Posts Tagged ‘Mitigated Negative Declaration’


On May 23, 2017, the Fourth District Court of Appeal court ordered published Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034. In a succinct opinion, the court upheld the city’s decision to deny a mitigated negative declaration (MND), initially approved by the planning commission, regarding an application to subdivide two hillside lots and build three residences.

The court emphasized that the standard of review was deferential to the city, and limited to determining whether the city’s findings were supported by substantial evidence. The court interpreted this standard by stating that plaintiff could only prevail if she could demonstrate that no reasonable municipality could have reached the same decision as the city.

Under this standard of review, the court determined that the city presented substantial evidence in the record to support its finding that impacts to land use, geology, and public safety would be detrimental and inadequately mitigated. Flaws and omissions in the project’s geotechnical report cast doubt on the report’s conclusion that homes could be built safely on the steep sandstone hillside. Furthermore, the slope of the shared driveway would not permit access by firetrucks and potentially other emergency response vehicles. Proposed mitigation measures (sprinkler systems and standpipes) were inadequate to mitigate all of these risks.

Regarding the project’s consistency with the community plan, the city properly considered the opinions of neighbors, who stated that the project’s dense development with minimal setbacks was incompatible with the large lot, single-family residential character of the area. Finally, the project was properly rejected under city ordinances, which provide for deviations from the development regulations for qualified sustainable building projects, if the deviations result in a more desirable project. For similar reasons as to why the project was rejected under the community plan and CEQA, the deviations requested here (smaller setbacks, no frontage, and higher walls) would not make the project more desirable.

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.

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.

In Coastal Hills Rural Preservation v. County of Sonoma (2016) (previously published at 2 Cal.App.5th 1234)* the First District Court of Appeal upheld the trial court’s determination that the County of Sonoma did not violate CEQA or the Planning and Zoning law when it adopted a subsequent mitigated negative declaration (MND) and approved a master use permit to expand the existing Ratna Ling Buddhist retreat center and printing facility.

The Tibetan Nyingma Meditation Center (TNMC) has operated a monastery and retreat center in Cazadero since 1975. In 2004, TNMC purchased an additional property, which it designated the Ratna Ling Retreat Center. Since 2004 Ratna Ling has undergone numerous changes and expansions, including growing from a one-printing-press facility to operating six printing presses. In response to applications from Ratna Ling, the county adopted and approved a series of mitigated negative declarations in 2004, 2008 and 2012. In 2014, Ratna Ling applied for a third multiple-use permit, and the county adopted a subsequent MND to the 2004 and 2008 MNDs, superseding the 2012 MND. The 2014 subsequent MND analyzed Ratna Ling’s application to make permanent four storage tents for its printing-press operation, and construct a new six-bedroom residence and up to eight tent cabins.

Coastal Hills Rural Preservation (CHRP) filed suit, arguing that the county should have prepared an EIR because the project greatly expands the printing-press operation. CHRP also argued that the approval violated the county’s general plan and zoning provisions. The trial court denied the petition, and the First District Court of Appeal affirmed.

CHRP argued that the project was inconsistent with the county’s general plan and zoning provisions in violation of Government Code section 65300. The site is designated for “resources and rural development” under the county’s general plan, which is intended to “protect lands used for timber, geothermal and mineral resource production and for natural resource conservation.” Contrary to CHRP’s argument that the printing press included “extraordinary levels of manufacturing productions …, massive storage structures and commercial Internet sales,” the court found that substantial evidence supported the county’s determination that the proposed uses were consistent with the land use regulations. The court explained that an agency’s determination regarding consistency with its own general plan is given great deference because “the body adopting a general plan has unique competence to interpret those policies when applying them to a proposed project.” There was no evidence in the record that the printing activities were undertaken for profit, the printing press use had been permitted since 2004, and the Board fully considered the county’s land use policies and the extent to which the project conforms to those policies.

The Court of Appeal also affirmed the trial court’s determination that the Board did not violate CEQA. Because the court was considering the county’s decision to prepare a subsequent MND where an MND had already been prepared under Public Resources Code section 21166, the court applied the substantial evidence test rather than the fair-argument standard of review. The court noted that the issue of the standard of review is currently before the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), review granted Nov. 5, 2013, S214061).

The court found that substantial evidence supported the Board’s conclusion that any fire risks posed by the storage tents were adequately mitigated: the membranes covering the tents met applicable fire protection standards, there was 200 to 300 feet of defensible space around each tent, and a condition of approval required Ratna Ling to provide and maintain its own onsite fire engine. In addition, the court held that, regardless of whether the county should have included the tents in the baseline for its analysis, substantial evidence in the record indicated that the Board fully considered the potential impacts of the tents.

