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On June 12th, the California Court of Appeal, Fourth District, filed its decision in Golden Door Properties LLC v. County of San Diego, __ Cal.App. 5th __ (2020) (WL 3119041). In doing so, the Court extended the now decade-long effort of San Diego County to craft an adequate Climate Action Plan (“CAP”): as the Court itself noted, this is its third decision in that effort. The County’s greenhouse gas (“GHG”) reduction plan within the CAP, particularly the use of offsets, provided perhaps the highest and most broad-reaching issues of interest; however, the Court also addressed a number of other alleged shortfalls of the environmental impact report (“EIR”) for the CAP, including the cumulative impacts analysis, alternatives analysis, consistency with applicable plans, and the adequacy of responses to comments. Although the County prevailed on the issue of the consistency of the CAP with the County’s General Plan, and on the sufficiency of responses to comments on the EIR, Petitioners prevailed on the sufficiency of the CAP and overall sufficiency of the EIR under the California Environmental Quality Act (“CEQA”).

Substantial analysis concerned a single mitigation measure (M-GHG-1) proposed to reduce GHG emissions from General Plan amendments to net-zero. This is significant because the CAP considered—and applied only to—developments consistent with the County’s 2011 General Plan Update. Measure M-GHG-1 first required projects with increased density above the approved 2011 levels to employ “all feasible” GHG reduction measures, including VMT reductions such as promotion of alternative transportation measures. If on-site measures fail to reduce GHG emissions to CAP-approved levels, a project may then employ off-site measures, including credits from GHG reduction programs worldwide. Continue reading

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By Neill Brower
The California Supreme court determined the California State University (“CSU”) could not rely solely on earmarked appropriations from the State Legislature for payment of “fair share” mitigation fees the CSU determined necessary for full mitigation of impacts, and the absence of specific legislative appropriations for mitigation fees did not render payment of mitigation fees infeasible. On August 3, 2015, the California Supreme Court filed its decision in City of San Diego v. Bd. of Trustees of the California State University, Case No. S199557, rejecting the notion that the contingent nature of State budgeting excused a failure to commit to enforceable mitigation for off-campus impacts resulting from on-campus development. Further, because the CSU relied on the purported infeasibility of paying mitigation fees as a basis for its Statement of Overriding Considerations, the Statement of Overriding Considerations was unsupported by substantial evidence as to that finding.

In this case, the CSU approved an Environmental Impact Report (“EIR”) to expand the San Diego State University (“SDSU”) campus to accommodate, among other significant components; a hotel, academic research, medical, social, administrative, and conference facilities; faculty and student housing; a 10,000-student enrollment increase; and associated increases in faculty and staff by 2030 school year. Among other impacts, the EIR determined the project would result in significant contributions to cumulative traffic impacts on off-campus roads in the City of San Diego and Caltrans jurisdictions. The EIR determined the specific improvements required to mitigate these impacts and calculated the “fair-share” fees necessary to construct those improvements.
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by Neill Brower
An August 5, 2013, the California Supreme Court provided some additional flexibility to local agencies in deciding what conditions properly constitute the “baseline” for analysis under the California Environmental Quality Act (“CEQA”). The decision, Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (“Neighbors”), Case No. S202828, narrowly upholds the environmental impact report (“EIR”) prepared for phase 2 of the Exposition Corridor Transit Project (“Expo Phase 2”) and strikes a middle ground among previous decisions regarding the use of various future baselines. The court ruled, among other things, that although an agency may, in very limited circumstances, evaluate project impacts on the basis of conditions anticipated to exist at the time of certification of an environmental impact report (“EIR”) for the project, or on a hypothetical longer-term future baseline, these cases remain the exception, rather than the rule. If using only a hypothetical future conditions and omitting existing conditions as a baseline, an agency must demonstrate that an analysis based on existing conditions “would detract from an EIR’s effectiveness as an informational document” by providing an uninformative or misleading analysis. In most cases, an agency must still evaluate the impacts of a project in comparison to existing conditions, though nothing prevents additional analysis of long-term impacts, particularly in the context of a cumulative analysis or a “no project” alternatives analysis.
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Neill Brower
The Fourth District of the California Court of Appeal recently ruled that the California State University system could not use budgetary uncertainty as a basis for determining the feasibility of mitigation for off-campus impacts. In City of San Diego v. Board of Trustees of the California State University, 2011 DJDAR 17803, filed on December 13, the court upheld a broad-based challenge to the EIR for the San Diego State University Master Plan.

Among other things, the EIR claimed that the University could not feasibly mitigate project-related traffic impacts that would occur off-campus. Consistent with mitigation measures in the EIR, the resolution approving the project and certifying the EIR required the University to request from the State legislature the necessary funding for the University’s fair share of off-campus traffic- and transit-related improvements. The resolution also stated that because the University ultimately relied on funding from the State legislature, the University could not guarantee the allocation of sufficient funds or the timing of that allocation, nor could the University guarantee that the local agencies would fund the measures for which those agencies were responsible. Nevertheless, the resolution directed the Chancellor of the University to proceed with the project even if the legislature allocated insufficient funds for mitigation, finding that due to the various funding uncertainties, the off-campus traffic impacts would remain significant and unavoidable, but “are necessarily outweighed by the Statement of Overriding Considerations adopted by [the University].”
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Neill Brower
A recent court decision upheld the use of multiple scenarios in a traffic analysis in an environmental impact report (“EIR”) for a redevelopment project. On November 22, 2011, the Sixth District of the California Court of Appeal certified for publication its decision in Pfeiffer v. City of Sunnyvale City Council (“Pfeiffer“), Case No. H036310, which rejected, among other claims, a challenge to an EIR traffic analysis that used future baseline scenarios to evaluate impacts. The decision highlights and reinforces (1) the necessity of discussing existing conditions in addition to other scenarios that may provide more useful information regarding project impacts; and (2) the importance of substantiating a decision to deviate from existing conditions as the analytical baseline.
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Neill Brower
A recent court decision has already changed the way many public agencies evaluate traffic impacts in analysis reports prepared to satisfy the California Environmental Quality Act (“CEQA”). On December 16, 2010, the Sixth District of the California Court of Appeal issued its decision in Sunnyvale West Neighborhood Association v. City of Sunnyvale, invalidating an environmental impact report (EIR) for a major roadway extension project. Sunnyvale should be considered as a logical extension of case law regarding the proper baseline for CEQA analysis and the end of the future baseline scenario as the only basis of a traffic impact analysis.

Prior to Sunnyvale, an accepted practice for traffic impact analysis involved crafting a future baseline scenario, usually based on the anticipated year of project build-out, and evaluating project impacts based on the difference between future conditions with and without project-related traffic. This approach makes intuitive sense, as under very few circumstances would traffic levels and street configurations plus project traffic represent an accurate picture of the project’s ultimate effect on local and regional roadways. The Sunnyvale decision even recognized this.

However, CEQA Guidelines require an evaluation of the effects of a project on “the environment.” Generally, “the environment” means the physical conditions that exist in an area during publication of the Notice of Preparation (NOP) or, if no NOP is published, the time that environmental review began.
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