Tag: Recirculation

THIRD DISTRICT PARTIALLY AFFIRMS JUDGMENTS SETTING ASIDE EIR FOR SPECIFIC PLAN LAND SWAP IN EASTERN PLACER COUNTY

In a 123-page decision, League to Save Lake Tahoe Mountain Area Preservation Foundation et al. v. County of Placer (2022) __ Cal.App.5th __, the Third District partially affirmed the trial court’s judgment in two cases granting a petition for writ of mandate, finding that the EIR for the Martis Valley West Parcel Specific Plan (Project) failed to adequately describe the environmental setting of Lake Tahoe regarding water quality, failed to adequately analyze impacts to Lake Tahoe water quality resulting from automobile trips, impermissibly deferred the formulation of mitigation for GHG impacts, failed to analyze proposed mitigation for the Project’s significant and unavoidable traffic impacts on SR 267, and failed to analyze whether renewable energy features could be incorporated into the Project. The Court of Appeal upheld the EIR’s analysis of impacts to forest resources and air quality, including the County’s reliance on the Placer County Air Pollution Control District’s (PCAPCD) thresholds of significance. The court also upheld the County’s decision not to recirculate the Draft EIR and to immediately rezone the subject property out of Timberland Productivity Zone (TPZ). Lastly, the Court of Appeal reversed the trial court’s decision that the EIR did not adequately analyze emergency evacuation impacts.

Background

Real Party in Interest, Sierra Pacific Industries (SPI), owns two undeveloped parcels on either side of SR 267, between Truckee and Lake Tahoe. The West Parcel is southeast of the Northstar Resort and has 1,052 acres. The East Parcel has 6,376 acres.  The existing zoning and land use designation in the Martis Valley Community Plan (MVCP) allows up to 1,360 residential units and 6.6 acres of commercial uses in a 670-acre area of the larger east parcel. Otherwise, both parcels are zoned TPZ and designated as forest in the MVCP. Starting in 2013, SPI and its partners (collectively, Real Parties in Interest or RPI) proposed that the County adopt a specific plan for the two parcels that would amend the MVCP and zoning to move the residential and commercial uses from the East Parcel to the West Parcel, reduce the residential capacity from 1,360 units to 760 units, immediately rezone 662 acres on the West Parcel out of TPZ, and rezone the entire East Parcel as TPZ. Following adoption of the specific plan, the applicants would sell the East Parcel for conservation purposes or place the land in a conservation easement. The effect of the land swap would be to allow development on the West Parcel, adjacent to Northstar and existing residential development, while permanently conserving all 6,376 acres of the East Parcel, connecting some 50,000 acres of open space east of SR 267. Two small areas of both parcels are within the Lake Tahoe Basin, and thus subject to the jurisdiction of the Tahoe Regional Planning Agency (TRPA), but neither area would be included in the specific plan.

The County circulated a draft EIR for the Project in 2015. In 2016, the County certified the final EIR, immediately rezoned the 662-acre project area of the West Parcel out of TPZ, rezoned the East Parcel to TPZ, and adopted the specific plan.

Sierra Watch, Mountain Area Preservation, and the League to Save Lake Tahoe (collectively, Sierra Watch) filed a lawsuit challenging the EIR and the County’s finding that immediately rezoning the project area on the West Parcel was consistent with the purposes of the Timberland Productivity Act (TPA). The California Clean Energy Committee (CCEC) filed a separate petition, also challenging the EIR. The trial court issued judgments in April and June 2018, rejecting all the challenges to the EIR, with the exception of the EIR’s analysis of impacts to emergency evacuations, and upholding the County’s findings on the immediate rezone out of TPZ. Sierra Watch and CCEC filed separate appeals, and the County and RPI cross-appealed on the emergency evacuation issue.

Court of Appeal’s Decision

On appeal, Sierra Watch argued that the EIR failed to adequately describe the Lake Tahoe Basin’s existing air and water quality, that the County should have adopted the TRPA’s threshold of significance for vehicle miles traveled (VMT) with respect to basin air and water quality, and that the EIR failed to adequately analyze the impacts of project traffic on air and water quality in the basin. Sierra Watch also challenged the County’s decision not to recirculate the EIR following changes to the analysis of GHG impacts, and argued that the adopted GHG mitigation measure was invalid. Lastly, Sierra Watch argued that the County violated the TPA by failing to make required findings. In their cross-appeal, the County and RPI argued that the EIR’s analysis of impacts to emergency evacuations was adequate, and that substantial evidence supported the EIR’s conclusion that the impacts would be less than significant.

CCEC’s appeal argued that the EIR did not adequately describe existing forest resources or analyze cumulative impacts to forest resources, failed to analyze feasible traffic mitigation measures proposed in comments, failed to disclose significant impacts from widening SR 267, and failed to discuss the use of renewable energy sources to meet Project energy demand. CCEC also argued that the adopted GHG mitigation measure was infeasible and unenforceable.

Lake Tahoe

The Court of Appeal found the County was not legally required to use TRPA’s thresholds of significance for measuring the Project’s impacts because, although the two parcels did include land within TRPA’s jurisdiction, the Project was revised to not include those areas. Instead, the County, as the lead agency, had discretion to rely on TRPA’s thresholds or those of another agency, or use their own thresholds, including thresholds unique to the Project. The court also concluded that, while TRPA had “jurisdiction by law” over resources that could be affected by the Project, and was thus, a “Trustee agency” under CEQA, they were not a “Responsible agency” because they had no permitting authority over the Project.
The court also found that the County did not abuse its discretion in adopting the PCAPCD’s thresholds of significance for the project’s air emissions impacts because, contrary to Sierra Watch’s claims, the PCAPCD’s significance thresholds were adopted to address air and water quality (resulting from air emissions) within the Tahoe Basin. However, the EIR failed to adequately describe the existing water quality of Lake Tahoe, which could be impacted by “crushed abrasives and sediment” from project traffic within the basin. According top the court, the EIR did not include a threshold of significance (though several were discussed in post-EIR responses to comments) for such impacts, even though there was substantial evidence that the project-generated traffic would travel within the basin, which the court found to be an abuse of discretion.

