Tag: Emergency Evacuation

FIRST DISTRICT UPHOLDS LESS THAN SIGNIFICANT IMPACT DETERMINATION FOR BIOLOGICAL RESOURCES BASED ON SURVEY THAT PREDATES THE NOP, AND ON PUBLIC SAFETY BASED ON CITY STAFF EXPERTISE

General Posted by   

In Save North Petaluma River and Wetlands v. City of Petaluma (2022), 86 Cal.App.5th 207, the First District Court of Appeal upheld an EIR’s analysis of an apartment complex’s impacts on biological resources and public safety. The court concluded that the EIR’s reliance on a special status species survey conducted several years before the NOP was issued, as well as review of more recent databases, was sufficient to support its conclusion that the Project would have a less than significant impact. It also concluded that the City’s reliance on its staff’s expertise was sufficient to support its conclusion that the Project would not have a significant impact on public safety related to emergency evacuation.

Background

In 2007, the City published a Notice of Preparation (NOP) for a 312-unit apartment complex in the City of Petaluma. In May 2008, the applicant submitted an application for a smaller 278-unit complex to comport with the City’s newly adopted 2025 General Plan. In March 2018, the City published a draft EIR for the complex, which included a 2004 consultant report on special status species in the Project area. In October 2019, the City issued a final EIR for the Project, concluding that the changes made in the reduced-scale version of the complex eliminated or reduced several of the potentially significant impacts identified in the Draft EIR. The Planning Commission recommended that the City Council certify the final EIR, but did not recommend approving the necessary zoning amendments.

In January 2020, in response to public comment and input from public agencies, the applicant submitted a second reduced version of the Project with 180 units (hereinafter, the Project), reducing the building footprint and increasing the setback from the Petaluma River, preserving two wetlands near the river and avoiding development in the River Plan Corridor, and preserving additional trees with a flood terrace design adjustment. A City staff report determined that this second revised version of the Project reduced impacts and addressed the Planning Commission’s concerns regarding the zoning amendments, and concluded that the second revised Project was within the reasonable range of alternatives addressed in the EIR and would not result in new or more substantial impacts compared to prior versions. The City certified the EIR and overturned the Planning Commission’s denial of zoning amendments. In February 2020, the City approved the zoning amendments by ordinance.

Save North Petaluma River and Wetlands and Beverly Alexander (Petitioners) field a petition for writ of mandate challenging the adequacy of the EIR on several grounds. The trial court denied the petition and Petitioners appealed.

Court of Appeal’s Decision

Special Status Species Impact Analysis

The court rejected Petitioners’ argument that the EIR’s impact analysis of special status species was deficient.

It explained that the EIR did not fail to investigate the project’s baseline conditions as of 2007 when the NOP was published because the 2004 special status species survey was based on current data at the time, and the EIR included database reviews from more recent years—as recent as 2017. The court further explained that there is no authority suggesting that CEQA is violated where an EIR’s analysis is drawn from site visits, studies, and habitat evaluations undertaken both before and after the NOP. Further, the court noted that Petitioners did not cite any evidence that the biological conditions at the Project site differed from 2004 to 2007, or in later years when updated databases were consulted.

Moreover, the court reasoned that Petitioners failed to challenge the EIR’s description of existing conditions and habitats on the undeveloped Project site, and that there is no evidence that the EIR omitted or inaccurately described the material aspects of the biological conditions on or near the Project site. The court distinguished this case from a string of cases where an EIR purported to measure impacts based on conditions that did not exist on the Project site or on conditions that were forecasted to exist at some point in the distant future. (See, e.g., Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.)

The court held that the EIR’s references to studies and site visits constitute substantial evidence supporting its special status species analysis because factual information in the EIR itself may constitute substantial evidence in the record to support the agency’s action on the project. (CEQA Guidelines, § 15121, subd. (c).) The court explained that it is appropriate to cite, but not include such documents in the EIR.

Therefore, the court held that the EIR’s analysis and information upon which it relied regarding the Project’s impacts on special status species was sufficient, and accordingly rejected Petitioners’ further contend that the EIR failed to offer recommendations that would adequately mitigate the Projects impacts on these species.

Emergency Evacuation & Public Safety Impact Analysis

The court also rejected Petitioners’ argument that the EIR was deficient because it omitted an analysis of egress and evacuation safety based on public comment documenting flooding and grass fires in the area. The court instead held that the EIR’s conclusion that the Project would not impair implementation of, or physically interfere with, an adopted emergency response plan or emergency evacuation plan was supported by substantial evidence, noting thde EIR’s adoption of the 2013 California Fire Code, consultation with the Petaluma Fire Department, and incorporation of additional recommendations and approval from the City Fire Marshal.

The court also explained that an agency may rely on the expertise of its staff to determine that a project will not have a significant impact, and that the City therefore appropriately relied on a City staff memorandum corroborating the public safety analysis in the EIR and reflecting information from the City’s Assistant Fire Chief confirming that the Fire Department does not have significant flood or fire access or egress concerns with development above the 100-year floodplain at the site. Additionally, the court rejected Petitioners’ claim that the City staff memorandum is improper post-EIR analysis, distinguishing this case from Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86.

