Tag: Program EIR

FOURTH DISTRICT UPHOLDS CITY’S APPROVAL OF AN ADDENDUM TO A PROGRAM EIR FOR A RESIDENITAL HOUSING PROJECT

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In Olen Properties Corporation v. City of Newport Beach (2023) 93 Cal.App.5th 270, the Fourth District Court of Appeal held that no new conditions existed that would trigger the need for a subsequent EIR for a residential housing project in the designated Airport Area near John Wayne Airport.

Background

The City of Newport prepared an addendum to the City’s 2006 general plan program EIR for a residential housing project. The Project is a 312-unit residential housing development on an existing surface parking lot in a mixed-use development area, located within the designated Airport Area near the John Wayne Airport. The addendum concluded that the Project’s impacts would either be the same or not substantially greater than those described by the program EIR.

Olen Properties Corporation, an owner of commercial property near the Project site, challenged the City’s approval of the Project and the addendum. The trial court rejected the petitioner’s claims and the petitioner appealed, arguing that new conditions not addressed in the program EIR required the City to prepare a subsequent EIR, rather than an addendum.

The Court of Appeal’s Decision

Land Use

The Court of Appeal rejected the petitioner’s claims that the City violated several land use policies in the City’s general plan. First, it rejected the argument that the Project was not large enough to be consistent with the 10-acre requirement for a “mixed-use residential village” because the court determined that the City properly adopted the its Planning Commission’s definition of the Project to include the surrounding business area—thus satisfying this size requirement. Second, the court rejected the argument that the Project’s “public park” did not qualify as a required “neighborhood park.” The court found this terminology distinction meaningless. Third, the court found that the Project’s irregularly shaped park satisfied the minimum dimension requirements—which the court interpreted as exceeding 150 feet in two dimensions, measured from any point within the park’s space, rather than the lesser of the park’s length or width.

Standard of Review

The court explained that the reverse substantial evidence test described in Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 applies only in limited circumstances where the initial EIR is a program EIR, and a subsequent project is proposed which is not the same or within the scope of the Project, program, or plan described in the program EIR. Otherwise, the appropriate standard is the deferential substantial evidence standard, under which the court considers whether substantial evidence supports the City’s determination that none of the conditions for requiring a subsequent or supplemental EIR under Public Resources Code section 21166 exist.

The court applied the deferential substantial evidence standard because the Project is within the scope of the projects described in the program EIR, which expressly contemplates the construction of higher density housing within the Airport Area.

Traffic

The court held that the City’s use of Level of Service instead of Vehicle Miles Traveled to analyze traffic impacts in the addendum for the Project was appropriate because the program EIR used LOS, and there is no feasible way to compare LOS with VMT. Moreover, the court explained that CEQA Guidelines section 15064.3 (the section requiring VMT to analyze traffic impacts) operates “prospectively” and subsequent changes to the guidelines are not “new information” triggering a subsequent EIR. Otherwise, the court reasoned, any changes to the CEQA Guidelines would trigger the preparation of an EIR for every project.

Hazardous Materials

The court rejected the petitioners’ argument that the proximity to a preexisting semiconductor plan would result in environmental impacts. The petitioner and the City provided conflicting expert opinions on this issue. The court concluded that because the substantial evidence standard of review applies, the City’s conclusion was supported and the petitioner’s conflicting evidence is inconsequential.

CC&Rs

The court rejected the petitioner’s claim that the Project does not comply with CC&Rs for the area because they are covenants between private parties, and there is no legal requirement for an agency to consider CC&Rs in an EIR. Moreover, the court explained that the CC&Rs predate the program EIR, and they therefore cannot constitute changes in the Project or its circumstances requiring a subsequent EIR.

Geology and Soils

The court rejected the petitioner’s claim that the Project’s geotechnical report recommendations indicated that impacts on geology and soil could be significant. The court explained that the recommendations were aimed at protecting the Project from corrosion from soil—such as by encasing metal materials in corrosion-resistant materials—and were not designed to protect the environment from the Project.

Lastly, the court concluded that the Project was not required to have a paleontologist physically present at the Project site constantly, and that the Project’s on-call paleontologist was consistent with the City’s general plan requirements.

