By William W. Abbott
City of Maywood v. Los Angeles Unified School District (2012) 208 Cal.App.4th 362. Los Angeles Unified School District ("LAUSD") proposed construction of a new high school in the City of Maywood. LAUSD was interested in a two block site consisting of 8.37 acres, then bisected by a major street. The original concept, called for the street to be abandoned and incorporated into the overall campus design. In response to the Notice of Preparation for the EIR, LAUSD received comments including questions concerning the infeasibility of street abandonment. The District modified the design as part of the Draft EIR, leaving the road in place but adding a pedestrian overcrossing of the existing street to provide connectivity between the two project site areas. Following certification of the EIR, the District approved the project. The City filed a CEQA challenge, and the trial court agreed that the District had committed several CEQA errors, and in response to a subsequent motion filed by the City, awarded attorneys’ fees of $670,000 to the City under the authority of California’s private attorney general statute, Code of Civil Procedure 1021.5. The District appealed. In a lengthy and painstaking decision, the Second Appellate District largely agreed with LAUSD, reversing the trial court of 4 of 5 CEQA issues and reversing and remanding the award of attorneys’ fees for further consideration. The appellate decision provides guidance as to a number of key CEQA subjects: cumulative effects, alternatives, mitigation deferral and growth assumptions.
The first issue of broad CEQA interest was Maywood’s argument that the lead agency had a duty to consider the effect of a Caltrans I-710 corridor project which would include a proposed new on/off ramp nearby the school. The Draft EIR did not include the Caltrans project, but this issue was acknowledged as in the written responses to comments prepared by the lead agency. The appellate court noted that the burden was on Maywood to establish that the Caltrans project was a “probable” project as contemplated by CEQA, however, there was insufficient evidence in the record to support Maywood’s argument. The fact that Caltrans had initiated environmental review was insufficient evidence by itself to meet the test. In a related argument, the court also found that LAUSD’s response to comment, noting that the Caltrans project was speculative, was legally sufficient.
The appellate court then turned to a more difficult issue, that being the sufficiency of the EIRs treatment of hazardous materials. The site to be developed for the school include multiple parcels engaged in a variety of residential and non residential use. The District was able to obtain access to many, but not all of the parcels for purposes of hazardous materials testing. The NOP noted that because of sites on the Department of Toxic Substances ("DTSC") list of sites containing hazardous materials, that the School District was subject to DTSC jurisdiction, and would not be able to proceed until it had received the requisite confirmation from DTSC that the site meets applicable standards. The DEIR also address hazardous materials, noting the various studies completed by LAUSD, as well as the Preliminary Environmental Assessment involving hundreds of soil samples taken from all nine commercial parcels and eleven of the residential parcels. Not all parcels were tested however. Based upon the DTSC regulatory scheme for school site, the DEIR concluded that impacts would be less than significant. The trial court concluded that this approach constituted deferred mitigation. Acknowledging the limitations on mitigation deferral, the appellate court reversed, finding the District’s approach to be acceptable. Relying heavily upon Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, a First Appellate District decision, the Second Appellate District found that there was there was adequate disclosure of the potential impacts and the applicable regulatory scheme which formed the basis for concluding that impacts would be less than significant, notwithstanding that the lead agency did not have samples from all properties.
The appellate court similarly upheld the sufficiency of the alternatives analysis. The court noted that the EIR included a discussion of 50 other sites which had been considered by rejected, along with the 43 page DEIR chapter which examined No Project/No Build, a smaller sized project onsite as well as four other alternative sites. This coupled with the responses to comments dealing specifically with comments pertaining to alternatives was more than sufficient to meet the requirement of a reasonable range of alternatives, notwithstanding the City’s arguments regarding other or additional considerations with respect to alternatives.
Maywood also asserted two additional EIR defects: the conclusion of no impact associated with the rail line and the utilization of a 1% growth rate in the traffic study. In both cases, the appellate court applied the substantial evidence standard, and found sufficient evidence to support the conclusions and assumptions within the EIR. The appellate court also addressed LAUSD compliance with the Education Code provisions regarding site acquisition and development. Given that the appellate court reversed the trial court on a number of substantive points, the trial court decision on attorneys fees was similarly reversed. The appellate court’s holdings with respect to attorneys fees are addressed in a separate blog. See Only The Pecuniary Interests Of A Public Litigant May Be Considered When Awarding Attorneys’ Fees To The Public Litigant Under Code of Civil Procedure §1021.5.
The one lower court ruling in which the appellate court concurred pertained to pedestrian safety. The EIR included various studies pertaining to parking and pedestrian safety, however, none of the studies looked at the question of students choosing to bypass the pedestrian overcrossing of the dividing street, electing to jaywalk instead. The City of Maywood spoke to this concern in its comment letter on the Draft EIR. An expert retained by the City also commented with respect to the potential risks associated with jaywalking. LAUSD acknowledged that this was a topic required to be addressed by the EIR and argued that this issue was addressed in the EIR. Like the trial court, the appellate court was unable to identify the requisite analysis, nor did the appellate court agree with LAUSD that design features were sufficient to eliminate the risk. On the latter point, the appellate court concluded that the evidence in the record fell short in establishing that jaywalking risks were successfully controlled through project design features.
Comment: this case is noteworthy in underscoring two points important in CEQA practice. First, it is all about the evidence in the record. Where the evidence is thin or missing, the EIR is at risk. Conversely, when the lead agency has done its homework, a reviewing court should apply a deferential standard of review. Second, regulations and codes adopted by other entities can play an important role in resolving mitigation requirements. This is particularly true in circumstances when other agencies hold special expertise relevant to the CEQA issue at hand, and operate in a regulatory environment which protects the environment. EIR preparers should take full advantage of those regulatory systems, something that did not exist when CEQA was first enacted.
William W. Abbott is a partner 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, 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.