Tag: Adequacy of Mitigation

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

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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

THIRD DISTRICT FINDS EIR FOR OLYMPIC VALLEY RESORT PROJECT FAILED TO ADEQUATELY CONSIDER IMPACTS TO LAKE TAHOE’S UNIQUE ENVIRONMENTAL RESOURCES

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In Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, the Third District Court of Appeal found that the EIR for a resort development project in Olympic Valley violated CEQA because it contained an inadequate description of the environmental setting and failed to adequately consider the project’s potential air quality, water quality, and noise impacts on Lake Tahoe and the surrounding Basin.

FACTUAL & PROCEDURAL BACKGROUND

In 1983, Placer County adopted the Squaw Valley General Plan and Land Use Ordinance to guide development and growth within the Olympic Valley (formerly Squaw Valley) area. The 4,700-acre area lies a few miles northwest of Lake Tahoe in the Sierra Nevada mountains.

In 2011, Real Party in Interest Squaw Valley Real Estate LLC proposed the first project under the general plan and ordinance—the Village at Squaw Valley Specific Plan—which included two components to be built over a 25-year timeframe: (1) an 85-acre parcel that included 850 lodging units, approximately 300,000 square feet of commercial space, and 3,000 parking spaces (“the Village”); and (2) an 8.8-acre parcel that included housing for up to 300 employees (“the East Parcel”).

The County approved the project and certified its associated EIR in 2016. Following the County’s approval, Sierra Watch filed a petition for writ of mandate, alleging the County violated CEQA in numerous ways. The trial court rejected Sierra Watch’s claims. Sierra Watch appealed.

COURT OF APPEAL’S DECISION

In the published portion of the opinion, the Third District considered whether the EIR sufficiently described the project’s environmental setting and adequately considered water quality, air quality, and noise impacts.

EIR’s Description of the Environmental Setting

The court first considered whether the EIR’s discussion of the environmental setting adequately addressed Lake Tahoe and the Lake Tahoe Basin, particularly with respect to the settings for water and air quality.

Water Quality Setting

As to water quality, the Court of Appeal agreed with Sierra Watch’s assertion that the EIR’s hydrology and water quality analysis failed to adequately describe the regional setting specific to Lake Tahoe. Though the Draft EIR explained that the project would be “located within the low elevation portion of the approximately eight square mile Squaw Creek watershed, a tributary to the middle reach of the Truckee River (downstream of Lake Tahoe),” it concluded that VMT generated by the project would not exceed TRPA’s cumulative VMT threshold, and thus, would not affect the Lake’s water quality. The court rejected this rationale by noting that the EIR’s description failed to discuss the importance of the Lake’s current condition or the relationship between VMT and the Lake’s water clarity and quality, thereby depriving the public of an ability to evaluate and assess impacts on the Lake.

Air Quality Setting

As to air quality, the court found that the EIR’s description of the air quality setting and baseline was more substantial, and thus, adequate. The EIR properly explained the applicable air quality standards and presented data on the current concentrations and sources of criteria air pollutants in the area.

EIR’s Analysis of Impacts

Air Quality Impacts

The court agreed with Sierra Watch’s assertion that the EIR failed to meaningfully assess the project’s traffic impacts on Lake Tahoe’s air quality. The EIR concluded the project would not exceed TRPA’s cumulative VMT threshold but acknowledged it would likely exceed TRPA’s project-level VMT threshold for basin traffic. Nevertheless, the EIR ultimately concluded that TRPA’s VMT significance thresholds did not apply because the project was not located in the Tahoe Basin. The court found this rationale “provided mixed messages.” Rather than summarizing and declaring TRPA’s VMT thresholds as inapplicable, the court held that the EIR should have determined whether the Project’s impacts on Lake Tahoe and the Basin were potentially significant.

The court also agreed that the EIR underestimated the Project’s expected cumulative VMT in the Basin by failing to consider expected VMT from other anticipated projects. Even though the County addressed this issue in post-FEIR responses to comments, the court held that the public was denied an opportunity to “test, assess, and evaluate the newly revealed information and make an informed judgment as to the validity of the conclusions to be drawn therefrom.”

Construction Noise Impacts

The court rejected Sierra Watch’s initial assertion that the EIR failed to adequately disclose the duration of construction noise at any specific location, particularly at the Village parcel. The EIR properly explained that that portion of the Project would be constructed over 25 years based on market conditions, and thus, it would be too speculative to identify specific noise levels for every single receptor.

The court agreed, however, with Sierra Watch’s assertion that the EIR failed to analyze the project’s full geographic range of noises by ignoring activities occurring farther than 50 feet from sensitive receptors. The court reasoned that a “lead agency cannot ignore a project’s expected impacts merely because they occur…’outside an arbitrary radius.’” The EIR only considered impacts to sensitive receptors within 50 feet of construction—yet, according to the court, “ignore[d] potential impacts to a receptor sitting an inch more distant[,] even though the noise levels at these two distances would presumably be the same.” Though the County explained this analysis was standard practice, the court contended that an agency “cannot employ a methodological approach in a manner that entirely forecloses consideration of evidence showing impacts to the neighboring region [and] beyond a project’s boundaries.”

Finally, the court agreed that mitigation requiring “operations and techniques … be replaced with quieter procedures where feasible and consistent with building codes and other applicable laws and regulations” was too vague because “in effect, [it] only tells construction contractors to be quieter than normal when they can.” The court concluded that the measure improperly deferred which construction procedures can later be modified to be quiet but did not explain how these determinations are to be made.

