Minor Changes In Project Did Not Invalidate An EIR. Failure To Justify A Different Threshold Of Significance For Downtown Intersections Result In EIR Being Set Aside.
East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th.281.
Note: Requests for depublication have been filed with the California Supreme Court. The court extended time to review these request until March 17, 2017.
Judicial deference and absence of prejudice were the continuing themes in the recent Third Appellate District decision reviewing a challenge to an EIR and a general plan consistency analysis. The project involved McKinley Village, an infill project consisting of 328 dwelling units, (http://mckinleyvillage.com/) and the project approvals were challenged based upon allegations of deficiencies in the EIR as well as arguments regarding inconsistency with the city’s general plan. The trial court ruled in favor of the city. With one exception discussed below, the appellate court affirmed.
As to the CEQA claims, a neighborhood group East Sacramento Partnerships for a Livable City (ESPLC) argued that the EIR was deficient as a result of a defective project description, improper piecemealing, failure to analyzed health risks, failure to recognize traffic impacts and failure to disclose or mitigate methane migration. First, ESPLC argued that the project description failed to include the development agreement, a rezoning request for the multifamily units, an increase in the total units from 328 to 336 as well as variances from standard driveway widths for a limited number of dwellings.
As to the development agreement, it was disclosed to the planning commission and city council public hearings and ESPLC commented on the development agreement. This satisfied the public disclosure requirements. ESPLC further argued that the development agreement was used to modify the project at the very end of the process, when the city council, in response to citizen request, considered a second vehicular access tunnel. However, the tunnel was to become a city project and may or may not be constructed in the future. As it was not part of the developer’s project, it did not have to be part of the project description. As to the rezoning, the deletion of some single family and addition of multifamily product (a net increase of 8 units) triggered a rezoning. The impacts of the additional units were evaluated in the FEIR. The appellate court characterized this as a slight change and to be expected in the CEQA process. The opponents failed to show how the analysis was defective or how meaningful decisionmaking or public comment was precluded.
The final EIR included a discussion of a variance for driveway width in one area within the project. However, the opponents failed to demonstrate prejudice from the omission or that the modification had any significant impacts. ESPLC next argued that the city had improperly piecemealed the project. Its first argument involved the potential second tunnel, but having concluded that the tunnel was not part of the developer’s project, that there was no piecemealing issue. In response to public comment, the city included a half street closure, the effect of which was to reduce traffic impacts on one street and divert traffic to a street with greater capacity. The appellate court concluded that the minor change in response to public comment did not result in piecemeling. As part of the deliberations of the half street closure, the council directed the city manager to initiate steps to eliminate a nearby connector from the city’s general plan. While the resolution was not in the administrative record, it appears that the council direction was to consider the general plan amendment at a later date. This later action would be subject to its own CEQA review and was not considered to be piecemealing.
Turning next to health risks, the appellate court followed the Supreme Court’s holding in CBIA v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, noting that the EIR was not required to assess the impacts of the existing conditions (nearby landfill, interstate and railroad tracks). While ESPLC argued that the project would exacerbate existing conditions, those issues were already addressed in the EIR or too vague and speculative to warrant further consideration.
As to traffic, the project was consistent with the region’s sustainable communities strategy and the regional MTP, and as such was not required to address certain transportation impacts. Public Resources code section 1159.28(a). The opponent also challenged the use of intersection analysis to measure traffic impacts and ignoring roadway capacity. However, the court found substantial evidence to support the city’s methodology. EPSLC was unable to show how the city’s methodology failed to adequately assess traffic impacts.
The appellate court did agree with ESPLC on one issue. The EIR discussed that there were different general plan LOS standards for downtown (accepting higher congestion) compared those to residential neighborhoods. The court faulted the city for relying upon its general plan policies and standards, and failing to explain how the same level of traffic congestion is an impact in one neighborhood but not another. This issue resulted in the appellate court compelling the EIR be set aside, although only this one issue was required to be addressed upon remand.
Turning to ESPLC’s land use contentions, the appellate court applied a very deferential standard of review, acknowledging the weighing and balancing steps that a city or county employs in evaluating a project. (Certain of ESPLC’s arguments were based upon general plan policies which had been subsequently modified or repealed. The appellate court considered those claims to be moot.) ESPLC argued inconsistency over public health, transportation and noise policies and standards. The appellate court noted that some of ESPLCs arguments were based upon vague policies or ones which were not mandatory, and applying a deferential standard of review, the court concluded that it could not be said as a certainty that the project was inconsistent. Of note was the court’s recognition of a policy which required noise mitigation “to the extent feasible”, a concept found in many general plans. As this requirement was not mandatory in each circumstance, the appellate court could not find error.
William W. Abbott is a shareholder in Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.