The court also ruled against arguments put forth by amicus curiae Friends of the Gualala River and Forest Unlimited. Contrary to those arguments, the county’s Hazard Mitigation Plan was not effective until October 25, 2011, well after the storage tents were permitted and constructed, and therefore was inapplicable. In addition, the county did not improperly defer mitigation when it required Ratna Ling to coordinate with the fire district and comply with all fire-related conditions, because the mitigaton simply granted the county the right to impose new, stricter requirements if deemed necessary.

Finally, CHRP argued that the county engaged in impermissible spot zoning. The court explained that because the record and the relevant zoning regulations did not suggest that the authorized use for Ratna Ling is prohibited as to all other parcels in the same zone, this was not impermissible spot zoning in violation of Government Code section 65852.

*On November 22, 2016, the California Supreme Court granted review (210 Cal.Rptr.3d 14), depublished the decision, and transferred the case back to the First District, Division One, for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al. (2016) 1 Cal.5th 937, 957–959. On May 16, 2016, the First District filed an unpublished decision in matter, available at 2017 WL 2118370.

In Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, certified for partial publication, the Fourth District Court of Appeal upheld a mitigated negative declaration providing insight on the subjects of urban decay and general plan consistency.

San Bernardino County adopted a mitigated negative declaration approving a 9,100 square foot general retail store. The intended occupant was Dollar General. The Joshua Tree Downtown Business Alliance, a group of local business owners, challenged the project on several grounds: (1) failure to adequately consider the project’s potential to cause urban decay; (2) failure to complete an EIR based on substantial evidence supporting a fair argument that the project would cause urban decay; (3) inconsistency with various economic goals and policies incorporated in the general plan; and (4) failure to disclose the intended occupant’s identity.

The Fourth District agreed with the lower court’s ruling that the county had considered urban decay but had simply concluded that because there was no evidence of a negative economic impact—there was likewise no evidence of urban decay. The court stated that economic impacts, alone, are not enough to require an EIR. By adopting a mitigated negative declaration, the county expressly found that there were no significant impacts through which economic impacts and urban decay could ultimately be traced.

The court further held that lay opinion regarding economic impacts did not qualify as substantial evidence. A business owner and former attorney with the Oregon Department of Justice provided extensive comments on the project’s potential to cause urban decay. The court stated that she was not an expert and was therefore not qualified to opine on whether the project would cause urban decay. Moreover, she had not provided any factual basis for her assertions. The county exercised appropriate discretion in deeming her testimony not substantial evidence.

The Fourth District also rejected petitioner’s claims that the project was inconsistent with the economic goals and policies in the general plan. Applying the abuse of discretion standard—rather than the fair argument standard as argued by petitioners—the court found that the county could reasonably conclude that the project was consistent with the general plan. The court stated that words in the policies such as “encourage” and “support” were “amorphous policy terms” that give the local agency some discretion.

Finally, in the unpublished portion of the opinion, the court rejected petitioner’s claim that the county had improperly withheld the identity of Dollar General as the intended occupant. CEQA did not require the county, in this instance, to identify the end user. In dicta, however, the court left open the possibility that disclosure of the end user may be required where it is “environmentally relevant.”

Written by Christina Berglund

On March 9, 2016, the Fourth District issued a decision in Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, upholding the City’s use of a mitigated negative declaration (MND) in its approval of a small residential project. The appellate court reversed the trial court’s ruling that an environmental impact report (EIR) was necessary because evidence of the project’s potential social impacts were insufficient to trigger the preparation of an EIR.

The project at issue involved subdividing an 11.6 acre property with a horse boarding facility into 12 residential lots. Project opponents and others in the community had enjoyed using the public horse boarding facility, known as Stock Farm, for 20 years. But the owner of Stock Farm decided to close down the facility and applied to the City for approval of the small residential project. The residential development was marketed as “Poway Equestrian Estates,” enticing potential owners with the prospect of boarding up to nine horses per lot. Because residential uses were legally permissible under the existing zoning and there was no evidence of any adverse environmental impacts that could not be mitigated to less than significant levels, the City approved the project under an MND.

Project opponents argued that the California Environmental Quality Act (CEQA) required the preparation of an EIR instead of an MND. The trial court agreed, concluding that there was substantial evidence of a significant impact on the City’s horse-friendly community character. For example, several public commenters expressed that the reason they had moved to Poway was because of the equestrian lifestyle and lamented that closing the stables would take a wholesome and positive activity away from the community’s youth. The members of the Poway Valley Riders Association (PVRA), which owns a 12-acre equestrian facility across the street from the project site, also complained that they would not have any other places to board their horses.

