Tag: subsequent review

FIRST DISTRICT HOLDS RESIDENTIAL DEVELOPMENT PROJECT THAT IS CONSISTENT WITH SPECIFIC PLAN AREA IS EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW

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In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal upheld the city’s determination that a residential project within a specific plan area was exempt from further environmental review under Government Code section 65457, which provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.

Background

In 2010, the city certified an environmental impact report (EIR) for a specific plan. The specific plan allowed for development of up to 1,260 residential units, and a golf course and related facilities spread across identified subareas (Areas 3 and 4). Area 4 contained wetland habitat for the salt marsh harvest mouse, a state-protected species. After petitioners filed suit under CEQA, the trial court found several deficiencies with the EIR.

In response, the city prepared a recirculated EIR (REIR), which stated that it was a program-level analysis of the impacts related to development of housing and the golf course in Areas 3 and 4 because the final design of those components was not yet known. In March 2015, the city certified the final REIR and re-adopted the 2010 specific plan.

In 2019, the developer submitted a proposed subdivision map for approval of 469 residential lots, omitting the golf course that was previously authorized by the specific plan.

The city prepared a checklist to determine whether the REIR adequately analyzed the environmental impacts of the proposed subdivision map and concluded that the project was consistent with the specific plan and that there were no changed circumstances or new information that might trigger additional environmental review. Accordingly, the city determined the project qualified for the statutory CEQA exemption under Government Code section 65457.

Petitioners challenged the city’s determination, arguing that a subsequent EIR was required due to changes in the project showing that it would have new significant impacts on the endangered harvest mouse.

Court of Appeal’s Decision

To qualify for the Government Code section 65457 exemption, a project must be for residential development, must be consistent with a specific plan for which an EIR was previously certified, and circumstances requiring subsequent environmental review (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) must not be present.

Petitioners alleged that three changes to the project created new significant impacts triggering the requirement for a subsequent EIR:

(1) Fill of only uplands and not wetlands inhibited wetland migration;

(2) Omission of the golf course deprived the harvest mouse of escape habitat; and

(3) Use of riprap on the banks of elevated upland increased predation of the harvest mouse.

The court disagreed, finding that substantial evidence supported the city’s conclusion that none of the changes significantly increased the impacts on the harvest mouse beyond what the REIR analyzed, i.e., the impacts of the complete development of all of Area 4. The court noted that the project as approved would develop fewer total acres and include far fewer residential units than analyzed in the REIR.

In regard to petitioners’ specific arguments of new impacts, the court held the REIR addressed the impact of loss of upland escape habitat and found that the impact would be less than significant because the uplands did not provide high quality transitional habitat as they were regularly used for agriculture. The project would develop less upland than previously analyzed, meaning the project would eliminate less, not more, upland escape habitat. Additionally, because of the low value of upland habitat, the REIR’s less-than-significant determination did not depend on the golf course continuing to provide upland habitat. Accordingly, the elimination of the golf course did not affect that determination.

While the REIR did not discuss the use of riprap to stabilize the slopes of the filled and raised development areas, the court found this did not require subsequent environmental review because the REIR already examined the issue of rat predation on the harvest mouse and petitioners cited to no evidence that the riprap would substantially increase the severity of predation effects. The court acknowledged that there could be some potential increase in predation due to riprap but recognized that the Section 65457 exemption sets a higher threshold for environmental review. Like other statutory exemptions, the court said, Section 65457 reflects the Legislature’s determination that the interest promoted, which here was to increase the housing supply, was important enough to justify foregoing the benefits of environmental review.

The court also rejected petitioners’ claim that changed circumstances and new information related to sea level rise triggered subsequent review. Petitioners argued that the city was required, due to new scientific insights concerning the amount and rate of sea level rise, to analyze whether the project would exacerbate the effects of sea level rise because of how the project would interact with wetlands in the area (e.g., wetland migration). Even assuming wetland migration must be analyzed under CEQA, the court found that it was mentioned in the original 2010 EIR and the REIR assumed that all developable areas would be impacted. Accordingly, the court concluded that petitioners should have raised this argument in response to the REIR, or even the 2010 EIR.

Finally, the court rejected petitioners’ claim that an adaptive management approach to sea level rise was impermissibly deferred mitigation. The court held that the city’s adaptive responses were not mitigation because sea level rise is not an environmental impact caused by the project that needs to be analyzed under CEQA.

– Nina Berglund

Third District Court of Appeal Holds That a Responsible Agency’s Decision to Prepare a Supplemental EIR Does Not Require It to Step in as a Lead Agency

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In California Coastkeeper Alliance v. State Lands Commission (2021) 64 Cal.App.5th 36, the court upheld the State Lands Commission’s decision to prepare and approve a supplemental Environmental Impact Report for the proposed Lease Modification Project for the Poseidon desalination plant in Huntington Beach, California. The court concluded that the Commission did not engage in piecemealing, improper deferral of environmental review or inadequate consideration of alternatives, and was not required under California Code of Regulations, title 14, section 15052, subdivision (a)(2) (“CEQA Guidelines”) to step in as the lead agency for the lease modification.

