Tag: VMT

Fourth District Court of Appeal Strikes Down San Diego County’s VMT Significance Thresholds

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In Cleveland National Forest Foundation v. County of San Diego __Cal.App.5th__, the Fourth District Court of Appeal held that San Diego County’s thresholds of significance for VMT-related impacts were not supported by substantial evidence.

Background

In 2022, following the shift from traffic congestion to vehicle miles traveled (VMT) as the measure of transportation impacts under CEQA, San Diego County adopted transportation-related thresholds of significance for CEQA review as part of a Transportation Study Guide. Among thresholds for other types of projects, the Transportation Guide included thresholds for infill and small projects. Projects that fell under the applicable threshold would have a less than significant transportation impact and be screened from further VMT analysis.

Cleveland National Forest Foundation and another environmental group sued the County, alleging that the infill threshold violated CEQA because it omitted a numeric VMT target, and that both the infill and the small project thresholds were not supported by substantial evidence.

The trial court upheld both thresholds, finding that they were consistent with CEQA and OPR guidance. The petitioners appealed.

The Court of Appeal’s Decision

Reversing the trial court in part, the Court of Appeal held that the thresholds were not supported by substantial evidence.

The petitioners first argued that the infill threshold violated CEQA because it did not have a numerical VMT target. The court disagreed, finding that CEQA does not prohibit a qualitative infill threshold as a matter of law. The petitioners cited CEQA Guidelines section 15064.3, subdivision (b)(3), which “allows agencies to rely on VMT analysis but only where existing models or methods are not available to estimate VMT.”  The court found, however, that this provision did not apply to thresholds, but rather for individual projects. Additionally, OPR’s Technical Advisory on Transportation Impacts recommends using transportation screening thresholds based on qualitative project characteristics. As such, the absence of a numerical threshold did not violate CEQA.

The court next considered the petitioners’ argument that the thresholds were not supported with substantial evidence. Looking first at the infill threshold, the petitioners argued that the County improperly assumed that because infill development generally results in fewer VMT than non-infill development, any infill development under the threshold would have a less than significant impact. The County countered by pointing to  County staff’s opinion that SB 743 was premised on a legislative conclusion that infill development will typically reduce VMT and greenhouse gas emissions. Siding with the petitioners, the court explained that, while the County may rely on staff opinions for substantial evidence, the opinions must be based on a “firm factual foundation.” The court found the County’s justifications were based on the general assumption rather than facts. The court determined that the County was required to make some showing that development consistent with the infill threshold would normally or likely result in an insignificant transportation effect.

Additionally, the court found other evidence in the record indicating that the County’s assumptions were doubtful. For example, consultant reports in the record stated that additional evidence to support the determination that the infill locations would have a less than significant impact would be required and that most locations in the County tend to generate VMT at or about the regional mean. These statements indicated that the infill threshold did not preclude significant impacts. The court also stated that the California Air Pollution Control Officer’s Association’s Handbook was not helpful to the County’s findings because it expressly exempts infill from its methodologies and is inconsistent with the County’s Transportation Study Guide.

Lastly, the court considered whether there was substantial evidence to support the small project threshold. The petitioners argued that the County utilized a recommendation by OPR but failed to support its adoption of this recommendation with evidence that projects under this threshold would have a less than significant transportation impact based on local conditions in San Diego County. The court again sided with the petitioners. According to the court, the fact that OPR recommended thresholds does not excuse the County from providing evidentiary support for the assumption that projects under the threshold would not create significant transportation impacts under local conditions. Accordingly, the court concluded that the small project threshold was also not supported by substantial evidence.

FOURTH DISTRICT UPHOLDS CITY’S APPROVAL OF AN ADDENDUM TO A PROGRAM EIR FOR A RESIDENITAL HOUSING PROJECT

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In Olen Properties Corporation v. City of Newport Beach (2023) 93 Cal.App.5th 270, the Fourth District Court of Appeal held that no new conditions existed that would trigger the need for a subsequent EIR for a residential housing project in the designated Airport Area near John Wayne Airport.

Background

The City of Newport prepared an addendum to the City’s 2006 general plan program EIR for a residential housing project. The Project is a 312-unit residential housing development on an existing surface parking lot in a mixed-use development area, located within the designated Airport Area near the John Wayne Airport. The addendum concluded that the Project’s impacts would either be the same or not substantially greater than those described by the program EIR.

Olen Properties Corporation, an owner of commercial property near the Project site, challenged the City’s approval of the Project and the addendum. The trial court rejected the petitioner’s claims and the petitioner appealed, arguing that new conditions not addressed in the program EIR required the City to prepare a subsequent EIR, rather than an addendum.

The Court of Appeal’s Decision

Land Use

The Court of Appeal rejected the petitioner’s claims that the City violated several land use policies in the City’s general plan. First, it rejected the argument that the Project was not large enough to be consistent with the 10-acre requirement for a “mixed-use residential village” because the court determined that the City properly adopted the its Planning Commission’s definition of the Project to include the surrounding business area—thus satisfying this size requirement. Second, the court rejected the argument that the Project’s “public park” did not qualify as a required “neighborhood park.” The court found this terminology distinction meaningless. Third, the court found that the Project’s irregularly shaped park satisfied the minimum dimension requirements—which the court interpreted as exceeding 150 feet in two dimensions, measured from any point within the park’s space, rather than the lesser of the park’s length or width.