– Bridget McDonald

*RMM Attorneys Whit Manley, Andee Leisy, Chip Wilkins, and Nathan George represented Real Party in Interest Squaw Valley Real Estate LLC in this litigation. 

First District Holds Regional Water Quality Control Board’s Failure to Impose Mitigation Requirements Through CEQA Process Did Not Preclude it from Later Imposing Those Requirements Pursuant to Its Authority Under the Porter-Cologne Act

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The First District Court of Appeal in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, held that CEQA did not preclude the San Francisco Bay Regional Water Quality Control Board, acting as a responsible agency under CEQA, from imposing additional waste discharge requirements via the Porter-Cologne Water Quality Control Act, beyond the mitigation measures imposed during the CEQA process.

Background

Every 10-20 years, the Upper Berryessa Creek—which drains from the Diablo Range Hills to the Coyote Creek tributary, and ultimately into the San Francisco Bay—floods the nearby areas of Milpitas and San Jose. In the 1980s, the U.S. Army Corps of Engineers began working on plans to build a flood control project on the creek, but the project did not move forward until 2013, when construction of a nearby BART station that could be impacted by flooding was proposed.

In 2015, the Santa Clara Valley Water District (District), acting as the lead agency under CEQA, issued a Draft EIR for the project. That same month, the Corps applied to the San Francisco Bay Regional Water Quality Control Board (RWQCB) for a section 401 Clean Water Act certification for the project.

The District later issued the Final EIR for the project, and the RWQCB’s executive officer issued the section 401 certification. As a CEQA responsible agency, the RWQCB found that all impacts within its jurisdiction would be mitigated to less-than-significant levels but clarified that it would later consider waste discharge requirements (WDRs) pursuant to its authority under the Porter-Cologne Act to address impacts to waters and wetlands that were not handled by the section 401 certificate.

In 2017, when project construction was nearly complete, the RWQCB issued a WDR order that required the Corps and the District to provide addition mitigation for the project’s impacts to waters and wetlands. The order stated that it suspended and replaced the prior 401 certification.

The District filed a petition for writ of mandate against the RWQCB, challenging the WDR order under CEQA, as well as section 401 of the Clean Water Act, the Porter-Cologne Act, and other state laws. The trial court denied the petition. The District appealed.

Court of Appeal’s Decision

On appeal, the District argued the RWQCB violated CEQA because: (1) the RWQCB’s failure to impose mitigation requirements as part of the RWQCB’s CEQA review barred it from imposing mitigation via the WDR order; and (2) the RWQCB prejudicially abused its discretion by failing to support the mitigation requirements with substantial evidence. The Court of Appeal rejected both arguments.

Relying on CEQA Guidelines section 15096, the District argued that the RWQCB’s only opportunity to impose mitigation was through the CEQA process. CEQA Guidelines section 15096 provides that a responsible agency that disagrees with the adequacy of a lead agency’s EIR must either sue the lead agency within 30 days, be deemed to have waived any objections to the EIR, prepare a subsequent EIR if legitimate grounds exist, or, assume the role of a lead agency as provided by Guidelines section 15052, subdivision (a)(3). Because the RWQCB did not challenge the District’s certification of the EIR or find that a subsequent EIR was required, the District argued that the EIR was deemed adequate and no additional mitigation measure could be imposed. As explained by the court, however, Public Resources section 21174 includes a savings clause that makes clear that CEQA does not prevent an agency from exercising it independent authority under statutes other than CEQA. The court determined, therefore, that the RWQCB did not violate CEQA by issuing the WDRs because it did so pursuant to its duties under the Porter-Cologne Act. Although the District, acting as lead agency, had not imposed CEQA mitigation measures requiring WDRs, the RWQCB, as a responsible agency, was not precluded from separately discharging its authority under the Porter-Cologne Act. Although the appellate court noted that unified CEQA review and other environmental regulation should be the norm, there may be times when an agency’s own environmental regulation can take place after CEQA review, as recognized by Public Resources Code section 21174.

The court also rejected the District’s claim that the RWQCB’s WDR order imposed “excessive” mitigation that was not supported by substantial evidence. The court concluded that the District failed to engage in sufficient analysis of the evidence supporting the RWQCB’s conclusions, and therefore, failed to carry its burden. The court also concluded that the District’s arguments lacked merit even if they had been properly briefed because the RWQCB’s determinations were supported by substantial evidence.

– Bridget McDonald

Second District Court of Appeal Upholds Ruling that Mitigation Measures are Inadequate and EIR is Required for Mixed-Use Development Project in Agoura Hills

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On February 24, 2020, the Second Appellate District in Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al. (2020) 46 Cal.App.5th 665 affirmed the trial court’s decision to require an EIR instead of an MND for a mixed-use development on 8.2 acres because the adopted mitigation measures deferred action, lacked performance criteria, and/or were otherwise inadequate.

Background

The “Cornerstone Mixed-Use Project,” proposed by Agoura and Cornell Roads, LP, and Doron Gelfand (“Appellants”), consists of 8.2 acres of development, including 35 residential apartment units, retail, a restaurant, and office space on an undeveloped hillside in the City of Agoura Hills. The project site is covered mostly by the Agoura Village Specific Plan (adopted in 2008 after its final EIR was certified) with a small portion located within a Significant Ecological Area. After Appellants submitted applications for a development permit, conditional use permit, oak tree permit, and tentative parcel map, the City prepared and finalized an MND for the project in November 2016. The Planning Commission voted to approve the project and adopt the MND. The local chapter of the California Native Plant Society (CNPS) appealed the Planning Commission’s decision, but the City Council approved the project and adopted the MND. The City Council found “no substantial evidence that the project would have a significant effect on the environment” because the project included feasible mitigation measures, reducing all effects to less than significant.

