A Fair Argument and the Need to Prepare an EIR: A Timeless Tale

By William W. Abbott

In 2001, the County of Inyo adopted an updated General Plan, which included a definition of “net acreage”.  This definition excluded areas devoted to streets, roads and utilities. Over time, staff was concerned with interpretation of this provision as it related to utilities, and in 2005, the Board of Supervisors, based upon a negative declaration, amended the General Plan’s definition of net acreage, deleting the reference to utilities.  The Board then acted to approve three parcel maps, each based upon negative declarations.

Petitioners challenged the General Plan Amendment (“GPA”) and map approvals. There was no indication in the record that the negative declaration for the GPA was processed as a tiered document, so the appellate court applied the traditional (and more demanding) “fair argument” test. General testimony offered in opposition to the GPA dealt with the potential for increase in development resulting from the new interpretation, lowering groundwater tables, the potential for contamination of domestic groundwater sources through the addition of septic systems, and potential loss of habitat. The County argued that this amendment simply restated what in fact had been the existing policy of the County, but the evidence in the record was that the 2001 policy could be interpreted a number of different ways, thus the potential change in land use policy was viewed by the court as material in character and was not simply a clerical exercise. This case illustrates once again the relative low threshold for overturning a negative declaration that is invoked by the fair argument test. In practice, the County may have been better served by characterizing the later CEQA document as a form of a supplemental CEQA document to whatever was prepared with the 2001 General Plan adoption. This case underscores why it is essential that the preparer of a later CEQA document documents the relationship of the second CEQA document to an earlier one. In the absence of such documentation, the lead agency exposes itself unnecessarily to more demanding standards of judicial review.

The appellate court then turned to the legal challenges to the tentative parcel maps. With respect to the tentative maps, the appellate court generally concluded that the appellants (the project opponents) failed to present sufficient argument, based upon the evidence in the record, to support their contentions of error under the land use and CEQA laws, and denied relief. This appears to be the rare case where the project opponents won the battle (the general plan amendment) but lost the war (the subdivision approvals). Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (2009) Cal.App.4th.

William W. Abbott is a partner at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or 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.

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