project will extend the heavy-rail Purple Line from downtown to the Westside of Los Angeles, bringing much needed relief from the infamous traffic congestion of Los Angeles. Due to concerns about seismic safety and the desire to locate stations with the highest ridership potential, the Los Angeles County Metropolitan Transportation Authority selected an alignment that would travel under Beverly Hills High School. This alignment drew opposition from the Beverly Hills Unified School District and the City of Beverly Hills. The school district and the city both filed CEQA lawsuits; the city also argued that Metro did not properly conduct a hearing for the project. In a published opinion, the Second District Court of Appeal upheld the EIR for the project and determined that Metro properly conducted the hearing on the project. RMM attorneys Whit Manley, Tiffany Wright and Laura Harris represent Metro. A summary of the case can be found here.

 

Sixth District Court of Appeal Finds Amendments to Tree Ordinance Not Exempt from CEQA

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The court held the City of Santa Cruz failed to demonstrate with substantial evidence that amendments to its Heritage Tree Ordinance and Heritage Tree Removal Resolution fell within a categorical exemption to CEQA. (Save Our Big Trees v. City of Santa Cruz (Oct. 23, 2015) ___ Cal.App.4th ___, Case No. CV 178084.)

In 1976, the city adopted its Heritage Tree Ordinance, which established a permit process governing the preservation of heritage trees. “Heritage trees” were defined by their trunk circumference or historical value. In 1989, these protections were extended to “heritage shrubs” and “heritage tree” was redefined to include trees with horticultural significance or those that provided a valuable habitat. The term was redefined yet again to include narrower circumference trees and to include more specific definitions of historical and horticultural significance. In 1998, the City adopted the Heritage Tree Removal Resolution that outlined three circumstances under which a heritage tree or shrub could be altered or removed.

In 2013, the city council approved amendments to the Heritage Tree Ordinance and the Heritage Tree Removal Resolution. These amendments added a “purpose” section to the Ordinance and established replanting requirements for heritage tree alterations and removals. The amendments also revised the definition of heritage trees by removing references to shrubs and narrowed the manner in which a tree could acquire a heritage designation or be deemed horticulturally significant. The amendment prohibited property owners from allowing certain trees to exist in conditions that would be injurious to the trees, and also strengthened the Ordinance’s penalty provision.

The city also amended its Heritage Tree Removal Resolution by revising a provision allowing for removal of heritage trees and introducing additional circumstances under which heritage non-native invasive trees may be removed.

The city claimed the amendments were exempt from CEQA because they assured the “maintenance, restoration, enhancement, and protection” of natural resources and the environment pursuant to the categorical exemptions set forth in Guidelines sections 15307 and 15308 (class 7 and class 8). Opponents of the amendments thought it would be too easy to cut down heritage trees under the revised scheme. The City filed a notice of exemption from CEQA, and petitioners brought suit. The trial court denied the petition, ruling substantial evidence supported the city council’s exemption determination.

The Court of Appeal first looked at the meaning of the phrase “actions…to assure the maintenance, restoration, or enhancement” as used in the exemptions. The court found that the phrase embraces projects that combat environmental harm, but not those that diminish existing environmental protections. The court noted that revisions to the Heritage Tree Ordinance meant that trees could no longer be designated as heritage on a whim. As to the Heritage Tree Removal Resolution, the court observed that the amendments introduced new justifications for removing a tree (including unreasonable financial burden on a property owner, likely adverse effect on health, or invasive species), thereby relaxing removal standards.

The court rejected the city’s arguments that the amendments’ intent was not to encourage tree removal, or that in practice the amendments would not result in more heritage tree removals. The court stated that, even assuming the amended Heritage Tree Removal Resolution will not actually result in additional tree removals, that did not render it an action to assure the maintenance, restoration, or enhancement of the environment. The city also failed to show that the amendments would not increase the number of likely tree removals. The court deemed the replanting requirement, under which removed trees had to be replaced by a certain number of small trees, to be insufficient in terms of providing the same benefits to the urban environment.

Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority

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Beverly Hills Unified School Dist. v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627

The court affirmed the trial court’s denial of the Beverly Hills Unified School District’s (“School District”) and City of Beverly Hills’ (“City”) petitions. The court found substantial evidence supported the Los Angeles Metropolitan Transportation Authority’s (“Metro”) decision not to recirculate the EIS/EIR; that the EIS/EIR adequately discussed air pollution and public health impacts; and that Metro did not violate statutory requirements in conducting its transit hearing, the City received a full and fair hearing, and substantial evidence supported Metro’s decision and findings. RMM attorneys Whit Manley, Tiffany Wright and Laura Harris represented Metro.

Factual and Procedural Background

Metro developed a draft EIS/EIR for a new subway line connecting the Westside of Los Angeles and Downtown. The EIS/EIR analyzed two potential stations in Century City at an equal level of review: the Santa Monica station and the Constellation station. The EIS/EIR found that the Santa Monica station would be compromised by its close proximity to the Santa Monica fault, and that the Constellation site would have a lower seismic risk because it was farther away. The Constellation site was also more centrally located and accessible.

