Posts Tagged ‘Alternatives’


In Save Panoche Valley et al. v. San Benito County (2013) __Cal.App.4th__ (Case No. H037599), the organizations Save Panoche Valley, Santa Clara Valley Audubon Society, and Sierra Club (collectively Save Panoche Valley) challenged the County of San Benito’s certification of an EIR prepared for a proposed solar power project. The Sixth District Court of Appeal affirmed the trial court’s decision denying the petition and upholding the EIR.

Facts and Procedural Background

In 2009, PV2 Energy LLC (applicant) proposed to build a 420-megawatt photovoltaic Panoche Valley Solar Farm Project (the Project) in San Benito County on 4,885 acres of land primarily used for cattle grazing. The surrounding area is also mostly used for cattle grazing, though some land supports other limited agricultural uses. The proposed project site included land held under Williamson Act contracts. The applicant requested that the County make a finding that the project was compatible with the Williamson Act, but the County denied this request. Subsequently, the applicant requested cancellation of Williamson Act contracts on approximately 6,953 acres of land, of which approximately 4,563 were within the boundaries of the proposed project.

The County prepared a Draft EIR and circulated it for public review and comment in June 2010. The DEIR concluded that the project would result in significant and unavoidable visual impacts. The DEIR also identified potential biological impacts on populations of blunt-nosed leopard lizards, giant kangaroo rats, and San Joaquin kit foxes. The DEIR analyzed several alternatives to the proposed project, including a reduced density alternative and an alternative project site.

During the public comment period on the Draft EIR, the California Department of Fish and Wildlife (formerly Fish and Game), submitted comments recommending measures to avoid unlawful take of special species of concern, including the blunt-nosed lizard. A Final EIR was released in September 2010 which included a revised project alternative. This alternative included a conservation easement on the project site, which reduced the project size and density. Under this proposal, the project would generate approximately 399 megawatts of power. The Final EIR concluded that this revised alternative would meet most of the project objectives and eliminate five of the previously significant and unavoidable impacts on biological and visual resources.

Following release of the Final EIR, the County held a public hearing at which it certified the EIR, adopted CEQA findings, and approved the request to cancel Williamson Act contracts. Save Panoche Valley filed suit, but the trial court denied the petition for writ of mandate, and the petitioners appealed.

The Williamson Act Claims

On appeal, Save Panoche Valley argued the County erred when it cancelled the Williamson Act contracts on land within the proposed project’s boundaries. They argued the record failed to support the County’s findings that “other public concerns substantially outweigh the objectives of the Williamson Act,” and that the cancellations were made in error because land suitable for a large-scale solar facility was available which was not held under contract

Government Code sections 51200 et seq. describe the procedures for cancelling a Williamson Act contract. An city or county can only approve a cancellation if it makes certain findings. The findings must conclude either that cancellation is consistent with the Williamson Act, or that cancellation is in the public interest. In this case, the County Board found that “other public concerns” substantially outweighed the objectives of the Williamson Act.

The appellate court found support in the record for the Board’s finding. California has a well-established interest in promoting the development of renewable energy sources, apparent in legislation such as AB 32, the California Global Warming Solutions Act of 2006, and the Renewables Portfolio Standard. The record indicated that the solar project would help further the state’s progress towards achieving its renewably energy goals. Further, agriculture would continue in limited amounts on land within and adjacent to the project site encumbered by conservation easements requiring cattle grazing. The court determined this substantial evidence supported the Board’s findings, despite evidence in the record that Save Panoche Valley pointed to that supported the denial of the Williamson Act cancellations. It was the duty of the Board to weigh the pros and cons of cancelling the contracts, and not the court’s.

The appellate court also rejected Save Panoche Valley’s argument that proximate, non-contracted alternative land was available for a solar project. Under the Williamson Act, “proximate” has been construed as meaning “close enough to the restricted parcel to serve as a practical alternative for the proposed use.” The record demonstrated that the suggested alternative land was located approximately 60 miles away, in two different counties, and also included land encumbered by Williamson Act contracts. Further, portions of the land were held by water districts that the applicants had previously approached regarding a solar project but with whom the applicant had been unable to reach a deal. The court found that these and other factors provided substantial evidence supporting the Board’s determination that no proximate, non-contracted land was available for use as an alternative project site.

The CEQA Claims

In addition to their Williamson Act claims, Save Panoche Valley also challenged both the adequacy of the EIR under CEQA and the evidence supporting the Board’s various CEQA findings.

First, Save Panoche Valley argued the Board violated CEQA because it approved a project for which a feasible alternative was available. To support this argument, appellants pointed to the same alternative site they believed made the Williamson Act cancellations improper. But the Board cited several reasons for determining that the suggested alternative site was infeasible for the proposed solar project, including timing, financing, regulatory, and jurisdictional issues. These various factors provided substantial evidence in support of the Board’s rejection of the alternative site.

Second, appellants challenged the project EIR’s analysis and mitigation of biological impacts. They argued that the EIR failed to include adequate biological surveys regarding the blunt-nosed leopard lizard. But the court determined additional surveys were not necessary merely because they might be helpful. The Final EIR responded to comments from the California DFW and established a protocol for surveys to occur prior to construction. This was sufficient.

Third, Save Panoche Valley raised various challenges to mitigation measures adopted in the EIR to address biological impacts. Appellants argued that the EIR improperly deferred mitigation of impacts to the blunt-nosed leopard lizard. But the court determined the mitigation measures were not impermissibly loose or open-ended. For example, upon completion of the lizard survey, a minimum buffer of 22 acres would be set aside for each lizard. The measures did not simply call for adopting recommendations of the consultants conducting surveys. Instead, the measures provided for specific actions to be taken upon the discovery of a certain species. This particularity was sufficient to avoid improper deferral of mitigation.

The court also determined that substantial evidence supported the Board’s findings that mitigation measures would significantly reduce other biological impacts, such as potential impacts to San Joaquin kit foxes and the giant kangaroo rat. Further, substantial evidence supported the Board’s conclusion that certain mitigation lands were suitable for conservation. Finally, substantial evidence supported the Board’s selection of various ratios for mitigating certain habitat and land, such as mitigation of giant kangaroo rat habitat at a 3-to-1 ratio.

