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Public notice must occur before a conditional use permit for the placement of telecommunications equipment can be approved by default under California’s Permit Streamlining Act

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The controversy in this case arose after the City of San Diego declined to approve conditional use permits (CUPs) for three cell tower facilities operated by American Tower Corporation. The city had previously granted 10-year CUPs for the facilities, and American Tower applied for new CUPs after the originals expired. The city considered the applications and informed American Tower of concerns with the design of the facilities, particularly with regard to aesthetic impacts, but otherwise determined that the applications were exempt from CEQA. The city ultimately denied the CUP applications. American Tower then filed suit in federal district court, raising claims under California’s Permit Streamlining Act. American Tower Corp. v. City of San Diego (Aug. 14, 2014) Case No. 11-56766.

California’s Permit Streamlining Act

Under California’s Permit Streamlining Act, the city was required to act on the CUP applications within 60 days of the city’s exemption determination. The city did not meet this deadline, and American Tower argued that the CUP applications became approved as a matter of law based on the city’s failure to act within 60 days. The district court found this argument compelling, but the Ninth Circuit reached a contrary conclusion.

The Ninth Circuit noted that the Permit Streamlining Act causes a CUP application to become approved by default only if two conditions are met: the lead agency must fail to take action within 60 days and public notice, as required by law, must have occurred. In this case, the appellate court concluded that the required public notice had not occurred, so the CUP applications could not be deemed approved.

To determine whether public notice had occurred prior to the CUP approvals, the appellate court looked to statutory provisions of the San Diego Municipal Code and the constitutional, due process protections articulated by the California Supreme Court in Horn v. County of Ventura. The court determined that the city complied with the notice requirement, so the issue became whether automatic approval of the CUP applications without an opportunity for affected landowners to be heard would “constitute a substantial or significant deprivation of other landowners’ property interests” under the framework established in Horn.

The Ninth Circuit determined that adjacent property owners might be concerned about the visual impacts of the sizable cell towers and hundreds of square feet of adjacent equipment shelters allowed by the CUPs. Therefore, the court had “little trouble” finding that automatic approval of the CUP applications would significantly infringe upon other landowners’ property interests. The City’s notices were silent on the Permit Streamlining Act default approval provision, and American Tower failed to make use of the act’s self-help provisions. Under the act, an applicant may either file an action in court to compel the lead agency to provide public notice and hearing, or the applicant may file its own public notice of the proposed action. So in this case, for example, American Tower could have filed a public notice that the CUP applications would be deemed approved if the city failed to act within 60 days after finding the CUPs exempt from CEQA. But no notice was provided to affected landowners here, so the CUP applications could not be deemed automatically approved under the act.

The Federal Telecommunications Act

American Tower advanced multiple claims under the Federal Telecommunications Act, all of which both the district court and the Ninth Circuit rejected.

Under the Telecommunications Act, a state or local agency must support decisions to deny placement of telecommunications equipment with substantial evidence, measured in the context of applicable state and local law. In this case, the San Diego Municipal code requires that CUP applications comply with, “to the maximum extent feasible,” regulations of the local land development code. American Tower failed to prove that its proposed facilities were designed “to be minimally invasive,” despite being given numerous opportunities by the city’s planning department to submit such evidence. As a result, the court found that the city supported its decision to reject the CUP applications with substantial evidence.

The Ninth Circuit also agreed with the district court that American Tower and the city were not “similarly situated” for the purposes of analyzing whether the city unreasonably discriminated against American Tower. The court noted that while the city maintained telecommunications equipment, this equipment was predominately for public services. Further, the city did not advertise available wireless space, though it did maintain some private leases, so any evidence of competition between the city and American Tower was minimal. In any event, the court found that the alleged discrimination in this case would be reasonable. The Telecommunications Act only prohibits unreasonable discrimination. Since aesthetic concerns are legitimate concerns for a locality, it was not unreasonable for the city to reject the CUP applications based on those concerns.

Finally, the Ninth Circuit held that American Tower did not support a claim under the Telecommunications Act, which mandates that regulation of telecommunications equipment not prohibit the provision of wireless services. An applicant must demonstrate that the manner in which it proposes to fill a significant wireless services gap “is the least intrusive on the values that the denial sought to serve.” Here, the city denied the CUP applications based on aesthetic concerns, and American Tower failed to meet its burden by submitting evidence that the proposed towers and structures were the least intrusive proposals.

