Posts Tagged ‘Addendum’


On remand from the Supreme Court’s holding in Friends of the College of San Mateo Gardens v. San Mateo County Community College (2016) 1 Cal.5th 926 (San Mateo I ), the First District interpreted the Supreme Court’s direction as requiring the application of the fair argument standard of review to claims challenging an addendum to a negative declaration in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal. App.5th 596.

The Supreme Court’s holding in San Mateo I

The San Mateo cases concern the San Mateo County Community College District’s campus renovation project, approved with a mitigated negative declaration (MND) in 2006. In 2011, the College decided to demolish an area of the campus (the Building 20 Complex) that was planned for renovation under the 2006 plan, and construct a parking lot in its place. The updated plan was analyzed in an addendum to the 2006 MND. The suit in San Mateo I followed, with the petitioner alleging that the updated plan was a “new project” under CEQA, and not a modified project subject to CEQA’s subsequent review provisions (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162.). Both the trial court and the First District held that it was a new project, and therefore, the District was not entitled to rely on an addendum.

The Supreme Court reversed, noting first that the proper inquiry under CEQA was not whether or not a project is new or modified, but whether or not the initial environmental document retains informational value in light of the proposed modifications, or if it had become irrelevant.  This is a factual determination to be made by the agency and reviewed for substantial evidence.

If the agency’s decision to proceed under CEQA’s subsequent review provisions is supported by substantial evidence, a court may consider the type of subsequent document prepared by the agency. The standard of review applied by the court in reviewing that decision turns on the nature of the original documents. The agency must first determine if there are substantial changes to the project that require “major revisions” in the original environmental analysis. This determination is reviewed for substantial evidence. When the project was previously reviewed in an EIR, there are no “major revisions” if the initial EIR has already adequately addressed any additional environmental effects expected to result from the proposed modifications. In contrast, when a project is initially approved with a negative declaration, a “major revision” to the negative declaration will necessarily be required if the proposed modification may produce a new or previously unstudied significant environmental effect. If there is no major revision required, the agency can issue a subsequent mitigated negative declaration, addendum, or no further documentation.

Application in San Mateo II

The court applied the two-part test of San Mateo I to the College’s decision to rely on an addendum to the 2006 MND. First, the court conceded that the agency determination—that the MND retained informational value in light of the revised campus plan—was supported by substantial evidence. It retained informational value because the revised plan considered in the addendum did not affect plans to demolish 14 buildings cited in the original plan. The revised plan added one more building complex to the demolish list, but the College had previously removed two others, deciding to renovate them instead. The mitigation measures adopted with the original plan remained in place.

Applying the second prong of the Supreme Court’s test, however, the court held that the College violated CEQA’s subsequent review provisions by preparing an addendum to the MND, because the removal of gardens in the Building 20 Complex could result in a significant aesthetic impact, under the fair argument standard of review.

Interpreting this second prong of the San Mateo I test, the San Mateo II court stated that when the initial environmental review document is an negative declaration, the court must apply the more exacting standard applicable to negative declarations—whether there is substantial evidence to support a fair argument that the proposed changes to the project might have a significant effect on the environment. The court acknowledged that aesthetic impacts are necessarily subjective, but agreed with the petitioner that substantial evidence of a fair argument could be found in the opinions based on direct observation. The impact is not determined by the size of the area, but measured in light of the context in which it occurs, and this can vary by setting.

Here, the court relied on the opinions of campus employees and students regarding the garden’s aesthetic value and quality. Although not a significant portion of the campus’ open space (less than one-third of one percent), the garden’s vegetation and landscaping were alleged by its admirers to be unique. The garden’s social value as a gathering space was also considered. Because the court determined that this lay testimony qualified as substantial evidence to support a fair argument of a potentially significant aesthetic impact, the College’s decision to rely on an addendum violated CEQA’s subsequent review provisions, as an addendum is only appropriate if there are no new or more severe significant impacts than were previously analyzed.  However, the court declined to order the preparation of an EIR, stating that the College could choose to prepare a subsequent MND if the impacts to the garden could be mitigated to a less-than-significant level.

In Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, the Fourth District Court of Appeal found that the city’s environmental impact report (EIR) failed to sufficiently analyze potential energy impacts and that the adoption of an addendum subsequent to EIR approval could not be considered in determining the EIR’s adequacy because it was not part of the administrative record. Therefore, the appellate court reversed the trial court’s ruling that the EIR was adequate when analyzed in tandem with the addendum.

The project at issue was a Costco warehouse store and gas station. The EIR concluded the project would have significant traffic impacts but the city certified it and adopted a statement of overriding conditions.  CEQA requires that EIRs propose mitigation measures to reduce the wasteful, inefficient, and unnecessary consumption of energy. Although the certified EIR mentioned energy impacts throughout, it did not contain a separate section devoted to energy impacts analysis. One section stated that since the project would comply with the California Code of Regulations Title 24 energy conservation standards, it would not result in wasteful, inefficient, and unnecessary consumption of energy.