Save the Agoura Cornell Knoll filed a petition for writ of mandate followed by a first amended petition on August 10, 2017, adding CNPS as a petitioner (“Petitioners”), alleging multiple CEQA violations, a violation of planning and zoning law, and a violation of the City’s oak tree ordinance. The trial court granted the petition as to the CEQA and oak tree ordinance claims, denied the planning and zoning law claim, and issued a peremptory writ of mandate directing the City to set aside its project and permit approvals, and to set aside the MND to make way for preparation of an EIR. The project applicants appealed.

The Court of Appeal’s CEQA Decision

The Court reviewed Appellants’ claims under the “fair argument” standard, which requires finding that a lead agency abused their discretion if substantial evidence in the record supports a fair argument that that the project may have a significant effect on the environment. This standard creates a relatively low threshold for requiring an EIR pursuant to “‘legislative preference for resolving doubts in favor of environmental review.’” Three CEQA resource areas were litigated—cultural, biological, and aesthetic. Appellants asserted, repeatedly, that mitigation was adequate and an EIR was not required, and the Court repeatedly disagreed. Overall, the Court found that certain mitigation measures set forth in the MND were “not feasible,” “improperly defer[] mitigation,” or were “inadequate to mitigate the project’s potentially significant impacts.” Affected resource areas are briefly discussed below.

Cultural Resources

The project site contains an identified prehistoric archaeological site that was previously determined to be eligible for inclusion in the California Register of Historical Resources. Three mitigation measures were included in the MND to address potential impacts to the site: (1) construction monitoring, notification of finds, and preservation in place of any resources (i.e., avoidance); (2) notification if human remains are encountered; and (3) a data-recovery excavation program if the site cannot be avoided. The Court found this mitigation constituted improper deferral because, pursuant to an expert opinion on the record, the site could not be avoided as prescribed in the first measure without a project redesign and therefore the third measure would be necessary. The Court also found that the third measure delayed “formulation of several components of the data recovery plan until some future time.” For example, the third measure called for the preparation of a Mitigation Monitoring and Reporting Plan (MMRP), yet did not explain how this MMRP would actually mitigate impacts, and there was no evidence in the record that inclusion of such information was impractical or infeasible prior to project approval. Appellants challenged the “evidentiary value” of the expert opinion, but the Court noted that any “conflict in the evidence” should be resolved in an EIR and that there was no debate as to whether the project would have a significant effect on a cultural resource, just on how it might be mitigated.

Biological Resources

The project site contains three special-status plant species that could be significantly impacted by project grading, landscaping, and fuel modification activities: Agoura Hills Dudley, Lyon’s pentachaeta, and Ojai navarretia. Again, three mitigation measures were included in the MND to reduce impact significance: (1) avoidance if feasible for two of the species, but if not, preparation of a restoration plan that includes plant surveys, onsite restoration, and offsite preservation; (2) the same measure for the third species; and (3) locating and flagging of all three species within the fuel modification zone and the use of buffers, other protocols, and monitoring for protection. The Court found the first two measures inadequately mitigated impacts and were infeasible, largely because of statements on the record asserting that restoration of “‘rare plants is next to impossible’” and “‘experimental’” and because the City relied on outdated surveys conducted during the drought in adopting the measure. The measures called for updated surveys but the record provided no evidence as to why such surveys could not be conducted prior to project approval. The measures also failed to provide performance criteria for determining the feasibility of avoidance or in the alternative, maintenance plans. The third measure was found to be inadequate because it did not properly consider the full expanse of fuel modification zones nor did it account for ongoing fuel modification activities, as it applied only to construction.

The project site also contains native oak trees, 35 of which would be removed by the project. Two mitigation measures were included in the MND to reduce significant impacts: (1) replacement of oak trees either onsite or via in-lieu fees paid to the City to acquire land for new tress; and (2) submittal of an oak tree survey, report, and preservation program to the City for approval. The Court found the first measure to be inadequate because mass grading required for the project would cause a loss of subsurface water to any onsite replacement trees, which could result in failure; yet this water deficit was not addressed in the measure. Also, substantial evidence existed showing that oak woodlands are “‘impossible to recreate’” or at least “‘often unsuccessful.’” Lastly this measure was inadequate because the in-lieu fees to be paid to the City would not be not part of a program that has undergone its own CEQA review, which is required “‘to provide a lawful substitute for the “traditional” method of mitigating CEQA impacts.’” The second mitigation measure was found to potentially lack effectiveness because that same subsurface water deficit was not considered, thereby calling into question any claims of long-term survival of preserved oak trees.

Aesthetic Resources

The project site contains a “distinct” knoll of oak trees that likely would be removed for project development. The MND acknowledged the potential loss of this scenic resource but claimed mitigation reduced the impact to less than significant. This mitigation included some avoidance measures and also pointed to the oak tree measures (discussed above) for restoration and preservation. The trial court found this mitigation to be inadequate. Although Appellants claimed the Petitioners failed to properly exhaust this issue (discussed below), the Court found that evidence in the record demonstrated that the knoll may not be preserved under project design and that, even if it were, the subsurface water deficit would jeopardize its continued existence, and no in-lieu fee could “reduce the impacts on aesthetic resources” of this loss.

