Tag: Substantial Evidence

THIRD DISTRICT COURT OF APPEAL DISMISSES PETITIONERS’ CHALLENGE TO A MITIGATED NEGATIVE DECLARATION BECAUSE THE CLAIMS DID NOT ESTABLISH A FAIR ARGUMENT OF SIGNIFICANT ENVIRONMENTAL IMPACTS.

In Newtown Preservation Society v. County. of El Dorado (June 16, 2021, C092069) __ Cal.App.5th __ [2021 WL 2451269], the Third District Court of Appeal affirmed the trial court’s decision to uphold El Dorado County’s adoption of a mitigated negative declaration (MND) for a bridge replacement project. In the published portions of the opinion, the court held that Petitioners failed to establish a “fair argument” that the project would have significant environmental impacts. Instead, Petitioners raised concerns regarding existing wildfire hazards that could impact residents near the project, but did not establish that the project may significantly impact the environment by creating or exacerbating wildfire hazards.

Factual and Procedural Background

The County, in preparing the MND, determined that the bridge replacement project could interfere with emergency response or evacuation plans and—as a result—expose people or structures to risk of loss or injury. However, the County also determined that these impacts would not be significant since a temporary evacuation route would be constructed to mitigate the risk. Such a route would only be used for emergency evacuation and, regardless of whether it was in place, any evacuation or emergency orders would be executed as the El Dorado County Sheriff’s Office of Emergency Services saw fit. Additionally, the County consulted with this office as well as the El Dorado County Fire Protection District in preparing the MND and both entities were comfortable with the document’s conclusions and assessments.

The County initially refrained from discussing the temporary evacuation route in detail in its mitigated negative declaration since it was concerned this would “lead people to believe that they should follow a certain evacuation route.” But, as a result of comments raised by one of the petitioners’ counsel and others regarding the possibility of a temporary evacuation route, the County’s responses to comments elucidated its plans and evacuation procedures in greater detail. It outlined several evacuation options given numerous emergency conditions depending on whether the temporary evacuation route was constructed.

After the County adopted the MND, Petitioners filed a writ a mandate, claiming the County failed to 1) properly consider the no-project alternative and 2) “adequately address the impact of closing the bridge without committing to construction of an evacuation route.” Petitioners claimed there was sufficient evidence in the record—including letters, correspondences, and hearing comments—supporting a fair argument that the bridge replacement project would significantly impact public safety. For example, a resident who lived on Newtown Road discussed past fire damage near her home; another resident complained that the County had not determined with finality whether a temporary route would be constructed; and another expressed concern about the effects of wind in the area on fire management; an aerial firefighter argued that recent history of wildfires demonstrated the danger in the County’s temporary evacuation route plans; Ms. Nagel, one of the petitioners, discussed her extensive firefighting experience; and Ms. Nagel’s attorney argued that the County’s MND violated CEQA by deferring important emergency management analysis.

The trial court, however, found that none of the petitioners’ arguments constituted substantial evidence, especially in light of explanatory testimony and responses to comments by the County and its experts, as well as the detailed evacuation options outlined in the MND. Instead, Petitioners’ letters and comments amounted to mere complaints and fears, backed up by speculation and unsubstantiated, non-expert opinion.

The Court of Appeal’s Decision

On appeal, Petitioners argued that the trial court erred in upholding the MND since “substantial evidence supports a fair argument of potentially significant impacts on resident safety and emergency evacuation.” The court noted that evidence supporting a fair argument can be substantial even though other equally compelling evidence may exist to the contrary. Still, the court concluded that Petitioners’ “framing of the fair argument test [was] erroneous. The question is not whether substantial evidence supports a fair argument that the proposed project will have significant impacts on resident safety and emergency evacuation. . . . [T]he question is whether the project may have a significant effect on the environment.” Yet Petitioners failed to identify any potentially significant effects the project might have on the environment and instead merely raised possible increased effects the environment might have on the community as a result of poorer evacuation procedures.

Furthermore, the Court of Appeal, like the trial court, pointed out that substantial evidence must be based on relevant information and facts; or at least reasonable inferences, assumptions, or expert opinion supported by facts. Unsubstantiated opinions, arguments, or speculations generally will not do. The court noted, however, that lay opinion may be considered substantial evidence where expertise is not necessary, which was not the case with the emergency evacuation issues raised by the Petitioners. The Court of Appeal explained again that Petitioners’ cited comments and letters were “mere speculation” and simply “dire predictions by nonexperts” and that they “fail[ed] to identify any factual foundation” for their assertions. Some comments were even directly contradicted by factual evidence in the record. Nowhere did Petitioners establish that any of the individuals whose testimony was cited were experts in evacuation planning. Thus, the court concluded that Petitioners’ claims did not constitute substantial evidence supporting a fair argument that the project may have a significant impact on the environment.

