Tag: CEQA

Second District Court of Appeal upholds trial court’s denial of attorney fees after the County granted applicant’s request to vacate permit approvals for a single-family home.

In Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, Division 4 of the Second District Court of Appeal affirmed the trial court’s denial of attorney fees following dismissal of an action challenging a negative declaration for a single-family home project on a vacant lot in Los Angeles County. After the petitioner successfully obtained an administrative stay, the applicant/Real Party in Interest, appearing in propria persona, requested that the County vacate his approvals because he could not afford to pay for the litigation. The Court of Appeal found that petitioner’s action did not enforce an important right affecting the public interest or confer a significant benefit on the general public.

Project Background

Real Party in Interest Stephen Kuhn, owned a roughly one-acre parcel on a steep hillside in Altadena, an unincorporated community in Los Angeles County. In 2014, Kuhn applied to the County for a minor use permit to build a single-family home on the hillside and an oak tree permit to remove one tree on site. In 2015, he presented the project to the Altadena Town Council, which recommended approval. The County planning department initially determined that the project was categorically exempt under Guidelines section 15303, but prepared an initial study to assess potential impacts, though not because the planning department believed there were “unusual circumstances.” The initial study found that the project was “at the edge of a disturbed woodland community” but, by complying with the County’s oak tree ordinance, the project would not have a significant impact. The County prepared a negative declaration in 2016.

After learning about the project, Kuhn’s neighbors sent a letter to the County objecting to the project, primarily because it would affect their views and because one neighbor would no longer be able to park cars on Kuhn’s property. The neighbors sent additional letters to the County objecting to the project’s potential impacts to the oak canopy, and hired an attorney who began objecting to the project for them, and then on behalf of the nonprofit they created. The neighbors also hired an arborist who opined that the single tree slated for removal on the project site actually belonged to the neighbors, and that the project would impact three additional trees. The County planning department held a hearing on the project at which the neighbors appeared and objected that it would lower the market value of their homes. Kuhn offered to redesign the home to reduce the impacts to trees, and his arborist defended the initial assessment of tree impacts. A County biologist opined that the permit conditions were adequate to address impacts to trees given the “highly disturbed” condition of the woodland. The County approved the project, and the neighbors appealed.

The County Planning Commission heard the neighbors’ appeal and, in upholding project approval, required Kuhn to replace any removed or deceased trees at a 2-1 ratio and to monitor the remaining trees for 7 years. The neighbors appealed to the Board of Supervisors (board), who held three hearings on the project and ultimately approved it. The neighbors filed a petition before the board’s final approval, but agreed to stay the action until the board approved the project.

Trial Court Proceedings

In May 2017, the trial court granted an administrative stay under Code of Civil Procedure section 1094.5, finding that the neighbors had shown a reasonable possibility of success on the merits of their claim that their expert’s opinion was substantial evidence supporting a fair argument that the project may have significant impact on the oak woodland, but cautioned that her finding was not determinative as to the merits of the writ petition itself.
In December 2017, Kuhn, who appeared in propria persona throughout the litigation and appeal, asked the County to vacate the approvals “to end the litigation.” County planning recommended vacating the approvals but stated they would keep Kuhn’s application on file, and noted that an EIR was not normally required for a single-family home on a vacant lot, and that none of the exceptions to the exemption were present. The board vacated the approvals after Kuhn stated he could not afford to continue to pay for the litigation. One supervisor stated her belief that the neighbors had abused the CEQA process.
In March 2018, after dismissing the action, the neighbors moved for attorney’s fees under Code of Civil Procedure section 1021.5 seeking $289,544.00. The County and Kuhn opposed the motion, and the trial court denied it, finding that the neighbors had failed to establish any of the required prongs under Code of Civil Procedure section 1021.5. The neighbors appealed.

The Court of Appeal Opinion

An appellate court considering a trial court’s order on attorney’s fees reviews it for abuse of discretion. Whether the statutory requirements have been met is left to the trial court’s sound discretion unless the issue turns on statutory construction, which is reviewed de novo. The burden of proof is on the party challenging the trial court’s order. Here, that party was Kuhn’s neighbors.
The neighbors argued for de novo review of whether their action enforced an important right or conveyed a significant benefit. The Court rejected their arguments, finding that the trial court was in a better position than the Court of Appeal to assess whether the neighbors had met the requirements.

Enforcement of an Important Right Affecting the Public Interest

The County and Kuhn argued that even though CEQA actions can involve important public rights, this one did not. The trial court agreed, noting that the neighbors did not obtain any additional environmental review, and that the grant of the stay was not a favorable ruling on the merits of their CEQA claim. On appeal, the neighbors challenged both of those determinations, but the Court of Appeal found both to be within the discretion of the trial court. The Court noted that the record indicated that the County believed it and Kuhn had acted properly, and there was no evidence it would require additional CEQA review should Kuhn renew his application. The neighbors argued that all they needed to do was bring a “viable CEQA claim” to show an important public right, but the Court stated they must vindicate the right through their litigation, which the trial court found the neighbors had not done.

Significant Benefit on the General Public

The neighbors argued that they had conferred a significant benefit by causing the County to reconsider the project under CEQA. The trial court rejected this argument because the administrative stay was not an adjudication of the merits and there was no evidence that the County would reconsider the CEQA review of the project. The neighbors submitted statements from area residents that they believed the County would treat their concerns about the project more seriously because of the lawsuit, but the trial court rejected these statements as speculative and unsubstantiated. The trial court also found that because of the small size of the project (a 1500-square-foot single-family home on one lot) the neighbors had not shown that their action conferred a benefit on the general public or a large class of persons. The Court of Appeal agreed, noting that the County kept Kuhn’s application on file and would allow him to revive the project if he wanted to, but made no indication that it would require additional CEQA review. The Court also noted that the neighbors had admitted that their concern was the effect of the project on their personal property and the use of Kuhn’s property as parking. Lastly, the Court rejected the neighbors’ argument that they had provided additional opportunities for public input, as Kuhn stopped pursuing the project.

