Our Cases

Friends of the College of San Mateo Gardens v. San Mateo County Community College District II

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On remand from the Supreme Court’s holding in Friends of the College of San Mateo Gardens v. San Mateo County Community College (2016) 1 Cal.5th 926 (San Mateo I ), the First District interpreted the Supreme Court’s direction as requiring the application of the fair argument standard of review to claims challenging an addendum to a negative declaration in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal. App.5th 596.

The Supreme Court’s holding in San Mateo I

The San Mateo cases concern the San Mateo County Community College District’s campus renovation project, approved with a mitigated negative declaration (MND) in 2006. In 2011, the college decided to demolish an area of the campus (the Building 20 Complex) that was planned for renovation under the 2006 plan, and construct a parking lot in its place. The updated plan was analyzed in an addendum to the 2006 MND. The suit in San Mateo I followed, with the petitioner alleging that the updated plan was a “new project” under CEQA, and not a modified project subject to CEQA’s subsequent review provisions (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162.). Both the trial court and the First District held that it was a new project, and therefore, the college was not entitled to rely on an addendum.

The Supreme Court reversed, noting first that the proper inquiry under CEQA was not whether or not a project is new or modified, but whether or not the initial environmental document retains informational value in light of the proposed modifications, or if it had become irrelevant.  This is a factual determination to be made by the agency and reviewed for substantial evidence.

If the agency’s decision to proceed under CEQA’s subsequent review provisions is supported by substantial evidence, a court may consider the type of subsequent document prepared by the agency. The standard of review applied by the court in reviewing that decision turns on the nature of the original documents. The agency must first determine if there are substantial changes to the project that require “major revisions” in the original environmental analysis. This determination is reviewed for substantial evidence. When the project was previously reviewed in an EIR, there are no “major revisions” if the initial EIR has already adequately addressed any additional environmental effects expected to result from the proposed modifications. In contrast, when a project is initially approved with a negative declaration, a “major revision” to the negative declaration will necessarily be required if the proposed modification may produce a new or previously unstudied significant environmental effect. If there is no major revision required, the agency can issue a subsequent mitigated negative declaration, addendum, or no further documentation.

Application in San Mateo II

The court applied the two-part test of San Mateo I to the college’s decision to rely on an addendum to the 2006 MND. First, the court conceded that the agency determination—that the MND retained informational value in light of the revised campus plan—was supported by substantial evidence. It retained informational value because the revised plan considered in the addendum did not affect plans to demolish 14 of the buildings cited in the original plan. The revised plan added one more building complex to the demolition list, but the college had previously removed two others, deciding to renovate them instead. The mitigation measures adopted with the original plan remained in place.

Applying the second prong of the Supreme Court’s test, however, the court held that the college violated CEQA’s subsequent review provisions by preparing an addendum to the MND, because the removal of gardens in the Building 20 Complex could result in a significant aesthetic impact, under the fair argument standard of review.

Interpreting this second prong of the San Mateo I test, the San Mateo II court stated that when the initial environmental review document is an negative declaration, the court must apply the more exacting standard applicable to negative declarations—whether there is substantial evidence to support a fair argument that the proposed changes to the project might have a significant effect on the environment. The court acknowledged that aesthetic impacts are necessarily subjective, but agreed with the petitioner that substantial evidence of a fair argument could be found in lay opinions based on direct observation. The impact is not determined by the size of the area, but measured in light of the context in which it occurs, and this can vary by setting.

Here, the court relied on the opinions of campus employees and students regarding the garden’s aesthetic value and quality. Although not a significant portion of the campus’ open space (less than one-third of one percent), the garden’s vegetation and landscaping were alleged by its admirers to be unique. The garden’s social value as a gathering space was also considered. Because the court determined that these opinions qualified as substantial evidence to support a fair argument of a potentially significant aesthetic impact, the college’s decision to rely on an addendum violated CEQA’s subsequent review provisions, as an addendum is only appropriate if there are no new or more severe significant impacts than were previously analyzed.  However, the court refused to order the preparation of an EIR, stating that the college could choose to prepare a subsequent MND if the impacts to the garden could be mitigated to a less-than-significant level.

RMM Partner Sabrina V. Teller represented the respondent college district.

