Blog

SECOND DISTRICT FINDS LOS ANGELES’S 15 PERCENT AFFORDABLE HOUSING SET-ASIDE INOPERATIVE

General Posted by   

In AIDS Healthcare Foundation v. City of Los Angeles (2022) 78 Cal.App.5th 167, the Second District Court of Appeal rejected claims challenging the City of Los Angeles’s decision to approve the development of a large mixed-use apartment building in Hollywood. The court upheld the decision of the Superior Court, finding that a 15 percent low income set-aside requirement had been voided by 2011 legislation and, even if it had not, the set-aside requirement applied only to the aggregate amount of dwelling units within a planning area, not to individual projects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, the (now dissolved) Community Redevelopment Agency of the City of Los Angeles (CRA-LA) established the “Hollywood Redevelopment Plan” (HRP) in accordance with the City of Los Angeles’s (City’s) “Community Redevelopment Law” (CRL). Both the HRP and CRL included a requirement that at least 15 percent of all new and rehabilitated dwelling units within a total project area be reserved for families of “low or moderate income.” However, the local redevelopment agencies charged with preparing and executing these plans had no power to tax, and instead funded their activities using “tax increment” financing.

Under this financing scheme, public entities that were entitled to receive property tax revenue received such revenues from properties within the planning area based on their assessed value prior to the effective date of the applicable redevelopment plan. Any tax revenue received in excess of that amount was a “tax increment.” However, in 2011, the Legislature enacted the “Dissolution Law,” which dissolved redevelopment agencies and repealed any provisions of the CRL that depended upon tax increment financing. “Successor agencies” acquired the former redevelopment agencies’ “housing functions and assets,” but were to have no “legal authority to participate in redevelopment activities, except to complete any work related to an approved enforceable obligation.”

In January 2019, the City’s Advisory Agency approved a tentative tract map for a 26-story mixed-use building on a 0.89-acre plot within the HRP planning area (developed by 6400 Sunset, LLC, the real party in interest). The project involves approximately 200 dwelling units, of which 5 percent will be reserved for “very low income households.” Coalition to Preserve LA (CPLA) appealed the Advisory Agency’s approval to the City Planning Commission, arguing that a reservation of only 5 percent of units for affordable housing would violate the CRL/HRP requirement of 15 percent. The Planning Commission denied CPLA’s appeal in March 2019. CPLA’s appeal of that decision, to the City Council’s Planning and Land Use Management Committee, was also denied in June 2019.

In July 2019, CPLA (joined by AIDS Healthcare Foundation) filed a petition for writ of mandate. The superior court denied the petition on the grounds that the pertinent provisions of the CRL had been repealed and, even under the CRL’s language, the 15 percent requirement “need not be imposed on each individual project,” but only to buildings within the planning area “in the aggregate.” CPLA and AIDS Healthcare Foundation timely appealed.

THE COURT OF APPEAL’S DECISION

The Court of Appeal agreed with the superior court on both counts, holding that the Dissolution Law had effectively repealed the 15 percent requirement and that, even if it had not, the requirement applied to the number of dwelling units within the CRL planning area as a whole—not individual projects.

Under the Dissolution Law, “all provisions of the [CRL] that depend on the allocation of tax increment to redevelopment agencies . . . shall be inoperative.” The court agreed that because enforcement of the 15 percent requirement depended upon redevelopment agencies, and redevelopment agencies in turn depended upon the funds supplied by the tax increment, this requirement was also rendered inoperative. The appellants countered that redevelopment agencies could raise funds by issuing bonds, but the court reasoned that “bonds . . . have to be repaid, and the former agencies repaid the bonds, generally, from the same source of funds used to pay other obligations—from the tax increment.”

The appellants also argued that the 15 percent requirement was an “enforceable obligation” under the Dissolution Law, which the successor agency (here, the City) was required to perform. The court, however, found that such obligations related only to “monetary and existing contractual obligations,” not to statutory affordable housing requirements. The appellants countered that the City, as the former CRA-LA’s successor agency, is not limited to the statutory powers enumerated under the CRL and, therefore, the 15 percent requirement could be enforced under the City’s “inherent police power.” The court remained unpersuaded. Even assuming that the City is CRA-LA’s successor agency, the Dissolution Law did not grant the successor any powers that the former redevelopment agency did not have (such as general police powers).

The court also rejected appellants’ argument that, even if the Dissolution Law rendered the CRL’s 15 percent requirement inoperative, the HRP’s own 15 percent requirement remained intact. According to the court, the HRP and its powers applied only to CRA-LA (not the City), and that agency was dissolved by the Dissolution Law.

Finally, beyond the nullifying effects of the Dissolution Law, the court held that under the plain language of both the CRL and HRP, the 15 percent requirement would apply only “in the aggregate,” and “not to each individual case of rehabilitation, development, or construction of dwelling units, unless an agency determines otherwise.” Because CRA-LA never determined otherwise, individual projects were not subject to a strict 15 percent minimum.

 —Griffin Williams

First District Holds Petitioner Exhausted Its Remedies by Raising General Objections That the Project Site Should Be Preserved as Open Space, Finds “No Project” Alternative Analysis Defective

General Posted by   

In the published portions of Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, the First District Court of Appeal held that Petitioner Save the Hill’s failure to specifically reference the recirculated EIR or the no-project alternative in its comments to the City Council did not bar its CEQA claims regarding preservation of the Project site.

Background

This case involves the City of Livermore’s approval of a development application for a housing development in the Garaventa Hills. The Project underwent multiple revisions, and the Project at issue is a scaled-down version of the original 76-unit residential development. The final Project is a 44-unit development with pedestrian across Altamont creek that also serves as a secondary emergency vehicle access road. The City published a Recirculated Final EIR (RFEIR) for this final revised Project.

Save the Hill filed a petition for writ of mandate challenging the City’s approval of the Project and certification of the RFEIR for failure to consider significant environmental impacts, adequately investigate and evaluate the no-project alternative, and mitigate significant environmental impacts. The trial court denied the petition, determining that Save the Hill failed to exhaust its administrative remedies in challenging the RFEIR. Save the Hill appealed.

The Court of Appeal’s Decision

Exhaustion

The Court of Appeal held that Save the Hill did not fail to exhaust its administrative remedies before challenging the City’s failure to evaluate the no-project alternative. While Save the Hill did not mention the environmental documents or the lack of a no-project alternative specifically, it did express its desire to preserve the Project site as open space. The Court emphasized that CEQA does not require public interest groups such as Save the Hill—which are often unrepresented by counsel at administrative hearings—to do more than “fairly apprise” the agency of their complaints to preserve them for appeal.