Analysis and Conclusion

This opinion applies state law to a common, and sometimes contentious, local land-use planning issue: permitting the placement of telecommunication equipment. The case notes the limits on the power of the Permit Streamlining Act to provide default approval of a permit application, and the court implicitly encourages applicants to make use of the act’s self-help provisions in instances where lead agencies are uncooperative. This case also demonstrates the importance local regulations in the permitting and placement of telecommunications equipment.

First District Upholds Approval of Parkmerced Redevelopment Project in San Francisco

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In a partially published opinion, the court upheld San Francisco’s approval of the Parkmerced project, concluding that the San Francisco General Plan contains adequate standards for population density and building intensity, the city did not violate due process rights in approving a development agreement for the project, and the administrative record properly included certain hearing transcripts. The court affirmed the judgment below. San Francisco Tomorrow v. City and County of San Francisco, Case No. A137753.

Parkmerced is an existing 3,221-unit residential complex on 152 acres in southwest San Francisco. The housing is currently divided between 13-story towers and 2-story townhouses. The proposed project is a comprehensive mixed-use redevelopment plan that proposes, over the course of 20 to 30 years, to demolish all the townhouse units, build an equal number of replacement units, and add 5,679 units. The project also envisions providing new commercial and retail services, transit facilities, parks, and open-space amenities, and improving existing utilities and stormwater management systems. The project would also include office space, a new school, daycare facilities, and a fitness center. The Planning Commission certified the final EIR for the project, after which the Board of Supervisors approved the project. San Francisco Tomorrow and Parkmerced Action Coalition filed a petition for writ of mandate. The trial court denied the petition on all counts. Petitioners argued that the San Francisco General Plan’s Urban Design Element is inadequate for failing to include standards for population density and building intensity as required by Government Code section 65302. “Population density,” the court noted, refers to the number of people in a given area rather than the concentration of dwelling units. The court emphasized that the actual layout of a general plan is for the most part within the local agency’s discretion. Here, the section of the Housing Element describing existing housing stock contained a table and map that together provided an adequate description of the population densities for the Parkmerced area. The table and map also projected the likely future densities throughout the city. The court found this adequate. The Urban Design Element was adequate in establishing maximum dimensions of buildings only above specified heights, as this type of standard was contemplated by case law and the general plan. The court afforded the city broad discretion as to the degree that the circulation element correlated with the changes in population density and building intensity.

Petitioners also contended the trial court erred in dismissing Parkmerced Action Coalition’s due process claim. Petitioners argued that as tenants of Parkmerced, members of the coalition held property rights associated with their rent-controlled units, and those rights had been violated by the failure to provide proper notice. The court found no error. The court noted that the only governmental decisions subject to procedural due process principles are decisions that are adjudicative in nature. Legislative action is generally not governed by procedural due process requirements. To conform to this rule, appellants posited that a development agreement is an entitlement, rather than a law of general applicability. While a few cases support the expansion of due process protection where a legislative act exceptionally affects a small number of people, under state law the approval of a development agreement is a legislative act. The court was unwilling to subject the approval to due process requirements simply because it affected property rights in some manner.

Finally, the court held that the trial court had not erred in including in the administrative record transcripts of a set of hearings before a board committee. Though the audio recordings and their transcriptions constituted “other written materials relevant to the agency’s decision on the merits of the project,” no cases held that such documents must be identified in the motion affirming certification of the EIR in order to be “before the decisionmaker.” Furthermore, the hearings occurred before the board’s decision, and thus the recordings and transcripts were properly part of the administrative record. Even if the transcripts were not part of the administrative record, the court held that petitioner had failed to meet their burden of showing such error was prejudicial.

