CEQA Case Report: Understanding the Judicial Landscape for Development[i]
In an unpublished opinion issued June 19, 2018, Center for Biological Diversity v. County of Los Angeles, Case No. B284427, the California Court of Appeal rejected the Center for Biological Diversity’s (Petitioner) appeal and affirmed the trial court’s denial of a petition for writ of mandate to require the County of Los Angeles (County) to set aside its approval of the modified Antelope Valley Area Plan (Plan) and certification of a program environmental impact report (EIR).
In summary, the court determined:
- When modifications to an area plan do not constitute “significant new information” or “substantial changes” as compared to the original area plan, an agency need not revise the EIR before certification, recirculate the EIR, prepare a subsequent or supplemental EIR, or prepare an addendum to the EIR.
- When modifications to a plan do not require an agency to recirculate an EIR, or prepare a supplemental EIR or addendum, the agency is not required to make further CEQA findings or provide an updated statement of overriding considerations.
Petitioner sought a writ of mandate to compel the County to set aside its approval of the modified Plan and certification of the EIR. The trial court denied the petition, finding that the modifications at issue were not significant and that the EIR’s findings related to project impacts remained valid. The Court of Appeal affirmed the trial court’s denial of the petition.
Background for Appeal
The County updated the Plan, a Land Use Policy Map (LUPM), and a Zoning Map and published a Draft EIR — which was finalized after public comment. The Plan defined several area types, including Economic Opportunity Areas (EOAs), where major infrastructure development is underway, and Rural Preserve Areas, where residential development is limited to preserve natural resources and minimize development. The Plan also includes special management areas, such as Significant Ecological Areas (SEAs), which are intended to protect the biodiversity of the County. After a public hearing, the County’s Board of Supervisors (Board) certified the EIR, and adopted CEQA Findings of Fact and a Statement of Overriding Considerations. The Board also stated it would approve the Plan and maps subject to certain modifications, which exempted EOAs from certain policies in the Plan, limited expansion of SEAs into certain EOAs, and reduced the footprint of Rural Preserve Areas in EOAs. Following Plan modification, the Board approved a resolution that recertified the EIR without changes, incorporated the earlier CEQA Findings of Fact and Statement of Overriding Considerations, and approved the modified Plan. The Board found that, because the modifications to the Plan did not change the conclusions in the EIR, revision and recirculation of the EIR were not required.
Petitioner then petitioned for a writ of mandate to set aside the Board’s adoption of the modified Plan and recertification of the EIR. The trial court found that the Board’s determinations that the changes to the Plan did not constitute significant new information were supported by substantial evidence and denied the petition, and Petitioner appealed.
Substantial Evidence Supported the Board’s Conclusion That Plan Modifications Did Not Require a Revised EIR
Petitioner argued that certain modifications to the Plan would result in greater significant environmental effects than were captured in the EIR and, thus, required revision of the EIR. These modifications included:
- Exempting EOAs from compliance with certain policies in the Plan
- Reducing SEA coverage in EOAs
- Reducing the footprint of Rural Preserve Areas in EOAs
The agency’s determination of whether modifications constitute significant new information requiring additional CEQA review is a factual issue, subject to review under the substantial evidence standard, rather than a procedural issue subject to de novo review. Applying this standard of review, the court rejected each of Petitioner’s arguments.
First, as to exempting EOAs from compliance with certain policies in the Plan, the court held that Petitioner did not meet its burden of showing there was no substantial evidence in the record to support the Board’s conclusion that the modifications did not present any new significant information. The policies that no longer applied to EOAs under the Plan were designed to require low-density development, ensure adequate buffers between development and sensitive areas, and provide for open space preservation. Petitioner argued that exempting EOAs from compliance with these policies would negatively affect certain resource areas, and the court rejected Petitioner’s arguments for the following reasons:
- Scenic vistas. Certain policies that no longer applied in EOAs were listed in the EIR as mitigating potential impacts to scenic vistas by requiring low-density development. The court noted that even without those policies, the LUPM required very low-density development in most of the EOAs. The court rejected Petitioner’s argument that because those policies are “relevant” to the analysis of scenic vistas they were also essential to the analysis.
