Blog

FIRST DISTRICT UPHOLDS EIR FOR OAKLAND A’S BASEBALL STADIUM, WITH EXCEPTION OF IMPROPERLY DEFERRED WIND MITIGATION MEASURE

General Posted by   

In East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, the First District Court of Appeal considered a challenge to the City of Oakland’s EIR for the new Oakland A’s new baseball stadium and adjoining development at the Port of Oakland’s Howard Terminal. The court upheld the EIR, but for finding that it improperly deferred mitigation for wind impacts caused by the Project.

Background

The Oakland A’s proposed developing a new 35,000-seat ballpark with adjacent residential and commercial uses, on a 50-acre site largely used for truck parking and container storage at Howard Terminal in the Port of Oakland.

The City of Oakland prepared and certified an EIR and adopted a statement of overriding considerations. The project approved by the City was identified as “Alternative 3” in the EIR, which included a grade-separated vehicle crossing over the railroad tracks adjacent to the site.

East Oakland Stadium Alliance (EOSA), Capitol Corridor Joint Powers Authority (CCJPA), and Union Pacific Railroad (UPR) filed writ petitions challenging the EIR. The Alameda County Superior Court found the EIR adequate on all accounts, with the exception of one wind mitigation measure that the court found to lack an adequate performance standard.

Only EOSA appealed. The City and the A’s cross-appealed. On appeal, EOSA raised arguments related to potential impacts from the adjacent railroad, displacement of current activities at the project site, air quality, GHG emissions, hazardous materials, and cumulative impacts. On cross-appeal, the City and the A’s argued that the wind mitigation measure was not improperly deferred.

The Court of Appeal’s Opinion

Railroad Impacts

The project sits adjacent to at-grade railroad tracks running down the center of a major street separating downtown Oakland from the waterfront. The City adopted a suite of mitigation measures to reduce potential impacts resulting from safety hazards for people visiting the ballpark, but concluded that the project would still have significant and unavoidable rail impacts.

EOSA challenged the mitigation measures on several grounds. First, it argued a measure requiring fencing on both sides of the track was infeasible because UPR had indicated that the City could not use the railroad right-of-way for a pedestrian pathway. Rejecting this argument, the court noted that even if UPR had an exclusive right-of way, the fence itself could still be installed and this would produce the desired effect of preventing pedestrians from crossing the tracks.

EOSA also argued that a pedestrian overcrossing required by the mitigation measures would not be effective due to its proposed location. The court disagreed, pointing to the EIR’s conclusion that the overpass would divert some, but not all, visitors from using at-grade crossings. This, coupled with the City’s acknowledgment in the statement of overriding considerations that the potential hazards could not be fully mitigated, constituted substantial evidence to support the City’s conclusions.

Finally, EOSA argued that the EIR failed to adequately consider mitigation that would require the temporary closure of at-grade crossing during ballgames and other events. The court determined, however, that EOSA had not exhausted its administrative remedies on this claim. Although EOSA submitted lengthy comments that the EIR should have considered permanently closing at-grade crossing, and only briefly mentioned potential temporary closures in passing, under a heading and buried in a paragraph that was unrelated to the topic. The court held that was not enough to fairly apprise the City of this issue, thus rendering it unexhausted and ineligible for judicial review.

Air Quality

The EIR’s air quality analysis assumed the project would require emergency generators to run for 50 hours per year, including for testing and maintenance. EOSA argued that the EIR was instead required to assume 100 hours of annual generator use, on top of testing and maintenance, based on guidance from the Bay Area Air Quality Management District (BAAQMD). The City countered that the EIR only needed to assess reasonable consequences, and 100 hours of generator use was not a reasonable assumption. This conclusion, the court held, was supported by substantial evidence. The court noted that the BAAQMD guidance applies across the entire Bay Area, which includes places designated “high fire risk,” but the project area is not so designated; therefore, it would not be reasonably foreseeable to assume the project would use emergency generators for 100 hours per year. The City also adopted a mitigation measure restricting testing and maintenance to 20 hours per year, which allowed for a 30-hour “buffer” for actual emergency use.

GHG Emissions

EOSA argued that the City improperly deferred mitigation for GHG emissions, and that “no net increase” in GHG emissions was not an appropriate performance standard. The court again disagreed, finding the measure met each of the requirements in CEQA Guidelines section 15126.4, subdivision (a)(1)(B). The court held that the City unquestionably committed to the mitigation because it prohibited approval of any permit allowing the project to proceed prior to preparation of a GHG mitigation plan. The court held that “no net additional GHG emissions” was an appropriate performance standard, and that the mitigation identified both a series of measures that must be incorporated into the plan, along with a five-page list of possible measures that could be implemented to meet the standard. The court concluded that the mitigation was therefore adequate.

