by William W. Abbott Most readers of this newsletter are already aware that the evidentiary threshold necessary to push a ND into an EIR is relatively low. In a June 2005 Abbott & Kindermann article, we discussed the decision of Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, a Third Appellate District decision. On the heels of Pocket Protectors now comes Mejia vs. City of Los Angeles (2005) 130 Cal.App.4th 322, another court of appeal decision, now from the Second Appellate District. Maria Mejia, a non-lawyer, beat both the City Attorney’s office and developer’s legal counsel twice, winning multiple arguments along the way. The project history, and her winning arguments, are as follows: In 1990, the original developer obtained approval of a tentative subdivision map for 28 homes. Caught in the market downturn, this subdivision approval expired. Flash forward to 1999, California Homes files for a new tentative map for essentially the same project as before. Apparently, times had changed as the Commission reduced the project to 23 lots. After exhausting administrative procedures, Mejia filed suit, resulting in the approval being set aside on the basis of the lead agency’s failure to give adequate notice of intent to adopt a negative declaration. From 2001-2002, the developer and the City went back to the drawing board, and subsequently issued not one but four revised initial studies and negative declarations. The project progressed up the administrative ladder, when after the City Council approval in 2003, Mejia filed her second lawsuit. Mejia sought to add documents to the administrative record. This suit was only partially successful at the trial court. After a hearing, the trial court ruled against Mejia. Undaunted, Mejia moved on to the appellate court where she found satisfaction. First, the appellate court ruled that the administrative record was incomplete, as the City had omitted evidence pertaining to the project approval in 1990. As the second project was characterized as being the same project the prior administrative record should have been included into the litigation record challenging the 2003 approval. On a more substantive level, the appellate court applied the fair argument test and concluded that there was a sufficient basis to warrant preparation of an EIR. During the administrative hearings, the neighbors testified as to the wildlife present on site. While the initial study included a qualitative evaluation of biotic resources there was no current biological assessment. Where the record is sparse, the neighbors testimony as to matters of personal observation (e.g. wildlife) could constitute substantial evidence of a fair argument and warrant an EIR. fn1 Potential traffic impacts also warranted preparation of an EIR. The project was on a collector street and was below the threshold (40 lots) used by the transportation department to warrant a traffic study. The neighbors testified about their concern regarding the lack of sidewalks, equestrian-vehicle conflicts and street congestion on trash and manure collection days. Rote reliance on a threshold of significance could not over come the fair argument presented by the neighbors. Had a project specific traffic study been prepared, then perhaps traffic would not have been a basis for an EIR. “In light of the public comments and absent more careful consideration of city engineers and planners, the evidence supports a fair argument . . .” Once again, fair argument compels preparation of an EIR. fn1 Due to the potential impacts to wildlife, consultation with CDFG was mandatory, along with notification of intent to adopt a negative declaration. Guidelines §§ 15063(g), 15072(a). William W. Abbott is a partner with Abbott and Kindermann, LLP. 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.