By William W. Abbott
Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal.App.5th 596
In the follow up decision to the Supreme Court’s decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937 (San Mateo Gardens), the appellate court invalidated the District’s reliance upon the addendum to the previously adopted negative declaration. There was sufficient evidence to support the lead agency’s decision to rely upon CEQA’s subsequent review provisions, but there was also sufficient evidence brought by the petitioner to support a fair argument to set aside the use of an addendum, requiring that the addendum be set aside.
As readers may remember from our review of the Supreme Court’s decision in San Mateo Gardens, the Court articulated a deferential approach to a local government’s determination that an earlier CEQA document retained ongoing relevance for later use. In the facts of San Mateo Gardens, the District proposed to modify a previously approved master plan, relying upon an addendum to an earlier negative declaration. Finding that it was a “new” project, the appellate court had reversed the District’s reliance upon an addendum. The Supreme Court declined to follow the new project/old project line of inquiry, concluding that the appropriate judicial inquiry was whether or not there was substantial evidence to support the lead agency’s reliance upon the earlier CEQA document, the consequence of which would be to then apply CEQA’s subsequent review requirements (Public Resources Code section 21166) as compared to starting all over.
Following the Supreme Court decision, the court of appeal found that in fact, substantial evidence supported the District’s reliance to not start the CEQA process afresh, but to rely upon CEQA’s subsequent review provisions. As the project’s latest changes did not affect the 2006 decision and MND to demolish 14 buildings and the previously established mitigation measures, there was continuing utility to the 2006 decision and related environmental analysis. In these circumstances, the lead agency’s decision to employ the subsequent review procedures in CEQA was justified. This, however, was only the first issue to be addressed by the reviewing court.
A lead agency and a reviewing court must then address what type of CEQA document is then appropriate. The appellate court recognized the Supreme Court’s distinction between the circumstances in which an EIR as compared to a negative declaration is the relied upon document. Following an initial EIR, a lead agency (and court) can employ the deferential substantial evidence test. When the initial CEQA document is a negative declaration, the less deferential fair argument test applies to the subsequent CEQA documentation and the agency’s conclusions that major revisions are not required to the first CEQA document.
The scope of inquiry surrounding the subsequent CEQA document is not an invitation, however, to go back to the project starting line, as the relevant scope of analysis is appropriately focused on the changes in the project.
Applying the college master plan and the anticipated project changes, the evidence of potential impacts largely involved alleged aesthetic impacts, recognized by the court as subjective in character and requiring no specific expertise. Thus testimony by students and professors, none of which reflected any training in aesthetics rose to the level of a fair argument. Although the amount of landscaping to be removed when evaluated in the context of the entire campus was very limited, the appellate court subscribed to the appellant’s argument of micro-defining the relevant environment to small areas within the master plan. [Apparently, while CEQA requires the lead agency to look at the whole of the project an opponent is not so similarly burdened.] All was not lost for the lead agency, as the appellate court held that upon remand, the District could utilize a negative declaration in circumstances in which potential impacts were mitigated to a less than significant level.
The bottom line? I think that the ongoing benefit of an EIR as the initial CEQA document for a project is readily demonstrated by this decision. The court’s decision is helpful that the scope of inquiry is limited to changes in the project when compared to the original approval. Thus the CEQA clock is not reset at zero. The circumstances in which an addendum is appropriate is limited to “minor technical changes or corrections.” In reaching this conclusion, the court left open the door that the District may be able to employ a mitigated negative declaration in circumstances (following the initial negative declaration) in which the potential impacts can be mitigated to a level of less than significant. Thus, the CEQA burden for the follow up negative declaration is lessened when compared to a negative declaration in the first instance. Perhaps it is better the second time around; it’s just not as great as it could have been.
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.