Cumulative Impacts

EOSA also argued that the EIR was deficient because it did not include a possible expansion of the Port’s turning basin in the cumulative impacts analysis. When the EIR was prepared, however, the Port and the U.S. Army Corps of Engineers had only undertaken a feasibility study for the potential project. The court rejected EOSA’s argument that the feasibility study rendered the expansion a “probable future project” for which cumulative impacts must be analyzed. Because there was not yet a relatively complete plan of action and there were no details sufficiently certain to allow for meaningful analysis, the EIR was not required to include the potential turning basin expansion in its cumulative impact analysis.

Adequacy of Analysis

EOSA next argued that the EIR’s analysis of Alternative 3 did not include sufficient detail to support the City approval of the alternative. The City argued that the court need not reach this argument because EOSA again failed to exhaust its administrative remedies. EOSA countered that it was not required to exhaust this claim because it related to the City’s findings, and not the EIR itself. The court disagreed. According to the court, Alternative 3 was the iteration of the project that the City ultimately approved—thus, if EOSA could frame an argument as a “challenge the City’s findings” instead of as a “challenge to the EIR” in order to avoid CEQA’s exhaustion requirement, then doing so would allow any challenge to the adequacy of an EIR to be raised without exhausting. This, in turn, would improperly circumvent the procedural requirements of CEQA.

Wind

The court rejected the City and the A’s cross-appeal and upheld the trial court’s grant of the petition with respect to the wind mitigation measure. The EIR concluded that the project will have significant and unavoidable wind impacts because of tunneling effects created by the construction of tall buildings. The City adopted a mitigation measure that required a wind tunnel analysis for buildings that exceed 100 feet, and required the A’s to work with a wind consultant to identify mitigation strategies to prevent, to the extent feasible, additional exceedances of the City wind threshold, without unduly restricting development potential.

The court concluded that this measure improperly deferred mitigation under CEQA Guidelines section 15126.4, subdivision (a)(1)(B). The court held that the measure did not include a specific performance standard, but instead provided a “goal.” Specifically, the measure improperly allowed for balancing (i) reduced impacts to the maximum extent feasible, and (ii) refraining from unduly restricting development potential, without informing the public where that balance would be struck. The measure also did not define “unduly” or “development potential.” And with the exception of mentioning a few possible design changes, the measure did not identify the types of potential actions that could feasibly achieve the performance standard. The court also concluded that the adoption of a statement of overriding considerations did not relieve the City of its obligation to include a specific performance standard. For all of these reasons, the court held, the measure improperly deferred mitigating the project’s wind impacts.

SECOND DISTRICT UPHOLDS CITY OF LOS ANGELES’ RELIANCE ON INFILL CEQA EXEMPTION FOR APPROVAL OF ELDERCARE FACILITY, REJECTS LOCAL ZONING AND COASTAL ACT CLAIMS

General Posted by   

In Pacific Palisades Residents Association, Inc. v. City of Los Angeles (2023) 88 Cal.App.5th 1338, the Second District Court of Appeal denied a neighborhood group’s challenge to a proposed eldercare facility under local zoning laws, the California Environmental Quality Act (CEQA), and the California Coastal Act.

Background

The project applicant proposed constructing an eldercare facility on a vacant one-acre lot surrounded by both residential and commercial uses in Pacific Palisades. The lot, located about two and a half miles from the coast, within the coastal zone, had been zoned for commercial use since 1978 and, at the time of the lawsuit, consisted of bare flat dirt behind a chain link fence. The proposed facility included 82 residential rooms and a public bistro housed in a building that would be one story higher than the tallest nearby structure.

The City of Los Angeles undertook an extensive review process, which consisted of multiple public hearings and opportunities for public comment. The City’s Zoning Administrator, Planning Commission, Planning and Land Use Management Committee, and City Council all concluded that the project complied with the zoning code and was exempt from CEQA pursuant to the Class 32 exemption for infill development. The City Council issued a Coastal Development Permit and approved the project.

A group of neighbors acting as the Pacific Palisades Residents Association filed a petition for writ of mandate against the City and the Coastal Commission, challenging the project approval under the City’s zoning code, the Coastal Act, and CEQA.

