By William W. Abbott
South County Citizens for Smart Growth v. County of Nevada (October 8, 2013, C067764) ___ Cal.App.4th ___.
Starting in 2005, KKP submitted an application for a mixed use commercial center to be located in Nevada County on a 20 acre site. The proposal included a 60,000 square foot grocery store anchor, two retail buildings, two drive through restaurants and nearly 500 parking stalls. Four parcels would be retained by the property owner, and the proposal accommodated roughly 42,000 square feet of light industrial and office uses on the owner’s retained land. The last parcel was restricted to wetland/open space uses. The County released the DEIR in November 2007, disclosing three significant unmitigated impacts; two traffic impacts and one cumulative air impact. After an extended public review process, including additional analysis submitted by the applicant, the Planning Commission conducted a hearing on the FEIR in January 2009. The staff report for this hearing included a staff recommendation for an approval, with a variation on alternative 4 in the DEIR. The commission voted to recommend certification of the EIR and the various approvals associated with the project to the Board of Supervisors, including the staff recommended plan (which capped the amount of commercial footage and increased the open space area.) KKP then developed two alternatives responsive to the Planning Commission recommendation of the staff’s alternative. Staff evaluated KKP’s two additional alternatives, and recommended that the Planning Commission formally recommend KPP’s second alternative to the Board of Supervisors.
Following further deliberations, the Planning Commission in May and June 2009, modified the tentative map, recommended certification of the EIR, and further recommended that the Board approve the modified project, as compared to the staff recommendation. (Author’s note: the court decision does not explain the procedural steps of how the Commission made two recommendations. One possible explanation is that the first recommendation was based upon a motion of intent that was not finalized until June 2009. Alternatively, the Commission potentially made its second recommendation based upon some form of reconsideration action.)
The Board of Supervisors conducted a hearing on July 12, 2009, and based upon comment letters, continued the item. In August 2009, the Board conducted two hearings (one on the EIR, one on the land use actions), certified the EIR, and then granted the approvals. A citizen coalition (South County Citizens for Smart Growth) filed suit to set aside the EIR and approvals, which requests the trial court denied. South County appealed. The issues on appeal were as follows: did the County fail to proceed in a manner required by law when the Commission considered the staff proposed revision without recirculating the DEIR; did the Board error when it failed to make findings of infeasibility with regards to the staff recommendation; and, did the County improperly rely upon future traffic improvements to conclude that traffic impacts would be mitigated?
ADDITION OF STAFF ALTERNATIVE DID NOT TRIGGER RECIRCULATION
With respect to the first issue, the petitioner did not challenge the sufficiency of the range of the alternatives or the County’s decision to not recirculate the EIR based upon the final version of the project, as approved. With respect to the County’s non recirculation of the staff recommendation, the appellate court pointed out that the burden is on the petitioner to cite all of the relevant evidence in support of the agency’s action, and then to demonstrate why that was not substantial evidence in support of the agency’s action. In other words, the burden was on the challenger to prove from the record that recirculation was compulsory. As a matter of appellate persuasion, the appellants failed to carry their burden. Since the appellants failed to demonstrate why the staff recommendation was so different as to compel recirculation, the appellate court rejected their argument.
ADDITIONAL FINDINGS NOT REQUIRED FOR STAFF ADDED ALTERNATIVE
Turning next to the question of whether findings were required by the Board of Supervisors with respect to the staff recommendation, the appellate court also rejected this argument. In circumstances in which the there is no challenge to the sufficiency of the alternatives range in the DEIR, there is no requirement that the lead agency make findings with respect to an additional staff sponsored alternative.
AN ASSUMED ROAD IMPROVEMENT, BASED UPON A REASONABLE ASSUMPTION, IS NOT REQUIRED TO BE INCLUDED AS A MITIGATION MEASURE
The then court addressed the argument of whether the EIR improperly relied upon an assumption regarding future traffic improvements as reducing the project impacts to a less than significant level. The court noted that the county was entitled to make reasonable assumptions, and once made, was not required to impose the same requirement as a mitigation measure.
IMPACTS TO ROAD PROPERLY DETERMINED BASED UPON EXISTING ROADWAY PHYSICAL CHARACTERISTICS, NOT ITS DESIGNATION
There was also a challenge to the impacts of the project on an adjacent road. The record supported the conclusion that the affected street operated as a minor arterial as compared to its designation as a major collector. As CEQA focuses impact analysis on existing physical conditions (as compared to a roadway classification), the lead agency could conclude that the project impacts would be less than significant.
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.