Lastly, the appellants challenged the EIR’s agricultural impact analysis. The project would convert some prime agricultural land, but mitigation measures were adopted which included the protection of land in and around the project site and the creation of agricultural conservation easements. Save Panoche Valley argued these mitigation measures failed to “minimize, rectify, reduce, and eliminate [agricultural] impacts,” because the measures did not ensure the creation of additional agricultural lands. But the court determined this was not the proper standard for “mitigation” as defined by CEQA Guidelines section 15370. Mitigation can be achieved by: (1) avoiding the impact altogether; (2) minimizing impacts by limiting the scope of the project; (3) rectifying the impact by rehabilitating or restoring the impacted environment; (4) reducing or eliminating the impact over time through preservation and maintenance operations during the life of the project; and (5) compensating for the impact by replacing or providing substitute resources or lands.

Ultimately, the court determined that the record supported conclusions reached in the EIR and the CEQA findings made by the Board, including findings made in its statement of overriding considerations.  Thus, the court of appeal affirmed the trial court’s judgment upholding certification of the EIR and project approval.

In a CEQA case originating in San Francisco, the First District Court of Appeal affirmed a trial court judgment denying a petition for writ of mandate and upholding an EIR certified by the city. The decision, Neighbors for Fair Planning v. City and County of San Francisco (2013) __Cal.App.4th__ (Case No. A135745), was filed on May 31, 2013 and recently ordered published.

Facts and Procedural Background

The real party in interest in this case, the Booker T. Washington Community Service Center (the Center), proposed demolition of the Center’s existing facility, which would be replaced by a mixed-use facility. This new facility would include 48 affordable housing units and an expanded and updated community center. The existing facility is a one-story building, while the proposed project would reach five stories.

The city planning department circulated a DEIR for the proposed project in June 2010. The project received both positive and negative comments. Numerous individuals and community groups objected to the project’s size, scope, and density, as well as the project’s visual impacts and effects on traffic and parking. To address concerns regarding the project’s visual character, the Center modified the project to break up its bulk into smaller components, reduce massing on the fifth story, and incorporate setbacks on the upper floors. The city certified the EIR and granted the Center a conditional use permit in April 2011.

The city upheld the EIR certification and use permit approval on plaintiff’s appeal. The city also approved an ordinance creating a special use district to increase allowable building height in the project area to 55 feet and density to 54 units.

The City did not violate CEQA by “preapproving” the project.

In the subsequent lawsuit, the petitioner (“Neighbors”) cited Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 in support of their argument that the city impermissibly “preapproved” the project in violation of CEQA. Specifically, the Neighbors asserted the city committed to approving the project prior to certification of the EIR. The appellate court noted that determining the appropriate timing for preparation of an EIR requires a balancing of competing factors. The CEQA Guidelines express these competing policies by recognizing legislative policy that: (1) CEQA should not be interpreted to require an EIR before a project is defined enough to facilitate meaningful review; and (2) CEQA should not be interpreted as allowing delay of EIR preparation beyond the point which it can serve its intended purposes—to inform and guide decision makers.

The general principle for balancing these two policies is described in the CEQA Guidelines: before conducting CEQA review, agencies must not “‘take any action’ that significantly furthers a project ‘in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.’” Courts have approached this principle by asking “whether, as a practical matter, the agency has committed itself to the project as a whole or to any particular features” in a way that precludes consideration of alternatives or mitigation measures that CEQA would otherwise require to be considered.

In this case, the Neighbors argued the city preapproved the project by improperly committing itself to the project and foreclosing consideration of all alternatives in 2010, when the Mayor’s Office of Housing “provided substantial funding for the project, signed commitments for millions of dollars, assigned numerous senior staff to the project, and coordinated and designed the project long before CEQA review was conducted.” Specifically, the Neighbors cited a pre-development loan agreement between the city and the Center that covered about 4% of the estimated project costs. A maximum disbursement of $550,000 was authorized prior to the completing of CEQA review. These funds were to cover predevelopment activities, such as survey and appraisal preparation, preparation of environmental studies, CEQA and NEPA review, and other expenses. The loan also described terms of repayment. It even explicitly stated that the city was not committing itself to the project.

The appellate court was not convinced by the Neighbors’ argument. Under the loan agreement, the project remained subject to review by the city, and the city’s financial support of the project extended only to exploratory and development costs recognized in Sava Tara not to require CEQA review. Further, the Center was required to repay the loan whether or not the project was approved. Finally, the city’s support of the low-income aspect of the project was only a single factor to be considered under Sava Tara and not tantamount to project approval.

The Neighbors also argued that the city preapproved the project based on adoption of the special use district ordinance allowing increased height and density. The court rejected this argument. Essentially, the Neighbors argued that the introduction of the ordinance constituted legislative action and therefore project approval under CEQA. But approval of the ordinance occurred two months after the EIR for the project was certified.

Finally, the Neighbors argued the city preapproved the project based on commitment of city staff resources and public comments by the Mayor’s Office of Housing. The appellate court was not persuaded by this evidence, stating that a supervisor’s advocacy for a project, an email from a non-profit soliciting support for the project, and a publication by the Center were insufficient to indicate the City improperly committed to the project prior to CEQA review.

The EIR prepared for the project was sufficient.

Challenging the substance of the EIR itself, the Neighbors first argued the EIR was inadequate because it relied on an improper baseline. The Neighbors pointed to one figure in the draft EIR that incorrectly identified all two-story buildings in the immediate project vicinity as three-story buildings. But the court found the DEIR as a whole adequately described the surrounding vicinity and, specifically, the heights of adjacent buildings. Further, a corrected version of the figure was included in the Final EIR certified by the Board of Supervisors, so informed decision making was not thwarted.

