By Katherine J. Hart
In Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192; 2013 Cal.App. LEXIS 893 (Latinos Unidos II), the Court of Appeals, First Appellate District, upheld the City of Napa’s (City) use of its 1998 Program EIR (prepared and certified for purposes of the City’s 2020 General Plan update) for the proposed 2009 Housing Element update, and related Land Use Element and zoning code amendments. More specifically, in updating its Housing Element, the City of Napa also amended its Land Use Element to (1) increase the minimum residential densities in seven areas zoned as mixed use or community commercial from 10 to 40 residential units per acre, (2) increase the permitted density for eight multi-family sites by a total of 88 units, as well as amended its zoning ordinance to comply with state laws regarding emergency shelters and various types of low-income housing, and to permit single-family detached homes at the same densities of single-family attached homes (the Project).
The City prepared an initial study and determined the Project fit within the scope of its 1998 Program EIR prepared and certified for the 2020 General Plan. After 28 public meetings, the City adopted the updated Housing and Land Use Elements and Zoning Amendments and filed and posted a notice of determination pursuant to CEQA. Latinos Unidos de Napa sued the City arguing the City should have prepared a supplemental EIR because the traffic impacts analysis in the 1998 Program EIR was outdated. Both the trial and appellate courts upheld the City’s CEQA action under Public Resources Code section 21166, applying the substantial evidence standard to review the City’s determinations.
In holding section 21166 (and not section 21151) applied, the appellate court quoted from Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1051(Moss) as follows: “although the standards for judicial review of an agency’s decision under sections 21151 and 21166 are well settled, the issue is not so clear with respect to the agency’s decision about which of these statutes governs the environmental review process.” Fundamentally, in determining which section applies, an agency must determine whether the proposed project is a “new” project or a “modified” project. If the agency determines that the project is a “new project, section 21151 applies and whatever environmental review is prepared will be reviewed by a court under the fair argument test. On the other hand, if the agency determines that the project is a “modified” version of a previously studied project, section 21166 applies and the court will review the agency’s environmental review under the substantial evidence standard.
There are a multitude of published CEQA cases which discuss this exact issue. In many cases, the courts defer to the agency in ascertaining whether a proposed project fits within 21151 or 21166, but not always. Ultimately, whether a court decides to apply 21166 (the substantial evidence standard) versus 21151 (the fair argument standard) to environmental review of a later project appears to be one mostly of luck, but certainly a few factors appear to be relevant: How much has the later or subsequent project changed compared to the project as originally proposed? Are the types of uses identical or similar? Is the project being reduced in size or expanding in size? Is the later project being tiered from a negative declaration or a program or project EIR?
Latinos Unidos II is a stellar win for the City of Napa because the case illustrates at least one appellate district’s willingness to grant extensive deference to jurisdictions in determining what level of environmental review is appropriate for a later project. Some might try to limit the scope of the holding in Latinos Unidos II by emphasizing that the City was not approving a specific housing project. Notwithstanding that point, the amendments to the City’s land use and housing elements clearly paved the way for increased housing densities without the City having to conduct additional environmental review. The fact that the appellate court upheld the City’s approach sets beneficial precedent for other agencies looking to do the same thing.
Katherine J. Hart is senior counsel 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.