Tag: Mitigated Negative Declaration

Court of Appeal Rules City of Berkeley Did Not Need EIR for Downtown Construction Project

Parker Shattuck Neighbors v. Berkeley City Council (2013) ___ Cal. App. 4th. ___ (Dec. 4, 2013).

In the last published CEQA case of 2013, the First District Court of Appeal upheld the City of Berkeley’s decision not to prepare an EIR for a mixed-use and residential project where petitioners failed to show that the project would have a significant effect on the environment.

The Parker Place Project is a three-parcel mixed-use and residential development that will replace a Honda dealership at the intersection of Parker and Shattuck streets in downtown Berkeley. Three environmental site-assessment reports revealed that the lots had contained underground gasoline storage tanks, as well as volatile organic compounds (VOC) in the soil and water samples. However, VOC levels did not exceed contaminant thresholds established by the San Francisco Regional Water Quality Control Board, and the studies concluded that contamination would not likely require cleanup and at least some chemicals were naturally occurring. All storage tanks underlying the property were removed.

Two years after removal of the last tank, developer CityCentric applied to begin constructing the project. The city council approved it, and petitioner Parker Shattuck Neighbors challenged the approval. The trial court ordered the city to vacate its approval for failure to hold a public hearing after modifying the project. The city conducted a second round of administrative proceedings and ultimately proposed a mitigated negative declaration (MND) after finding that mitigation could reduce any potential environmental impacts to less-than-significant levels. Parker Shattuck sought to set aside approval of the MND and to compel the city to prepare an EIR. The group was primarily concerned that the site’s soil contamination was a significant environmental impact, which the MND failed to adequately mitigate.

A lead agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project may have a significant effect on the environment. It is the petitioner’s burden to demonstrate a “fair argument” for environmental harm. The Court of Appeal held that Parker Shattuck failed to identify substantial evidence supporting a fair argument that potential health risks to workers and future residents might constitute a significant environmental impact. It did not consider whether the MND contained adequate mitigation measures because insignificant effects do not require mitigation.

The court declined to address whether CEQA required assessment of the effects of the environment on a project (in addition to the effects of a project on the environment) because it found that here, petitioner was arguing that the project would physically change the environment by disturbing contaminated soil. However, the court rejected the notion that the existence of toxic soil contamination at a project site is itself necessarily a significant impact requiring CEQA review and mitigation. The court also found that the site’s appearance on a list of hazardous locations merely meant it was not categorically exempt from CEQA review; it did not mean the project required an EIR.

The court did not decide whether adverse effects confined only those who build or reside in a project can ever render the effects of a physical change significant, given that CEQA generally does not regulate environmental changes that do not affect the public at large. Here, Parker Shattuck did not identify evidence sufficient to support a fair argument of significance even if there were health risks to the project’s workers and future residents. A scientific expert’s suggestion to investigate further, the court added, was not substantial evidence of an adverse impact.

Fourth District Court of Appeal Requires EIR for Upgrade of High School’s Athletic Facilities Because the Project May Cause Significant Impacts on Parking and Traffic

On April 25, 2013, the Fourth District Court of Appeal ordered publication of its decision in Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999). The appellate court reversed the trial court’s decision to reject a California Environmental Quality Act (CEQA) cause of action brought against the school district for adopting a mitigated negative declaration (MND) for a project to upgrade a high school’s athletic facilities. In particular, the court found it was improper for the district to adopt the MND because the athletic facilities project may have significant traffic and parking effects.

Around October 2010, the San Diego Unified School District completed an initial study for a project to upgrade Hoover High School’s athletic facilities, including replacement of the bleachers and installment of new field lighting at the football stadium. The district planned to use funds from a 2008 proposition that authorized the school district to sell $2.1 billion in bonds for various construction and rehabilitation projects listed or described in the proposition measure. The district adopted the initial study and an MND for the Hoover High project on January 11, 2011, and filed a notice of determination the next day. In February 2011, the plaintiff organization (“Taxpayers”) filed suit against the district, ultimately alleging four causes of action: 1) violation of CEQA, 2) misuse of proposition funds, 3) violation of the city’s zoning and land use laws, and 4) improperly exempting the project from the city’s zoning and land use laws. After the trial court dismissed all four causes of action, Taxpayers appealed.