OPR Releases Draft SB 743 CEQA Guidelines for the Evaluation of Transportation Impacts

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The Governor’s Office of Planning and Research released a preliminary discussion draft of revisions to the CEQA Guidelines implementing Senate Bill 743 on August 6, 2014. Currently, transportation impacts are typically evaluated based on the delay in traffic flows that vehicles experience at intersections and roadway segments. Delay is measured by the “level of service” or LOS. Mitigation for these impacts often takes the form of traffic improvements focused on increasing roadway capacity such as adding lanes. Recognizing that this practice may actually be counter to public policy by encouraging auto use and emissions, and discouraging alternative forms of transportation, OPR has proposed changes to how transportation impacts are evaluated. Specifically, OPR’s draft revisions to the CEQA Guidelines propose analysis of vehicle miles traveled (VMT), in lieu of LOS, for evaluating transportation impacts.

Most notably, OPR proposes to add Section 15064.3, a new section of the CEQA Guidelines that addresses new methods of measuring transportation impacts. Because Section 15064.3 would be added to Article 5 of the CEQA Guidelines, which relates to the “preliminary review of projects and conduct of initial study,” the new section would apply in the context of negative declarations and EIRs. To conform to the proposed Section 15064.3, OPR has also proposed amendments to the questions in Section XVI, Transportation and Traffic, of Appendix G.

Draft Section 15064.3 includes four subdivisions. Subdivision (a) discusses the purpose of the new section, stating that the primary considerations of a project’s transportation impacts are the amount and distance of vehicle travel associated with a project. Subdivision (a) expressly states that “[a] project’s effect on automobile delay does not constitute a significant environmental impact.” The draft section does not modify CEQA’s general rules regarding the determination of a project’s significant impacts, including the need to consider substantial evidence of a project’s environmental impacts.

Subdivision (b) specifies the criteria for determining the significance of transportation impacts. As stated in subdivision (b), VMT is “generally” the best measurement of transportation impacts, thus allowing agencies room to tailor their analyses to include other measures if appropriate. The draft section describes factors that might indicate whether a project’s VMT is less than significant or not, and gives examples of projects that might have less-than-significant impacts with respect to VMT, such as projects that would result in decreased VMT. Subdivision (b) recognizes that not all transportation projects will induce vehicle travel, such as projects improving transit operations, and thus would not result in a significant transportation impact. In addition to a project’s impact on VMT, “a lead agency may also consider localized effects of project-related transportation on safety.” Finally, subdivision (b) states that a lead agency’s evaluation of a project’s VMT “is subject to a rule of reason,” but also states that “a lead agency generally should not confine its evaluation to its own political boundaries.”

Subdivision (c) refers to proposed amendments in Appendix F, which addresses energy impacts. The proposed amendments to Appendix F acknowledge that VMT may be relevant to the analysis and mitigation of energy impacts. The proposed amendments to Appendix F include examples of mitigation measures and alternatives that may reduce VMT. Examples include improving the jobs/housing balance and improving access to transit. Subdivision (c) clarifies that the proposed revisions in the CEQA Guidelines and Appendix F do not limit an agency’s ability to condition a project pursuant to other laws. For example, agencies may continue to require projects to meet LOS designations set out in applicable general plans or zoning codes. Nor do the proposed revisions prevent an agency from enforcing previously adopted mitigation measures.

Finally, subdivision (d) proposes a phased approach to implementing Section 15064.3. OPR proposes that Section 15064.3 shall apply prospectively to new projects that have not started environmental review. Section 15064.3 shall apply immediately upon the filing of Section 15064.3 with the Secretary of State. After January 1, 2016, Section 15064.3 shall apply statewide.

Under the second part of OPR’s proposed revisions, OPR proposes amendments to Appendix F, which discusses the evaluation of energy impacts under CEQA noted above.

The draft guidelines can be viewed at:

http://opr.ca.gov/docs/Final_Preliminary_Discussion_Draft_of_Updates_Implementing_SB_743_080614.pdf

OPR is requesting that comments be submitted by October 10, 2014.

Supreme Court Reverses Court of Appeal, Holds Legislative Body Need Not Obtain Full CEQA Review Before It Directly Adopts a Voter Initiative

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The California Supreme Court held that CEQA review is not a prerequisite to directly adopting a voter initiative under Elections Code section 9214, subdivision (a), when it decided Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores), Case No. S207173, on August 7, 2014. The Court reversed the Fifth District Court of Appeal’s opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court (2012) (previously reported at 210 Cal.App.4th 1006).

