Santa Monica Baykeeper v. City of Malibu (Ct. App. 2d Dist, Div. 4 April 5, 2011) No. B222776 , available at CourtWebsite
In this case, plaintiff Santa Monica Baykeeper challenged the City of Malibu’s EIR and approval of a project for Legacy Park -- a 15-acre park next to the mouth of Malibu Creek at the Pacific Ocean. An adjacent project -- the Malibu Lumbar Yard -- was approved in 2007, which included irrigation for the park from the lumber yard's treated wastewater effluent ten months of the year, while dispersing water into the Malibu Creek watershed the remainder of the year. Santa Monica Baykeeper challenged the Legacy Park EIR, arguing that it failed to adequately analyze construction impacts on water quality, the impact of using treated effluent from the Malibu Lumber Yard on the project site, and the cumulative groundwater impacts of the project’s effluent use.
First, the court held that the construction impacts argument was moot -- the project was already completed by the time of appeal, so no further construction impacts could occur. Second, regarding irrigation with treated effluent from Malibu Lumber Yard, the court held that the EIR adequately addressed wastewater use, and the creation of the wastewater dispersal field had already been subjected to prior environmental review that was never challenged -- thus arguments related to the use of wastewater on the park were time-barred. Lastly, the court found substantial evidence supporting the city’s conclusion that the Legacy Park project reduces rather than creates groundwater impacts, and therefore the project would not have a cumulative groundwater impact. Therefore, the court upheld the city’s EIR and approval of the project.
Showing posts with label EIR. Show all posts
Showing posts with label EIR. Show all posts
Friday, April 8, 2011
Tuesday, March 29, 2011
Complete and Adequate EIR Needed for Certification
Landvalue 77, LLC v. Board of Trustees of the California State University (filed Feb. 23, 2011; cert. for publ. Mar. 16, 2011) No. F058451, available at CourtWebsite
A recent Court of Appeals decision highlights the potentially harsh consequences of producing an incomplete EIR. In the case, an EIR for a mixed-use development project had not adequately analyzed potential impacts related to air quality, traffic and parking, and water supply. To remedy this error, the court required the approving agency to decertify the entire EIR and withdraw its approval of the project.
The court held that CEQA provides for EIR certification when the EIR is complete, and that partial certification is not compatible with this concept because an EIR is either complete or it is not. Thus, even though an EIR may only be inadequate in some areas of its analysis, courts must set aside the entirety of the EIR certification and project approval. Although some prior court decisions have not required entire decertification of partially inadequate EIRs, this decision highlights the possibility that agency review of the full EIR and approval may be required by a court – even where only portions of the EIR are found inadequate.
A recent Court of Appeals decision highlights the potentially harsh consequences of producing an incomplete EIR. In the case, an EIR for a mixed-use development project had not adequately analyzed potential impacts related to air quality, traffic and parking, and water supply. To remedy this error, the court required the approving agency to decertify the entire EIR and withdraw its approval of the project.
The court held that CEQA provides for EIR certification when the EIR is complete, and that partial certification is not compatible with this concept because an EIR is either complete or it is not. Thus, even though an EIR may only be inadequate in some areas of its analysis, courts must set aside the entirety of the EIR certification and project approval. Although some prior court decisions have not required entire decertification of partially inadequate EIRs, this decision highlights the possibility that agency review of the full EIR and approval may be required by a court – even where only portions of the EIR are found inadequate.
Monday, November 29, 2010
Court Upholds City’s Discretion to Determine Baseline for Environmental Review and Provides Guidance on Infeasible Agricultural Resources Mitigation
Cherry Valley Pass Acres and Neighbors v. City of Beaumont (Cherry Valley) (Nov 22, 2010) No. E049651, available at CourtWebsite
In a decision affirming the discretion of local agencies to determine the proper “baseline” when conducting environmental review, the Court of Appeal sided with Best Best & Krieger LLP attorneys Michelle Ouellette and Fernando Avila, and upheld the groundwater analysis in an environmental impact report (EIR) prepared for a 560-unit housing development. The decision in Cherry Valley Pass Acres and Neighbors v. City of Beaumont (Cherry Valley) also provided important guidance as to what types of circumstances support a finding that agricultural resources mitigation is infeasible, an issue that many agencies face while complying with the California Environmental Quality Act (CEQA).
In Cherry Valley, a local opposition group challenged the recirculated EIR prepared for a 560-unit housing development, which was itself a scaled-down version of an earlier proposal. Project opponents argued that the City of Beaumont’s (City’s) baseline for water usage on the site was improper because it reflected the amount of water being pumped at the time the Notice of Preparation was released (when the site was an operating egg ranch), and not the minimal amount of water usage occurring at the time the recirculated EIR was released. The court disagreed, holding that the egg ranch’s vested, adjudicated groundwater rights and its history of water usage on the site supported the City’s use of that as a baseline.
The court also noted that the record contained ample evidence supporting a finding that on- and off-site mitigation for agricultural resources impacts, as well as project alternatives that lessened those impacts, would all be infeasible. Key to this determination were the facts that the City’s General Plan explicitly did not anticipate that agriculture could continue long-term and foresaw the eventual conversion of farmland and that the City’s financial analysis determined that various project alternatives that would preserve agricultural uses on-site were not viable.
The Cherry Valley decision represents an important reaffirmation of public agencies’ discretion to conduct environmental analysis and make determinations provided only that they are supported by substantial evidence, even in hotly-debated fields such as water supply and agricultural resources.