The Neighbors also argued the EIR was deficient for failing to evaluate relocating the Center’s existing facility to a new site as project alternative. But the court noted that the CEQA Guidelines do not require analysis of an off-site alternative in every case. The court held that the city reasonably determined, with analysis supported by substantial evidence, that it would not be feasible to relocate the Center away from the community it had historically served to an unidentified location, especially in light of the Center’s non-profit status and limited means for acquiring alternate property.

The City properly rejected a code-compliant alternative and properly issued the conditional use permit.

The Neighbors further argued the City’s rejection of a “code compliant” alternative was unsupported by substantial evidence. This alternative would reduce the number of affordable housing units from 48 to 30. The city determined this would cause the project to run an annual deficit that would need to be subsidized by the city. The Mayor’s Office of Housing testified that sound public policy supported construction of financially self-sustaining developments that would create more affordable housing units without additional public funds. Further, if the city were required to subsidize this project, it would have less funding available for other affordable housing projects. The court found these and other points to be well-established in the administrative record. Substantial evidence supported the city’s decision to reject the code-compliant alternative.

The Neighbors also argued the city’s findings that the project was necessary and desirable for, and consistent with, the neighborhood was unsupported by substantial evidence under section 303 of the San Francisco Planning Code. The record demonstrated that the city considered both the immediate neighborhood and its broader vicinity and found that the project would not be detrimental to the public health, safety, and welfare or adversely affect the General Plan. The city further found that the project was necessary or desirable because it would continue and expand upon services provided by the Center, particularly for at-risk emancipated foster youth. The findings were supported by substantial evidence, and the court found no merit in the Neighbors’ argument.

The project was consistent with the General Plan.

Lastly, the Neighbors argued that the project is inconsistent with the San Francisco General Plan because “it is incompatible with, and fails to preserve, the existing neighborhood character.” The standard of review for consistency findings is an arbitrary and capricious standard of review. Further, policies in general plans often reflect a range of competing interests that the governmental agency must weigh and balance when applying to legislative actions. Precise conformity is not required, just compatibility. The city made explicit findings that the project was consistent with various objectives and policies, including findings regarding the project’s scale and design—the Neighbors’ primary concern.  These findings were sufficient, and the court declined the invitation to second-guess the city’s determination.

On May 9, 2012, the Second District published parts 5-8 of its opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552. These sections featured Petitioner’s claims of inadequate CEQA analysis for cumulative impacts, mitigation measures, alternatives, and recirculation. In each case, the court found in favor of Respondent Metro. Parts 3 and 4 of the opinion remain unpublished.

Cumulative impacts

Petitioner argued that the cumulative traffic analysis in Metro’s Environmental Impact Report (EIR) was inadequate because it failed to consider traffic impacts of related projects. Under CEQA, an EIR must discuss cumulative impacts of a project if the project’s incremental effects are cumulatively significant, that is, if the project’s effects are significant when considered together with related effects of past, current, and probable future projects. Metro’s EIR did not separately assess cumulative traffic impacts since the discussion of the traffic impacts of the project itself was already cumulative, in that it was based on a combination of existing and future conditions with and without the project.

The court held that in analyzing cumulative impacts, the agency’s discussion should note the severity of the impacts and likelihood of their occurrence, but need not provide the same level of detail as is provided for the effect of the main project. Thus, for example, Metro’s “summary of [project] projections” did not need to include analyses specific intersections that were not under environmental review when the draft EIR was circulated.

Mitigation

Petitioner also argued that Metro failed to provide adequate mitigation measures and improperly deferred mitigation for parking, noise, safety, and construction.  The court found that the EIR’s mitigation measures were not uncertain, speculative, or infeasible, and found no evidence that the measures would be ineffective, unfunded, or not implemented.

To address spillover parking, Metro adopted a measure to monitor parking activity and work with local jurisdictions to create permit parking programs where necessary. The EIR noted that Metro would reimburse local jurisdictions for these programs. The agency included alternative mitigation options such as metered parking where a permit program would not suffice. Petitioner argued that Metro could not assure formation or effectiveness of the permit program, and that such a program would be inadequate unless it retained residents’ current ability to park in their neighborhoods. The court disagreed. The court distinguished this case from Gray v. County of Madera (2008) 167 Cal.App.4th 1099, where a mitigation measure proposing to provide bottled water to compensate for a decline in water levels “defie[d] common sense” and was not substantially similar to residents’ pre-project conditions. In contrast, residents here would still have street parking, making their situation substantially similar to pre-project conditions. Additionally, the court refused to assume that simply because Metro could not require local jurisdictions to adopt the permit program, the mitigation measure was inadequate. The mitigation set for the a specific performance standard in the form of monitoring parking activity to determine if the light rail activity would increase parking utilization to 100 percent and, if so, requiring Metro to work with local jurisdictions regarding permit parking programs. Citing the second prong of Section 21081(a), which allows an agency to make a finding regarding a significant effect that changes lie within another agency’s jurisdiction, the court noted that the feact that Metro could not require a local jurisdiction to adopt a permit program, did not make the mitigation measure inadequate.

Metro’s EIR addressed removal of street parking with measures that included replacement parking and revised parking designs, such as diagonal parking. Petitioner contended a lack of evidence that such measures were feasible, given high land costs, or would actually be implemented. Unlike in Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, there was no acknowledgement by Metro of any “great uncertainty” as to whether mitigation would ultimately be funded or implemented. The court also noted Petitioner’s failure to challenge the EIR’s financial evaluation of Metro’s ability to build the project, which included allowance for mitigation measures. Since the mitigation explicitly stated that property would have to be acquired for replacement parking, and identified parcels for that purpose, the court found the mitigation measures were not uncertain or speculative and petitioner failed to meet its burden to identify any deficiency.

In anticipation of noise and vibration effects from the project, Metro’s mitigation measures included installation of sound walls alongside the rail line. The agency added that where those walls would not suffice, it would provide for sound insulation of residences to meet the applicable noise threshold. Petitioner again argued that the measure lacked evidence of feasibility, and did not include details on how such improvements would be provided. The Court rejected Petitioner’s arguments, finding that CEQA does not require a lead agency to detail how it will actually carry out the proposed mitigation measure, so long as it commits to satisfying specific performance criteria. Metro was also not required to restore residents to their original position and eliminate noise and vibration completely; the agency merely had to minimize impacts to less-than-significant levels.

