Tag: LOS

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

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.

THIRD DISTRICT PARTIALLY AFFIRMS JUDGMENTS SETTING ASIDE EIR FOR SPECIFIC PLAN LAND SWAP IN EASTERN PLACER COUNTY

General Posted by Bridget McDonald

In a 123-page decision, League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63, the Third District partially affirmed the trial court’s judgment in two cases granting a petition for writ of mandate, finding that the EIR for the Martis Valley West Parcel Specific Plan (Project) failed to adequately describe the environmental setting of Lake Tahoe regarding water quality, failed to adequately analyze impacts to Lake Tahoe water quality resulting from automobile trips, impermissibly deferred the formulation of mitigation for GHG impacts, failed to analyze proposed mitigation for the Project’s significant and unavoidable traffic impacts on SR 267, and failed to analyze whether renewable energy features could be incorporated into the Project. The Court of Appeal upheld the EIR’s analysis of impacts to forest resources and air quality, including the County’s reliance on the Placer County Air Pollution Control District’s (PCAPCD) thresholds of significance. The court also upheld the County’s decision not to recirculate the Draft EIR and to immediately rezone the subject property out of Timberland Productivity Zone (TPZ). Lastly, the Court of Appeal reversed the trial court’s decision that the EIR did not adequately analyze emergency evacuation impacts.

Background

Real Party in Interest, Sierra Pacific Industries (SPI), owns two undeveloped parcels on either side of SR 267, between Truckee and Lake Tahoe. The West Parcel is southeast of the Northstar Resort and has 1,052 acres. The East Parcel has 6,376 acres. The existing zoning and land use designation in the Martis Valley Community Plan (MVCP) allows up to 1,360 residential units and 6.6 acres of commercial uses in a 670-acre area of the larger east parcel. Otherwise, both parcels are zoned TPZ and designated as forest in the MVCP. Starting in 2013, SPI and its partners (collectively, Real Parties in Interest or RPI) proposed that the County adopt a specific plan for the two parcels that would amend the MVCP and zoning to move the residential and commercial uses from the East Parcel to the West Parcel, reduce the residential capacity from 1,360 units to 760 units, immediately rezone 662 acres on the West Parcel out of TPZ, and rezone the entire East Parcel as TPZ. Following adoption of the specific plan, the applicants would sell the East Parcel for conservation purposes or place the land in a conservation easement. The effect of the land swap would be to allow development on the West Parcel, adjacent to Northstar and existing residential development, while permanently conserving all 6,376 acres of the East Parcel, connecting some 50,000 acres of open space east of SR 267. Two small areas of both parcels are within the Lake Tahoe Basin, and thus subject to the jurisdiction of the Tahoe Regional Planning Agency (TRPA), but neither area would be included in the specific plan.

The County circulated a draft EIR for the Project in 2015. In 2016, the County certified the final EIR, immediately rezoned the 662-acre project area of the West Parcel out of TPZ, rezoned the East Parcel to TPZ, and adopted the specific plan.

Sierra Watch, Mountain Area Preservation, and the League to Save Lake Tahoe (collectively, Sierra Watch) filed a lawsuit challenging the EIR and the County’s finding that immediately rezoning the project area on the West Parcel was consistent with the purposes of the Timberland Productivity Act (TPA). The California Clean Energy Committee (CCEC) filed a separate petition, also challenging the EIR. The trial court issued judgments in April and June 2018, rejecting all the challenges to the EIR, with the exception of the EIR’s analysis of impacts to emergency evacuations, and upholding the County’s findings on the immediate rezone out of TPZ. Sierra Watch and CCEC filed separate appeals, and the County and RPI cross-appealed on the emergency evacuation issue.