Several Save the Hill representatives voiced support for preserving the Project site as open space in perpetuity at the City Council hearing for the RFEIR’s certification. These comments sparked questions from city councilmembers regarding the possibility of preserving the Project site and a discussion of available funding to purchase Garaventa Hills for conservation. This option was shut down by the City Attorney, who advised the City Council that its evaluation should be limited to the Project as set before them, and that if it were to change the zoning to permanent open space on the property, the City would likely face a takings lawsuit.

The Court determined that these comments and the ensuing discussion reflected the City Council’s consideration of a no-project alternative as a result of Save the Hill’s objections. It concluded that Save the Hill’s failure to specifically refer to the RFEIR’s Project alternatives evaluation was immaterial to the fact that it fairly appraised the City of its position. The court further explained that even if Save the Hill framed its arguments in the context of the RFEIR’s no-project alternative, “the evidence is overwhelmingly that, had it done so, the result would have been the same: [t]he City would have rejected the group’s proposal and certified the RFEIR” because it was improperly instructed to limit its focus to the presented Project.

Accordingly, the Court held that an exception to the exhaustion requirement applied because the aggrieved party—Save the Hill—could “positively state” what the lead agency’s decision would be in its particular case.

No Project Alternative Analysis

On the merits of Save the Hill’s alternative analysis claim, the Court held that the RFEIR failed to disclose and analyze information regarding the availability of funding sources that could have been used to purchase and permanently conserve the Project site. The Court explained that zoning changes are within the City’s police power, and the RFEIR accordingly should have discussed the feasibility of rezoning the site as permanent open space.

Mitigation Measures Adequacy

Save the Hill asserted that the mitigation measures for impacts to vernal pool fairy shrimp were inadequate because they would only be implemented if the fairy shrimp were detected at the site. The Court explained that CEQA allows deferred mitigation where the agency commits to achieving specific performance standards, which it did here, and that the mitigation measures were adequate because the RFEIR assumed that the fairy shrimp were present.

The Court also held that the preservation of an 85-acre compensatory mitigation site was adequate, despite Save the Hill’s contention that the City’s General Plan required the location to be preserved as open space. The Court concluded that the General Plan is “merely aspirational,” while the RFEIR’s mitigation measure created a “perpetual legal restraint on development” at the site, including requiring funding for upkeep and enforcement. Moreover, distinguishing this case from King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (“King”), the Court explained that this Project involved the loss of only 32 acres—as opposed to the loss of 6,450 acres in King—and CEQA does not require mitigation measures to “completely eliminate the environmental impacts of a project.”

Hydrological Impacts Adequacy

The Court held that the City’s finding of no significant hydrological impacts was supported by substantial evidence because Save the Hill failed to refute the City’s points in its reply brief. The Court refused to afford any weight to Save the Hill’s argument that the Project would degrade downstream water quality because a larger development project (which originally included this Project) would have a significant downstream water quality impact. The Court determined that impacts from a project almost 200 acres larger than this Project were not relevant.

Settlement Agreement Obligation Claims

Lastly, the Court held that that Save the Hill forfeited its claim that the City violated CEQA by failing to preserve the Project site to satisfy its obligations under two settlement agreements by failing to raise the issue prior to appeal. Moreover, Save the Hill was not a party to either settlement agreement and thus lacked standing to enforce those obligations.

SECOND DISTRICT FINDS QUANTIFICATION OF EXISTING WATER RIGHTS NOT REQUIRED UNDER CEQA FOR WATER DIVERSION AND STORAGE PROJECT

General Posted by   

On March 3, 2022, the Second District Court of Appeal ordered published its decision in Buena Vista Water Storage District v. Kern Water Bank Authority (2022) 76 Cal.App.5th 576, in which the court held that an EIR for a project to divert and store unappropriated flood flows need not quantify all existing water rights. The court also held that CEQA does not require the project description to specify the exact amount of water that would be diverted, since that amount will vary from year to year based on the weather. Additionally, the court held that substantial evidence supported the EIR’s conclusion that the project would not adversely affect the long-term recovery of the groundwater basin in which it is located, as the project would cause a net benefit to the aquifer.

Factual & Procedural Background

Although the Kern River had been designated a fully appropriated stream for many years—such that only those who held an appropriative right could divert from it—in 2010, the State Water Resources Control Board (SWRCB) found that in certain wet years, Kern River water was available in excess of the amount appropriated. In particular, following construction of the Kern River-California Aqueduct Intertie in 1977, the Kern River water master began occasionally releasing reservoir water into the intertie to alleviate flooding. This release only occurs when flows are in excess of those held by existing water rights holders. The SWRCB concluded that this flood-released water was unappropriated and stated that it would allow applications to appropriate that water.

Respondent, the Kern Water Bank Authority, thereafter filed an application with the SWRCB seeking a permit for a water right to divert and store up to 500,000 acre-feet-per-year of the unappropriated water. The Authority also certified an EIR for the project. Buena Vista Water Storage District filed a petition for writ of mandate, seeking to set aside the Authority’s certification of the EIR and its approval of the project.

The trial court granted Buena Vista Water Storage District’s writ petition, holding: (1) the EIR’s project description was inadequate because it did not quantify existing water rights and it was unstable; (2) the EIR’s discussion of the existing baseline was inadequate because it did not quantify competing existing rights to Kern River water; and (3) the EIR’s impact analysis was inadequate because it did not adequately assess impacts on senior rights holders and impacts on groundwater during long-term recovery operations. The Court of Appeal reversed, concluding that the EIR complied with CEQA.

The Court of Appeal’s Opinion

The EIR’s Project Description is Accurate and Stable

Unlike the trial court, the Second District Court of Appeal held that the EIR’s project description is adequate under CEQA. As explained by the court, the EIR consistently and adequately describes the project as “‘high flow Kern River water, only available under certain hydrologic conditions and after the rights of senior Kern River water right holders have been met, that otherwise would have (1) been diverted to the Intertie, (2) flooded farmlands, or (3) left Kern County.’”

Buena Vista Water Storage District argued that the EIR’s project description is unstable because it relies on an “open-ended limit of ‘up to 500,000 [acre-feet] of water.” The court rejected this argument, explaining that a precise amount of water to be diverted by the project cannot be determined because water availability will fluctuate from year to year. As stated by the court: “A project description may use a flexible parameter when subject to future changing conditions.” Furthermore, the proposed 500,000 acre-foot-per-year is a finite maximum amount based on historical conditions, thus providing an adequate upper-end of the proposed diversion.