Nathan O. George

City of San Diego Appropriately Relied on CEQA’s In-Fill Exemption in Approving Residential Development, Although Project Less Dense than Typically Required by the general plan, Fourth District Holds

In Holden v. City of San Diego (2019) 43 Cal.App.5th 404, the Fourth District Court of Appeal upheld the City of San Diego’s reliance on CEQA’s in-fill exemption for a seven unit residential project on environmentally sensitive land in the city’s North Park community. The court rejected plaintiff’s claim that the city erred in relying on the in-fill exemption because the project was less dense than the standards established in the city’s general plan. The court held that substantial evidence supported the city’s reliance on the exemption because the general plan, together with an applicable community plan, allowed the city to deviate from the density standards for projects in environmentally sensitive areas.

Background

In 2014, the developer applied to the city to demolish two houses and to construct seven new residential condos on a 0.517-acre site located on a canyon hillside. City staff initially informed the developer that the project did not comply with the minimum density standards for the site under the general plan and an applicable community plan. Specifically, staff determined Policy LU-C.4 of the general plan and the housing element of the community plan required a minimum of 16 dwelling units on the site. Later, however, city staff concluded that a reduced density of seven units was appropriate because the site is considered environmentally sensitive.

The city determined that the project was categorically exempt from CEQA under the infill exemption set forth in CEQA Guidelines section 15332. To qualify for this exemption, a project must be consistent with the general plan’s designations and policies. On April 18, 2017, at the planning commission’s recommendation, the city council unanimously voted to approve the project.

The petitioner filed a petition for writ of mandate challenging the city’s determination that the project is exempt from CEQA and the city’s approval of the project. The trial court denied the petition. The petitioner appealed.

The Court of Appeal’s Opinion

On appeal, petitioner contended that the city erred in finding the project is exempt from CEQA under the infill exemption because the project provides less residential density than is required by the general plan. In so arguing, petitioner relied primarily on a policy of the general plan to “‘[e]nsure efficient use of remaining land available for residential development … by requiring that new development meet the density minimums of appliable plan designations.’” The general plan recommended that residential areas designated “Medium High”—including the project site—provide multi-family housing with a density range of 30- to 44-dwelling units per acre. Because the project did not meet this standard, petitioner argued the project was inconsistent with the general plan, and, therefore, the city abused its discretion in relying on CEQA’s in-fill exemption.

The court rejected the petitioner’s argument as too rigid of an interpretation of the general plan. The court explained that the city’s determination that the project is consistent with the general plan is entitled to great weight because the city is in the best position to interpret it. The general plan consistency requirement does not require rigid conformity to the general plan. A project is consistent with the general plan if it will further the plan’s objectives and policies, and not obstruct their attainment.

Although the general plan’s density standards would ordinarily require 16 or more units on the site, the city council adopted extensive findings explaining why the project was consistent with the general plan, despite its lower density. In support of its findings, the city council cited a note in the community plan, which states that the residential density recommendations “‘may be subject to modification.’” Further, the community plan provided that modifications could be made to the recommended densities. The general plan provides that the community plans are integral components of the general plan; thus, the court held, the city appropriately considered these statements in the community plan as part of the general plan. The city council found that the project, at seven units, struck a reasonable balance of meeting the city’s housing goals, while also respecting the environmentally sensitive canyons. The city’s code limits development on steep hillsides, and the project proposed design was consistent with the city’s hillside development standards. Further, the project would provide infill residential housing, consistent with the city’s housing policies. As stated by the city council, the project’s “‘creation of seven new dwellings, where there existed two units, would assist the housing needs of the North Park area community.’”

The Court of Appeal concluded that the city’s extensive general plan consistency findings demonstrated that the city considered the general plan, the community plan, and the city’s steep hillside development regulations in approving the project and balanced the competing interest of those plans and regulations. Based on its review of the record, the court concluded that the city acted reasonably and did not abuse its discretion by balancing those competing policies and regulations to determine the project is consistent with the general plan. Accordingly, the court held that substantial evidence supported the city’s reliance on the in-fill exemption.

 

Laura Harris

Fifth District Court of Appeal Upholds Air Pollution Control District As Proper Lead Agency, Finds Permit Requirements Provide Substantial Evidence For EIR Emissions Estimates, And Holds EIR Lacked “Reasoned Analysis” For Rejecting Additional Mitigation Measures

In Covington v. Great Basin Unified Air Pollution Control District (2019) 43 Cal.App.5th 867, the Fifth District Court of Appeal affirmed in part the judgement of the trial court by holding that the District is the proper CEQA lead agency and that permit requirements provide substantial evidence to support the EIR’s fugitive emissions estimates for a proposed geothermal power project; and reversed in part by holding that the District’s feasibility assessment of a mitigation measure proposed by EIR commenters was flawed and required more “reasoned analysis.”

Background

In July 2014, the District certified the Casa Diablo IV Geothermal Development Project joint document EIR/EIS prepared for a proposed geothermal energy facility located on national forest land in Mono County. The project was proposed by Ormat Nevada, Inc., and Ormat Technologies, Inc. (“project proponents”) to be located adjacent to an existing geothermal power complex in an area that has been developed for geothermal activity since 1984. The joint document was prepared by the Bureau of Land Management, the U.S. Forest Service, and the District, with the state agency serving as the CEQA lead agency. The project was designed to reduce greenhouse gas emissions and dependence on fossil fuels by using heat extracted from water pumped from a deep geothermal reservoir to fuel a closed-loop system that would ultimately produce electricity. The reaction, however, would produce n-pentane (normal pentane)—a non-toxic reactive organic gas but a precursor to ozone—which would leak in some amount leak from the system and result in fugitive emissions. The EIR concluded that the amount of fugitive emissions would not exceed 410 pounds per day.

The Laborer’s International Union of North America Local Union No. 783 and certain individual members (“Petitioners”) filed a petition for writ of mandate against the District and project proponents as real parties in interest claiming that the EIR’s fugitive emissions conclusions were not supported by substantial evidence, that the District was an improper lead agency, and that the District erred in its feasibility analysis for measures to further mitigate fugitive emissions. The trial court denied the petition in full. Petitioners appealed.

District is Proper Lead Agency

Petitioners argued that Mono County, not the District, was the proper CEQA lead agency as defined in Guidelines section 15051, subdivision (b), because it was the agency with more “‘general governmental powers’” over the project. While the Court agreed that “‘normally’” a county would be the CEQA lead, as the first non-federal agency to act on the project, the District was qualified under Guidelines section 15052, subdivision (c), to act as lead.  As further evidence, the Court pointed out that, for a while, the District appeared to be the only involved state agency because of its unique permit authority over an otherwise federalized project. The Court further reasoned that the County’s involvement is minimal in comparison because the project requires “only” a conditional use permit from the County for a “small portion” of its pipeline, which gave it lesser responsibility for “approving the project as a whole,” thereby making the District the proper CEQA lead.

