Wednesday, June 22, 2011

Seismic Regulatory Compliance and Standard Engineering Practices Considered Adequate for Mitigating Seismic Impacts

Oakland Heritage Alliance v. City of Oakland (Cal. Ct. App. 1st Dist, Div. 4, May 10, 2011) No. A126558 available at CourtWebsite

In a decision impacting reliance on regulatory schemes for reducing environmental impacts under CEQA, a court of appeal recently held that a development project did not impermissibly defer mitigation by relying on seismic building standards to protect human health and safety and that the EIR’s analyses and mitigation were supported by substantial evidence.

In the case, an alliance of citizens challenged a development project's EIR, contending it inadequately evaluated the seismic risks for the project. On each issue presented, the court sided with the city. First, the court held the revised EIR utilized proper significance criteria and adequately evaluated seismic damage to structures by requiring site-specific geotechnical evaluations and structural design requirements, while reducing seismic risks through appropriate engineering methods.

The court also found substantial evidence supporting the city’s finding that seismic impacts were mitigated to less than significant levels because the project would be required to comply with various state and local requirements designed to protect against seismic hazards, including the Seismic Hazard Mapping Act, CGS Special Publication 117, the Building Code, and local development ordinances. Although the EIR noted that a site-specific evaluation would be needed before final design to adjust the appropriate remedial measures, the court held the EIR’s geotechnical investigation adequately accounted for on-site conditions and measures that could reduce impacts. The court also found the EIR's mitigation measures contained standard and proven approaches accepted within the geotechnical engineering community that would reduce the seismic impacts to a less than significant level.

Lastly, the court held the city did not impermissibly defer mitigation of seismic impacts. The EIR discussed a range of mitigation measures, including geotechnical requirements in site-specific investigations for plans submitted to obtain construction permits. The court held it was reasonable to expect the performance criteria imposed in the plans by ordinance, code, and standards would be followed. The EIR essentially proposed compliance with a regulatory scheme designed to ensure seismic safety, and that seismic impacts would be mitigated through engineering methods known to be feasible and effective.

Tuesday, June 21, 2011

Agreement to Negotiate in Good Faith Deemed Not A Project Under CEQA

Cedar Fair, L.P. v. City of Santa Clara (Apr. 6, 2011) 194 Cal. App. 4th 1150 available at CourtWebsite

A Court of Appeal held that the City of Santa Clara’s approval of a “term sheet,” which amounted to nothing more than an agreement to negotiate in good faith, did not constitute a project under CEQA, because it did not create a commitment to a project so as to effectively preclude alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project. Therefore, an EIR was not required prior to approving the term sheet.

In the case, Cedar Fair owned and operated an amusement park in the City of Santa Clara. Part of a property that Cedar Fair used for parking and events was a subject of a “term sheet,” which set forth basic terms for a stadium that would be the home to the NFL’s San Francisco 49ers. The 49ers proposed to locate the stadium on a 17-acre parcel that was alleged to be subject to a long-term lease between the City’s Redevelopment Agency and Cedar Fair.

Cedar Fair challenged the term sheet’s approval alleging that the City had failed to prepare an EIR related to the term sheet's approval pursuant to CEQA. The court determined that the stadium term sheet, however, did not constitute a project or a project approval because the term sheet was not binding. It was merely intended to provide a general framework for subsequent negotiation of a definitive agreement. Additionally, it contained a clause that expressly stated the Stadium could not proceed without negotiation and delivery of “mutually acceptable agreements based upon information from the CEQA environmental review process and on other public review and hearing processes and subject to all applicable governmental approvals” Based on this, the lack of any binding effect of the term sheet, and the precedent established in Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116, the court concluded that preparation of an EIR was not required.