Background

In 2010, the City of Huntington Beach approved a subsequent EIR to the initially certified 2005 EIR for the desalination project. There were no legal challenges to the 2010 subsequent EIR.

In 2015, the State Water Resources Control Board amended its Water Quality Control Plan to include a Desalination Amendment, which updated methods for intake and discharge systems in desalination facilities. The Desalination Amendment also required the Regional Water Quality Control Board to conduct an analysis under Water Code section 13142.5, subdivision (b) of all new and expanded desalination facilities and required that the owner or operator evaluate a reasonable range of nearby sites for subsurface intakes. In response, Poseidon modified the project in 2016 and 2017 to include (1) one-millimeter steel screens on the offshore intake pipeline to reduce impingement and entrainment; (2) three-port diffusers to diffuse brine discharge reentering the ocean; and (3) a reduction of the seawater intake volume of the Project by 45.3 million gallons per day.

In 2017, the Commission, as a responsible agency, elected to prepare a supplemental EIR for the proposed lease modification project, which incorporated the 2010 subsequent EIR by reference. California Coastkeeper Alliance filed a petition for writ of mandate challenging the certification of the 2017 EIR.

The Court of Appeal’s Opinion

Decision to Prepare a Supplemental EIR

The court determined that substantial evidence supported the Commission’s decision to prepare a supplemental EIR instead of a subsequent EIR. Pursuant to CEQA Guidelines section 15163, the 2017 version of the project consisted of only minor additions or changes from the 2010 version. Therefore, the Commission did not prejudicially abuse its discretion.

Assuming the Lead Agency Role

Rejecting the petitioners’ contention that the Commission was required to assume lead agency status under CEQA Guidelines section 15052, the court concluded that this requirement was inapplicable. A proper determination to prepare a supplemental EIR, rather than a subsequent EIR, removes the subsequent environmental review from the scope of CEQA Guidelines section 15052. Thus, the Commission was not required to step in as the lead agency. The court also rejected the petitioners’ argument that the Commission “acted like” a lead agency during the review process, stating that it acted like a responsible agency because a supplemental EIR is subject to the same notice and public review requirements as the initial draft EIR.

Piecemealing

Petitioners claimed that the Commission illegally piecemealed the project by only reviewing the lease modification project, and not the entire desalination project. The court explained, however, that the 2017 EIR incorporated by reference the 2010 EIR, which was never challenged and thus presumed to comply with CEQA for purposes of use by the Commission. The Commission was thus only required to analyze the changes to the project since the 2010 subsequent EIR, which it did. Further, the court rejected the petitioners’ contention that the Commission deferred parts of the environmental review analysis to other agencies. Again, the Commission satisfied its requirements by analyzing the impacts associated with the proposed enhancements to the project in combination with the previously analyzed impacts.

Consideration of Alternatives and Current Conditions

Petitioners also challenged the Commission’s consideration of alternatives to the project on several grounds, all of which the court rejected. Pursuant to CEQA Guidelines section 15126.6, the court concluded that the 2017 supplemental EIR considered a reasonable range of alternatives, including an intake pipeline extension and a two-port brine diffuser. The court held that the Commission was not required to reevaluate alternatives that were considered and rejected in the 2010 subsequent EIR, nor was it required to consider alternatives beyond those relevant to the proposed modifications.

The court also dismissed the petitioners’ assertion that changes in Orange County’s water needs supplanted the need for the project because they failed to lay out evidence in support of their position, which was fatal to their claim. Even if they had provided evidence in support of their claim, the court reasoned, substantial evidence in the record supported the Commission’s conclusion that Orange County still needed the project to add to its water supply.

Lastly, the court determined that the Commission was not required to consider the Orange County Water District’s (“OCWD”) construction of a new water distribution option involving injection wells and pipelines as a reasonably foreseeable project change. Based on the record, the court concluded that any consideration by OCWD of a different water distribution system than what was reviewed in the 2010 EIR was merely speculative and not reasonably foreseeable. The court held that the Commission had no way to know the particulars of a potential new distribution system, and therefore an EIR could not provide meaningful information on such a speculative change.

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

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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.