The Fourth District reversed the trial court’s ruling, focusing on the distinction between physical environmental changes and social or economic impacts. The court started by restating the established rule under CEQA that economic and social impacts resulting from a project are not considered significant impacts on the environment. Then the court addressed the extent to which “community character” must be considered under CEQA. Where “community character” involves aesthetic impacts, the court explained that CEQA requires adequate analysis and mitigation of such aesthetic impacts. But the court noted that the “community character” at issue in this case did not involve aesthetic or visual impacts so much as it involved “what is pleasing to the psyche” and the residents’ sense of well-being. The court found that there was no evidence the residential project would be visually out of character with the surrounding land uses because single-family homes could be found to the immediate north, east, and northwest. Ultimately, the court held that CEQA did not require the City to study the project’s potential psychological and social impacts upon the community character.

The court rejected the argument that the level of public controversy should in itself require an EIR to be prepared, citing San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1026. The court also rejected the argument that trucks and horses associated with the equestrian facility on PVRA property across the street from the project site could have negative impacts on future residents of the project, quoting the holding in California Building Industry Association v. Bay Area Quality Management District (2015) 62 Cal.4th 369, 392, that CEQA does not generally require lead agencies to consider the effects of existing environmental conditions on a proposed project’s future users or residents. Finally, the court refused to consider project opponents’ arguments that the MND was deficient as to public safety and biological resources issues because Preserve Poway forfeited those issues when it chose not to cross-appeal.

 

 

 

On May 7, 2015, the Sixth District Court of Appeal affirmed the lower court’s holding that the County of Santa Clara violated CEQA in adopting a mitigated negative declaration, instead of requiring an environmental impact report, for a use permit authorizing wedding events on vineyard property in the Santa Cruz Mountains. (Keep Our Mountains Quiet v. County of Santa Clara (May 7, 2015) Case No. H039707.)

Beginning in 2006, Candice Wozniak hosted a number of weddings and other events on the property without obtaining the necessary use permit from the county. She stated that approximately 100 people typically attended the events. Noise complaints from neighbors, however, indicated the events potentially hosted upwards of 200 attendees. The county eventually issued a use permit authorizing 28 special events per year for 100 guests, to be held between 2pm and 10pm on Saturdays and Sundays in the spring and summer. Three years later, in 2011, the county adopted a revised mitigated negative declaration (MND) for the project.

The MND set forth three conditions of project approval: orienting speakers away from neighboring residences; posting a noise complaint phone number; and conducting an annual report assessing compliance with the conditions in the first year. Only one live outdoor band event was permitted in the first year of operation.

The county’s sound consultant found that, though the county’s noise standards were not exceeded during a sample weekend, the consultant was unable to conclude that the events unequivocally did not generate significant noise impacts. A mock event was held at the property to assess noise levels. Neighbors acknowledged not hearing the event, but stated it was not representative of actual events held on the property.

Keep Our Mountains Quiet (the “Association”) filed a petition seeking to require the county to prepare an EIR. The trial court held in favor of the Association, and real party in interest—the Wozniak Trust—appealed. The appellate court laid out the rule that an EIR is required whenever substantial evidence in the record supports a fair argument that significant impacts may occur. An MND may be prepared where the initial study identified potential significant effects on the environment but revisions to the project plans would avoid or mitigate those effects to a level of insignificance. The court noted that relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence.

In reviewing the project’s noise impacts, the court stated that a project’s effects can be significant even if they are not greater than those deemed acceptable in a general plan. The court agreed with the Association that the lead agency should consider both the increase in noise level and the absolute noise level associated with a project. The court found the neighbors’ comments about the discrepancy in noise levels between the mock event and actual events constituted substantial evidence supporting a fair argument that the project may have unmitigated noise impacts. Relatedly, the court found that substantial evidence supported a fair argument that project-related crowd noise may have significant noise impacts on the surrounding residents.

The court also found evidence supported a reasonable inference that the project may have significant impacts on biological resources, but no substantial evidence supported the argument that the project might have significant noise impacts on visitors in the nearby Open Space Preserve, which was open to the public by permit only. The court stated it “need not consider the impacts on hypothetical users of nonexistent trails.”

The court also found substantial evidence that the project may have significant traffic impacts. The testimony the court cited related facts about road conditions based upon personal knowledge. The court found increased traffic from the project would substantially increase existing design feature-related hazards.