– Blake C. Hyde

Fifth District Court of Appeal Upholds Air Pollution Control District As Proper Lead Agency, Finds Permit Requirements Provide Substantial Evidence For EIR Emissions Estimates, And Holds EIR Lacked “Reasoned Analysis” For Rejecting Additional Mitigation Measures

In Covington v. Great Basin Unified Air Pollution Control District (2019) 43 Cal.App.5th 867, the Fifth District Court of Appeal affirmed in part the judgement of the trial court by holding that the District is the proper CEQA lead agency and that permit requirements provide substantial evidence to support the EIR’s fugitive emissions estimates for a proposed geothermal power project; and reversed in part by holding that the District’s feasibility assessment of a mitigation measure proposed by EIR commenters was flawed and required more “reasoned analysis.”

Background

In July 2014, the District certified the Casa Diablo IV Geothermal Development Project joint document EIR/EIS prepared for a proposed geothermal energy facility located on national forest land in Mono County. The project was proposed by Ormat Nevada, Inc., and Ormat Technologies, Inc. (“project proponents”) to be located adjacent to an existing geothermal power complex in an area that has been developed for geothermal activity since 1984. The joint document was prepared by the Bureau of Land Management, the U.S. Forest Service, and the District, with the state agency serving as the CEQA lead agency. The project was designed to reduce greenhouse gas emissions and dependence on fossil fuels by using heat extracted from water pumped from a deep geothermal reservoir to fuel a closed-loop system that would ultimately produce electricity. The reaction, however, would produce n-pentane (normal pentane)—a non-toxic reactive organic gas but a precursor to ozone—which would leak in some amount leak from the system and result in fugitive emissions. The EIR concluded that the amount of fugitive emissions would not exceed 410 pounds per day.

The Laborer’s International Union of North America Local Union No. 783 and certain individual members (“Petitioners”) filed a petition for writ of mandate against the District and project proponents as real parties in interest claiming that the EIR’s fugitive emissions conclusions were not supported by substantial evidence, that the District was an improper lead agency, and that the District erred in its feasibility analysis for measures to further mitigate fugitive emissions. The trial court denied the petition in full. Petitioners appealed.

District is Proper Lead Agency

Petitioners argued that Mono County, not the District, was the proper CEQA lead agency as defined in Guidelines section 15051, subdivision (b), because it was the agency with more “‘general governmental powers’” over the project. While the Court agreed that “‘normally’” a county would be the CEQA lead, as the first non-federal agency to act on the project, the District was qualified under Guidelines section 15052, subdivision (c), to act as lead.  As further evidence, the Court pointed out that, for a while, the District appeared to be the only involved state agency because of its unique permit authority over an otherwise federalized project. The Court further reasoned that the County’s involvement is minimal in comparison because the project requires “only” a conditional use permit from the County for a “small portion” of its pipeline, which gave it lesser responsibility for “approving the project as a whole,” thereby making the District the proper CEQA lead.

Permit Provides Substantial Evidence

Petitioners also argued that “the record does not contain substantial evidence to support the [EIR’s] conclusion that the Project’s n-pentane [fugitive] emissions will be limited to 410 pounds per day.” The EIR did not, in fact, include emissions calculations. But, the District countered that it provided total emissions numbers to Petitioner’s counsel under a public records act request prior to EIR certification. And, after EIR certification, it sent Petitioner’s counsel additional emissions data, albeit with some redactions. The District further argued that project compliance with permit requirements that limit daily fugitive emissions to 410 pounds per day provides substantial evidence to support the EIR’s conclusion that the project will not exceed that limitation. The Court agreed and cited to several cases for support, including Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884 and Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, where other courts held that “compliance with performance standards is a substitute for substantial evidence.” The Court also pointed out that the EIR contained several mitigation measures to lessen impacts from project fugitive emissions.