The Court of Appeal’s Decision on Appellants’ Other Claims

Administrative Remedies Were Exhausted

Appellants repeatedly contended that Petitioners did not exhaust their administrative remedies and therefore forfeited their claims. They also contended that Petitioners did not address the issue of exhaustion in their first opening brief, and therefore could not submit supporting evidence. Addressing the second claim first, the Court found that Petitioners did preserve the general issue of exhaustion because there is no requirement that the issue must be argued in an opening brief and, nevertheless, their opening brief cited evidence that was later used in Petitioners’ reply brief to show exhaustion. This evidence demonstrated that exhaustion was “not a new legal theory raised for the first time” on reply. The Court also found that Petitioners expressly alleged exhaustion in their petition and “lodged the complete administrative record” as part of the writ proceedings. Further, the trial court’s rejection of Appellants’ supplemental brief on this issue was warranted because in filing it they had directly violated a court order stating that “the issue of exhaustion was thoroughly argued.”
As to the first contention, appellants raised exhaustion as a defense to each of Petitioners’ CEQA claims. The Court considered “the totality of [the] record” by looking to various portions demonstrating that most of Petitioners’ claims were preserved. It looked specifically to public comments, City Council hearing transcripts, other correspondence from environmental groups and experts, and documentation from the City’s own consultants to find again and again that the City was “‘fairly apprised’” of the “underlying concerns behind Petitioners’’ claims and thereby had the “‘opportunity to decide matters [], respond to objections, and correct any errors before the courts intervene.’”

Court Rejected Standing and Statute of Limitations Defenses

Appellants asserted both that Petitioner Save the Agoura Cornell Knoll lacked standing because Petitioners failed to show that they timely objected to project approval and that Petitioner CNPS was barred from the action because they joined the suit after the statute of limitations had run. The Court declined to consider the merits of either claim. It found that Appellants had forfeited their statute of limitations argument by not properly asserting it “‘in a general demurrer or pleaded in answer’” and, therefore, without a statute of limitation violation, CNPS remained a petitioner with uncontested standing. The Court was quick to point out that Appellants claims on these points were made for the first time in their appellate reply brief “[n]otwithstanding their [own] arguments on forfeiture.”

Attorney’s Fees Are Recoverable and Appellants Are Jointly and Severally Liable

The trial court awarded attorneys’ fees to Petitioners and assigned joint and several liability to both the developer Agoura and Cornell Road and its representative Doron Gelfand. Appellants first argued against the award by asserting that Petitioners did not provide notice of the CEQA action to the Attorney General “in accordance with section 21167.7 [of the Public Resources Code] and Code of Civil Procedure section 388” that requires notice be served within 10 days of filing a pleading. On this point, the Court found that, although Petitioners did not serve the Attorney General notice of the first amended petition, they did properly notice their original petition, which was not materially different than the first amended, thereby giving the Attorney General “ample time to intervene.” The Court further pointed to case law emphasizing that a lack of strict compliance with the 10-day notice rule “was not an absolute bar to attorney’s fees.” It further concluded that a declaration from Petitioners’ attorney attesting to notice could stand as evidence in lieu of formal proofs of service of that notice. Appellants then argued that Gelfand could not be held personally liable because he was neither the applicant nor the property owner. But, in utilizing the test articulated in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1181, the Court found that Gelfand was a “real party who pursued a direct interest in the project that gave rise to the CEQA action and actively participated in the litigation” and, therefore, was liable. The record contained ample evidence showing that Gelfand was, at one time, “‘the owner of the property’” and had personally made several requests to the City regarding the project, and was listed “as the sole project applicant” on City resolutions approving project entitlements.

Oak Tree Ordinance Was Violated

The City’s oak tree ordinance allows the cutting of oak trees with a permit but disallows removal of more than 10 percent of a subject property’s total estimated canopy or root structure. The project would result in removal of up to 36 percent of oak trees on site in violation of this ordinance. Appellants did not argue against that fact but did assert Petitioners failed to exhaust their administrative remedies on this claim. The Court addressed both the merits of the claim and exhaustion (see above) and agreed with the trial court in finding that, in approving the oak tree permit for the project, the City violated its own “‘duly adopted law’” and therefore the permit must be vacated.

Casey Shorrock

On Remand, Fourth District Determines that Case Challenging SANDAG’s RTP Is Not Mooted by Later EIR and Resolves CEQA Issues on the Merits

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On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year.

SANDAG certified a programmatic EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy in 2011. Petitioners challenged that EIR, alleging multiple deficiencies under CEQA, including the EIR’s analysis of greenhouse gas (GHG) impacts, mitigation measures, alternatives, and impacts to air quality and agricultural land. The Court of Appeal held that the EIR failed to comply with CEQA in all identified respects.  The Supreme Court granted review on the sole issue of whether SANDAG was required to use the GHG emission reduction goals in Governor Schwarzenegger’s Executive Order S-3-05 as a threshold of significance. Finding for SANDAG, the Court left all other issues to be resolved on remand.

First, the Court of Appeal ruled that the case was not moot, although the 2011 EIR had been superseded by a new EIR certified in 2015, because the 2011 version had never been decertified and thus could be relied upon. The court also found that petitioners did not forfeit arguments from their original cross-appeal by not seeking a ruling on them. And, even if failing to raise the arguments was a basis for forfeiture, the rule is not automatic, and the court has discretion to resolve important legal issues, including compliance with CEQA.