Source: www.bbklaw.com
In a decision affirming the discretion of local agencies to determine the proper “baseline” when conducting environmental review, the Court of Appeal sided with Best Best & Krieger LLP attorneys Michelle Ouellette and Fernando Avila, and upheld the groundwater analysis in an environmental impact report (EIR) prepared for a 560-unit housing development. The decision in Cherry Valley Pass Acres and Neighbors v. City of Beaumont (Cherry Valley) also provided important guidance as to what types of circumstances support a finding that agricultural resources mitigation is infeasible, an issue that many agencies face while complying with the California Environmental Quality Act (CEQA).
In Cherry Valley, a local opposition group challenged the recirculated EIR prepared for a 560-unit housing development, which was itself a scaled-down version of an earlier proposal. Project opponents argued that the City of Beaumont’s (City’s) baseline for water usage on the site was improper because it reflected the amount of water being pumped at the time the Notice of Preparation was released (when the site was an operating egg ranch), and not the minimal amount of water usage occurring at the time the recirculated EIR was released. The court disagreed, holding that the egg ranch’s vested, adjudicated groundwater rights and its history of water usage on the site supported the City’s use of that as a baseline.
The court also noted that the record contained ample evidence supporting a finding that on- and off-site mitigation for agricultural resources impacts, as well as project alternatives that lessened those impacts, would all be infeasible. Key to this determination were the facts that the City’s General Plan explicitly did not anticipate that agriculture could continue long-term and foresaw the eventual conversion of farmland and that the City’s financial analysis determined that various project alternatives that would preserve agricultural uses on-site were not viable.
The Cherry Valley decision represents an important reaffirmation of public agencies’ discretion to conduct environmental analysis and make determinations provided only that they are supported by substantial evidence, even in hotly-debated fields such as water supply and agricultural resources.
Source: www.bbklaw.com
Wednesday, September 15, 2010
UC Regents' EIR and Approval Upheld Despite Numerous Alleged Deficiencies
California Oak Foundation v. Regents of the University of California (Sept. 3, 2010) No. A122511, available at CourtWebsite.
The California Oak Foundation and others filed petitions challenging the Regents of the University of California’s certification of an EIR and approval of a project for building athletic facilities at the Berkeley campus. The Oak Foundation alleged that the EIR was inadequate under CEQA in its (1) description of baseline conditions; (2) project description; (3) statement of objectives; (4) discussion of alternatives; and (5) discussion of biological and archaeological impacts. It also alleged improper (1) delegating of authority to certify the EIR to the Regents’ Committee on Grounds and Buildings; (2) giving approval to the project before certifying the EIR; (3) failing to recirculate the Draft EIR; and (4) making findings and a statement of overriding considerations without evidentiary support. The court rejected all of these arguments.
First, the court found that the EIR accurately described the existing baseline conditions, and the geotechnical study made available after DEIR circulation adequately matched up with that baseline. Release of the study after circulation also did not require recirculation because it did not constitute significant new information and merely confirmed information already stated. The court held that omitting discussion of the California Geological Survey and United States Geological Survey comment letters was of no consequence because they did not show that the conclusions in the geology report were erroneous.
The court found the project’s description complied with CEQA Guidelines, section 15124. Evidence supported the degree of specificity used. The methodology for presenting and analyzing project alternatives in matrix and narrative format was appropriate despite some broad wording. The significant environmental impacts and corresponding components of each of the alternatives were evaluated against the corresponding component of the project, thus demonstrating a good faith effort to provide a meaningful discussion of a range of reasonable project alternatives, which according to the court was all that CEQA requires. Finally, substantial evidence supported the Regents’ conclusions on archeological and biological resources, their findings, and the statement of overriding considerations.
The court held that the Committee on Grounds and Buildings appropriately certified the EIR based on its approval authority over the project. Further, the project was not approved before certifying the EIR because the Regents’ policy related to its earlier approval of funding did not constitute project approval until completion of the project’s design review.
Therefore, the court affirmed the denial of the California Oak Foundation’s petition for writ of mandate and upheld the EIR certification and project approval.
The California Oak Foundation and others filed petitions challenging the Regents of the University of California’s certification of an EIR and approval of a project for building athletic facilities at the Berkeley campus. The Oak Foundation alleged that the EIR was inadequate under CEQA in its (1) description of baseline conditions; (2) project description; (3) statement of objectives; (4) discussion of alternatives; and (5) discussion of biological and archaeological impacts. It also alleged improper (1) delegating of authority to certify the EIR to the Regents’ Committee on Grounds and Buildings; (2) giving approval to the project before certifying the EIR; (3) failing to recirculate the Draft EIR; and (4) making findings and a statement of overriding considerations without evidentiary support. The court rejected all of these arguments.
First, the court found that the EIR accurately described the existing baseline conditions, and the geotechnical study made available after DEIR circulation adequately matched up with that baseline. Release of the study after circulation also did not require recirculation because it did not constitute significant new information and merely confirmed information already stated. The court held that omitting discussion of the California Geological Survey and United States Geological Survey comment letters was of no consequence because they did not show that the conclusions in the geology report were erroneous.
The court found the project’s description complied with CEQA Guidelines, section 15124. Evidence supported the degree of specificity used. The methodology for presenting and analyzing project alternatives in matrix and narrative format was appropriate despite some broad wording. The significant environmental impacts and corresponding components of each of the alternatives were evaluated against the corresponding component of the project, thus demonstrating a good faith effort to provide a meaningful discussion of a range of reasonable project alternatives, which according to the court was all that CEQA requires. Finally, substantial evidence supported the Regents’ conclusions on archeological and biological resources, their findings, and the statement of overriding considerations.
The court held that the Committee on Grounds and Buildings appropriately certified the EIR based on its approval authority over the project. Further, the project was not approved before certifying the EIR because the Regents’ policy related to its earlier approval of funding did not constitute project approval until completion of the project’s design review.
Therefore, the court affirmed the denial of the California Oak Foundation’s petition for writ of mandate and upheld the EIR certification and project approval.
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