- Sensitive plant communities. Petitioner failed to identify for the court which sensitive plant communities were present in the EOAs, and the court determined that the EOAs did not contain significant areas of sensitive plant communities. Additionally, the court noted that there are alternative protections for sensitive plant communities by several existing agencies.
- Wetlands. The court found that the LUPM limits development in EOAs, other agencies regulate wetlands, and other policies specific to wetlands remain applicable to EOAs.
- Wildlife movement. The court cited the reliance on existing regulations applicable to these areas and the fact that a policy that remains in place specifically addresses wildlife movement.
- Seismic hazards. The court noted that this analysis may not have been required at all, since an EIR need not address the environment’s effects on a project. Assuming the analysis was required, the court still found the LUPM limits the density of development in EOAs to address any concerns about seismic hazards in these growth areas.
- Development on unstable soils. The modifications did not result in any changes to the LUPM in areas of steep slopes, and an existing ordinance addresses development in Hillside Management Areas.
- Airport safety hazards. The court found that Petitioner failed to meet its burden because the originally proposed and adopted LUPMs were identical for areas that might be impacted by current or future airport-related uses.
Second, the court found that the reduction in SEA coverage in the EOAs — a decrease of only 6% from the previous version of the Plan — was not significant new information. Petitioner failed to show that the review required by mitigation measures applicable to SEAs would have been significantly greater than project-level CEQA review — which would apply to any development in an EOA. Additionally, a number of other programs and policies continue to provide protection for sensitive areas and wildlife.
Third, as to the reduced footprint of Rural Preserve Areas in EOAs, the court explained that the Rural Preserve Area designation does not dictate land use in a given area, but is reflective of more detailed land use restrictions in the LUPM. The County argued that removing the Rural Preserve Area designations did not affect the allowable development density in EOAs because density is still restricted by the underlying LUPM. Petitioner did not dispute this claim, and the court found that because Petitioner had not shown that land use designations changed significantly, it did not meet its burden of showing the Board’s decision was not based on substantial evidence.
The Board Was Not Required to Recirculate the EIR or Conduct Additional Environmental Review
Next, Petitioner contended that the County should have either recirculated the EIR prior to approving the Plan, or prepared a subsequent EIR, supplemental EIR, or an addendum to the EIR, to reflect changes in the Plan. An EIR must be recirculated when significant new information is added after notice has been given and before it has been certified. New information is “significant” only if the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect or a feasible way to mitigate or avoid such an effect. A subsequent or supplemental EIR is only required when there are substantial changes to the proposed project or the project circumstances, or new information which was not known at the time of the EIR becomes available. Here, the court determined that the modifications to the Plan did not amount to significant new information that would require recertification and recirculation, nor did they amount to substantial changes that would require a subsequent or supplemental EIR. The court also dismissed Petitioner’s argument that the County should have prepared an addendum to the EIR, finding that the Board’s resolution detailing the required modifications served the same purpose as an addendum and allowed for informed decision-making.
The Board Was Not Required to Update the CEQA Findings or Statement of Overriding Considerations
Finally, Petitioner claimed that the CEQA Findings of Fact and Statement of Overriding Considerations failed to consider the previous version of the Plan as an alternative to the adopted Plan. Just as an agency is not required to recirculate an EIR or prepare a subsequent or supplemental EIR every time new information is identified, changes to a plan do not necessarily require changes to the findings and statement of overriding considerations. Thus, the court held that the County was not required to issue new CEQA Findings of Fact or an updated Statement of Overriding Considerations, as the modifications did not require the County to recirculate the EIR or to prepare a supplemental EIR or addendum.
Accordingly, the court affirmed the trial court’s judgment denying the petition for writ of mandate and upholding the County’s approval of the Plan and certification of a program EIR.
- Opinion by Justice Baker, Acting Presiding Justice Kriegler, and Justice Kim concurring.
- Trial court: Superior Court of Los Angeles County, No. BS156932, Judge James C. Chalfant.
[i] California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).