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New CEQA Cases

In Tuolumne Jobs & Small Business Alliance v. Superior Court, (2014) 59 Cal.4th 1029, the California Supreme Court held that CEQA review is not required when a local government entity adopts a voter submitted land use initiative directly (and without the need for a public vote), just as CEQA review is not required before voters adopt an initiative at an election.

In Rominger v. County of Colusa, (2014) 229 Cal.App.4th 690, the court held that the approval of a tentative subdivision map was subject to CEQA review categorically – even if a specific development project was yet to be planned. The court further held that CEQA procedural errors (in this case, failure to post public notice of the County’s intent to adopt a mitigated negative declaration (MND) for the full 30 days) constituted abuse of discretions, but such errors are not grounds for reversal unless they are shown to be prejudicial. The court held that the 27-day notice period in this case was not prejudicial. Also, the court rejected arguments that an EIR (as opposed to an MND) was required to address potential agricultural, odor, noise, air quality, greenhouse gas and water supply impacts, but the court agreed that an EIR was required to address potential traffic issues.

Citizens for Restoration of L Street v. City of Fresno, (2014) 229 Cal.App.4th 340, involved environmental review of the historical value of two early 20th century houses that were to be demolished as part of a new 28-unit townhome project. Issues included whether CEQA permitted a nonelected decision-making body (in this case the City Preservation Commission) to complete environmental review and approve a mitigated negative declaration. The court held that CEQA permitted such a delegation and exercise of authority, but that the City Preservation Commission did not have this authority under the City of Fresno Municipal Code.

In Sierra Club v. County of Fresno, (5th Dist. 2014) 226 Cal.App.4th 704, the court of appeal invalidated the County of Fresno’s certification of an EIR prepared for a 2,500 residential unit mixed-use development. The main environmental issues in the case involved a new wastewater treatment plant and its effluent, related mitigation measures, and air pollutant health impacts.

In North Coast Rivers Alliance v. Westlands Water District, (5th Dist. 2014) 174 Cal.Rptr.3d 229, the question was whether various two-year, interim renewal contracts between several water districts and the United States Bureau of Reclamation relating to the Bureau’s ongoing provision of Central Valley Project (CVP) water to the water districts required an EIR, or whether these contracts were exempt from CEQA. The court of appeal held that these contracts were exempt pursuant to the statutory exemption for ongoing pre-CEQA projects (CEQA Guidelines § 15261) and the categorical exemption for the continued operation of existing facilities at the same level of use (CEQA Guidelines § 15301).

In SPRAWLDEF v. San Francisco Bay Conservation and Development Commission, (1st Dist. 2014) 226 Cal.App.4th 905, the court affirmed the San Francisco Bay Conservation and Development Commission’s (BCDC) approval of permits authorizing the expansion of the existing Potrero Hills Landfill, which is located in an upland area of Suisun Marsh. The court held that BCDC’s conclusion that smaller sized alternative were not economically feasible was supported by substantial evidence. Note that the issue in this case involved the alleged violation of a county ordinance relating to preservation of the marsh, but the court followed CEQA case law in reviewing BCDC’s analysis of project alternatives.

In City of Irvine v. County of Orange, (2015) 238 Cal.App.4th 526, the court of appeal upheld a supplemental environmental impact statement (SEIR) that was prepared for a project to convert a 1,200 inmate county agricultural honor farm to a 7,600-inmate county jail facility.  Because of various economic reasons, the SEIR was prepared in 2012, which was 16 years after the County certified the original EIR for the project in 1996.