Second, the court reiterated the Supreme Court’s holding, that SANDAG’s choice of GHG thresholds of significance was adequate for this EIR, but may not be sufficient going forward. Turning to SANDAG’s selection of GHG mitigation measures, the court found that SANDAG’s analysis was not supported by substantial evidence, because the measures selected were either ineffective (“assuring little to no concrete steps toward emissions reductions”) or infeasible and thus “illusory.”

Third, also under the substantial evidence standard of review, the court determined that the EIR failed to describe a reasonable range of alternatives that would plan for the region’s transportation needs, while lessening the plan’s impacts to climate change. The EIR was deficient because none of the alternatives would have reduced regional vehicles miles traveled (VMT). This deficiency was particularly inexplicable given that SANDAG’s Climate Action Strategy expressly calls for VMT reduction. The measures, policies, and strategies in the Climate Action Strategy could have formed an acceptable basis for identifying project alternatives in this EIR.

Fourth, the EIR’s description of the environmental baseline, description of adverse health impacts, and analysis of mitigation measures for air quality, improperly deferred analysis from the programmatic EIR to later environmental review, and were not based on substantial evidence.  Despite acknowledging potential impacts from particulate matter and toxic air contaminants on sensitive receptors (children, the elderly, and certain communities), the EIR did not provide a “reasoned estimate” of pollutant levels or the location and population of sensitive receptors. The EIR’s discussion of the project’s adverse health impacts was impermissibly generalized. The court explained that a programmatic EIR improperly defers mitigation measures when it does not formulate them or fails to specify the performance criteria to be met in the later environmental review. Because this issue was at least partially moot given the court’s conclusions regarding defects in the EIR’s air quality analysis, the court simply concurred with the petitioners’ contention that all but one of EIR’s mitigation measures had been improperly deferred.

The court made two rulings regarding impacts to agricultural land. In finding for the petitioners, the court held that SANDAG impermissibly relied on a methodology with “known data gaps” to describe the agricultural baseline, as the database did not contain records of agricultural parcels of less than 10 acres nor was there any record of agricultural land that was taken out of production in the last twenty years.  This resulted in unreliable estimates of both the baseline and impacts. However, under de novo review, the court found that the petitioners had failed to exhaust their remedies as to impacts on small farms and the EIR’s assumption that land converted to rural residential zoning would remain farmland. While the petitioners’ comment letter generally discussed impacts to agriculture, it was not sufficiently specific so as to “fairly apprise” SANDAG of their concerns.

Justice Benke made a detailed dissent. Under Benke’s view, the superseded 2011 EIR is “most likely moot” and in any event, that determination should have been left to the trial court on remand. This conclusion is strengthened, when, as here, the remaining issues concern factual contentions. As a court of review, their record is insufficient to resolve those issues.

Fourth District Upholds EIR for Master-Planned Community and Concludes That County Not Required to Recirculate

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On March 15, 2017 the Fourth District certified for publication its February 4, 2017 decision in Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, upholding the EIR for a master- planned community (project). A citizens group challenged the sufficiency of the EIR and the county’s approval process on six grounds. The court found for the county and real party in interest, Hanna Marital Trust (applicant), on every count.

The project proposes a master-planned community with seven planning areas containing medium-density residential housing, mixed uses, commercial retail, and dedicated open space on 200 acres of undeveloped land in Riverside County. Planning area 6, the mixed use area, was analyzed as potentially providing for the development of a Continuing Care Retirement Community (CCRC) for seniors.

On July 28, 2011, the County Planning Department released a Draft EIR (DEIR). The DEIR stated that mitigation measures would reduce the environmental impacts to a below significant level, except for air quality and noise. During the public comment period, the South Coast Air Quality Management District (SCAQMD) and the City of Temecula raised concerns about the project’s air quality impacts. The final EIR (FEIR) was released in January 2012 and included responses to SCAQMD’s and Temecula’s comments. The FEIR reflected changes in the location of some project elements, but was “in its basics identical” with the project as described in the DEIR.

The Planning Commission reviewed the FEIR in April 2012 and suggested revisions, which were subsequently presented to the Commission in October 2012. The Commission recommended approval of the FEIR and the Project to the Board of Supervisors. The Board reviewed the FEIR at its December 11, 2012 meeting, where it considered some modifications to the project and Residents Against Specific Plan 380 (petitioners) suggested additional noise mitigation measures. At its December 18, 2012 meeting, the Board tentatively approved the FEIR, contingent on finalization of the modifications. On November 5, 2013, the Board approved the finalized FEIR, general plan amendment, zone change, and Specific Plan 380. The EIR resolution included findings of fact, a mitigation monitoring and reporting plan, and a statement of overriding considerations. The same day, the county clerk posted a Notice of Determination (NOD) that erroneously used an out-of-date project description.

On November 18, 2013, petitioners filed a petition for a writ of mandate, which was denied by the trial court. This appeal followed.

First, the Fourth District concluded that the Board did not substantially modify the EIR after approving it. Because the Board only tentatively approved the project in December 2012, the final approval in November 2013 reflected the Plan’s modifications. Similarly, the court disagreed with the petitioners’ argument that the findings, statement of overriding considerations, and mitigation plan were not timely and concurrently approved.

Second, the court concluded that the NOD substantially complied with the informational requirements of CEQA, despite its project description errors. The court also noted that the petitioners could not show that the errors were prejudicial because they filed the suit well before the statute of limitations had run.