The trial court denied the petition. Petitioner appealed.

Court of Appeal

Los Angeles Zoning Code

The court denied Petitioner’s claims under the City’s zoning code. Petitioner argued that the facility was larger than what was permitted under the code, but the court explained that the “plain English interpretation of the zoning code” foreclosed any argument that the facility was not permitted on the lot.

Request for Judicial Notice

In its arguments arising under the zoning code, Petitioner relied, in part, on extra-record evidence that was not presented to the trial court. Petitioner sought judicial notice of the additional evidence on two grounds, both of which were rejected by the court. First, Petitioner argued that the evidence was admissible because the City had raised an “incorrect” interpretation of its zoning code at trial, requiring additional research by appellant. The court disagreed, because “the neighbors’ time to research this trial issue was before or during trial”; Petitioner could not introduce the evidence for the first time on appeal. Second, Petitioner argued that extra-record evidence was admissible to resolve a future issue to avoid the need for a separate appeal of post-judgment matters. The court, however, declined this “unprecedented invitation to attempt to moot a future appeal in the name of judicial economy.”

CEQA

With respect to CEQA, Petitioner argued that the Class 32 exemption did not apply because the proposed project was not architecturally compatible with the neighborhood and would impact views. The court explained that these “aesthetic judgments” are subjective findings that are appropriately reviewed for substantial evidence. As a result, the court was required to defer to the City’s aesthetic determinations so long as a reasonable person could have reached the same conclusions. Here, the court held, the City’s decision that the project was compatible with local plans was “eminently reasonable” because the neighborhood had been a subdivision of Los Angeles for decades and the area was not undeveloped seashores or wilderness. The court therefore upheld the City’s application of the Class 32 CEQA exemption.

Coastal Act

The City issued a Coastal Development Permit pursuant to section 30600, subdivision (b) of the Coastal Act. Petitioner filed an appeal with the Coastal Commission, which determined that the appeal did not raise a “substantial issue.” Again applying a deferential standard of review, the court explained that it is for the Commission, not the court, to weigh conflicting evidence. Petitioner offered evidence in support of its complaints about the project, but it failed to show that the Commission’s decision was unsupported by substantial evidence. Thus, the court rejected Petitioner’s challenge.

– Elizabeth Pollock

SECOND DISTRICT UPHOLDS CLASS 1 EXEMPTION FOR PROJECT TO EXPAND SINGLE-FAMILY HOME

General Posted by   

In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second District Court of Appeal upheld a finding by the City of Arcadia that a project to expand and add a second story to a single-family home was categorically exempt from CEQA. In doing so, the court concluded that petitioner failed to exhaust its administrative remedies regarding the scope of the exemption and failed to demonstrate that the city improperly relied on the exemption.

Background

Over a nearly two-year period beginning in June 2018, project applicant submitted, revised, and re-submitted an application to her homeowners’ association (HOA), seeking to expand the first floor of her single-family home and add a second floor. In April 2020, after the HOA’s architectural review board twice rejected her project, the applicant appealed the rejection to the city’s planning commission.

In May 2020, after a noticed hearing, the planning commission voted to conditionally approve the project, so long as various proposed changes were incorporated. The planning commission found that the project qualified for a Class 1 categorical exemption for modifications to existing structures.

The applicant’s neighbor appealed the planning commission’s approval to the city council. The city council upheld the planning commission’s decision.

The neighbor then formed the petitioner organization and filed a petition for writ of mandate challenging the city’s compliance with CEQA. Shortly thereafter, the city filed a Notice of Exemption for the project. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

The court held that (1) petitioner failed to exhaust its administrative remedies on the issue of whether the project was within the scope of the Class 1 exemption, (2) the city did not abuse its discretion by impliedly determining that no exceptions to the categorical exemption applied, and (3) petitioner failed to demonstrate that the cumulative impacts exception precluded the city’s reliance on the Class 1 exemption.

Failure to Adequately Exhaust

Petitioner argued that the city erred in determining the Class 1 exemption applied and cited the neighbor’s comments during his administrative appeal as support that petitioner had adequately exhausted on this issue. The court disagreed, reasoning that the neighbor (or anyone else) failed to articulate why the Class 1 exemption was inapplicable. Instead, the court noted that the neighbor made only “general references to potential environmental impacts” that did not fairly apprise the city of petitioner’s specific objection that the exemption did not apply.

