Court of appeal reviews housing element update under substantial evidence standard and upholds city’s decision not to prepare an EIR

In Latinos Unidos de Napa v. City of Napa (Oct. 10, 2013), Case No. A134959, affordable housing advocates sought to set aside the city’s approval of revisions to the housing element of its general plan on the ground that the updates required an environmental impact report. The trial court denied the petition on its merits and the court of appeal affirmed.

The court of appeal explained that the exacting “fair argument” standard set out in Public Resources Code section 21151 applies to new projects, whereas the deferential “substantial evidence” standard set out in section 21166 applies to projects tiered from program EIRs.  The applicable standard turns on whether a project is “new” or whether it is “within the scope” of the analysis in a previously certified EIR.

The court of appeal concluded that the City of Napa’s general plan housing element update was not a new project, but rather, was within the scope of the original program EIR. The court rejected plaintiff’s arguments that the high density residential units approved as part of the project were not adequately addressed in the program EIR.  The court found that the incremental increases in maximum residential densities for parts of the city approved as part of the housing element revisions would not intensify total potential development above what was already analyzed in the program EIR. Many of the projects approved by the city built out at less than the maximum permitted density and the city’s growth rate was slower than anticipated in the program EIR.  As a result, the impacts of increasing density in the housing element revisions remained “within the scope” of —in other words, no greater than those disclosed in—the original program EIR.