SECOND DISTRICT UPHOLDS CITY OF POMONA’S RELIANCE ON CEQA GUIDELINES SECTION 15183 EXEMPTION FOR APPROVAL OF A ZONING OVERLAY DISTRICT ALLOWING COMMERCIAL CANNABIS ACTIVITIES

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In Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, the Second District Court of Appeal held that the City of Pomona properly relied on the exemption provided in CEQA Guidelines section 15183 when approving a zoning overlay district allowing commercial cannabis activities on specific parcels located in certain areas within the City.

Background

In the years following the 2016 voter passage of the state’s Control, Regulate and Tax Adult Use of Marijuana Act, which legalized the cultivation, manufacturing, distribution, and sale of nonmedical cannabis and cannabis products, the City of Pomona passed several ordinances in anticipation of allowing cannabis operations within City limits—(i) an ordinance implementing a cannabis business tax; (ii) an ordinance establishing a formal application process to obtain a cannabis business license; and (iii) specifically relevant to the case, an ordinance to develop a commercial cannabis permit program overlay district within existing zoning designations in the City.

To establish this overlay district, constituting a “project” under CEQA, the City underwent a multifaceted process that included the establishment of buffers from sensitive uses such as schools, conducting research and site visits to other cities with legally operating cannabis businesses, meeting with applicable state agencies and the local police department, holding a series of community meetings, and conducting a City-wide parcel-level analysis.

Based on this process, the City determined that a total of six types of commercial cannabis activity could occur with the City—(1) store front retail, (2) manufacturing, (3) cultivation (indoor), (4) testing, (5) distribution, and (6) micro-business. The City prepared a “Determination of Significance” demonstrating that the proposed land uses “are consistent with and similar to already existing land uses” in “the Pomona Zoning Ordinance and the General Plan Update.”  The City also prepared an initial draft overlay map showing 414 parcels where cannabis businesses could be established. The initial map included a parcel owned by petitioner Lucas (which he claimed to have spent two million dollars preparing for operation of a cannabis business), however, the final draft excluded this parcel.

The City then had a third-party consultant prepare a “Findings of Consistency” document, which demonstrated that the project would not “have new or increased significant environmental effects beyond those identified in the 2014 [General Plan Update] EIR” by addressing “each of the environmental issues studied in the 2014 EIR [and] comparing the effects of the proposed project to the effects of the adopted General Plan Update.”

As a result, the City determined that the project qualified for the CEQA streamlining and exemption allowable under CEQA Guidelines section 15183.

At an October 2019 Planning Commission hearing considering the project, Lucas requested that the City reconsider including his property in the overlay district. Other parties opposed the project for different reasons—the nearby cities of La Verne and Walnut requested increased buffers from their City boundaries, as they both prohibited commercial cannabis activity and, in the case of Walnut, questioned CEQA Guidelines section 15183 applicability to the project. The Planning Commission did not recommend project approval to City Council and requested changes to the project.

After the hearing, petitioner and adjacent cities (amongst other commenters) sent correspondence to the City again expressing opposition to the project and making specific requests for changes. The project was thusly amended to create a 600-foot buffer from City boundaries and further remove more than a hundred parcels, leaving 292 parcels eligible for commercial cannabis activities.

In November 2019, the Pomona City Council approved the modified project and adopted the Determination of Significance and Findings of Consistency, and concluded that the project met the requirements in CEQA Guidelines section 15183. The City then filed a Notice of Exemption with the county recorder. The Determination of Significance states that the public has ten days to appeal. No one appealed.

Lucas filed a petition for writ of mandate alleging a CEQA violation for the City’s use of the Guidelines section 15183 exemption for the project. Three weeks before the hearing on the merits, at which the trial court found against petitioner, City voters passed Measure PO, “which adopted a cannabis permit overlay identical to the Project.” A few weeks later, the City Council adopted and ratified Measure PO. Lucas appealed the trial court’s decision, but did not file an appeal or request a court-ordered stay of Measure PO.

Court of Appeal’s Decision

The court bypassed the City’s standing and exhaustion of administrative remedies claims by assuming for sake of argument Lucas prevailed on these procedural issues, and therefore only reviewed the merits of the challenge to the City’s reliance on the CEQA Guidelines section 15183 exemption. The court reviewed this claim under the substantial evidence standard, which, per prevailing caselaw, is proper where an agency determines a project’s consistency with a prior program EIR.