The court rejected petitioner’s argument that its member had impliedly objected to the city’s exemption finding by requesting an EIR. The court conceded that a request for an EIR suggests a belief that no exemption applies but explained that such a request nevertheless does not adequately notify the agency about the substance of the challenge.

The court acknowledged that CEQA’s exhaustion requirement may be excused if the agency provides no opportunity for public comment or fails to give notice; however, it concluded that petitioner’s failure to exhaust was not excused in this case. Although the city did not consistently identify the specific subdivision of the Class 1 exemption that it relied on, the court concluded that this discrepancy was immaterial.

Exceptions to the Exemption

The court next rejected petitioner’s argument that the city failed to proceed in a manner required by law by failing to expressly consider whether an exception precluded the application of the Class 1 exemption. The court explained that the city’s determination that the Class 1 exemption applied necessarily included an implied finding that no exception precluded its application. The court reasoned that, while the city could not ignore contrary record evidence when making its finding, the finding did not need to be express.

After noting that there was “some question” whether petitioner’s comments during the administrative appeal preserved an argument that the cumulative impacts exception precluded the application of the Class 1 exemption, the court concluded that, regardless, that the argument failed on its merits.

The court concluded that petitioner’s general reference to “cumulative environmental effects caused by multiple large-scale projects,” along with identification of various nearby projects, did not amount to evidence of actual impacts that would result from the project and other nearby projects. The court rejected petitioner’s evidence that the cumulative impacts exception applied as “pure speculation” that could not, without more, preclude application of the Class 1 exemption.

Louisa Rogers

FIRST DISTRICT HOLDS EIR FOR UC BERKELEY’S LONG RANGE DEVELOPMENT PLAN AND STUDENT HOUSING PROJECT INADEQUATE

General Posted by   

In Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, the First District Court of Appeal found the EIR for the UC Berkeley long range development plan (LRDP) and a student housing project inadequate. While the court rejected most of the petitioners’ claims, it held that the EIR failed to consider alternative locations for the housing project, and it did not analyze potential noise impacts caused by students in residential neighborhoods near campus.

Background

In 2021, UC Berkeley adopted the LRDP to guide the university’s development decisions through the 2036-2037 academic year. The LRDP estimated future enrollment levels for planning purposes, but did not establish any enrollment levels. In part, the LRDP provides a strategy to increase housing in response to both a decades-long housing crisis in the region and a projected future increase in the campus population.

Consistent with the LRDP, the UC Regents began planning two student housing projects. One of those projects is located at People’s Park, a historically significant landmark associated with social and political activism in Berkeley. People’s Park is now occasionally used as a venue for special events, but is predominantly used “by transient and unhoused people in multiple encampments” and “is afflicted with crime.”

The Regents certified a hybrid EIR including a program-level review of the approval and implementation of the LRDP as well as a project-level review of the two housing projects.

Petitioners Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group filed a petition for writ of mandate alleging the EIR violated CEQA. The trial court denied the petition. Petitioners appealed.

Court of Appeal’s Decision

The court rejected petitioners’ arguments that (1) the EIR’s analysis of alternatives to the LRDP was insufficient, (2) the EIR improperly restricted the LRDP’s geographical scope to the campus, and (3) the EIR’s treatment of impacts related to population growth and displacement of existing residents was flawed. However, the court agreed with petitioners that the EIR’s failure to consider alternative locations for the People’s Park housing project was not adequately justified. Additionally, the court concluded that the EIR did not adequately consider potential noise impacts from student parties on nearby residential neighborhoods.

LRDP Alternatives

The court concluded that the Regents did not violate CEQA by omitting an alternative to the LRDP that would limit student enrollment. The court explained that, because the complicated process for determining enrollment levels is separate from the LRDP process, any alternative requiring a cap in future enrollment levels would change the nature and scope of the plan. Given the constrained purpose of the LRDP to “guide future development regardless of the actual amount of future enrollment,” the EIR did not need to include a capped enrollment alternative.

Scope of LRDP

The court also rejected petitioners’ argument that the Regents improperly segmented the LRDP by focusing only on the campus and neighboring properties and excluding more distant locations. While petitioners argued that the LRDP arbitrarily omitted more remote properties, the court reasoned that it was “perfectly rational” for the Regents to focus primarily on the campus and adjacent properties in the LRDP and develop separate plans for more distant locations.