Standard of Review

The court explained that the reverse substantial evidence test described in Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 applies only in limited circumstances where the initial EIR is a program EIR, and a subsequent project is proposed which is not the same or within the scope of the Project, program, or plan described in the program EIR. Otherwise, the appropriate standard is the deferential substantial evidence standard, under which the court considers whether substantial evidence supports the City’s determination that none of the conditions for requiring a subsequent or supplemental EIR under Public Resources Code section 21166 exist.

The court applied the deferential substantial evidence standard because the Project is within the scope of the projects described in the program EIR, which expressly contemplates the construction of higher density housing within the Airport Area.

Traffic

The court held that the City’s use of Level of Service instead of Vehicle Miles Traveled to analyze traffic impacts in the addendum for the Project was appropriate because the program EIR used LOS, and there is no feasible way to compare LOS with VMT. Moreover, the court explained that CEQA Guidelines section 15064.3 (the section requiring VMT to analyze traffic impacts) operates “prospectively” and subsequent changes to the guidelines are not “new information” triggering a subsequent EIR. Otherwise, the court reasoned, any changes to the CEQA Guidelines would trigger the preparation of an EIR for every project.

Hazardous Materials

The court rejected the petitioners’ argument that the proximity to a preexisting semiconductor plan would result in environmental impacts. The petitioner and the City provided conflicting expert opinions on this issue. The court concluded that because the substantial evidence standard of review applies, the City’s conclusion was supported and the petitioner’s conflicting evidence is inconsequential.

CC&Rs

The court rejected the petitioner’s claim that the Project does not comply with CC&Rs for the area because they are covenants between private parties, and there is no legal requirement for an agency to consider CC&Rs in an EIR. Moreover, the court explained that the CC&Rs predate the program EIR, and they therefore cannot constitute changes in the Project or its circumstances requiring a subsequent EIR.

Geology and Soils

The court rejected the petitioner’s claim that the Project’s geotechnical report recommendations indicated that impacts on geology and soil could be significant. The court explained that the recommendations were aimed at protecting the Project from corrosion from soil—such as by encasing metal materials in corrosion-resistant materials—and were not designed to protect the environment from the Project.

Lastly, the court concluded that the Project was not required to have a paleontologist physically present at the Project site constantly, and that the Project’s on-call paleontologist was consistent with the City’s general plan requirements.

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

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

Background

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

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

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

The Court of Appeal’s Decision

CEQA and Adequacy of the EIR

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

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

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

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

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

Santa Cruz Municipal Code

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

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

-Veronika S. Morrison

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

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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. 

OPR Initiates Rulemaking Process for First Comprehensive Update to the CEQA Guidelines in Twenty Years, Affecting Several Areas of Analysis

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On November 27, 2017, the Governor’s Office of Planning and Research (OPR) presented the California Natural Resources Agency with proposed amendments to the CEQA Guidelines. As Director Ken Alex noted in his transmittal letter, this is the most comprehensive update to the Guidelines since the late 1990s. Among other changes, OPR’s amendments affect the analysis of energy impacts, promote the use of vehicle miles traveled (VMT) as the primary metric for transportation impacts, and clarify Guidelines section 15126.2 to specify that an agency must analyze hazards that a project may risk exacerbating.

The amendments to the CEQA Guidelines have been shaped by several years of discussion and public comment. OPR began discussions with stakeholders in 2013 and released a preliminary discussion draft of the comprehensive changes to the Guidelines in August 2015. OPR received hundreds of comments on the proposed updates and has provided a document with Thematic Responses to Comments.

One of the most highly-anticipated and impactful changes is the switch from the level of service (LOS) to VMT as the primary metric in analysis of transportation impacts. These updates were required by Senate Bill 743, which directed OPR to develop alternative methods for measuring transportation impacts. Due to the complexity of these changes, OPR has provided a Technical Advisory on Evaluating Transportation Impacts in CEQA to assist public agencies.

Some highlights from the proposed updates include:

  1. Appendix G: adds new questions related to Energy, VMT, and Wildfire;
  2. Guidelines section 15064.3 (SB 743): establishes VMT as the primary metric for analyzing transportation impacts, with agencies having a two-year opt-in period to make the transition easier;
  3. Energy impacts: includes changes to Appendix G and makes clear that analysis must include energy use for all project phases and include transportation-related energy;
  4. Guidelines section 15126.2, subdivision (a): adds the phrase “or risks exacerbating” to implement the California Supreme Court’s holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, requiring an EIR to analyze existing hazards that a project may make worse; and
  5. Guidelines section 15064.4: includes clarifications related to the analysis of greenhouse gas (GHG) emissions to reflect the Supreme Court’s decisions in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497 and Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 (“Newhall Ranch”).

On January 25, 2018 the Natural Resources Agency initiated the formal rulemaking process. From the Agency: The Natural Resources Agency’s proposed updates to the Guidelines Implementing the California Environmental Quality Act are now available.  The proposed changes to the Guidelines and related rulemaking materials are available on the Agency’s website at http://resources.ca.gov/ceqa/.  Public hearings will be held in Los Angeles on March 14, 2018 and in Sacramento on March 15, 2018.  Written comments must be submitted by 5:00pm on March 15, 2018.  Hearing locations, instructions for submitting comments and related information regarding the rulemaking process is contained in the Notice of Proposed Rulemaking.