–Veronika Morrison

THIRD DISTRICT COURT OF APPEAL DISMISSES PETITIONERS’ CHALLENGE TO A MITIGATED NEGATIVE DECLARATION BECAUSE THE CLAIMS DID NOT ESTABLISH A FAIR ARGUMENT OF SIGNIFICANT ENVIRONMENTAL IMPACTS.

General Posted by   

In Newtown Preservation Society v. County of El Dorado (2021) 65 Cal.App.5th 771, the Third District Court of Appeal affirmed the trial court’s decision to uphold El Dorado County’s adoption of a mitigated negative declaration (MND) for a bridge replacement project. In the published portions of the opinion, the court held that Petitioners failed to establish a “fair argument” that the project would have significant environmental impacts. Instead, Petitioners raised concerns regarding existing wildfire hazards that could impact residents near the project, but did not establish that the project may significantly impact the environment by creating or exacerbating wildfire hazards.

Factual and Procedural Background

The County, in preparing the MND, determined that the bridge replacement project could interfere with emergency response or evacuation plans and—as a result—expose people or structures to risk of loss or injury. However, the County also determined that these impacts would not be significant since a temporary evacuation route would be constructed to mitigate the risk. Such a route would only be used for emergency evacuation and, regardless of whether it was in place, any evacuation or emergency orders would be executed as the El Dorado County Sheriff’s Office of Emergency Services saw fit. Additionally, the County consulted with this office as well as the El Dorado County Fire Protection District in preparing the MND and both entities were comfortable with the document’s conclusions and assessments.

The County initially refrained from discussing the temporary evacuation route in detail in its mitigated negative declaration since it was concerned this would “lead people to believe that they should follow a certain evacuation route.” But, as a result of comments raised by one of the petitioners’ counsel and others regarding the possibility of a temporary evacuation route, the County’s responses to comments elucidated its plans and evacuation procedures in greater detail. It outlined several evacuation options given numerous emergency conditions depending on whether the temporary evacuation route was constructed.

After the County adopted the MND, Petitioners filed a writ a mandate, claiming the County failed to 1) properly consider the no-project alternative and 2) “adequately address the impact of closing the bridge without committing to construction of an evacuation route.” Petitioners claimed there was sufficient evidence in the record—including letters, correspondences, and hearing comments—supporting a fair argument that the bridge replacement project would significantly impact public safety. For example, a resident who lived on Newtown Road discussed past fire damage near her home; another resident complained that the County had not determined with finality whether a temporary route would be constructed; and another expressed concern about the effects of wind in the area on fire management; an aerial firefighter argued that recent history of wildfires demonstrated the danger in the County’s temporary evacuation route plans; Ms. Nagel, one of the petitioners, discussed her extensive firefighting experience; and Ms. Nagel’s attorney argued that the County’s MND violated CEQA by deferring important emergency management analysis.

The trial court, however, found that none of the petitioners’ arguments constituted substantial evidence, especially in light of explanatory testimony and responses to comments by the County and its experts, as well as the detailed evacuation options outlined in the MND. Instead, Petitioners’ letters and comments amounted to mere complaints and fears, backed up by speculation and unsubstantiated, non-expert opinion.

The Court of Appeal’s Decision

On appeal, Petitioners argued that the trial court erred in upholding the MND since “substantial evidence supports a fair argument of potentially significant impacts on resident safety and emergency evacuation.” The court noted that evidence supporting a fair argument can be substantial even though other equally compelling evidence may exist to the contrary. Still, the court concluded that Petitioners’ “framing of the fair argument test [was] erroneous. The question is not whether substantial evidence supports a fair argument that the proposed project will have significant impacts on resident safety and emergency evacuation. . . . [T]he question is whether the project may have a significant effect on the environment.” Yet Petitioners failed to identify any potentially significant effects the project might have on the environment and instead merely raised possible increased effects the environment might have on the community as a result of poorer evacuation procedures.

Furthermore, the Court of Appeal, like the trial court, pointed out that substantial evidence must be based on relevant information and facts; or at least reasonable inferences, assumptions, or expert opinion supported by facts. Unsubstantiated opinions, arguments, or speculations generally will not do. The court noted, however, that lay opinion may be considered substantial evidence where expertise is not necessary, which was not the case with the emergency evacuation issues raised by the Petitioners. The Court of Appeal explained again that Petitioners’ cited comments and letters were “mere speculation” and simply “dire predictions by nonexperts” and that they “fail[ed] to identify any factual foundation” for their assertions. Some comments were even directly contradicted by factual evidence in the record. Nowhere did Petitioners establish that any of the individuals whose testimony was cited were experts in evacuation planning. Thus, the court concluded that Petitioners’ claims did not constitute substantial evidence supporting a fair argument that the project may have a significant impact on the environment.

– Blake C. Hyde