Tag: Supplemental Review

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

The First Appellate District Applies Supreme Court’s Decision in Friends of the College of San Mateo Gardens v. San Mateo Community College District in Upholding Muni’s Approval of a Contract to Install Remaining 900 Feet of Light-Rail Line

On December 20, 2016, the First District Court of Appeal ordered published its decision in The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency (2016)  6 Cal.App.5th 1237. The court upheld the San Francisco Municipal Transportation Agency’s (Muni’s) determination that a supplemental EIR was not required for the final “loop” of a light-rail project that Muni’s predecessor agency had approved and certified an EIR for in the late 1990s. In so holding, the court rejected the petitioners’ argument that the loop constituted was a “new” project under CEQA. The decision is the first to rely on the California Supreme Court’s recent opinion in Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937 (San Mateo), which established that the deferential substantial evidence standard of review applies to an agency’s decision that a proposal is part of the same project reviewed in an earlier EIR, rather than a new project.

Background

In the 1990s, Muni’s predecessor agency proposed to connect the southeastern part of San Francisco to the rest of the city via the Third Street Light Rail Project, which would link the Visitacion Valley/Little Hollywood and Bayview Hunters Point neighborhoods with Chinatown, Downtown, and South of Market. As relevant to the case, “Segment 4” of the project’s initial operating segment runs along Third Street from Kirkwood Avenue north to 16th Street, and includes a short-turn “Loop” from Third Street following 18th, Illinois, and 19th Streets. This Loop would allow the extension of an existing line to serve Mission Bay and provide an area for two-car trains to lay over. The San Francisco Planning Commission certified a Final EIR for the project in 1998.

By 2003, construction of the project’s initial operating segment was completed, including the Segment 4 along Third Street and much of the Loop. Due to budget constraints, however, the Loop was not fully completed.

In 2013, FTA awarded Muni a grant to fund completion of the Loop. In connection with applying for the grant, in 2012 Muni prepared a memorandum to the San Francisco Planning Department, seeking the department’s concurrence that, under Public Resources Code section 21166, and its implementing CEQA Guidelines sections 15162 and 15163, a supplemental or subsequent EIR was not required for the Loop to be completed. In the memorandum, Muni stated that the environmental impacts of the Loop had been analyzed in the certified Final EIR; there had been no changes to the Loop’s design since the Final EIR was certified; part of the Loop had been built; and, although there were new developments near the Loop, the Final EIR’s analysis assumed those developments would be built. The Planning Department responded that it agreed with Muni that no further environmental evaluation was required.

The project design for the Loop was then finalized. In August 2014, Muni prepared another memorandum to the Planning Department about the Loop, noting that it had been two years since the department had concluded that no further environmental review was required, and since then, the City had approved the stadium for the Golden State Warriors basketball team on the northeast corner of 3rd and 16th Street. The memorandum explained that the arena would likely increase demand for transit, and that the Loop would help meet this demand, and also allow light-rail vehicles to be stored near the arena for quick response to post-event surges in transit demand. The Planning Department responded that it agreed that no further environmental review was required.

In September 2014, the Muni Board of Directors adopted a resolution authorizing the execution of a construction contract for the Loop. The resolution explained that the Loop had been analyzed in the Final EIR certified by the City in 1998 and that the Planning Department had determined that no further environmental review was required.

The petitioners filed a petition for writ of mandate alleging Muni violated CEQA in approving the Loop without first preparing a new EIR. The trial court denied the petition and the petitioners appealed.

The Court of Appeal’s Decision

Under CEQA, an agency must prepare an EIR in the first instance if there is substantial evidence supporting a fair argument that a proposed project may have a significant effect on the environment. This “fair argument” standard creates a low threshold for requiring an EIR. In contrast, once an EIR has been certified for a project, CEQA prohibits an agency from requiring further EIRs, unless: (a) substantial changes are proposed in the project which will require major revisions in the EIR; (b) substantial changes with respect to the circumstances under which the project is being undertaken will require major revisions in the EIR; or (c) new information, which was not known and could not have been known at the time the EIR was certified, becomes available. (Pub. Resources Code, § 21166.)