Regarding attorney’s fees, the court was not persuaded by the Trust’s contention that the litigation had not conferred a significant benefit because the trial court did not require the County to perform additional studies for the EIR or impose new mitigation measures. The significant benefit justifying an award of fees, the court noted, is the proper assessment of the environmental impacts associated with the project. Though the number of nearby residents was small, the preservation of biological resources and the safety of public roadways were of interest to the public, and thus the trial court had reasonably concluded that the suit conferred a significant benefit on the general public. The court further found that the Association’s members did not enjoy a direct pecuniary benefit from the litigation; the amount of any monetary advantage in avoiding reduced property values was speculative. The trial court’s denial of a multiplier for Association’s counsel was upheld, as it was not a clear abuse of the trial judge’s discretion.

Rominger v. County of Colusa (Sept. 9, 2014), Case No. C073815

This case originates from an application for approval of a tentative subdivision map filed with the County of Colusa. The application proposed dividing four existing parcels into 16 parcels. The proposed parcels ranged in size from about 1 acre to 30 acres. The existing site consisted of agricultural use and light industrial uses related to agriculture. The application indicated no specific plans for expansion were available, and the present intention for the parcels was for their existing uses to continue.

The County prepared an initial study in June 2010 to determine if approval of the proposed tentative subdivision map could have significant environmental impacts. The initial study identified potentially significant impacts to cultural resources but determined these impacts could be mitigated to less-than-significant. Therefore, the County proposed adoption of a mitigated negative declaration for the project.

During the public comment period on the MND, the Romingers submitted comments suggesting an EIR was necessary for a variety of reasons. As a result of these comments, the County determined a water supply assessment was needed and cancelled the public hearing on the MND. Thereafter, a revised initial study was completed in August 2011. The revised initial study concluded that the project could potentially have significant impacts on air quality, cultural resources, and hydrology/water quality. Again, the initial study determined these impacts could be mitigated to less-than-significant and that an MND would be appropriate. The Romingers renewed their complaints during the public comment period for the updated MND. The County approved the MND in spite of these objections, and the Romingers filed a petition for writ of mandate asserting that an EIR was necessary. The trial court rejected the petition, concluding that approval of the tentative map was not a “project” for the purposes of CEQA. The Romingers appealed.

The Appellate Court’s Decision

On appeal, the Romingers argued that the County was barred from asserting that the proposed subdivision was not a CEQA project or that the project was exempt from CEQA based on the common sense exemption. The Romingers reasoned that the County could not make these arguments because the County treated the proposed subdivision as a CEQA project at the administrative level and approved an MND. The appellate court did not find this reasoning persuasive. The court’s task under CEQA is to review agency actions for compliance with procedures required by law. The County reasoned preparation of the MND was entirely voluntary and not required by law in the first place. Therefore, it would be a waste of judicial resources to review the adequacy of the voluntarily prepared MND. The appellate court agreed and allowed the County to argue no environmental review was required in the first place. However, the court disagreed with the County that approval of the tentative subdivision map was not a project under CEQA. Public Resources code section 21080 specifically provides that an approval of a tentative subdivision map is a project subject to CEQA.

The appellate court also concluded that the “common sense” exemption did not apply to the County’s approval. The County argued the map approval, in this specific case, fell within CEQA’s common sense exemption in the CEQA Guidelines section 15061(b)(3). The County reasoned that the action only established new parcel lines and that there was no possible effect on the environment as a result. But the appellate court noted that, in the application, the real parties stated the objective for the subdivision was to facilitate “future expansion where separate financing may be needed.” Therefore, the record demonstrated the purpose of the subdivision was to make development on the parcels easier. Under the common sense exemption, the agency must show, based on evidence in the record, that there is no possibility that the action may result in a significant effect on the environment. Here, the reasonable possibility that creation of smaller parcels could lead to development that might not otherwise occur pushed the project beyond the confines of the common sense exemption.

On the specific challenges to the MND, the appellate court sided with the project opponents on only a single issue. The appellate court determined substantial evidence in the record supported a fair argument that the project may have significant traffic impacts. In this case, a traffic engineer submitted a comment letter suggesting the County relied on unrealistically low trip generation estimates. This comment letter cited specific evidence, such as the proximity of a major interstate, and the potential for the light-industrial uses to be redeveloped as more traffic-intensive uses. In light of this, and other evidence, the traffic engineer suggested that the County should use the general trip generation characteristics from categories in the authoritative trip generation source reference Trip Generation, 8th Edition. Based on these trip generation numbers, the project could potentially have a significant traffic impact on an intersection of a county road and State Highway 99. This evidence in the record supported the fair argument made by the Romingers. In protest, the County pointed to substantial evidence supporting a contrary conclusion. But the appellate court explained that pointing to contrary evidence was insufficient to defeat the fair argument. Therefore, the appellate court concluded that the county prejudicially abused its discretion when it failed to prepare an EIR addressing the potentially significant traffic impact.

