Thursday, May 8, 2008
Court: Resubmitted Development Plan Not a ‘New Project’
By STEVEN M. ELLIS, Staff Writer
A developer who resubmitted a tentative map for a proposed subdivision after its previous approval expired while the project was tied up in litigation did not propose a new project requiring separate environmental review, the First District Court of Appeal held yesterday.
Ruling that “nothing significant about the activity to be undertaken on the land has changed” since the Humboldt County Planning Commission originally found that the project’s environmental impact could be mitigated to the point of insignificance, Div. Three held that the tentative map Michael Moss resubmitted to the commission did not automatically require a separate environmental review under the California Environmental Quality Act.
However, the court concluded that Humboldt Superior Court Judge J. Michael Brown had only partially erred in ordering supplemental review of the project’s potential to contribute to a water shortage downstream, and its potential impact on local fish populations, given that information not previously available indicated “significant effects” that had not been discussed during the prior environmental review.
Moss initially sought the commission’s approval in 1995 to subdivide a 94-acre parcel he owned in Humboldt County that contained a tributary of Luffenholtz Creek.
The commission approved a tentative subdivision map in 1997 and adopted a mitigated negative declaration as to the project’s environmental impact, finding that the project would not substantially reduce the amount of water available to supply the City of Trinidad, located downstream.
A citizen’s group appealed the commission’s approval to the Humboldt County Board of Supervisors, but the Board rejected the appeal as untimely and the Humboldt Superior Court—in a decision upheld by the Court of Appeal in 2000—rejected the group’s petition for a writ of mandamus.
In the meantime, the commission’s approval of the tentative map expired in 1999, so Moss sought to stay expiration while the map remained subject to litigation. The Board of Supervisors granted Moss’ request, but the citizens’ group challenged the decision, and the Court of Appeal agreed, concluding that the board lacked power to stay expiration after the map had already expired.
Moss then filed a new application with the commission in 2004, seeking approval of the same map, but the commission decided that his application represented a “new project” requiring full CEQA review. On Moss’ appeal, the Board of Supervisors agreed with the commission, and also concluded that its receipt of new information as to the impact on the City of Trinidad’s water supply and fish populations in Luffenholtz Creek necessitated review.
Specifically, this information consisted of evidence from the water commissioner of the City of Trinidad about the city’s increased water usage, the potential fire-fighting consequences of a water shortage, and potential impacts of the project on the city’s water quality. It also consisted of evidence that the mapped habitat area for coho salmon, a threatened species, included Luffenholtz Creek, and that the main fork of the creek was a habitat for coastal cutthroat trout, a species of special concern.
Moss sought a writ of mandate challenging the Board’s decision, and Brown agreed with Moss’ argument that the project was not “new” under the CEQA. However, he also found that substantial evidence supported the board’s alternative finding that an environmental impact report was required based on the existence of significant environmental effects that were either not previously considered, or more severe than previously considered.
Moss appealed, and the Court of Appeal, in an opinion by Administrative Presiding Justice William R. McGuiness, partially affirmed and partially reversed Brown’s ruling.
McGuiness wrote that Moss’ resubmitted application was not a new project, noting that expiration of the approval of tentative map did not alter the project.
“Expiration of the tentative map was an abstract occurrence that had no effect on the project’s environmental impacts,” he said. “Rather, it was the expiration of a discretionary approval by a governmental agency, and the Guidelines make it clear that a CEQA project is not to be defined by each of the discretionary approvals that may be required from government agencies.”
He then examined whether substantial evidence supported supplemental review of the project under Public Resources Code Sec. 21166.
The section provides that once an environmental impact report has been prepared for a project, “no subsequent or supplemental environmental impact report shall be required…unless [s]ubstantial changes are proposed…which will require major revisions of the environmental impact report…[,] [s]ubstantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report…” or “[n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.”
Noting that the study of the City of Trinidad’s water supply had been conducted 12 years ago, McGuinness wrote that substantial evidence supported the finding that supplemental review was required to analyze the project’s potential to contribute to a water shortage.
However, he rejected the board’s conclusion that review was warranted to study the project’s impacts on water quality and fire safety as being “based on speculation, not fact.”
McGuinness then turned to the biological impacts of the project and opined that the county—which had relied on evidence pertaining to different fish species—had failed to show any evidence that the creek was part of the critical habitat for coho salmon, but that it had shown that new evidence that a population of coastal cutthroat trout .was present in the creek supported the board’s finding that further review of the project’s impact was necessary.
“Assuming cutthroat trout are present in Luffenholtz Creek, as believed, the 1995 report of the Department of Fish and Game indicates activities that may occur in connection with the project have the potential to result in significant impacts to this species.”
Justices Stuart R. Pollak and Martin J. Jenkins joined McGuiness in his opinion.
The case is Moss v. County of Humboldt, A114205.
Copyright 2008, Metropolitan News Company