Banning Ranch Conservancy v. City of Newport Beach

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Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918

The California Supreme Court ruled that the Environmental Impact Report prepared for the proposed “Banning Ranch” project was inadequate because the EIR did not identify “environmentally sensitive habitat areas” (ESHA) under the Coastal Act that might be present on the property, and therefore did not consider mitigation measures and alternatives designed to reduce impacts on those areas. Although the project required a coastal development permit, and the Coastal Commission would make a determination regarding ESHA as part of that permit, the Court held the EIR had to include a prediction of where ESHA would likely be found in order to serve its information purposes under CEQA. Whit Manley argued the case for the City of Newport Beach.

Mission Bay Alliance v. Office of Community Investment and Infrastructure

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Mission Bay Alliance v. Office of Community Investment and Infrastructure (2016) 6 Cal.App.5th 160

The First District Court of Appeal upheld the city’s approval of a new arena in the Mission Bay neighborhood of San Francisco. The arena will serve as the home of the Golden State Warriors’ basketball team. The Court held the environmental impact report certified by the city was adequate, finding among other things that (1) the city had properly “tiered” the EIR off an earlier program EIR covering redevelopment of Mission Bay, (2) the city could rely on the project’s consistency with the city’s adopted climate action plan, and (3) the city could rely on implementation of various transit improvements to address traffic traveling to and from the arena. Whit Manley argued the case for the Warriors.

EIR for Mission Bay Warriors Arena Upheld by Court of Appeal

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The First District Court of Appeal issued a published opinion upholding the EIR for the Warriors arena in the Mission Bay area of San Francisco. The court held that the EIR adequately analyzed impacts related to biological resources, air quality, greenhouse gases, noise, traffic, and local and regional transit, among others. The court also held that the EIR adequately considered potential land use impacts and that ample evidence supported the EIR’s conclusion that the arena would not impede other exiting uses in the area, including a nearby hospital. The court rejected all of the petitioners’ non-CEQA claims as well. The court found the project complied with local zoning requirements and that the issuance of a place of entertainment permit by the city’s entertainment commission complied with all applicable laws. Because the project was certified as an “Environmental Leadership and Development Project” under Assembly Bill (AB) 900, this case was subject to an expedited litigation schedule.
RMM attorneys Whit Manley, Jim Moose, and Chris Stiles represent the Warriors.

Friends of the College of San Mateo Gardens v. San Mateo County Community College District

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Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937

In a unanimous decision, the California Supreme Court emphatically rejected the notion that public agencies should get no deference in deciding whether to treat proposed projects as changes to previously reviewed projects or as new projects under CEQA. In doing so, the court strongly disagreed with the reasoning presented in the Third District’s decision in Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, which first articulated the “new project” threshold question as a de novo question of law for the courts. The Supreme Court concluded that Division One of the First District Court of Appeal erred in applying Lishman’s “new” project standard to the case at hand, which involved a community college district’s proposed changes to the disposition of a small building complex and landscaped area on a campus for which a campus-wide renovation plan was previously reviewed in an unchallenged mitigated negative declaration (MND). The district considered the subsequent changes in an addendum to the MND and approved the demolition of an existing complex of outdated buildings and their replacement with a new parking lot, concluding that the changes posed no new or more severe environmental impacts than were previously described in the adopted MND.

The Supreme Court granted review to resolve the question of whether Lishman’s “new project” test was the correct approach for courts reviewing subsequent review documents, or whether courts should follow the more deferential, substantial evidence standard explained in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385. Few appellate courts had followed the Lishman approach after the court in Mani Brothers rejected it. Division One of the First District applied it to the college district’s case in an unpublished decision, but oddly declined to apply it again a few weeks later in its published decision, Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 201-202, thereby highlighting the conflict in the law.

The Supreme Court noted that the Lishman court’s focus on the similarities or lack thereof in the features associated with an originally-reviewed project and subsequent proposal as lacking any basis or standards in CEQA. The court further noted that because of the lack of any standards or framework for measuring the “newness” of a given project, a “new project” test applied by the courts “would inevitably invite arbitrary results.” Moreover, the court emphasized that, given the purpose of CEQA to ensure agencies consider the environmental effects of proposed actions, focusing on the characterization of a proposed project as a new project or a modified project misses the point of subsequent review. Rather, the court concluded, the fundamental determination an agency must make is whether an original environmental document retains some informational value, or whether the proposed changes have rendered it wholly irrelevant.