As the Court of Appeal explained, until recently, the law was unsettled as to the standard of review that applied to an agency’s determination that an activity is a “new” project as opposed to a project that had previously been considered in an EIR. In San Mateo, however, the Supreme Court held that the substantial evidence standard applied. As stated by the high court, “the question ‘whether an initial environmental document remains relevant … is a predominantly factual question,” so the court must defer to the agency’s determination on that issue if it is supported by substantial evidence in the record.

Turning to the record before it, the Court of Appeal concluded that substantial evidence supports Muni’s conclusion that the Loop is not a new project, but part of the previously approved project analyzed in the 1998 certified EIR. The court also held substantial evidence supported Muni’s implicit decision that the Final EIR retains informational value with respect to the Loop. The court explained that the Final EIR described and analyzed the Loop in connection with the project’s initial operating segment. Among other things, the Final EIR analyzed the effects of the initial operating segment on parking and pedestrians and the interrelationship between projected growth in population and employment in the southeastern part of San Francisco. In view of this evidence, the court held Muni did not abuse its discretion in treating the Loop as part of the earlier-approved light-rail project.

The petitioners argued that even assuming that the Final EIR did analyze the Loop as part of the project, the Final EIR did not provide sufficient detail about the Loop. The court rejected this argument, holding that it amounted to an untimely challenge to the Final EIR. The court explained that under Public Resources Code Section 21167.2, an EIR is conclusively presumed valid unless a lawsuit has been timely brought to contest its validity, which no one contended to have happened in this case.

The court further held that substantial evidence supported Muni’s conclusion that no subsequent or supplemental EIR was required for the Loop under Public Resources Code section 21166. Evidence supporting this conclusion included the 2012 and 2014 statements from the San Francisco Planning Department that no further environmental review was required as well as the memoranda prepared by Muni to which those statements respond. In addition, the record included a 2013 environmental assessment (EA) prepared by FTA under NEPA, which concluded the Loop would not result in any adverse environmental effects. The EA provided further substantial evidence in support of Muni’s conclusion that a supplemental EIR was not required.

The petitioners claimed that the Loop had changed since the Final EIR was certified, but the only change they cited was the fact that Muni deferred construction of the Loop, whereas the rest of Segment 4 was built in 2003. The court rejected this argument, noting that the petitioners had not cited any authority holding that mere delay in completing construction constitutes a substantial change in a project under CEQA.

Lastly, the court rejected the petitioners’ argument that Muni abused its discretion by failing to follow procedures in determining that no further CEQA analysis was requited. According to the petitioners, Muni based its decision that no further environmental review was necessary solely on “an unsupported staff conclusion.” But the court noted that this was not a procedural flaw, as CEQA does not set forth any procedure that an agency must follow in deciding whether a new EIR is required. And, in any event, the record shows that Muni relied on more than just the staff report.

 

 

Fourth District Court of Appeal Upholds Supplemental EIR for Jail Facility Upgrade Project

City of Irvine v. County of Orange (July 6, 2015) __ Cal.App.4th __, Case No. G049527

The court upheld a Supplemental EIR prepared by the County of Orange for a jail upgrade project over a decade after the original EIR had been certified. The court found the project was not substantially different than the project analyzed in the original EIR and that the Supplemental EIR adequately addressed the minor project changes and changed circumstances. And after a hearty dissertation on CEQA’s responses to comments requirement, the court determined that the county’s responses to comments on the Supplemental EIR were adequate.

The county prepared an EIR in the 1990s for the expansion of the James A. Musick Jail Facility. The City of Irvine challenged that EIR and lost; however, project construction was delayed indefinitely by a lack of funding. In 2012, the county decided to move forward with the project and prepared a Supplemental EIR to account for project changes and changed circumstances. Irvine filed a petition challenging the Supplemental EIR on various CEQA grounds. The trial court rejected the challenge and Irvine appealed.

On appeal, Irvine first claimed that the County was required to prepare a “Subsequent EIR” rather than a “Supplemental EIR.” Regarding the Supplemental EIR, Irvine’s contentions focused primarily on traffic impacts during construction and the loss of agricultural land. Irvine’s main argument, however, was that the county’s responses to Irvine’s comments on the Supplemental EIR were inadequate. The court rejected each of these claims in turn.

Irvine’s first claim was that the County was obligated to prepare a Subsequent EIR as opposed to a Supplemental EIR for their analysis of the impacts of the expansion. The court rejected this claim, explaining that courts should look to the substance of the EIR, not its nominal title.