Also of note, the appellate court concluded that the County did not entirely comply with the requirement to provide a full 30-day review period for the MND. The Romingers complained that the review period was only 29 days long. But the appellate court reviewed the record and determined that this error did not preclude informed decisionmaking or informed public participation. Since the error was not prejudicial, the error could not provide a basis for relief.

Conclusions and Analysis

The opinion adds to the litany of cases which accept a broad definition of “project” for the purposes of CEQA. This is especially true where the statute explicitly identifies the action as an example of a project. The opinion treads over fresher ground in CEQA law where the appellate court approaches the fair argument standard in a detailed and thoughtful manner. The opinion recognizes that the fair argument must be supported by substantial evidence in the record. The court rejects numerous attacks on the MND in this case where the arguments constituted vague criticisms unsupported by any specific facts. At the same time, the opinion demonstrates the perils of relying on a negative declaration. Because the petitioners supported a fair argument that the project may have a significant traffic impact, the County will be required to prepare an EIR analyzing the traffic impact.

Parker Shattuck Neighbors v. Berkeley City Council (2013) ___ Cal. App. 4th. ___ (Dec. 4, 2013).

In the last published CEQA case of 2013, the First District Court of Appeal upheld the City of Berkeley’s decision not to prepare an EIR for a mixed-use and residential project where petitioners failed to show that the project would have a significant effect on the environment.

The Parker Place Project is a three-parcel mixed-use and residential development that will replace a Honda dealership at the intersection of Parker and Shattuck streets in downtown Berkeley. Three environmental site-assessment reports revealed that the lots had contained underground gasoline storage tanks, as well as volatile organic compounds (VOC) in the soil and water samples. However, VOC levels did not exceed contaminant thresholds established by the San Francisco Regional Water Quality Control Board, and the studies concluded that contamination would not likely require cleanup and at least some chemicals were naturally occurring. All storage tanks underlying the property were removed.

Two years after removal of the last tank, developer CityCentric applied to begin constructing the project. The city council approved it, and petitioner Parker Shattuck Neighbors challenged the approval. The trial court ordered the city to vacate its approval for failure to hold a public hearing after modifying the project. The city conducted a second round of administrative proceedings and ultimately proposed a mitigated negative declaration (MND) after finding that mitigation could reduce any potential environmental impacts to less-than-significant levels. Parker Shattuck sought to set aside approval of the MND and to compel the city to prepare an EIR. The group was primarily concerned that the site’s soil contamination was a significant environmental impact, which the MND failed to adequately mitigate.

A lead agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project may have a significant effect on the environment. It is the petitioner’s burden to demonstrate a “fair argument” for environmental harm. The Court of Appeal held that Parker Shattuck failed to identify substantial evidence supporting a fair argument that potential health risks to workers and future residents might constitute a significant environmental impact. It did not consider whether the MND contained adequate mitigation measures because insignificant effects do not require mitigation.

The court declined to address whether CEQA required assessment of the effects of the environment on a project (in addition to the effects of a project on the environment) because it found that here, petitioner was arguing that the project would physically change the environment by disturbing contaminated soil. However, the court rejected the notion that the existence of toxic soil contamination at a project site is itself necessarily a significant impact requiring CEQA review and mitigation. The court also found that the site’s appearance on a list of hazardous locations merely meant it was not categorically exempt from CEQA review; it did not mean the project required an EIR.

The court did not decide whether adverse effects confined only those who build or reside in a project can ever render the effects of a physical change significant, given that CEQA generally does not regulate environmental changes that do not affect the public at large. Here, Parker Shattuck did not identify evidence sufficient to support a fair argument of significance even if there were health risks to the project’s workers and future residents. A scientific expert’s suggestion to investigate further, the court added, was not substantial evidence of an adverse impact.

On April 25, 2013, the Fourth District Court of Appeal ordered publication of its decision in Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999). The appellate court reversed the trial court’s decision to reject a California Environmental Quality Act (CEQA) cause of action brought against the school district for adopting a mitigated negative declaration (MND) for a project to upgrade a high school’s athletic facilities. In particular, the court found it was improper for the district to adopt the MND because the athletic facilities project may have significant traffic and parking effects.

