By Joel Ellinwood, AICP

As the battle of the big boxes continues on the fields of CEQA in the California courts, the Fifth District Court of Appeals reiterated (in an unpublished portion of the opinion) that it will carefully scrutinize evidence petitioners use to support a “fair argument” that a project approved with a Mitigated Negative Declaration (MND) is inadequate without the preparation of a full Environmental Impact Report (EIR). Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (California Gold Development Corp. – Lowe’s, Inc.) 155 Cal.App.4th 1214 (filed 10/2/07, modified 10/31/07).

Unfortunately for Lowe’s, they won the battle but lost the war because the Initial Study and Mitigated Negative Declaration approved by the City of Sonora did not include an evaluation of the road and intersection improvements required as a condition of project approval. In the published portion of the opinion, the Court of Appeals reversed the trial court’s dismissal of the petition and remanded to the trial court for further proceedings – pointedly not necessarily including an EIR.

The City of Sonora had plans for road realignment and intersection improvements for the area of Old Wards Ferry and Sanguenetti Road on the books for over twenty years. Lowe’s argued that the improvements were a separate project because: 1) the developer did not seek approval of the realignment; 2) the realignment was not necessitated by the project; 3) it was not “integral to” the Lowe’s project because it could be implemented separately. The Court of Appeals rejected all of three arguments. Whether it sought approval for the road improvements or not, the two projects were only theoretically separate until the road improvements were included as a condition of approval of the Lowe’s project. Once that occurred, the road improvements became a necessary component of the project and needed to be included both in the project description, and in the environmental assessment. Had the County previously prepared an environmental assessment (EIR or MND) for the planned road improvements, the result might have been different.

The Court of Appeals reversed the trial court. Upon remand, the trial court will issue a writ to the City of Sonora requiring it to rescind the approval of the mitigated negative declaration and the project. Once the City has appropriately included the road and intersection improvements in the project description to comply with the ruling, prepared an environmental assessment of the road and intersection improvements together with the rest of the project (which may still be a MND), and circulated the MND for public comment, the City may again approve both a MND and the project. In other words, the inadequacy of a MND does not automatically lead to the preparation of an EIR.

The consolation prize for Lowe’s and the developer is that the court virtually endorsed the use of an MND instead of an EIR.  However, since the process will be repeated, the petitioners will have another shot at building a record that will support a fair argument that the project, even as mitigated, may have a significant environmental effect.

Joel Ellinwood, AICP is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.