The court affirmed the college district’s view (shared by the Regents of the University of California, League of California Cities, California State Association of Counties, Association of California Water Agencies, California Building Industry Association, Building Industry Association of the Bay Area, and California Business Properties Association, who participated as amicus parties at the Supreme Court) that the question of whether an initial environmental document remains relevant in light of changed plans or circumstances is inherently a factual question for the agency to answer in the first instance and is reviewable under the deferential substantial evidence standard of review.

Following oral argument, the court ordered supplemental briefing on two issues: (1) the standard of review that applies to an agency’s determination not to prepare an EIR for modifications to a project that was previously reviewed by a negative declaration; and (2) whether CEQA Guidelines section 15162, as applied to projects initially approved by negative declarations rather than EIRs, was a valid interpretation of the governing statute, Public Resources Code section 21166, which does not mention negative declarations. Guidelines section 15162, subdivision (a) prohibits agencies from requiring a subsequent or supplemental EIR unless the agency determines “on the basis of substantial evidence in the light of the whole record,” that “substantial changes . . . will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” The court rejected the petitioner’s argument that application of this substantial evidence standard in section 15162(a) to projects initially analyzed in negative declarations creates a CEQA loophole that permits agencies to evade their obligation to prepare an EIR under the less deferential fair argument standard. As the court explained, “the substantial evidence test referred to in the Guidelines does not, as plaintiff supposes, refer to substantial evidence that the project, as modified, will necessarily have significant environmental effects. It instead refers to substantial evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require major revisions of the previous EIR or negative declaration due to the involvement’ of new or significantly more severe environmental effects.” The court held that section 15162 constitutes a valid gap-filling measure as applied to projects initially approved via negative declaration, including the college district’s project at hand.

Lastly, the court rejected the petitioner’s contention that the subsequent review schemes in the statute and Guidelines were inapplicable to the district’s project because the originally-approved campus renovation project was more akin to a plan or program than a specific project. Both the Court of Appeal below and petitioner relied on Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 to conclude that when an agency initially adopts a broad, large-scale environmental document (such as the college district’s original MND) that addresses the environmental effects of a complex long-term management plan, a court can find that a material alteration to the plan regarding a particular site or activity may be a new project triggering environmental review under Public Resources Code section 21151. The Supreme Court rejected the attempt to frame the original campus renovation plan and subsequent changes to the disputed area in this manner, holding that the tiering provisions, and therefore the Sierra Club decision, had no applicability here. The court noted that unlike the program EIR at issue in Sierra Club, the MND previously adopted by the college district was a project-specific review that could not be characterized as a first-tier document.

The Supreme Court remanded to the Court of Appeal’s consideration the merits of the district’s addendum and approval of the building demolition and parking lot project. The Court of Appeal had not previously reached the merits because of its conclusion that the subsequent project was “new.”

RMM partners Sabrina V. Teller and James G. Moose represented the respondent San Mateo County Community College District in the litigation from the trial court through the Supreme Court.

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

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

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

Factual and Procedural Background

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

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

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

Court of Appeal Decision

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

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

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

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

Keep Our Mountains Quiet v. County of Santa Clara

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Keep Our Mountains Quiet v. County of Santa Clara

(2015) 236 Cal.App.4th 714

The County of Santa Clara adopted a mitigated negative declaration (MND) and granted a use permit allowing Real Party in Interest, the Wozniak Trust, to host a limited number of weddings and other events on property located in the Santa Cruz Mountains. Petitioner Keep Our Mountains Quiet, an unincorporated association of individuals who reside in the vicinity of the property, challenged the MND, asserting that the County should have prepared an EIR for the project. The lower court agreed and the Sixth District Court of Appeal affirmed the trial court decision requiring an EIR.

The appellate court held that the administrative record contained substantial evidence of a fair argument that the project may have significant noise impacts. Although real party’s and the county’s noise experts concluded that the project would not exceed the noise standards adopted by the county in its general plan, the court agreed with petitioner that compliance with the county’s noise standards did not necessarily mean the project would not have a significant noise impact.  The court found the neighbors’ comments about the discrepancy in noise levels between the mock event used by the noise consultants to test and assess the project’s noise impact and actual events from past unpermitted weddings held at the property prior to any CEQA review constituted substantial evidence supporting a fair argument that the project may have significant noise impacts. Relatedly, the court found that substantial evidence supported a fair argument that project-related crowd noise may have significant noise impacts on the surrounding residents.