A Wal-Mart store in the City of Sonora sought to expand into a Supercenter. Before the City Council voted on the project, voters circulated the “Wal-Mart Initiative,” which proposed to adopt a specific plan for the contemplated expansion in order to streamline approval of the Supercenter’s construction and operation. The petition was signed by over 20 percent of the City’s registered voters. The City then prepared a report on the initiative examining its consistency with previous approvals for the expansion pursuant to Election Code sections 9212, and 9214, subdivision (c), and adopted the ordinance. The Tuolumne Jobs & Small Business Alliance sued. The Court of Appeal held in favor of the Alliance, expressly disagreeing with the only published authority on point, Native American Sacred Site & Environmental Protection Assn. v. City of Juan Capistrano.

The issue before the Supreme Court was whether a legislative body must obtain full CEQA review before directly adopting a voter initiative under Elections Code section 9214, subdivision (a). Case law has established that CEQA compliance is not required before a legislative body submits an initiative to voters under section 9214, subdivision (b), and the Court held that the result should be the same where the legislative body adopts an ordinance put forth by voters. In reaching this conclusion, the Court noted that the statutory language of section 9214 makes no mention of CEQA. Furthermore, requiring CEQA compliance would effectively nullify the condensed deadlines in the Elections Code, and the abbreviated report provided for in the Code would be superfluous. CEQA would impliedly repeal contrary Elections Code procedures, and the Court emphasized the strong presumption against repeal by implication. The Court also found that application of CEQA to voter initiatives is contrary to Legislative intent, as Legislative history supported the conclusion that CEQA does not apply to any ordinances enacted by initiative, whether through an election or direct adoption.

Finally, the Court noted that direct adoption without CEQA review would not offend public policy. The possibility that interested parties may attempt to use initiatives to advance their own aims, it stated, is part of the democratic process. If direct adoption of an initiative were to result in the enactment of an undesirable law, voters have statutory remedies available to them.

Court Finds EIR for Water Plan to Alter Kern River Allocations Deficient Under CEQA

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A Ventura County Superior Court judge held that the EIR for a water plan that would alter historic usage of Kern River water is inadequate and must be redrafted and recirculated as a focused EIR. The ruling marks the latest legal development in a longstanding dispute over Kern River flows.

At issue in the case was the Kern River Water Allocation Plan proposed by the Kern Delta Water Storage District. The plan calls for diverting about 33,000 acre-feet per year from the Kern River that historically have been released to junior water rights holders, including the North Kern Water Storage District and the City of Bakersfield. The Kern Delta district has sought to provide these “release waters” to other users. In litigation over the years, the North Kern district and Bakersfield have argued that the Kern Delta district forfeited portions of its appropriative water rights due to nonuse (i.e. due to the longstanding releases).

The EIR for the plan concluded that the Kern Delta district’s retention and diversion of the 33,000 acre-feet per year of water would cause no significant and unavoidable environmental impacts. The EIR acknowledged that groundwater levels would decline in the North Kern district service area between two to three feet and that some areas near recharge basins could experience water level decreases of up to 12 feet. The EIR concluded, however, that any immediate impacts to ranches, farms, and urban needs would “equilibrate” over time because the release of water to points south of the river in the Kern Delta district would benefit the large subbasin (known as the Kern River Fan) underlying the entire region.

The Kern Delta district’s board certified a final EIR for the plan in September 2012. The North Kern district, along with two other water agencies and the city of Shafter, sued, claiming multiple CEQA violations as well as violation of a prior injunction order. The petitioning water agencies’ counsel included James G. Moose, senior partner at Remy Moose Manley, LLP. The city of Bakersfield sued on similar grounds.

In his ruling (North Kern Water Storage District v. Kern Delta Water Storage District, June 5, 2014, Case No.: 56-2012-00425941-CU-WM-VTA), Ventura County Superior Court Judge Glen M. Reiser provided an extensive discussion of California’s water rights system and the complex history behind present-day allocations of Kern River water. The opinion is lengthy and sprinkled with literary passages from the Book of Proverbs, Leonardo da Vinci, and others.

The judge agreed with the petitioners that under CEQA, the EIR’s analysis of off-site impacts to groundwater was “opinion unsupported by any substantial evidence.” In particular, the court noted that the EIR lacked adequate “temporal context” involving timing, water levels, and water volumes to support its assertion that the Kern Fan would, at some point, “equilibrate.” The court also found the EIR’s analysis of land subsidence and cumulative losses of surface waters beyond the Kern Delta district’s boundaries to be inadequate.