Population Growth and Displacement

Rejecting a third argument by petitioners, the court concluded that the EIR sufficiently addressed impacts from population growth and displacement of existing residents. The EIR found that the LRDP would induce unplanned population growth, but concluded that this impact could be mitigated to a less-than-significant level by ensuring that the Regents provide local and regional planning entities with annual information about university-driven population growth. Despite petitioners’ assertion otherwise, the court declined to assume that these planning entities would fail to plan for the population growth projected in the LRDP.

Additionally, the court rejected petitioners’ argument that the EIR’s treatment of displacement impacts was inadequate. The court concluded that the EIR properly analyzed these impacts and that petitioners failed to produce sufficient evidence to demonstrate that displacement caused by the project would exacerbate homelessness and in turn lead to environmental impacts.

Site Alternatives to People’s Park

While the court found that the EIR sufficiently analyzed alternatives to the LRDP, it agreed with petitioners that the EIR failed to consider a reasonable range of alternative locations for the housing development at People’s Park. The EIR determined that the housing project would have a significant impact on historical resources, due to the demolition of People’s Park and construction of new housing that would be incompatible with other nearby historical resources. Nevertheless, the EIR did not contain an in-depth analysis of any alternative locations for the housing project.

The court concluded that the EIR’s reasons for declining to consider alternatives were insufficient. The EIR explained that an alternative location might reduce the amount of new housing or require the university to acquire new properties, and that many potential alternative sites were smaller than People’s Park or were close to historical resources. According to the court, these reasons were vague and unequivocal, and did not demonstrate that no feasible alternatives existed.

The Regents argued that developing another site would fail to meet one of the project’s primary objectives—to revitalize the People’s Park site—and the record demonstrated that this was one of the project’s main purposes. The court, however, noted that the cited objective referred generally to “a UC Berkeley property” and not to People’s Park, specifically. The court also determined that the Regent’s arguments for rejecting other locations, even if potentially valid, were not reflected in the EIR.  Similarly, the court concluded that the EIR did not support the Regents’ argument that all of the proposed housing sites would need to be developed to achieve the EIR’s objectives. Moreover, observing that these explanations differed from those in the EIR, the court concluded that the Regents “hid the ball” and failed to adequately inform the public about the project.

Noise impacts

Finally, the court held that the EIR was deficient because it did not analyze potential noise impacts from student parties. In doing so, it determined that substantial evidence in the record supported a fair argument that the LRDP and the housing projects might result in a significant noise impact.

The court acknowledged that “stereotypes, prejudice, and biased assumptions about people served by a CEQA project” cannot constitute substantial evidence for a CEQA claim; however, it rejected the Regents’ argument that concerns about noise impacts from student parties relied merely on improper stereotypes about “loud and unruly drunk college students.”

The court explained that the record revealed noise from student parties to be “a longstanding problem” in the residential neighborhoods near UC Berkeley’s campus. Among other things, the City of Berkeley had previously declared such parties to be a public nuisance and restricted high-density student housing in private homes, neighborhood groups pointed to hundreds of noise citations related to student parties, and the university itself had collaborated with various community groups to address complaints about noisy parties. Given the evidence demonstrating that student party noise was already a problem, the court concluded that there was a reasonable possibility that “adding thousands more students to these same residential neighborhoods would make the problem worse.”

Louisa Rogers

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

General Posted by   

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

General Posted by   

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

Administrative Appeal Does Not Toll CEQA’s Statute of Limitations Where the Administrative Appeal Process Does Not Cover CEQA Issues

General Posted by   

In American Chemistry Council v. Department of Toxic Substances Control (2022) 86 Cal.App.5th 146, the Department of Toxic Substances Control (DTSC) adopted a regulation listing spray polyurethane foam systems as a priority product of concern under California’s “Green Chemistry” law and the Safer Consumer Products regulations. The Fifth District Court of Appeal held that petitioners’ CEQA challenge to the listing decision was untimely. The court also held that the listing decision complied with the Administrative Procedure Act (APA) and was within the scope of DTSC’s authority.

Background

Spray foam systems are a popular type of spray-applied insulation. Since 2014, DTSC has identified spray foam systems as a potential priority product under its Safer Consumer Products program and the Green Chemical law. After preparing several technical studies, in March 2018, DTSC submitted a final regulatory package for the listing regulation to the Office of Administrative Law. At that time, DTSC also issued a notice of exemption under CEQA for the listing regulation. The Office of Administrative Law approved the listing on April 26, 2018.

