By Katherine J. Hart
In Moss v. County of Humboldt, et al (2008) 162 Cal.App.4th 1041, the Court of Appeal (1st Appellate District) held that a project previously studied under CEQA need not undergo supplemental CEQA review upon reapplication of the same project unless new information (supported by substantial evidence in the record) indicates there will be potential environmental impacts.
The Landowner and project applicant, Michael Moss, submitted a tentative map application to the County of Humboldt (“County”) in August of 1995 to divide his 94-acre property into four lots ranging in size from 20 to 33 acres for agricultural and residential use. Notably, the property is divided by Luffenholtz Creek, which supplies water for the downstream city of Trinidad. The applicant intended to have the Creek provide water for three of the four subdivided parcels. After over two years of processing, the Planning Commission held a public hearing and adopted the proposed tentative map and mitigated negative declaration (“MND”). The MND included reference to a 1995 study indicating that the project would not have any impact on the water supply for the City of Trinidad since 228 additional hook-ups could be supplied by the Creek even in a dry year and only four of those hook ups would be utilized by the proposed development. Litigation ensued and was terminated in January 2000 when the court of appeal denied the appeal on the grounds that the suit was untimely.
Two years after initial project approval, in November 1999, and in the midst of litigation, the tentative map expired. In August 2000, Moss sought a stay of the expired tentative map. While the Board of Supervisors granted his request, the stay was appealed in a second lawsuit filed by citizens against the project and overturned by the court of appeals on the grounds that such a stay violated Government Code section 66463.5(a). (See Friends of Westhaven & Trinidad v. County of Humboldt (2003) 107 Cal.App.4th 878.)
In January 2004, Moss submitted a new subdivision application for the same tentative map that had expired almost five years earlier. At this time, the County Planning staff said it would require an EIR for the application, despite the fact it was the same exact project. Moss appealed County staff’s decision to the Board of Supervisors, which denied his appeal on two alternative grounds. First, the Board found that an EIR was required because the subdivision was a new project which presented a “fair argument” of potential adverse environmental impacts. In the alternative, the Board found there was new information not previously studied in the MND showing that: 1) there was a water supply shortage in the City of Trinidad, which would be impacted by the project; 2) the project would have substantial impacts on water quality for the City; and 3) the project would have a substantial impact on Luffenholtz Creek, which is a critical habitat for the Coho salmon and cutthroat trout – both protected fish species. Moss appealed to the trial court, which held an EIR was required, although it determined the subdivision was not a new project. Both parties appealed – Moss on the grounds that an EIR was required and the County on the basis that the court incorrectly determined the project was not “new.”
The County asserted review of the project should be undertaken in compliance with both Sections 21151 and 21166 of the Public Resources Code. In addressing the inapplicability of Section 21151, the Court determined the resubmitted application was not a “new” project and notes that the “fair argument” test outlined in Section 21151 does not apply to projects that have already been evaluated under CEQA. Instead, the Court emphasized that the presumption environmental review is required “flips in favor of the developer and against further review” and Section 21166 applies to prohibit further environmental review unless substantial changes are proposed in the project or new information is made available about the project that was not previously studied. The court conducted a de novo review of the Board’s determinations.
The Court disagreed with the County’s argument that expiration of an approved subdivision map extinguished the development project for purposes of CEQA review and therefore, that the resubmittal was a new project for purposes of CEQA. The Court kindly pointed out that a County had the authority to extend the expiration of a tentative map after such a map has expired, so long as the application for the extension was filed prior to the expiration of the map. (See Bodega Bay Concerned Citizens v. County of Sonoma (2005) 125 Cal.App.4th 1061.) It further highlighted that the term “project” does not mean each separate governmental approval, and that the definition of “project” is based on the activity undertaken not the individual governmental approvals considered. Finally, the Court underscored the impracticality of the County’s position – mainly that to argue the expiration of a tentative map renders previous CEQA inapposite would have “potentially absurd and wasteful consequences.”
Thus, the Court determined that Section 21166 applied and that the resubmitted application was not a “new” project under CEQA. By its terms, supplemental review only needed to occur if there was new information regarding the circumstances in which the project would be undertaken and/or new substantial information that was not available when the project was initially considered. And, the Court did determine there was substantial evidence to support supplemental review under Section 21166 with respect to the impacts to water supply for the City of Trinidad (downstream) and critical habitat for the cutthroat trout. With respect to the water supply impacts, the City’s water commissioner’s testimony was deemed sufficient evidence in the record to show that the 1995 study of the Luffenholtz Creek (which was to supply water to the project and the City of Trinidad) was outdated. Because the Board had found the water usage in the City had increased significantly over the past 10 years and that the City was using the maximum capacity in the creek, the impacts of drawing down on the City’s water supply would have to be studied. With respect to the impacts on the critical habitat for the cutthroat trout, the Court found the Board properly based its decision on a 1995 report issued by the Department of Fish and Game (“DFG”), which indicated that the cutthroat trout was a species of special concern and that its habitat consists of coastal streams such as the Luffenholtz Creek. While the record did not indicate when the DFG listed the trout as a species of special concern, because the County’s initial study indicated the trout’s existence in the Creek had just been brought to its attention, the Court deferred to the agency’s factual determination.
On the other hand, the Court did not find the County had substantial evidence in the record to require supplemental review of the impacts to Coho salmon or water quality impacts on the City of Trinidad. With respect to water quality impacts, the Court noted that the new information presented to the Board was not known and could not have been known as the time the MND was prepared. Further, no evidence was submitted to support the findings that there would be a water quality impact on the city of Trinidad. With respect to the impacts on the Coho salmon, the Court found the mere listing of the Coho salmon as threatened was not sufficient new information when there was no evidence in the record to support the Board’s finding that the Coho salmon actually lived in or near the proposed project’s waterways.
In sum, applicants should be extra diligent not to let tentative maps expire as all development rights are extinguished upon expiration. In this economic climate, however, such a caution may be overlooked or unavoidable. This case shines a ray of hope upon those applicants whose maps lapse, but who resubmit an identical project application and who can show there have been no substantial changes in the proposed project or the circumstances under which the project is being undertaken, and no new substantial evidence showing a potential for environmental impact.
Kate Hart is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and 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.