Abbott & Kindermann Land Use Law Blog

EIR Set Aside For Failure To Explain Discrepancy Between EIR And WSA In Water Demand Number And To Analyze Groundwater Impacts Resulting From Filling A Lake

By William W. Abbott

The City of Santee certified an EIR, a water supply assessment and entitlements for a mixed use project on 970 acres of a 2,600 acre real estate holding. The approved land uses included 1,380 single family dwellings, 230 acres of a pedestrian oriented village, and a 10 acre lake. About half the area, 1,400 acres, would be approved as an open space preserve. Opponents challenged the EIR, and the trial court found a CEQA error pertaining to fire safety. The trial court declined the opponents request to set aside all of the approvals, opting for limited relief as contemplated by Public Resources Code section 21168.9. The trial court also awarded attorneys fees to the opponents under the authority of Code of Civil Procedure 1021.5. Both sides appealed.

As to the sufficiency of the CEQA document, the appellate court affirmed the trial court’s decision on the fire issue, but concluded that there were other deficiencies as well. First, as to fire safety impacts, the EIR relied upon a fire protection plan, one element of which was the open space fuel management strategies. When the City approved the project, it did not include the fuel management strategies as part of its approval (although not entirely clear, it may have been omitted due to species concerns.) As a consequence, the appellate court concluded that there was a lack of substantial evidence to support the conclusion of no or less than significant impacts. The appellate court did uphold the evaluation of cumulative impacts to biological resources. In this case, the lead agency had relied, in part, upon a draft multi-species plan. The multi-species plan had been adopted by the City and County of San Diego, but not the City of Santee. However, the EIR assumed that the City would either adopt the species plan, or adopt similar standards, but in either event, the project met the species plan standards and would not interfere with plan implementation. On this basis, the lead agency properly concluded that the project’s contribution would not be cumulatively considerable. Turning next to the mitigation measures for the Quino checkerspot butterfly (http://www.esablawg.com/esalaw/esblawg.nsf/d6plinks/krii-7tj46a), the appellate court found that the EIR failed to describe the actions contemplated for active management for the Quino within the preserve area and were improperly deferred to a later to-be-developed management plan; thus the approvals failed to contain sufficient protocols and standards as a substitute.

The appellate court also rejected the analysis of the project’s water supply impacts and related matters. First, the court observed that there was a significant difference in water demand numbers set forth the EIR (1,446 AF) compared to those in the Water Code 10910-10912 assessment (881 AF) prepared for the project, but there was no reconciliation in the EIR as to these differences. In a very rigid analysis, the appellate court concluded that “such an unexplained discrepancy precludes the existence of substantial evidence to conclude sufficient water is likely to be available for the project.” The appellate court also faulted the City in that the EIR failed to account for uncertain or known contingencies to a reliable water supply (deliveries ultimately tied to the State Water Project.) The EIR also failed to account for the impact of filling and recharging the 10 acre lake with groundwater, which potentially could compound the threshold issue of the water supply assessment, as the water district would be the only other source of potable water necessary to fill the lake.

Addressing next the remedy question, the appellate court addressed the issue of the nature of the remedies to be employed by the trial court in the event that it found a CEQA error. The appellate court recognized that CEQA grants the trial court the discretion of a remedy commensurate with the nature of the CEQA violation and that invalidation of the approvals is not mandated in every instance. However, in light of the additional interrelated CEQA errors it identified, the court intimated that a limited remedy may not be appropriate, although, as the trial court had invalidated all of the local government approvals in a later court proceeding, the appellate court did not have to address the application of this discretion to the case pending before it.

As to the award of attorneys fees and the ensuing appeal, the court remanded it back to the trial court in light of the plaintiff/appellants success on appeal for further proceedings. Preserve Wild Santee v. City of Santee (October 19, 2012, D055215) ___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. 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.

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