by William W. Abbott

Despite what project critics may say, lead agencies do get it right every now and then. The recent decision of Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 is such an illustration. As one would suspect, existing residents in coastal communities prize their views of the ocean, and can be counted on to be large in their criticism of any project which potentially interferes with what they rightfully see as their right to a view of the ocean.

The planning history for the Mira Mar case begins with a 1975 redevelopment plan and EIR. In 1978 the City of Oceanside (“City”) updated the redevelopment plan, based upon a Subsequent Master EIR (“MEIR”). In later years, the City amended the redevelopment plan twice more (1981 and 1992). In the development subdistrict in question, the redevelopment plan authorized residential densities at 29-43 dwelling units per acre, with allowable building heights of 45-65 feet. Developer proposed a residential project at 28.3 units per acre, and based upon a Final Supplemental EIR, the City Council granted project approval. The adjacent mobile home park, along with an individual complainant, filed suit seeking to overturn the project on CEQA grounds.

The petitioners’ first claim was that the EIR considered an inadequate range of alternatives. The EIR included two lower density alternatives, which the petitioners argued did not meet the primary objective of developing high density housing. In a line of original reasoning, the appellate court held that while these alternatives did not meet the primary objective of high density housing, the alternatives did relate to secondary objectives (note that the CEQA Guidelines do not draw a distinction between primary and secondary objectives). The EIR also included an alternative which actually increased impacts. While inconsistent with the Guidelines, the appellate court found this error not to be prejudicial. Petitioners also argued that the EIR had a duty to consider offsite alternatives. As the project was consistent with general plan policies and land use regulations, the appellate court rejected this argument, citing the proposition that an EIR is not an opportunity to go back and reconsider prior policy.

The petitioners’ second claim complained about the impact of the project on their individual interests, that primarily being their view. The appellate court correctly noted an often overlooked aspect of CEQA: that CEQA concerns itself with whether or not the project will “affect the environment of persons in general, not whether a project will affect particular persons.” Based upon the City’s analysis of the Appendix G thresholds, the appellate court upheld the City’s conclusion that important scenic vistas would not be impaired.

The petitioners’ third claim contended that the City inadequately mitigated the significant biological effects of the project on coastal sage scrub.

The EIR required a three to one mitigation strategy for coastal sage scrub, which included combined strategies of preservation, restoration and creation, coupled with a conservation easement held by a non-profit. The evidence in the record was that the California Department of Fish & Game (“CDFG”) recommended a two to one ratio, and the California Coastal Commission recommend a three to one ratio. The City followed the more conservative strategy. As such, the appellate court found ample evidence existed to support the City’s determination that the impacts would be less than significant. (Note that the decision did not mandate the lead agency to follow the most conservative mitigation protocol. As this is what the City did, there was no need for the appellate court to address this question.)

Finally, the petitioners claimed that the CEQA findings were inadequate. While the appellate court did not elaborate, the administrative record included and incorporated by reference the prior EIR and CEQA determinations, and so the appellate court found no basis to reverse the decision.

What can we learn from this decision? First, always tailor the selection of alternatives around the principle impacts associated with the proposed project. This requires some strategic thinking early in the EIR process. Second, for projects consistent with general plan policies and land use regulations, utilize the opportunity to narrow the scope of alternatives. Third, CEQA allows (and perhaps mandates) the lead agency to distinguish between impacts generally, versus those which impact only a handful of neighbors. This is an important distinction that EIR preparers and applicants need to monitor in the EIR process as a means of reigning in mitigation requirements. Fourth, there is little room to debate the adequacy of mitigation if the lead agency follows the most conservative mitigation protocols. Fifth and finally, well drafted findings are an essential part of a defensible land use approval.

William W. Abbott is a partner with Abbott & Kindermann, LLP in Sacramento. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.