Around October 2010, the San Diego Unified School District completed an initial study for a project to upgrade Hoover High School’s athletic facilities, including replacement of the bleachers and installment of new field lighting at the football stadium. The district planned to use funds from a 2008 proposition that authorized the school district to sell $2.1 billion in bonds for various construction and rehabilitation projects listed or described in the proposition measure. The district adopted the initial study and an MND for the Hoover High project on January 11, 2011, and filed a notice of determination the next day. In February 2011, the plaintiff organization (“Taxpayers”) filed suit against the district, ultimately alleging four causes of action: 1) violation of CEQA, 2) misuse of proposition funds, 3) violation of the city’s zoning and land use laws, and 4) improperly exempting the project from the city’s zoning and land use laws. After the trial court dismissed all four causes of action, Taxpayers appealed.

The Fourth District started its discussion of the CEQA claim with an overview of general principles and proceeded to apply the fair argument standard in its de novo review of the issues. First, the court found the initial study’s project description was not misleading just because it did not place a limit on the number of evening events that would be held each year.  The district had estimated in the initial study that there would be about 15 evening events plus a “few more” due to unforeseen events.  The court interpreted a “few more” to mean about three or four more evening events, for a total of 15-19 evening events per year.  Since Taxpayers did not cite any statutory or other legal authority requiring the District to identify a finite limit on the number of events that could be held annually, the court found this description was accurate and complied with CEQA. It did, however, warn that additional CEQA review would be necessary if the district chose to increase the number of events beyond the 15-19 range in the future.

Next, the court found the project’s installment of lighting would not have a significant environmental effect. The court expressly noted that testimony of individual community members regarding the aesthetic or lighting effects of the project could not constitute substantial evidence showing a significant effect because CEQA is concerned with how a project will affect the environment in general, not how it will affect particular persons.  The court also agreed with the initial study’s conclusion that the vertical illuminance caused by the four new 90- or 100-foot light standards would not significantly impact nearby residences because of the lighting’s limited hours of operation, the limited number of evening events, landscaping features, and the small number (seven or less) of affected residences.

The court then dismissed Taxpayers’ argument that the project would have a significant impact on historical resources. The court found the record did not contain substantial evidence that any historical resources existed near Hoover High, nor any evidence showing that any potential historical resources may be substantially affected by the project.

Finally, the court addressed issues regarding traffic and parking impacts. As a preliminary matter, the court noted that the lack of a reasonable estimate of expected attendance at future events could make the district’s assessment of traffic and parking impacts inadequate. The court disapproved of the district’s choice to base projected attendance at future Hoover High evening football games on the average attendance of games at five other high schools in the district. The court found that the district should have calculated and considered the actual attendance at past Hoover High afternoon football games as a baseline figure for estimations of attendance at future evening games. Because the district did not have sufficient information about the estimated attendance, the court determined it could not have properly reached a conclusion about the potential significance of the project’s impacts on parking and traffic.

The court further agreed with Taxpayers that the district could not rely on San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 (SFUDP), for the argument that a parking shortage cannot constitute a significant physical impact on the environment because it is merely a “social inconvenience.” The court found the SFUDP court’s discussion of parking was likely dicta, and disagreed with any holding that parking shortages can never constitute a physical impact on the environment. The court reasoned that vehicles are “physical objects that occupy space when driven and when parked” so they “naturally must have some impact on the physical environment.” In contrast to its discussion of aesthetic and lighting impacts, the court found that personal observations by local residents about parking could constitute substantial evidence that the project may have a significant impact on parking. Similarly, the court found that comment letters from residents about the traffic impacts were sufficient to support a fair argument the project may have a significant effect on traffic. Because the project may cause significant parking and traffic effects, the court held that the district must prepare an Environmental Impact Report.

On November 1, 2012, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad (2012) __ Cal.App.4th __ (Case No. D060167), affirmed the trial court’s judgment directing the city to adopt a timeline for proposed changes to its general plan that would correct inconsistencies created by the city’s revision of its housing element. The appellate court found that Government Code section 65583 establishes an exception to the requirement that general plans be facially consistent, as long as the municipality identifies a program with a timeline for resolving any inconsistencies arising from its adoption or revision of a housing element.

Pursuant to the Housing Element Law, the California Department of Housing determines the number and type of housing units each region of the state must provide, and regional planning bodies like the San Diego Association of Governments determine what percentage of the regional allocation individual municipalities must provide. On December 22, 2009, the city council of Carlsbad adopted proposed revisions to the housing element of its general plan to comply with Government Code section 65583. The city council also certified a mitigated negative declaration (MND) because it found the revision would not have a substantial environmental impact. The city’s housing element revisions included an assessment of housing needs and an inventory of sites which could accommodate the city’s assigned share of the region’s low cost housing needs. The adopted revision also identified several amendments to the general plan’s land use element that would be necessary to permit development of affordable housing on the specified sites at higher minimum densities than permitted in the existing version of the land use element.

