Tag: Specific Plan

FIRST DISTRICT HOLDS RESIDENTIAL DEVELOPMENT PROJECT THAT IS CONSISTENT WITH SPECIFIC PLAN AREA IS EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW

In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal upheld the city’s determination that a residential project within a specific plan area was exempt from further environmental review under Government Code section 65457, which provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.

Background

In 2010, the city certified an environmental impact report (EIR) for a specific plan. The specific plan allowed for development of up to 1,260 residential units, and a golf course and related facilities spread across identified subareas (Areas 3 and 4). Area 4 contained wetland habitat for the salt marsh harvest mouse, a state-protected species. After petitioners filed suit under CEQA, the trial court found several deficiencies with the EIR.

In response, the city prepared a recirculated EIR (REIR), which stated that it was a program-level analysis of the impacts related to development of housing and the golf course in Areas 3 and 4 because the final design of those components was not yet known. In March 2015, the city certified the final REIR and re-adopted the 2010 specific plan.

In 2019, the developer submitted a proposed subdivision map for approval of 469 residential lots, omitting the golf course that was previously authorized by the specific plan.

The city prepared a checklist to determine whether the REIR adequately analyzed the environmental impacts of the proposed subdivision map and concluded that the project was consistent with the specific plan and that there were no changed circumstances or new information that might trigger additional environmental review. Accordingly, the city determined the project qualified for the statutory CEQA exemption under Government Code section 65457.

Petitioners challenged the city’s determination, arguing that a subsequent EIR was required due to changes in the project showing that it would have new significant impacts on the endangered harvest mouse.

Court of Appeal’s Decision

To qualify for the Government Code section 65457 exemption, a project must be for residential development, must be consistent with a specific plan for which an EIR was previously certified, and circumstances requiring subsequent environmental review (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) must not be present.

Petitioners alleged that three changes to the project created new significant impacts triggering the requirement for a subsequent EIR:

(1) Fill of only uplands and not wetlands inhibited wetland migration;

(2) Omission of the golf course deprived the harvest mouse of escape habitat; and

(3) Use of riprap on the banks of elevated upland increased predation of the harvest mouse.

The court disagreed, finding that substantial evidence supported the city’s conclusion that none of the changes significantly increased the impacts on the harvest mouse beyond what the REIR analyzed, i.e., the impacts of the complete development of all of Area 4. The court noted that the project as approved would develop fewer total acres and include far fewer residential units than analyzed in the REIR.

In regard to petitioners’ specific arguments of new impacts, the court held the REIR addressed the impact of loss of upland escape habitat and found that the impact would be less than significant because the uplands did not provide high quality transitional habitat as they were regularly used for agriculture. The project would develop less upland than previously analyzed, meaning the project would eliminate less, not more, upland escape habitat. Additionally, because of the low value of upland habitat, the REIR’s less-than-significant determination did not depend on the golf course continuing to provide upland habitat. Accordingly, the elimination of the golf course did not affect that determination.

While the REIR did not discuss the use of riprap to stabilize the slopes of the filled and raised development areas, the court found this did not require subsequent environmental review because the REIR already examined the issue of rat predation on the harvest mouse and petitioners cited to no evidence that the riprap would substantially increase the severity of predation effects. The court acknowledged that there could be some potential increase in predation due to riprap but recognized that the Section 65457 exemption sets a higher threshold for environmental review. Like other statutory exemptions, the court said, Section 65457 reflects the Legislature’s determination that the interest promoted, which here was to increase the housing supply, was important enough to justify foregoing the benefits of environmental review.

The court also rejected petitioners’ claim that changed circumstances and new information related to sea level rise triggered subsequent review. Petitioners argued that the city was required, due to new scientific insights concerning the amount and rate of sea level rise, to analyze whether the project would exacerbate the effects of sea level rise because of how the project would interact with wetlands in the area (e.g., wetland migration). Even assuming wetland migration must be analyzed under CEQA, the court found that it was mentioned in the original 2010 EIR and the REIR assumed that all developable areas would be impacted. Accordingly, the court concluded that petitioners should have raised this argument in response to the REIR, or even the 2010 EIR.

Finally, the court rejected petitioners’ claim that an adaptive management approach to sea level rise was impermissibly deferred mitigation. The court held that the city’s adaptive responses were not mitigation because sea level rise is not an environmental impact caused by the project that needs to be analyzed under CEQA.