Metro included mitigation measures to address safety impacts, such as coordination with affected cities and encouragement of emergency response updates, which had been successfully implemented on other Metro rail lines. Though Petitioner repeated its argument of lack of proof of effectiveness and actual implementation, the Court saw no reason to conclude that cities would fail to update their emergency response procedures as other municipalities had done in the past.

Finally, the EIR identified possible closure of lanes in major streets during project construction, and proposed providing alternative lanes on cross streets in cooperation with the cities, as well as limiting construction to nights and weekends. Petitioner argued that these measures improperly deferred mitigation and did not include performance standards. The Court countered that limiting street closure to weekend and evening hours was an acceptable performance standard. Moreover, Metro’s required compliance with traffic control plans formulated in cooperation with affected jurisdictions and in accordance with specified manuals offered additional performance standards.

Alternatives

Petitioner claimed that Metro’s failure to include a detailed examination of grade separation in a particular segment of the project resulted in an inadequate consideration of project alternatives. The court disagreed, finding the EIR evaluated a reasonable range of alternatives and no inadequacy in the EIR’s failure to include a detailed examination of the suggested alternative. Detailed analysis of the suggested alternative was neither required, since the proposed project on its own would decrease environmental impacts to a less-than-significant level, and the suggested alternative would not have offered substantial environmental advantages over the proposed project.

Recirculation

Finally, Petitioner argued that the Final EIR reflected major changes to the project made after circulation of the draft, requiring recirculation of the EIR for further public comment. Such changes included new information on grade separation at various intersections; signal phasing at one intersection; parking; and noise impacts. CEQA requires recirculation of an EIR when significant new information is added, such that the public is deprived of a meaningful opportunity to comment upon a substantial adverse environmental effect. The court found that the added information did not disclose a new substantial environmental impact or a substantial increase in severity of one of the project’s impacts. The court highlighted the fact that Petitioner did not identify how the new information would undermine Metro’s less-than-significant-impact conclusions. Thus, Metro’s decision not to recirculate was supported by substantial evidence.

 

The summary of the baseline portion of this decision can be read here:

http://rmmenvirolaw.flywheelsites.com/2012/04/second-district-upholds-agency-use-of-projected-future-condition-for-environmental-baseline/

The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603

The Sixth District Court of Appeal ruled that, in a project involving restoration and sale of an historic mansion, the city had a sufficient basis for rejecting as economically infeasible alternatives involving retaining ownership of the mansion. 

The Flanders Mansion is an historic, 1920s-era Tudor Revival residence.  The City of Carmel-by-the-Sea owns the mansion.  The site is surrounded by a 35-acre nature preserve, also owned by the city.  The city certified an EIR and approved the sale of the mansion in view of the substantial cost of implementing necessary repairs.  The Foundation sued.  The trial court granted the petition.  Both sides appealed.

First, the Foundation argued the EIR did not contain an adequate analysis of potential future uses of the mansion in light of the Surplus Lands Act.  Under that statute, when a local agency wishes to dispose of surplus property, the agency must offer to sell or lease the property to other agencies for use as affordable housing or for park purposes before the property can be sold to a private party.  The EIR recognized the sale of the property would be subject to the act.  The Foundation argued, and the trial court agreed, that the EIR was deficient because it did not analyze the impacts of potential uses for the property authorized under the act.  That was so because an agency buying under the act would not be subject to mitigation measures or conservation easements adopted by the city when it approved the sale.  The Court of Appeal disagreed, holding that the city had authority to require, as conditions of sale, adherence to these measures and easements.  Moreover, the city did not have to analyze the impacts of using the mansion as affordable housing because the record supported the city’s conclusion that this use was not reasonably foreseeable in view of the high cost of rehabilitating the mansion and complying with adopted mitigation measures.

Second, during the CEQA process, a commenter asked the city to consider reducing the size of the parcel sold with the mansion.  The Court ruled the Final EIR’s response was inadequate.  Reducing the size of the parcel would also reduce one of the project’s significant and unavoidable impacts:  a reduction in public parkland.  The Final EIR had not provided a complete response to this proposal.

Third, the Foundation argued the city erred by failing to include an economic feasibility analysis in the EIR.  That analysis was prepared by a real-estate consultant to address the economic feasibility of the various alternatives analyzed in the EIR.  The Court ruled the city could rely on information in the record in making its feasibility determinations, regardless of whether that information appeared in the EIR itself.

Fourth, the EIR analyzed alternatives focusing on restoring and leasing the mansion for residential or non-residential use, or doing nothing (no project).  All these alternatives were environmentally superior to the proposed project.  The city rejected them, however, as economically infeasible, citing the consultant’s feasibility report.  The issue for the Court was whether this report constituted substantial evidence supporting the city’s decision.  The Court ruled that it did.  The report estimated that restoration would cost $1.4 million, and lease payments would not enable the city to recoup this cost for many years.  Selling the mansion would recover these costs, however, because the appraised value of the restored mansion was estimated at $4 million.  Doing nothing meant the city would incur ongoing maintenance costs, with no revenue to cover them.  Under such circumstances, the city acted within its discretion in rejecting these alternatives.

Finally, the Court ruled that substantial evidence supported the city’s adopted statement of overriding considerations.  The city acted within its discretion in deciding to sell the mansion, subject to mitigation measures and easements requiring its sensitive restoration.  Although the city could have retained ownership of the restored the building (alternatives the city rejected as infeasible), that did not mean the city could not cite restoration in its list of project benefits, even if the city intended to sell the restored mansion.

Citizens for Open Government v. City of Lodi, (3rd Dist. March 28, 2012 [modified April 25th, 2012]) __Cal.App.4th__ (Case No. C065463, C065719)

Factual and Procedural Background

In 2002, Browman Company applied to the City of Lodi for a use permit to develop a 35-acre shopping center. In 2003, the city issued a NOP for a draft EIR for the proposed project. The city approved the project in 2004. Lodi First and Citizens for Open Government (COG) filed separate lawsuits (Lodi First I and Citizens I) challenging the project.