Court of Appeal’s Decision

On appeal, Sierra Watch argued that the EIR failed to adequately describe the Lake Tahoe Basin’s existing air and water quality, that the County should have adopted the TRPA’s threshold of significance for vehicle miles traveled (VMT) with respect to basin air and water quality, and that the EIR failed to adequately analyze the impacts of project traffic on air and water quality in the basin. Sierra Watch also challenged the County’s decision not to recirculate the EIR following changes to the analysis of GHG impacts, and argued that the adopted GHG mitigation measure was invalid. Lastly, Sierra Watch argued that the County violated the TPA by failing to make required findings. In their cross-appeal, the County and RPI argued that the EIR’s analysis of impacts to emergency evacuations was adequate, and that substantial evidence supported the EIR’s conclusion that the impacts would be less than significant.

CCEC’s appeal argued that the EIR did not adequately describe existing forest resources or analyze cumulative impacts to forest resources, failed to analyze feasible traffic mitigation measures proposed in comments, failed to disclose significant impacts from widening SR 267, and failed to discuss the use of renewable energy sources to meet Project energy demand. CCEC also argued that the adopted GHG mitigation measure was infeasible and unenforceable.

Lake Tahoe

The Court of Appeal found the County was not legally required to use TRPA’s thresholds of significance for measuring the Project’s impacts because, although the two parcels did include land within TRPA’s jurisdiction, the Project was revised to not include those areas. Instead, the County, as the lead agency, had discretion to rely on TRPA’s thresholds or those of another agency, or use their own thresholds, including thresholds unique to the Project. The court also concluded that, while TRPA had “jurisdiction by law” over resources that could be affected by the Project, and was thus, a “Trustee agency” under CEQA, they were not a “Responsible agency” because they had no permitting authority over the Project.
The court also found that the County did not abuse its discretion in adopting the PCAPCD’s thresholds of significance for the project’s air emissions impacts because, contrary to Sierra Watch’s claims, the PCAPCD’s significance thresholds were adopted to address air and water quality (resulting from air emissions) within the Tahoe Basin. However, the EIR failed to adequately describe the existing water quality of Lake Tahoe, which could be impacted by “crushed abrasives and sediment” from project traffic within the basin. According top the court, the EIR did not include a threshold of significance (though several were discussed in post-EIR responses to comments) for such impacts, even though there was substantial evidence that the project-generated traffic would travel within the basin, which the court found to be an abuse of discretion.

Recirculation

Sierra Watch argued that the revisions to the draft EIR’s GHG analysis included in the Final EIR triggered the need to recirculate. The draft EIR included a tiered analysis of GHG impacts. First, annual Project GHG emissions were calculated and compared to PCAPCD’s numeric threshold of 1,100 MTC2E for residential development. Second, although the draft EIR acknowledged that little, if any, of the Project would be constructed by 2020, the EIR compared a completed Project in 2020 with the GHG reduction measures, including those required by law, in place with a “no action” or “business as usual” scenario to determine the Project’s GHG efficiency, pursuant to the California Air Resources Board’s revised Scoping Plan. The draft EIR concluded that, because the Project would generate GHG emissions substantially greater than the numeric threshold, and because it was uncertain what regulatory GHG measures would be in place after 2020, when the Project was likely to begin operating, the impact was significant and unavoidable.

Before the final EIR was published, however, the California Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204 (Newhall Ranch). Newhall Ranch ruled that an efficiency metric comparing a proposed project to a hypothetical “business as usual” scenario was a permissible way to analyze GHG impacts, but the Scoping Plan’s statewide efficiency threshold required additional evidence and analysis to apply to individual projects, and the EIR in that case did not include the required connection. In response to Newhall Ranch, the final EIR dropped the efficiency analysis, but affirmed the draft EIR’s conclusion that impacts would be significant and unavoidable because the Project would generate emissions exceeding the numeric threshold, and because of the uncertainty around future regulatory GHG reduction measures. The County concluded that, because the significance conclusion did not change, recirculation was not required. The Court agreed recirculation was not required because the final EIR did not show new or substantially more significant effects, and merely clarified or amplified the information provided in the draft EIR.