– Nina Berglund

THIRD DISTRICT FINDS EIR FOR OLYMPIC VALLEY RESORT PROJECT FAILED TO ADEQUATELY CONSIDER IMPACTS TO LAKE TAHOE’S UNIQUE ENVIRONMENTAL RESOURCES

In Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, the Third District Court of Appeal found that the EIR for a resort development project in Olympic Valley violated CEQA because it contained an inadequate description of the environmental setting and failed to adequately consider the project’s potential air quality, water quality, and noise impacts on Lake Tahoe and the surrounding Basin.

FACTUAL & PROCEDURAL BACKGROUND

In 1983, Placer County adopted the Squaw Valley General Plan and Land Use Ordinance to guide development and growth within the Olympic Valley (formerly Squaw Valley) area. The 4,700-acre area lies a few miles northwest of Lake Tahoe in the Sierra Nevada mountains.

In 2011, Real Party in Interest Squaw Valley Real Estate LLC proposed the first project under the general plan and ordinance—the Village at Squaw Valley Specific Plan—which included two components to be built over a 25-year timeframe: (1) an 85-acre parcel that included 850 lodging units, approximately 300,000 square feet of commercial space, and 3,000 parking spaces (“the Village”); and (2) an 8.8-acre parcel that included housing for up to 300 employees (“the East Parcel”).

The County approved the project and certified its associated EIR in 2016. Following the County’s approval, Sierra Watch filed a petition for writ of mandate, alleging the County violated CEQA in numerous ways. The trial court rejected Sierra Watch’s claims. Sierra Watch appealed.

COURT OF APPEAL’S DECISION

In the published portion of the opinion, the Third District considered whether the EIR sufficiently described the project’s environmental setting and adequately considered water quality, air quality, and noise impacts.

EIR’s Description of the Environmental Setting

The court first considered whether the EIR’s discussion of the environmental setting adequately addressed Lake Tahoe and the Lake Tahoe Basin, particularly with respect to the settings for water and air quality.

Water Quality Setting

As to water quality, the Court of Appeal agreed with Sierra Watch’s assertion that the EIR’s hydrology and water quality analysis failed to adequately describe the regional setting specific to Lake Tahoe. Though the Draft EIR explained that the project would be “located within the low elevation portion of the approximately eight square mile Squaw Creek watershed, a tributary to the middle reach of the Truckee River (downstream of Lake Tahoe),” it concluded that VMT generated by the project would not exceed TRPA’s cumulative VMT threshold, and thus, would not affect the Lake’s water quality. The court rejected this rationale by noting that the EIR’s description failed to discuss the importance of the Lake’s current condition or the relationship between VMT and the Lake’s water clarity and quality, thereby depriving the public of an ability to evaluate and assess impacts on the Lake.

Air Quality Setting

As to air quality, the court found that the EIR’s description of the air quality setting and baseline was more substantial, and thus, adequate. The EIR properly explained the applicable air quality standards and presented data on the current concentrations and sources of criteria air pollutants in the area.

EIR’s Analysis of Impacts

Air Quality Impacts

The court agreed with Sierra Watch’s assertion that the EIR failed to meaningfully assess the project’s traffic impacts on Lake Tahoe’s air quality. The EIR concluded the project would not exceed TRPA’s cumulative VMT threshold but acknowledged it would likely exceed TRPA’s project-level VMT threshold for basin traffic. Nevertheless, the EIR ultimately concluded that TRPA’s VMT significance thresholds did not apply because the project was not located in the Tahoe Basin. The court found this rationale “provided mixed messages.” Rather than summarizing and declaring TRPA’s VMT thresholds as inapplicable, the court held that the EIR should have determined whether the Project’s impacts on Lake Tahoe and the Basin were potentially significant.

The court also agreed that the EIR underestimated the Project’s expected cumulative VMT in the Basin by failing to consider expected VMT from other anticipated projects. Even though the County addressed this issue in post-FEIR responses to comments, the court held that the public was denied an opportunity to “test, assess, and evaluate the newly revealed information and make an informed judgment as to the validity of the conclusions to be drawn therefrom.”

Construction Noise Impacts

The court rejected Sierra Watch’s initial assertion that the EIR failed to adequately disclose the duration of construction noise at any specific location, particularly at the Village parcel. The EIR properly explained that that portion of the Project would be constructed over 25 years based on market conditions, and thus, it would be too speculative to identify specific noise levels for every single receptor.

The court agreed, however, with Sierra Watch’s assertion that the EIR failed to analyze the project’s full geographic range of noises by ignoring activities occurring farther than 50 feet from sensitive receptors. The court reasoned that a “lead agency cannot ignore a project’s expected impacts merely because they occur…’outside an arbitrary radius.’” The EIR only considered impacts to sensitive receptors within 50 feet of construction—yet, according to the court, “ignore[d] potential impacts to a receptor sitting an inch more distant[,] even though the noise levels at these two distances would presumably be the same.” Though the County explained this analysis was standard practice, the court contended that an agency “cannot employ a methodological approach in a manner that entirely forecloses consideration of evidence showing impacts to the neighboring region [and] beyond a project’s boundaries.”

