On May 19, 2011, the First Appellate District in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, affirmed the order of the trial court discharging a writ of mandate. The court held that the revised environmental impact report (EIR) did not impermissibly defer mitigation of seismic impacts in violation of the California Environmental Quality Act (CEQA).
The Oakland Heritage Alliance (Alliance) challenged the City of Oakland’s initial EIR for the “Oak to Ninth Project,” a mixed-use project to develop 64 acres along the Oakland Estuary and the Embarcadero. The trial court granted in part the Alliance’s petition for writ of mandate, finding: 1) the EIR failed to provide meaningful analysis to support seismic risk findings, 2) the seismic risk findings were not supported by substantial evidence, and 3) the mitigation measures did not establish which mitigation techniques would actually be used and did not commit the City to implement particular building techniques. The City was directed to void its certification of the EIR and its approval of the project.
The City revised the EIR and paid special attention to revising mitigation measures for seismic impacts F.1 (seismic ground shaking) and F.2 (liquefaction). After the City certified the revised EIR, the City and project proponents sought an order discharging the writ so that the City could approve the project. The trial court granted the City’s motion and concluded the revised EIR did not improperly defer mitigation of seismic effects. The Alliance appealed, contending: 1) the City failed to evaluate the risk of seismic damage to structures, 2) substantial evidence did not support the City’s finding that mitigation reduced seismic impacts to a less than significant level, and 3) the City improperly deferred mitigation of the seismic effects. The court of appeal was unconvinced by the Alliance’s arguments and affirmed the order of the trial court granting the motion to discharge the writ.
In California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, the court established a rule that “when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigating the significant impacts of the project.” (Id. at p. 621.) Additionally, mitigation can be properly deferred with conditions requiring compliance with regulations where it is reasonable to expect compliance. For example, in Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, the court held there was no improper deferral of mitigation where the city required the landowner to design modifications, conduct an evaluation, provide monitoring, coordinate with relevant federal and state agencies, and obtain approval from the United States Fish and Wildlife Services. (Id. at pp. 1274-76.) Similarly, in Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, the court found no improper deferral of mitigation where the city required the applicant to submit plans for approval that would be subject to specific limitations “imposed by various ordinances, codes, and standards….” (Id. at pp. 1395-96.)
In this case, the court found the City did not improperly defer mitigation. The court noted that the revised EIR and studies in the record provide evidence that mitigation is feasible and discussed the statutes and regulations aimed at increasing seismic safety. Specifically, the applicable Building Code and other regulations required investigations and recommendations to avoid seismic effects, with all mitigations subject to compliance with site-specific geotechnical investigations to be submitted in plans for individual construction permits. Comparing the situation to Gentry where the relevant plans were subject to many specific criteria imposed by various statutes and regulations, the court concluded the revised EIR adequately assured the mitigation of seismic impacts because it was reasonable to expect that the regulatory scheme would be followed. Therefore, the revised EIR could properly defer identifying specific mitigation measures until final designs of the structures are completed because the City had committed itself to “devising measures that will satisfy specific performance criteria articulated at the time of project approval.” (See Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-29.)
Although the court’s holding on deferral of mitigation was most significant, the court also addressed the Alliance’s other two arguments. First, the court found that the City was not required by CEQA Guidelines section 15064.7 to adopt significance thresholds and could rely on standards developed for a particular project. Therefore, the City could properly decide to follow a “life safety” performance standard instead of the higher standard of “immediate reoccupancy.” Second, the court found substantial evidence did support the City’s finding that seismic impacts have been mitigated to a less than significant level. The court refused to choose between differing expert opinions and override the City’s choice with the court’s own judgment. In particular, the court refused to require the project to adopt a “performance-based design approach” as recommended by Alliance consultant Alan Kropp. Consequently, the court endorsed the City’s conclusion that complying with current building standards would adequately mitigate seismic impacts.