Recirculation

Sierra Watch argued that the revisions to the draft EIR’s GHG analysis included in the Final EIR triggered the need to recirculate. The draft EIR included a tiered analysis of GHG impacts. First, annual Project GHG emissions were calculated and compared to PCAPCD’s numeric threshold of 1,100 MTC2E for residential development. Second, although the draft EIR acknowledged that little, if any, of the Project would be constructed by 2020, the EIR compared a completed Project in 2020 with the GHG reduction measures, including those required by law, in place with a “no action” or “business as usual” scenario to determine the Project’s GHG efficiency, pursuant to the California Air Resources Board’s revised Scoping Plan. The draft EIR concluded that, because the Project would generate GHG emissions substantially greater than the numeric threshold, and because it was uncertain what regulatory GHG measures would be in place after 2020, when the Project was likely to begin operating, the impact was significant and unavoidable.

Before the final EIR was published, however, the California Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204 (Newhall Ranch). Newhall Ranch ruled that an efficiency metric comparing a proposed project to a hypothetical “business as usual” scenario was a permissible way to analyze GHG impacts, but the Scoping Plan’s statewide efficiency threshold required additional evidence and analysis to apply to individual projects, and the EIR in that case did not include the required connection. In response to Newhall Ranch, the final EIR dropped the efficiency analysis, but affirmed the draft EIR’s conclusion that impacts would be significant and unavoidable because the Project would generate emissions exceeding the numeric threshold, and because of the uncertainty around future regulatory GHG reduction measures. The County concluded that, because the significance conclusion did not change, recirculation was not required. The Court agreed recirculation was not required because the final EIR did not show new or substantially more significant effects, and merely clarified or amplified the information provided in the draft EIR.

GHG Mitigation

The court agreed with the appellants that the GHG mitigation measure impermissibly deferred determining the significance of GHG impacts, because the measure required future tentative maps to establish consistency with future efficiency targets adopted in compliance with the Newhall Ranch decision, even though the EIR acknowledged that no such targets existed and may not ever exist. The measure provided a suite of proposed mitigation tools that future maps could use to meet the efficiency targets. The court reasoned that, if no efficiency target consistent with Newhall Ranch became available, mitigation would never be triggered. RPI and the County argued that, if no efficiency targets were available, the 1,100 MTC2E threshold would apply to future maps, but the court found that the language of the measure itself did not include the numeric threshold.

Emergency Evacuations

The court agreed with the County and RPI that the EIR’s analysis of impacts to emergency evacuation plans was adequate and the EIR’s conclusion that impacts would be less than significant was supported by substantial evidence. The court upheld the EIR’s reliance on the questions in Appendix G to the CEQA Guidelines to set a threshold of significance. The EIR acknowledged that adding people and development to the area could exacerbate cumulative impacts to evacuation but concluded that the impact was less than significant because the project would not cut off or modify any evacuation routes and would not prevent an evacuation from occurring or otherwise interfere with the implementation of the County’s evacuation plans. The court found that the conclusion was supported by substantial evidence, including the EIR’s analysis of how long it would take to evacuate the project site, the number of emergency access/evacuation roads included in the project, the requirement that RPI develop a “shelter in place” feature, and the analysis of impacts to fire department response times.

The court acknowledged that evacuation planning involved multiple unknown factors and a host of potential circumstances which made it difficult to predict how an evacuation might play out or how a project could impact such an evacuation. The court reasoned that because the County had discretion as the lead agency to decide how to analyze an impact, the court would defer to the County’s methodology decision provided it was reasonable and supported by substantial evidence. The court found that it was. The court concluded that many of Sierra Watch’s challenges to the EIR’s analysis amounted to requests for further analysis, additional modeling, and speculative hypothetical scenarios. The court cited Guidelines sections 15145 and 15151 for the propositions that the EIR need not speculate and need not be exhaustive. While some of the evidence, relating to fire prevention and fire department response times, did not directly relate to emergency evacuation planning, the evidence indirectly supported the County’s conclusions by demonstrating that the project was reducing the likelihood of wildfire on the site and reducing the need for an evacuation.

Sierra Watch also argued that the EIR was internally inconsistent because the traffic analysis reached the opposite conclusion of the emergency evacuation analysis regarding project traffic on SR 267. The court found that the EIR’s conclusion that project generated traffic would have a significant impact on vehicle delay was not inconsistent with the conclusion that project generated traffic would not substantially interfere with emergency evacuation plans. The court reasoned that the two analyses focused on different types of impacts, with time (as measured by vehicle delay) being the focus of the traffic analysis and public safety being the focus of the emergency evacuation analysis.

Forest Resources

The court upheld the EIR’s conclusions that cumulative impacts to forest resources were less than significant. The EIR discussed the County’s 1994 General Plan EIR’s analysis of impacts to forest resources based on projected growth and development in the County and concluded that the Project’s impacts were consistent with and would not exceed the impacts disclosed in 1994 General Plan EIR. The Final EIR concluded that analyzing climate-related forest impacts, such as drought, wildfire, and tree mortality cause by bark beetles, would be speculative, and the court agreed. The court concluded that climate-driven tree mortality was not within the scope of a CEQA cumulative impacts analysis, which required the County to analyze impacts from the Project combined with past, present, and reasonably foreseeable future projects. Tree mortality is not a “project” under CEQA. The court acknowledged that climate-caused tree mortality could be exacerbated by a project, but such impacts would be best analyzed as part of the climate change and GHG analysis. The court concluded that aspect of the GHG analysis was not challenged in this case.