GHG Mitigation

The court agreed with the appellants that the GHG mitigation measure impermissibly deferred determining the significance of GHG impacts, because the measure required future tentative maps to establish consistency with future efficiency targets adopted in compliance with the Newhall Ranch decision, even though the EIR acknowledged that no such targets existed and may not ever exist. The measure provided a suite of proposed mitigation tools that future maps could use to meet the efficiency targets. The court reasoned that, if no efficiency target consistent with Newhall Ranch became available, mitigation would never be triggered. RPI and the County argued that, if no efficiency targets were available, the 1,100 MTC2E threshold would apply to future maps, but the court found that the language of the measure itself did not include the numeric threshold.

Emergency Evacuations

The court agreed with the County and RPI that the EIR’s analysis of impacts to emergency evacuation plans was adequate and the EIR’s conclusion that impacts would be less than significant was supported by substantial evidence. The court upheld the EIR’s reliance on the questions in Appendix G to the CEQA Guidelines to set a threshold of significance. The EIR acknowledged that adding people and development to the area could exacerbate cumulative impacts to evacuation but concluded that the impact was less than significant because the project would not cut off or modify any evacuation routes and would not prevent an evacuation from occurring or otherwise interfere with the implementation of the County’s evacuation plans. The court found that the conclusion was supported by substantial evidence, including the EIR’s analysis of how long it would take to evacuate the project site, the number of emergency access/evacuation roads included in the project, the requirement that RPI develop a “shelter in place” feature, and the analysis of impacts to fire department response times.

The court acknowledged that evacuation planning involved multiple unknown factors and a host of potential circumstances which made it difficult to predict how an evacuation might play out or how a project could impact such an evacuation. The court reasoned that because the County had discretion as the lead agency to decide how to analyze an impact, the court would defer to the County’s methodology decision provided it was reasonable and supported by substantial evidence. The court found that it was. The court concluded that many of Sierra Watch’s challenges to the EIR’s analysis amounted to requests for further analysis, additional modeling, and speculative hypothetical scenarios. The court cited Guidelines sections 15145 and 15151 for the propositions that the EIR need not speculate and need not be exhaustive. While some of the evidence, relating to fire prevention and fire department response times, did not directly relate to emergency evacuation planning, the evidence indirectly supported the County’s conclusions by demonstrating that the project was reducing the likelihood of wildfire on the site and reducing the need for an evacuation.

Sierra Watch also argued that the EIR was internally inconsistent because the traffic analysis reached the opposite conclusion of the emergency evacuation analysis regarding project traffic on SR 267. The court found that the EIR’s conclusion that project generated traffic would have a significant impact on vehicle delay was not inconsistent with the conclusion that project generated traffic would not substantially interfere with emergency evacuation plans. The court reasoned that the two analyses focused on different types of impacts, with time (as measured by vehicle delay) being the focus of the traffic analysis and public safety being the focus of the emergency evacuation analysis.

Forest Resources

The court upheld the EIR’s conclusions that cumulative impacts to forest resources were less than significant. The EIR discussed the County’s 1994 General Plan EIR’s analysis of impacts to forest resources based on projected growth and development in the County and concluded that the Project’s impacts were consistent with and would not exceed the impacts disclosed in 1994 General Plan EIR. The Final EIR concluded that analyzing climate-related forest impacts, such as drought, wildfire, and tree mortality cause by bark beetles, would be speculative, and the court agreed. The court concluded that climate-driven tree mortality was not within the scope of a CEQA cumulative impacts analysis, which required the County to analyze impacts from the Project combined with past, present, and reasonably foreseeable future projects. Tree mortality is not a “project” under CEQA. The court acknowledged that climate-caused tree mortality could be exacerbated by a project, but such impacts would be best analyzed as part of the climate change and GHG analysis. The court concluded that aspect of the GHG analysis was not challenged in this case.