EIR Not Required to Quantify Existing Water Rights

The appellate court also rejected the District’s contention that the EIR’s project description must include a quantification of existing Kern River rights. That amount of detail is not necessary under CEQA Guidelines section 15124, subdivision (c), which requires a “general description” of the project’s technical and environmental characteristics. Moreover, a stream-wide quantification is a complex proceeding conducted by the SWRCB or a court and can take several years (or even decades) to complete. CEQA does not require this type of exhaustive detail.

Similarly, the EIR’s description of the existing environmental setting is not required to include a quantification of the existing Kern River water rights. The EIR satisfies CEQA’s informational requirements by providing measurements of Kern River water historically diverted into the Kern Water Basin and estimating, based on these historic records, how much water the Kern River Bank Authority could have diverted from the basin under baseline conditions. A complete quantification of existing water rights was not necessary to provide these estimates.

Finally, the court found it was clear that existing rights would not be impacted because the SWRCB cannot issue a new permit to divert water that is already subject to existing water rights. Further, the SWRCB expressly allowed processing of water rights applications, like the one at issue, in its Order finding that the water diverted to the Intertie was not fully appropriated. Quantification of the existing water rights was not necessary to evaluate the project’s impacts.

Substantial Evidence Supports the EIR’s Conclusions Regarding Groundwater Impacts

According to the trial court, the project would alter groundwater recovery by making groundwater available for long-term pumping for additional months or years during drought conditions, which, in the trial court’s view, would likely deplete groundwater during a drought. The Second District rejected the lower court’s analysis as factually inaccurate. The purpose of the project is to add to groundwater supplies and increase the availability of groundwater storage. The EIR concludes that the project would raise the local groundwater, resulting in a net increase in aquifer volume. Additionally, the Kern Water Bank Authority’s existing groundwater and monitoring policies will ensure that banking additional groundwater will not lower groundwater tables or affect the production rate of existing wells. Thus, substantial evidence supports the EIR’s conclusion that the project’s groundwater impacts will not be significant.

Conclusions & Implications

The Second District’s decision addresses whether an EIR for a water diversion and storage project must quantify the existing water rights to the underlying waterbody. In holding that such quantification is not required for the Kern Water Bank Authority’s proposed water diversion project, the Court of Appeal adhered to the principle that CEQA does not require an exhaustive analysis, but rather a good faith and reasonable effort at full disclosure. The decision also recognizes that for certain types of projects, particularly those involving water supplies, a project description must be somewhat flexible. The decision illustrates how a court reviewing an EIR must defer to the lead agency’s factual analyses and conclusions—deference that the trial court had failed to give to the Kern Water Bank Authority’s determinations.

– Laura Harris Middleton

SECOND DISTRICT FINDS 90-DAY STATUTE OF LIMITATIONS APPLIES TO LAWSUIT ALLEGING CITY FAILED TO OBTAIN COASTAL DEVELOPMENT PERMIT PRIOR TO ADOPTING SHORT-TERM RENTAL ORDINANCE

General Posted by   

In Coastal Act Protectors v. City of Los Angeles (2022) 75 Cal.App.5th 526, the Second District Court of Appeal held a lawsuit alleging the City of Los Angeles was required to obtain a coastal development permit (CDP) prior to the adoption an ordinance imposing restrictions on short-term vacation rentals was subject to the 90-day statute of limitations in Government Code section 65009 subdivision (c)(1)(B). Because the lawsuit was not filed with 90 days, the court dismissed the case.

Background

The City adopted an ordinance imposing restrictions on short-term vacation rentals in December 2018. More than a year later, Coastal Act Protectors (CAP) filed a lawsuit seeking a writ of mandate to enjoin the City from enforcing the ordinance in the Venice coastal zone until the City obtained a CDP pursuant to the California Coastal Act, arguing that the ordinance constituted a “development” under the Act.

The trial court concluded that the 90-day statute of limitations in Government Code section 65009, subdivision (c)(1)(B), applied to the City’s adoption of the ordinance, and CAP’s petition was therefore untimely. It reasoned that the City’s purported duty to obtain a CDP was a procedural task to perform in enacting a lawful ordinance; therefore, CAP’s petition challenging the City’s failure to obtain a CDP constituted an action to “attack, review, set aside void, or annual” the decision of the City to adopt the ordinance, bringing it within the ambit of Government Code section 65009 subdivision (c)(1)(B). The trial court also addressed the merits of the petition and concluded that the ordinance was not a “development” under the Coastal Act. CAP appealed.

Court of Appeal’s Decision

On appeal, CAP argued that the City’s purported failure to comply with the Coastal Act when it adopted the ordinance was not an “action” or “decision” contemplated by section 65009 of the Government Code, but was instead subject to the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (a), for actions “upon a liability created by statute.”

The Court of Appeal agreed with the trial court that CAP’s petition constituted an action to “attack, review, set aside void, or annual” the decision of the City to adopt the ordinance, and therefore, the 90-day limitations period applied. The court explained that, unlike in cases where it would have been impossible for a petitioner to bring a lawsuit within 90 days, the Coastal Act predated the County’s ordinance. If the City did have a duty to obtain a permit for application of the ordinance to residences in the Venice coastal zone, the court held, that duty would have existed when the City enacted the ordinance. The statute of limitations in the Government Code therefore applied. Because CAP waited over a year to file suit, the Court of Appeal agreed with the trial court that the petition was untimely. The court concluded by noting its determination comported with the Legislature’s stated intent to “provide certainty for property owners and local governments regarding” local zoning and planning decisions. (Gov. Code, § 65009, subd. (a)(3).)

Since its holding on the statute of limitations issue was dispositive, the Court of Appeal did not address whether the ordinance constituted a “development” subject to the CDP requirements of the Coastal Act.

– Elizabeth Pollock

THIRD DISTRICT UPHOLDS EIR FOR EL DORADO IRRIGATION DISTRICT’S “UPPER MAIN DITCH” WATER TRANSMISSION PIPELINE PROJECT

General Posted by   

In a February 16, 2022 decision, the Third District Court of Appeal in Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239, upheld the District’s approval of the Blair Road Alternative for the Upper Main Ditch piping project by finding that substantial evidence supported the District’s determination that the project and alternative would have less-than-significant impacts, and rejected petitioner challenges to the EIR’s project description, hydrological, biological, and wildfire impact analyses.