To use the Guideline section 15183 exemption, as noted by the court, a project must be “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified,” whereas “consistent” means “the density of the proposed project is the same or less than the standard expressed for the involved parcel in the general plan, community plan or zoning action for which an EIR has been certified, and that the project complies with the density-related standards contained in that plan or zoning.”

As to density, Lucas argued that, because the existing zoning contains no density-related standards, there was no way for the project to be deemed consistent. The court disagreed with this “literal approach” and instead concluded that the omission of the “the exact word ‘density’ or exact phrase “density-related standards’” in a zoning ordinance “does not necessarily mean that those topics were not discussed with different verbiage.” Although the court did not illuminate what verbiage in the applicable zoning ordinance might demonstrate density, it did note that the 2014 General Plan Update EIR, the project’s Determination of Similarity, and the project’s Findings of Consistency all addressed land use and/or density. And, importantly, Lucas did not file an appeal of the Determination of Similarity conclusions. Therefore, he was “foreclosed from challenging any of [its] commercial cannabis activities/land findings.”

On the need for additional environmental review, the court again rebuked Lucas’ “literal approach.” The City’s Determination of Similarity deemed the six types of proposed cannabis land uses “similar to already existing land uses, and as such…covered by the uses contemplated by the 2014 EIR and 2013 General Plan Update.” Thus, just because the 2014 General Plan Update EIR did not contain the explicit words “marijuana” or “cannabis” did not mean it did not address that land use. The court likewise denounced Lucas’ argument that the project presents “unique and peculiar impacts associated with cannabis-related business” because, as it noted, the project itself “does not guarantee anyone the automatic right to establish a cannabis-related business,” it merely “imposes an overlay use on existing zoning” that only provides an opportunity to apply for a business permit. The court again relied on the findings in the Determination of Similarity “that cannabis uses were sufficiently similar to existing uses allowed by the underlying zonig” as substantial evidence supporting the City’s determination.

Lastly, Lucas argued that the project’s impacts on “traffic, air quality, greenhouse gas emissions, land use/planning, noise, and public services” did not fall within the scope of the less-than-significant conclusions made in the 2014 General Plan Update EIR. The court addressed each impact area, ultimately concluding that substantial evidence demonstrated that the project would not generate impacts beyond those identified in the 2014 EIR, and that existing mitigation measures and uniform standards applied to the project would reduce or manage any impacts.

Notably, the court found that Lucas’ concern with cannabis cultivation odor was addressed by the City’s municipal code regulating odor control devices. It also found that cultivation-related energy use, which petitioner claimed would result in “‘extraordinary [greenhouse gas emissions] impacts,’” could be dealt with through development standards, similarly to “other uses that could be developed in the Overlay District subareas.” On noise emitted by backup generators used in cannabis operations, the court opined that “[s]urely back-up generators are also utilized by other retail stores or manufacturers in times of a power outage.” And, in response to Lucas’ claim that the project would result in a greater impact on police services than analyzed in the 2014 General Plan Update EIR, the court noted in particular that “[t]he project would not result in the need for additional police protection facilities.”

– Casey Shorrock

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

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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

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

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

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

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

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

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

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

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

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

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

Court of Appeal Holds Federal Law Does Not Preempt CEQA for High-Speed Train Project; Upholds Program EIR for Bay Area to Central Valley Route

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The Third District Court of Appeal held that the application of CEQA to the California High-Speed Train project was not preempted by federal law in Town of Atherton v. California High Speed Rail Authority (July 24, 2014, Case No. C070877). On the merits, the Court ruled in favor of the Authority on all claims, finding that the Authority’s program EIR wholly complied with CEQA.

As California’s plans for a high-speed train system have developed over the past two decades, the system’s alignment from the Central Valley to the San Francisco Bay Area became an area of contention. The particular dispute was over the Authority’s decision that trains travelling between the Central Valley and the Bay should travel through the Pacheco Pass, which turns west from between Fresno and Merced, rather than farther north at the Altamont Pass, which turns west from the Central Valley south of Stockton. According to the Authority’s corridor evaluation report, the Altamont Pass would require additional tracks to provide train service to San Jose, resulting in less frequent service to San Francisco and San Jose absent the provision of additional trains. Based upon this determination, the Authority prepared an EIR identifying the Pacheco Pass as the preferred alternative.