Traffic Mitigation

The EIR concluded that the Project’s traffic impacts on SR 267, measured in terms of delay and using the level of service (LOS) metric, would be significant and unavoidable. The EIR reached this conclusion in part because while the California Department of Transportation had plans to widen SR 267 from two to four lanes, the plan did not cover the portion of SR 267 within the Tahoe Basin, and it was uncertain when the widening would occur. Several commenters suggested that the EIR analyze transportation demand management (TDM) options to reduce traffic on SR 267. The EIR included similar measures for the Project’s impact on public transit but did not analyze whether TDM measures could further reduce the significant traffic impacts. The court, without acknowledging previous rulings by the Third District Court of Appeal finding LOS impacts to be moot given the Legislature’s directive that vehicle delay is not a significant environmental impact, ruled that the EIR failed to analyze facially feasible mitigation proposed in comments and therefore violated CEQA. The Court also found that, while the EIR did not analyze the impacts of widening SR 267, that lack of analysis was not prejudicial error because widening SR 267 was previously approved by the County in the MVCP, which concluded at the time that impacts of such a project would be analyzed in a separate EIR once the improvements were designed.

Energy Resources

Lastly, the court found fault in the EIR’s analysis of impacts to energy resources. The EIR concluded that the Project’s energy consumption impacts would be less than significant because the Project would not result in “wasteful, inefficient, or unnecessary use of energy, or wasteful use of energy resources.” The court, however, ruled that the EIR was required to analyze the Project’s potential use of renewable energy both in determining whether the Project may have a significant impact and how to mitigate that impact. Citing California Clean Energy Com. v. City of Woodland (2014) 225 Cal.App.4th 173, 209, the court concluded that the requirement to analyze renewable energy as part of a project’s impact analysis was a procedural requirement of CEQA, which the EIR failed to comply with.

– Nathan George

*RMM Attorneys Whit Manley, Chip Wilkins, and Nate George served as counsel to Real Parties in Interest in the above litigation.

FOURTH DISTRICT UPHOLDS EIR FOR ROADWAY CONNECTION PROJECT AND HOLDS CITY’S QUASI-LEGISLATIVE APPROVALS WERE NOT SUBJECT TO PROCEDURAL DUE PROCESS REQUIREMENTS

In Save Civita Because Sudberry Won’t v. City of San Diego (2021) 72 Cal.App.5th 957, a partially published opinion, the Fourth District Court of Appeal held that the City of San Diego did not violate CEQA by failing to summarize revisions made in its recirculated draft EIR, and that the City’s certification of the Final EIR and approval of the project were quasi-legislative acts not subject to procedural due process requirements.

Background

In 2008, as part of an alternative to a proposed mixed-use development project, the City of San Diego proposed a four-lane major roadway in Mission Valley that would directly connect the development to local roadways. This connector roadway required an amendment to the Serra Mesa Community Plan (SMCP) and the City’s General Plan.

In April 2016, the City issued examined this connector roadway as its own project and prepared a programmatic draft EIR (PDEIR) for the SMCP and General Plan amendments. In March 2017, when roadway construction became foreseeable and upon a large volume of public comment, the City issued a revised and recirculated draft EIR (RE-DEIR) that looked at both the programmatic portion of the project, the adoption of amendments, as well as the actual construction of the roadway. In August 2017, the City issued the Final EIR for the project. Also in August 2017, the Planning Commission voted unanimously, with one member recusing, to recommend approval of the project and certification of the FEIR, with the City Council’s Smart Growth & Land Use Committee voting the same a month later. The City Council certified the Final EIR and approved the project in October 2017.

Save Civita Because Sudberry Won’t (Save Civita) filed a petition for writ of mandate and complaint for declaratory and injunctive relief challenging the City’s certification of the Final EIR and approval of the project on several grounds, namely here that it violated the requirement in CEQA Guidelines section 15088.5, subdivision (g) that a recirculated EIR summarize the revisions made to the prior EIR, and also that it violated procedural due process rights. The trial court denied the petition and complaint. Save Civita appealed.

The Court of Appeal’s Decision

Save Civita argued that the City violated CEQA Guidelines section 15088.5, subdivision (g), because it failed to summarize the changes in the RE-DEIR from the PDEIR, thereby forcing readers to “‘leaf through thousands of pages,’” and cause them “‘to have the mistaken belief’” that the two EIRs address the same project. The Court of Appeal disagreed, holding that statements in the RE-DEIR adequately summarized the changes to the PDEIR, and that these summary provisions informed the public that the revisions to the PDEIR were extensive and the PDEIR had been effectively “replaced” by the RE-DEIR. To make its determination, the court also looked to section 15088.5, subdivision (f), which requires that an agency inform the public that, when an EIR is so substantially revised that the document is recirculated, then comments on the prior EIR will not receive a response. The City fulfilled this criteria.

Furthermore, the court concluded that even if the City had failed to comply with the summation requirements of section 15088.5, any such failure was not prejudicial because it did not deprive the public of a meaningful opportunity to discuss and critique the project. Specifically, the court noted that the administrative record contained “ample and vigorous” public discussion of the RE-DEIR, proof that there were not fatal obstacles to public discourse created by any absence of a revision summary.

Save Civita also argued that the City’s certification of the Final EIR and project approval violated the public’s procedural right to due process and a fair hearing because a member of the City Council, who voted to approve the project was, according to Save Civita, “‘a cheerleader for the Project’” who had predetermined his vote. The court foreclosed this claim by explaining that procedural due process requirements are applicable only to quasi-adjudicatory hearings. Here, the City’s actions were quasi-legislative because they involved the adoption of generally applicable rules on the basis of broad public policy. The project approved by the City and analyzed in its EIR—construction of the roadway and amendment of planning documents—were, as the court determined, matters of public policy that required it to assess a broad spectrum of community costs and benefits. Therefore, procedural due process did not apply.