Background

The El Dorado Irrigation District operates a primarily surface-water system in El Dorado County, with more than 1,250 miles of pipe and 27 miles of earthen ditches that connect the system’s facilities and treatment plants. The Upper Main Ditch (UMD) is the system’s main conveyance feature consisting of a three-mile open and unlined ditch that connects the system’s Forebay Reservoir to its Reservoir 1 Water Treatment Plant (WTP). In June 2015, the District proposed to convert the UMD to a buried 42-inch pipeline that spanned the length of the existing ditch. The upstream end of the new pipeline would connect to the Reservoir and the downstream end would connect to a new metering and inlet structure at the WTP. The District would backfill around the pipe and reshape the ditch to allow for the passage of stormwater flows up to the current 10-year storm event capacity. Ultimately, the project would conserve more water by reducing seepage and evaporation, and improve water quality by reducing contaminant infiltration.

The District considered three alternatives, and ultimately approved the Blair Road Alternative, which would also convert the UMD into a buried pipeline but would instead place the pipe across District-owned property from the Reservoir to Blair Road, where it would continue until it reached the UMD crossing, then travel across private property to the WTP. The Blair Road Alternative would involve less construction activity near residents that the project and require the removal of fewer trees. It would also reduce the number of easements across private property.

In June 2018, the District circulated the draft EIR, which described the location of the UMD and the Blair Road Alternative’s setting and noted that, should it be adopted, the District would no longer use the existing ditch—instead reverting the land back to private landowners. After an extended public comment period, the District issued the final EIR in January 2019. After which, in April 2019, the Board of Directors certified the final EIR and approved the Blair Road Alternative. The Boar determined that, although the original project would achieve the desired objectives, it would have greater potential impacts to residents along the ditch from the resulting construction and eminent domain proceedings than the Alternative.

Thereafter, Save the El Dorado Canal filed a petition for writ of mandate alleging the approval and certification violated CEQA. The trial court denied each of Petitioner’s ten contentions. Petitioner timely appealed.

The Court of Appeal’s Decision

On appeal, Petitioner re-alleged that the action violated CEQA because the EIR contained an inaccurate project description and failed to adequately analyze potential impacts to hydrology, biological resources, and wildfire hazards. Under an abuse of discretion standard, the Third District Court of Appeal rejected each claim, finding that substantial evidence supported the District’s determination and Petitioner failed to demonstrate otherwise.

Petitioner first alleged the EIR failed to adequately describe the project by omitting the “crucial fact” that the ditch that would soon be abandoned was the “only drainage system” for the watershed. Notwithstanding Petitioner’s “problematic” briefing errors, the court rejected this argument and found instead that the EIR provided a detailed description of the UMD’s size, history, and location, and explained how the UMD passively intercepts stormwater runoff that would otherwise naturally flow down slope. For the Blair Road Alternative, the EIR explained that the ditch would continue to passively receive and convey stormwater flows during storm events, even after the District abandoned its maintenance easement over it. The court concluded this was an adequate, complete, and good faith effort at full disclosure about the ditch and its relationship to the watershed’s drainage system, as well as the District’s intent to abandon the ditch should it adopt the Blair Road Alternative.

Petitioner then claimed the EIR inappropriately concluded that the Blair Road Alternative would not significantly impact watershed drainage because abandonment would permit “the underlying property owners to do with [the ditch] as they please.” Citing a comment letter submitted by the County, Petitioner claimed the EIR failed to mitigate foreseeable impacts to watershed drainage that would result from vegetation and debris clogging the abandoned ditch. The court disagreed. It found that the final EIR’s response explained that private action or inaction will ensure the abandoned ditch retains its current capacity to convey stormwater across private property thereby reducing any risk of significant flooding. Moreover, unlike the District, the County can regulate private fill activities via administrative and civil penalties to ensure such activities do not yield significant environmental effects. Thus, it would be too speculative to predict landowners’ particular actions or inactions and the ensuing potential effects to the ditch’s stormwater conveyance capacity.

Petitioner next alleged the EIR failed to mitigate impacts to riparian habitats and sensitive natural communities and conflicted with local resource protection ordinances. The court noted that the Blair Road Alternative would yield fewer potential impacts to biological resources because the pipeline would be laid in an existing road corridor that is devoid of natural riparian habitat. Because the affected waterbody is not naturally occurring, plant and wildlife species are not dependent on water in the current ditch. Nevertheless, any impacts to vegetation communities—including those resulting from tree removal—would be mitigated to less than significant levels through permit compliance. The Alternative would therefore be consistent with the General Plan’s biological resources management plan, the County’s tree mortality removal plan, and CALFIRE’s tree removal procedures.

The court was also unpersuaded by Petitioner’s claim that the EIR failed to adequately analyze and mitigate impacts to tree mortality. Relying on facts and expert opinion, the EIR explained that trees surrounding the project site are not native riparian species, and thus, not dependent on water conveyed through the ditch. To the contrary, most of the adjacent tree species are stress-tolerant and can withstand climatic variation and changes in water seepage. The court also found that because both the project and Alternative were specifically designed to avoid Waters of the U.S. (WOTUS), and that, in any event, mitigation would alleviate any impacts, regulatory requirements associated with WOTUS were met.

Lastly, the court rejected Petitioner’s contention that the EIR failed to adequately consider the project’s fire risks by only considering construction-related impacts. Petitioner asserted the project would have potentially significant impacts by removing a water source that could be used as a firefighting tool. The court disagreed by noting that the EIR specifically debunked Petitioner’s claim—the ditch supplies potable drinking water only, and water from the ditch has never been used to fight fires. Indeed, CAL FIRE’s Strategic Fire Plan did not identify the UMD as a potential firefighting resource.

– Bridget McDonald[/vc_column_text][/vc_column][/vc_row]

THIRD DISTRICT PARTIALLY AFFIRMS JUDGMENTS SETTING ASIDE EIR FOR SPECIFIC PLAN LAND SWAP IN EASTERN PLACER COUNTY

General Posted by   

In a 123-page decision, League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63, the Third District partially affirmed the trial court’s judgment in two cases granting a petition for writ of mandate, finding that the EIR for the Martis Valley West Parcel Specific Plan (Project) failed to adequately describe the environmental setting of Lake Tahoe regarding water quality, failed to adequately analyze impacts to Lake Tahoe water quality resulting from automobile trips, impermissibly deferred the formulation of mitigation for GHG impacts, failed to analyze proposed mitigation for the Project’s significant and unavoidable traffic impacts on SR 267, and failed to analyze whether renewable energy features could be incorporated into the Project. The Court of Appeal upheld the EIR’s analysis of impacts to forest resources and air quality, including the County’s reliance on the Placer County Air Pollution Control District’s (PCAPCD) thresholds of significance. The court also upheld the County’s decision not to recirculate the Draft EIR and to immediately rezone the subject property out of Timberland Productivity Zone (TPZ). Lastly, the Court of Appeal reversed the trial court’s decision that the EIR did not adequately analyze emergency evacuation impacts.

