Posts Tagged ‘Statement of Overriding Considerations’


The court held the City of Pasadena properly evaluated the environmental impacts of hosting an NFL team at the Rose Bowl Stadium, resulting in an additional 13 large-scale events (NFL games) per year, for up to five years. The court affirmed the trial court’s denial of the coalition’s petition. Coalition for Preservation of the Arroyo v. City of Pasadena (May 28, 2015) Case No. B255824.

A funding gap in the Rose Bowl Stadium’s renovation precipitated the city’s efforts to obtain funding by temporarily hosting an NFL team at the stadium, which would add 13 “displacement events” per year. An express purpose of the project was to generate revenue to fund city services and offset the costs of Bowl renovation. Pasadena adopted a statement of overriding considerations finding that the economic benefits of the project outweighed its significant and unavoidable impacts.

The coalition argued the EIR was premature and segmented because the city had not yet negotiated a lease with an NFL team. Given CEQA’s basic tenant that environmental analysis should occur as early as feasible in the planning process, however, the court found the city had performed such review at the most practical and meaningful opportunity. Had the city waited until it negotiated specific contractual terms with a team, those negotiations could have been perceived as a commitment to the project prior to environmental review, in violation of CEQA. The court also concluded the data relied on by the city within the EIR addressed the likely scope of the NFL lease, and thus the review was not segmented. The city had relied on a report for an estimate of the potential revenue that could be generated by an NFL team’s temporary use of the stadium ($5-10 million per year), which was a reasonable method given the city’s lack of any lease agreement with the NFL. The report also constituted substantial evidence supporting the city’s decision that the economic benefits of the project outweighed any environmental impacts it caused.

The court found no basis to the coalition’s argument that the city’s analysis of historical resources did not survey or fully describe the historical environmental setting and failed to address any NFL-related impacts to the immediate surroundings, stating there was no evidence that the project contemplated any physical, material change to an historic resource. The Rose Bowl was constructed specifically to accommodate football games, and an increase in the number of games each year for a temporary period would not materially impact any of the significant character-defining features of the stadium. Additionally, the city had properly and fully identified and described the historical setting of the stadium and surrounding areas; the coalition failed to identify with specificity any deficiencies in this description.

The court also found that studies relied on by the city provided substantial evidence regarding the frequency of recreational use and the number of users that would be impacted by the project. Further study was not necessary to engage in informed decisionmaking—greater exactitude regarding the number of users was not necessary to evaluate the environmental impact and identify mitigation.

The court held the feasibility of the aesthetics mitigation, related to trash cleanup, was supported by substantial evidence in the record. The EIR had determined that aesthetics would not be significantly impacted by the project, and thus mitigation measures were not required.

The coalition argued that the city failed to provide an adequate analysis of air pollution because it lacked an adequate baseline measure of pollutants. It argued the EIR did not utilize the appropriate methodology to determine baseline pollutants in the stadium area and surrounding neighborhoods, indicating the baseline measurement was not taken close enough to the stadium. The court disagreed, finding the city’s decision to use that the nearest air quality monitoring station data as the baseline was supported by the standard, accepted practices of the agencies that engage in air quality monitoring. The choice of methodology was bolstered by the reliability and breadth of data available from that station. The coalition failed to identify evidence in the record showing how the methodology was inaccurate, or explain how the baseline precluded the city from making an informed decision regarding the project.

The court similarly rejected the coalition’s argument that the city failed to accurately estimate travel distances of event visitors in evaluating air quality impacts, as the group provided no evidence that the city had erred in calculating the average trip length. No local trip length data existed for NFL games, so the city had used the pertinent air pollution control agency’s recommended model. The court found this choice of methodology reasonable and supported by substantial evidence.

In response to the coalition’s argument that the city did not present sufficient evidence to support its conclusion that it had adequate police and fire services to serve the proposed project, the court pointed to the EIR’s explanation that the Pasadena Police Department already provides police protection and traffic enforcement service on a regular basis to the stadium, along with a private security company. The EIR found that there was no need to expand police services, and impacts to those services would be less than significant. The assertions regarding fire services were similarly baseless.

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.