Permit Provides Substantial Evidence

Petitioners also argued that “the record does not contain substantial evidence to support the [EIR’s] conclusion that the Project’s n-pentane [fugitive] emissions will be limited to 410 pounds per day.” The EIR did not, in fact, include emissions calculations. But, the District countered that it provided total emissions numbers to Petitioner’s counsel under a public records act request prior to EIR certification. And, after EIR certification, it sent Petitioner’s counsel additional emissions data, albeit with some redactions. The District further argued that project compliance with permit requirements that limit daily fugitive emissions to 410 pounds per day provides substantial evidence to support the EIR’s conclusion that the project will not exceed that limitation. The Court agreed and cited to several cases for support, including Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884 and Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, where other courts held that “compliance with performance standards is a substitute for substantial evidence.” The Court also pointed out that the EIR contained several mitigation measures to lessen impacts from project fugitive emissions.

Mitigation Feasibility Assessment Lacks “Reasoned Analysis”

Petitioners then argued that additional feasible mitigation measures existed to further reduce fugitive emissions, provided by commenters on the Draft EIR, and that the District abused its discretion in finding them infeasible. The District countered  that the project’s required use of “‘best available technology’” and “‘state of the art equipment’” was enough to reduce impacts to less than significant, thereby rendering additional measures irrelevant. The Court, while not invalidating the District’s conclusion, required it to provide a “good faith, reasoned response” explaining why the specific technologies suggested by commenters, which are successfully used in other industrial facilities, could not be used for the project to further reduce impacts. Without such explanation, the Court contended that the EIR would not contain “a sufficient degree of analysis to enable decision makers to make an intelligent and informed decision,” pursuant to Guidelines section 15151.

– Casey Shorrock

Third District Court of Appeal Upholds EIR for Chico Walmart Expansion Against Challenge to Urban Decay Analysis

In a partially published decision issued on October 3, 2019, the Third District Court of Appeal affirmed a judgment upholding an EIR for a Walmart expansion project in Chico against challenges to the EIR’s urban decay analysis. (Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839.)

In 2015, Walmart applied to the city to expand its existing Chico store in a regional retail center that includes the Chico Mall and several national chain retail stores. A FoodMaxx grocery store is also nearby. Walmart planned to expand its existing store by approximately 64,000 square feet, add an eight-pump gas station, and create two new outparcels for future commercial development. Approximately 49,000 square feet of the new space would be used for grocery-related sales.

The city prepared an EIR for the project that included, among other things, a “robust 43-page urban decay analysis.” The urban decay analysis was supported by a 123-page expert study prepared by ALH Urban & Regional Economics. The purpose of the ALH study was to assess the economic impact of the project on retailers in the surrounding area and to evaluate the extent to which the project could contribute to store closures and urban decay. For purposes of the study, “urban decay” was defined as “visible symptoms of physical deterioration . . . that is caused by a downward spiral of business closures and long term vacancies . . . [and]. . . so prevalent, substantial, and lasting for a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community.”

The ALH study concluded that, on its own, the project would have a negligible impact on sales for competing retailers and that store closures were not expected to follow. Based on these findings, the EIR concluded that the project would not cause the type of severe economic effects that would lead to urban decay. With regard to cumulative impacts, the ALH study concluded that the project, when combined with other planned retail projects in the area, could induce the closure of one full-service grocery store. The city’s retail vacancy rate, however, would only increase by approximately one percent and would remain “well within the range of a robust, healthy commercial retail sector.” The EIR further explained that Chico has a strong history of “backfilling” store vacancies, that existing vacant properties are well-maintained, and that the city has regulations to prevent decay and blight. For these reasons, the EIR concluded that although some economic impacts were expected, cumulative impacts likely would not result in urban decay.

Following the city’s certification of the EIR, Chico Advocates for a Responsible Economy (CARE) challenged the urban decay analysis in an administrative appeal to the city council. CARE supported its challenge with its own “retail expert” report refuting the city’s analysis. The city council denied the appeal.  CARE then filed a petition for writ of mandate seeking to rescind the EIR and project approvals. The trial court denied the petition in full and CARE appealed.

On appeal, CARE challenged the EIR’s urban decay analysis on two grounds. First, CARE argued that the EIR relied on an “unnaturally constrained” definition of “urban decay” and, as a result, failed to treat the loss of “close and convenient shopping” as a significant environmental impact. Second, CARE argued that, due to flaws in the ALH study’s methodology, the EIR’s urban decay findings were not supported by substantial evidence.

Addressing the first issue, the court began its discussion by explaining the applicable standard of review for allegations that an EIR failed to include necessary information. Citing the Supreme Court’s recent decision in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, the court explained that CARE’s argument presented the predominantly legal question of whether the EIR included enough detail “to enable those who did not participate in its preparation to understand and consider meaningfully the issues raised by the proposed project,” which is subject to independent review. On this issue, the court found “CARE’s argument lacks merit – the City did not violate CEQA because the potential loss of close and convenient shopping is not an environmental issue that must be reviewed under CEQA.” “CEQA is concerned with physical changes in the environment,” the court explained, and “[a]lthough the loss of close and convenient shopping could impact some Chico residents psychologically and socially, such impacts are not, by themselves, environmental impacts.”

Next, the court turned to CARE’s attack on the methodology for the urban decay analysis. CARE alleged three flaws with the urban decay study’s methodology. First, CARE argued that the study relied on incorrect assumptions for calculating the anticipated grocery sales. Second, CARE argued that the study underestimated impacts on Chico stores by incorrectly assuming shoppers from the neighboring Town of Paradise would patronize the Walmart. Lastly, CARE argued that the study incorrectly assumed economic impacts would be spread amongst existing stores, rather than concentrated on the closest competitor – the FoodMaxx grocery.

In rejecting each of CARE’s arguments, the court explained that challenges to the EIR’s methodology are reviewed under the substantial evidence standard. Under this standard, challenges to the EIR’s methodology “must be rejected unless the agency’s reasons for proceeding as it did are clearly inadequate or unsupported.” Moreover, the court explained, when an agency is faced with conflicting evidence on an issue, it is permissible to give more weight to some evidence than others – mere “disagreement among experts” does not render an EIR inadequate.