On May 30, 2018, petitioner American Chemistry Council submitted an informal dispute resolution request to have the department withdraw the listing. This dispute resolution process was authorized by the Safer Consumer Products regulations. DTSC ultimately rejected the request and associated administrative appeal on February 25, 2019.

On August 9, 2019, the American Chemistry Council and General Coatings Manufacturing Corporation filed a petition for writ of mandate and complaint challenging the listing regulation under the APA and CEQA. The trial court rejected petitioners’ APA claims, but found that the department had violated CEQA. Both sides appealed.

The Court of Appeal’s Decision

DTSC argued that petitioners’ CEQA claim was time-barred under CEQA’s 180-day statute of limitations because petitioners did not file their lawsuit until more than a year after DTSC made its listing decision. Petitioners claimed that DTSC’s listing decision was not final until the informal dispute resolution and appeal process was complete, so the statute of limitations did not begin to run until that time. The Court of Appeal agreed with DTSC, holding petitioners’ CEQA claim was time-barred.

The Court of Appeal first explained that the Safer Consumer Products’ regulatory structure for administrative appeals does not cover CEQA issues. The court observed that the dispute resolution and appeal process set forth in the Safer Consumer Products regulations is limited to a subset of disputes arising out of those same regulations. Nothing in the dispute resolution regulations suggests that CEQA issues may be resolved as part of that process. Accordingly, petitioners were under no duty to exhaust their administrative remedies under CEQA through that dispute resolution process.

Petitioners argued that, even if they were not required to exhaust their administrative remedies on their CEQA claims through the Safer Consumer Product’s dispute resolution process, the statute of limitations under CEQA did not begin to run until the administrative appeal process was completed because there was no final agency action until that process was resolved. The court rejected this argument, explaining that CEQA’s limitations period begins to run on the date the project is approved by the public agency. That period is not retriggered on each subsequent date that the public agency takes some action toward implementing the project, such as DTSC’s decision to deny the administrative appeal.

Here, by the time the Office of Administrative Law approved and filed the regulatory packet on April 26, 2018, DTSC had publicly voiced its intent to list spray foam systems as a priority product, taken and responded to public comments on that decision, issued a notice of exemption under CEQA, and released a final statement of reasons for the action. At that point, DTSC had made a firm commitment to the listing. Thus, the court determined, the statute of limitations on the CEQA claim began to run no later than April 26, 2018, when the Office of Administrative Law approved the listing. Because petitioners did not file their lawsuit within 180 days of that date, the CEQA claim was time-barred.

The court also held that DTSC did not exceed its authority under the Green Chemistry law or violate the APA in listing spray foam systems as a priority product. Contrary to petitioners’ arguments, DTSC was not required to establish a set exposure level for the chemical in question because the Green Chemistry law focuses on potential for exposure, not the extent of exposure. Further, the record supported DTSC’s conclusion that even a miniscule exposure could harm certain individuals. Additionally, DTSC substantially complied with applicable requirements governing the listing’s economic-impact analysis. And DTSC had a rational basis for rejecting voluntary alternatives to the listing decision.

–Laura Harris

SECOND DISTRICT HOLDS 90-DAY LIMITATIONS PERIOD FOR ACTIONS TO “ATTACK, REVIEW, SET ASIDE, VOID, OR ANNUL” LAND USE DECISIONS, RATHER THAN 4-YEAR PERIOD PROVIDED BY POLITICAL REFORM ACT, APPLIED TO ACTION CHALLENGING ALLEGEDLY CORRUPT PERMITTING DECISIONS

General Posted by   

In AIDS Healthcare Foundation v. City of Los Angeles (2022) 86 Cal.App.5th 322, the Second District Court of Appeal held that the 90-day statute of limitations in Government Code section 65009, for actions to “attack, review, set aside, void, or annul” certain land use decisions, barred challenges to land use decisions made by City officials alleged to be involved in an extensive bribery scheme.

Background

The Los Angeles City Council planning and land use management (PLUM) committee has various roles, including reviewing and recommending proposed real estate development projects. In 2020, one former member of the PLUM committee was arrested, and another was indicted, for allegedly accepting bribes and engaging in other corrupt behaviors in relation to PLUM committee work. Both members left the PLUM committee in the fall of 2018.

In August 2020, AIDS Healthcare Foundation (AHF) filed suit against the City, alleging that an “ongoing corruption scandal regarding the approval of real estate projects” violated the Political Reform Act of 1974 (PRA or Act). AHF sought an order restraining all building permits granted by the City while the corrupt former members served on the PLUM committee, as well as an order restraining the City from supporting any of the affected projects with taxpayer money.