In December 2005, the trial court granted the petition for writ of mandate in Lodi First I.  The city council rescinded approval of the project and decertified the 2004 EIR. In 2006, the city issued a NOP for the revised EIR. In 2007, COG and the city stipulated to dismiss Citizens I.

In October 2007, the city circulated revisions to the EIR for public review and comment.  The city concluded some of the comments it had received on the revised draft EIR were beyond the scope of the revisions and barred by res judicata. The city declined to provide substantive responses to these comments. In May 2009, the city council conditionally approved the project entitlements and adopted findings of fact and a statement of overriding considerations for the project.

In order to proceed with the project, the city filed a petition to discharge the writ in Lodi First I. As part of this process, the city lodged a supplemental administrative record. Both COG and Lodi First filed separate lawsuits challenging the final revised EIR. After filing their lawsuits, both groups contended the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants.

COG filed a motion to augment the supplemental administrative record. The court granted the motion in part and denied the motion in part based on the attorney-client, attorney-work-product and deliberative process privileges. In 2010, following a hearing on the merits, the trial court granted the City’s request to discharge the 2005 writ in Lodi First I and deny the petitions in Citizens II and Lodi First II. Both Lodi First and COG appealed.

The Appellate Court’s Decision

On appeal, Lodi First and COG argued the trial court erred in applying the deliberative process privilege to exclude some emails from the administrative record. Appellants also challenged the sufficiency of the revised EIR on numerous grounds and disputed the trial court’s ruling precluding them from challenging certain issues based on res judicata.

The Deliberative Process Privilege

Under the deliberative process privilege, senior officials in government enjoy a qualified, limited privilege not to disclose certain materials or communications. These include the mental processes by which a given decision was reached and other discussions, deliberations, etc., by which government policy is processed and formulated. The deliberative process showing must be made by the one claiming the privilege. Not every deliberative process communication is protected by the privilege.  Instead, the privilege is implicated only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In the trial court, the city argued the deliberative process privilege applied because the city manager, city attorney, community development director, and other consultants engaged in various deliberative discussions and document exchanges concerning revisions to the EIR. The privilege was required, the city argued, “to foster candid dialogue and a testing and challenging of the approaches to be taken…” On appeal, Lodi First claimed this assertion was insufficient to support nondisclosure through the deliberative process privilege. The appellate court agreed, finding the city offered a correct statement of policy, but that invoking policy was not sufficient to explain the public’s specific interest in nondisclosure of the documents at issue. As a result, the city failed to carry its burden, and the trial court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.

While the trial court erred in excluding these documents, this error was not necessarily prejudicial. Under the standard for prejudicial error established by the California Constitution, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred.

Lodi First acknowledged it could not satisfy its burden to prove prejudice on appeal because it had not seen the documents that were erroneously withheld. Lodi First claimed the improper withholding of the documents itself was prejudicial because it was impossible for Lodi First to acquire them. The appellate court disagreed and noted Lodi First should have sought writ review of the trial court’s ruling on the motion to augment the administrative record. In addition, the appellate court, citing Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disagreed with Lodi First’s contention that the incomplete record itself was a prejudicial error requiring reversal regardless of the actual contents of the withheld documents.

The Range of Alternatives Considered

Lodi First argued the revised EIR did not comply with CEQA because the range of alternatives to the project did not both satisfy most of the project objectives and reduce significant effects of the project. Relying on both the CEQA Guidelines and long-standing precedent, the court rejected Lodi First’s argument.

First, the court of appeal cited CEQA Guidelines section 15126.6 for the assertion that “there is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.” In addition the court noted that the California Supreme Court has explained how a “rule of reason” must be applied to the assessment of alternatives to proposed projects.

In this case, the revised project considered five alternatives: (1) no project; (2) alternative land uses; (3) reduced density; (4) reduced project size; and (5) alternative project location.  The alternative land use and reduced project density alternatives were not considered for further evaluation because they were infeasible or would not meet the goals of the project. The appellate court found the rejection of these alternatives for further review was reasonable.  The three remaining alternatives were discussed in detail in the revised EIR and provided substantial evidence of a reasonable range of alternatives.

Urban Decay Analysis

The trial court granted the petition for writ of mandate in Lodi First I, in part, because the analysis of cumulative urban decay impacts was inadequate for omitting two related projects in the geographic area. An updated economic impact/urban decay analysis was prepared in response to the trial court’s order to decertify the original EIR.

Lodi First argued the revised EIR inaccurately described the project’s environmental setting by failing to discuss existing blight and decay conditions in east Lodi. The appellate court, by de novo review, determined the blight at issue was not necessarily related to the retail environment at all. Further, the revised EIR analyzed the potential for urban decay with consideration of conditions in east Lodi. The revised EIR’s discussion of cumulative urban decay impacts was adequate under CEQA.

The Economic Baseline

COG argued the city erred in the revised EIR by failing to assess urban decay impacts “under radically changed economic conditions.” COG asserted the city should have reassessed urban decay impacts in light of the economic recession that occurred after the 2006/2007 economic analysis performed for the project. The appellate court determined the city’s decision not to update the baseline was supported by substantial evidence. First, the city offered evidence that updating the baseline presented a “moving target” problem, where updates to the analysis would not be able to keep pace with changing events.  In addition, the city presented evidence that the changing economic conditions did not affect the urban decay findings based on the 2006/2007 economic analysis. Therefore, the city did not abuse its discretion when it declined to update the baseline.

Agricultural Impacts

COG argued the original EIR and revised EIR failed to disclose cumulative impacts to agriculture and that there was no substantial evidence to support the rejection of a heightened mitigation ratio.

The appellate court first determined that the revised EIR satisfied the standards established by the CEQA Guidelines for discussing cumulative impacts. The EIR explained the amount of prime farmland lost due to the project, the amount of land lost due to the project and other proposed projects, and that the cumulative impacts to agricultural resources would be significant and unavoidable. The discussion met the standard for “adequacy, completeness, and a good faith effort at full disclosure.”