Friends of Aviara challenged the city’s adoption of the housing element revision, alleging the MND violated CEQA and the revision impermissibly created inconsistency in the general plan. The trial court denied the CEQA claim, but found that the revision did create an improper conflict between the housing element and the land use element of the general plan. Consequently, the trial court issued a writ of mandate directing the city to adopt a timeline for the proposed amendments to the land use elements. Friends of Aviara appealed, contending that adopting a timeline for proposed amendments was not enough to remedy the defect in the revision and that the trial court should have required the city to rescind its adoption of the revision.

The appellate court’s analysis focused on Government Code section 65583, subdivision (c)(7), which requires a housing element to include “an identification of the agencies and officials responsible for the implementation of the various actions and the means by which consistency will be achieved with other general plan elements and community goals.” (Gov. Code, § 65583, subd. (c)(7), italics added.) The court concluded that the Legislature’s use of the future tense in the statute demonstrated a “legislative preference that municipalities promptly adopt housing plans which meet their numerical housing obligations even at the cost of creating temporary inconsistency in general plans.” Therefore, the Fourth District Court of Appeal held the trial court properly required the city to adopt a timeline for the proposed amendments to the general plan’s land use element and was not required to order the city to rescind its adoption of the housing element revision to remedy the resulting inconsistencies in the general plan.

Consolidated Irrigation District v. City of Selma (5th Dist. Feb. 28, 2012 [modified March 9th, 2012]) __ Cal.App.4th__ (Case No. 08CECG01591)

On February 8, 2012, the Fifth Appellate District ruled that a lower court properly found an irrigation district had standing to sue under CEQA and challenge a residential development approved by the City of Selma. The court also found the administrative record provided substantial evidence supporting a fair argument that the proposed project would result in potentially adverse significant impacts, and therefore, a mitigated negative declaration was inappropriate and a full environmental impact report was required.

Factual and Procedural Background

Raven Development, Inc., proposed developing a 160-unit, single-family residential subdivision that would be annexed by the city. Water for the proposed subdivision would be provided by a private water company. The initial environmental study concluded that the project’s groundwater use would not be significant and would not interfere substantially with the recharge of the aquifer; therefore, no mitigation would be required for the project’s impacts on hydrology and water quality.

Petitioner Consolidated Irrigation District (CID) is an independent special district formed under the California Water Code. The district is located in southern Fresno County, and its boundaries enclose approximately 163,000 acres of land, the majority of which is irrigated agricultural land.  The District delivers over 200,000 acre-feet of surface water for irrigation per year. The District also operates a groundwater recharge system that includes over fifty recharge basins.

An integrated regional water management plan was completed for the Upper Kings groundwater basin. The water management plan included findings that the Kings groundwater basin was in a state of overdraft that would continue to worsen through year 2030 based on projected conditions. The findings noted that between 2005 and 2030, the groundwater levels in the District’s urban areas will decline between an estimated five and ten feet.

The city prepared a mitigated negative declaration for Raven Development’s proposed subdivision. During the public review period, the District submitted letters stating the conversion of agricultural land to urban land was having an adverse and cumulatively significant impact on the groundwater basin, and the project potentially could have cumulative hydrology impacts as well. The District asserted that a full EIR was required. Despite these concerns, the city council adopted resolutions approving the project and adopting the MND.

CID filed a petition alleging that substantial evidence supported a fair argument that the project could result in significant impacts to the environment. CID requested that the city prepare the administrative record.

The city lodged a certified administrative record. Subsequently, CID filed a statement of issues.  This included an allegation that mandatory portions of the administrative record had not been included. CID filed a motion to augment the record, claiming it did not contain four documents that CID had submitted to the city. The trial court ordered that the administrative record be augmented and ultimately found the city violated CEQA when it approved the project. The court determined that the city needed to prepare a full EIR to address the significant cumulative impacts attributable to the project, among other potential impacts. The city appealed.

The Appellate Court’s Decision

On appeal, the city argued the trial court erred when it allowed the challenged documents to be added to the administrative record.  The city asserted the documents were not presented to a city decision-making body, and therefore, were not considered during the project approval process. The city further argued that the trial court erred in determining the district had standing. Finally, the court addressed the fair argument standard as applied to MNDs and issues of credibility of evidence submitted before an agency.