The City demurred to AHF’s complaint, arguing that the claims were time-barred. The superior court sustained the demurrer, concluding that the action had not been brought within the applicable 90-day statute of limitations. AHF appealed.

Court of Appeal’s Decision

Applicable Statute of Limitations

In the trial court, AHF argued that the PRA provided the applicable statute of limitations. The PRA permits suits for injunctive relief where public officials are alleged to have used their official position to influence government actions for their own personal financial interests. Relevant here, the PRA permits courts to set aside official actions tainted by violations of the Act. The PRA includes a four-year statute of limitations for civil actions brought under the Act.

On appeal, AHF argued instead that the three-year “catch-all” statute of limitations for statutorily-created liability in Code of Civil Procedure section 338, subdivision (a) applied to the action. The City consistently argued that the 90-day limitations period provided by Government Code section 65009 for actions “to attack, review, set aside, void, or annul” various land use and zoning decisions applied to the action.

The Second District agreed with the City that the 90-day statute of limitations barred the action. Citing Ching v. San Francisco Bd. of Permit Appeals (1998) 60 Cal.App.4th 888 (Ching), which addressed a similar question, the court reasoned that the plain language of section 65009 encompassed AHF’s action. The Ching court noted that section 65009 had no exceptions for actions brought under the PRA. Additionally, the Ching court explained that “specific statutes control general ones” and thus held that the more specific 90-day statute of limitations in section 65009 applied to the type of challenge at issue, rather than the general limitations period provided by the PRA. After reviewing Ching and other similar opinions, the court concluded that section 65009 provided the applicable limitations period for AHF’s action.

Gravamen of the Complaint

Seeking to avoid the 90-day limitations period, AHF argued that the gravamen of its action was a challenge to corruption by City officials, even if the ultimate relief sought was the invalidation of improperly-issued permits.

The court rejected AHF’s argument, explaining that AHF could not escape the short limitations period by characterizing its claim as “necessarily dependent on a finding of a violation of the PRA,” rather than a challenge of project approvals by the PLUM committee.

Constitutional Considerations

Acknowledging that the California Constitution generally limits the Legislature’s power to amend or repeal initiative statutes, the court nevertheless rejected AHF’s argument that applying the limitations period in section 65009 to the action constituted “an unconstitutional legislative amendment to a duly-enacted voter initiative” for several reasons.

First, the court noted that the PRA contained express provisions allowing amendments to the Act by the Legislature, and that AHF failed to address these provisions in its briefing. Second, recognizing that the limitations period in section 65009 pre-dated the PRA by almost 10 years, the court remarked that the Legislature could not have intended to limit or amend the PRA in enacting section 65009. Third, the court explained that the four-year limitations period in the PRA was added by a later legislative amendment, not by voter initiative. Thus, the limitations period in the PRA was not enacted by voter initiative, as AHF claimed. Finally, even if the electorate had enacted the PRA’s four-year limitations period through an initiative, the court reasoned that the electorate did nothing to expressly abrogate other existing and potentially applicable statutes of limitations when it passed the PRA. For these reasons, the court held that the application of the pre-existing 90-day limitations period provided in section 65009 to the PRA action did not conflict with or amend the original PRA.

Policy Arguments

While AHF urged that important policy reasons justified the application of a longer limitations period to “discover and ferret out corruption,” the court declined to consider the policy goals underlying both the PRA and section 65009. The court explained that the statutory language of 65009 contained no ambiguity, and thus, it was required to apply the 90-day limitations period contained therein to AHF’s action.

— Louisa Rogers

FIRST DISTRICT UPHOLDS LESS THAN SIGNIFICANT IMPACT DETERMINATION FOR BIOLOGICAL RESOURCES BASED ON SURVEY THAT PREDATES THE NOP, AND ON PUBLIC SAFETY BASED ON CITY STAFF EXPERTISE

General Posted by   

In Save North Petaluma River and Wetlands v. City of Petaluma (2022), 86 Cal.App.5th 207, the First District Court of Appeal upheld an EIR’s analysis of an apartment complex’s impacts on biological resources and public safety. The court concluded that the EIR’s reliance on a special status species survey conducted several years before the NOP was issued, as well as review of more recent databases, was sufficient to support its conclusion that the Project would have a less than significant impact. It also concluded that the City’s reliance on its staff’s expertise was sufficient to support its conclusion that the Project would not have a significant impact on public safety related to emergency evacuation.