Finally, the court agreed that mitigation requiring “operations and techniques … be replaced with quieter procedures where feasible and consistent with building codes and other applicable laws and regulations” was too vague because “in effect, [it] only tells construction contractors to be quieter than normal when they can.” The court concluded that the measure improperly deferred which construction procedures can later be modified to be quiet but did not explain how these determinations are to be made.

– Bridget McDonald

*RMM Attorneys Whit Manley, Andee Leisy, Chip Wilkins, and Nathan George represented Real Party in Interest Squaw Valley Real Estate LLC in this litigation. 

Second District Finds that CEQA’s Supplemental Review Provisions Applied to Modification of Commercial Development Project adding a Specific Plan Amendment and that the Amendment was not Impermissible “Spot Zoning”

In Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, the Second District Court of Appeal overturned the trial court’s decision that revisions to a commercial development project to include a specific plan amendment constituted a “new project” under CEQA, and found that supplemental review under Public Resources Code section 21166 applied instead. Additionally, the Court determined that, while the specific plan amendment created a “spot zone,” substantial evidence supported the City’s determination that the amendment was in the public interest, and thus not impermissible under the test announced in Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4th 1302.

Target Corporation (Target) applied to build a Super Target retail store at the intersection of Sunset Boulevard and Western Avenue in Hollywood. The project contemplated a nearly 75-foot tall, three-story building with the Target store occupying the third floor, parking on the second, and the first floor containing several smaller retail stores, a transit kiosk, and a pedestrian plaza. The City of Los Angeles certified the environmental impact report (EIR) prepared for the project, and granted eight variances from the Vermont/Western Transit Oriented District Specific Plan (SNAP) allowing the project to be built as proposed. Target began construction of the project. Several community associations (plaintiffs) filed separate petitions for writ of mandate challenging the City’s approval of the project, alleging violations of CEQA, and that the grant of the variances were not supported by substantial evidence in violation of the Los Angeles Municipal Code. The trial court upheld the EIR, but found that six of the eight variances were not supported by substantial evidence and ordered construction to cease.

While that case was pending on appeal, the City amended the SNAP to create a new subarea (Subarea F) that would allow projects similar to Target’s to be built in certain parts of the specific plan area without the need for variances, and designated the project site as Subarea F. There were two other locations in the specific plan area that could qualify for the Subarea F designation, but no projects meeting the requirements of Subarea F were proposed to the City at those locations. The appellate court dismissed the appeal as moot, leaving the trial court’s decision intact. The City prepared and approved an addendum to the Target project EIR, defining the revised project as the SNAP amendment and the completion of construction for the Target project. The same plaintiffs challenged the revised project approval, alleging that the City violated CEQA by relying on an addendum rather than a new, subsequent, or supplemental EIR, and that the City impermissibly “spot-zoned” by amending the SNAP for the project. The trial court found that the SNAP amendment was a new project, making the addendum improper but did not reach the “spot zoning” issue. The City and Target appealed.

The court of appeal, in analyzing whether the addendum violated CEQA asked three questions: what did the SNAP amendment do? Do CEQA’s supplemental or initial project review provisions apply? And, did the City comply with the applicable CEQA provisions? The court answered each question in turn. First, the court found that SNAP amendment, though it created a new subarea, only placed the project location into that subarea. While two other locations in the SNAP area could meet the proximity to transit and acreage requirements, they did not meet the commercial square footage requirement and no projects meeting that requirement had been proposed to the City. The court also rejected plaintiffs’ “haphazard” development argument, finding that the amendment was consistent with the SNAP’s policies and that the City could rationally take planning and development “one step at a time.”

In determining whether CEQA’s supplemental review provisions applied, the court found that there had been prior CEQA review of the Target project. Thus, the question was “whether the previous environmental document retains any relevance in light of the proposed changes.” (Citing Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944.) The court found that substantial evidence supported the City’s determination that the previous EIR retained relevance for the revised project. The court rejected the argument that, because the previous EIR was limited to a specific development “project” and the SNAP amendment involved more general policy considerations, the “project” EIR was insufficient. The court found that the label placed on the EIR said little about its sufficiency as an informational document. The proper question is whether the EIR retains any value in addressing the impacts associated with the revised project.