 

 

Friends of the College of San Mateo Gardens v. San Mateo County Community College District

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Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937

In a unanimous decision, the California Supreme Court emphatically rejected the notion that public agencies should get no deference in deciding whether to treat proposed projects as changes to previously reviewed projects or as new projects under CEQA. In doing so, the court strongly disagreed with the reasoning presented in the Third District’s decision in Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, which first articulated the “new project” threshold question as a de novo question of law for the courts. The Supreme Court concluded that Division One of the First District Court of Appeal erred in applying Lishman’s “new” project standard to the case at hand, which involved a community college district’s proposed changes to the disposition of a small building complex and landscaped area on a campus for which a campus-wide renovation plan was previously reviewed in an unchallenged mitigated negative declaration (MND). The district considered the subsequent changes in an addendum to the MND and approved the demolition of an existing complex of outdated buildings and their replacement with a new parking lot, concluding that the changes posed no new or more severe environmental impacts than were previously described in the adopted MND.

The Supreme Court granted review to resolve the question of whether Lishman’s “new project” test was the correct approach for courts reviewing subsequent review documents, or whether courts should follow the more deferential, substantial evidence standard explained in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385. Few appellate courts had followed the Lishman approach after the court in Mani Brothers rejected it. Division One of the First District applied it to the college district’s case in an unpublished decision, but oddly declined to apply it again a few weeks later in its published decision, Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 201-202, thereby highlighting the conflict in the law.

The Supreme Court noted that the Lishman court’s focus on the similarities or lack thereof in the features associated with an originally-reviewed project and subsequent proposal as lacking any basis or standards in CEQA. The court further noted that because of the lack of any standards or framework for measuring the “newness” of a given project, a “new project” test applied by the courts “would inevitably invite arbitrary results.” Moreover, the court emphasized that, given the purpose of CEQA to ensure agencies consider the environmental effects of proposed actions, focusing on the characterization of a proposed project as a new project or a modified project misses the point of subsequent review. Rather, the court concluded, the fundamental determination an agency must make is whether an original environmental document retains some informational value, or whether the proposed changes have rendered it wholly irrelevant.

The court affirmed the college district’s view (shared by the Regents of the University of California, League of California Cities, California State Association of Counties, Association of California Water Agencies, California Building Industry Association, Building Industry Association of the Bay Area, and California Business Properties Association, who participated as amicus parties at the Supreme Court) that the question of whether an initial environmental document remains relevant in light of changed plans or circumstances is inherently a factual question for the agency to answer in the first instance and is reviewable under the deferential substantial evidence standard of review.

Following oral argument, the court ordered supplemental briefing on two issues: (1) the standard of review that applies to an agency’s determination not to prepare an EIR for modifications to a project that was previously reviewed by a negative declaration; and (2) whether CEQA Guidelines section 15162, as applied to projects initially approved by negative declarations rather than EIRs, was a valid interpretation of the governing statute, Public Resources Code section 21166, which does not mention negative declarations. Guidelines section 15162, subdivision (a) prohibits agencies from requiring a subsequent or supplemental EIR unless the agency determines “on the basis of substantial evidence in the light of the whole record,” that “substantial changes . . . will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” The court rejected the petitioner’s argument that application of this substantial evidence standard in section 15162(a) to projects initially analyzed in negative declarations creates a CEQA loophole that permits agencies to evade their obligation to prepare an EIR under the less deferential fair argument standard. As the court explained, “the substantial evidence test referred to in the Guidelines does not, as plaintiff supposes, refer to substantial evidence that the project, as modified, will necessarily have significant environmental effects. It instead refers to substantial evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require major revisions of the previous EIR or negative declaration due to the involvement’ of new or significantly more severe environmental effects.” The court held that section 15162 constitutes a valid gap-filling measure as applied to projects initially approved via negative declaration, including the college district’s project at hand.

Lastly, the court rejected the petitioner’s contention that the subsequent review schemes in the statute and Guidelines were inapplicable to the district’s project because the originally-approved campus renovation project was more akin to a plan or program than a specific project. Both the Court of Appeal below and petitioner relied on Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 to conclude that when an agency initially adopts a broad, large-scale environmental document (such as the college district’s original MND) that addresses the environmental effects of a complex long-term management plan, a court can find that a material alteration to the plan regarding a particular site or activity may be a new project triggering environmental review under Public Resources Code section 21151. The Supreme Court rejected the attempt to frame the original campus renovation plan and subsequent changes to the disputed area in this manner, holding that the tiering provisions, and therefore the Sierra Club decision, had no applicability here. The court noted that unlike the program EIR at issue in Sierra Club, the MND previously adopted by the college district was a project-specific review that could not be characterized as a first-tier document.

The Supreme Court remanded to the Court of Appeal’s consideration the merits of the district’s addendum and approval of the building demolition and parking lot project. The Court of Appeal had not previously reached the merits because of its conclusion that the subsequent project was “new.”

RMM partners Sabrina V. Teller and James G. Moose represented the respondent San Mateo County Community College District in the litigation from the trial court through the Supreme Court.