– Veronika S. Morrison

Fourth District Court of Appeal Upholds Reliance on Mitigated Negative Declaration and Approval of Construction of School

The Fourth District Court of Appeal upheld the trial court’s decision denying a challenge to the City of San Diego’s approval of construction of a secondary school and associated adoption of a mitigated negative declaration. (Clews Land and Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.)

The City of San Diego adopted an MND and approved a project to build the 5,340-square-foot Cal Coast Academy, a for-profit secondary school, on property adjacent to the plaintiffs’ (Clews Land and Livestock, LLC, et al. [“CLL”]) commercial horse ranch and equestrian facility. CLL filed a petition for writ of mandate and complaint alleging the project would cause significant environmental impacts relating to fire hazards, traffic and transportation, noise, recreation, and historical resources. CLL also argued that CEQA required recirculation of the MND, that the project was inconsistent with the applicable community land use plan, and that the City did not follow historical resource provisions of the San Diego Municipal Code. The trial court determined that CLL had failed to exhaust its administrative remedies, and ruled in favor of the City on the merits. CLL appealed and the Court of Appeal upheld the trial court’s determinations.

Exhaustion of Administrative Remedies

The court first held that CLL failed to exhaust its administrative remedies. The San Diego Municipal Code appeal process provides for two separate procedures—one for appeal of a hearing officer’s decision to the Planning Commission, and one for appeal of an environmental determination to the City Council. Because CLL filed only an appeal of the hearing officer’s decision, the court determined that CLL failed to exhaust its administrative remedies with respect to adoption of the MND. CLL argued that the City’s bifurcated appeal process violated CEQA, but the court found the process was valid. CLL also argued that the City had not provided proper notice of the appeal procedures under Public Resources Code section 21177, subdivision (a), thereby excusing CLL’s failure to appeal the environmental determination. The court explained, however, that section 21177 did not apply because CLL’s failure to appeal was not a failure to raise a noncompliance issue under that section. Where, like here, a public agency has accurately provided notice of a public hearing, but it misstates the applicable procedures to appeal the decision made at that hearing, the only available remedy is to prevent the public agency from invoking an administrative exhaustion defense through equitable estoppel. CLL had pursued a claim for equitable estoppel in the trial court and was unsuccessful, and CLL did not challenge that determination with the Court of Appeal. Therefore, the court found, CLL’s failure to exhaust could not be excused on an equitable estoppel basis.

Adoption of the MND

Notwithstanding its determination that CLL failed to exhaust its administrative remedies, the court also considered the merits of CLL’s claims. The court determined that CLL did not make a showing that substantial evidence supported a fair argument that the project may have a significant effect on the environment. In making its determination, the court emphasized that the project is “relatively modest” and located on already-developed land.

CLL argued that the City was required to prepare an EIR due to potentially significant impacts on fire hazards, traffic and transportation, noise, recreation, and historical resources. The court rejected each of CLL’s arguments. In part, the court was unpersuaded by CLL’s expert’s comments because they were “general” and did not have a specific nexus with the project, they focused on the effects of the environment on the students and faculty at the school rather than on the effects of the school on the environment, and they were conclusory and speculative. In addition, quoting Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 684, the court noted that “dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence.” The court also found that a possibility that noise from the project would impact the adjacent business’s operations was insufficient to require an EIR under CEQA. The court explained that the question is not whether the project would affect particular persons, but whether the project would affect the environment in general. In addition, the court explained that the fact that a project may affect another business’s economic viability is not an effect that must be analyzed under CEQA unless the project may result in a change in the physical environment, such as by causing urban decay.

Recirculation of MND

CLL argued that by adding a shuttle bus plan and describing the school’s intent to close on red flag fire warning days after circulation of the MND, the City substantially revised the MND and was required to recirculate the draft prior to certification. The court rejected these contentions, explaining that the added plans were purely voluntary, and thus could not constitute mitigation measures. In addition, the court explained, CLL did not show that the plans were added to the project to reduce significant effects on the environment. According to the court, all revisions to the MND were clarifying and amplifying in nature and did not make substantial revisions to the project, and therefore, did not warrant recirculation.

Historical Resource Regulations

CLL argued that City did not follow its historical resource regulations and guidelines. The court explained that the City relied on an exemption contained within the regulations, but CLL did not address the substance of that exemption, nor did CLL show that the City was actually required to apply the specific procedures contained in the regulations. Instead, CLL simply critiqued the City’s reliance on the exemption as a post hoc rationalization; the court found this was not enough to meet CLL’s burden to show failure on the part of the City.

Consistency with Neighborhood Plan

CLL argued that the project conflicted with the Carmel Valley Neighborhood 8 Precise Plan because the plan designates the site as open space. CLL’s argument was two-fold. First, CLL argued the site could not be developed because of the plan’s open space designation. Second, CLL argued the plan’s designation was in conflict with the multifamily residential zoning at the project site.

With respect to the plan’s open space designation, the court held that CLL failed to meet its burden to show that the City’s consistency finding was an abuse of discretion. The court explained that the standard is whether no reasonable person could have reached the conclusion made by the City. In making its determination, the City relied on the fact that the property was already developed—the school would be sited at the location of a previously-capped swimming pool, and the project would not impact or be developed on undisturbed open space. The court found that the City’s determination was reasonable, and that CLL did not address the City’s reasoning or explain how the City abused its discretion. With respect to the site’s zoning, the court explained that consistency of the zoning ordinance with the plan was not at issue—instead, the issue was whether the project is consistent with the Precise Plan’s open space designation.

The court affirmed the judgment of the lower court and upheld the City’s determinations regarding the project and the associated MND.