In this case, the court concluded that CARE’s challenge amounted to “nothing more than differences of opinion about how the Project’s expected grocery sales should be estimated, how the Project’s market area should be defined, and which competitors are most susceptible to impacts from the Project.” These differences in opinion, the court explained, did not render the EIR’s analysis clearly inadequate or unsupported. Therefore, CARE’s challenge failed under the substantial evidence test.

The court further noted that although CARE’s own expert report showed additional store closures would occur, CARE failed to demonstrate how such closures would lead to urban decay. As the court explained, “Store closures, by themselves, do not amount to urban decay.”

Second District Invalidates EIR’s Project Description For Failing to Provide Sufficient Detail and Certainty.

In Stopthemillenniumhollywood.com et al. v. City of Los Angeles et al. (2019) 39 Cal.App.5th 1, the Second District Court of Appeal affirmed the trial court’s conclusion that an EIR for a mixed-use development project proposed by Millennium Hollywood, LLC (Millennium) in the City of Los Angeles (City) violated CEQA as a matter of law, because it failed to provide an accurate, stable, and finite project description.

In 2008, Millennium filed an application—which the Court of Appeal described as detailed—with the City proposing a mixed-use development project (2008 Proposal) on 4.47 acres in multiple parcels straddling two sides of Vine Street, between Yucca Street and Hollywood Boulevard, in the Hollywood Community Plan area of the City. The 2008 Proposal described a mixed-use development with 492 residential units, a 200-unit hotel, 100,000 square feet of office space, a 35,000-square-foot sports club and spa, 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage uses. In total, proposed square footage was 1,163,079. Two historic buildings on site, the Capital Records Tower and Gogerty Building, would be preserved. The development would consist of two low-rise buildings, one on each side of Vine Street, with three towers intended to “frame” the Capital Records Tower. The 2008 Proposal would have required a zone change to allow the sports club, as well as a variance to allow the proposed density. After the City informed Millennium that a variance from the General Plan Floor Area Ratio (FAR) requirement would also be necessary, the project was put on hold.

In 2011, Millennium filed a new application with a new project description for the same site (2011 Project). Millennium still proposed a mixed-use development with residential, hotel, and retail uses totaling 1,166,970 square feet and a FAR of 6:1. Though the same mix of uses were proposed, the 2011 Project was “designed to create an impact ‘envelope’ within which a range of development scenarios can occur.” Thus, the specific shape, size, location, use, and number of buildings to be constructed on the site were not described, other than that the existing historic buildings would be preserved. Instead, Millennium sought to enter into a development agreement with the City that would establish the permitted developable floor area, land uses, design guidelines, and development standards for the site. Additionally, the 2011 Project included a land use equivalency program (LUEP) allowing the transfer of floor area between parcels on the site. The EIR analyzed the maximum level of impacts that could occur under the development agreement, regardless of which of the several development scenarios was actually constructed in the future.

Commenters on the Draft EIR complained that the imprecise project description hindered meaningful public participation. Nevertheless, the City approved the development agreement, certified the EIR, adopted mitigation for the analyzed maximum level of impacts and adopted a statement of overriding considerations. Petitioners, Stopthemillenniumhollywood.com, Communities United for Reasonable Development, and George Abrahams (collectively, Petitioners) petitioned the Los Angeles Superior Court for a writ of mandate setting aside project approval and certification of the EIR. Petitioners alleged three causes of action relating to violations of CEQA. First, they alleged that the EIR failed to include an accurate, stable, and finite project description. The second cause of action asserted that the City abused its discretion by failing to study traffic impacts to the 101 freeway despite Caltran’s direction that the City do so. The third cause of action alleged that the City failed to consult with the California Geological Survey regarding potential seismic hazards on the site. The trial court granted the petition as to the first and second causes of action, but not the third.

On the first cause of action, the trial court found that the project description was not stable or finite, and that the use of the word “or” in a condition of approval allowed Millennium, or future developers, to choose any permitted use listed for the C2 zone in the LAMC for future development, not just the list of proposed uses in the development agreement. The trial court reasoned that, though there may be circumstances where a project description may disclose only the physical parameters and maximum potential environmental impacts, no such circumstances were present here. The trial court distinguished Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036 (Treasure Island), on the grounds that that case dealt with a site contaminated by hazardous materials, and it was unknown when cleanup of the site would be completed. The trial court noted that the development in Treasure Island included both fixed elements (including the street grid) and conceptual elements that would “likely” be subject to supplemental CEQA review. The trial court concluded that neither element was present here.

The trial court also found that, by including an ambiguous project description, the EIR impermissibly deferred part of the analysis of environmental impacts. Specifically, the trial court found that, because no specific “concept” was analyzed, the EIR did not explain how exceedance of the maximum impacts would be avoided when the project was actually designed and built; nor was additional CEQA review contemplated by either the EIR or the development agreement. The trial court determined that, without knowing the “bona fide subject” of the EIR, it would be impossible for the public and decisionmakers to accurately weigh the “environmental price tag” of the proposal and decide if the benefits outweigh that price.

The City and Millennium appealed the trial court’s decision as to the first and second cause of action, while Petitioners appealed the decision on the third cause of action. The Court of appeal, after ruling on the first cause of action, determined that it need not reach the other issues raised by the parties.

In affirming the trial court, the Court of Appeal looked to County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 (County of Inyo), and Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277 (Washoe Meadows). The Court cited County of Inyo for the proposition that, even where an inaccurate project description does not render invalid the analysis of environmental effects, it may nevertheless violate CEQA by interfering with “intelligent public participation.” The Court found further support for this position in Washoe Meadows, where the First District held that a failure to select or identify a specific project in the Draft EIR interfered with the public’s right to participate in CEQA review.

In the case before it, the Court found that the project description “fail[ed] to describe the siting, size, mass, or appearance of any building proposed to be built at the project site” and that the proposed development regulations imposed only vague and ambiguous limits on future construction choices. The Court held that, even if the analysis of maximum impacts were adequate—despite the project description, “CEQA’s purposes go beyond an evaluation of theoretical environmental impacts.” The Court determined that the project description violated CEQA as a matter of law.

