Tuesday, June 29, 2010
Court Directs County to Set Aside Categorical Exemption for In-Fill Project, Clarifies the Requirement for Exempting Projects “Within City Limits”
In a decision that clarifies the standards that public agencies should apply when relying on categorical exemptions, a California court of appeal recently held that the County of Alameda applied the wrong legal standard for exempting an in-fill subdivision.
The court noted that to rely on a categorical exemption, the administrative record must disclose substantial evidence of every element of the contended exemption. Looking at each element of the categorical exemption for in-fill developments under CEQA Guidelines section 15332, the court found that the critical hanging point in the case was the requirement that the in-fill development be “within city limits” for the exemption to apply.
In the case, the applicant’s project was located in the an unincorporated part of the county. Although the County of Alameda argued that the project site was surrounded by highly urbanized development, the court rejected such an expanded interpretation of “within city limits.” Rather, the court held that a plain reading of the exemption required that the “within city limits” element could only be satisfied if the project was located within the boundaries of a municipality.
Additionally, the court noted there was not a procedural requirement for the challenging party to exhaust its administrative remedies by making specific comments to the county regarding the improper application of the categorical exemption. The court held that the exhaustion requirement under Public Resources Code section 21177 did not apply because (1) CEQA does not provide for a public comment period before an agency makes an exemption finding, and (2) there is no "public hearing before a notice of determination is issued," as an NOD is not filed if the agency declares an exemption.
The court of appeal remanded the case to the trial court with instructions to issue a writ of mandate directing the county to set aside its decision. This case highlights the care that should be taken when applying a categorical exemption for a project by providing substantial evidence supporting each element of the exemption.
Tuesday, June 22, 2010
Subsequent CEQA Review Only Required If Agency Has the Discretion to Respond to the Environmental Impacts Raised
In a significant decision for public agencies, the Fourth District Court of Appeal recently concluded that the City of San Diego was not required to prepare a subsequent or supplemental environmental impact report (EIR) regarding the potential impact of a project on climate change. The court reasoned that the City did not grant a discretionary approval that would provide it with the authority to address the project's impact on this particular environmental issue. This case reinforces the concept that the application of the California Environmental Quality Act (CEQA) to subsequent approvals is relatively narrow in scope and only requires a new EIR in certain specific circumstances.
In San Diego Navy Broadway Complex Coalition v. City of San Diego, an EIR had previously been certified in the 1990s for the development of waterfront property in downtown San Diego. Under the development agreement that had been approved at that time, later review of development plans would be necessary to ensure that aesthetic design requirements were fulfilled. In 2006 and 2007, these development plans were submitted and it was determined that no subsequent or supplemental EIR under Public Resources Code section 21166 was necessary.
However, the petitioner argued that the fact that the earlier EIR did not analyze climate change impacts did require a subsequent or supplemental EIR. Rejecting this, the Court found that the scope of discretion involved in this design review was limited and did not involve the issue that supposedly triggered the need for a subsequent or supplement EIR (namely, climate change). Thus, the Court held in its opinion issued last Thursday, that, in addition to meeting the conditions of Public Resources Code section 21166, the requirement to prepare a subsequent or supplemental EIR arises only where the agency has discretion to respond to the environmental concerns raised in such a new EIR.
Tuesday, June 8, 2010
Bay Area Air District Approves California’s First Regional Thresholds of Significance for Greenhouse Gas Emissions from Projects
The Bay Area Air Quality Management District (BAAQMD) last week announced the adoption of the first region-wide numeric thresholds for greenhouse gas emissions for residential and commercial projects in California. The new standards provide guidance for Bay Area public agencies to review the environmental risks posed by the approval of development projects under the California Environmental Quality Act (CEQA).
In 2006, the California Global Warming Solutions Act of 2006 (AB 32) was enacted to require a statewide reduction in greenhouse gas emissions to 1990 levels by the year 2020. This spring, the state revised the CEQA Guidelines to specifically address impacts caused by development projects related to greenhouse gas emissions. The BAAQMD’s new thresholds can be used for complying with these analytical requirements under CEQA for projects proposed in the Bay Area.
The BAAQMD’s thresholds, approved last Wednesday, allow Bay Area public agencies to consider either a fixed threshold of 1,100 metric tons per year of greenhouse gases emitted from a commercial, residential or mixed-use project, or a per capita threshold of 4.6 metric tons per year of carbon dioxide emitted per subdivision resident or business employee. These thresholds are intended to encourage smart-growth projects, while facilitating large projects that maintain a proportionally low level of emissions. Proposed developments that would exceed the thresholds are required to perform additional environmental review of ways to reduce or offset the emissions.
These thresholds were developed specifically for the Bay Area. However, since they are the first regional air district to adopt numeric thresholds for greenhouse gas emissions from residential and commercial projects, lead agencies throughout the state may receive public comments suggesting application of the BAAQMD thresholds to proposed development projects.