Elizabeth Pollock

First Circuit Finds Environmental Review Under Certified Regulatory Program Inadequate

In Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 16 Cal.App.5th 224 (republished as modified) the First Appellate District reversed the Alameda Superior Court and found that environmental documents prepared by the California Department of Pesticide Regulation, regarding amended labelling for two pesticides, inadequately analyzed potential impacts on honeybees. The court held that the Department was required to analyze the environmental baseline, alternatives, and cumulative impacts in documents promulgated under CEQA’s exemption for certified regulatory programs (CRP).

The Department of Pesticide Regulation registers all pesticides in California, after evaluating their efficiency and potential for impacts to human health and the environment. The Department has a continuing obligation to reevaluate pesticides, and may cancel a prior registration. Since 2006, there has been a documented widespread collapse of honey bee colonies in the United States. One suspected factor is exposure to pesticides such as dinotefuran, the active ingredient in pesticides sold by the real parties. For this reason, in 2009, the Department initiated the still-ongoing process of reevaluating dinotefuran’s registration. Simultaneously, in 2014, the Department issued public reports for a proposal to amend labels for pesticides containing dinotefuron. The amended labels would allow the pesticides to be used on fruit trees, and in increased quantities. The reports concluded that the use of each pesticide in a manner consistent with the new labels would have no direct or indirect significant adverse environmental impacts, and therefore the Department did not propose alternatives or mitigation measures. The Department issued a final approval of the label amendments in June 2014. Pesticide Action Network filed a petition for writ of mandate in Alameda Superior Court and after a lower court finding for the Department, this appeal followed.

The Department’s pesticide program falls under the CEQA section 21080.5 exemption for CRPs. This exemption permits a state agency to rely on abbreviated environmental review documents, which are the functional equivalent of CEQA documents. Here, the Department issued the functional equivalent of a negative declaration. The standard of review is whether there was a prejudicial abuse of discretion, which is established if the agency did not proceed in a manner required by law, or if the determination is not supported by substantial evidence.

First, the court rejected the Department’s assertion that because it operates a CRP, its functionally-equivalent environmental review documents are otherwise exempt from CEQA’s substantive requirements. The court found that section 21080.5 is a “limited” exemption, and environmental review must otherwise comply with CEQA’s policy goals, substantive requirements, content requirements stated in section 21080.5, and any other CEQA provisions, as well as the Department’s own regulations.

Second, the court found that the Department’s report was inadequate under CEQA because it failed to analyze alternatives and cumulative impacts, and did not describe the environmental baseline. With respect to alternatives, contrary to the Department’s assertion, a functionally-equivalent document prepared under a CRP must consider alternatives, as required by both CEQA and the Department’s own regulations. The Department argued that it did not need to consider alternatives because it concluded there would be no significant environmental impacts. The court explained that the standard for a CRP for determining whether an adverse impact may occur is the same as the “fair argument” standard under CEQA. Furthermore, the content requirements for environmental review under a CRP require that a state agency provide proof–either a checklist or other report–that there will not be adverse effects. The court found that the Department did not produce or consider such evidence.

The court also held that the substantive requirements and broad policy goals of CEQA require assessment of baseline conditions. The Department argued that it had acknowledged and assessed baseline conditions, but the court disagreed. The Department’s baseline discussion was based on one statement that “the uses are already present on the labels of a number of currently registered neonicotinoid containing products.” The court found that this general statement was not sufficient.

The court found that the Department also abused its discretion when it failed to consider cumulative impacts. In its report, the Department simply stated that the cumulative analysis would be put off until the reevaluation was complete. The court found that this one-sentence discussion lacked facts and failed to provide even a brief explanation about how the Department reached its conclusion.

Finally, the court found that the Department is required to recirculate its analysis. Recirculation is required when significant new information is added to an environmental review document, after notice and public comment has occurred, but before the document is certified. The court explained that, in light of the Department’s required reevaluation, its initial public reports on the amended labeling were so “inadequate and conclusory” that public comment on them was “effectively meaningless.”

Pesticide Action Network provides important guidance regarding environmental compliance under a CEQA-exempt CRP. The court emphasized that unless specifically exempt from a CEQA provision, even functionally-equivalent CRP documents must comply with CEQA’s substantive requirements and broad policy goals. Also notable was the court’s application of the “fair argument standard” to the analysis of whether an impact would be significant under the functional equivalent of a negative declaration.

Fourth District Upholds EIR for Master-Planned Community and Concludes That County Not Required to Recirculate

On March 15, 2017 the Fourth District certified for publication its February 4, 2017 decision in Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, upholding the EIR for a master- planned community (project). A citizens group challenged the sufficiency of the EIR and the county’s approval process on six grounds. The court found for the county and real party in interest, Hanna Marital Trust (applicant), on every count.

The project proposes a master-planned community with seven planning areas containing medium-density residential housing, mixed uses, commercial retail, and dedicated open space on 200 acres of undeveloped land in Riverside County. Planning area 6, the mixed use area, was analyzed as potentially providing for the development of a Continuing Care Retirement Community (CCRC) for seniors.

On July 28, 2011, the County Planning Department released a Draft EIR (DEIR). The DEIR stated that mitigation measures would reduce the environmental impacts to a below significant level, except for air quality and noise. During the public comment period, the South Coast Air Quality Management District (SCAQMD) and the City of Temecula raised concerns about the project’s air quality impacts. The final EIR (FEIR) was released in January 2012 and included responses to SCAQMD’s and Temecula’s comments. The FEIR reflected changes in the location of some project elements, but was “in its basics identical” with the project as described in the DEIR.