Irvine’s next argument concerned the Supplemental EIR’s analysis of traffic impacts during project construction. Due to delays, there were discrepancies in the county’s construction timeline. Irvine claimed that these discrepancies amounted to an unstable project description that prevented the Supplemental EIR from adequately assessing project impacts. The court disagreed, finding that the project description was distinct from the interim impacts of construction. Specifically, Irvine claimed the county had failed to provide a stable project description because it could not account for the traffic impacts caused by construction in a given year. The court found that CEQA does not require a continuous update of traffic impacts as a result of construction delays and that, regardless of the delay, the impacts would not be substantially different from those disclosed in the Supplemental EIR even if traffic data was updated, and therefore, there was no prejudice.

The third claim concerned mitigation for the loss of agricultural land that would occur as a result of the expansion. The Supplemental EIR discussed seven possible mitigation measures, but none were found to be feasible. Irvine challenged the county’s feasibility findings for three of the measures: (1) the purchase of conservation easements on existing agricultural land to prevent it from being used in the future for nonagricultural purposes, (2) a transfer of development rights program, and (3) a “right to farm” ordinance.

The court held that the county’s findings rejecting these measures as infeasible were supported by substantial evidence. Conservation easements were found infeasible because there was no additional land for agriculture in the county that would be profitable and putting a conservation easement for agricultural use on land that is already used for agriculture would do nothing to mitigate the loss of other agricultural lands. The court also noted that the county’s zoning laws did not support the feasibility of conservation easements. Transfers of development rights were found to be even less feasible because the county did not have land laying fallow for which they could transfer rights in the preservation of agricultural land use. Lastly, the court concluded that a right to farm ordinance was the least viable option of all. The Supplemental EIR recognized that the conversion of current non-agricultural land to agricultural land would itself entail significant environmental effects, including nuisance suits. Beyond that, the court noted, a right-to-farm ordinance is meaningless where no land owner wants to farm. The court held that it is a reasonable inference that no one would want to convert land that is currently non-agricultural and put it to agricultural use even if they have the ostensible legal right to do so.

Lastly, the court addressed Irvine’s claim that the county failed to adequately respond to comments. The court began with a thorough discussion of CEQA’s responses to comment requirement and a detailed assessment of the state of case law on the subject. The court noted several oft-repeated principles by which courts may evaluate the sufficiency of responses, including (1) a general comment can be adequately met with a general response; (2) responses need not be exhaustive; and (3) the sufficiency of responses should be “viewed in light of what is reasonably feasible.” From the cases, the court divined a few more basic standards for the adequacy of responses: (1) when a comment raises a “significant” environmental issue, there must be some genuine confrontation with the issue, it can’t be swept under the rug; (2) responses that leave big gaps in the analysis of environmental impacts are obviously inadequate; (3) comments that bring some new issue to the table need genuine confrontation; and (4) comments that are only objections to the merits of the project itself may be addressed with cursory responses. Based on these guiding principles, the court found that the county had adequately responded to each of Irvine’s comments that merited a response.

Second District Holds County Violated CEQA by Increasing Project Building Height without Issuing a Supplemental EIR

The Second District Court of Appeal held the County of Ventura violated CEQA when it increased the height of a proposed building by 15 feet without filing a supplemental EIR. The county had filed an addendum considering the impact of the building’s change in location, but the addendum neglected to mention a change in building height from 75 feet to 90 feet. The court considered this a substantial change in the project requiring major revisions to the EIR. Ventura Foothill Neighbors v. County of Ventura, Case No. B254120 (Dec. 15, 2014).

In 1993, the County Board of Supervisors decided to construct a five-story ambulatory care clinic on the county’s Medical Center campus. The 1993 EIR stated that the building would be up to 75 feet tall. The county delayed construction until 2005, when the board decided the clinic should be relocated a few hundred feet northwest of the original location to reduce environmental impacts and to utilize a more parking-centric location. The county prepared an addendum for the relocation and filed a notice of determination (NOD). Neither the addendum nor the NOD stated that the clinic would exceed 75 feet. In 2008, a nearby resident inquired about the presence of a rig on the site, and learned that the relocated clinic was to be 90 feet tall. The height difference, petitioners claimed, would “significantly diminish the superior ocean view setting” of the Foothill residences. The trial court held in favor of the residents, and the court of appeal affirmed.

