It's Always Better the Second Time Around: California Supreme Court Concludes That The Substantial Evidence Test Applies To Project Modifications Based Upon Either An EIR Or Negative Declaration
Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937.
By William W. Abbott
The California Supreme Court has solved one of CEQA’s great riddles: when a project is modified after the original CEQA documentation and initial project approval, which standard of review applies? In a decision which will boost the confidence of lead agencies, the Court applied the more deferential substantial evidence test under the authority of Public Resources Code Section 21166 and Guidelines Section 15162.
The facts begin in 2006 with the adoption of a master plan for the San Mateo Community College District, calling for over one billion dollars in investment districtwide. This master plan was based upon an Environmental Impact Report. As to the College of San Mateo campus, the plan called for renovation of the Building 20 complex and demolition of others. In 2007, the District approved a negative declaration for the improvements at the San Mateo campus. In 2011, being unsuccessful in obtaining funding, the College modified its plans, planning on demolishing the Building 20 complex and associated gardens, and renovating other buildings. This decision was based upon the 2007 negative declaration coupled with an addendum. Project opponents filed suit, and the District rescinded its addendum and reissued a new addendum with a more in-depth analysis, but reaching the same conclusion. Opponents dismissed the first case and refiled a new lawsuit challenging the revised plans on CEQA grounds. At the opponents’ urging, the trial court concluded that the revisions constituted a new project, ordered the approvals set aside, and directed the District to prepare an EIR. The Court of Appeal concurred (relying primarily on Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288) to decide that as a matter of law the proposed building demolition was a new project. The California Supreme granted review and reversed.
The Supreme Court’s decision is notable in several respects. First, the Court was emphatic that a decision of whether or not a proposed activity was a new project was predominately a factual question to be made by the decision making body, not a reviewing court. “It is thus a question for the agency to answer in the first instance, drawing on its particular expertise….A court’s task on review is then to decide whether the agency’s determination is supported by substantial evidence; the court’s job’ is not to weigh conflicting evidence and determine who has the better argument.’ ” The opponents also argued that Public Resources Code Section 21166 and Guidelines Section 15162 could only be invoked following the use of an EIR and therefore had no application in this instance based upon a negative declaration. Citing the legislative history, the Court rejected this argument. Finally, the opponents argued the substantial evidence test was inappropriate in circumstances of a tiered CEQA document, pointing to the master plan as the first tier. The record did not support this characterization, as the 2007 approval was a project-level decision.
As is often the case, the CEQA debate over this project approval was not over with the Supreme Court’s decision. Upon remand, the courts will have to address the unresolved issues of abuse of discretion along with the use of an addendum as it involves no formal public review process.
Commentary: Given the inventory of project approvals issued during the boom years for projects that have yet to be built out (or in many cases even launched), this decision should be a confidence builder to cities, counties and developers looking to dust off and update the earlier approvals.
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.