The court issued a peremptory writ of mandate setting aside the final EIR’s certification and orderering the Kern Delta district to redraft and recirculate a supplemental “focused” EIR. The supplemental focused EIR must incorporate nine requirements aimed at adequately analyzing project-related impacts, including quantifying “equilibration” as it relates to the timing of aquifer recharge under the plan to divert 33,000 acre feet per year of water to users south of the Kern River.

Court of Appeal Holds Federal Law Does Not Preempt CEQA for High-Speed Train Project; Upholds Program EIR for Bay Area to Central Valley Route

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The Third District Court of Appeal held that the application of CEQA to the California High-Speed Train project was not preempted by federal law in Town of Atherton v. California High Speed Rail Authority (July 24, 2014, Case No. C070877). On the merits, the Court ruled in favor of the Authority on all claims, finding that the Authority’s program EIR wholly complied with CEQA.

As California’s plans for a high-speed train system have developed over the past two decades, the system’s alignment from the Central Valley to the San Francisco Bay Area became an area of contention. The particular dispute was over the Authority’s decision that trains travelling between the Central Valley and the Bay should travel through the Pacheco Pass, which turns west from between Fresno and Merced, rather than farther north at the Altamont Pass, which turns west from the Central Valley south of Stockton. According to the Authority’s corridor evaluation report, the Altamont Pass would require additional tracks to provide train service to San Jose, resulting in less frequent service to San Francisco and San Jose absent the provision of additional trains. Based upon this determination, the Authority prepared an EIR identifying the Pacheco Pass as the preferred alternative.

After a legal challenge to the initial EIR, the Authority revised its program EIR and again selected the Pacheco Pass route as the preferred alternative. The South Bay town of Atherton challenged the adequacy of the revised EIR and approval of the Pacheco Pass alternative, arguing that the program EIR violated CEQA because it (1) provided an inadequate analysis of the vertical profile options for alignment (i.e., where to elevate the track) along the San Francisco Peninsula; (2) used a flawed revenue and ridership model; and (3) had an inadequate range of alternatives because it rejected an alternative proposed by one expert consulting company.

Preemption

Prior to oral argument, the Authority asked the court to dismiss the case, contending that federal law, specifically the Interstate Commerce Commission Termination Act (ICCTA), preempted any CEQA remedy. It argued that the ICCTA created exclusive federal regulatory jurisdiction and a federal agency, the Surface Transportation Board, had recently assumed jurisdiction over the High-Speed Train. The court found it did not need to decide whether the ICCTA preempts CEQA as to the train, however, because at least one exception to preemption applied here. Under the market participation doctrine, proprietary state actions are protected from federal preemption. The court found no evidence supporting the Authority’s contention that the market participant exception could only be asserted defensively. Accordingly, the court held that CEQA applies to the project and proceeded to address petitioners’ claims on the merits.

Adequacy of the Program EIR

The court next addressed petitioners’ claims regarding the adequacy of the program EIR. The court upheld the Authority’s use of a program EIR and held that the Authority properly deferred site-specific analysis, including the vertical alignment, to a later project EIR. The court stated that the precise vertical alignment of the train at specific locations is the type of site-specific consideration that must be examined in detail in a project-level EIR. Requiring such analysis at the program level, the court reasoned, would undermine the purpose of tiering and would create a burdensome level of detail in the larger-scale program EIR.

The court also held that the challenge to the revenue and ridership modeling presented a disagreement among experts that did not make the revised final project EIR inadequate. Petitioners failed to show that the Authority’s ridership model was “clearly inadequate or unsupported,” and the modelers had followed generally accepted professional standards. Thus, substantial evidence supported use of that model.

Finally, the court held that the Authority studied an adequate range of alternatives and was not required to analyze the Altamont Pass alternative proposed by petitioners’ consulting company, given that the alternative was substantially similar to the alternatives already studied and that range of alternatives was not shown to be inadequate.