Mitigation Feasibility Assessment Lacks “Reasoned Analysis”

Petitioners then argued that additional feasible mitigation measures existed to further reduce fugitive emissions, provided by commenters on the Draft EIR, and that the District abused its discretion in finding them infeasible. The District countered  that the project’s required use of “‘best available technology’” and “‘state of the art equipment’” was enough to reduce impacts to less than significant, thereby rendering additional measures irrelevant. The Court, while not invalidating the District’s conclusion, required it to provide a “good faith, reasoned response” explaining why the specific technologies suggested by commenters, which are successfully used in other industrial facilities, could not be used for the project to further reduce impacts. Without such explanation, the Court contended that the EIR would not contain “a sufficient degree of analysis to enable decision makers to make an intelligent and informed decision,” pursuant to Guidelines section 15151.

– Casey Shorrock

Third District Court of Appeal Upholds EIR for Chico Walmart Expansion Against Challenge to Urban Decay Analysis

In a partially published decision issued on October 3, 2019, the Third District Court of Appeal affirmed a judgment upholding an EIR for a Walmart expansion project in Chico against challenges to the EIR’s urban decay analysis. (Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839.)

In 2015, Walmart applied to the city to expand its existing Chico store in a regional retail center that includes the Chico Mall and several national chain retail stores. A FoodMaxx grocery store is also nearby. Walmart planned to expand its existing store by approximately 64,000 square feet, add an eight-pump gas station, and create two new outparcels for future commercial development. Approximately 49,000 square feet of the new space would be used for grocery-related sales.

The city prepared an EIR for the project that included, among other things, a “robust 43-page urban decay analysis.” The urban decay analysis was supported by a 123-page expert study prepared by ALH Urban & Regional Economics. The purpose of the ALH study was to assess the economic impact of the project on retailers in the surrounding area and to evaluate the extent to which the project could contribute to store closures and urban decay. For purposes of the study, “urban decay” was defined as “visible symptoms of physical deterioration . . . that is caused by a downward spiral of business closures and long term vacancies . . . [and]. . . so prevalent, substantial, and lasting for a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community.”

The ALH study concluded that, on its own, the project would have a negligible impact on sales for competing retailers and that store closures were not expected to follow. Based on these findings, the EIR concluded that the project would not cause the type of severe economic effects that would lead to urban decay. With regard to cumulative impacts, the ALH study concluded that the project, when combined with other planned retail projects in the area, could induce the closure of one full-service grocery store. The city’s retail vacancy rate, however, would only increase by approximately one percent and would remain “well within the range of a robust, healthy commercial retail sector.” The EIR further explained that Chico has a strong history of “backfilling” store vacancies, that existing vacant properties are well-maintained, and that the city has regulations to prevent decay and blight. For these reasons, the EIR concluded that although some economic impacts were expected, cumulative impacts likely would not result in urban decay.

Following the city’s certification of the EIR, Chico Advocates for a Responsible Economy (CARE) challenged the urban decay analysis in an administrative appeal to the city council. CARE supported its challenge with its own “retail expert” report refuting the city’s analysis. The city council denied the appeal.  CARE then filed a petition for writ of mandate seeking to rescind the EIR and project approvals. The trial court denied the petition in full and CARE appealed.

On appeal, CARE challenged the EIR’s urban decay analysis on two grounds. First, CARE argued that the EIR relied on an “unnaturally constrained” definition of “urban decay” and, as a result, failed to treat the loss of “close and convenient shopping” as a significant environmental impact. Second, CARE argued that, due to flaws in the ALH study’s methodology, the EIR’s urban decay findings were not supported by substantial evidence.

Addressing the first issue, the court began its discussion by explaining the applicable standard of review for allegations that an EIR failed to include necessary information. Citing the Supreme Court’s recent decision in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, the court explained that CARE’s argument presented the predominantly legal question of whether the EIR included enough detail “to enable those who did not participate in its preparation to understand and consider meaningfully the issues raised by the proposed project,” which is subject to independent review. On this issue, the court found “CARE’s argument lacks merit – the City did not violate CEQA because the potential loss of close and convenient shopping is not an environmental issue that must be reviewed under CEQA.” “CEQA is concerned with physical changes in the environment,” the court explained, and “[a]lthough the loss of close and convenient shopping could impact some Chico residents psychologically and socially, such impacts are not, by themselves, environmental impacts.”

Next, the court turned to CARE’s attack on the methodology for the urban decay analysis. CARE alleged three flaws with the urban decay study’s methodology. First, CARE argued that the study relied on incorrect assumptions for calculating the anticipated grocery sales. Second, CARE argued that the study underestimated impacts on Chico stores by incorrectly assuming shoppers from the neighboring Town of Paradise would patronize the Walmart. Lastly, CARE argued that the study incorrectly assumed economic impacts would be spread amongst existing stores, rather than concentrated on the closest competitor – the FoodMaxx grocery.