After finding the revised EIR’s discussion of cumulative impacts to agricultural resources adequate, the appellate court determined the city did not have to accept a heightened mitigation ratio as asserted by COG. The city required a 1:1 conservation easement ratio for the loss of farmland, but also determined that agricultural easements do not completely mitigate for the loss of farmland. The city adopted a statement of overriding considerations and asserted the 1:1 ratio is appropriate for the project. COG argued the rejection of a 2:1 mitigation ratio was not supported by substantial evidence. The appellate court disagreed and noted that the appropriate standard was whether the finding that there were no feasible mitigation measures to reduce the impacts to prime farmland was supported by substantial evidence.

The Doctrine of Res Judicata

Lodi First attempted to argue the revised EIR failed to disclose cumulative water supply impacts. The trial court held that res judicata barred Lodi Frist from raising this claim. The appellate court agreed.

Res Judicata (claim preclusion) bars relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them and that adjudication resulted in a final decision on the merits. In this case, a writ was issued in Lodi First I and was final on the merits.  The trial court granted Lodi First’s petition and held the 2005 EIR was inadequate under CEQA. The city chose not to appeal, and the ruling was final because the time to appeal passed.

Lodi first attempted to argue res judicata did not preclude its water supply challenge because it was based on new information and the city’s 2009 findings regarding the project’s water supply impacts differed from its 2005 findings. For the purposes of res judicata, causes of action are considered the same if based on the same primary right. A claim is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.

The appellate court determined the problem of overdraft cited by Lodi First was not new evidence. The city’s own 1990 general plan identified overdraft in the aquifer. While Lodi First claimed new evidence established more information than the 1990 EIR, the critical fact was that the city’s water supply was inadequate to serve new development.  This was known at the time of the 2004 EIR. In addition, the court determined the findings were consistent in that both findings were that the project would have no significant impact on water supply and therefore, no mitigation was necessary

Finally, the appellate court disagreed with Lodi First that res judicata should not be applied to the water supply issue due to public policy. When the issue is a question of law rather than of fact, res judicata may not apply if injustice would result or if the public interest requires that relitigation be allowed. Lodi First’s water supply issue did not present a question of law, so the public interest exception did not apply.

Conclusion

This case demonstrates the limitations of the deliberative process privilege for public agencies. Agencies attempting to rely on this privilege must be prepared to support their assertion of the privilege with a specific showing that the nondisclosure outweighs the public interest in disclosure; broad policy statements are not enough to support application of the privilege.  In addition, the case offers an important reminder of the consequences of failing to raise all potential arguments in original CEQA proceedings, and indeed, most regular civil proceedings.

RMM partners Andrea Leisy and Howard Wilkins and associate Laura Harris represented real party in in interest Browman Development in this litigation.

The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (2012) 202 Cal.App.4th 603

On January 4, 2012, the Sixth District Court of Appeal held that the City of Carmel-by-the-Sea did not violate CEQA by failing to analyze in its EIR all potential uses of a property that was to be sold under the Surplus Lands Act (the Act), even though the uses were specifically mentioned in the Act. Read the rest of this entry »

Citizens for East Shore Parks v. California State Lands Commission
(2011) – Cal.App.4th – [2011 Cal. App. LEXIS 1645]

The First District Court of Appeal ruled that an EIR prepared by the State Lands Commission for the renewal of an existing marine terminal used a proper environmental baseline in assuming the continued existence and operation of the terminal; thus, the EIR did not need to assume the terminal would discontinue operations, even though that would occur if the Commission did not renew the lease.

In 1998, Chevron applied to the State Lands Commission to renew the lease for an existing wharf serving Chevron’s refinery located in the City of Richmond.  The Commission embarked on the CEQA process.  Initially, the Commission decided to prepare the EIR assuming that the physical wharf would remain in place, but that operations there would cease.  Over time, the Commission’s position evolved, such that the “baseline” would consist not merely of the physical wharf, but also of ongoing operations.  Using this baseline, the Commission determined the lease renewal could result in significant environmental impacts associated with the risk of oil spills.  In 2007, the Commission released the Final EIR.  In 2009, the Commission certified the EIR, approved the lease renewal, and adopted a statement of overriding considerations.  The “Citizens” sued.  The trial court denied the petition.  The Citizens appealed.

First, the Citizens argued the Commission’s EIR used the wrong baseline, claiming the baseline should have excluded use of the marine terminal.  In this case, the baseline consisted of “existing conditions” at the time the Commission prepared the EIR.  Those conditions included an operating marine terminal.  The Citizens argued, however, that a different rule applied in the context of a permit renewal, since the agency could cause operations to cease simply by declining to renew the lease.  Moreover, because the construction and operation of the terminal predated CEQA, they had never undergone environmental review.  The Court rejected this argument, reasoning that, under the California Supreme Court’s decision in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, the Commission properly focused on existing conditions, not conditions that may have existed decades in the past.  The record showed the Commission’s approach was consistent with permit renewals elsewhere in the Bay Area, and accurately reflected actual operations at the terminal.  Nor was the Commission bound by its initial determination regarding the proper baseline:  “Administrative agencies not only can, but should, make appropriate adjustments, including to the baseline, as the environmental review process unfolds.”

Second, the Citizens argued the EIR should have analyzed an alternative consisting of removing the causeway connecting the terminal to the refinery, and instead burying pipelines.  According to the Citizens, such an alternative would have avoided the project’s impacts on recreation by removing an obstruction to a bay trail.  The Court disagreed, noting that because the causeway was part of the baseline, the EIR properly concluded the lease renewal would not have significant impacts on recreation.  Similarly, the Final EIR’s responses to comments on recreational impacts were adequate, since the lease renewal did not involve new construction that would impact recreation.

Third, the Citizens argued the EIR’s project description should have encompassed the entire refinery, rather than just continued use of the marine terminal.  The evidence showed, however, that the lease renewal was the only action before the Commission, and the Commission had not “chopped up” the project as a means of evading CEQA review.