Fifth District Court of Appeal Upholds EIR for Wind Farm in Kern County

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The court held that the EIR’s mitigation measure for aircraft safety impacts, requiring that wind turbines be reviewed by the Federal Aviation Administration before issuance of building permits, was feasible and enforceable. The court also held that substantial evidence supported the EIR’s conclusion that the mitigation measure would be effective to mitigate impacts on aviation safety. Citizens Opposing a Dangerous Environment v. County of Kern (June 30, 2014, Case No. F067567) was certified for partial publication on July 25.

The case arose from the County of Kern’s approval of a conditional use permit for the operation of a wind farm in the Tehachapi Wind Resource Area. The county approved the CUP for the construction of wind turbines, up to 500 feet tall, after preparing an EIR. The EIR determined that the wind turbines might pose significant safety hazards to aircraft and gliders using a nearby private airport. The county, therefore, adopted a mitigation measure requiring the project applicants to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each wind turbine prior to issuance of building permits. Citizens Opposing a Dangerous Environment (CODE) filed a petition challenging the EIR on various grounds. The trial court denied the petition and CODE appealed.

CODE’s principal challenge on appeal was to the validity of the aircraft safety mitigation measure. CODE argued that the EIR failed to describe an adequate mitigation measure as a matter of law because the measure would not avoid or minimize significant impacts to aviation safety. The court disagreed, noting the mitigation measure’s requirement that the applicant obtain FAA certification for each wind turbine prior to construction. The court then pointed to other CEQA cases holding that mitigation measures requiring compliance with existing regulatory schemes are common and reasonable. And since federal law occupies the entire field of aviation safety, the court found it reasonable to expect compliance with FAA regulations by the applicants.

CODE also argued the aircraft safety mitigation measure was infeasible because the FAA could not legally block the project through enforcement of its “hazard/no-hazard” determinations. But the court noted the evidence suggested the hazard/no-hazard determinations can have a substantial practical impact on projects, even if the FAA did not directly have the power to halt the project. In any event, the mitigation measure made issuance of building permits for each wind turbine contingent on FAA approval. So while the FAA could not directly halt construction of the project, the county, through its police power, could. Therefore, the court determined the mitigation measure adopted to protect aircraft safety was feasible and enforceable, and the EIR’s conclusion that the mitigation measure would be effective was supported by substantial evidence.

The court also rejected CODE’s claims that the EIR should be set aside because the county failed to respond to late comments and that the county was required to adopt either CODE’s proffered mitigation measure or the EIR’s “environmentally superior alternative.”

First District Court of Appeal Upholds EIR for San Francisco’s Treasure Island Redevelopment Project

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The Court of Appeal rejected petitioner’s argument that the city was required to prepare a program-level EIR rather than project-level EIR for a long-term development plan in the San Francisco Bay.  In Citizens for a Sustainable Treasure Island v. City and County of San Francisco (July 7, 2014, Case No. A137828), the court held that the EIR provided sufficient project-level information and properly relied on regulatory standards and guidelines. The court also upheld the EIR’s project description, analyses of hazardous substances and historic resources, and its discussion regarding conformity with the Tidelands Trust. In addition, the court held that the draft EIR did not need to be recirculated.

Background

The Treasure Island/Yerba Buena Island Project is a comprehensive plan to redevelop the former naval station located on Treasure Island and Yerba Buena Island in San Francisco into a mixed-use community. Among other amenities, the project will include up to 8,000 residential units, up to 140,000 square feet of commercial and retail space; up to 100,000 square feet of office space; 300 acres of parks, playgrounds, and open public space; restoration and reuse of historic buildings; bike and transit facilities; and a new ferry terminal and intermodal transit hub. Build-out of the project is planned to occur in phases over a 15- to 20-year period.

The City and County of San Francisco, along with the Treasure Island Development Authority, approved the project in June 2011. A group called Citizens for a Sustainable Treasure Island (CSTI) filed a petition for writ of mandate challenging the EIR for the project on various grounds. The trial court denied the petition in its entirety and CSTI appealed.

The Appellate Court’s Opinion

Before reaching the merits of CSTI’s arguments, the court clarified the applicable standard of review. Despite CSTI’s efforts to frame the issues to allege procedural violations under CEQA, the court determined that most of the issues raised on appeal were properly reviewed under the substantial evidence standard because they involved the sufficiency of the information provided to the public and to the decision makers. The court clarified that because CEQA requires an EIR to reflect a good faith effort at full disclosure, rather than perfect or exhaustive analysis, the absence of information in an EIR will normally rise to a failure to proceed in the manner required by law only if the analysis in the EIR is clearly inadequate or unsupported.

