Posts Tagged ‘Energy’


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

California Clean Energy Committee v. City of Woodland, Case No. C072033 (April 1, 2014)

Petrovich Development Company, LLC proposed to develop a 234-acre regional shopping center knows as “Gateway II” on undeveloped agricultural land located on the outskirts of the City of Woodland. After preparing a programmatic EIR, the city council reduced the size of the project to 61.3 acres and approved the project. California Clean Energy Committee (CCEC) filed a petition for writ of mandate challenging the city’s approval of the project. The trial court denied the petition.

On appeal CCEC contended (1) the trial court erred in concluding the project did not conflict with the city’s general plan, (2) the city’s mitigation measures are insufficient to ameliorate the urban decay that the project could cause, (3) the city did not give meaningful consideration to feasible project alternatives such as the mixed-use alternative, and (4) the final EIR did not properly identify and analyze potentially significant energy impacts generated by the project.

In an unpublished portion of the opinion, the court rejected CCEC’s first claim that city’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the city’s general plan policy of revitalizing its downtown. The court held the CCEC had failed to preserve this argument because its CEQA petition had failed to plead a separate violation of the Planning and Zoning Law.

With respect to CCEC’s claims regarding the City’s urban decay mitigation measures, the court agreed with CCEC that the measures were inadequate to mitigate the urban decay anticipated to result from the project. The mitigation measures the city adopted required the developer (1) to apply for a master conditional use permit subject to future evaluation and potential further environmental review and indicating a list of specific project uses that “shall primarily consist of regional retail uses that do not include entertainment uses and other uses that would compete with retail in Downtown Woodland”; (2) to submit a market study and urban decay analysis for review and approval by the city’s Community Development Department showing either that adequate retail demand exists or require additional mitigation or an alternate use; (3) to contribute funds toward the development of a “Retail Strategic Plan” to be prepared by the city; (4) to contribute funds toward the preparation of an “Implementation Strategy for the Downtown Specific Plan” to be prepared by the city; and (5) to “coordinate with the current owner of the County Fair Mall to prepare a strategic land use plan for the County Fair Mall to analyze potential viable land uses for the site.” The EIR determined, however, that even with the implementation of this mitigation, the city still anticipated the urban decay impact to be significant and unavoidable, in part because it was unknown at the time of approval what specific uses and stores could be proposed in the future in the project area.

The court found, as to the first mitigation measure, it was permissible under CEQA because it served to ensure the primary retail uses for the development will be regional and would not outright ban all retail uses that compete with the city’s downtown. The court also accepted the city’s representation that it “merely found that this measure would help, albeit not enough to avoid the significant urban decay impact identified by the EIR.” The court found, however, that the measure was inadequate, standing alone, to mitigate the potential adverse impacts of the development.

The court found that the second mitigation measure, by requiring the developer to prepare the market study, impermissibly ceded the city’s responsibility for studying an environmental impact to the developer. The court rejected CCEC’s claim that the city council erred by delegating the responsibility to implement the mitigation measure to the community development department, finding that delegation of responsibility for a monitoring program is appropriate under CEQA. Further, the court found the market study measure was inadequate because it did not commit the city to any specific mitigation action or impose any performance standards for determining whether it needed to undertake any future measures. Despite the fact that the EIR was a programmatic review which anticipated potential future environmental review for site-specific discretionary projects, the court concluded that, given the city’s recognition that the project would cause urban decay, the mitigation was required to do more than merely agree to a future study of the problem.

The court found the third and fourth mitigation measures were similarly inadequate for their failure to commit the city to any feasible or enforceable mitigation measures to ameliorate the adverse effects of the project on urban decay elsewhere in Woodland. The requirement for preparation of the Retail Strategic Plan and Implementation Strategy for a downtown specific plan appeared in the Draft EIR without further discussion or analysis. The final EIR adopted these mitigation measures without elaboration. The court explained that although mitigation fee programs may constitute adequate mitigation to address the adverse effects of a project, the mere payment of fees does not presumptively establish full mitigation for a discretionary project if there is no evidence that there is an established fee program in place. Here, the court found the city’s EIR did not adequately assess the scope of the program or fees necessary to adequately address the urban decay impacts expected to result from the project.

Finally, the court found that the fifth measure, although it purported to alleviate expected urban decay at Woodland’s County Fair Mall, required the city to take no action other than to coordinate with the current owner to prepare a plan for viable land uses at the County Fair Mall. The court found the mitigation measure does not require any action by the city to mitigate the urban decay it may discover to result for the County Fair Mall. As such, the court held this purported mitigation measure was inadequate. The court found that, though the EIR was a programmatic EIR, tiering of environmental review and deferring environmental analysis and mitigation measures to later phases would only be appropriate in cases where the impacts or mitigation measures are specific to those later phases. Here, because the EIR studied and attempted to mitigate the urban decay effects from the project as a whole, the city could not be permitted to excuse inadequate mitigation by putting off corrective action to a future date.

The court then held the city failed to comply with CEQA when it rejected the mixed-use alternative as infeasible. The Draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council’s findings rejected the alternative as environmentally inferior to the project. The court found the city had adopted a rationale for rejecting the alternative that was unsupported by the EIR analysis, which assumed certain impacts would be similar to the project impacts.

Finally, the court found the city’s treatment of energy impacts was inadequate. The court noted that the EIR’s discussion of energy lacked detail as it comprised less than one page. Furthermore, the court found the discussion inadequate as it did not provide an assessment of or mitigation for certain energy impact categories set forth in Appendix F of the CEQA Guidelines including transportation energy impacts, construction energy impacts, and renewable energy impacts. While the EIR did require the project’s compliance with the state building code and green building standards, the court found such standards alone would not adequately mitigate construction and operational energy impacts of the project.