The Planning Commission reviewed the FEIR in April 2012 and suggested revisions, which were subsequently presented to the Commission in October 2012. The Commission recommended approval of the FEIR and the Project to the Board of Supervisors. The Board reviewed the FEIR at its December 11, 2012 meeting, where it considered some modifications to the project and Residents Against Specific Plan 380 (petitioners) suggested additional noise mitigation measures. At its December 18, 2012 meeting, the Board tentatively approved the FEIR, contingent on finalization of the modifications. On November 5, 2013, the Board approved the finalized FEIR, general plan amendment, zone change, and Specific Plan 380. The EIR resolution included findings of fact, a mitigation monitoring and reporting plan, and a statement of overriding considerations. The same day, the county clerk posted a Notice of Determination (NOD) that erroneously used an out-of-date project description.

On November 18, 2013, petitioners filed a petition for a writ of mandate, which was denied by the trial court. This appeal followed.

First, the Fourth District concluded that the Board did not substantially modify the EIR after approving it. Because the Board only tentatively approved the project in December 2012, the final approval in November 2013 reflected the Plan’s modifications. Similarly, the court disagreed with the petitioners’ argument that the findings, statement of overriding considerations, and mitigation plan were not timely and concurrently approved.

Second, the court concluded that the NOD substantially complied with the informational requirements of CEQA, despite its project description errors. The court also noted that the petitioners could not show that the errors were prejudicial because they filed the suit well before the statute of limitations had run.

Third, the court held that the changes made by the Commission and Board were not significant enough to require recirculation of the EIR. In reaching its determination, the court relied on CEQA Guidelines § 15088.5, subd. (a), stating that a lead agency must recirculate an EIR when significant new information is added that reveals a substantially new or increased impact. The court rejected the petitioners’ argument of increased traffic impacts, holding that only traffic patterns would be affected, not intensity. The court also rejected the petitioners’ contention that increased biological impacts would result from moving the mixed-use area further north, as the open space region was already adjacent to it. Petitioners’ argument of increased noise impacts was contradicted by the county’s expert. Finally, the petitioners failed to substantiate their claim of potential land use inconsistencies. Therefore, the County had an adequate basis for not recirculating the EIR. Petitioners’ reliance on Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 and Save our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99 were inapposite, as the EIR did not reveal facially significant new impacts nor areas necessitating further factual development.

Fourth, the court concluded that the EIR adequately analyzed the impacts of the mixed-use area under the rubric of a proposed CCRC. Petitioners alleged that by analyzing only a CCRC, and not other potentially higher impact uses, the EIR’s analysis of the mixed-use planning area was improperly narrow in scope. The court rejected this argument because substantial evidence supported the County’s decision to limit the scope of the analysis to a CCRC. Even if the applicant did not build a CCRC, the project plan restricted the applicant to other permitted uses in the planning area, and only if they would not incur additional environmental impacts. Nor, the court stated, does CEQA require the county to analyze what are merely possible development schemes.

Finally, the court ruled that the EIR adequately considered the specific suggestions for mitigating the project’s air quality and noise impacts from SCAQMD, Temecula, and the petitioners. Regarding mitigation for air emission impacts proposed by SCAQMD and Temecula, the county could justify why the measures were not adopted, why they were infeasible given the project’s timeline and parameters, or why they were duplicative with measures already adopted. SCAQMD’s proposal to utilize lower emission vehicles did not reflect the construction equipment anticipated to be reasonably available. Temecula’s suggestion of applying the 2010 Energy Code was duplicative of the requirement to exceed the 2008 Code emission standards by 15%, and the code in force at the time of construction would control in any event. Furthermore, the county was not required to adopt the specific prescriptive emission reduction measures in the Green Building Standards Code, but could opt for performance-based standards that are less likely to incur enforcement and enforceability issues. With respect to the additional noise mitigation measures proposed by the petitioners, these were found to be untimely raised more than a year after the comment period had closed. Therefore, the county was not obligated to respond. Moreover, the county was justified in not adopting these noise mitigation measures because they require electric construction equipment that may not be available or may duplicate existing requirements.

 

Fourth District Court of Appeal Holds Wal-Mart Project Inconsistent with General Plan Renewable Energy Requirements; CEQA Required City to Recirculate the EIR based on 350-Pages of New Analysis

In Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91, Division One of the Fourth District Court of Appeal reversed the San Bernardino County Superior Court’s decision in part, agreeing with the petitioner that revisions to impact analyses after the Draft EIR had been circulated for review constituted significant new information triggering recirculation, and that the Subdivision Map Act required the respondent city to adopt affirmative findings prior to approving a parcel map. The court also held that the project—a commercial retail development anchored by a Wal-Mart—was inconsistent with the city’s general plan.

Subdivision Map Act

The Court of Appeal held that the City of Victorville violated the Subdivision Map Act by failing, in approving the proposed parcel map associated with the project, to make the findings addressing the issues enumerated in Government Code section 66474, subdivisions (a) through (g). On its face, this section seems only to require that a local agency deny approval of a proposal parcel map if it makes any one of the specified findings. The section does not explicitly address what findings must be made in approving a proposed parcel map. The court held, however, that section 66474 does apply in the latter situation, and requires city and county legislative bodies, in approving parcel maps, to make affirmative findings on each matter addressed in subdivisions (a) through (g) of that section. In reaching this conclusion, the court relied on the following: (i) a related provision of the Subdivision Map Act (Government section 66473.5), which requires local legislative bodies, in approving parcel maps, to affirmatively find that such maps are consistent with the governing general plan and any applicable specific plan; (ii) a 1975 opinion from the Attorney General concluding that section 66474 requires affirmative findings for parcel map approvals as well as parcel map denials; and (iii) case law and secondary sources supporting the Attorney General’s broad interpretation of section 66474.