The basic rule from the CEQA Guidelines is that whenever there is an already approved EIR and a “substantial” change in either the project or the surrounding circumstances occurs, or whenver new information that couldn’t have been discovered when the first EIR was prepared, either a “subsequent” or a “supplemental” EIR must be prepared.  The only difference is that, as explained in CEQA Guideline 15163, if there has been a substantial change, which would otherwise require a “subsequent” EIR under CEQA Guideline 15162, but “[o]nly minor additions or changes would be necessary to make the previous EIR adequate to apply to the project in the changed situation,” then the lead agency has the discretion to prepare a “supplemental” EIR that “need contain only the information necessary to make the previous EIR adequate for the project as revised.”  Regardless, the supplemental EIR must still be “given the same kind of notice and public review” as an initial draft EIR.

The major changes to the Orange County prison project between 1996 and 2012 were the consolidation of some of the smaller planned buildings into a larger, central building, and the conversion of about 30 acres of remaining agricultural land to open space (as the prison agricultural program was eliminated).  The major changes to surrounding circumstances were changes to County plans for developing the adjacent air base from a public airport to a public park.  The SEIR was 1455 pages; seven times longer than the original EIR.  The petitioner (City of Irvine) challenged the adequacy of SEIR’s analysis of traffic impacts because it only analyze two phases of the multi-phase project, and the City challenged the SEIR’s conclusion that mitigating the loss of agricultural land by purchasing other vacant land in Orange County was not economically feasible.  The court of appeal held that the SEIR’s discussion of these issues was sufficient.

In Banning Ranch Conservancy v. City of Newport Beach, (2015) 236 Cal.App.4th 1341, the court of appeal upheld an EIR prepared for the City’s plan to develop 1/4th of the 400-acre Banning Ranch property for residential and commercial purposes.  The court rejected petitioner’s argument the EIR was inadequate for failing to identify “environmentally sensitive habitat areas” (ESHAs) (a term that is defined in and required by the Coastal Act), because the Banning Ranch property was expressly excluded from the scope of the City’s Coastal Land Use Plan as a “deferred certification area” and because the ESHA issue would be addressed by the Coastal Commission later during its coastal development permit process.  The court further held that the EIR included a lengthy and analysis of biological resources that complied with CEQA requirements.  The court also rejected petitioner’s argument that the City’s approval was inconsistent with general plan “policies” and “strategies” requiring the City to “coordinate” with federal and state agencies to identify wetlands and other habitats that should be conserved.  The court deferred to the City’s own interpretation of those requirements as to the required degree of consultation and whether it needed to occur as a condition of project approval.

In Paulek v. Western Riverside County Regional Conservation Authority, (2015) 238 Cal.App.4th 583, the court held that the removal of a conservation designation from a parcel was a “project” requiring CEQA review.  The Western Riverside County Regional Conservation Authority (a joint powers authority), adopted a habitat plan to maintain open space, maintain biological diversity, and allow future economic growth in western Riverside County.  Under the plan, 153,300 of a future total of 500,000 acres still needed to be acquired from a 340,000-acre “criteria area”.  If land was contained within a criteria area, then it was subject to a development-restricted conservation overlay for county zoning purposes.  The Authority removed the criteria area conservation overlay from part of a large property owned by Anheuser-Bush in settlement of an inverse condemnation action and resulting purchase and sale agreement related to the Authority’s conservation designation over the Anheuser-Bush property.  In approving that action, the Authority found that the settlement was not a “project” subject to CEQA or was otherwise exempt.  The court disagreed.  It held that the removal of the conservation overlay was analogous to the approval of a zoning or general plan amendment, which are subject to CEQA.  It also held that the facts in the record did not support application of any of CEQA’s categorical exemptions addressing natural resource protection because removal of the conservation overlay gave rise to the potential for development and adverse environmental impacts.