The court also found evidence supported a reasonable inference that noise from the project may have significant impacts on wildlife at a nearby open space preserve, but no substantial evidence supported the argument that the project might have significant noise impacts on visitors to the open space preserve, which was open to the public by permit only. The court stated it “need not consider the impacts on hypothetical users of nonexistent trails.”

The court also found substantial evidence that the project may have significant traffic impacts. The testimony the court cited related facts about road conditions based upon local residents’ personal knowledge. The court found a fair argument had been made concerning increased traffic from the project and its effect on existing traffic safety conditions.

Lastly, the court upheld the trial court’s award of attorneys’ fees to the petitioner, but rejected the petitioner’s argument that the trial court improperly denied a multiplier in determining the amount of fees properly awarded to petitioner.

RMM partners James Moose and Sabrina Teller, along with senior counsel Jennifer Homan, represented Real Party in Interest, the Wozniak Trust, on appeal.

Citizens for a Sustainable Treasure Island v. City and County of San Francisco

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(2014) 227 Cal.App.4th 1036 

The First District Court of Appeal upheld the EIR for a project designed to transform a former naval station into a vibrant mixed-use community. The project is a comprehensive plan to redevelop Naval Station Treasure Island, which ceased operations in 1997. The City and County of San Francisco, along with the Treasure Island Development Authority, certified the EIR for the Treasure Island / Yerba Buena Island Project in June 2011. A group called Citizens for a Sustainable Treasure Island challenged the decision, claiming the environmental documents violated CEQA on several grounds. The trial court denied the petition in its entirety. On appeal, the First District Court of Appeal affirmed the trial court’s judgment.  

The project, which will be constructed over 15 to 20 years, includes up to 8,000 new homes (with at least 25 percent designated as affordable units available at below-market prices); 500 hotel rooms; commercial, retail, and office space; and 300 acres of parks, playgrounds, and open space. The project also includes restoration and re-use of historic buildings, public utilities, bike and transit facilities, updated infrastructure, and a new ferry terminal and intermodal transit hub. Because the project will be built over time, with changing market conditions, it includes flexible parameters for certain project elements. All told, the project is expected to cost around $1.5 billion. 

The petitioner’s main argument on appeal was that the lead agencies abused their discretion by preparing a “project” EIR instead of a “program” EIR. Essentially, the petitioner argued that the project was too “flexible” and uncertain to support project–level review.  The court disagreed, noting that the fact that an EIR is labeled a “project” or “program” EIR matters little. Rather, the level of detail required in an EIR is determined by the nature of the project.  

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 in light of modifications made to the project to address Coast Guard concerns. (RMM partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest Treasure Island Community Development, LLC, in the case.)

California Clean Energy Committee v. City of Woodland

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(2014) 225 Cal.App.4th 173 

The Third District Court of Appeal held that the City of Woodland’s EIR for a regional shopping center failed to comply with CEQA. The shopping center, known as “Gateway II,” was planned for undeveloped agricultural land on the outskirts of the city. The city prepared a programmatic EIR for the project, reduced its size from 234 acres to 61.3 acres as a result, and approved the project.  

In the published portion of the opinion, the court considered the sufficiency of five mitigation measures for urban decay impacts caused by the project. The court found that one measure, which served to ensure that the primary retail uses for the development would be regional and not compete with retailers in downtown Woodland, was permissible under CEQA. By itself, however, this measure did not constitute adequate mitigation of anticipated urban decay from the project. The court found the other measures inadequate because they lacked specificity or adequate commitments for future action. The court also held that the city’s treatment of energy impacts was inadequate, and that the city failed to comply with CEQA when it rejected a mixed-use alternative as infeasible. 

In the unpublished portion of the case, the court rejected the petitioner’s claim that the city’s actions in approving the shopping center violated the State Planning and Zoning Law because the project was inconsistent with the city’s general plan policy of revitalizing its downtown. The court held that the petitioner failed to preserve this argument because the petition did not plead a separate violation of the State Planning and Zoning Law. (RMM partners Whitman F. Manley and Sabrina Teller, associate Amanda Berlin and former RMM associate Holly Roberson represented the City of Woodland in the case.)

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