Five Significant CEQA
Decisions in 2012           
March 2013
In This Issue
CEQA Reform
New Stormwater Requirements
Berkeley Hillside Preservation
Preserve Wild Santee
Banning Ranch
Who is Douglas Herring & Associates?
Greetings!

 

Spring is showing its colors in the Bay Area, but plenty of winter remains in the mountains. Winter is a great time to appreciate the wonders of Yosemite without the crowds, which I've been able to do a couple of times this winter. The photos in this issue were captured on those recent visits.

  Yosemite-Pine bough in snow B&W

There were a lot of CEQA decisions rendered by the courts last year, and picking the most significant ones is a daunting task. In this issue of our periodic eAlerts, intended to provide helpful information on planning and CEQA issues to our clients and colleagues, we summarize five cases likely to guide future implementa-tion of CEQA. We also provide you with links to the full decisions.    

 

As always, let us know if there's anything we can do to help lighten your work load.    

 
Sincerely,

Doug Herring, AICP


Archives:  Our previous eAlerts are now archived at:  DHA eAlerts Archive   
 
Photography by Doug Herring

Yosemite-Hetch Hetchy B&W
Hetch Hetchy Entrance, Yosemite

 

Rialto Citizens for Responsible Growth v. City of Rialto 
(2012) 208 Cal.App4th 899

This case illustrated a trend that emerged in many of the 2012 CEQA decisions: the courts tended to uphold EIRs with minor technical errors or emissions, finding such deficiencies to be non-prejudicial. The courts weren't looking for perfection, and tended to defer to the decisions of the lead agency except in cases of major flaws, particularly ones with inadequate explanations in defense of the analysis.

The plaintiff challenging the City of Rialto's EIR for a 230,000-square-foot Wal-Mart Supercenter alleged a wide range of deficiencies in the EIR, but the Court upheld the EIR in most respects. In one exception, the project description was deemed incomplete because it did not include the proposed development agreement in the list of permits and approvals required for the project. However, the omission was not prejudicial because the development agreement was discussed at noticed public hearings on the project.  

 

Because the 2008 EIR was prepared before the 2010 CEQA Guidelines provisions requiring analysis of greenhouse gas (GHG) emissions were adopted, the Court agreed with the City's determination that the project's GHG impacts were too speculative to evaluate.  

 

The Court of Appeal rejected the trial court's conclusion that the analysis of cumulative traffic impacts was inadequate. CEQA Guidelines Section 15130(b) requires that the cumulative impacts analysis be based on a "list of past, present, and probable" future projects producing related or cumulative impacts, or on a summary of projections contained in an adopted planning document or environmental document. Rialto's reliance on the San Bernardino County Associated Government's (SANBAG) traffic model used to prepare its Congestion Management Plan (CMP) EIR was adequate, the Court ruled.  

 

The plaintiff alleged that biological mitigation requiring pre-construction surveys for special-status plant and wildlife species improperly deferred the mitigation. If any special-status species were identified in the surveys, the EIR required the applicant to obtain permits from the U.S. Fish and Wildlife Service and the California Department of Fish and Game. The Court found that this established an adequate performance standard, and upheld the mitigation.

 

To read about the other findings in the case, download the full decision here: Rialto Citizens v. City of Rialto.


Half Dome and Clouds Rest, viewed from Glacier Point, Yosemite

Mount Shasta Bioregional Ecology Center v. County of Siskiyou

(2012) 210 Cal.App.4th 184

 

There were a number of interesting rulings in this case involving an EIR for a biomass cogeneration power plant proposed for an existing wood veneer manufacturing plant. The only alternative evaluated in the EIR was the No Project Alternative; the County considered but rejected other alternatives as infeasible. Despite the CEQA requirement for an EIR to evaluate a "reasonable range of alternatives," the Court ruled that only feasible alternatives need to be analyzed and, in some cases, an EIR which examines the project and no project alternative may be sufficient. A factor in this decision was that the plaintiffs had not identified a potentially feasible alternative that should have been evaluated. The Court also upheld the air quality analysis that relied on a baseline of permitted emissions rather than actual existing emissions. In this instance, the Court deferred to the County's rationale for this approach, which reflected "a reasonable approximation" of baseline emissions. You can read the full decision here: Mount Shasta Bioregional Ecology Center v. County of Siskiyou.