South County Citizens for Smart Growth v. County of Nevada, (3rd Dist. 2013) 221 Cal.App.4th 316, was a CEQA case involving a challenge to an environmental impact report (EIR) prepared for a commercial real estate project in Nevada County. The main issue on appeal arose from some unusual procedural facts: Both the draft and final EIRs addressed four project alternatives, however, after the final EIR was released for public comment but prior to the County’s certification of it, the developer revised the project to address several concerns raised by the Planning Commission, and this is the plan that the Planning Commission supported and the County Board ultimately approved. In court, the petitioner argued that the County violated CEQA by failing to prepare and recirculate a revised draft EIR addressing the revised alternative. CEQA requires that a supplemental or subsequent EIR be prepared (and circulated for public review) whenever, “[s]ubstantial changes are proposed in the project which will require major revisions of the environmental impact report,” “[s]ubstantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report,” or “[n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” (Pub. Res. Code § 21166.) Applying section 21166, the court of appeal held that recirculation is not required simply because new information is added, but only if new information is “significant,” i.e., the EIR must be changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect. The court further held that the petitioner failed to satisfy its burden of proof that anything in the revised alternative constituted “significant” information. For example, petitioner complained that the revised project had significantly less open space than the preferred alternative discussed in the Final EIR, but petitioner failed to explain why the project impacts would be significantly different.

Latinos Unidos de Napa v. City of Napa, (1st Dist. 2013) 221 Cal.App.4th 192, also involved a supplemental EIR/recirculation issue. In 2009, the City of Napa adopted a new general plan housing element update, which mostly involved changes to the general plan housing element that increased minimum housing density in several neighborhoods, with associated changes to the zoning ordinance. The City conducted an “initial study” under CEQA to determine whether additional environmental review was necessary, and concluded that because the housing element update was within the scope of the City’s 1998 general plan program EIR, no further environmental review was necessary. Prior to the City’s approval of the housing element update, it received a detailed comment letter from a traffic engineer arguing that traffic information and analysis in the 1998 EIR was outdated and that the City was required to prepare a supplemental EIR to address potential traffic impacts based on current information. The court of appeal affirmed the City’s determination that there was no “significant new information” under Public Resources Code section 21166 and that additional environmental review was unnecessary.

Some related background: Under the “fair argument” standard, an EIR must be prepared any time there is evidence in the record constituting a “fair argument” that the project may have a significant environmental impact, even if there is contrary evidence in the record or if the approving agency disagrees. This is a very easy standard for project opponents to meet. In contrast, under the “substantial evidence” standard, courts will defer to the approving agency’s decisions provided they are supported by substantial evidence in the record. CEQA law is clear that the question of whether a full EIR is needed in the first instance is governed by the fair argument standard, but once an EIR is certified, the conclusions contained within it are governed by the substantial evidence standard. (See Parker Shattuck case, below.)

Latinos Unidos de Napa involved the question of what standard of review applied to the City’s determination that there was no “significant new information” requiring the preparation of a supplemental EIR. If the fair argument standard applied, then the City would have been required to prepare a supplemental EIR for the housing element update because of the traffic engineer’s letter. A related issue was whether the housing element update was a new project or a modification of an existing project, and what standard of review applied to that determination. The court of appeal held that the deferential, substantial evidence standard applied to an agency’s decision whether or not a project was a new, as opposed to modified, project, and also to the agency’s determination as to whether a supplemental or subsequent EIR was required pursuant to Public Resources Code section 21166. The court ultimately held that the City’s decision not to prepare a supplemental EIR was supported by substantial evidence and that petitioner failed to meet its burden of proof to overcome the City’s conclusion. This is a favorable decision for public agencies and project applicants.

Parker Shattuck Neighbors v. Berkeley City Council, (1st Dist. 2013) 2013 WL 6843689, –Cal.Rptr.3d–, addressed the “fair argument”/ “substantial evidence” rule discussed above. In that case, a neighborhood group challenged the City’s approval of a mixed-use commercial/residential project that the City approved based on a negative declaration. The court held that an expert’s opinion that a vapor-intrusion study should be performed to analyze the existence of VOCs and hydrocarbons was insufficient to create a “fair argument” because a suggestion to investigate is not evidence of an adverse impact.

©2015 Miles J. Dolinger. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship

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Miles J. Dolinger
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