The Fourth District started its discussion of the CEQA claim with an overview of general principles and proceeded to apply the fair argument standard in its de novo review of the issues. First, the court found the initial study’s project description was not misleading just because it did not place a limit on the number of evening events that would be held each year.  The district had estimated in the initial study that there would be about 15 evening events plus a “few more” due to unforeseen events.  The court interpreted a “few more” to mean about three or four more evening events, for a total of 15-19 evening events per year.  Since Taxpayers did not cite any statutory or other legal authority requiring the District to identify a finite limit on the number of events that could be held annually, the court found this description was accurate and complied with CEQA. It did, however, warn that additional CEQA review would be necessary if the district chose to increase the number of events beyond the 15-19 range in the future.

Next, the court found the project’s installment of lighting would not have a significant environmental effect. The court expressly noted that testimony of individual community members regarding the aesthetic or lighting effects of the project could not constitute substantial evidence showing a significant effect because CEQA is concerned with how a project will affect the environment in general, not how it will affect particular persons.  The court also agreed with the initial study’s conclusion that the vertical illuminance caused by the four new 90- or 100-foot light standards would not significantly impact nearby residences because of the lighting’s limited hours of operation, the limited number of evening events, landscaping features, and the small number (seven or less) of affected residences.

The court then dismissed Taxpayers’ argument that the project would have a significant impact on historical resources. The court found the record did not contain substantial evidence that any historical resources existed near Hoover High, nor any evidence showing that any potential historical resources may be substantially affected by the project.

Finally, the court addressed issues regarding traffic and parking impacts. As a preliminary matter, the court noted that the lack of a reasonable estimate of expected attendance at future events could make the district’s assessment of traffic and parking impacts inadequate. The court disapproved of the district’s choice to base projected attendance at future Hoover High evening football games on the average attendance of games at five other high schools in the district. The court found that the district should have calculated and considered the actual attendance at past Hoover High afternoon football games as a baseline figure for estimations of attendance at future evening games. Because the district did not have sufficient information about the estimated attendance, the court determined it could not have properly reached a conclusion about the potential significance of the project’s impacts on parking and traffic.

The court further agreed with Taxpayers that the district could not rely on San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 (SFUDP), for the argument that a parking shortage cannot constitute a significant physical impact on the environment because it is merely a “social inconvenience.” The court found the SFUDP court’s discussion of parking was likely dicta, and disagreed with any holding that parking shortages can never constitute a physical impact on the environment. The court reasoned that vehicles are “physical objects that occupy space when driven and when parked” so they “naturally must have some impact on the physical environment.” In contrast to its discussion of aesthetic and lighting impacts, the court found that personal observations by local residents about parking could constitute substantial evidence that the project may have a significant impact on parking. Similarly, the court found that comment letters from residents about the traffic impacts were sufficient to support a fair argument the project may have a significant effect on traffic. Because the project may cause significant parking and traffic effects, the court held that the district must prepare an Environmental Impact Report.

Fourth District Court of Appeal Holds a City May Adopt Revisions to Its Housing Element That Create Inconsistencies With the General Plan If the City Also Adopts a Timeline for Proposed Changes to the General Plan That Correct Those Inconsistencies

On November 1, 2012, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad (2012) __ Cal.App.4th __ (Case No. D060167), affirmed the trial court’s judgment directing the city to adopt a timeline for proposed changes to its general plan that would correct inconsistencies created by the city’s revision of its housing element. The appellate court found that Government Code section 65583 establishes an exception to the requirement that general plans be facially consistent, as long as the municipality identifies a program with a timeline for resolving any inconsistencies arising from its adoption or revision of a housing element.

Pursuant to the Housing Element Law, the California Department of Housing determines the number and type of housing units each region of the state must provide, and regional planning bodies like the San Diego Association of Governments determine what percentage of the regional allocation individual municipalities must provide. On December 22, 2009, the city council of Carlsbad adopted proposed revisions to the housing element of its general plan to comply with Government Code section 65583. The city council also certified a mitigated negative declaration (MND) because it found the revision would not have a substantial environmental impact. The city’s housing element revisions included an assessment of housing needs and an inventory of sites which could accommodate the city’s assigned share of the region’s low cost housing needs. The adopted revision also identified several amendments to the general plan’s land use element that would be necessary to permit development of affordable housing on the specified sites at higher minimum densities than permitted in the existing version of the land use element.