Background

In 2007, the City published a Notice of Preparation (NOP) for a 312-unit apartment complex in the City of Petaluma. In May 2008, the applicant submitted an application for a smaller 278-unit complex to comport with the City’s newly adopted 2025 General Plan. In March 2018, the City published a draft EIR for the complex, which included a 2004 consultant report on special status species in the Project area. In October 2019, the City issued a final EIR for the Project, concluding that the changes made in the reduced-scale version of the complex eliminated or reduced several of the potentially significant impacts identified in the Draft EIR. The Planning Commission recommended that the City Council certify the final EIR, but did not recommend approving the necessary zoning amendments.

In January 2020, in response to public comment and input from public agencies, the applicant submitted a second reduced version of the Project with 180 units (hereinafter, the Project), reducing the building footprint and increasing the setback from the Petaluma River, preserving two wetlands near the river and avoiding development in the River Plan Corridor, and preserving additional trees with a flood terrace design adjustment. A City staff report determined that this second revised version of the Project reduced impacts and addressed the Planning Commission’s concerns regarding the zoning amendments, and concluded that the second revised Project was within the reasonable range of alternatives addressed in the EIR and would not result in new or more substantial impacts compared to prior versions. The City certified the EIR and overturned the Planning Commission’s denial of zoning amendments. In February 2020, the City approved the zoning amendments by ordinance.

Save North Petaluma River and Wetlands and Beverly Alexander (Petitioners) field a petition for writ of mandate challenging the adequacy of the EIR on several grounds. The trial court denied the petition and Petitioners appealed.

Court of Appeal’s Decision

Special Status Species Impact Analysis

The court rejected Petitioners’ argument that the EIR’s impact analysis of special status species was deficient.

It explained that the EIR did not fail to investigate the project’s baseline conditions as of 2007 when the NOP was published because the 2004 special status species survey was based on current data at the time, and the EIR included database reviews from more recent years—as recent as 2017. The court further explained that there is no authority suggesting that CEQA is violated where an EIR’s analysis is drawn from site visits, studies, and habitat evaluations undertaken both before and after the NOP. Further, the court noted that Petitioners did not cite any evidence that the biological conditions at the Project site differed from 2004 to 2007, or in later years when updated databases were consulted.

Moreover, the court reasoned that Petitioners failed to challenge the EIR’s description of existing conditions and habitats on the undeveloped Project site, and that there is no evidence that the EIR omitted or inaccurately described the material aspects of the biological conditions on or near the Project site. The court distinguished this case from a string of cases where an EIR purported to measure impacts based on conditions that did not exist on the Project site or on conditions that were forecasted to exist at some point in the distant future. (See, e.g., Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.)

The court held that the EIR’s references to studies and site visits constitute substantial evidence supporting its special status species analysis because factual information in the EIR itself may constitute substantial evidence in the record to support the agency’s action on the project. (CEQA Guidelines, § 15121, subd. (c).) The court explained that it is appropriate to cite, but not include such documents in the EIR.

Therefore, the court held that the EIR’s analysis and information upon which it relied regarding the Project’s impacts on special status species was sufficient, and accordingly rejected Petitioners’ further contend that the EIR failed to offer recommendations that would adequately mitigate the Projects impacts on these species.

Emergency Evacuation & Public Safety Impact Analysis

The court also rejected Petitioners’ argument that the EIR was deficient because it omitted an analysis of egress and evacuation safety based on public comment documenting flooding and grass fires in the area. The court instead held that the EIR’s conclusion that the Project would not impair implementation of, or physically interfere with, an adopted emergency response plan or emergency evacuation plan was supported by substantial evidence, noting thde EIR’s adoption of the 2013 California Fire Code, consultation with the Petaluma Fire Department, and incorporation of additional recommendations and approval from the City Fire Marshal.

The court also explained that an agency may rely on the expertise of its staff to determine that a project will not have a significant impact, and that the City therefore appropriately relied on a City staff memorandum corroborating the public safety analysis in the EIR and reflecting information from the City’s Assistant Fire Chief confirming that the Fire Department does not have significant flood or fire access or egress concerns with development above the 100-year floodplain at the site. Additionally, the court rejected Petitioners’ claim that the City staff memorandum is improper post-EIR analysis, distinguishing this case from Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86.

–Veronika Morrison

12345