Third, the court held that the changes made by the Commission and Board were not significant enough to require recirculation of the EIR. In reaching its determination, the court relied on CEQA Guidelines § 15088.5, subd. (a), stating that a lead agency must recirculate an EIR when significant new information is added that reveals a substantially new or increased impact. The court rejected the petitioners’ argument of increased traffic impacts, holding that only traffic patterns would be affected, not intensity. The court also rejected the petitioners’ contention that increased biological impacts would result from moving the mixed-use area further north, as the open space region was already adjacent to it. Petitioners’ argument of increased noise impacts was contradicted by the county’s expert. Finally, the petitioners failed to substantiate their claim of potential land use inconsistencies. Therefore, the County had an adequate basis for not recirculating the EIR. Petitioners’ reliance on Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 and Save our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99 were inapposite, as the EIR did not reveal facially significant new impacts nor areas necessitating further factual development.

Fourth, the court concluded that the EIR adequately analyzed the impacts of the mixed-use area under the rubric of a proposed CCRC. Petitioners alleged that by analyzing only a CCRC, and not other potentially higher impact uses, the EIR’s analysis of the mixed-use planning area was improperly narrow in scope. The court rejected this argument because substantial evidence supported the County’s decision to limit the scope of the analysis to a CCRC. Even if the applicant did not build a CCRC, the project plan restricted the applicant to other permitted uses in the planning area, and only if they would not incur additional environmental impacts. Nor, the court stated, does CEQA require the county to analyze what are merely possible development schemes.

Finally, the court ruled that the EIR adequately considered the specific suggestions for mitigating the project’s air quality and noise impacts from SCAQMD, Temecula, and the petitioners. Regarding mitigation for air emission impacts proposed by SCAQMD and Temecula, the county could justify why the measures were not adopted, why they were infeasible given the project’s timeline and parameters, or why they were duplicative with measures already adopted. SCAQMD’s proposal to utilize lower emission vehicles did not reflect the construction equipment anticipated to be reasonably available. Temecula’s suggestion of applying the 2010 Energy Code was duplicative of the requirement to exceed the 2008 Code emission standards by 15%, and the code in force at the time of construction would control in any event. Furthermore, the county was not required to adopt the specific prescriptive emission reduction measures in the Green Building Standards Code, but could opt for performance-based standards that are less likely to incur enforcement and enforceability issues. With respect to the additional noise mitigation measures proposed by the petitioners, these were found to be untimely raised more than a year after the comment period had closed. Therefore, the county was not obligated to respond. Moreover, the county was justified in not adopting these noise mitigation measures because they require electric construction equipment that may not be available or may duplicate existing requirements.

 

First District Court of Appeal Applies Substantial Evidence Standard of Review to Subsequent MND and Upholds County’s Decision to Permit Expansion of Buddhist Retreat Center

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In Coastal Hills Rural Preservation v. County of Sonoma (2016) (previously published at 2 Cal.App.5th 1234)* the First District Court of Appeal upheld the trial court’s determination that the County of Sonoma did not violate CEQA or the Planning and Zoning law when it adopted a subsequent mitigated negative declaration (MND) and approved a master use permit to expand the existing Ratna Ling Buddhist retreat center and printing facility.

The Tibetan Nyingma Meditation Center (TNMC) has operated a monastery and retreat center in Cazadero since 1975. In 2004, TNMC purchased an additional property, which it designated the Ratna Ling Retreat Center. Since 2004 Ratna Ling has undergone numerous changes and expansions, including growing from a one-printing-press facility to operating six printing presses. In response to applications from Ratna Ling, the county adopted and approved a series of mitigated negative declarations in 2004, 2008 and 2012. In 2014, Ratna Ling applied for a third multiple-use permit, and the county adopted a subsequent MND to the 2004 and 2008 MNDs, superseding the 2012 MND. The 2014 subsequent MND analyzed Ratna Ling’s application to make permanent four storage tents for its printing-press operation, and construct a new six-bedroom residence and up to eight tent cabins.

Coastal Hills Rural Preservation (CHRP) filed suit, arguing that the county should have prepared an EIR because the project greatly expands the printing-press operation. CHRP also argued that the approval violated the county’s general plan and zoning provisions. The trial court denied the petition, and the First District Court of Appeal affirmed.

CHRP argued that the project was inconsistent with the county’s general plan and zoning provisions in violation of Government Code section 65300. The site is designated for “resources and rural development” under the county’s general plan, which is intended to “protect lands used for timber, geothermal and mineral resource production and for natural resource conservation.” Contrary to CHRP’s argument that the printing press included “extraordinary levels of manufacturing productions …, massive storage structures and commercial Internet sales,” the court found that substantial evidence supported the county’s determination that the proposed uses were consistent with the land use regulations. The court explained that an agency’s determination regarding consistency with its own general plan is given great deference because “the body adopting a general plan has unique competence to interpret those policies when applying them to a proposed project.” There was no evidence in the record that the printing activities were undertaken for profit, the printing press use had been permitted since 2004, and the Board fully considered the county’s land use policies and the extent to which the project conforms to those policies.

The Court of Appeal also affirmed the trial court’s determination that the Board did not violate CEQA. Because the court was considering the county’s decision to prepare a subsequent MND where an MND had already been prepared under Public Resources Code section 21166, the court applied the substantial evidence test rather than the fair-argument standard of review. The court noted that the issue of the standard of review is currently before the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), review granted Nov. 5, 2013, S214061).