In rejecting each of CARE’s arguments, the court explained that challenges to the EIR’s methodology are reviewed under the substantial evidence standard. Under this standard, challenges to the EIR’s methodology “must be rejected unless the agency’s reasons for proceeding as it did are clearly inadequate or unsupported.” Moreover, the court explained, when an agency is faced with conflicting evidence on an issue, it is permissible to give more weight to some evidence than others – mere “disagreement among experts” does not render an EIR inadequate.

In this case, the court concluded that CARE’s challenge amounted to “nothing more than differences of opinion about how the Project’s expected grocery sales should be estimated, how the Project’s market area should be defined, and which competitors are most susceptible to impacts from the Project.” These differences in opinion, the court explained, did not render the EIR’s analysis clearly inadequate or unsupported. Therefore, CARE’s challenge failed under the substantial evidence test.

The court further noted that although CARE’s own expert report showed additional store closures would occur, CARE failed to demonstrate how such closures would lead to urban decay. As the court explained, “Store closures, by themselves, do not amount to urban decay.”

City’s Decision to Deny Mitigated Negative Declaration Upheld For Small San Diego Subdivision

On May 23, 2017, the Fourth District Court of Appeal court ordered published Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034. In a succinct opinion, the court upheld the city’s decision to deny a mitigated negative declaration (MND), initially approved by the planning commission, regarding an application to subdivide two hillside lots and build three residences.

The court emphasized that the standard of review was deferential to the city, and limited to determining whether the city’s findings were supported by substantial evidence. The court interpreted this standard by stating that plaintiff could only prevail if she could demonstrate that no reasonable municipality could have reached the same decision as the city.

Under this standard of review, the court determined that the city presented substantial evidence in the record to support its finding that impacts to land use, geology, and public safety would be detrimental and inadequately mitigated. Flaws and omissions in the project’s geotechnical report cast doubt on the report’s conclusion that homes could be built safely on the steep sandstone hillside. Furthermore, the slope of the shared driveway would not permit access by firetrucks and potentially other emergency response vehicles. Proposed mitigation measures (sprinkler systems and standpipes) were inadequate to mitigate all of these risks.

Regarding the project’s consistency with the community plan, the city properly considered the opinions of neighbors, who stated that the project’s dense development with minimal setbacks was incompatible with the large lot, single-family residential character of the area. Finally, the project was properly rejected under city ordinances, which provide for deviations from the development regulations for qualified sustainable building projects, if the deviations result in a more desirable project. For similar reasons as to why the project was rejected under the community plan and CEQA, the deviations requested here (smaller setbacks, no frontage, and higher walls) would not make the project more desirable.

Sixth District Holds Fair Argument Standard No Longer Applies to Whether a Resource is “Historical”

In Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, the Sixth District Court of Appeal held that the fair argument standard does not apply to a lead agency’s decision that a resource is not a historical resource—abandoning its previous holding to the contrary in Architectural Heritage Assn v. County of Monterey (2004) 122 Cal.App.4th 1095.

The resource at issue—a wooden railroad bridge, referred to as the Trestle—was built in 1922 as part of a spur line to provide rail freight access to canning districts near downtown San Jose. It was not listed or eligible for listing in the California Register of Historical Resources, nor was it included in a local register of historical resources. As part of its trail system, the City of San Jose proposed to demolish the Trestle and replace it with a new steel truss pedestrian bridge. The city adopted a mitigated negative declaration based on an initial study that concluded the Trestle was not a historical resource. Project opponents filed a writ petition asserting that there was substantial evidence to support a fair argument that the Trestle was a historical resource and therefore an EIR was required. Applying the fair argument standard, the trial court found in favor of petitioners.

The Sixth District disagreed. In rejecting the fair argument standard employed by the trial court, the court focused on the statutory language of Public Resources Code section 21084.1, which defines historical resources for purposes of CEQA. It provides, in part, that a resource may be presumed historical, if it meets certain criteria, unless a preponderance of the evidence demonstrates that it is not historical. Where a resource is not presumptively historical, an agency has the discretion to decide whether it is or is not historical. The court stated that by allowing an agency to overcome a presumption with a preponderance of the evidence, the standard of review logically must be whether substantial evidence supports the lead agency’s decision, not whether a fair argument can be made to the contrary. Based on this determination, the court found that the Legislature could not have intended that a lead agency’s discretionary decision to identify a resource as historical would be subject to a less-deferential review—i.e., fair argument—than a decision regarding a resource presumed to be historical.