By Katherine J. Hart
In the recent opinion of CREED v. City of San Diego (2011 Cal. App. LEXIS 720, Court of Appeal, Fourth Appellate District) petitioners are cautioned not to rely on massive, unorganized, last minute submittals of documents and data without clarifying and outlining their specific concerns in order to provide an agency with an opportunity to respond. The court of appeal also held that water supply assessments (WSAs) can be approved by a CEQA lead agency that also serves as the water supplier for the project area by including the WSA analysis in the environmental document and certifying that environmental document (e.g., no separate WSA approval is necessary).
In 1994, the City of San Diego (City) certified an environmental impact report (EIR) and approved a 665-acre mixed-use development containing 4,000 dwelling units of all sizes and types within the Otay Mesa Community Plan area.
More recently, in 2008, developer Pardee Homes submitted an application to the City for a planned development to build out the last area within its original development – Playa del Sol. The area was slated to include 16 three- and four-story condominium buildings containing a total of 1,578 units, as well as three recreation buildings.
The City was the CEQA lead agency for the project, as well as the governing body of the public water system for San Diego. As the governing body of the water district, the City prepared a water supply assessment (WSA) for the project in April 2008, which concluded the water supplies will be sufficient for the next 20 years. The WSA was discussed and incorporated by reference into the 2008 addendum to the 1994 EIR, which the City noticed and circulated.
The first council hearing on the project was held in January 2009. Petitioner (CREED) submitted a brief letter urging the council to deny project approval, along with a digital video disk containing more than 4,000 pages of unorganized documents. No representatives of CREED attended the January hearing. The City council continued the hearing to February 17, 2009. CREED submitted similar documents to the City council in February and again, did not appear. The City council certified the addendum to the EIR and approved the Playa del Sol project on February 17, 2009.
CREED filed a petition for writ of mandate alleging that 1) the City violated the procedures provided in the Water Code with respect to adopting the water supply assessment; and 2) the City should have prepared and considered a supplemental environmental impact report because a) there were changed circumstances and new information pertaining to water supply (e.g., drought and climate change) that were not properly considered, and b) there were changed circumstances and information regarding climate change that were not properly considered.
The trial court found for the City, holding that the City’s certification of the addendum constituted sufficient approval of the WSA, and that CREED failed to exhaust its administrative remedies with respect to the issues of climate change and water supply, but that even if CREED had exhausted its administrative remedies, it failed to prove that there were changed circumstances, new information, or harmful effects on the environment which would justify a supplemental EIR for the project.
The Water Supply Assessment
On appeal, the appellate court first addressed whether the City failed to comply with the Water Code procedure in approving the WSA via certification of the addendum to the 1994 EIR. In holding the WSA was properly considered and approved by the City, the court noted that the Water Code states the WSA must be included in any CEQA document prepared for a project, and that the governing body of each water system must approve the assessment at a regular or special meeting not later than 90 days from the date upon which the request for the assessment was received. (Water Code § 10910, subd. (g).) The fact that the resolution certifying the 2008 addendum to the 1994 EIR did not separately state the WSA was approved by the City, or that the council did not approve the WSA prior to its inclusion in the addendum to the 1994 EIR, was not fatal. In reaching its holding, the appellate court found Section 10910(g) of the Water Code to be inapplicable in circumstances where the CEQA lead agency is the water district that must prepare and approve the assessment. The court distinguished the case of California Water Impact Network v. Newhall County Water District (2008) 161 Cal.App.4th 1464, because there, the water district was a separate, independent district supplying information to a lead agency whereas in the case at bar, the City was the water supplier as well as the lead agency under CEQA. Finally, the appellate court determined there was no procedural flaw in the City’s process despite the fact it had not specified the WSA was contained within the addendum in its CEQA notices.