In reaching its decision, the Court distinguished South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321 (South of Market), on two grounds. First, the Court found that the only “uncertainty” at issue in South of Market was that the project description presented a choice of either a predominately office use or a predominately residential use, but the EIR did not select one or the other. Second, the Court found that the EIR in South of Market “included ‘site plans, illustrative massing, building elevations, cross-sections and representative floor plans for both options.”’ Because the EIR before it did not include these “technical characteristics” of the project, the Court concluded that it failed to comply with CEQA’s mandates. The Court also largely agreed with basis for the trial court’s distinguishing of Treasure Island, supra, 227 Cal.App.4th 1036, finding that no unusual circumstances were present in this case, and that future planning and development of the project would not be subject to additional environmental review. Lastly, the Court found the violation to be prejudicial because it interfered with public participation.

As stated above, the Court determined that it need not address the other issues raised by the parties. The Court dismissed an argument that Public Resources Code section 21168.9 required them to rule on each issue raised in a CEQA appeal. The Court found that section applied only to the trial court’s order on remand, which is to address only those mandates from the Court of Appeal that are necessary to comply with CEQA. The Court found that the trial court’s judgment was correct on at least one ground, so it was affirmed.

Nathan George

California Supreme Court Holds Adoption of Zoning Ordinance for Medical Marijuana Dispensaries is a “Project” Subject to CEQA

On August 19, 2019, the California Supreme Court issued its decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, in which the Court unanimously held that the City of San Diego’s adoption of a zoning ordinance for medical marijuana dispensaries is a “project” subject to CEQA. Although the Court agreed with the Fourth District Court of Appeal and the city in rejecting the petitioner’s argument that the adoption of a zoning ordinance is always a project, as a matter of law, under Public Resources Code section 21080, the Court reasoned that the adoption of the ordinance at issue was nonetheless the type of activity which, by its general nature, “is capable of causing a direct or reasonably foreseeable indirect physical change in the environment.” As such, the Court held, it is a “project” subject to CEQA.

Background

In 2014, the city adopted a zoning ordinance authorizing the establishment of medical marijuana dispensaries in the city and imposing various restrictions on their location and operation. The ordinance specified zones where dispensaries are permitted, included a cap on the number of dispensaries in any one district, restricted their proximity to sensitive uses, and imposed basic conditions on lighting, security, and hours of operation. At the time the ordinance was proposed, the city determined that the adoption of the ordinance did not constitute a “project” for purposes of CEQA. The city, therefore, did not conduct any environmental review prior to adopting the ordinance.

Following the city’s adoption of the ordinance, petitioner filed a petition for writ of mandate challenging the city’s decision not to conduct CEQA review. In the trial court, petitioner argued that the adoption of the ordinance should have been found to be a project under Public Resources Code section 21065, which defines a “project” as any activity undertaken or funded by, or requiring the approval of, a public agency that “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” According to the petitioner, the ordinance had the potential, among other effects, to cause increased vehicle traffic across the city, increase user cultivation, and concentrate dispensary development-related impacts in certain areas. The trial court rejected petitioner’s arguments and upheld the city’s decision, finding the petitioner’s claims were unsupported by evidence in the record.

On appeal, petitioner reiterated its argument regarding the potential to cause physical changes in the environment, and further argued that the adoption of the zoning ordinance was a project as a matter of law under Public Resources Code section 21080. Section 21080 states that CEQA “shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances …” Pointing to this language, petitioner argued that the enactment of a zoning ordinance is automatically a project under CEQA, regardless of the potential for environmental change. Petitioner’s argument was based in part on the Third District’s decision in Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, where the court held that the county’s approval of a tentative map—another activity expressly listed in section 21080—was a project as a matter of law.

Notwithstanding Rominger, the Fourth District Court of Appeal rejected both of petitioner’s arguments, holding that the enactment of a zoning ordinance is subject to the same “project” test as any other activity under Public Resources Code section 21065. Further, the court found no error in the city’s conclusion that the zoning ordinance was not a project because it lacked the potential to cause a physical change in the environment. According to the Fourth District, the potential environmental effects raised by the petitioner were unsupported by the record and too speculative to establish a potential to physically change the environment.

The Supreme Court’s Review

Seeking to resolve the split between the Fourth District’s decision and Rominger, the Supreme Court granted review to address two issues: (1) whether, under Public Resources Code section 21080, a public agency’s enactment of a zoning ordinance is always project under CEQA, as a matter of law; and (2) whether the enactment of the city’s zoning ordinance was a “project” under section 21065.

The Court began its analysis by placing the dispute into context. As the Court explained, CEQA proceeds by way of a three-step process or “decision tree.” First, the lead agency must determine whether the proposed activity is a “project” subject to CEQA at all. Second, assuming CEQA applies, the agency must determine whether the project qualifies for one or more of the many CEQA exemptions. Third, assuming no exemptions apply, the agency must undertake environmental review, namely, preparation of an initial study and a negative declaration, mitigated negative declaration, or an environmental impact report. At issue here was the very first step of the process—the city’s determination that the adoption of the zoning ordinance was not a “project” subject to CEQA at all.

Turning to the first issue, the Court agreed with the Fourth District that Public Resources Code section 21080 does not dictate the result as a matter of law. Engaging in a statutory interpretation analysis, the Court reasoned that while section 21080 is ambiguous when read in isolation, the Legislature’s use of the statutorily defined term “project” in that section must be read to incorporate the definition of “project” in section 21065. Accordingly, the language in PRC section 21080 that CEQA “shall apply to discretionary projects” must be read to provide that CEQA applies to activities that are both (1) discretionary; and (2) meet the definition of a “project” in section 20165. According to the Court, the specific activities listed in section 21080 are merely generic examples of the type of activities approved or carried out by public agencies to which CEQA could apply, however, the mere listing of an activity in that section does not supplant the potential “physical change” analysis required under section 21065.

The Court found further support for its reading of section 21080 in the definition of the term “project” in CEQA Guidelines section 15378, which makes clear the enactment of a zoning ordinance is merely an example of an activity undertaken by public agencies; policy considerations against subjecting activities to CEQA where there is no potential to effect the environment; and the legislative history of section 21065 revealing the Legislature’s intent to narrow CEQA’s application to activities posing a possibility of an environmental effect.

The Court also refuted the notion that its reading of the statute renders section 21080 mere surplusage, noting that the significance of section 21080 is that it states, in the affirmative, the additional requirement that projects must be “discretionary” for CEQA to apply.

