By Katherine J. Hart

In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 (“South Orange”), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (“EIR”) be prepared to assess the impact of the environment on a proposed project pursuant to the California Environmental Quality Act (“CEQA”). The Court of Appeal declined to order such an EIR. The Court of Appeal also addressed whether the adopted project was inconsistent with the city’s general plan and zoning ordinance, and found that the project was consistent.

Background Facts

In 2007, a landowner submitted an application to the City of Dana Point (“City”) to create a new commercial and mixed use zoning under the City’s zoning code and to rezone its property to the new to mixed use district (“Project”). The property to be developed sits on the coastal shoreline, adjacent to the South Orange County Wastewater Authority’s (“Authority”) sewage treatment plant. The City prepared an initial study and determined that any impacts the Project might have on the environment could be mitigated. Accordingly, the City prepared a Mitigated Negative Declaration (“MND”) and circulated it for review in February 2008. The City revised the MND and recirculated it in October 2008. Given the location of the Project, the Coastal Commission also has land use jurisdiction and would need to approve the Project.

At both the Planning Commission and City Council, the Authority challenged the Project on the grounds that the plant omitted noise, and bad smells, as well as created water runoff on the Project site, which would negatively impact future residents. On July 27, 2009, the City redesignated and rezoned the Project site, and adopted an MND for the Project. The Authority timely filed a challenge to the City’s approvals seeking preparation of an EIR to address the odor issues, and alleging that the general plan amendments rendered the land use element internally inconsistent. The trial court denied the Authority’s request for writ of mandate, which the Authority timely appealed.


Was an EIR required to study the impact of odors from the existing sewage treatment plant on the Project (e.g., redesignation and rezoning of land)? No.

Did the general plan amendment create an internal inconsistency? No.

CEQA Issue

The court of appeal first reviewed the standard of review in an MND case – whether there is substantial evidence in the record supporting a fair argument of a significant environmental impact. It then reviewed the purpose of CEQA, and highlighted the fact that CEQA is intended to study a project’s impacts on the existing environment, not vice versa.

Clearly irritated with the Authority’s intent – that of protecting itself from nuisance complaints by potential future neighbors based on putrid odors from the plant – the court of appeal noted that “[the Authority’s] objection to the adoption of the MND for the rezoning essentially turns CEQA upside down.” The court of appeal analogized the situation to the one in the Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464 (“Baird”) case, where neighbors of an addiction treatment facility urged that an EIR be prepared for the expansion of the facility on the grounds that the site was contaminated. As in this case, the appellate court in Baird held that an EIR was not necessary since the expansion of the facility would not have any impact on the environment.

The Authority raised CEQA Guideline section 15126.2, subdivision (a) in support of its position. That subsection states that an EIR must analyze significant environmental effects a project might cause by bringing development and people to the affected area. The court of appeal declined to adopt the rationale and noted that “the guideline deals with the content of an EIR after it has been determined one is necessary. It does not address the question at issue here: whether an EIR is necessary at all.”

The Authority also argued that the City was piecemealing the Project. More specifically, the Authority urged that the City should be required to consider a development project – not just land use changes on the site because to do so conceals cumulative impacts. But, the court of appeal aptly noted that neither the scope nor size of a project on the site adjacent to the sewage plant would affect the odors emanating from the sewage plant.

General Plan Consistency

A general plan is internally inconsistent when one required element conflicts with another or when a part of one element conflicts with another part of the same element. In this case, the City added a new mixed-used land use designation to its general plan. The new mixed-used designation did not conflict with any other designations, nor did it conflict with any of the goals or policies contained in the land use element. The Authority claimed that the new designation was not internally consistent because it did not include a way in which to ensure that the new designation was compatible with surrounding uses. The court of appeal dismissed this argument finding that no land use designation is required to do such a thing.


This decision reaffirms the decisions in Baird and in the City of Long Beach v. Los Angeles Unified School District (2009) 176 CalApp.4th 889, both which held that CEQA is intended to identify effects of the proposed project, not the effects of the existing environment on that project.

Katherine J. Hart 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.