The court found that substantial evidence supported the Board’s conclusion that any fire risks posed by the storage tents were adequately mitigated: the membranes covering the tents met applicable fire protection standards, there was 200 to 300 feet of defensible space around each tent, and a condition of approval required Ratna Ling to provide and maintain its own onsite fire engine. In addition, the court held that, regardless of whether the county should have included the tents in the baseline for its analysis, substantial evidence in the record indicated that the Board fully considered the potential impacts of the tents.

The court also ruled against arguments put forth by amicus curiae Friends of the Gualala River and Forest Unlimited. Contrary to those arguments, the county’s Hazard Mitigation Plan was not effective until October 25, 2011, well after the storage tents were permitted and constructed, and therefore was inapplicable. In addition, the county did not improperly defer mitigation when it required Ratna Ling to coordinate with the fire district and comply with all fire-related conditions, because the mitigaton simply granted the county the right to impose new, stricter requirements if deemed necessary.

Finally, CHRP argued that the county engaged in impermissible spot zoning. The court explained that because the record and the relevant zoning regulations did not suggest that the authorized use for Ratna Ling is prohibited as to all other parcels in the same zone, this was not impermissible spot zoning in violation of Government Code section 65852.

*On November 22, 2016, the California Supreme Court granted review (210 Cal.Rptr.3d 14), depublished the decision, and transferred the case back to the First District, Division One, for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al. (2016) 1 Cal.5th 937, 957–959. On May 16, 2016, the First District filed an unpublished decision in matter, available at 2017 WL 2118370.

Third Appellate District Upholds Department of Fish and Wildlife EIR, But Finds Department Violated APA in Adopting Underground Regulations

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The Third District Court of Appeal held that the California Department of Fish and Wildlife’s program EIR analyzing the Department’s statewide fish hatchery and stocking enterprise passed muster. The Department did not abuse its discretion in the manner it organized the EIR, analyzed the project, and mitigated numerous impacts. The court also found, however, that the Department had violated the Administrative Procedure Act (APA) by adopting three mitigation measures, which imposed new obligations on private aquaculture facilities and required the Department to perform new duties, without complying with APA procedures. Center for Biological Diversity v. Dept. of Fish and Wildlife (Feb. 10, 2015) ___ Cal.App.4th ___, Case No. C072486.

The Department operates 14 trout hatcheries and 10 salmon and steelhead hatcheries throughout the state, stocking fish at close to 1,000 locations each year. After CEQA’s enactment, the hatching and stocking enterprise was found categorically exempt from complying with CEQA. Subsequently, concerns arose regarding the enterprise’s impact on native and wild animals due to predation and genetic hybridization. To address these concerns, the Department developed aquatic biodiversity management plans and hatchery genetic management plans. Center for Biological Diversity sued the Department in 2006, and the trial court agreed with the Center that the enterprise was not categorically exempt from CEQA because it likely caused significant environmental impacts. The court in this prior suit ordered the Department to prepare an EIR and comply with CEQA.

The Department prepared a broad-scope, program EIR/environmental impact statement pursuant to that decision and to additionally comply with NEPA. The EIR analyzed the statewide hatchery and stocking enterprise, as well as three other programs, including the Fishing in the City Program (providing fishing opportunities in urban areas), and the Private Stocking Permit Program (authorizing fish stocking by private aquaculture facilities in private and public lakes and ponds). The Department selected operations from 2004 to 2008 as the baseline and identified more than 200 impacts on biological resources. The EIR proposed a number of mitigation measures to lessen these impacts, and laid out three project alternatives. The EIR did not consider closing the hatcheries or eliminating trout stocking as alternatives.

The Department’s EIR was challenged by the Center and other plaintiffs representing environmental interests in two separate CEQA suits, with plaintiffs representing recreational fishing interests bringing a third suit under the APA. The trial court upheld the EIR and found no violations of the APA. The appellate court affirmed in part and reversed in part.

First, the Third District addressed the EIR’s level of analysis. The CEQA Guidelines do not specify the level of analysis required to be performed in a program EIR. Rather, the Guidelines require an EIR to provide sufficient information in light of what is reasonably feasible. The court found the EIR satisfied that standard. The document reviewed and analyzed the hatchery and stocking enterprise specifically and comprehensively, but within reason, providing for further environmental review where warranted. Given the nature and statewide scope of the project and the consistency of its impacts across the state, the court found the analysis adequate to serve as a program EIR that also operated as project EIR. No additional site-specific environmental review was required given the agency’s determination that site-specific impacts were sufficiently addressed in the program EIR, and there were no new impacts. Indeed, that is the function of a program EIR.

The court also found the EIR did not impermissibly defer formulation of mitigation measures, as it provided sufficient performance standards for future mitigation to meet. The court noted that the rule prohibiting deferred mitigation prohibits loose or open-ended performance criteria. Here, in contrast, the EIR’s performance standards were sufficient to inform the Department what it had to do and accomplish, and committed the Department to mitigating impacts before proceeding with the enterprise. The performance standards were sufficient to ensure the aquatic biodiversity management plans would mitigate impacts in mountain lakes to insignificance. The Department also relied upon federal regulations to develop mitigation measures for impacts on anadromous fish.