Project-Level v. Program-Level Analysis

CSTI’s primary argument on appeal was that the city was required to prepare a program EIR rather than a project EIR. It claimed that the project was only developed at a conceptual level by design, and therefore, the city was required to prepare a program EIR and analyze the project using “tiered” environmental review. The court rejected the argument, pointing out that CSTI failed to cite any authority suggesting that the city was required to prepare any particular type of EIR. The court emphasized that the label assigned to an EIR is less important than the EIR’s sufficiency as an informative document. Instead of focusing on labels when reviewing EIRs for legal adequacy, courts focus on whether EIRs provides decision makers and the public with sufficient analysis to intelligently consider the environmental consequences of a project. 

Adequacy of Project Description

The court next addressed CSTI’s argument that the project description was inadequate. Similar to its previous argument, CSTI claimed that the EIR analyzed only an “abstract and indeterminate ‘conceptual’ development scenario” lacking necessary project-level detail. It complained, for example, that the specific configuration and design for particular buildings is left for future review and the street layout is only conceptual, with the final layout also subject to future review by responsible agencies.

The court rejected these criticisms. While the EIR did not include the exact, final plans for each building or street, it identified numerous design standards “governing virtually every aspect of project development.” The court determined these design standards provided stable information regarding final building details, including heights, mass, bulk, and other design specifications, while still allowing flexibility at the early stage in the planning process to allow future revisions. The court also noted that future revisions would likely be the subject of further supplemental environmental review. Accordingly, the court determined the EIR’s project description was adequate.

Presence and Remediation of Hazardous Substances

The court next rejected CSTI’s argument that the EIR did not include enough detail about the hazardous materials on the project site and how the city might remediate them. It explained that the EIR included extensive information on the presence of toxic or hazardous substance in the project area. It also noted that the Navy assumed primary responsibility for the remediation of each parcel of land before transferring it to the City. Further, in the event the city or developer assumed responsibility for any cleanup efforts in the future, they would be subject to the same environmental regulations and regulatory oversight as the Navy, and these numerous regulatory requirements were described in a mitigation measure adopted with the EIR.

CSTI also argued the mitigation measure was improperly deferred because a remediation plan would not be developed until a future time. The court found this argument unconvincing. The EIR relied on the existing regulatory scheme and performance standards to ensure any potential future remediation would occur without generating significant environmental impacts.

Recirculation

CSTI also argued that the City was required to recirculate the draft EIR in light of “significant new information.” During the comment period, the Coast Guard submitted a comment suggesting the project could interfere with vessel safety and homeland security on San Francisco Bay by interfering with the Coast Guard’s Vessel Traffic Service (VTS).

In response to the comment, the City met with the Coast Guard and conducted additional technical studies to determine potential impacts of buildings on VTS equipment operations. The final EIR amended design standards for the project to require consultation with the Coast Guard if future proposals included buildings tall enough to interfere with VTS equipment. The design standards also require any building developer to work with the Coast Guard to make space for additional equipment, or reach a similar solution, to preserve the effectiveness of the VTS. The Coast Guard submitted an additional comment letter, indicating the consultation process addressed the agency’s prior concerns. When approving the project, the city explicitly found that this binding consultation process would eliminate any impacts to vessel safety on San Francisco Bay.

Finding that the Coast Guard’s letter did not raise significant new information within the meaning of CEQA, the court explained that the record contained substantial evidence indicating the continued effectiveness of the VTS system would be ensured, despite urban development on Treasure Island and the refinements made to the EIR to satisfy the Coast Guard’s concerns did not constitute the type of significant new information requiring recirculation of an EIR.

Historic Resources

CTSI also argued the EIR did not adequately disclose or mitigate potential impacts to two historic buildings in the project area because the EIR did not identify the precise and final disposition of those buildings. But again, the EIR identified binding design standards which would apply to any final architectural design proposals. The design standards require that rehabilitation of the historic buildings be conducted in accordance with the Secretary of the Interior’s Standards for the Rehabilitation and Guidelines for Rehabilitating Historic Buildings. The court noted that these standards serve as an explicit benchmark to establish whether a project will have a significant adverse impact to historic buildings. The court also noted that if a non-conforming use of the historic buildings was proposed in the future, the use would not be covered in the EIR and would therefore require supplemental environmental review. But the city was not required to study a hypothetical future change to the project in the current EIR.