After concluding that the adoption of a zoning ordinance is not a project as a matter of law, the Court turned to whether the adoption of the dispensary ordinance in this case was nonetheless a project subject to CEQA under Public Resources Code section 21065. The Court disagreed with the appellate court and answered the question in the affirmative.

As the Court explained, the governing decision for the “project” inquiry is Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372. In that case, the Court observed, “Whether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact.” In other words, an agency’s task in determining whether a proposed activity is a project is to determine if, by its general nature, the activity is capable of a causing physical change in the environment, without regard to whether actual effects will occur under the circumstances.

Applying Muzzy Ranch, the Court held that the city erred in determining that the adoption of the zoning ordinance was not a project subject to CEQA. The Court noted that the ordinance would permit the establishment of a sizable number of new businesses, which could foreseeably result in new construction. Furthermore, the ordinance could cause changes in vehicle traffic patterns as a result of customers, employees, and suppliers. Finally, the Court explained, the necessary casual connection between the ordinance and these effects was satisfied because the adoption of the ordinance was “an essential step culminating in action . . . which may affect the environment.” For these reasons, the Court held, the adoption of the zoning ordinance was a “project” subject to CEQA.

Collin McCarthy

In First Opinion Addressing a Sustainable Communities Environmental Assessment, the Third District Upholds the City of Sacramento’s Approval of an Infill Project

In Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, the Third District Court of Appeal upheld the City of Sacramento’s reliance on a Sustainable Communities Environmental Assessment (SCEA), a relatively new method for conducting streamlined CEQA review for certain projects that help the state meet its greenhouse gas (GHG) reduction targets. (See Pub. Resources Code, § 21155.2, subd. (b).) The decision is the first published opinion addressing the propriety of an SCEA. The court held that the transit priority project at issue was consistent with the region’s sustainable communities strategy and therefore the City’s reliance on the SCEA complied with CEQA.

The court also upheld the City’s reliance on a unique provision in its general plan that allows the City to approve projects that are inconsistent with the City height and density limits if the projects offer significant community benefits.

Background

The Sustainable Communities and Climate Protection Act (SB 375) was created to integrate transportation and land use planning to reduce GHG emissions. SB 375 directed the California Air Resources Board to develop regional targets for automobiles and light trucks to reduce emissions. In turn, federally designated metropolitan planning organizations (MPOs) must now include a “sustainable communities strategy” (SCS) in their regional transportation plans/ metropolitan transportation plan (MTP). (Gov. Code, § 65080, subd. (b)(2)(B).) MTP/SCSs direct the location and intensity of future land use developments on a regional scale to reduce vehicle emissions. The Sacramento Area Council of Governments (SACOG) is the MPO for the Sacramento area. SACOG adopted an MTP/SCS for the region in 2012 and certified an EIR for the MTP/SCS at that time.

Under SB 375, the mandated reductions may be achieved through a variety of methods, including “smart growth planning.” The Legislature determined that one type of development that can help reduce vehicular GHG emissions is a “transit priority project.” This type of project contains at least 50% residential use, has a minimum density of 20 units per acre, and is located within one-half mile of a major transit stop.

To boost development of transit priority projects, SB 375 allows for streamlined CEQA review through an SCEA if the project: (1) is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area’ in the strategy; and (2) incorporates all feasible mitigation measures, performance standards, and criteria set forth in the prior applicable environmental impact reports’ and which were adopted as findings. (Pub. Resources Code, §§ 21155, subd. (a), 21155.2, subds. (a), (b).)

The “Yamanee” project at issue in Sacramentans is a proposed 15-story multi-use building made up of one floor of commercial space, three levels of parking, residential condominiums on 10 floors, and one floor of residential amenities. The building is proposed to be located near public transit in Sacramento’s growing “Midtown” area, adjacent to the City’s downtown. The project is located in the MTP/SCS’s central city subarea of a “Center and Corridor Community.” Under the MTP/SCS, Center and Corridor Communities are typically higher density and more mixed than surrounding land uses. SAGOG organized the MTP/SCS in such a way that policies for reducing GHG emissions were embedded in the MTP/SCS’s growth forecast assumptions. Thus, projects that are consistent with the MTP/SCS’s growth forecasts are automatically consistent with the MTP/SCS’s emission-reduction policies.

The City determined that the Yamanee project qualified as a transit priority project and that the project was consistent with the general land use designation, density, building intensity, and applicable policies in the MTP/SCS. Therefore, the City used an SCEA to review the project under CEQA. The SCEA explained that, as a transit priority project, the Yamanee project would increase housing options near high quality transit and reduce vehicle miles traveled. It also explained that the project is consistent with the MTP/SCS’s forecast of low to high-density residential and mixed uses in the center subarea of the Center and Corridor Community.

The City Council upheld the City planning and design commission’s approval of the project and rejected the petitioner’s appeal of that decision. The petitioner sought a writ of mandate in the superior court, claiming that the City’s approval of the project violated CEQA and the planning and zoning law. The superior court denied the petition and the Court of Appeal affirmed.

CEQA

The Court of Appeal rejected the petitioner’s claim that the City erred by relying on SACOG’s MTP/SCS to justify using an SCEA. The petitioner argued that because the MTP/SCS lacked specific density and building intensity standards, the City could not rely on it as a basis for an SCEA. Further, claimed the petitioner, the MTP/SCS undermines the City’s general plan because it treats the City’s center as “higher density,” whereas the general plan sets forth a more nuanced approach under which building intensities and densities increase the closer a development gets to the downtown. These arguments, concluded the court, were premised on a misunderstanding of the MTP/SCS’s role. An MTP/SCS does not regulate land use. The purpose of an MTP/SCS is to establish a regional development pattern, not site-specific zoning. SB 375 authorized the City to review the project in an SCEA if the project was consistent with the regional strategy. Because it was, the city was allowed to rely on an SCEA. Although, as the petitioner contended, reliance on an SCEA could mean that certain projects receive less environmental review than traditionally required under CEQA, the court advised that the petitioner should take this concern to the Legislature, not the courts.

The court also rejected the petitioner’s claim that the City erred by relying on previous EIRs for the general plan and MTP/SCS to avoid analyzing the project’s cumulative impacts. In particular, the petitioner claimed that streamlined review was inappropriate in this case because no prior environmental analysis had considered the cumulative impacts of high-rise development in Sacramento’s midtown. The court explained that CEQA required the City to prepare an initial study (IS) before drafting the SCEA. The City’s IS for the project concluded that cumulative effects had, in fact, been adequately addressed and mitigated, and therefore did not need to be analyzed further in the SCEA. Additionally, the project included all applicable mitigation measures recommended in the prior EIRs. The petitioner failed to show that the City’s analysis was not factually supported. Accordingly, the City did not err by relying on prior cumulative impact analyses.