Friends of Aviara challenged the city’s adoption of the housing element revision, alleging the MND violated CEQA and the revision impermissibly created inconsistency in the general plan. The trial court denied the CEQA claim, but found that the revision did create an improper conflict between the housing element and the land use element of the general plan. Consequently, the trial court issued a writ of mandate directing the city to adopt a timeline for the proposed amendments to the land use elements. Friends of Aviara appealed, contending that adopting a timeline for proposed amendments was not enough to remedy the defect in the revision and that the trial court should have required the city to rescind its adoption of the revision.

The appellate court’s analysis focused on Government Code section 65583, subdivision (c)(7), which requires a housing element to include “an identification of the agencies and officials responsible for the implementation of the various actions and the means by which consistency will be achieved with other general plan elements and community goals.” (Gov. Code, § 65583, subd. (c)(7), italics added.) The court concluded that the Legislature’s use of the future tense in the statute demonstrated a “legislative preference that municipalities promptly adopt housing plans which meet their numerical housing obligations even at the cost of creating temporary inconsistency in general plans.” Therefore, the Fourth District Court of Appeal held the trial court properly required the city to adopt a timeline for the proposed amendments to the general plan’s land use element and was not required to order the city to rescind its adoption of the housing element revision to remedy the resulting inconsistencies in the general plan.

Fifth District Finds Irrigation District has Standing Under CEQA to Challenge Environmental Review Document

Consolidated Irrigation District v. City of Selma (5th Dist. Feb. 28, 2012 [modified March 9th, 2012]) __ Cal.App.4th__ (Case No. 08CECG01591)

On February 8, 2012, the Fifth Appellate District ruled that a lower court properly found an irrigation district had standing to sue under CEQA and challenge a residential development approved by the City of Selma. The court also found the administrative record provided substantial evidence supporting a fair argument that the proposed project would result in potentially adverse significant impacts, and therefore, a mitigated negative declaration was inappropriate and a full environmental impact report was required.

Factual and Procedural Background

Raven Development, Inc., proposed developing a 160-unit, single-family residential subdivision that would be annexed by the city. Water for the proposed subdivision would be provided by a private water company. The initial environmental study concluded that the project’s groundwater use would not be significant and would not interfere substantially with the recharge of the aquifer; therefore, no mitigation would be required for the project’s impacts on hydrology and water quality.

Petitioner Consolidated Irrigation District (CID) is an independent special district formed under the California Water Code. The district is located in southern Fresno County, and its boundaries enclose approximately 163,000 acres of land, the majority of which is irrigated agricultural land.  The District delivers over 200,000 acre-feet of surface water for irrigation per year. The District also operates a groundwater recharge system that includes over fifty recharge basins.

An integrated regional water management plan was completed for the Upper Kings groundwater basin. The water management plan included findings that the Kings groundwater basin was in a state of overdraft that would continue to worsen through year 2030 based on projected conditions. The findings noted that between 2005 and 2030, the groundwater levels in the District’s urban areas will decline between an estimated five and ten feet.

The city prepared a mitigated negative declaration for Raven Development’s proposed subdivision. During the public review period, the District submitted letters stating the conversion of agricultural land to urban land was having an adverse and cumulatively significant impact on the groundwater basin, and the project potentially could have cumulative hydrology impacts as well. The District asserted that a full EIR was required. Despite these concerns, the city council adopted resolutions approving the project and adopting the MND.

CID filed a petition alleging that substantial evidence supported a fair argument that the project could result in significant impacts to the environment. CID requested that the city prepare the administrative record.

The city lodged a certified administrative record. Subsequently, CID filed a statement of issues.  This included an allegation that mandatory portions of the administrative record had not been included. CID filed a motion to augment the record, claiming it did not contain four documents that CID had submitted to the city. The trial court ordered that the administrative record be augmented and ultimately found the city violated CEQA when it approved the project. The court determined that the city needed to prepare a full EIR to address the significant cumulative impacts attributable to the project, among other potential impacts. The city appealed.

The Appellate Court’s Decision

On appeal, the city argued the trial court erred when it allowed the challenged documents to be added to the administrative record.  The city asserted the documents were not presented to a city decision-making body, and therefore, were not considered during the project approval process. The city further argued that the trial court erred in determining the district had standing. Finally, the court addressed the fair argument standard as applied to MNDs and issues of credibility of evidence submitted before an agency.