Traffic Mitigation

The EIR concluded that the Project’s traffic impacts on SR 267, measured in terms of delay and using the level of service (LOS) metric, would be significant and unavoidable. The EIR reached this conclusion in part because while the California Department of Transportation had plans to widen SR 267 from two to four lanes, the plan did not cover the portion of SR 267 within the Tahoe Basin, and it was uncertain when the widening would occur. Several commenters suggested that the EIR analyze transportation demand management (TDM) options to reduce traffic on SR 267. The EIR included similar measures for the Project’s impact on public transit but did not analyze whether TDM measures could further reduce the significant traffic impacts. The court, without acknowledging previous rulings by the Third District Court of Appeal finding LOS impacts to be moot given the Legislature’s directive that vehicle delay is not a significant environmental impact, ruled that the EIR failed to analyze facially feasible mitigation proposed in comments and therefore violated CEQA. The Court also found that, while the EIR did not analyze the impacts of widening SR 267, that lack of analysis was not prejudicial error because widening SR 267 was previously approved by the County in the MVCP, which concluded at the time that impacts of such a project would be analyzed in a separate EIR once the improvements were designed.

Energy Resources

Lastly, the court found fault in the EIR’s analysis of impacts to energy resources. The EIR concluded that the Project’s energy consumption impacts would be less than significant because the Project would not result in “wasteful, inefficient, or unnecessary use of energy, or wasteful use of energy resources.” The court, however, ruled that the EIR was required to analyze the Project’s potential use of renewable energy both in determining whether the Project may have a significant impact and how to mitigate that impact. Citing California Clean Energy Com. v. City of Woodland (2014) 225 Cal.App.4th 173, 209, the court concluded that the requirement to analyze renewable energy as part of a project’s impact analysis was a procedural requirement of CEQA, which the EIR failed to comply with.

– Nathan George

*RMM Attorneys Whit Manley, Chip Wilkins, and Nate George served as counsel to Real Parties in Interest in the above litigation.

OPR’s Preliminary Recommendations for Evaluation of Alternative Methods of Transportation Analysis Available for Review

General Posted by Web

Senate Bill 743, passed on September 27, 2013 directs the Governor’s Office of Planning and Research (OPR), in part, to prepare revisions to the CEQA Guidelines establishing criteria for measuring the significance of projects’ transportation impacts. OPR has produced a Preliminary Evaluation of Alternative Methods of Transportation Analysis, which develops those recommendations by exploring new ways to measure environmental impacts related to transportation. The goal of the new transportation-impact metrics is to both reduce environmental review costs and achieve better economic, health, and environmental outcomes from such review.

Currently, CEQA review of transportation impacts uses the Level of Service (LOS) metric, which focuses on vehicle delay at intersections and on roadways. Mitigation measures to increase traffic flow typically involve increasing the capacity (i.e., width) of the intersection or road, rather than encouraging alternate lower-emission forms of transportation. LOS has thus been criticized as working against state goals like GHG emissions reductions, infill development, and multimodal transportation networks. Other criticisms of the metric are that LOS is difficult and expensive to calculate; LOS measures motorist convenience rather than physical impact to the environment; and LOS skews environmental priorities by characterizing bicycle and pedestrian improvements as detrimental to transportation, thereby discouraging more environmentally friendly modes of travel.

SB 743 requires OPR to provide non-LOS evaluation methods for transportation impacts. These criteria must promote the reduction of greenhouse gases and the development of transportation networks, particularly in areas with transportation infrastructure already in place. The most important way in which SB 743 facilitates achievement of state goals is that once the new criteria are in place, LOS-measured traffic will not be considered a significant impact on the environment. The bill does not limit the type of projects to which the new transportation criteria would apply.

OPR’s preliminary evaluation studies a number of suggested alternative measures of transportation impacts including vehicle miles traveled per automobile or per capita, automobile trips generated, fuel use, and motor vehicle hours traveled. The agency’s analysis highlights the difficulty of using each metric and identifies which mitigation measures and project alternatives might result from the use of each metric.

Comments on the proposed metrics are due by February 14, 2014 to [email protected]. OPR must produce a draft of the Guidelines revisions by July 1, 2014.