Planning and Zoning Law

The development proposed by the project is denser and more intense than what would ordinarily be allowed under the City’s general plan and zoning code. The City approved the project, however, under a provision in its general plan that allows the City to approve more intensive development when a project’s “significant community benefits” outweigh strict adherence to the density and intensity requirements. The City determined that the project would have several significant community benefits, including helping the City to achieve its goal of building 10,000 new residential units in the central city by 2025, and reducing dependency on personal vehicles. These, and other benefits, outweighed strict adherence to the City’s density and intensity limits.

The petitioner argued that the City’s decision to allow the Project to exceed the general plan and zoning code’s intensity and density standards constituted unlawful “spot zoning.” The court explained that spot zoning occurs where a small parcel is restricted and given fewer rights than the surrounding property (e.g., when a lot is restricted to residential uses even though it is surrounded by exclusively commercial uses). This case, explained the court, is not a spot-zoning case in that the property was not given lesser development rights than its neighboring parcels. The petitioner argued that the neighboring parcels had, in fact, been given lesser development rights through the City’s approval of the project, but there was no evidence in the record that any neighboring owner sought and was denied permission to develop at a greater intensity or that the City would arbitrarily refuse to consider an application for such development.

The petitioner also argued that the phrase “significant community benefit” as used in the City’s general plan was unconstitutionally vague. The court disagreed, explaining that zoning standards in California are required to be made “‘in accord with the general health, safety, and welfare standard,’” and that the phrase “significant community benefit” was no less vague than the phrase “general welfare.” Additionally, held the court, the phrase “significant community benefit” provides sufficient direction to implement the policy in accordance with the general plan.

The court also held that the City had articulated a rational basis for the policy allowing the City to waive the density and intensity standards for projects that provide significant community benefits, which is all that the Constitution required.

Conclusion

In this case, the City of Sacramento successfully employed CEQA’s streamlined provisions for transit priority projects to expedite and simplify its environmental review of an infill project that will help the City meet its aggressive new housing goal and reduce greenhouse gas emissions. The City’s general plan allowed the City to approve the project because the project would provide significant public benefits, even though the project is inconsistent with the general plan and zoning code’s density and intensity standards. As California continues to combat the dual threats of a housing shortage and climate change, cities and counties are likely to increasingly rely on streamlined approaches to the approval process for mixed-use projects near public transit.

Second District Finds that CEQA’s Supplemental Review Provisions Applied to Modification of Commercial Development Project adding a Specific Plan Amendment and that the Amendment was not Impermissible “Spot Zoning”

In Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, the Second District Court of Appeal overturned the trial court’s decision that revisions to a commercial development project to include a specific plan amendment constituted a “new project” under CEQA, and found that supplemental review under Public Resources Code section 21166 applied instead. Additionally, the Court determined that, while the specific plan amendment created a “spot zone,” substantial evidence supported the City’s determination that the amendment was in the public interest, and thus not impermissible under the test announced in Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4th 1302.

Target Corporation (Target) applied to build a Super Target retail store at the intersection of Sunset Boulevard and Western Avenue in Hollywood. The project contemplated a nearly 75-foot tall, three-story building with the Target store occupying the third floor, parking on the second, and the first floor containing several smaller retail stores, a transit kiosk, and a pedestrian plaza. The City of Los Angeles certified the environmental impact report (EIR) prepared for the project, and granted eight variances from the Vermont/Western Transit Oriented District Specific Plan (SNAP) allowing the project to be built as proposed. Target began construction of the project. Several community associations (plaintiffs) filed separate petitions for writ of mandate challenging the City’s approval of the project, alleging violations of CEQA, and that the grant of the variances were not supported by substantial evidence in violation of the Los Angeles Municipal Code. The trial court upheld the EIR, but found that six of the eight variances were not supported by substantial evidence and ordered construction to cease.

While that case was pending on appeal, the City amended the SNAP to create a new subarea (Subarea F) that would allow projects similar to Target’s to be built in certain parts of the specific plan area without the need for variances, and designated the project site as Subarea F. There were two other locations in the specific plan area that could qualify for the Subarea F designation, but no projects meeting the requirements of Subarea F were proposed to the City at those locations. The appellate court dismissed the appeal as moot, leaving the trial court’s decision intact. The City prepared and approved an addendum to the Target project EIR, defining the revised project as the SNAP amendment and the completion of construction for the Target project. The same plaintiffs challenged the revised project approval, alleging that the City violated CEQA by relying on an addendum rather than a new, subsequent, or supplemental EIR, and that the City impermissibly “spot-zoned” by amending the SNAP for the project. The trial court found that the SNAP amendment was a new project, making the addendum improper but did not reach the “spot zoning” issue. The City and Target appealed.

The court of appeal, in analyzing whether the addendum violated CEQA asked three questions: what did the SNAP amendment do? Do CEQA’s supplemental or initial project review provisions apply? And, did the City comply with the applicable CEQA provisions? The court answered each question in turn. First, the court found that SNAP amendment, though it created a new subarea, only placed the project location into that subarea. While two other locations in the SNAP area could meet the proximity to transit and acreage requirements, they did not meet the commercial square footage requirement and no projects meeting that requirement had been proposed to the City. The court also rejected plaintiffs’ “haphazard” development argument, finding that the amendment was consistent with the SNAP’s policies and that the City could rationally take planning and development “one step at a time.”

In determining whether CEQA’s supplemental review provisions applied, the court found that there had been prior CEQA review of the Target project. Thus, the question was “whether the previous environmental document retains any relevance in light of the proposed changes.” (Citing Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944.) The court found that substantial evidence supported the City’s determination that the previous EIR retained relevance for the revised project. The court rejected the argument that, because the previous EIR was limited to a specific development “project” and the SNAP amendment involved more general policy considerations, the “project” EIR was insufficient. The court found that the label placed on the EIR said little about its sufficiency as an informational document. The proper question is whether the EIR retains any value in addressing the impacts associated with the revised project.