Order Augmenting the Administrative Record

The parties disagreed on the appropriate standard of review to be applied to the trial court’s decision to grant the motion to augment the administrative record. The city asserted de novo review of the trial court’s decision was the appropriate standard. The city argued this review should be limited to an examination of the administrative record. CID disagreed and claimed the only issue was whether the documents had been submitted to a decision-making body prior to the final approval of the project. Therefore, the trial court’s decision to augment the record with the contested documents should be upheld under the substantial evidence standard of review.

The court of appeal noted that the parties briefed the appeal before the court published its decision in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, which addressed numerous questions related to the scope of the administrative record. Relying on Madera Oversight, the court determined Public Resources Code section 21167.6, subdivision (e), governing the contents of administrative records, is mandatory, and the requirements thereof are not committed to the discretion of a trial court. Instead, the findings of fact made by the trial court in determining whether documents are part of the record are appropriately reviewed under the substantial evidence standard.

The trial court based its decision to augment the administrative record on conflicting evidence presented by the city and district. Testimony from a district representative indicated that the documents in question had been presented to the city planning commission at a public hearing. The planning commission had failed to maintain two files in its record that it later agreed should have been included. Further, while transcripts were not available for the hearing, minutes indicated that the district submitted three documents. Testimony from the district’s representative indicated that two documents had actually been submitted to the city as a single document. The appellate court determined these facts presented substantial evidence supporting the trial court’s order to grant the motion to augment the record.

Standing of a Public Agency

The city also argued the trial court erred when it determined CID had standing to bring an action under CEQA. The city asserted the water district could not claim public interest standing to bring a citizen suit under CEQA. The city reasoned that a public agency could not qualify for public interest standing because it is a governmental body. The court declined to address this argument after finding the district adequately met the usual “beneficially interested” standing requirement under Code of Civil Procedure section 1086.

The court determined the district was “beneficially interested” after citing Water Code section 22650, which states, “A district may commence and maintain any actions and proceedings to carry out its purposes or protect its interests…”  The court determined “interests” in this section included all beneficial interests sufficient to satisfying standing requirements of Code of Civil Procedure section 1086. As a result, CID had authority under the Water Code to pursue CEQA litigation to protect its beneficial interests.

The court declined to adopt the city’s argument that a public agency only has a special interest or right, and therefore a beneficial interest, if the project affects a natural resource over which the agency has jurisdiction. The city attempted to support its argument by citing to CEQA Guidelines which limit the matters a public agency may comment on during environmental review. The court noted, however, that public agencies are authorized to submit comments to the lead agency on projects with impacts falling outside their legal jurisdiction if an affected resource is within an area of expertise of the agency. Therefore, the court concluded a public agency’s beneficial interests are not limited only to resources over which it has direct jurisdiction.

In this case, the district argued its operations, including that of numerous groundwater recharge basins, would be adversely affected by the project. The court found the operation of these recharge basins gave CID a special interest in the local groundwater. As a result, the district had a beneficial interest that could be adversely affected by the project. Therefore, the district satisfied the standing requirements necessary to file suit to enforce CEQA.

Application of the Fair Argument Standard

An agency’s decision to certify a negative or mitigated negative declaration is reviewed by courts under the fair argument test. If this test is met, then the declaration is overturned and the agency must prepare and certify an environmental impact report. A fair argument that a particular project may have a significant adverse effect on the environment must be supported by substantial evidence in the administrative record. The city argued the lead agency has discretion to determine whether evidence presented is actually substantial. The court disagreed and noted that whether an administrative record contains sufficient evidence to support a fair argument is a question of law.  Instead, the court found deference to the agency appropriate only for limited issues of credibility.

To support rejecting evidence for lack of credibility, an agency must identify that evidence with sufficient particularity to allow a reviewing court to determine if there were actually disputed issues of credibility. The court determined this was an appropriate requirement to prevent post hoc rationalization by the agency. In this case, the city could provide no citations to the administrative record showing any decision-maker questioned the credibility of any evidence presented. Therefore, court declined to defer to the city when reviewing the record to determine if it supported a fair argument that the project would cause significant adverse impacts.

Conclusion

This case further illustrates the difficulty lead agencies can face in defending MNDs. It also indicates that it is important for agencies to identify and discuss the reasons they believe presented evidence may not be credible. If an agency fails to do this, a court is likely to dismiss subsequently presented credibility challenges as simply post hoc rationalization.

In addition, an agency’s beneficial interest in CEQA proceedings extends not only to just the natural resources over which the agency has direct jurisdiction, but also those which have some relation or connection to the jurisdictional resource areas.