This case originates from an application for approval of a tentative subdivision map filed with the County of Colusa. The application proposed dividing four existing parcels into 16 parcels. The proposed parcels ranged in size from about 1 acre to 30 acres. The existing site consisted of agricultural use and light industrial uses related to agriculture. The application indicated no specific plans for expansion were available, and the present intention for the parcels was for their existing uses to continue.
The County prepared an initial study in June 2010 to determine if approval of the proposed tentative subdivision map could have significant environmental impacts. The initial study identified potentially significant impacts to cultural resources but determined these impacts could be mitigated to less-than-significant. Therefore, the County proposed adoption of a mitigated negative declaration for the project.
During the public comment period on the MND, the Romingers submitted comments suggesting an EIR was necessary for a variety of reasons. As a result of these comments, the County determined a water supply assessment was needed and cancelled the public hearing on the MND. Thereafter, a revised initial study was completed in August 2011. The revised initial study concluded that the project could potentially have significant impacts on air quality, cultural resources, and hydrology/water quality. Again, the initial study determined these impacts could be mitigated to less-than-significant and that an MND would be appropriate. The Romingers renewed their complaints during the public comment period for the updated MND. The County approved the MND in spite of these objections, and the Romingers filed a petition for writ of mandate asserting that an EIR was necessary. The trial court rejected the petition, concluding that approval of the tentative map was not a “project” for the purposes of CEQA. The Romingers appealed.
The Appellate Court’s Decision
On appeal, the Romingers argued that the County was barred from asserting that the proposed subdivision was not a CEQA project or that the project was exempt from CEQA based on the common sense exemption. The Romingers reasoned that the County could not make these arguments because the County treated the proposed subdivision as a CEQA project at the administrative level and approved an MND. The appellate court did not find this reasoning persuasive. The court’s task under CEQA is to review agency actions for compliance with procedures required by law. The County reasoned preparation of the MND was entirely voluntary and not required by law in the first place. Therefore, it would be a waste of judicial resources to review the adequacy of the voluntarily prepared MND. The appellate court agreed and allowed the County to argue no environmental review was required in the first place. However, the court disagreed with the County that approval of the tentative subdivision map was not a project under CEQA. Public Resources code section 21080 specifically provides that an approval of a tentative subdivision map is a project subject to CEQA.
The appellate court also concluded that the “common sense” exemption did not apply to the County’s approval. The County argued the map approval, in this specific case, fell within CEQA’s common sense exemption in the CEQA Guidelines section 15061(b)(3). The County reasoned that the action only established new parcel lines and that there was no possible effect on the environment as a result. But the appellate court noted that, in the application, the real parties stated the objective for the subdivision was to facilitate “future expansion where separate financing may be needed.” Therefore, the record demonstrated the purpose of the subdivision was to make development on the parcels easier. Under the common sense exemption, the agency must show, based on evidence in the record, that there is no possibility that the action may result in a significant effect on the environment. Here, the reasonable possibility that creation of smaller parcels could lead to development that might not otherwise occur pushed the project beyond the confines of the common sense exemption.
On the specific challenges to the MND, the appellate court sided with the project opponents on only a single issue. The appellate court determined substantial evidence in the record supported a fair argument that the project may have significant traffic impacts. In this case, a traffic engineer submitted a comment letter suggesting the County relied on unrealistically low trip generation estimates. This comment letter cited specific evidence, such as the proximity of a major interstate, and the potential for the light-industrial uses to be redeveloped as more traffic-intensive uses. In light of this, and other evidence, the traffic engineer suggested that the County should use the general trip generation characteristics from categories in the authoritative trip generation source reference Trip Generation, 8th Edition. Based on these trip generation numbers, the project could potentially have a significant traffic impact on an intersection of a county road and State Highway 99. This evidence in the record supported the fair argument made by the Romingers. In protest, the County pointed to substantial evidence supporting a contrary conclusion. But the appellate court explained that pointing to contrary evidence was insufficient to defeat the fair argument. Therefore, the appellate court concluded that the county prejudicially abused its discretion when it failed to prepare an EIR addressing the potentially significant traffic impact.
Also of note, the appellate court concluded that the County did not entirely comply with the requirement to provide a full 30-day review period for the MND. The Romingers complained that the review period was only 29 days long. But the appellate court reviewed the record and determined that this error did not preclude informed decisionmaking or informed public participation. Since the error was not prejudicial, the error could not provide a basis for relief.
Conclusions and Analysis
The opinion adds to the litany of cases which accept a broad definition of “project” for the purposes of CEQA. This is especially true where the statute explicitly identifies the action as an example of a project. The opinion treads over fresher ground in CEQA law where the appellate court approaches the fair argument standard in a detailed and thoughtful manner. The opinion recognizes that the fair argument must be supported by substantial evidence in the record. The court rejects numerous attacks on the MND in this case where the arguments constituted vague criticisms unsupported by any specific facts. At the same time, the opinion demonstrates the perils of relying on a negative declaration. Because the petitioners supported a fair argument that the project may have a significant traffic impact, the County will be required to prepare an EIR analyzing the traffic impact.