South County Citizens for Smart Growth v. County of Nevada

(2013) 221 Cal.App.4th 316

The Third District Court of Appeal held that Nevada County did not need to recirculate a draft EIR after a new “potentially feasible” alternative was proposed following circulation of the draft document. In this case, which involved a proposed shopping center, the county planning commission endorsed a staff-recommended alternative that emerged after the county published the final EIR. The petitioner argued that the county should have prepared and recirculated a revised draft EIR adding the alternative proposal. The court disagreed. According to the court, the duty to recirculate arises only if the information is “significant new information,” and the agency’s determination whether the new information is “significant” will be upheld if supported by substantial evidence.

The opinion provides helpful guidance on when the need for recirculation is triggered by a new “potentially feasible” alternative that is proposed after the draft EIR has been circulated. The decision carefully explains the burden of proof and the elements of proof for a challenge brought under CEQA Guidelines section 15088.5, subdivision (a)(3). In essence, a petitioner has the burden to demonstrate that no substantial evidence supported the agency’s decision not to recirculate the EIR. To demonstrate an abuse of discretion, a petitioner must show that no substantial evidence supports any of the following express or implied “negative findings” by a CEQA lead agency: The alternative was not actually feasible; the alternative was not “considerably different from” alternatives already analyzed in the EIR; and the alternative would not “clearly lessen the significant environmental impacts” of the project as approved.

Here, the court concluded that the petitioner did not meet its burden to show that the staff alternative was considerably different from those already analyzed in the EIR. The EIR looked at four alternatives. Staff’s recommendation provided more open space than any of these alternatives, but that in itself was not enough to show that it was considerably different from those already analyzed in the EIR. Nor did the petitioner explain how the staff alternative would clearly lessen the significant impacts of the project.

The petitioner also argued the county violated CEQA by failing to adopt findings regarding the feasibility of the staff alternative. According to the petitioner, once the planning commission found the staff alternative sufficiently feasible to recommend approval of the alternative to the board, the board had to either adopt the staff alternative or make findings setting forth the reasons why the staff alternative was not feasible. Again, the court disagreed. The petitioner did not argue, and thus conceded, that the draft EIR analyzed a reasonable range of alternatives. Under such circumstances, the board was not required to make an express finding of feasibility as to an alternative that emerged after publication of the EIR.

Finally, the petitioner argued the county violated CEQA by relying on future, unapproved traffic improvements to conclude the project’s traffic impacts would be insignificant. The road in question – Combie Road – was projected to operate at LOS F under its existing designation as a “major collector.” The county’s traffic study determined that the road actually functioned as a “minor arterial” because it served as a thoroughfare through the area. Under this alternative functional designation, LOS was adequate. The court ruled the county acted within its discretion in focusing on how the road actually functioned, rather than based on its formal designation. The record showed the county planned to widen Combie Road, and that the project was fully funded, lending further support to the county’s decision to evaluate the road as a “minor arterial.” Because the analysis focused on the functioning of the road, rather than on future traffic improvements, the county was not obliged to condition the project on the future expansion of the roadway.

(RMM attorneys James G. Moose, Tiffany K. Wright and Laura M. Harris represented the real party in interest and respondent, KKP Lake of the Pines, LLC.)