Fourth, the Citizens argued the EIR’s analysis of cumulative water discharge impacts was flawed.  The Court disagreed, noting that water discharges were part of the existing wharf operation, and therefore part of the baseline.  For the same reason, the EIR did not need to analyze whether the lease renewal was consistent with State legislation calling for establishing a “water trail” around San Francisco Bay.  Moreover, the EIR noted plans to establish a land-trail around the Bay, passing through upland areas adjacent to the terminal.  The Commission urged discussions to establish a route through the refinery for this trail, and Chevron designated a site and committed $2 million to this effort.  Given that the Commission had no jurisdiction over upland areas, the Commission’s efforts sufficed.  The record also showed the Commission consulted with trustee agencies by sending the agencies copies of the Draft EIR.

Finally, the Citizens argued that, under the Public Trust Doctrine, the Commission was required, to undertake an additional review process and impose additional mitigation conditions.  The Court disagreed, holding that, where the Commission’s decision “continued a permissible and long-standing trust use” and the Commission performed an adequate analysis under CEQA, “there was no violation of the public trust doctrine.”

Madera Oversight Coalition, Inc. v. County of Madera
(2011) 199 Cal.App.4th 48

The Fifth District Court of Appeal held the trial court did not err in applying section 21167.6, subdivision (e) and determining which documents to include and exclude from the administrative record.  The Court also held a mitigation measure that proposed to verify that certain archaeological sites are historical resources for purposes of CEQA constituted an unlawful deferral of environmental analysis; that the EIR’s traffic analysis lacked clarity regarding the baseline used to determine the project’s potential impacts; and that the trial court correctly determined that the analysis of the project’s proposed water supply was inadequate.

Real Parties in Interest Tesoro Viejo, Inc., Rio Mesa Holdings, LLC and Tesoro Viejo Master Mutual Water Company proposed the Tesoro Viejo mixed-use development project, a 1,579-acre development located in southeastern Madera County. The project proposed a mix of residential, commercial, and light industrial uses plus areas for open space, recreation, and other public uses. The project would contain up to 5,190 dwelling units and about three million square feet for commercial, retail, office, public institutional, and light industrial uses.

In February 2006, Tesoro Viejo requested that Madera County initiate the project’s environmental review process.  The county circulated the EIR, received comment and provided responses.  In December 2008, the County certified the EIR and approved the project.  Petitioners Madera Oversight Coalition, Inc., Revive the San Joaquin, Inc., and the Dumna Tribal filed a petition for writ of mandamus and complaint for declaratory and injunctive relief challenging the County’s approval of the project.  They alleged violations of CEQA, the Planning and Zoning Law and the Water Code.

In May 2009, the County lodged and certified the administrative record.  Along with their briefing, Petitioners thrice requested augmentation of the administrative record.  After a hearing, the trial court granted the petition.  The parties appealed and cross-appealed.  The dispute focused in part on various questions concerning the scope of the administrative record and the admission of extra-record evidence.

First, the court addressed questions regarding the scope of the record, which involved both rulings made by the trial court and motions filed on appeal.  The court found that legislative intent and case law indicate that, after an administrative record is certified, the trial court has authority to decide issues relating to whether an omitted document should have been included in the administrative record pursuant to the provisions of subdivision (e) of Public Resources Code section 21167.6.  On appeal, the court noted, its role was to review the trial court’s decisions, giving deference to the trial court’s factual determinations, rather than make an independent decision regarding the scope of the record.  The court found such a role was appropriate in light of the non-discretionary nature of the determinations made by the agency in preparing and certifying the administrative record and the independent judicial scrutiny of trial court to in applying section 21167.6, subdivision (e) to the disputes before it.  Furthermore, the court found that petitioners’ motion to augment the record, filed in the appellate court concerning documents on which the trial court had already ruled, was not a proper way to present the court with issues concerning the inclusion of the documents in the administrative record.  Although the court ultimately construed the motion to augment as a direct challenge to the trial court’s decision to deny the request to include four documents in the administrative record, it rejected petitioners’ challenge because they failed to establish the trial court erred in excluding the documents.  The court also rejected respondents’ claims regarding certain documents the trial court excluded from the record and certain documents the trial court included in the record, finding that respondents did not affirmatively demonstrate that the trial court erred.  The court did find that the trial court failed to include one EIR comment letter requested by petitioners, but that no prejudice occurred by its exclusion because the letter raised no issues not raised in the EIR.

The court then reviewed the adequacy of the EIR’s cultural resources analysis.  The court noted that the EIR included analysis of certain archaeological sites at the development site that had the potential to be a “historical resource” for the purposes of CEQA.  The EIR also acknowledged a potentially significant adverse impact on each of the sites.  While the EIR included mitigation which purported to reduce the impacts to a less than significant level, the court found the mitigation constituted improper deferral because it required a “verification” of whether the site was a historical resource before preservation and recovery actions would be required.  The court noted that the verification process described in the mitigation measure is not expressly authorized by CEQA or the Guidelines.  Nor could such a process be harmonized with CEQA and the Guidelines, as Guidelines §15064.5(c)(1) states: “When a project will impact an archaeological site, a lead agency shall first determine whether the site is an historical resource …” The court found use of the word “shall” in CEQA Guidelines, section15064.5, subdivision (c)(1) indicated that the determination whether an archaeological site is an historical resource is mandatory.  Moreover, that provision’s use of the word “first” indicates that the determination must be made before the final EIR is certified and it cannot be undone thereafter.  The court concluded that the mitigation measure set forth a course of action that was contrary to law.

The court also found that, while an EIR’s discussion of mitigation measures for an impact to historical resources of an archeological nature must include preservation in place pursuant to CEQA Guidelines, section 15126.4, subdivision (b)(3), preservation in place is not always mandatory, even when feasible.  The court noted that, preservation in place is the preferred manner of mitigating impacts to archeological sites pursuant to the language CEQA Guidelines, section 15126.4, subdivision (b)(3)(A), unless another type of mitigation better serves the interests protected by CEQA.  The court interpreted “preferred manner” to mean that feasible preservation in place must be adopted to mitigate impacts to historical resources of an archaeological nature unless the lead agency determines that another form of mitigation is available and provides superior mitigation of the impacts.

