Tag: Project objectives

Third District Holds EIR’s Project Objectives Were Too Narrow and Recirculation Was Required Due to Increase in Significant and Unavoidable GHG Emissions

In We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal. App.5th 683, the Third District Court of Appeal held that Siskiyou County’s environmental analysis of a bottling plant was deficient because the project objectives were too narrow, and because the County failed to recirculate the EIR despite a discrepancy in the estimated carbon dioxide emissions from the draft EIR to the final EIR (FEIR). Though the discrepancy did not change the EIR’s ultimate conclusions, recirculation was necessary to provide the public with meaningful opportunity to review and comment on the project’s environmental impacts. In We Advocate Through Environmental Review v. City of Mount Shasta (April 12, 2022, No. C091012) ___ Cal.App.5th___ [2022 WL 1487832], petitioners challenged city’s approval of wastewater permit for the same project.

Background

Real Party in Interest, Crystal Geyser, purchased a non-operational bottling facility in Siskiyou County in 2013, seeking to revive the plant for beverage production. To initiate the project, Crystal Geyser requested permits from the County to build a caretaker’s residence, and the City of Mount Shasta for discharging wastewater into the City’s sewer system. Both permits were approved.

We Advocate Through Environmental Review and the Winnehem Wintu Tribe sued the County alleging the EIR violated CEQA because it (1) provided an inaccurate description of the project, (2) defined the project’s objectives in an impermissibly narrow manner, (3) improperly evaluated several of the project’s impacts, and (4) approved the project though it would be inconsistent with the County’s and City’s general plans.

The trial court rejected all of petitioners’ claims. This appeal followed.

The Court of Appeal’s Decision

The Court of Appeal reversed the trial court in part, holding in the published portions of the decision that the project objectives were too narrow and that recirculation was required because the FEIR estimated that the project would generate significantly more carbon dioxide emissions than disclosed in the DEIR. The fact that the DEIR concluded that this impact was significant and unavoidable did not mean the increase in greenhouse gas emissions was “insignificant” under CEQA.

Project Objectives

The Court agreed with Appellant’s contention that the EIR defined the project objectives too narrowly, because the County defined the project objectives in a manner that precluded all alternatives other than the proposed project. For example, one objective was to “site the proposed facility at the Plant . . . to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property.” Another objective aimed to “utilize the full production capacity of the existing plant based on its current size.” According to the Court, this narrow approach was unacceptable because it transformed the alternatives section of the EIR into an “empty formality,” rather than served the purpose of enabling meaningful environmental review of a project. The Court concluded the County’s error was prejudicial because it foreclosed viable alternatives.

Climate Change Impacts Analysis

Appellants challenged the EIR’s discussion and mitigation of climate change impacts, arguing (1) the County failed to recirculate the EIR to address the discrepancy in carbon dioxide emissions estimations between the DEIR and the FEIR, (2) the County failed to analyze foreseeable emissions from “preform” bottles, and (3) the EIR’s mitigation measures were not properly amended to reflect the emissions change from the DEIR to the FEIR.

The Court agreed that the County violated CEQA by failing to recirculate the EIR after changing the greenhouse gas emissions estimate from 35,486 metric tons of carbon dioxide per year in the DEIR, to 61,281 metric tons in the FEIR. The County argued recirculation was unnecessary because the impact remained above the “significant and unavoidable” threshold in both versions of the EIR. The Court held that the estimated increase of over 25,000 metric tons of carbon dioxide per year between the versions was significant enough to require recirculation, though it did not change the EIR’s ultimate conclusions. Failing to recirculate “wrongly deprived the public of a meaningful opportunity to comment on a project’s substantial environmental impacts.”

The Court rejected Appellants’ other arguments regarding climate change impacts. On the subject of “preforms,” the Court rejected Appellants’ argument because they failed to concretely show that “each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced.” Additionally, the Court held that the mitigation measures were valid and enforceable because the County revised and reevaluated mitigation measures to reflect increased emissions in the FEIR.

— Jordan Wright

FOURTH DISTRICT UPHOLDS EIR FOR MULTI-FAMILY HOUSING PROJECT AND FINDS CITY PROPERLY USED A PLANNED DEVELOPMENT PERMIT TO ALLOW A VARIATION FROM CONVENTIONAL ZONING REGULATIONS

In Ocean Street Extension Neighborhood Association v. City of Santa Cruz (2022) 73 Cal.App.5th 985, the Fourth District Court of Appeal held that an EIR for a multi-family housing project properly relied on the biological resources analysis and mitigation measures identified in the initial study for the project, and sufficiently addressed the project objectives, alternatives, and cumulative impacts to water supply and traffic. Reversing the trial court, the Court of Appeal also held that the City complied with its municipal code by using a planned development permit as a variation from its conventional slope regulations.