Next, the court asked whether the City complied with CEQA’s supplemental review requirements, and found that substantial evidence supported the City’s decision to rely on an addendum for the revised project. Plaintiffs made four arguments, all of which the court rejected. First, petitioners argued that the addendum did not discuss the SNAP amendment, which the court stated was factually inaccurate. Second, they argued that the City intended further development in the SNAP area through the new subarea because of some of the language the City used in describing the requirements of the new subarea. The court found that the cited language did not negate the substantial evidence supporting the City’s finding that no additional development was foreseeable. Third, plaintiffs argued that additional development projects at the two locations that could qualify for the new subarea, and any other locations that could be “cobbled together” were reasonably foreseeable consequences of the SNAP amendment that required a subsequent or supplemental EIR. The court found that whatever incentive for development the amendment created, evidence of that incentive did not overcome the substantial evidence supporting the City’s determination. Lastly, plaintiffs argued that de novo review should apply because the challenge to the amendment required the court to construe its meaning. The court found that the issue before it involved the amendment’s environmental impact, not its meaning, and thus review was for substantial evidence.

Though the trial court did not address the “spot zoning” issue, the court of appeal did, finding that it was important enough to resolve the fully briefed, longstanding issue. Under the analysis in Foothill Communities, the court found that the SNAP amendment did create a zoning “island,” though it was unclear whether the zoning was less or more stringent than the surrounding parcels because of the specific requirements for the new subarea. Regardless, the question was whether the zoning decision creating the “island” was arbitrary, irrational or unreasonable. The court found that, under that standard, the spot zone was valid. Further, the City’s determination that the amendment was in the public interest was supported by substantial evidence, and the SNAP, as amended, remained compatible with the City’s general plan. The court rejected plaintiffs’ challenge to the City’s alleged motive in amending the SNAP, and plaintiffs’ questioning of whether the SNAP amendment represented good policy, as neither issue was appropriate for the court’s inquiry. The court also found that even if future projects proposed to use the new subarea, the City retained its power to determine whether each project is in the public interest. Lastly, the court rejected plaintiffs’ argument that the amendment to the SNAP was “incompatible” with it because the amendment would “alter” the SNAP.  The court found that the law unambiguously allows specific plan amendments.

Nathan O. George

Sixth District Finds CEQA Action Barred by 30-Day Statute of Limitations in Government Code Section 65457, Which Prevails Over an Earlier-Enacted and Less-Specific Statute of Limitations in CEQA That May Conflict

In May v. City of Milpitas (2013) __Cal.App.4th__ (Case No. H038338), a California Environmental Quality Act (CEQA) challenge was found time-barred by a 30-day statute of limitations in the Government Code even though appellants argued that a 35-day statute of limitations in CEQA should control.  The Sixth District Court of Appeal affirmed the trial court’s decision to sustain the city’s demurrer on the basis that the later-enacted and more-specific statute of limitations in Government Code section 65457, which provided an exemption applicable to the residential development project, must prevail over a statute of limitations in CEQA that may conflict.

Facts and Procedural Background

The City of Milpitas certified a programmatic Environmental Impact Report (EIR) for the Transit Area Specific Plan on June 3, 2008.  Three years later, a 732-unit condominium project was proposed within the area covered by the Transit Area Specific Plan.  On November 1, 2011, the city adopted a resolution approving amendments to permits and a tentative map for the residential development project.  The city’s resolution also found the project to be exempt from CEQA review because it was consistent with the 2008 specific plan and did not have any significant effects on the environment.  On November 3, 2011, the city filed a Notice of Exemption (NOE) for the project.  Both the resolution and the NOE expressly reference CEQA Guidelines section 15168, subdivision (c)(2), and section 15061, subdivision (b)(3).

On December 7, 2011, petitioners Michael May and Carpenters’ Local Union No. 405 filed a CEQA challenge to the city’s approval of the resolution on November 1, 2011. The city and real parties in interest demurred on the ground that the action was time-barred by the 30-day statute of limitations under Government Code section 65457, subdivision (b), and CEQA Guidelines section 15182. The petitioners argued that the action was not time-barred because the filing of the NOE triggered the 35-day statute of limitations in Public Resources Code section 21167, subdivision (d), and CEQA Guidelines sections 15112 and 15062 instead. The trial court sustained the demurrer, finding that Government Code section 65457 governed, and the November 1, 2011 approval had triggered the 30-day limitation period in section 65457.

Court of Appeal’s Decision

The court began its discussion with an overview of CEQA, the application of exemptions to projects, and the “usual limitations periods for CEQA challenges” provided by Public Resources Code section 21167.  In particular, the court emphasized that even meritorious lawsuits may be time-barred because the legislative intent behind CEQA and section 21167 was to ensure “extremely prompt resolution” of legal challenges brought under CEQA.