Background

Real Party in Interest, Sierra Pacific Industries (SPI), owns two undeveloped parcels on either side of SR 267, between Truckee and Lake Tahoe. The West Parcel is southeast of the Northstar Resort and has 1,052 acres. The East Parcel has 6,376 acres.  The existing zoning and land use designation in the Martis Valley Community Plan (MVCP) allows up to 1,360 residential units and 6.6 acres of commercial uses in a 670-acre area of the larger east parcel. Otherwise, both parcels are zoned TPZ and designated as forest in the MVCP. Starting in 2013, SPI and its partners (collectively, Real Parties in Interest or RPI) proposed that the County adopt a specific plan for the two parcels that would amend the MVCP and zoning to move the residential and commercial uses from the East Parcel to the West Parcel, reduce the residential capacity from 1,360 units to 760 units, immediately rezone 662 acres on the West Parcel out of TPZ, and rezone the entire East Parcel as TPZ. Following adoption of the specific plan, the applicants would sell the East Parcel for conservation purposes or place the land in a conservation easement. The effect of the land swap would be to allow development on the West Parcel, adjacent to Northstar and existing residential development, while permanently conserving all 6,376 acres of the East Parcel, connecting some 50,000 acres of open space east of SR 267. Two small areas of both parcels are within the Lake Tahoe Basin, and thus subject to the jurisdiction of the Tahoe Regional Planning Agency (TRPA), but neither area would be included in the specific plan.

The County circulated a draft EIR for the Project in 2015. In 2016, the County certified the final EIR, immediately rezoned the 662-acre project area of the West Parcel out of TPZ, rezoned the East Parcel to TPZ, and adopted the specific plan.

Sierra Watch, Mountain Area Preservation, and the League to Save Lake Tahoe (collectively, Sierra Watch) filed a lawsuit challenging the EIR and the County’s finding that immediately rezoning the project area on the West Parcel was consistent with the purposes of the Timberland Productivity Act (TPA). The California Clean Energy Committee (CCEC) filed a separate petition, also challenging the EIR. The trial court issued judgments in April and June 2018, rejecting all the challenges to the EIR, with the exception of the EIR’s analysis of impacts to emergency evacuations, and upholding the County’s findings on the immediate rezone out of TPZ. Sierra Watch and CCEC filed separate appeals, and the County and RPI cross-appealed on the emergency evacuation issue.

Court of Appeal’s Decision

On appeal, Sierra Watch argued that the EIR failed to adequately describe the Lake Tahoe Basin’s existing air and water quality, that the County should have adopted the TRPA’s threshold of significance for vehicle miles traveled (VMT) with respect to basin air and water quality, and that the EIR failed to adequately analyze the impacts of project traffic on air and water quality in the basin. Sierra Watch also challenged the County’s decision not to recirculate the EIR following changes to the analysis of GHG impacts, and argued that the adopted GHG mitigation measure was invalid. Lastly, Sierra Watch argued that the County violated the TPA by failing to make required findings. In their cross-appeal, the County and RPI argued that the EIR’s analysis of impacts to emergency evacuations was adequate, and that substantial evidence supported the EIR’s conclusion that the impacts would be less than significant.

CCEC’s appeal argued that the EIR did not adequately describe existing forest resources or analyze cumulative impacts to forest resources, failed to analyze feasible traffic mitigation measures proposed in comments, failed to disclose significant impacts from widening SR 267, and failed to discuss the use of renewable energy sources to meet Project energy demand. CCEC also argued that the adopted GHG mitigation measure was infeasible and unenforceable.

Lake Tahoe

The Court of Appeal found the County was not legally required to use TRPA’s thresholds of significance for measuring the Project’s impacts because, although the two parcels did include land within TRPA’s jurisdiction, the Project was revised to not include those areas. Instead, the County, as the lead agency, had discretion to rely on TRPA’s thresholds or those of another agency, or use their own thresholds, including thresholds unique to the Project. The court also concluded that, while TRPA had “jurisdiction by law” over resources that could be affected by the Project, and was thus, a “Trustee agency” under CEQA, they were not a “Responsible agency” because they had no permitting authority over the Project.
The court also found that the County did not abuse its discretion in adopting the PCAPCD’s thresholds of significance for the project’s air emissions impacts because, contrary to Sierra Watch’s claims, the PCAPCD’s significance thresholds were adopted to address air and water quality (resulting from air emissions) within the Tahoe Basin. However, the EIR failed to adequately describe the existing water quality of Lake Tahoe, which could be impacted by “crushed abrasives and sediment” from project traffic within the basin. According top the court, the EIR did not include a threshold of significance (though several were discussed in post-EIR responses to comments) for such impacts, even though there was substantial evidence that the project-generated traffic would travel within the basin, which the court found to be an abuse of discretion.

Recirculation

Sierra Watch argued that the revisions to the draft EIR’s GHG analysis included in the Final EIR triggered the need to recirculate. The draft EIR included a tiered analysis of GHG impacts. First, annual Project GHG emissions were calculated and compared to PCAPCD’s numeric threshold of 1,100 MTC2E for residential development. Second, although the draft EIR acknowledged that little, if any, of the Project would be constructed by 2020, the EIR compared a completed Project in 2020 with the GHG reduction measures, including those required by law, in place with a “no action” or “business as usual” scenario to determine the Project’s GHG efficiency, pursuant to the California Air Resources Board’s revised Scoping Plan. The draft EIR concluded that, because the Project would generate GHG emissions substantially greater than the numeric threshold, and because it was uncertain what regulatory GHG measures would be in place after 2020, when the Project was likely to begin operating, the impact was significant and unavoidable.

Before the final EIR was published, however, the California Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204 (Newhall Ranch). Newhall Ranch ruled that an efficiency metric comparing a proposed project to a hypothetical “business as usual” scenario was a permissible way to analyze GHG impacts, but the Scoping Plan’s statewide efficiency threshold required additional evidence and analysis to apply to individual projects, and the EIR in that case did not include the required connection. In response to Newhall Ranch, the final EIR dropped the efficiency analysis, but affirmed the draft EIR’s conclusion that impacts would be significant and unavoidable because the Project would generate emissions exceeding the numeric threshold, and because of the uncertainty around future regulatory GHG reduction measures. The County concluded that, because the significance conclusion did not change, recirculation was not required. The Court agreed recirculation was not required because the final EIR did not show new or substantially more significant effects, and merely clarified or amplified the information provided in the draft EIR.