Background

The proposed project consisted of a 40-unit residential complex on a vacant lot in the City of Santa Cruz. The City prepared an initial study that discussed, among other topics, biological impacts that would be reduced to less-than-significant with mitigation, and later circulated a draft EIR and recirculated draft EIR before certifying the final EIR. The City Council approved a reduced-housing alternative with 32 units.

Along with a general plan amendment, rezone, and other entitlements, the City approved a planned development permit (PDP) to allow a variation from the conventional slope regulations in the City’s zoning code.

The Ocean Street Extension Neighborhood Association (OSENA) filed a petition for writ of mandate challenging the EIR and the City’s approval of the PDP. The trial court ruled that the City complied with CEQA, but found the City violated its municipal code by not requiring compliance with the conventional slope regulations. OSENA appealed and the City and Real Parties in Interest cross-appealed.

The Court of Appeal’s Decision

CEQA and Adequacy of the EIR

Upholding the trail court’s ruling on the CEQA claims, the Court of Appeal concluded that the EIR was adequate. The court held that impacts that are less than significant with mitigation may be discussed in an initial study rather than in the EIR as long as the EIR fulfills its purpose as an informational document. The court noted that the EIR summarized the impacts and mitigation measures, and the EIR’s reference to the initial study—which was attached to the EIR as appendix—sufficiently alerted the public to the environmental issues and provided readers with adequate information. Accordingly, the court determined that it was appropriate for the EIR to rely on the biological resources analysis and mitigation measures identified in the initial study.

The court also rejected OSENA’s argument that the mitigation measures were vague and improperly deferred because OSENA failed to exhaust its administrative remedies as to this issue and did not raise it in the trial court proceedings. The court nonetheless explained that even if it considered this issue on the merits, it would reject OSENA’s arguments because the question of effectiveness of a mitigation measure is a factual one, which, in this case, was supported by substantial evidence in the record.

The court further concluded that the project’s objectives and alternatives analyses were adequate, and that OSENA’s arguments amounted to mere disagreement with the City’s conclusions. The court explained that rejecting or approving an alternative is a decision only for the decisionmakers, and they may reject alternatives that are undesirable for policy reasons or fail to meet project objectives. While the project objectives included specific targets, those objectives did not improperly restrict the range of alternatives analyzed in the EIR, and the City justified its reasons for rejecting alternatives with even less housing than the 32-unit alternative.

Additionally, the court determined that the EIR sufficiently analyzed the project’s cumulative impacts on water supply and traffic. Regarding water supply, the court explained that the EIR’s analysis properly considered the water supply impact in light of city-wide needs and future demand, and properly relied on the City’s Urban Water Management Plan. Regarding traffic, the court held that OSENA’s arguments challenging the EIR’s analysis of LOS impacts were moot because CEQA Guidelines section 15064.3, which took effect after the case was initiated, provides that a project’s effects on automobile delay shall not constitute a significant environmental impact.

Therefore, the Court affirmed the portion of the trial court’s order and judgment concluding that the City complied with CEQA.

Santa Cruz Municipal Code

Reversing the trial court’s ruling on OSENA’s municipal code claims, the Court of Appeal held that the City did not violate its municipal code by granting a PDP without also requiring compliance with the conventional slope modification regulation procedures in its zoning code. The City’s PDP ordinance allows a variation from certain zoning regulations including “Slope Regulations Modifications, pursuant to procedures set forth in Chapter 24.08, Part 9 (Slope Regulations Modifications).” Rejecting OSENA’s claim that the City was required to comply with the conventional regulations in Chapter 24.08, Part 9, in addition to the requirements for a PDP, the court explained that the City should be afforded deference in the interpretation of its own municipal code. The court upheld the City’s determination that the granting of a PDP does not require compliance with the conventional slope regulations, as this interpretation was consistent with the text and purpose of the ordinance and interpreting the PDP ordinance as requiring compliance with both the PDP ordinance and the slope regulations would have served no readily apparent purpose.