After a legal challenge to the initial EIR, the Authority revised its program EIR and again selected the Pacheco Pass route as the preferred alternative. The South Bay town of Atherton challenged the adequacy of the revised EIR and approval of the Pacheco Pass alternative, arguing that the program EIR violated CEQA because it (1) provided an inadequate analysis of the vertical profile options for alignment (i.e., where to elevate the track) along the San Francisco Peninsula; (2) used a flawed revenue and ridership model; and (3) had an inadequate range of alternatives because it rejected an alternative proposed by one expert consulting company.

Preemption

Prior to oral argument, the Authority asked the court to dismiss the case, contending that federal law, specifically the Interstate Commerce Commission Termination Act (ICCTA), preempted any CEQA remedy. It argued that the ICCTA created exclusive federal regulatory jurisdiction and a federal agency, the Surface Transportation Board, had recently assumed jurisdiction over the High-Speed Train. The court found it did not need to decide whether the ICCTA preempts CEQA as to the train, however, because at least one exception to preemption applied here. Under the market participation doctrine, proprietary state actions are protected from federal preemption. The court found no evidence supporting the Authority’s contention that the market participant exception could only be asserted defensively. Accordingly, the court held that CEQA applies to the project and proceeded to address petitioners’ claims on the merits.

Adequacy of the Program EIR

The court next addressed petitioners’ claims regarding the adequacy of the program EIR. The court upheld the Authority’s use of a program EIR and held that the Authority properly deferred site-specific analysis, including the vertical alignment, to a later project EIR. The court stated that the precise vertical alignment of the train at specific locations is the type of site-specific consideration that must be examined in detail in a project-level EIR. Requiring such analysis at the program level, the court reasoned, would undermine the purpose of tiering and would create a burdensome level of detail in the larger-scale program EIR.

The court also held that the challenge to the revenue and ridership modeling presented a disagreement among experts that did not make the revised final project EIR inadequate. Petitioners failed to show that the Authority’s ridership model was “clearly inadequate or unsupported,” and the modelers had followed generally accepted professional standards. Thus, substantial evidence supported use of that model.

Finally, the court held that the Authority studied an adequate range of alternatives and was not required to analyze the Altamont Pass alternative proposed by petitioners’ consulting company, given that the alternative was substantially similar to the alternatives already studied and that range of alternatives was not shown to be inadequate.

Third Appellate District Court Finds Analysis of Urban Decay and Energy Impacts in a Programmatic EIR for Commercial Development Fails to Comply with CEQA

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California Clean Energy Committee v. City of Woodland, Case No. C072033 (April 1, 2014)

Petrovich Development Company, LLC proposed to develop a 234-acre regional shopping center knows as “Gateway II” on undeveloped agricultural land located on the outskirts of the City of Woodland. After preparing a programmatic EIR, the city council reduced the size of the project to 61.3 acres and approved the project. California Clean Energy Committee (CCEC) filed a petition for writ of mandate challenging the city’s approval of the project. The trial court denied the petition.

On appeal CCEC contended (1) the trial court erred in concluding the project did not conflict with the city’s general plan, (2) the city’s mitigation measures are insufficient to ameliorate the urban decay that the project could cause, (3) the city did not give meaningful consideration to feasible project alternatives such as the mixed-use alternative, and (4) the final EIR did not properly identify and analyze potentially significant energy impacts generated by the project.

In an unpublished portion of the opinion, the court rejected CCEC’s first claim that city’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the city’s general plan policy of revitalizing its downtown. The court held the CCEC had failed to preserve this argument because its CEQA petition had failed to plead a separate violation of the Planning and Zoning Law.

