By Leslie Z. Walker

In Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (June 30, 2011, No. B224242) __ Cal.App.4th ___, the Court of Appeal for the Second Appellate district held that an agency does not necessarily have to explain why it has not adopted each mitigation measure on the Attorney General’s list of proposed greenhouse gas mitigation measures. The City of Santa Clarita approved a Master Plan for the expansion of a hospital and medical facilities (Project) by adopting a statement of overriding considerations and certifying the final environmental impact report (EIR) for the Project, adopting a development agreement between the city and the real parties in interest, and adopting the Master Plan (Approvals). The Project would expand the amount of hospital and medical office space on the existing site from its current size of 340,071 square feet to 667,434 square feet and would add nine proposed structures over the 15-year period of the Project.

Santa Clarita Organization for Planning the Environment (Organization) challenged the Approvals on two grounds claiming: 1) the city failed to provide substantial evidence or analysis to support its conclusion that the Project’s impact on climate change could not be fully mitigated; and 2) that the city had failed to proceed in a manner required by law when it concluded the Project would not adversely affect adjacent residents and the character of the neighborhood.

A.        Climate Change

The city prepared four draft EIRs for the Project between November 2005 and September 2008. In June 2008, the Governor’s Office of Planning and Research issued a technical advisory (OPR Technical Advisory) calling for lead agencies to “make a good faith effort, based on available information, to calculate, model, or estimate the amount of CO2 and other GHG emissions from a Project, including emissions associated with vehicular traffic, energy consumption, water usage, and construction activities.” The city’s third draft EIR calculated the greenhouse gas (GHG) emissions from the Project, including three categories of emissions associated with the Project: Scope 1, emission sources owned or controlled by the Project; Scope 2, emissions from energy; and Scope 3, indirect emissions, including emissions from transportation sources. The city concluded that impacts from Scope 1 and 2 emissions would be less than significant, but Scope 3 emissions would remain significant and unavoidable despite the implementation of recommended mitigation measures. The Organization claimed the city did not provide an adequate explanation for this conclusion or provide substantial evidence in support of the finding that the impact would remain significant and unavoidable.

  1. Adequate Explanation for the City’s Conclusion

The Environmental Group had submitted a comment on the EIR and included with its comments a list of potential mitigation measures developed by the Office of Attorney General and a request that the city incorporate the measures into the Project approval. The city responded to the comment, indicating that certain aspects of the Project design were consistent with the Attorney General’s proposed mitigation measures. The city did not address every mitigation measure in the Attorney General’s list.

Citing to Los Angeles Unified School District v. City of Los Angeles (1997) 58 Cal.App.4th 1019 (“Los Angeles”), the Organization claimed the final EIR violated CEQA because it did not specifically consider and discuss the mitigation measures in the Attorney General’s list. The Court distinguished Los Angeles, because in that case, the petitioner suggested a specific, concrete mitigation measure to mitigate a specific air quality impact, whereas in Santa Clarita, Petitioners had attached the Attorney General’s list of mitigation measures to a letter to the city but had not identified which specific measures were appropriate for the Project. The court found it was unreasonable to impose on the city an obligation to explore each and every mitigation measure in the Attorney General’s list because the Organization did not single out any specific suggestions from the numerous potential mitigation measures in the list, and the Organization’s letter stated that “the measures cited may not be appropriate for every project.”

  1. Substantial Evidence Supports the Finding

The Organization also argued there was an absence of evidence to support the city’s determination that the mitigation measures set forth in the Attorney General’s list were infeasible. The Organization claimed that neither the city’s findings nor the FEIR contained any facts or analysis to support the city’s conclusion that the Project’s cumulative impact on climate change would be unavoidable.

The court disagreed with the Organization concluding that substantial evidence did support the City’s finding. The court noted the OPR Technical Advisory was one of the only documents providing guidance on GHG emissions at the time the EIR was prepared, and the EIR followed the three steps set forth in the advisory: 1) identify and quantify GHG emissions; 2) assess the significance of the impact on climate change; and 3) if the impact is found to be significant, identify alternatives or mitigation measures. The EIR quantified the emissions from the Project and found the emissions with respect to Scope 1 and 2 were insignificant. With respect to Scope 3, the EIR pointed out that the emissions from vehicle exhaust are controlled by State and Federal governments and are outside the control of the Project. The EIR noted that no thresholds had been established, but concluded that it was likely that if a threshold were adopted, the Scope 3 emissions would exceed the threshold. The project included eight mitigation measures which had been introduced to ease the flow of traffic, and thus reduce GHG emissions, and the Project would comply with the city’s sustainable policies and transportation demand management program. The court found this to be substantial evidence to support the city’s decision that the EIR complied with CEQA.

B.        Health and Welfare of Neighboring Residents

The Organization claimed the City failed to proceed in the manner required by law because it balanced the Project’s perceived benefits against its adverse impacts on neighboring residents. The City of Santa Clarita’s Uniform Development Code (UDC) requires the city make certain findings before approving a development agreement, including finding that the proposed development will not “adversely affect the health, peace, and comfort or welfare of persons residing or working in the surrounding area,” and that “the location, size, design, and operating characteristics of the proposed use will be compatible with and will not adversely affect or be materially detrimental to adjacent uses, residents, buildings, structures, or natural resources.” (Santa Clarita UDC, §§ 17.03.010, subd. (E)(3)(a) & 17.03.025 subd. (G)(2).) The city balanced the benefits of the Project against the impacts on the surrounding neighborhood in making the required findings. The Organization claimed the plain language of the section did not permit that type of balancing.

The court found the plain language of the UDC did not foreclose the balancing of the benefits versus the detriments, the city’s interpretation of its own ordinance was entitled to great deference, and the ordinance does not limit the factors that may be considered in making the finding. Therefore, the city did not fail to proceed in a manner required by law.

C.        Conclusion

While practitioners may now have support for the decision not to address every mitigation measure thrown at a proposed project, the case should be read with caution because it could easily be distinguished in cases where the list of proposed mitigation measures is more closely tailored to the proposed project.

Leslie Z. Walker is an attorney 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, 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.