The court held that the Department properly used the existing enterprise as the environmental baseline. The court rejected the Center’s contention that the EIR must use the existing environmental conditions—absent the project—as the baseline. It noted that though the origin of present conditions may interest enforcement agencies, such information is irrelevant to CEQA baseline determinations. The CEQA baseline must include existing conditions even when those conditions have never been reviewed and are unlawful. Furthermore, despite using the existing enterprise as the baseline, the EIR described, as much as reasonably possible the impacts hatcheries and stocking have had statewide on the environment from the enterprise’s inception more than a century ago, and proposed mitigation for those continuing impacts. Thus, the EIR did exactly what the Center sought.

Finally, the court held the EIR considered an adequate range of alternatives. For the no project alternative, the EIR considered the baseline project—continuation of the existing enterprise without making any changes. The court upheld this decision, noting that where the EIR is reviewing an existing operation or changes to that operation, the no project alternative is the existing operation; it is a factually based forecast of the environmental impacts of preserving the status quo. The court rejected the Center’s argument that the no project alternative should have been the elimination of the stocking enterprise, stating that the EIR is not the approval of a new program, but review of an ongoing one. The Department was not required to analyze the alternative scenario of discontinuing its hatchery and production enterprise, as it had no legal authority to implement a no-stocking alternative.

Turning to the APA contentions, the court concluded that three mitigation measures imposed by the Department were underground regulations, i.e., regulations adopted without complying with the notice and procedure requirements imposed by the APA. The mitigation measures at issue were: MM BIO-226 (Implement Private Stocking Permit Evaluation Protocol), MM BIO-229 (Require and Monitor Invasive Species Controls at Private Aquaculture Facilities), and MM BIO-233b (Implement Private Stocking Permit Evaluation Protocol). The court found that the measures fell within the definition of a “regulation” and were not exempt from APA requirements. The court rejected the Department’s argument that MM BIO-226 was exempt as a regulation relating “only to the internal management of the state agency,” and that MM BIO-229 and MM BIO-233b were exempt as regulations that embody the “only legally tenable interpretation of a provision of law.” In particular, the court concluded that MM BIO-226 required the Department to “perform a new duty” and MM BIO-229 imposed on a “class of persons a new affirmative duty.” The court’s application of the APA to mitigation measures in a state agency’s EIR appears to be a first and could have far-reaching implications on other EIRs studying statewide activities.

Fifth District Court of Appeal Upholds EIR Prepared for Large Mine Project in Fresno County

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In a partially published opinion, the Fifth District Court of Appeal clarified an issue regarding appeals under the Surface Mining and Reclamation Act of 1975 (SMARA) and upheld the county’s choice of mitigation for loss of farmland. Friends of the Kings River v. County of Fresno, Case No. C071891 (Dec. 8, 2014).

The project in this case involved a proposed aggregate mine and construction of related processing plants on a 1,500-acre site in the County of Fresno. Mining and production activities would eventually occupy about 900 acres of the site; the remaining acreage would continue to support orchards. The project application included a reclamation plan as required by SMARA.

The County of Fresno prepared and certified an EIR for the project in 2012. Subsequently, petitioners submitted a designation appeal to the State Mining and Geology Board (SMGB) alleging that the reclamation plan failed to comply with SMARA. The SMGB granted the appeal and remanded the reclamation plan to the county. The county, in turn, revised the reclamation plan. During the SMGB appeal process, petitioners also filed a petition for writ of mandate against the county alleging violations of CEQA. The trial court denied the petition, and an appeal ensued.

The first published issue in the opinion addresses the scope of the SMGB’s authority over reclamation plans approved by a local lead agency. Petitioners argued that by remanding the county’s approved reclamation plan, the SMGB set aside or nullified the reclamation plan. Petitioners reasoned that the county failed to proceed in the manner required by law because the county approved a CUP absent a valid reclamation plan, contrary to the county code. The appellate court disagreed. Under SMARA, the only remedy available for a successful appeal to the SMGB is remand to the lead agency for reconsideration. The lead agency must then hold a public hearing and reconsider the action, but the lead agency is not required to set aside its prior decision.

The second published issue in the opinion addresses whether the county complied with CEQA by inadequately mitigating for permanent loss of farmland. The EIR for the project acknowledged that about 600 acres of farmland would be permanently lost over the course of 100 years. The county determined this loss of farmland would be a significant impact and adopted three mitigation measures addressing the impact. During public comments on the project, the county received a suggestion that permanent agricultural conservation easements (ACEs) could mitigate for the loss of farmland. The county addressed this suggestion in a master response which compared proposed mitigation measures with the recommendation to include ACEs in the project. The master response concluded that establishing such easements would not reduce the amount of farmland permanently converted as a result of the project. Therefore, the county found that ACEs would not mitigate the significant impact to less-than-significant levels, or substantially reduce the severity of the impact. The appellate court determined this evaluation of suggested mitigation measures compared to proposed mitigation measures was sufficient.

The appellate court rejected petitioner’s follow-up argument that the county was required to adopt ACEs as mitigation for the project as a matter of law. In support of this argument, Petitioner relied on Masonite Corp. v. County of Mendocino (2013) 218 Cal.App.4th 230, in which the First District Court of Appeal held that ACEs may appropriately mitigate for the direct loss of farmland. In Masonite, the County of Mendocino argued that ACEs only mitigate for “indirect and cumulative effects of farmland conversion.” The First District corrected the county, explaining that ACEs may compensate for direct loss within the meaning of the CEQA Guidelines, so the county erred by declining to consider ACE’s as a potentially feasible mitigation measure. In contrast, the County of Fresno considered the feasibility of ACEs in the final EIR.

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