Consistency with the Tidelands Trust

Finally, CSTI argued the EIR did not adequately discuss and analyze the potential impacts of the project on land subject to the Tidelands Trust. CSTI’s argument again centered on that fact that not all proposed uses within the Project area are known at this time. But the court rejected CSTI’s insinuations that non-trust uses would be permitted on lands subject to the trust. The EIR explained that the project must conform to the legal requirements of the Trust. The EIR also acknowledged the use restrictions the trust would impose on tidelands. And any proposed use is subject to the Tidelands Trust overlay zone and final approval and review by the Treasure Island Development Authority.

RMM Partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest and Cross-Appellant Treasure Island Community Development, LLC.

Court of Appeal Upholds San Jose’s Eighth Addendum to Airport Master Plan EIR

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The First District Court of Appeal held that changes to the City of San Jose’s Airport Master Plan did not constitute a new project as a matter of law and did not require supplemental review under Public Resources Code section 21166. The court ordered publication of the opinion – Citizens Against Airport Pollution v. City of San Jose (June 6, 2014, Case No. H038781) – on July 2, 2014.

The center of the dispute was an addendum to the City of San Jose’s 1997 EIR prepared for its International Airport Master Plan. The city had also prepared a Supplemental EIR for the plan in 2003. The addendum, which was the city’s eighth addendum to the 1997 EIR, assessed the impacts of proposed amendments to the Airport Master Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets.

Petitioner Citizens Against Airport Pollution’s (CAAP) primary argument was that the amendments to the Airport Master Plan addressed in the eighth addendum constituted a new project as a matter of law, and therefore, an EIR addendum was barred under CEQA. Alternatively, CAAP argued that an EIR addendum could not be used to analyze the environmental impacts of the plan changes, since those changes were substantial and required major revisions to the EIR with respect to noise, greenhouse gas emissions, toxic air contaminants, and biological resources.

The Court of Appeal was not persuaded by CAAP’s argument that the changes to the Airport Master Plan constituted a new project as a matter of law, and that the city was therefore required to prepare a new EIR. The court confirmed that the an agency’s determination on whether supplemental environmental review is required is review under the substantial evidence test, distinguishing previous cases that applied the “fair argument” standard to the question of whether a subsequent approval was “within the scope” of a previous approval.

The court next turned to CAAP’s alternative argument that the city was required to prepare a supplemental EIR for the plan amendments because they were “substantial changes” requiring “major revisions” in the EIR. CAAP claimed that there would be new or more severe impacts in several areas including noise, greenhouse gas emissions, air quality, and biological resources.

Notably, the court rejected CAAP’s argument that the city was required to analyze Greenhouse Gas Emissions for the project since CEQA Guidelines section 15064.5, which requires analysis of GHG impacts in EIRs, was added to the Guidelines after the 1997 and 2003 EIRs were prepared. Relying on CREED v. City of San Diego (2011) 196 Cal.App.4th 515, the court held that the potential for GHG impacts was not substantial new information triggering the need for a supplemental EIR. Rather, the potential for GHG impacts have been known since well before the first EIR for the Master Plan was adopted.

The court also held that there was substantial evidence demonstrating that there would be no new or more severe impacts to biological resources. The addendum acknowledged that the project changes would result in the loss of four acres of burrowing owl habitat and included mitigation measures to mitigate the impact. The court explained that mitigation measures can be modified in an addendum if there is a legitimate reason and the changes are supported by substantial evidence. The mitigation measures in the addendum met that standard because they completely offset the loss of the four acres by establishing new permanent habitat. Moreover, the mitigation measure was only a change in the location of habitual preserved under a burrowing owl mitigation plan that as established for the 1997 EIR and it would be managed within the parameters of the established plan.

The court also upheld the city’s determination that potential changes in noise and air quality impacts did not trigger a supplemental environmental review because jet engines of today and the future are quieter and cleaner than the engines of 1997.

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