Project opponents filed a petition asserting that the EIR failed to include adequate information regarding the project’s energy use. After the writ petition was filed, the Third District Court of Appeal issued an opinion finding that the analysis of energy impacts in an EIR substantially similar to the one at issue in this case was inadequate. In California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC) the Third District held that the energy analysis was insufficient for three reasons: (1) the EIR concluded the project would generate new trips without calculating the impacts of those trips; (2) the EIR improperly relied on compliance with the building code to mitigate energy impacts without analyzing the additional considerations required by appendix F; and (3) reliance on mitigation measures designed to reduce greenhouse gas emissions was misplaced because though there may be a correlation between the two, air quality mitigation is not a substitute for energy analysis. Ukiah’s EIR had all three of these problems. The city addressed these deficiencies by adopting an addendum to the EIR, and the trial court read the two documents together and concluded the energy analysis was adequate.

The court of appeal reversed the trial court’s decision upholding the EIR and found that subject to Code of Civil Procedure section 1094.5 the addendum was not part of the administrative record and therefore could not be considered in deciding whether the city abused its discretion in certifying the EIR. CEQA Guidelines section 15164, which allows the preparation of addendums, assumes the EIR previously certified was adequate and does not allow retroactive correction of inadequate EIRs. Thus, the court directed the city to set aside its project approval and certification of the EIR until recirculation of the energy analysis and consideration of public comments took place. The court did not offer any opinion on the adequacy of the addendum.

In the unpublished portion of the opinion the court rejected the rest of the project opponent’s arguments. First, the impacts from an interchange improvement discussed in the traffic section of the EIR did not need to be analyzed because it was a longstanding proposal that was needed regardless of the project. Second, the population estimates used in the traffic study were supported by substantial evidence. Third, the court held that the noise study was sufficient and that the impacts to nearby hotel guests were insignificant because nighttime deliveries already occurred for existing commercial uses. Lastly, the court found that the Airport Industrial Park specific plan, with which the project was inconsistent, did not apply because it was effectively superseded.

Written by Sabrina S. Eshaghi

The First District Court of Appeal held that changes to the City of San Jose’s Airport Master Plan did not constitute a new project as a matter of law and did not require supplemental review under Public Resources Code section 21166. The court ordered publication of the opinion – Citizens Against Airport Pollution v. City of San Jose (June 6, 2014, Case No. H038781) – on July 2, 2014.

The center of the dispute was an addendum to the City of San Jose’s 1997 EIR prepared for its International Airport Master Plan. The city had also prepared a Supplemental EIR for the plan in 2003. The addendum, which was the city’s eighth addendum to the 1997 EIR, assessed the impacts of proposed amendments to the Airport Master Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets.

Petitioner Citizens Against Airport Pollution’s (CAAP) primary argument was that the amendments to the Airport Master Plan addressed in the eighth addendum constituted a new project as a matter of law, and therefore, an EIR addendum was barred under CEQA. Alternatively, CAAP argued that an EIR addendum could not be used to analyze the environmental impacts of the plan changes, since those changes were substantial and required major revisions to the EIR with respect to noise, greenhouse gas emissions, toxic air contaminants, and biological resources.

The Court of Appeal was not persuaded by CAAP’s argument that the changes to the Airport Master Plan constituted a new project as a matter of law, and that the city was therefore required to prepare a new EIR. The court confirmed that the an agency’s determination on whether supplemental environmental review is required is review under the substantial evidence test, distinguishing previous cases that applied the “fair argument” standard to the question of whether a subsequent approval was “within the scope” of a previous approval.

The court next turned to CAAP’s alternative argument that the city was required to prepare a supplemental EIR for the plan amendments because they were “substantial changes” requiring “major revisions” in the EIR. CAAP claimed that there would be new or more severe impacts in several areas including noise, greenhouse gas emissions, air quality, and biological resources.

Notably, the court rejected CAAP’s argument that the city was required to analyze Greenhouse Gas Emissions for the project since CEQA Guidelines section 15064.5, which requires analysis of GHG impacts in EIRs, was added to the Guidelines after the 1997 and 2003 EIRs were prepared. Relying on CREED v. City of San Diego (2011) 196 Cal.App.4th 515, the court held that the potential for GHG impacts was not substantial new information triggering the need for a supplemental EIR. Rather, the potential for GHG impacts have been known since well before the first EIR for the Master Plan was adopted.

The court also held that there was substantial evidence demonstrating that there would be no new or more severe impacts to biological resources. The addendum acknowledged that the project changes would result in the loss of four acres of burrowing owl habitat and included mitigation measures to mitigate the impact. The court explained that mitigation measures can be modified in an addendum if there is a legitimate reason and the changes are supported by substantial evidence. The mitigation measures in the addendum met that standard because they completely offset the loss of the four acres by establishing new permanent habitat. Moreover, the mitigation measure was only a change in the location of habitual preserved under a burrowing owl mitigation plan that as established for the 1997 EIR and it would be managed within the parameters of the established plan.

The court also upheld the city’s determination that potential changes in noise and air quality impacts did not trigger a supplemental environmental review because jet engines of today and the future are quieter and cleaner than the engines of 1997.