Tuesday, April 13, 2010

Court Finds Proper Alternatives Analysis and Adequate Notice of Certification Provided by UC Regents

Jones v. Regents of University of California, No. A123948, (Apr. 7, 2010) available at CourtWebsite(decision); modified by No. A123948M (Apr. 8, 2010) available at CourtWebsite(order modifying).

A group of citizens opposed the certification of an EIR for the development of a laboratory facility operated by the University of California located on land owned by the UC Board of Regents ("Regents"). They alleged that the analysis of alternatives was inadequate in the EIR, and recirculation of the EIR was necessary after adding significant discussion related to impacts from the emission of greenhouse gases. The court found in favor of the Regents on each of these issues.

The court found that the Regents needed not consider every conceivable alternative to the project in the EIR, including the “so-called ‘true no-hillside growth’ alternative” asserted by the plaintiffs, which would have required all growth to occur on a satellite campus, rather than at the laboratory. On this issue, the court concluded that the range of alternatives was sufficient and that the EIR contained substantial evidence supporting the conclusion that the proposed off-site alternative would not meet the proposed project’s objectives.

The Draft EIR had not discussed the project’s potential for climate change as a result of greenhouse gas emissions. In response to public comments, the Final EIR added a discussion about the project’s potential for increasing such emissions and concluded that the cumulative impacts from the project’s contribution to emissions would be less than significant. In an unpublished part of the court's decision, the court noted that the plaintiffs had argued that the revisions constituted “significant new information,” and that the Regents had failed to provide adequate notice for providing further public comments related to the Final EIR. The court of appeal, however, found that the plaintiffs had not raised the issue of “recirculating the EIR” during the administrative proceedings, and that adequate notice had been provided for public comments in a letter that was issued by the laboratory. The letter indicated when the certification of the EIR would occur, where copies of the Final EIR could be reviewed, and the name and information for contacting the Regents. The court noted that the City of Berkeley and Sierra Club had provided comments related to the Final EIR, but that neither had suggested recirculation of the EIR in light of the greenhouse gas discussion. Therefore, the Regents had complied with CEQA’s notice requirements, and the plaintiffs had failed to exhaust their administrative remedies on the issue of whether the Regents were required to recirculate the EIR after adding the discussion about greenhouse gas emissions.

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Tuesday, April 6, 2010

California Supreme Court Finds Filing Notice of Exemption Triggers 35-Day Statute of Limitations to Any Project Challenge

Stockton Citizens for Sensible Planning v. City of Stockton, No. S159690 (Apr. 1, 2010) available at CourtWebsite

From the Supreme Court of California

The California Supreme Court has found that the 35-day statute of limitations for challenging projects determined to be exempt from environmental review under CEQA applies to any challenge against the underlying project, regardless of the alleged defects or flaws in the approval process. This decision reiterates the importance of complying with CEQA’s short notice-based limitations period intended to foster quick resolution of challenges to environmental review for a project.

In Stockton Citizens for Sensible Planning v. City of Stockton, the city found that its approval of the construction of a Wal-Mart Supercenter on parcels within a previously adopted master development plan for a large urban tract was a ministerial action exempt from CEQA review and filed a Notice of Exemption (NOE). Plaintiffs waited nearly six months to file suit against the project, arguing that the "approval" of the project by the city's Community Development Department director was invalid based on procedural and substantive reasons, and therefore the NOE was void and did not trigger the 35-day statute of limitations for exemptions. Plaintiffs also argued that the form and content of the NOE did not comply with CEQA because it failed to describe the project, omitted material information and included materially false information.

The Supreme Court, in reaching its decision last Thursday, reversed both the trial court and the Court of Appeal for the Third Appellate District, finding that the lawsuit was barred under the 35-day limitations period. The Court held that when a properly filed NOE complies in form and content with CEQA’s requirements and declares the agency has taken an action that would constitute final approval of a project under an exemption, the 35-day period for challenging the validity of this asserted approval begins to run. This conclusion is consistent with the language and the intent in Public Resources Code section 21167, subdivision (d), which specifies a 35-day limitations period for lawsuits claiming that a public agency "has improperly determined" a project is exempt from CEQA.

The Court also found that the form and content of the NOE minimally complied with CEQA and therefore triggered the 35-day statute of limitations. The NOE only had to provide a brief description of the approved project, state its location and set forth reasons for the agency’s finding of exemption under State CEQA Guidelines section 15062, subdivision (a). Compliance with these “basic requirements” was sufficient and the NOE did not have to disclose and explain all environmental implications of the project.

Thus, all CEQA challenges to an agency’s determination that a project is exempt, whether or not they have merit, must be brought within 35 days after the agency files a compliant NOE.

Sunday, April 4, 2010

Court Holds that Supercenters Do Not Necessarily Trigger Examination of Urban Decay Effects in EIR

Melom v. City of Madera, No. F055024 (Mar, 24, 2010) available at CourtWebsite

In a decision clarifying when urban decay analysis must be conducted for a development project, the Court of Appeal recently held that building a retail store called a “supercenter” does not automatically require the project’s environmental impact report (EIR) to include an examination of possible urban decay effects.

In Patricia Melom v. City of Madera, Case No. MCV037268 (Ct.App. March, 24, 2010), Melom contended that the City violated CEQA by approving a retail shopping center project without preparing a subsequent or supplemental EIR after the largest retail space on the site plan grew significantly in square footage. In November of 2006, the City had certified an EIR for a project described as a “proposed retail center” with “approximately 795,000 square feet of gross floor area.” A conceptual site plan in the EIR showed approximately 30 retail spaces, the largest of which was 125,000 square feet. In March 2007, the developer submitted a “refined” site plan with the largest retail space described as approximately 198,500 square feet. The refined site plan identified the tenant of the largest retail space as a Super Target store. In June 2007, the City prepared an addendum to the EIR that concluded that there were no substantial changes proposed in the project requiring major revisions of the previous EIR.

The trial court held that the City did not violate CEQA and Melom subsequently appealed. Melom claimed that, based on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 (Bakersfield) and American Canyon Community United for Responsible Growth v. City of American Canyon (2006) 145 Cal.App.4th 1062 (American Canyon), whenever a governmental entity approves a project that includes a so-called “supercenter,” such an approval requires an EIR addressing “potential urban decay effects” that might result from the supercenter.

The Court of Appeal disagreed with Melom’s interpretation, stating that although the holdings in Bakersfield and American Canyon both repeatedly used the term “supercenter,” the term was not defined anywhere in those cases or in any statute or CEQA Guideline. The court went on to explain that for the purposes of CEQA, the important issue is whether an agency proposes or intends to carry out or approve a project that would have a significant effect on the environment. When there has been a subsequent change to such a project, the question then becomes whether those changes would require a major revision of a previous EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. The court clarified that it is the project or the change in the project that is the focus of the inquiry; not whether the project or change in the project is of a certain type (such as a supercenter). The court expressly declined to interpret Bakersfield or American Canyon as holding that urban decay effects must necessarily be examined whenever a project includes something called a supercenter.