 

El Capitan and Yosemite Valley

Berkeley Hillside Preservation v. City of Berkeley 

(2012) 203 Cal.App.4th 656               

 

This case challenging the City's use of a categorical exemption for a large single-family home proposed and ten-car garage on a steep lot in the Berkeley hills has received a lot of attention. The plaintiffs asserted that the "unusual circumstances" exception to an otherwise exempt project category applied, due to significant seismic hazards and the unusual size of the home. The Court found that the plaintiffs had made a valid fair argument that the project could have a significant effect on the environment, and ruled that an EIR must be prepared. The California Supreme Court will be reviewing this case, so stay tuned. The full decision is here: Berkeley Hillside Preservation v. City of Berkeley. 

 

Half Dome in Winter

Preserve Wild Santee v. City of Santee 

(2012) 203 Cal.App.4th 656               

 

The appellate court set aside the City of Santee's EIR evaluating the impacts of a proposed residential development of 1,380 homes, which included preservation of 1,400 acres of open space. The Court agreed with the trial court's finding that the EIR did not provide sufficient evidence to support the conclusion that the project's fire safety impacts would be less than significant. The Court also found inadequate the water supply analysis, which was based on a water supply assessment (WSA) prepared by the local water district. The WSA projected an available supply of 881 acre-feet per year (AFY), while the EIR projected a demand of 1,446 AFY, without addressing this discrepancy. It also failed to address an acknowledged problem with the water supply for a proposed 10-acre lake, and did not address uncertainties in water supply provided by the State Water Project, which had been ordered in 2007 by a federal court to implement severe cutbacks to protect the Delta smelt.

 

The Court also ruled that the City had improperly deferred mitigation for impacts to the Quino checkerspot butterfly. The mitigation called for an open space preserve to be developed and managed by a habitat management plan, which was to be approved by the City and wildlife agencies. However, the EIR did not identify performance standards for management of the habitat, and failed to explain why it was infeasible to specify such standards.

 

The Court upheld the EIR's analysis of cumulative biological impacts. The EIR explained that the project site was covered by a multi-jurisdictional Multiple Species Conservation Program (MSCP) that is designed to protect natural habitats. The EIR assumed that projects in nearby jurisdictions would be consistent with applicable subarea plans already developed by those jurisdictions. Although Santee's subarea plan had not yet been adopted, the EIR concluded that projects within Santee would be governed the City's subarea plan, once complete, or in the alternative by the standards established in the MSCP. The Court found that each development project in the area would be required to comply with the MSCP, and would therefore be implementing its fair share of mitigation designed to alleviate the cumulative impact, in compliance with CEQA Guidelines Section 15130(a)(3).

 

Read the full decision here:  Preserve Wild Santee v. City of Santee.

 

Glacier Point Overlook, Yosemite

Banning Ranch Conservancy v. City of Newport Beach 

(2012) Cal.App.4th                

 

Among other claims, the plaintiff contended that the City of Newport Beach improperly piecemealed the project evaluated in this 2009 EIR, which evaluated a 19-acre park (Sunset Ridge Park) and access road. The City purchased the parcel from the 400-acre Banning Ranch, recently added to the City's sphere of influence. Prior to publication of the Draft EIR, the City issued a Notice of Preparation to annex the Banning Ranch property and develop it with a mixed-use project including 1,375 homes, 75,000 square feet of commercial use, and a resort. The plaintiff argued that the City should have evaluated the mixed-use project in the Sunset Ridge Park EIR, and was therefore piecemealing a larger project.

 

The Court did not agree, finding that although the mixed-use project was reasonably foreseeable, it was not a reasonably foreseeable consequence of the park project, one of the prerequisites for piecemealing established by the California Supreme Court in Laurel Heights Improvement Association v. Regents of University of California (1988) 47 Cal.3d 376. The Court found that the two projects had different purposes, different applicants, and could be implemented independently. While the proposed roadway would also serve the proposed mixed-use development, it would represent "only a baby step" toward that project, and would not in itself allow the development to move forward. Furthermore, construction of the access road was identified as a planned improvement in the City's General Plan. This ruling undermines common plaintiffs' arguments that multiple projects that stand to benefit from a major infrastructure improvement should be evaluated as a single project.

 

Download the full decision here:  Banning Ranch Conservancy v. City of Newport Beach.

 

Who Is Douglas Herring & Associates?

Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner.  Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and legally defensible environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website:  Douglas Herring & Associates.
 
We invite you to pass this article along to colleagues who need the information and who may wish to subscribe themselves: DHA Free Tips(Please use the Forward link below to ensure that the hyperlinks will function in the forwarded message.)