After the end of the comment period on the EIS/EIR, during which Metro received nearly 2,000 comments, Metro’s Board directed that both the Santa Monica and Constellation station options be carried forward for further study. Metro then conducted a tunneling safety investigation that concluded tunneling could be safely carried out beneath Beverly Hills High School and residential neighborhoods using closed-face tunnel boring machines. Metro also conducted additional seismic and geophysical studies that ruled out the Santa Monica station due to its proximity to an active fault zone. The final EIS/EIR therefore recommended that the Century City station be located at the Constellation location.

Three days before the board was scheduled to approve the project and certify the EIS/EIR, the City requested a transit hearing under the Public Utilities Code. Metro held the hearing, at which it submitted documentary evidence to the City and gave the City the floor to speak. The City argued there had not been sufficient investigation and facts for the board to make its siting decision. At its next meeting Metro adopted the findings for the transit hearing and approved the project and certified the EIS/EIR. The City and School District sued.

Court of Appeal Decision

On appeal, the School District contended Metro abused its discretion by refusing to recirculate the EIS/EIR because the final version contained significant new information regarding seismic risks and environmental issues arising from tunneling under the high school. The City challenged the procedural validity of the transit hearing, and also argued that Metro was required to recirculate the EIS/EIR because of significant new air quality impacts disclosed in the final EIS/EIR, and that the EIS/EIR’s analysis of localized air quality and health impacts was inadequate.

The court disagreed. Giving substantial deference to Metro in its decision not to recirculate, the court found the EIS/EIR’s designation of the Santa Monica station as the “base” station and the Constellation station as the “option” immaterial, given that the agency had evaluated both locations equally. The court also found the EIS/EIR had discussed the potential environmental impacts of both stations, including the impacts of tunneling under the high school, and the public had been given an opportunity to comment on those impacts. The elimination of the Santa Monica station in the final EIS/EIR was not “significant new information,” but rather eliminated a potential source of seismic hazard.

The City did not cite to any law supporting its assertion that the EIS/EIR was required to include analysis showing how the actual construction emissions would specifically impact public health. The court also rejected the City’s argument that the EIS/EIR had to be recirculated because of the originally-reported increase in emissions. Metro had already adopted an addendum to the final EIS/EIR that corrected the original overstatement.

The court also rejected contentions related to the alleged unlawfulness of the transit hearing. The court noted that the decision on the station location and alignment was legislative, not adjudicative, and that the City did not need to cross-examine Metro’s witnesses because the dispute pertained to the information contained in the submitted documents. No right to cross-examine Metro witnesses existed after the hearing. Furthermore, the documentary evidence was not hearsay as it was not used as proof of the matter asserted, but simply to show that the evidence existed.

On Remand, Court of Appeal Finds Berkeley Hillside Home Exempt from CEQA

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The First District Court of Appeal reversed its prior holding and, under the substantial evidence standard established by the Supreme Court, upheld the City of Berkeley’s determination that exemptions applied to a single-family home project, and that no exception applied to those exemptions. The court therefore affirmed the denial of appellants’ petition. (Berkeley Hillside Preservation v. City of Berkeley (2015) ___Cal.App.4th___ , Case No. A131254.)

The case was discussed in our previous post, found here.

The decision on remand highlights the effect of the deferential substantial evidence standard. The court also importantly distinguished the Salmon Protection & Watershed Network (SPAWN) and Lotus decisions.

On remand, the Court of Appeal noted it had previously—incorrectly—held that where there is a fair argument that a proposed activity may have an effect on the environment, that in itself is an unusual circumstance triggering an exception to CEQA’s categorical exemptions. The Supreme Court held this reasoning was inconsistent with the Legislature’s purpose in creating categorical exemptions which, by definition, encompass classes of projects that are found not to have a significant effect on the environment. The Court held, however, that showing the project will have a significant effect on the environment does tend to prove that the project is unusual in some way. Thus, the court must find both substantial evidence of unusual circumstances and a fair argument that there is a reasonable probability of potentially significant effects due to those unusual circumstances.

On remand, the court noted that despite acknowledging that substantial evidence supported application of the exemptions, appellants continued to argue that the home would nevertheless be “unusual.” Appellants “fail[ed] to come to terms with the stringent standard of review that Berkeley Hillside directs us to apply” and similarly failed come to terms with evidence pointing against their contention. Where there is substantial evidence supporting an agency’s exemption determination, the court must affirm the finding even if contradictory evidence exists.

The court also found the project’s traffic control measure was not a proposed subsequent action taken to mitigate any significant effect of the project, and therefore was not a mitigation measure precluding application of the categorical exemptions. In SPAWN, the project was specifically conditioned on measures intended to mitigate impacts to threatened species habitat, which precluded application of a categorical exemption. In Lotus, the project EIR improperly compressed environmental impacts and mitigation measures into a single issue, rendering it impossible to determine whether the project would have a significant effect on the environment absent mitigation. The court here found the construction traffic management plan distinguishable. It noted that “managing traffic during the construction of a home is a common and typical concern in any urban area, and especially here given the narrow roads in the area and the volume of dirt to be removed.” Thus, the plan did not constitute mitigation that would otherwise preclude application of a categorical exemption or improperly entwine mitigation measures and project features.