RMM Partners Christopher L. Stiles and Tiffany K. Wright represented the Real Parties in Interest in this case.  Chris Stiles argued the case in Court of Appeal on behalf of the City and Real Parties.

-Veronika S. Morrison

Court Rejects EIR for Pest Program, Finding Objectives Too Narrowly Defined, and Thus No Reasonable Range of Alternatives

The Third District Court of Appeal reversed the decision of the trial court and held that a programmatic EIR for a seven-year program to control an invasive pest violated CEQA. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. The draft EIR evaluated eradication of the light brown apple moth, but the California Department of Food and Agriculture adopted a program to control the moth due to intervening spread of the moth and ultimate infeasibility of eradication. The court held that even before new information on feasibility of eradication came to light, the EIR contained an impermissibly narrow project objective, resulting in omitted analysis of pest control as an alternative to eradication.

The light brown apple moth is native to Australia and was introduced to California in 2007. Its traits of eating plant leaves and buds, adapting to new plants, and multiplying rapidly posed a significant danger to California ecology and agriculture, including potential extinction of sensitive species. This threat prompted the CDFA to prepare an EIR for a moth eradication program.

The draft EIR included five “alternatives” to the program, which the court determined were not true alternatives, but were instead tools to achieve eradication. The tools focused on disrupting mating patterns and introducing pesticides and natural predators. The draft EIR did not evaluate control as an alternative to eradication, and stated that the two mechanisms were fundamentally different because eradication had an end date, but control could potentially continue forever. Although the certified final EIR was for the eradication program, the adopted findings evaluated a seven-year control program. The program’s objective was also changed from eradication to protecting food supply and California’s agricultural economy.

The court held that even without this last-minute change from eradication to control, the EIR violated CEQA because the EIR failed to analyze pest control as a reasonable alternative to the eradication program. The process of selecting alternatives, it stated, begins with the establishment of project objectives, and the project’s artificially narrow objective of eradication precluded evaluation of alternatives that might have lesser environmental effects. Rather, protection of plants and crops were “clearly” the objectives and underlying purpose of the eradication program. The revised objectives in the final EIR underscored this conclusion.

The EIR’s failure to analyze the alternative “infected the entire EIR insofar as it dismissed out of hand anything that would not achieve complete eradication” of the moth. Though the department claimed the approved control program was narrower (less intensive) than the eradication program, and therefore fit within that program, the failure to analyze the control program in the EIR left the department unable to support this assertion with substantial evidence. The court held the final EIR’s selection of an alternative not analyzed in the EIR was prejudicial error.

The court continued with petitioners’ other contentions despite having already found reversible error. The court held petitioners’ claims of insufficiency of the evidence did not constitute a separate grounds for reversal of the judgment, and petitioners failed to show reversible error regarding the “No-Program” alternative or the EIR’s impact analyses. The court did not address the cumulative impacts contentions, finding that the reversible error necessitated a new cumulative impacts discussion.

Sixth District Court of Appeal Finds Inadequate EIR’s Description of Project Objectives and Analysis of Alternatives for Amendment to Sphere of Influence

On November 27, 2012, the Sixth District Court of Appeal in Habitat and Watershed Caretakers v. City of Santa Cruz (2012) __Cal.App.4th __ (Case No. H037545) reversed a trial court’s judgment and directed the City of Santa Cruz to vacate certification of a final EIR for a project to amend the city’s sphere of influence. 

In 2006, the Regents of the University of California (the Regents) adopted a 2005 Long Range Development Plan (LRDP) for the University of California, Santa Cruz (UCSC). The LRDP contemplated the development of the north campus, which was not within the City of Santa Cruz’s (City) territorial boundaries or sphere of influence. The City and other parties brought a CEQA action against the Regents challenging their certification of an EIR for the LRDP, but the parties to the litigation entered into a comprehensive settlement agreement in August 2008.

In October 2008, the City applied to the Local Area Formation Commission (LAFCO) for a sphere of influence (SOI) amendment to include within the SOI the undeveloped north campus portion of UCSC. At the same time, the Regents applied for provision of extraterritorial water and sewer services. The City prepared an EIR for the project of amending its SOI while the applications were pending before LAFCO.

In August 2010, the City certified the final EIR and Habitat filed a petition challenging the certification. The trial court denied the petition, and Habitat appealed.