The court of appeal denied the county’s argument that the Ventura Foothill Neighbors were time-barred from challenging the decision to proceed with an addendum because the challenge fell outside CEQA’s 30-day statute of limitations. The court distinguished the California Supreme Court decision in Committee For Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, in which the Court held that filing of a valid NOD triggers a 30-day statute of limitations. Since the neither the addendum or the NOD made any mention of the increase in the building’s height, the timeline ran from the time of the neighbor’s inquiry.

Court of Appeal Upholds San Jose’s Eighth Addendum to Airport Master Plan EIR

The First District Court of Appeal held that changes to the City of San Jose’s Airport Master Plan did not constitute a new project as a matter of law and did not require supplemental review under Public Resources Code section 21166. The court ordered publication of the opinion – Citizens Against Airport Pollution v. City of San Jose (June 6, 2014, Case No. H038781) – on July 2, 2014.

The center of the dispute was an addendum to the City of San Jose’s 1997 EIR prepared for its International Airport Master Plan. The city had also prepared a Supplemental EIR for the plan in 2003. The addendum, which was the city’s eighth addendum to the 1997 EIR, assessed the impacts of proposed amendments to the Airport Master Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets.

Petitioner Citizens Against Airport Pollution’s (CAAP) primary argument was that the amendments to the Airport Master Plan addressed in the eighth addendum constituted a new project as a matter of law, and therefore, an EIR addendum was barred under CEQA. Alternatively, CAAP argued that an EIR addendum could not be used to analyze the environmental impacts of the plan changes, since those changes were substantial and required major revisions to the EIR with respect to noise, greenhouse gas emissions, toxic air contaminants, and biological resources.

The Court of Appeal was not persuaded by CAAP’s argument that the changes to the Airport Master Plan constituted a new project as a matter of law, and that the city was therefore required to prepare a new EIR. The court confirmed that the an agency’s determination on whether supplemental environmental review is required is review under the substantial evidence test, distinguishing previous cases that applied the “fair argument” standard to the question of whether a subsequent approval was “within the scope” of a previous approval.

The court next turned to CAAP’s alternative argument that the city was required to prepare a supplemental EIR for the plan amendments because they were “substantial changes” requiring “major revisions” in the EIR. CAAP claimed that there would be new or more severe impacts in several areas including noise, greenhouse gas emissions, air quality, and biological resources.

Notably, the court rejected CAAP’s argument that the city was required to analyze Greenhouse Gas Emissions for the project since CEQA Guidelines section 15064.5, which requires analysis of GHG impacts in EIRs, was added to the Guidelines after the 1997 and 2003 EIRs were prepared. Relying on CREED v. City of San Diego (2011) 196 Cal.App.4th 515, the court held that the potential for GHG impacts was not substantial new information triggering the need for a supplemental EIR. Rather, the potential for GHG impacts have been known since well before the first EIR for the Master Plan was adopted.

The court also held that there was substantial evidence demonstrating that there would be no new or more severe impacts to biological resources. The addendum acknowledged that the project changes would result in the loss of four acres of burrowing owl habitat and included mitigation measures to mitigate the impact. The court explained that mitigation measures can be modified in an addendum if there is a legitimate reason and the changes are supported by substantial evidence. The mitigation measures in the addendum met that standard because they completely offset the loss of the four acres by establishing new permanent habitat. Moreover, the mitigation measure was only a change in the location of habitual preserved under a burrowing owl mitigation plan that as established for the 1997 EIR and it would be managed within the parameters of the established plan.

The court also upheld the city’s determination that potential changes in noise and air quality impacts did not trigger a supplemental environmental review because jet engines of today and the future are quieter and cleaner than the engines of 1997.

California Supreme Court Grants Review of Unpublished First District CEQA Opinion

On January 15, 2014, the California Supreme Court granted review of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Case No. S214061). The case was previously heard in Division One of the First Appellate District, which issued an unpublished opinion in favor of the petitioner group on September 26, 2013.