Consistency with General Plan

The Court of Appeal agreed with the trial court’s decision that the city’s finding that the project was consistent with the general plan’s requirement for on-site generation of electricity was not supported by substantial evidence. The general plan requires that all new commercial projects generate on-site electricity to the maximum extent feasible. As part of the project approvals, however, the city did not require the project to generate on-site electricity. In doing so, the city effectively found that generation of on-site electricity was infeasible. In support of this outcome, the EIR stated that there were many factors considered in determining whether the use of solar panels is cost effective, and described the project as being “solar ready.” But the EIR provided no discussion of those factors or how they applied to the project. Nor did the EIR discuss the feasibility of other alternatives such as wind power. The appellate court therefore held that the city’s finding that the project complied with the general plan requirement that commercial projects generate electricity on-site to the maximum extent feasible was not supported by substantial evidence. It is not clear why the court applied the substantial evidence standard to petitioner’s general plan consistency claims, rather than the traditional arbitrary and capricious standard.

Greenhouse Gas Emissions

The appellate court affirmed the trial court’s decision that the EIR failed to adequately address the project’s impact on greenhouse gas (GHG) emissions. In concluding the project would have no significant impacts on GHG emissions, the city relied on the project’s compliance with the general plan policy to exceed the Title 24 Building Energy Efficiency Standards for Residential and Nonresidential Buildings by 15 percent. The appellate court determined that this conclusion was not supported by the record. First, the court pointed out inconsistencies in the EIR. In one place, the EIR stated that the project would achieve a minimum of 14 percent increased efficiency over Title 24 Standards. In other places, including the technical reports, the EIR stated the project would only be a minimum of ten percent more efficient than Title 24 Standards. Second, in responding to comments, the city acknowledged that the EIR was “currently not in conformity” with the general plan policy that the project would comply with the new energy efficiency standards at the time of construction, and stated that “several of the project’s current energy efficient measures likely meet the 15 percent requirement.” The court found that, at most, the record showed that the project may comply, but not that it would comply with the general plan policy. Therefore, the city’s conclusion that the project would have no significant air quality impacts from GHG emissions was not supported by substantial evidence.

Recirculation under CEQA

Finally, the appellate court also held that the city’s revisions to analyses of certain impact topics constituted “significant new information” triggering recirculation of portions of the Draft EIR. First, the city added to the Final EIR information analyzing the project’s consistency with general plan air quality policies that had inadvertently been omitted from the Draft EIR. Noting that the public did not have a meaningful opportunity to comment on this information, the court found this information disclosed a substantial adverse effect, and therefore triggered the obligation to recirculate the draft EIR. Second, after the city circulated the draft EIR, the applicant substantially revised the project’s storm water management plan. Although no new impacts were identified, the final EIR included 350-pages of new water quality and hydrology analysis. The court held the new information triggered the duty to recirculate. As the court reasoned: “Given their breadth, complexity, and purpose, the revisions to the hydrology and water quality analysis deprived the public of a meaningful opportunity to comment on an ostensibly feasible way to mitigate a substantial adverse environmental effect.” Notably, the court reached these conclusions without attempting to relate its reasoning to the four examples within CEQA Guidelines section 15088.5, subdivision (a), of situations requiring recirculation.

 

Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority

Beverly Hills Unified School Dist. v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627

The court affirmed the trial court’s denial of the Beverly Hills Unified School District’s (“School District”) and City of Beverly Hills’ (“City”) petitions. The court found substantial evidence supported the Los Angeles Metropolitan Transportation Authority’s (“Metro”) decision not to recirculate the EIS/EIR; that the EIS/EIR adequately discussed air pollution and public health impacts; and that Metro did not violate statutory requirements in conducting its transit hearing, the City received a full and fair hearing, and substantial evidence supported Metro’s decision and findings. RMM attorneys Whit Manley, Tiffany Wright and Laura Harris represented Metro.

Factual and Procedural Background

Metro developed a draft EIS/EIR for a new subway line connecting the Westside of Los Angeles and Downtown. The EIS/EIR analyzed two potential stations in Century City at an equal level of review: the Santa Monica station and the Constellation station. The EIS/EIR found that the Santa Monica station would be compromised by its close proximity to the Santa Monica fault, and that the Constellation site would have a lower seismic risk because it was farther away. The Constellation site was also more centrally located and accessible.

After the end of the comment period on the EIS/EIR, during which Metro received nearly 2,000 comments, Metro’s Board directed that both the Santa Monica and Constellation station options be carried forward for further study. Metro then conducted a tunneling safety investigation that concluded tunneling could be safely carried out beneath Beverly Hills High School and residential neighborhoods using closed-face tunnel boring machines. Metro also conducted additional seismic and geophysical studies that ruled out the Santa Monica station due to its proximity to an active fault zone. The final EIS/EIR therefore recommended that the Century City station be located at the Constellation location.

Three days before the board was scheduled to approve the project and certify the EIS/EIR, the City requested a transit hearing under the Public Utilities Code. Metro held the hearing, at which it submitted documentary evidence to the City and gave the City the floor to speak. The City argued there had not been sufficient investigation and facts for the board to make its siting decision. At its next meeting Metro adopted the findings for the transit hearing and approved the project and certified the EIS/EIR. The City and School District sued.

Court of Appeal Decision

On appeal, the School District contended Metro abused its discretion by refusing to recirculate the EIS/EIR because the final version contained significant new information regarding seismic risks and environmental issues arising from tunneling under the high school. The City challenged the procedural validity of the transit hearing, and also argued that Metro was required to recirculate the EIS/EIR because of significant new air quality impacts disclosed in the final EIS/EIR, and that the EIS/EIR’s analysis of localized air quality and health impacts was inadequate.

The court disagreed. Giving substantial deference to Metro in its decision not to recirculate, the court found the EIS/EIR’s designation of the Santa Monica station as the “base” station and the Constellation station as the “option” immaterial, given that the agency had evaluated both locations equally. The court also found the EIS/EIR had discussed the potential environmental impacts of both stations, including the impacts of tunneling under the high school, and the public had been given an opportunity to comment on those impacts. The elimination of the Santa Monica station in the final EIS/EIR was not “significant new information,” but rather eliminated a potential source of seismic hazard.