Next, the court asked whether the City complied with CEQA’s supplemental review requirements, and found that substantial evidence supported the City’s decision to rely on an addendum for the revised project. Plaintiffs made four arguments, all of which the court rejected. First, petitioners argued that the addendum did not discuss the SNAP amendment, which the court stated was factually inaccurate. Second, they argued that the City intended further development in the SNAP area through the new subarea because of some of the language the City used in describing the requirements of the new subarea. The court found that the cited language did not negate the substantial evidence supporting the City’s finding that no additional development was foreseeable. Third, plaintiffs argued that additional development projects at the two locations that could qualify for the new subarea, and any other locations that could be “cobbled together” were reasonably foreseeable consequences of the SNAP amendment that required a subsequent or supplemental EIR. The court found that whatever incentive for development the amendment created, evidence of that incentive did not overcome the substantial evidence supporting the City’s determination. Lastly, plaintiffs argued that de novo review should apply because the challenge to the amendment required the court to construe its meaning. The court found that the issue before it involved the amendment’s environmental impact, not its meaning, and thus review was for substantial evidence.

Though the trial court did not address the “spot zoning” issue, the court of appeal did, finding that it was important enough to resolve the fully briefed, longstanding issue. Under the analysis in Foothill Communities, the court found that the SNAP amendment did create a zoning “island,” though it was unclear whether the zoning was less or more stringent than the surrounding parcels because of the specific requirements for the new subarea. Regardless, the question was whether the zoning decision creating the “island” was arbitrary, irrational or unreasonable. The court found that, under that standard, the spot zone was valid. Further, the City’s determination that the amendment was in the public interest was supported by substantial evidence, and the SNAP, as amended, remained compatible with the City’s general plan. The court rejected plaintiffs’ challenge to the City’s alleged motive in amending the SNAP, and plaintiffs’ questioning of whether the SNAP amendment represented good policy, as neither issue was appropriate for the court’s inquiry. The court also found that even if future projects proposed to use the new subarea, the City retained its power to determine whether each project is in the public interest. Lastly, the court rejected plaintiffs’ argument that the amendment to the SNAP was “incompatible” with it because the amendment would “alter” the SNAP.  The court found that the law unambiguously allows specific plan amendments.

Nathan O. George

First District Court of Appeal upholds EIR for San Francisco’s Housing Element

On August 22, 2018, the First District issued its decision in San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. The appellate court upheld an EIR that San Francisco prepared for its 2004 and 2009 Housing Elements, notably rejecting a challenge to the use in the EIR of a future-conditions baseline for the plan’s traffic and water supply impacts.

In an earlier appeal involving San Francisco’s 2004 Housing Element, the First District concluded that the City should have prepared an EIR rather than a negative declaration. By the time the trial court issued an amended writ in April 2009 requiring the preparation of an EIR for the 2004 Housing Element, the City was already in the process of preparing its 2009 Housing Element. Consequently, the City combined the environmental review of the two versions and prepared one EIR for both the 2004 and 2009 Housing Elements. After the City adopted the 2009 Housing Element in June 2011, San Franciscans for Livable Neighborhoods (SFLN) filed a new suit and this appeal followed.

For traffic and water supply impacts, the EIR used a baseline of 2025 conditions based on population projections from the Association of Bay Area Governments (ABAG). The court concluded that the City was “within its discretion to adopt a baseline calculation forecasting traffic and water impacts in 2025” rather than “comparing the existing conditions with and without the Housing Element.” Citing POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (“POET II”), SFLN argued that the City took an improperly narrow view of the Housing Element and “sidestepped review of the reasonably foreseeable indirect physical changes in the environment.” The court was unpersuaded because the Housing Element consisted of growth-accommodating policies but did not induce or lead to population growth. Discussing the rule described in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, the court found that substantial evidence supported the City’s determination that an existing-conditions baseline would be misleading as to traffic and water supply impacts. The court also rejected SFLN’s corollary argument about the baseline for land use and visual resources impacts, noting that the EIR did compare the changes in the Housing Element to the existing environment.

Second, the court tackled SFLN’s challenges to the EIR’s analysis of various impacts. It found that substantial evidence supported the EIR’s analysis, explaining that: (1) the EIR reasonably concluded that the 2009 Housing Element would not result in significant impacts on visual resources or neighborhood character because there would be no changes to allowable land uses or building heights, and residential growth would be directed to areas with existing residential uses; (2) the EIR for the Housing Element was not required to study traffic impacts of specific development projects in the pipeline because those projects were proceeding under their own EIRs or CEQA documents; (3) the EIR for the Housing Element was not required to establish a likely source of water and satisfied CEQA by acknowledging the possibility of a post-2030 water supply shortfall during a multiple-dry-year event and discussing the water rationing plan that would balance supply and demand; and (4) the City did not abuse its discretion in determining that the Housing Element was consistent with ABAG’s Land Use Policy Framework because policies would further the goals of the Framework by placing housing near transit and encouraging infill development.

Third, the court turned to SFLN’s argument that the EIR failed to consider feasible reduced-density alternatives. The EIR analyzed three alternatives, including a No Project Alternative, a 2004 Housing Element Alternative, and an Intensified 2009 Housing Element Alternative. The 2004 Housing Element Alternative was identified as the environmentally superior alternative because it would reduce the sole significant and unavoidable impact (cumulative impact on transit) even though it would not reduce the impact to a less than significant level. The court concluded that this was a reasonable range of alternatives. In particular, the court approved of the City’s explanation in responses to comments that the reduced density alternatives suggested by SFLN would not add any meaningful analysis to the EIR because they would not reduce the project’s potential cumulative transit impacts. The court also found that substantial evidence supported the EIR’s conclusion that the SFLN-proposed alternative dubbed the No Additional Rezoning Alternative was infeasible because increasing the density of two major projects within existing neighborhoods as suggested would require rezoning.

Finally, the court rejected SFLN’s argument that the City should have considered additional mitigation measures to reduce transit impacts. The EIR explained that the only way to eliminate the significant transit impacts would be to increase the number of transit vehicles or reduce transit travel time. Since funding for these measures is uncertain and cannot be guaranteed, the EIR deemed them infeasible. Although SFLN suggested two mitigation measures, one was simply a permutation of the No Project Alternative and the other was infeasible because it involved imposing transit impact fees that the City had already decided would be infeasible because they cannot be guaranteed.

Elizabeth Sarine