Fourth District Court of Appeal Upholds Traffic Baseline Derived from Historical Occupancy of Shopping Center as Opposed to the “Existing Conditions”

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On October 9, 2015, the Fourth District ordered partial publication of North County Advocates v. City of Carlsbad (Sept. 10, 2015) ___Cal.App.4th___, Case No. D066488), excluding Sections III, IV, and V. The published section of the Opinion provides guidance on the proper use of an historic baseline by lead agencies for certain common types of urban land use projects with potentially fluctuating future impacts.

Westfield proposed to renovate a shopping center in Carlsbad that had originally been built more than 40 years prior. The city approved Westfield’s request to renovate a former Robinsons-May store and other small portions of the shopping center. Petitioners challenged the city’s approval, arguing that the project’s EIR used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it had been only periodically occupied for the past six years. The trial court rejected petitioners’ contentions, and the Court of Appeal affirmed.

The Court of Appeal started by discussing the rule stated in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 457, that an agency’s decision to deviate from the normal rule for determining a baseline cannot be disturbed by a reviewing court if substantial evidence supports the agency’s “determination that an existing conditions impacts analysis would provide little or no relevant information or would be misleading as to the project’s true impacts.”

The Court then provided an overview of cases that have dealt with the issue of a historic baseline. In Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, 322, the California Supreme Court disapproved of the air district’s selection “as the project’s baseline for nitrogen oxide emissions the amount the boilers would emit if they operated at the maximum level allowed under ConocoPhillips’s existing permits,” because “ConocoPhillips had never operated them at that level” in the past. The Court in Communities for a Better Environment explained that the deviation from the normal rule was impermissible because the district’s selected baseline was hypothetical and based on maximum permitted operating conditions that were not the norm and had never before occurred at the facility. In contrast, the Court of Appeal in Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 340, upheld the City of Beaumont’s use of a historic baseline derived from fluctuating historical water use of past agricultural operations on the project site.

Here, the Court upheld the City of Carlsbad’s selection of a traffic baseline that assumed full occupancy of the shopping center as opposed to the “existing conditions” of the shopping center with recent key vacancies. The Court found that the baseline derived from the “fluctuating occupancy” of the shopping center over the past few decades was more like the baseline derived from historical water use in Cherry Valley Pass Acres than the entirely hypothetical baseline in Communities for a Better Environment. Concluding that substantial evidence of actual historical operations of the shopping center space over a 30-year period supported the City’s selection of a historic baseline, the Court distinguished Communities for a Better Environment.

The unpublished portions of Opinion addressed whether substantial evidence supported the City’s selected traffic mitigation measure (Section III), whether the City adequately responded to comments on the Draft EIR (Section IV), and whether the trial court erred by awarding the city all of its requested costs (Section V).

Governor Signs Planning and Zoning Law Bill

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On October 9, 2015, Governor Brown signed into law a number of “hot” bills covering a range of topics. One bill was relevant to planning and zoning practice:

AB 744 (Chau) is a density bonus law that pertains to what kind of parking restrictions and space demands agencies can impose on projects meeting certain criteria (proximity to transit, affordability). This will be important for future affordable housing projects.

The bill notes that currently, “Planning and Zoning Law requires, when a developer of housing proposes a housing development within the jurisdiction of the local government, that the city, county, or city and county provide the developer with a density bonus and other incentives or concessions for the production of lower income housing units or the donation of land within the development if the developer, among other things, agrees to construct a specified percentage of units for very low, low-, or moderate-income households or qualifying residents. Existing law requires continued affordability for 55 years or longer, as specified, of all very low and low-income units that qualified an applicant for a density bonus. Existing law prohibits a city, county, or city and county from requiring a vehicular parking ratio for a housing development that meets these criteria in excess of specified ratios. This prohibition applies only at the request of the developer and specifies that the developer may request additional parking incentives or concessions.”

AB 744 will “additionally prohibit, at the request of the developer, a city, county, or city and county from imposing a vehicular parking ratio, inclusive of handicapped and guest parking, in excess of 0.5 spaces per bedroom on a development that includes the maximum percentage of low- or very low income units, as specified, and is located within1/2 mile of a major transit stop, as defined, and there is unobstructed access to the transit stop from the development.”

The bill also prohibits a local government “from imposing a vehicular parking ratio, inclusive of handicapped and guest parking, in excess of specified amounts per unit on a development that consists solely of units with an affordable housing cost to lower income households, as specified, if the development is within 1/2 mile of a major transit stop and there is unobstructed access to the transit stop from the development, is a for-rent housing development for individuals that are 62 years of age or older that complies with specified existing laws regarding senior housing, or is a special needs housing development, as those terms are defined. The bill would require a subject development that is a for-rent housing development for individuals that are 62 years of age or older or a special needs housing development to have either paratransit service or unobstructed access, within 1/2 mile, to fixed bus route service that operates at least 8 times per day. The bill would authorize a city, county, or city and county to impose a higher vehicular parking ratio based on substantial evidence found in an areawide or jurisdictionwide parking study, as specified.”

The text of the bill is available at: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB744

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