Proceeding to the merits, first the court explained why the 30-day statute of limitations in Government Code section 65457 controls. Enacted in 1984 as part of the Planning and Zoning Law, Government Code section 65457 provides an exemption from CEQA for residential development projects that are consistent with a specific plan for which an EIR was certified after January 1, 1980.  Section 65457 only provides a qualified exemption, however, because a supplemental EIR for the specific plan must be prepared if any event listed in Public Resources Code section 21166 occurs.  Therefore, if substantial changes to the specific plan occur, or substantial changes to the circumstances surrounding the specific plan occur, or new information that could not have been known at the time the specific plan’s EIR was certified becomes available and major revisions to the EIR are required, then a supplemental EIR for the specific plan must be certified before section 65457’s exemption may be used for the residential development project.

Under subdivision (b) of Government Code section 65457, where a public agency approves a project using the exemption in section 65457, a legal challenge alleging that a supplemental EIR for the relevant specific plan was required must be filed within 30 days of the agency’s decision to “carry out or approve the project.”  This limitations period is mirrored in CEQA Guidelines section 15182, subdivision (e).

The court found that the City’s resolution factually invoked Government Code section 65457’s exemption and that the petition essentially alleged that a supplemental EIR for the 2008 specific plan is required because substantial changes to the circumstances have occurred and new information has come to light.  Although neither the resolution nor the NOE explicitly references section 65457, the court concluded that the resolution invoked section 65457’s exemption because it stated that the project was “consistent with the certified EIR for the Transit Area Specific Plan.”  The court also found that the resolution’s reference to CEQA Guidelines section 15168, subdivision (c)(2), implied that the City had concluded no events listed in Public Resources Code section 21166 had occurred.  Similarly, the court found that the resolution’s reference to CEQA Guidelines section 15061, subdivision (b)(3), reflected the City’s conclusion that the residential development project would not cause any new environmental effects.

Having established that Government Code section 65457 applied, the court found that the 30-day statute of limitations under subdivision (b) of section 65457 had started running upon the City’s decision to approve the project on November 1, 2011. Consequently, the trial court properly sustained the demurrer because the action filed on December 7, 2011 was time-barred.

Then, the court turned to the reasons why it rejected appellants’ arguments.  The court noted that appellants’ argument that they are requesting a “free-standing EIR” or a mitigated negative declaration (MND) for the development project, not a supplemental EIR for the 2008 specific plan, was in conflict with their petition’s factual allegations and ignored the appropriate use of tiering allowed by CEQA.  To support its conclusion, the court provided a brief examination of the legislative history of Government Code section 65457 and its predecessor former section 65453 to establish that the purpose of section 65457 is to excuse residential development projects from having to do a “free-standing EIR” or MND if they are consistent with a prior-approved specific plan.

The court also set forth reasons why Public Resources Code section 21167, and CEQA Guidelines sections 15062 and 15112 do not apply.  Public Resources Code section 21167, subdivision (d), provides a 35-day statute of limitations that runs from the filing of a NOE in actions alleging that a public agency has improperly determined that a project is not subject to CEQA pursuant to section 21080.  The court found section 21167 did not apply because the exemptions listed in section 21080 do not include Government Code section 65457.  In particular, the court noted that the exemption applied in this case was not one of the 33 categorical exemptions designated pursuant to of Public Resources Code section 21084 and specifically referenced by section 21080, subdivision (b)(9).  Therefore, the 35-day statute of limitations in section 21167 could not be controlling.

Regarding CEQA Guidelines section 15062, which provides a 35-day statute of limitations triggered by the filing of a NOE where a public agency finds a project exempt pursuant to section 15061, the court similarly concluded that section 15062 did not apply because Government Code section 65457 does not fall within the scope of exemptions described by CEQA Guidelines section 15061.  Concluding that section 15062 did not apply, the court also rejected the argument that the 35-day limitations period in CEQA Guidelines section 15112, subdivision (c)(2), applied because section 15112, subdivision (c)(2), only applies to situations where a NOE is filed in compliance with section 15062.

Finally, the court held that, to the extent any conflict existed between the statute of limitations in Government Code section 65457 and statutes of limitations in CEQA, the later-enacted and more specific statute of limitations controls.  Since Government Code section 65457 and Public Resources Code section 21167 both apply to CEQA challenges, they are equally specific to CEQA claims.  Therefore, because Government Code section 65457 was enacted after Public Resources Code section 21167, the statute of limitations in the former must prevail.