With respect to CCEC’s claims regarding the City’s urban decay mitigation measures, the court agreed with CCEC that the measures were inadequate to mitigate the urban decay anticipated to result from the project. The mitigation measures the city adopted required the developer (1) to apply for a master conditional use permit subject to future evaluation and potential further environmental review and indicating a list of specific project uses that “shall primarily consist of regional retail uses that do not include entertainment uses and other uses that would compete with retail in Downtown Woodland”; (2) to submit a market study and urban decay analysis for review and approval by the city’s Community Development Department showing either that adequate retail demand exists or require additional mitigation or an alternate use; (3) to contribute funds toward the development of a “Retail Strategic Plan” to be prepared by the city; (4) to contribute funds toward the preparation of an “Implementation Strategy for the Downtown Specific Plan” to be prepared by the city; and (5) to “coordinate with the current owner of the County Fair Mall to prepare a strategic land use plan for the County Fair Mall to analyze potential viable land uses for the site.” The EIR determined, however, that even with the implementation of this mitigation, the city still anticipated the urban decay impact to be significant and unavoidable, in part because it was unknown at the time of approval what specific uses and stores could be proposed in the future in the project area.

The court found, as to the first mitigation measure, it was permissible under CEQA because it served to ensure the primary retail uses for the development will be regional and would not outright ban all retail uses that compete with the city’s downtown. The court also accepted the city’s representation that it “merely found that this measure would help, albeit not enough to avoid the significant urban decay impact identified by the EIR.” The court found, however, that the measure was inadequate, standing alone, to mitigate the potential adverse impacts of the development.

The court found that the second mitigation measure, by requiring the developer to prepare the market study, impermissibly ceded the city’s responsibility for studying an environmental impact to the developer. The court rejected CCEC’s claim that the city council erred by delegating the responsibility to implement the mitigation measure to the community development department, finding that delegation of responsibility for a monitoring program is appropriate under CEQA. Further, the court found the market study measure was inadequate because it did not commit the city to any specific mitigation action or impose any performance standards for determining whether it needed to undertake any future measures. Despite the fact that the EIR was a programmatic review which anticipated potential future environmental review for site-specific discretionary projects, the court concluded that, given the city’s recognition that the project would cause urban decay, the mitigation was required to do more than merely agree to a future study of the problem.

The court found the third and fourth mitigation measures were similarly inadequate for their failure to commit the city to any feasible or enforceable mitigation measures to ameliorate the adverse effects of the project on urban decay elsewhere in Woodland. The requirement for preparation of the Retail Strategic Plan and Implementation Strategy for a downtown specific plan appeared in the Draft EIR without further discussion or analysis. The final EIR adopted these mitigation measures without elaboration. The court explained that although mitigation fee programs may constitute adequate mitigation to address the adverse effects of a project, the mere payment of fees does not presumptively establish full mitigation for a discretionary project if there is no evidence that there is an established fee program in place. Here, the court found the city’s EIR did not adequately assess the scope of the program or fees necessary to adequately address the urban decay impacts expected to result from the project.

Finally, the court found that the fifth measure, although it purported to alleviate expected urban decay at Woodland’s County Fair Mall, required the city to take no action other than to coordinate with the current owner to prepare a plan for viable land uses at the County Fair Mall. The court found the mitigation measure does not require any action by the city to mitigate the urban decay it may discover to result for the County Fair Mall. As such, the court held this purported mitigation measure was inadequate. The court found that, though the EIR was a programmatic EIR, tiering of environmental review and deferring environmental analysis and mitigation measures to later phases would only be appropriate in cases where the impacts or mitigation measures are specific to those later phases. Here, because the EIR studied and attempted to mitigate the urban decay effects from the project as a whole, the city could not be permitted to excuse inadequate mitigation by putting off corrective action to a future date.

The court then held the city failed to comply with CEQA when it rejected the mixed-use alternative as infeasible. The Draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council’s findings rejected the alternative as environmentally inferior to the project. The court found the city had adopted a rationale for rejecting the alternative that was unsupported by the EIR analysis, which assumed certain impacts would be similar to the project impacts.

Finally, the court found the city’s treatment of energy impacts was inadequate. The court noted that the EIR’s discussion of energy lacked detail as it comprised less than one page. Furthermore, the court found the discussion inadequate as it did not provide an assessment of or mitigation for certain energy impact categories set forth in Appendix F of the CEQA Guidelines including transportation energy impacts, construction energy impacts, and renewable energy impacts. While the EIR did require the project’s compliance with the state building code and green building standards, the court found such standards alone would not adequately mitigate construction and operational energy impacts of the project.