GHG Mitigation

The court agreed with the appellants that the GHG mitigation measure impermissibly deferred determining the significance of GHG impacts, because the measure required future tentative maps to establish consistency with future efficiency targets adopted in compliance with the Newhall Ranch decision, even though the EIR acknowledged that no such targets existed and may not ever exist. The measure provided a suite of proposed mitigation tools that future maps could use to meet the efficiency targets. The court reasoned that, if no efficiency target consistent with Newhall Ranch became available, mitigation would never be triggered. RPI and the County argued that, if no efficiency targets were available, the 1,100 MTC2E threshold would apply to future maps, but the court found that the language of the measure itself did not include the numeric threshold.

Emergency Evacuations

The court agreed with the County and RPI that the EIR’s analysis of impacts to emergency evacuation plans was adequate and the EIR’s conclusion that impacts would be less than significant was supported by substantial evidence. The court upheld the EIR’s reliance on the questions in Appendix G to the CEQA Guidelines to set a threshold of significance. The EIR acknowledged that adding people and development to the area could exacerbate cumulative impacts to evacuation but concluded that the impact was less than significant because the project would not cut off or modify any evacuation routes and would not prevent an evacuation from occurring or otherwise interfere with the implementation of the County’s evacuation plans. The court found that the conclusion was supported by substantial evidence, including the EIR’s analysis of how long it would take to evacuate the project site, the number of emergency access/evacuation roads included in the project, the requirement that RPI develop a “shelter in place” feature, and the analysis of impacts to fire department response times.

The court acknowledged that evacuation planning involved multiple unknown factors and a host of potential circumstances which made it difficult to predict how an evacuation might play out or how a project could impact such an evacuation. The court reasoned that because the County had discretion as the lead agency to decide how to analyze an impact, the court would defer to the County’s methodology decision provided it was reasonable and supported by substantial evidence. The court found that it was. The court concluded that many of Sierra Watch’s challenges to the EIR’s analysis amounted to requests for further analysis, additional modeling, and speculative hypothetical scenarios. The court cited Guidelines sections 15145 and 15151 for the propositions that the EIR need not speculate and need not be exhaustive. While some of the evidence, relating to fire prevention and fire department response times, did not directly relate to emergency evacuation planning, the evidence indirectly supported the County’s conclusions by demonstrating that the project was reducing the likelihood of wildfire on the site and reducing the need for an evacuation.

Sierra Watch also argued that the EIR was internally inconsistent because the traffic analysis reached the opposite conclusion of the emergency evacuation analysis regarding project traffic on SR 267. The court found that the EIR’s conclusion that project generated traffic would have a significant impact on vehicle delay was not inconsistent with the conclusion that project generated traffic would not substantially interfere with emergency evacuation plans. The court reasoned that the two analyses focused on different types of impacts, with time (as measured by vehicle delay) being the focus of the traffic analysis and public safety being the focus of the emergency evacuation analysis.

Forest Resources

The court upheld the EIR’s conclusions that cumulative impacts to forest resources were less than significant. The EIR discussed the County’s 1994 General Plan EIR’s analysis of impacts to forest resources based on projected growth and development in the County and concluded that the Project’s impacts were consistent with and would not exceed the impacts disclosed in 1994 General Plan EIR. The Final EIR concluded that analyzing climate-related forest impacts, such as drought, wildfire, and tree mortality cause by bark beetles, would be speculative, and the court agreed. The court concluded that climate-driven tree mortality was not within the scope of a CEQA cumulative impacts analysis, which required the County to analyze impacts from the Project combined with past, present, and reasonably foreseeable future projects. Tree mortality is not a “project” under CEQA. The court acknowledged that climate-caused tree mortality could be exacerbated by a project, but such impacts would be best analyzed as part of the climate change and GHG analysis. The court concluded that aspect of the GHG analysis was not challenged in this case.

Traffic Mitigation

The EIR concluded that the Project’s traffic impacts on SR 267, measured in terms of delay and using the level of service (LOS) metric, would be significant and unavoidable. The EIR reached this conclusion in part because while the California Department of Transportation had plans to widen SR 267 from two to four lanes, the plan did not cover the portion of SR 267 within the Tahoe Basin, and it was uncertain when the widening would occur. Several commenters suggested that the EIR analyze transportation demand management (TDM) options to reduce traffic on SR 267. The EIR included similar measures for the Project’s impact on public transit but did not analyze whether TDM measures could further reduce the significant traffic impacts. The court, without acknowledging previous rulings by the Third District Court of Appeal finding LOS impacts to be moot given the Legislature’s directive that vehicle delay is not a significant environmental impact, ruled that the EIR failed to analyze facially feasible mitigation proposed in comments and therefore violated CEQA. The Court also found that, while the EIR did not analyze the impacts of widening SR 267, that lack of analysis was not prejudicial error because widening SR 267 was previously approved by the County in the MVCP, which concluded at the time that impacts of such a project would be analyzed in a separate EIR once the improvements were designed.

Energy Resources

Lastly, the court found fault in the EIR’s analysis of impacts to energy resources. The EIR concluded that the Project’s energy consumption impacts would be less than significant because the Project would not result in “wasteful, inefficient, or unnecessary use of energy, or wasteful use of energy resources.” The court, however, ruled that the EIR was required to analyze the Project’s potential use of renewable energy both in determining whether the Project may have a significant impact and how to mitigate that impact. Citing California Clean Energy Com. v. City of Woodland (2014) 225 Cal.App.4th 173, 209, the court concluded that the requirement to analyze renewable energy as part of a project’s impact analysis was a procedural requirement of CEQA, which the EIR failed to comply with.

– Nathan George

*RMM Attorneys Whit Manley, Chip Wilkins, and Nate George served as counsel to Real Parties in Interest in the above litigation.

FIRST DISTRICT HOLDS RESIDENTIAL DEVELOPMENT PROJECT THAT IS CONSISTENT WITH SPECIFIC PLAN AREA IS EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW

General Posted by   

In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal upheld the city’s determination that a residential project within a specific plan area was exempt from further environmental review under Government Code section 65457, which provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.

Background

In 2010, the city certified an environmental impact report (EIR) for a specific plan. The specific plan allowed for development of up to 1,260 residential units, and a golf course and related facilities spread across identified subareas (Areas 3 and 4). Area 4 contained wetland habitat for the salt marsh harvest mouse, a state-protected species. After petitioners filed suit under CEQA, the trial court found several deficiencies with the EIR.