Order Augmenting the Administrative Record

The parties disagreed on the appropriate standard of review to be applied to the trial court’s decision to grant the motion to augment the administrative record. The city asserted de novo review of the trial court’s decision was the appropriate standard. The city argued this review should be limited to an examination of the administrative record. CID disagreed and claimed the only issue was whether the documents had been submitted to a decision-making body prior to the final approval of the project. Therefore, the trial court’s decision to augment the record with the contested documents should be upheld under the substantial evidence standard of review.

The court of appeal noted that the parties briefed the appeal before the court published its decision in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, which addressed numerous questions related to the scope of the administrative record. Relying on Madera Oversight, the court determined Public Resources Code section 21167.6, subdivision (e), governing the contents of administrative records, is mandatory, and the requirements thereof are not committed to the discretion of a trial court. Instead, the findings of fact made by the trial court in determining whether documents are part of the record are appropriately reviewed under the substantial evidence standard.

The trial court based its decision to augment the administrative record on conflicting evidence presented by the city and district. Testimony from a district representative indicated that the documents in question had been presented to the city planning commission at a public hearing. The planning commission had failed to maintain two files in its record that it later agreed should have been included. Further, while transcripts were not available for the hearing, minutes indicated that the district submitted three documents. Testimony from the district’s representative indicated that two documents had actually been submitted to the city as a single document. The appellate court determined these facts presented substantial evidence supporting the trial court’s order to grant the motion to augment the record.

Standing of a Public Agency

The city also argued the trial court erred when it determined CID had standing to bring an action under CEQA. The city asserted the water district could not claim public interest standing to bring a citizen suit under CEQA. The city reasoned that a public agency could not qualify for public interest standing because it is a governmental body. The court declined to address this argument after finding the district adequately met the usual “beneficially interested” standing requirement under Code of Civil Procedure section 1086.

The court determined the district was “beneficially interested” after citing Water Code section 22650, which states, “A district may commence and maintain any actions and proceedings to carry out its purposes or protect its interests…”  The court determined “interests” in this section included all beneficial interests sufficient to satisfying standing requirements of Code of Civil Procedure section 1086. As a result, CID had authority under the Water Code to pursue CEQA litigation to protect its beneficial interests.

The court declined to adopt the city’s argument that a public agency only has a special interest or right, and therefore a beneficial interest, if the project affects a natural resource over which the agency has jurisdiction. The city attempted to support its argument by citing to CEQA Guidelines which limit the matters a public agency may comment on during environmental review. The court noted, however, that public agencies are authorized to submit comments to the lead agency on projects with impacts falling outside their legal jurisdiction if an affected resource is within an area of expertise of the agency. Therefore, the court concluded a public agency’s beneficial interests are not limited only to resources over which it has direct jurisdiction.

In this case, the district argued its operations, including that of numerous groundwater recharge basins, would be adversely affected by the project. The court found the operation of these recharge basins gave CID a special interest in the local groundwater. As a result, the district had a beneficial interest that could be adversely affected by the project. Therefore, the district satisfied the standing requirements necessary to file suit to enforce CEQA.

Application of the Fair Argument Standard

An agency’s decision to certify a negative or mitigated negative declaration is reviewed by courts under the fair argument test. If this test is met, then the declaration is overturned and the agency must prepare and certify an environmental impact report. A fair argument that a particular project may have a significant adverse effect on the environment must be supported by substantial evidence in the administrative record. The city argued the lead agency has discretion to determine whether evidence presented is actually substantial. The court disagreed and noted that whether an administrative record contains sufficient evidence to support a fair argument is a question of law.  Instead, the court found deference to the agency appropriate only for limited issues of credibility.

To support rejecting evidence for lack of credibility, an agency must identify that evidence with sufficient particularity to allow a reviewing court to determine if there were actually disputed issues of credibility. The court determined this was an appropriate requirement to prevent post hoc rationalization by the agency. In this case, the city could provide no citations to the administrative record showing any decision-maker questioned the credibility of any evidence presented. Therefore, court declined to defer to the city when reviewing the record to determine if it supported a fair argument that the project would cause significant adverse impacts.

Conclusion

This case further illustrates the difficulty lead agencies can face in defending MNDs. It also indicates that it is important for agencies to identify and discuss the reasons they believe presented evidence may not be credible. If an agency fails to do this, a court is likely to dismiss subsequently presented credibility challenges as simply post hoc rationalization.

In addition, an agency’s beneficial interest in CEQA proceedings extends not only to just the natural resources over which the agency has direct jurisdiction, but also those which have some relation or connection to the jurisdictional resource areas.