After reviewing the law of when a supplemental EIR is required pursuant to Public Resources Code section 21166, the appellate court found that there was neither substantial changes in the proposed project, substantial changes with respect to the circumstances under which the project was being undertaken, or new information regarding drought which was not known and could not have been known at the time the 1994 EIR was certified.
In upholding the City’s and the trial court’s determinations that CREED failed to exhaust its administrative remedies by failing to submitted any substantial evidence of new or changed environmental circumstances, the appellate court emphasized that objections to a project or environmental document must be ““…sufficiently specific so that the agency has the opportunity to evaluate and respond to them”” (citing to Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535-536). The court of appeal also noted that the letters submitted at both the January and February 2009 council meetings were general in nature and failed to raise any substantive issues with the WSA; thus, the letters were inadequate to preserve CREED’s right to challenge the City’s WSA. The court of appeal went on to note that CREED improperly claimed exhaustion by citing to the thousands of pages of documents submitted on a DVD at the January meeting. The court of appeal cautioned, “The City cannot be expected to pore through thousands of documents to find something that arguably supports CREED’s belief the project should not go forward.”
The appellate court also determined that CREED could not use a council member’s objections to the addendum not addressing drought to support CREED’s arguments that a supplemental EIR should have been prepared. Specifically, while the overarching concern of both the council member and CREED was drought, the council member never argued that a supplemental EIR should have been prepared. Accordingly, the council member’s objections regarding drought were substantively different than those presented by CREED. The appellate court went further and said that even if CREED was not barred from cribbing off the councilmember’s comments on drought, CREED had not provided new evidence or that the project would have a harmful effect on the environment.
Greenhouse Gas Emissions/Climate Change
The appellate court also determined that CREED failed to exhaust its administrative remedies on the issue of greenhouse gas emissions (GHGs) and their relation to climate change. Specifically, the appellate court noted that neither the thousands of pages of unorganized data provided by CREED on a DVD to the City at the last minute, nor the two vague and general letters submitted to the City were sufficient to fairly present information to the City on the issue. The court dismissed CREED’s claims that exhaustion had occurred merely because the developer had reviewed the DVD and responded to the City, but said that even if CREED had properly exhausted on the issue of GHGs, nothing submitted constituted new substantial evidence of the effect of GHGs on climate change. In fact, pointing to information on climate change dating back to the 1970’s, the appellate court said, the issues should have been raised in 1994, when the original EIR was considered by the City.
This opinion is notable because real parties and agencies now have an opinion on the books that reflects the frustration with last minute “document dumps” used as stall tactics by project opponents. While this case does not in any way state that agencies don’t have a duty to thoroughly review massive amounts of information submitted to them, it does indicate the manner in which that information should be presented – in an organized and coherent way – and emphasizes the need for fair presentation of the issues so that they may be properly addressed by the agency.
Additionally, this opinion clarifies – at least for those in the Fourth Appellate District in California – that Water Supply Assessments may be “approved” by merely being discussed in an environmental document that is eventually certified by the lead agency (so long as the lead agency is also the water supplier for the project), and further provides that the timeline contained in Water Code section 10910(g)(1) for preparing and approving a WSA does not apply to an agency that is both the lead agency under CEQA and the governing body of the water district conducting the WSA.
Finally, although only dicta, the appellate court’s discussion of “new information” pertaining to GHGs and climate change could be a showstopper for opponents challenging project approvals tiering off of previously adopted General Plans, EIRs, Specific Plans, etc. unless they have specific, competent evidence of new information of substantial importance, which was not known and could not have been known with the exercise of reasonable of diligence at the time the previous EIR was certified as complete and showing additional significant effects or more severe significant effects not discussed in the previous EIR. (Pub. Resources C § 21166; 14 CCR § 15162.)
This opinion was written based on common sense and fairness, all the while providing a reminder to all – especially petitioners – that CEQA was intended to be a statute that protects the environment and provides for an orderly decision-making process, not a project-stopper or litigation free-for-all.
Katherine J. Hart is an attorney 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, or 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.