In response, the city prepared a recirculated EIR (REIR), which stated that it was a program-level analysis of the impacts related to development of housing and the golf course in Areas 3 and 4 because the final design of those components was not yet known. In March 2015, the city certified the final REIR and re-adopted the 2010 specific plan.

In 2019, the developer submitted a proposed subdivision map for approval of 469 residential lots, omitting the golf course that was previously authorized by the specific plan.

The city prepared a checklist to determine whether the REIR adequately analyzed the environmental impacts of the proposed subdivision map and concluded that the project was consistent with the specific plan and that there were no changed circumstances or new information that might trigger additional environmental review. Accordingly, the city determined the project qualified for the statutory CEQA exemption under Government Code section 65457.

Petitioners challenged the city’s determination, arguing that a subsequent EIR was required due to changes in the project showing that it would have new significant impacts on the endangered harvest mouse.

Court of Appeal’s Decision

To qualify for the Government Code section 65457 exemption, a project must be for residential development, must be consistent with a specific plan for which an EIR was previously certified, and circumstances requiring subsequent environmental review (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) must not be present.

Petitioners alleged that three changes to the project created new significant impacts triggering the requirement for a subsequent EIR:

(1) Fill of only uplands and not wetlands inhibited wetland migration;

(2) Omission of the golf course deprived the harvest mouse of escape habitat; and

(3) Use of riprap on the banks of elevated upland increased predation of the harvest mouse.

The court disagreed, finding that substantial evidence supported the city’s conclusion that none of the changes significantly increased the impacts on the harvest mouse beyond what the REIR analyzed, i.e., the impacts of the complete development of all of Area 4. The court noted that the project as approved would develop fewer total acres and include far fewer residential units than analyzed in the REIR.

In regard to petitioners’ specific arguments of new impacts, the court held the REIR addressed the impact of loss of upland escape habitat and found that the impact would be less than significant because the uplands did not provide high quality transitional habitat as they were regularly used for agriculture. The project would develop less upland than previously analyzed, meaning the project would eliminate less, not more, upland escape habitat. Additionally, because of the low value of upland habitat, the REIR’s less-than-significant determination did not depend on the golf course continuing to provide upland habitat. Accordingly, the elimination of the golf course did not affect that determination.

While the REIR did not discuss the use of riprap to stabilize the slopes of the filled and raised development areas, the court found this did not require subsequent environmental review because the REIR already examined the issue of rat predation on the harvest mouse and petitioners cited to no evidence that the riprap would substantially increase the severity of predation effects. The court acknowledged that there could be some potential increase in predation due to riprap but recognized that the Section 65457 exemption sets a higher threshold for environmental review. Like other statutory exemptions, the court said, Section 65457 reflects the Legislature’s determination that the interest promoted, which here was to increase the housing supply, was important enough to justify foregoing the benefits of environmental review.

The court also rejected petitioners’ claim that changed circumstances and new information related to sea level rise triggered subsequent review. Petitioners argued that the city was required, due to new scientific insights concerning the amount and rate of sea level rise, to analyze whether the project would exacerbate the effects of sea level rise because of how the project would interact with wetlands in the area (e.g., wetland migration). Even assuming wetland migration must be analyzed under CEQA, the court found that it was mentioned in the original 2010 EIR and the REIR assumed that all developable areas would be impacted. Accordingly, the court concluded that petitioners should have raised this argument in response to the REIR, or even the 2010 EIR.

Finally, the court rejected petitioners’ claim that an adaptive management approach to sea level rise was impermissibly deferred mitigation. The court held that the city’s adaptive responses were not mitigation because sea level rise is not an environmental impact caused by the project that needs to be analyzed under CEQA.

– Nina Berglund

The Future of Wetlands and Waters of the United States: U.S. Supreme Court Grants Review of Sackett v. EPA

General Posted by   

On January 24, 2022, the United States Supreme Court granted review of Sackett v. U.S. EPA (No. 21-454) to consider whether the Ninth Circuit Court of Appeals set forth the proper test for determining whether wetlands constitute “waters of the United States” under the federal Clean Water Act. (33 U.S.C. § 1362(7).) The Supreme Court’s second grant of certiorari marks a pivotal development in a long-running legal battle between the Sacketts—an Idaho couple seeking to build a home near Priest Lake—and the EPA, which has maintained that the Sacketts’ property contains wetlands subject to federal jurisdiction and permitting.

Factual Background

The Sacketts own a residential lot in Bonner County, Idaho, that lies just north of Priest Lake. To prepare for construction of a house, the Sacketts filled part of their lot with dirt and rock. Several months later, the Sacketts received a compliance order from the EPA stating that the lot contained wetlands that were adjacent to Priest Lake, which was a “navigable water” within the meaning of section 502(7) of the Clean Water Act (CWA) and constituted “waters of the United States” within the meaning of 40 C.F.R. § 232.2. The compliance order found that the Sacketts violated the CWA by impermissibly discharging pollutants into navigable waters. The order directed the Sacketts to remove the fill and restore the lot to its original condition, or be subject to civil penalties.

March 2012: Initial Lawsuit & Supreme Court Decision

The Sacketts sought, but were denied, an administrative hearing before the EPA. The Sacketts thus filed suit in the U.S. District Court of Idaho, contending that the compliance order violated the Administrative Procedure Act and the Sacketts’ due process rights. The petition alleged the EPA acted arbitrarily and capriciously by issuing the compliance order, and deprived the Sacketts of life, liberty, or property without due process of law in violation of the Fifth Amendment. The District Court dismissed the action due to lack of subject-matter jurisdiction. The Ninth Circuit affirmed, finding that the CWA precluded pre-enforcement judicial review of compliance orders, and that such preclusion does not violate the Fifth Amendments’ due process guarantee.

In 2012, the Supreme Court granted review of the Ninth Circuit’s decision to consider whether the EPA’s compliance order constituted a “final agency action” that could be subject to judicial review. The Supreme Court unanimously held in favor of the Sacketts, finding that the order had “all the hallmarks of APA finality.” In an opinion authored by the late Justice Scalia, the court held that the EPA’s order “determined” the “rights or obligations” of the Sacketts by imposing “legal consequences” that “flowed” from noncompliance with its terms. Because the EPA denied them an administrative hearing, the Sacketts possessed “no other adequate remedy in a court” so as to challenge the nature and scope of the order and administrative penalties therein.

August 2021: The Ninth Circuit’s Decision on Remand

On August 16, 2021, the Ninth Circuit issued its opinion on the merits of the Sacketts’ claims. The court of appeal held that the EPA reasonably determined that the Sacketts’ property contained wetlands. The court explained that Justice Kennedy’s interpretation and understanding of “significant nexus” in his concurring opinion in Rapanos v. United States (2006) 547 U.S. 715, provided the standard for determining when wetlands are regulated under the CWA. Applying that test, the panel held that the standard was satisfied because evidence in the record supported EPA’s conclusion that wetlands on the Sacketts’ property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a navigable water that is regulated under the CWA.

