Appellate court rejects arguments of multiple CEQA claims of procedural error concerning EIR recirculation, error in the notice of determination, insufficient rejection of suggested mitigation measures, and failure to consider late comments.

Residents Against Specific Plan 380 v. County of Riverside (February 14, 2017, E063292) ___ Cal.App.5th ___.

By William W. Abbott

A trial court and the court of appeal declined to overturn the certification of an EIR and approval of a specific plan and related land use entitlements. The legal claims touch upon a number of common procedural objections leveled at local approvals and describes how one local government successfully overcame them.

In Riverside County, an applicant brought forward a specific plan and related regulations for a mixed-use project located on 200 acres. The specific plan, as approved, included seven planning areas with different allocations of allowed land uses. The County circulated a Draft Environmental Impact Report (“DEIR”) from August 8 to September 26, 2011. The DEIR analyzed a project consisting of eight planning areas, one more than was ultimately approved, with different land use allocations across the project site than the adopted specific plan. The DEIR identified two significant and unavoidable impacts: air quality and noise. Among other commenters, the air district and nearby city both suggested mitigation measures to reduce air quality impacts. The air district’s comments focused on vehicle fleet mix and related equipment and the city recommended that the DEIR’s mitigation measure (which required compliance with the 2008 Title 24 Energy Codes) be updated to reflect the 2010 codes and the 2010 California Green Building Standards, and include requirements for attic fans, whole house fans, PV panels and solar hot water systems.

The County released the Final EIR (“FEIR”) in January 2012, and the FEIR was based upon the proposed project with the eight planning areas. The FEIR included responses to comments, including those of the air district and nearby city, but as to those comments concluded that the proposed mitigation measures were infeasible.

As is common, the Planning Commission modified the specific plan during its deliberations. County staff and its consultants confirmed for the Commission that the changes were not significant for CEQA purposes and that recirculation was not required. On December 11, 2012, the Board of Supervisors began its deliberations. The day before the meeting, counsel for the petitioner submitted comments, reiterating the suggested mitigation measures proposed by the air district and nearby city. At its hearing, the Board also modified the specific plan. The changes left the plan boundaries intact and did not change the total number of residential units or maximum non-residential uses. Staff and the consultants again confirmed that the changes to the plan did not create new or substantially increase the severity of impacts, thus concluding that recirculation of the EIR was not required. The Board then passed a motion of intent to certify the EIR and approve the entitlements. Staff worked with the applicant and the revised final documents returned to the Board for final action in November 2013. Following approval by the Board, the petitioner filed suit. The trial court ruled for the County and Real Party in Interest, and petitioner appealed.

The Court of Appeal faced six procedural objections which occur with some frequency in CEQA proceedings:

First, the appellate court held that the Board had not modified the project after approval. The appellant argued that the project was approved by the December motion. Not so according to the court. The court recognized the common practice of passing a motion of intent to approve and the later final approval. This meant that the final changes to the land use documents occurred before final action, not afterwards as argued by the petitioner.

Second, consistent with the court’s analysis of the effect of the motion of intent, the CEQA findings and statement of overriding considerations were adopted in conjunction with the final motion for adoption, and were not adopted after-the-fact as argued by the project opponents.

Third, the appellant claimed that the Notice of Determination (“NOD”) was invalid as it included an erroneous description based upon the earlier version of the project. The court found no prejudicial error, as the remedy for failure to provide a legally sufficient NOD is the expansion of the applicable statute of limitations to 180 days and the petitioner had timely filed the lawsuit.

Fourth, the appellate court also rejected the argument that recirculation was required. It found the record of proceedings included the required supporting analysis that recirculation was not required. Factually, although land uses were adjusted within the overall specific plan, the maximum intensities had not changed. That fact, coupled with the consultant and staff analysis and a limitation that any substituted future use could not create any additional impacts than those already documented in the EIR, was sufficient to support the County’s decision to not recirculate.

Fifth, the Court said substantial evidence supported the County’s decision to not add the recommended mitigation measures. As to the vehicle fleet mix requirements, staff concluded that it was not feasible based upon the developer’s expressed concerns over the availability of the new less polluting equipment. As to the energy efficiency standard, the County’s response had been that the developer in any event would have to comply with the energy standards then required by the State of California. As to the Green Energy Standards, staff found it was infeasible as it would conflict with the performance standards set by the County. As the County’s preference was for flexibility for the developer rather than a list of prescriptive measures, the specific mitigation measure was not feasible.

Finally, as to the suggested noise mitigation measure submitted the day before the Board undertook its deliberations, the Court noted that the comment was submitted fourteen months after the close of the comment period. Thus, it held the Board was not required to adopt any findings of infeasibility or to even consider the comment.

William W. Abbott is shareholder at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.