Tuesday, September 20, 2016
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S.C. Explains Standard for ‘New’ Project CEQA Review
By KENNETH OFGANG, Staff Writer
Proposed land-use changes for property that has been the subject of prior California Environmental Quality Act review are subject to the same standard of environmental review as the original project, if they will cause previously unstudied environmental impacts, the state Supreme Court ruled yesterday.
The justices unanimously overturned a First District Court of Appeal decision which held that a community college’s decision to demolish a building complex and renovate two others in the course of a previously approved renovation-and-demolition project was a new project under CEQA.
“When an agency proposes changes to a previously approved project, CEQA does not authorize courts to invalidate the agency’s action based solely on their own abstract evaluation of whether the agency’s proposal is a new project, rather than a modified version of an old one,” Justice Leondra R. Kruger wrote for the court.
The jurist laid out the appropriate standard:
“Under the statutory scheme, the agency’s environmental review obligations depend on the effect of the proposed changes on the decisionmaking process, rather than on any abstract characterization of the project as ‘new’ or ‘old.’ An agency that proposes project changes thus must determine whether the previous environmental document retains any relevance in light of the proposed changes and, if so, whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts. These are determinations for the agency to make in the first instance, subject to judicial review for substantial evidence.”
Back to C.A.
The justices returned the litigation, brought by Friends of the College of San Mateo Gardens against the San Mateo County Community College District, to the Court of Appeal to resolve a number of outstanding issues.
The case arose from changes in the district’s 10-year-old plan to modernize the campus by spending nearly $1 billion to renovate some existing buildings while constructing new ones. The district determined that the environmental impacts of the original plan could be mitigated to insignificance, and adopted a declaration to that effect,
Part of the original plan was renovate a classroom, lab, greenhouse and surrounding space, collectively known as Building 20. But because of funding issues, that aspect was reevaluated, and the district decided to demolish Building 20 and put in a parking lot. It also decided to renovate two other buildings it initially planned to demolish.
The district concluded that the changes would have no greater environmental impact than the original plan. Over public opposition, particularly over the intended destruction of the gardens associated with Building 20, the district approved an addendum to the original declaration.
The “friends” group petitioned the San Mateo Superior Court for a writ of mandate, arguing the demolition project violated CEQA and seeking to compel the district to prepare an environmental impact report for what it characterized as a “new project.”
Writ Granted
Judge Clifford Cretan granted the writ, finding that the changes were inconsistent with the original plan and had impacts not discussed in the original mitigated negative declaration. The Court of Appeal affirmed, citing Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288.
That case held that changes in a hotel project—including replacing one developer with another, and eliminating separate retail uses—that had been previously approved by negative declaration required a new environmental review.
Kruger, in her opinion yesterday, noted that Save Our Neighborhood had been criticized in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, which held that changes in a similar mixed hotel/retail project were modifications of the previously approved project and did not require a supplemental EIR.
The Court of Appeal decisions in Save Our Neighborhood and the current case are deficient, Kruger concluded, in treating the inquiry as primarily one of law rather than fact. It is for the lead agency, not the trial court, to determine in the first instance whether the original EIR or negative declaration requires major changes, she said.
Statutory Presumption
The jurist went on to reject the plaintiff’s contention that Public Resources Code §21166, which establishes a presumption against subsequent review of a previously approved project, applies only to projects for which an EIR is prepared.
“Limiting agencies’ postapproval review obligations for projects that were initially approved via negative declaration is wholly consistent with a statutory scheme in which negative declarations, no less than EIRs, are entitled to a presumption of finality once adopted,” Kruger wrote.
The plaintiff’s alternative, to “restart the CEQA process every time plans or circumstances change, or whenever new information comes to light,” would be impractical, and inconsistent with the requirement that foreseeable future changes be considered in the original review process, she said.
The case is Friends of the College of San Mateo Gardens v. San Mateo County Community College District, 16 S.O.S. 4725.
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