With respect to the EIR’s traffic analysis, the court found the EIR was inadequate because it used predicted future conditions as a baseline.  Citing CEQA Guidelines section 15125, subdivision (a) and following the court’s interpretation of the guideline in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, the court concluded: (a) a baseline used in an EIR must reflect existing physical conditions; (b) lead agencies do not have the discretion to adopt a baseline that uses conditions predicted to occur on a date subsequent to the certification of the EIR; and (c) lead agencies do have the discretion to select a period or point in time for determining existing physical conditions other than the two points specified in subdivision (a) of Guidelines section 15125 [“as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced”], so long as the period or point selected predates the certification of the EIR. Furthermore, while the respondents asserted the EIR did analyze traffic impacts employing existing conditions as the primary baseline, based on its review of the EIR’s traffic analysis, the traffic impact analysis study attached to the EIR, and the county’s responses to public comments, the court found the EIR lacked clarity regarding which baseline or baselines were used, which contributed to its inadequacy as an informational document.

The court also found that the Water Supply Assessment (WSA) and the EIR did not provide full disclosure of relevant information related to water supply because the analyses ignored contrary information and failed to discuss whether a recent legal decision would affect the availability and reliability of proposed water supplies.  According to the WSA and the EIR, the water demands of the project would be met with surface water delivered from the San Joaquin River under a contract with the United States Bureau of Reclamation. Interpreting the Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 432 the court concluded that the legal adequacy of the EIR’s discussion of the water supply for the Project depends upon whether the discussion included a reasoned analysis (i.e., a “full discussion,” a “good faith effort at full disclosure,” or an “analytically complete and coherent explanation”) of the circumstances affecting the likelihood of the availability of the proposed water supply. While the WSA included an opinion letter of a water expert which concluded the legal issues concerning water supply would not affect the availability of the contractual water supply, neither the opinion letter nor the WSA acknowledged the existence of the a letter from the Bureau of Reclamation stating it would object to the use of the water supply for a municipal supply or for commercial uses.  Nor did the WSA or EIR address a recent legal decision invalidating the water supply analysis for a nearby project which was also proposing to rely on reclamation contracts for water supply.  On these bases, the court concluded the public was not provided a full disclosure of the uncertainties related to the project’s water supply and that the trial court did not err in concluding that the EIR’s discussion of the water supply was inadequate under CEQA.

Finally, the court concluded that the trial court correctly determined it had the discretionary authority under Code of Civil Procedure section 1032, subdivision (a)(4) to apportion costs.  Although the petitioners obtained a writ of mandate in a CEQA proceeding, that nonmonetary relief alone does not entitle the plaintiff to costs as a matter of right under Code of Civil Procedure section 1032, subdivision (b).

Jones v. University of California Regents (2010) 183 Cal.App.4th 818.

The First District Court of Appeal reversed a trial court ruling and upheld the alternatives analysis in an environmental impact report (EIR) prepared by the Regents of the University of California (Regents) for a long range development plan (LRDP) for the Lawrence Berkeley National Laboratory. The LRDP EIR included analysis of the following alternatives: (1) the mandatory “no project” alternative; (2) a reduced growth alternative that would reduce the amount of occupiable building space and parking, as well as the new adjusted daily population; (3) a reduced growth alternative that would increase the adjusted daily population, but reduce the occupiable building space and parking; (4) a preservation alternative that would require dedication of a limited number of key historic resources to management by another public agency; and (5) an off-site alternative that would divide future development under the LRDP between the proposed site and an off-site location. The plaintiffs argued that the range of alternatives was insufficient because it did not include a “true off-site” alternative that would locate all development under the LRDP at another, off-site location.

The court first noted that the range of alternatives is limited to alternatives that are both feasible and would accomplish most of the goals of the project. The court went on to note that the EIR had considered an off-site alternative, but the Regents had rejected it because it would not meet several of the project objectives. Since the “true off-site” alternative advocated by plaintiffs would likewise prevent realization of the project’s objectives, including a fundamental principle of the LRDP that underscored the importance of physical proximity in realizing the overall objectives of enhancing “collaboration, productivity, and efficiency,” the court concluded that the EIR was not deficient for failing to consider plaintiff’s off-site alternative.

The argument that an EIR contains an insufficient range of alternatives is frequently made in various forms by petitioners in CEQA litigation. In our view, the court properly found that the argument, in this case, lacked merit. Of particular importance, the court applied the substantial evidence standard of review to the question of whether the alternatives analysis complied with the requirements of CEQA. In 2007, the California Supreme Court published its decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 (Vineyard). Vineyard established two distinct standards of review, depending on whether the agency’s alleged violation of CEQA involves procedural or factual matters. If the agency’s alleged violation is procedural, the reviewing court must determine whether the agency “failed to proceed in the manner required by law.” This standard of review does not extend any deference to the agency’s decision. By contrast, if the agency’s alleged violation concerns a finding or conclusion, the reviewing court must determine whether that finding or conclusion is supported by substantial evidence in the agency’s record of proceedings. This standard extends some deference to the agency’s finding or conclusion. Because the level of deference varies depending on which aspect of the standard of review is employed, in the wake of Vineyard CEQA litigants often dispute which approach applies to a given challenge. The Jones case therefore provides helpful guidance regarding which prong of the Vineyard formulation applies to the different issues that arise in CEQA litigation.

The Jones court applied the substantial evidence test to the question of whether rejection of the off-site alternative complied with CEQA. We believe this approach is correct, given the nature of the legal duty to examine a “range of reasonable alternatives” in light of the agency’s basic objectives for the project. This duty requires the agency to make judgments regarding what alternatives must be analyzed, and what objectives are central to the agency’s aims. In our view, because these issues involve matters of judgment, rather than readily ascertainable procedural duties, the “substantial evidence” test properly applies. This approach is also consistent with the Sixth District Court of Appeal’s recent decision in California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957.

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