Assessment of Impacts

i.     Water Supply

The appellate court first turned to the issue of water supply and noted that the draft EIR extensively described the City’s water supply situation. The City had previously considered various strategies for addressing water supply, including conservation, curtailment of use during shortage, and construction of a desalination facility. Ultimately, the draft EIR determined that the City had sufficient supply to serve the project in normal years but would have a water supply shortfall during dry years regardless of growth rate and even without the project’s increased water demand.

Habitat claimed the draft EIR failed to demonstrate that the water required for the development of north campus was available and failed to discuss the environmental consequences of proceeding with the project without adequate water supplies. Citing Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, the court established that an EIR is not required to establish a likely source of water and instead may address reasonably foreseeable impacts of supplying water to the project, acknowledge the degree of uncertainty involved, discuss reasonably foreseeable alternatives, and disclose significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact. The draft EIR disclosed and discussed these issues, therefore the court found the EIR’s discussion of water supply was adequate.

ii.   Watershed Resources

Habitat asserted that the draft EIR failed to discuss the impact of development of the north campus on erosion in the Cave Gulch watershed. In particular, Habitat argued the final EIR’s reference to a storm water management plan was improper because the plan itself was not included in the final EIR. The appellate court disagreed, noting the draft EIR discussed, described, referenced, and incorporated analysis and mitigation measures discussed in the LRDP EIR. In addition, the final EIR described and referenced relevant portions of the storm water management plan. The court found this approach was proper and did not deprive decision makers of necessary information.

Habitat also argued the draft EIR was inadequate because the City failed to delineate wetlands. The draft EIR explained that the LRDP EIR’s mitigation measures required predevelopment delineation of wetlands. The draft EIR concluded that delineation was not initially required because wetland resources are dynamic and their precise boundaries are likely to change over the 15-year term of the 2005 LRDP. Since the EIR recognized the existence of wetlands and contained protective mitigation measures, the court found wetland delineation was appropriately deferred to project-level environmental review for future individual projects in the north campus.

iii.  Biological Resources

Habitat also argued the EIR was inadequate because the City did not perform necessary studies and analysis to show that future changes in the City’s water supply would not significantly harm biological resources. The appellate court determined this argument failed because the City did not propose to increase its water supply by drawing more water from its existing sources in order to meet water demand from North Campus. Instead, the City proposed to meet the campus needs through conservation, curtailment and possible construction of a desalination facility. The court found the EIR did not need to analyze impacts from the City’s current water usage from existing sources because they are not impacts of the project and would occur even without the project.

Description of the Project and its Objectives

Habitat argued that the draft EIR’s description of the project’s primary objective were incorrect because the draft EIR stated the comprehensive settlement agreement required the City to provide water and sewer services to the north campus when the agreement actually required the City only to initiate a LAFCO application for an amended SOI.

The appellate court first noted the comprehensive settlement agreement did not leave the City with any discretion because it obligated the City to provide water service if LAFCO approved the City’s SOI application and the Regents’ application. Thus, the court found the purpose of the final EIR was to provide LAFCO with information about the environmental consequences of their decision.

Finally, the court agreed with Habitat, finding the statements of the project’s objectives in the EIR failed to describe the purpose of the project and only described the nature of the project. Given the misstated project objectives, the court next considered whether these misstatements skewed the consideration of alternatives and mitigations.

Range of Alternatives

Habitat argued the EIR’s discussion of alternatives was inadequate because it failed to consider any alternatives that would avoid some of the significant environmental impacts of the project. Habitat argued analysis of a reduced-development alternative or a limited-water alternative was required. The court agreed, holding that consideration of the proposed alternatives could not be eliminated solely because they would “impede to some extent the attainment of the project’s true objectives.” Because the EIR failed to discuss any feasible alternative, the court determined it did not comply with CEQA.

Mitigations

Finally, Habitat argued that the EIR failed to provide specific, certain, and enforceable mitigation measures for the Project’s significant and unavoidable impacts on water supply. The appellate court disagreed. The draft EIR incorporated numerous mitigation measures from the LRDP EIR. In addition, the comprehensive settlement agreement required the Regents to implement a group of high priority conservation measures which the appellate court determined were specific and certain. The court found it sufficient that these mitigation measures addressed the impacts of the project on the City’s water supply; it rejected Habitat’s argument that the mitigation measures were required to address the City’s overall water supply shortfall. [RMM Counsel of Record: James G. Moose, Sabrina V. Teller, Jeannie Lee]