The City did not cite to any law supporting its assertion that the EIS/EIR was required to include analysis showing how the actual construction emissions would specifically impact public health. The court also rejected the City’s argument that the EIS/EIR had to be recirculated because of the originally-reported increase in emissions. Metro had already adopted an addendum to the final EIS/EIR that corrected the original overstatement.

The court also rejected contentions related to the alleged unlawfulness of the transit hearing. The court noted that the decision on the station location and alignment was legislative, not adjudicative, and that the City did not need to cross-examine Metro’s witnesses because the dispute pertained to the information contained in the submitted documents. No right to cross-examine Metro witnesses existed after the hearing. Furthermore, the documentary evidence was not hearsay as it was not used as proof of the matter asserted, but simply to show that the evidence existed.

First District Holds Timber Management Plan Does Not Violate CEQA

The court held that a Nonindustrial Timber Management Plan (NTMP) approved by the California Department of Forestry and Fire Protection (Cal Fire) authorizing logging on 615 privately owned acres in Mendocino County did not violate CEQA. Center for Biological Diversity v. Cal. Dept. of Forestry and Fire Protection (Dec. 30, 2014) ___ Cal.App.4th ___, Case No. A138914.

Timberland use in California is primarily governed by the Forest Practice Act and Forest Practice Rules. An NMTP is a long-term plan for sustained yield timber production utilized by owners of less than 2500 acres of timberland and whose focus is not manufacturing forest products. Though Cal Fire’s approval of timber operations is generally subject to CEQA, the Forest Practice Act’s regulatory scheme is a certified regulatory program. An NTMP functions as the equivalent of an EIR.

In October 2008, the Bower family submitted a proposed NTMP to Cal Fire seeking authorization for timber harvesting activities northeast of Gualala. Petitioners took issue with the fact that Cal Fire approved, and the Department of Fish and Wildlife (DFW) did not object to, logging activity on a 17-acre section that DFW identified as a Late Succession Forest Stand (LSFS). This LSFS was considered a potential functional nesting habitat for a threatened seabird, the marbled murrelet. At the same time, there was no known history of any actual murrelet nesting in the LSFS.

Following a preharvest inspection of the Bowers’ property, a forester asserted the LSFS had only marginal potential for marbled murrelet occupation. A revised NTMP submitted in 2009 required retention of several large-diameter trees to benefit wildlife. Cal Fire issued responses to public comments on the NTMP and approved the document, concluding that large wildlife trees were being preserved, and species largely dependent on late seral habitat features would not be adversely impacted. DFW did not submit a nonconcurrence.

Petitioners filed a petition for a writ, complaint for breach of public trust, and request for injunctive relief. Petitioners contended that Cal Fire, in approving the NTMP, had failed to comply with CEQA and the Forest Practice Rules. They insisted the cumulative impacts of the proposed logging would eliminate enough large trees in the LSFS to render the stand unsuitable for murrelet nesting. Petitioners also argued the NTMP violated the California Endangered Species Act (CESA) by authorizing logging that would be adverse to nesting habitat essential for the survival and recovery of the murrelet.

Reviewing Cal Fire’s approval under the substantial evidence standard, the court denied the petition. It characterized petitioners’ contentions as disagreements over the evidence—parties drawing “dramatically differing conclusions from the same record.” The calculations and comparisons petitioners attempted to make, even if accurate, did not offer a complete description of the resulting environment, the court stated. Furthermore, Cal Fire was entitled to choose between differing expert opinions. Petitioners failed to affirmatively show that there was no substantial evidence in the record to support Cal Fire’s findings. The court also rejected petitioners’ claims that the NTMP did not analyze a reasonable range of alternatives.

Petitioners also claimed the NTMP should have been recirculated based on “significant new information” added prior to certification. They cited to a 2009 one-page memorandum from a Cal Fire biologist recommending additional protective measures for large tree retention. Each of the biologist’s recommendations were addressed in additional mitigation measures. The court found that the memo disclosed no new environmental impacts nor any substantial increase in the severity of an impact. The mitigation measures added in response to the memo were discussed in a second review, in which petitioners participated, and were accepted eight days prior to the close of the public comment period.

Petitioners’ CESA claims failed because Cal Fire found that implementation of the plan, as mitigated, would not result in take, jeopardy, or adverse modification of habitat in violation of the CESA. That finding was supported by substantial evidence.

Petitioners’ claim against DFW also failed. Petitioners cited no authority for the proposition that an NTMP is subject to review through traditional mandamus under CCP section 1085, particularly when the petition is not directed to the agency with authority to approve or reject the project. DFW’s decision not to actively oppose Cal Fire’s decision was merely an exercise of agency discretion.

Third District publishes opinion in South County Citizens for Smart Growth v. County of Nevada

On November 13, 2013, the Third District Court of Appeal published its decision in South County Citizens for Smart Growth v. County of Nevada (Case No. C067764). We discussed this opinion previously, when it was issued in October.  The opinion is now citable precedent.

The opinion provides very helpful guidance on when a new “potentially feasible” alternative, proposed after the draft EIR has been circulated for public review, triggers the need for recirculation.  This decision is important because it carefully explains the burden of proof and the elements of proof for a challenge brought under CEQA Guidelines section 15088.5, subdivision (a)(3).  In essence, the petitioner has the burden to demonstrate that no substantial evidence supported the agency’s decision not to recirculate the EIR.  To demonstrate an abuse of discretion, a petitioner must show that no substantial evidence supports any of the following express or implied “negative findings” by a CEQA lead agency: the alternative was not actually feasible; the alternative was not “considerably different from” alternatives already analyzed in the EIR; and the alternative would not “clearly lessen the significant environmental impacts” of the project as approved. (Whether the project proponent has declined to adopt the alternative – another relevant element under subdivision (a)(3) – should be a comparatively more straightforward factual issue.)