January 2022: The Supreme Court’s Second Grant of Certiorari – Implications

Since the Supreme Court’s decision in Rapanos, most lower courts have relied on Justice Kennedy’s “significant nexus” test as the governing standard. Nevertheless, the split of opinion in Rapanos, coupled with the lack of executive rulemaking to clarify the scope of the EPA’s CWA jurisdiction, has created confusion. As such, the Supreme Court’s second grant of certiorari could mark a momentous step in the ongoing debate about the appropriate “WOTUS” test.

The Supreme Court will consider “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).” The Sacketts urge the Court to adopt the four-justice plurality’s test in Rapanos, which, unlike the “significant nexus” test, would allow regulation of wetlands only when they have a continuous surface water connection to regulated waters of the United States. In contrast, the EPA maintains that a rule divergent from the significant nexus test would deprive the agency of “authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the river’s ‘chemical, physical, and biological integrity.’”

Though the Court will likely hear this case in October 2022, with a decision to follow in early 2023, it remains to be seen how the pending outcome will affect the EPA’s current implementation of, and revisions to, the “WOTUS” rule. Either way, the scope of federal jurisdiction in regulating and protecting the nation’s wetlands and navigable waters will be decided by our highest court yet again, hopefully yielding greater clarity on the issue rather than further muddying the waters.

– Bridget McDonald

FOURTH DISTRICT UPHOLDS EIR FOR MULTI-FAMILY HOUSING PROJECT AND FINDS CITY PROPERLY USED A PLANNED DEVELOPMENT PERMIT TO ALLOW A VARIATION FROM CONVENTIONAL ZONING REGULATIONS

General Posted by   

In Ocean Street Extension Neighborhood Association v. City of Santa Cruz (2022) 73 Cal.App.5th 985, the Fourth District Court of Appeal held that an EIR for a multi-family housing project properly relied on the biological resources analysis and mitigation measures identified in the initial study for the project, and sufficiently addressed the project objectives, alternatives, and cumulative impacts to water supply and traffic. Reversing the trial court, the Court of Appeal also held that the City complied with its municipal code by using a planned development permit as a variation from its conventional slope regulations.

Background

The proposed project consisted of a 40-unit residential complex on a vacant lot in the City of Santa Cruz. The City prepared an initial study that discussed, among other topics, biological impacts that would be reduced to less-than-significant with mitigation, and later circulated a draft EIR and recirculated draft EIR before certifying the final EIR. The City Council approved a reduced-housing alternative with 32 units.

Along with a general plan amendment, rezone, and other entitlements, the City approved a planned development permit (PDP) to allow a variation from the conventional slope regulations in the City’s zoning code.

The Ocean Street Extension Neighborhood Association (OSENA) filed a petition for writ of mandate challenging the EIR and the City’s approval of the PDP. The trial court ruled that the City complied with CEQA, but found the City violated its municipal code by not requiring compliance with the conventional slope regulations. OSENA appealed and the City and Real Parties in Interest cross-appealed.

The Court of Appeal’s Decision

CEQA and Adequacy of the EIR

Upholding the trail court’s ruling on the CEQA claims, the Court of Appeal concluded that the EIR was adequate. The court held that impacts that are less than significant with mitigation may be discussed in an initial study rather than in the EIR as long as the EIR fulfills its purpose as an informational document. The court noted that the EIR summarized the impacts and mitigation measures, and the EIR’s reference to the initial study—which was attached to the EIR as appendix—sufficiently alerted the public to the environmental issues and provided readers with adequate information. Accordingly, the court determined that it was appropriate for the EIR to rely on the biological resources analysis and mitigation measures identified in the initial study.

The court also rejected OSENA’s argument that the mitigation measures were vague and improperly deferred because OSENA failed to exhaust its administrative remedies as to this issue and did not raise it in the trial court proceedings. The court nonetheless explained that even if it considered this issue on the merits, it would reject OSENA’s arguments because the question of effectiveness of a mitigation measure is a factual one, which, in this case, was supported by substantial evidence in the record.

The court further concluded that the project’s objectives and alternatives analyses were adequate, and that OSENA’s arguments amounted to mere disagreement with the City’s conclusions. The court explained that rejecting or approving an alternative is a decision only for the decisionmakers, and they may reject alternatives that are undesirable for policy reasons or fail to meet project objectives. While the project objectives included specific targets, those objectives did not improperly restrict the range of alternatives analyzed in the EIR, and the City justified its reasons for rejecting alternatives with even less housing than the 32-unit alternative.

Additionally, the court determined that the EIR sufficiently analyzed the project’s cumulative impacts on water supply and traffic. Regarding water supply, the court explained that the EIR’s analysis properly considered the water supply impact in light of city-wide needs and future demand, and properly relied on the City’s Urban Water Management Plan. Regarding traffic, the court held that OSENA’s arguments challenging the EIR’s analysis of LOS impacts were moot because CEQA Guidelines section 15064.3, which took effect after the case was initiated, provides that a project’s effects on automobile delay shall not constitute a significant environmental impact.

Therefore, the Court affirmed the portion of the trial court’s order and judgment concluding that the City complied with CEQA.

Santa Cruz Municipal Code

Reversing the trial court’s ruling on OSENA’s municipal code claims, the Court of Appeal held that the City did not violate its municipal code by granting a PDP without also requiring compliance with the conventional slope modification regulation procedures in its zoning code. The City’s PDP ordinance allows a variation from certain zoning regulations including “Slope Regulations Modifications, pursuant to procedures set forth in Chapter 24.08, Part 9 (Slope Regulations Modifications).” Rejecting OSENA’s claim that the City was required to comply with the conventional regulations in Chapter 24.08, Part 9, in addition to the requirements for a PDP, the court explained that the City should be afforded deference in the interpretation of its own municipal code. The court upheld the City’s determination that the granting of a PDP does not require compliance with the conventional slope regulations, as this interpretation was consistent with the text and purpose of the ordinance and interpreting the PDP ordinance as requiring compliance with both the PDP ordinance and the slope regulations would have served no readily apparent purpose.

RMM Partners Christopher L. Stiles and Tiffany K. Wright represented the Real Parties in Interest in this case.  Chris Stiles argued the case in Court of Appeal on behalf of the City and Real Parties.

-Veronika S. Morrison

34567