CEQA’s Standards For Subsequent Review To Be Addressed By Supreme Court

by Miller Starr Regalia
Contact

In a rare grant of review of an unpublished case, the California Supreme Court granted review on January 15, 2014 of the decision in Friends of the College at San Mateo Gardens v. San Mateo County Community College District (1st Dist., Div. 1, 9/26/13) to address the following issue presented by the District: “If a lead agency approves modifications to a previously reviewed and approved project through an addendum, may a court disregard the substantial evidence underlying the agency’s decision to treat the proposed action as a change to a project rather than a new project, and go on to decide as a matter of law that the agency in fact approved a “new” project rather than a modification to a previously approved project, even though this “new project” test is nowhere described in CEQA or the [CEQA] Guidelines?”

In addition to presenting CEQA issues involving tiering and the standards for subsequent review, the case may present interesting sub-issues regarding assessment of the significance of aesthetic impacts under CEQA, and the treatment of changes in a site-specific component of a much larger facility plan or project previously reviewed on a programmatic basis.

The facts are these:  The District adopted a 2006 Master Plan for all three of its community college campuses, and subsequently adopted a 2006/2007 IS/MND for facility improvements at the College of San Mateo campus (CSM project). Both the 2006 Master Plan and 2006/2007 IS/MND contemplated the CSM’s Building 20 complex – which included an old, vacant, outmoded concrete building housing a classroom and lab facilities, three parking lots, a greenhouse, a lath house/storage building, and the “North and South Gardens” – would be “renovated.” The District changed plans to some extent in 2011, opting to demolish Building 20 and portions of the Gardens to make room for additional parking and landscaping, while renovating two other buildings on the CSM campus that previously had been slated for demolition. The District ultimately adopted a revised Addendum to the prior IS/MND concluding the project change would not result in new or substantially more severe environmental impacts than previously disclosed. Plaintiffs sued for a writ of mandate alleging the demolition project was a new project not within the scope of the 2006 Master Plan and required an EIR due to inadequately analyzed aesthetic impacts of partially demolishing the Gardens.

The trial court agreed with plaintiffs, and the Court of Appeal affirmed its judgment granting a writ setting aside the Building 20 demolition project approval. The court followed the much-criticized decision in Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288 (“Lishman”), in holding that a court may decide as a matter of law whether project modifications are of such a nature that the proposal constitutes a “new project altogether” subject to the CEQA standards for initial review (i.e., the low threshold “fair argument” test) rather than the more deferential standards for subsequent review of a modified project established under Public Resources Code § 21166 and Guidelines §15162 (i.e., establishing a presumption against in-depth subsequent CEQA review absent substantial changes in the project or circumstances, or newly available information, requiring major revisions to the previous CEQA document). According to the Court of Appeal, Lishman was too harshly criticized in subsequent case law, and its “standard” retains vitality, in the narrow circumstances of the present case because it was “clear from the record that the nature of the project has fundamentally and qualitatively changed to the point where the new proposal is actually a new project altogether.”

The Supreme Court’s grant of review is interesting on a number of levels. Review of an unpublished decision is rare, since it sets no precedent; here, however, the case highlights not only a split of authority among published opinions on the “new project”/subsequent review standards, but a split among cases – both unpublished and published – recently decided by the same division (Division One) of the Court of Appeal for the First Appellate District, with the instant unpublished decision parting company with Division One’s prior published decision in Latinos Unidos de Napa v. City of Napa (1st Dist., Div. 1, 2013) 221 Cal.App.4th 192. The latter case essentially treated the lead agency’s determination of the threshold question whether a project is a “new” one (subject to Pub. Resources Code § 21151 and “fair argument” review) or a “modification” of an already-reviewed project (thus invoking § 21166 and the deferential “substantial evidence” test), as a question of fact rather than one of law, and, hence, subject to deferential review – albeit in the context of reliance on a prior EIR, rather than Negative Declaration. (See First District Rejects CEQA Challenge to City of Napa’s Reliance On General Plan EIR for Housing Element Updated Project, by Arthur F. Coon, posted 11/18/13.)

Obviously, for whatever reason, the Supreme Court viewed the instant unpublished case as an appropriate vehicle to review and resolve CEQA issues of statewide importance. The grant reaffirms the Supreme Court’s continuing appetite for taking and deciding CEQA cases – a judicial “reform” effort that I have noted in a number of previous posts over the past few years.

Written by:

Miller Starr Regalia
Contact
more
less

Miller Starr Regalia on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.