The action arose when petitioner Friends challenged the San Mateo County Community College District’s decision to demolish a building complex on the district’s College of San Mateo campus to make room for a new parking lot. The District’s decision was supported by an addendum to a six-year-old previously adopted negative declaration covering campus-wide renovation plans. Friends argued the demolition project violated CEQA and sought to compel the district to prepare an EIR for the demolition and parking lot project as a “new project”, rather than a change to the previously adopted campus renovation plans under CEQA. The trial court granted Friends’ petition. The Court of Appeal affirmed, opining that, as a matter of law, the demolition project was a “new” project, thereby requiring environmental review beyond an addendum.

In its petition for review, the District requested the Supreme Court clarify the appropriate level of judicial deference due to agencies in subsequent environmental review situations. The District presented the following issue to the court: “[i]f a lead agency approves modifications to a previously reviewed and approved project through an addendum, may a court disregard the substantial evidence underlying the agency’s decision to treat the proposed action as a change to a project rather than a new project, and go on to decide as a matter of law that the agency in fact approved a ‘new’ project rather than a modification to a previously approved project, even though this ‘new project’ test is nowhere described in CEQA or the Guidelines?”

Although CEQA sets a relatively low threshold for requiring the preparation of an EIR for a project of first impression, the District noted, Public Resources Code section 21166 establishes a presumption against subsequent review; a later EIR is not required unless new or substantially worse environmental impacts would occur as a result of the changes to the previously-reviewed project. The inquiry was thus whether the District’s project changes would require major revisions of the previous negative declaration “due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” The District argued that the project changes were appropriately presented in the addendum, which showed there would be no more severe environmental impacts due to these changes—in fact, less total building area would be demolished than was originally planned in 2007, due to the District’s interim decisions to renovate, rather than demolish as originally planned, a couple of other buildings on the campus.

The District argued that the Court of Appeal had relied on a heavily criticized outlier case, Save Our Neighborhood v. Lishman, in reaching its decision, furthering a split among the appellate districts regarding the appropriate standard of review to apply to an agency’s conclusions under section 21166. In Lishman, the Third Appellate District announced a new standard whereby it could decide for itself as a threshold matter of law whether a challenged action constituted a change to a previously reviewed and approved project or a new project altogether. The District, in its petition, discouraged the use of Lishman’s “new project” standard, which affords no deference to agencies, does not derive from CEQA or the Guidelines, and does not provide workable guidance to agencies in understanding what factors should be taken into consideration in the “changed project” versus “new project” determination. Instead, the District urged that courts should follow case law holding substantial evidence applies to review of an agency’s determination that section 21166 applies to proposed actions, including a decision to prepare an addendum to a previously reviewed document.

The District also noted that the Court of Appeal failed to identify any flaws in the analysis presented in the addendum and thus no prejudicial error committed by the District. In doing so, the District argued, the appellate court had prioritized form over substance and created needless expense for the district and state taxpayers in requiring that a new initial study be prepared.

RMM attorneys, James G. Moose and Sabrina V. Teller, partners in the firm, and John T. Wheat, associate, represent the San Mateo County Community College District in the litigation.

The docket for the case is available here.

Court of appeal reviews housing element update under substantial evidence standard and upholds city’s decision not to prepare an EIR

In Latinos Unidos de Napa v. City of Napa (Oct. 10, 2013), Case No. A134959, affordable housing advocates sought to set aside the city’s approval of revisions to the housing element of its general plan on the ground that the updates required an environmental impact report. The trial court denied the petition on its merits and the court of appeal affirmed.

The court of appeal explained that the exacting “fair argument” standard set out in Public Resources Code section 21151 applies to new projects, whereas the deferential “substantial evidence” standard set out in section 21166 applies to projects tiered from program EIRs.  The applicable standard turns on whether a project is “new” or whether it is “within the scope” of the analysis in a previously certified EIR.

The court of appeal concluded that the City of Napa’s general plan housing element update was not a new project, but rather, was within the scope of the original program EIR. The court rejected plaintiff’s arguments that the high density residential units approved as part of the project were not adequately addressed in the program EIR.  The court found that the incremental increases in maximum residential densities for parts of the city approved as part of the housing element revisions would not intensify total potential development above what was already analyzed in the program EIR. Many of the projects approved by the city built out at less than the maximum permitted density and the city’s growth rate was slower than anticipated in the program EIR.  As a result, the impacts of increasing density in the housing element revisions remained “within the scope” of —in other words, no greater than those disclosed in—the original program EIR.