In Save Our Capitol! v. Department of General Services (Jan. 18, 2023, C096617, C096637) __Cal.App.5th__, the Third District Court of Appeal held that the Department of General Services violated CEQA when certain design changes to the State Capitol renovation (Project) were not revealed until the final EIR (FEIR), preventing the public from commenting on the changes. The Court also found that the EIR did not contain a reasonable range of alternatives, and the failure to provide depictions of key design changes or allow public comment led to the inadequate analysis of the Project’s impacts on aesthetics and historic resources.

In 2016, the Legislature authorized the Department of General Services and real party, Joint Committee on Rules of the California State Senate and Assembly (collectively DGS), to begin the process of planning the demolition and renovation/restructuring of the State Capitol Building Annex attached to the historic California State Capitol Building (Capitol) in Sacramento. DGS was authorized to demolish the existing annex and replace it with a larger annex building, construct a visitor center, and construct a new underground parking facility. The Project utilized a “construction manager at risk” delivery method, a concept that evolves into more detail as the development process progresses; thus, the components of the Project were not fully designed when DGS released the draft EIR (DEIR) in 2019. Even though DGS later recirculated the draft EIR (RDEIR) to reflect changes to the visitor center design, more detailed designs and modifications to the Project were not evaluated until the FEIR was released. In the FEIR, the annex’s exterior was designed to include a “glass curtain wall,” and the location of the underground parking facility was changed from south of the Capitol to east of the new annex. The FEIR also further clarified the Project’s impacts on trees and landscaping, and revised tree removal and transplantation estimates upwards. The FEIR determined that these modifications would not result in any new significant impacts, and that none of the modifications constituted “significant new information” requiring additional recirculation of the EIR.

Two groups, Save Our Capitol! and Save the Capitol, Save the Trees (collectively Plaintiffs), filed separate petitions for writ of mandate alleging CEQA violations, and the trial court denied both. Plaintiffs appealed, and their appeals were consolidated.

Project Description

On appeal, Plaintiffs argued that changes to the location of the underground parking structure and the annex’s exterior glass design features, that were not disclosed until the FEIR was released, rendered the EIR’s project description inadequate, unstable, and vague. Plaintiffs alleged that DGS failed to meaningfully analyze whether the new annex’s glass exterior was compatible with the Capitol’s historic characteristics. They also argued that, by waiting to disclose the annex’s design until the FEIR was released, DGS denied the public the opportunity to meaningfully comment. Noting that the issue here was primarily about how much a project may change after a draft EIR is circulated before the project description is no longer accurate, stable, or finite, the Court analyzed the authority closest to the present case, Southwest Regional Council of Carpenters v. City of Los Angeles (2022) 76 Cal.App.5th 1154 (Carpenters).

In Carpenters, the court held that a mixed-use commercial/residential project that changed the composition and ratio of the residential to commercial footprint after the FEIR was released was not so different from the project alternatives in the EIR to conclude that the project definition was unstable. Much like Carpenters, the Court here determined that changes to the Project, such as moving the location of the underground parking garage, were not the type of changed project description that would violate CEQA as it was an original project component and consistent with the Project’s objectives. However, unlike the project in Carpenters, the Court found that the Project here concerned potential impacts to a “treasured historical resource,” i.e., the Capitol, and that the Project’s appearance was a critical factor in determining whether the Capitol would be impacted. Because the actual design of the “glass curtain” was not revealed until the FEIR, the Court found that the public was foreclosed from meaningfully commenting on the most controversial aspect of the Project – “its impact on historical resources.” The Court concluded that DGS did not comply with CEQA when it changed the project description of the annex’s exterior design in the FEIR.

Impacts on Cultural Resources

Plaintiffs argued that DGS’s findings that the Project would have significant and unavoidable impacts to cultural resources, along with the accompanying statement of overriding considerations, was legally inadequate because these findings were based on a flawed analysis of the Project’s impacts to historical resources. Citing “numerous defects” in the EIR that were discussed in their opening brief such as the unstable project description, inadequate alternatives analysis, and DGS’s need to recirculate the EIR, Plaintiffs contended that these general flaws left “numerous potential impacts, mitigation measures, and alternatives unstudied.” Except with regard to the EIR’s flawed historical resources analysis due to lack of public comment on the annex’s exterior design, the Court found that the EIR otherwise adequately discussed the Project’s impacts on the Capitol as a historical resource, and that Plaintiffs’ “conclusory” statements did not show otherwise.

Projects Impacts on Trees and Birds

Without citing to a statute, CEQA guideline, or reported case law, Plaintiffs alleged that the EIR violated CEQA because it did not include an inventory or identify every plant or tree that the Project might affect. The Court rejected this argument, finding that the EIR provided an adequate explanation of the trees that would be affected by the Project. The Court determined that this information went into sufficient detail, regarding the number, types, and location of trees that were to be transplanted or removed on the Capitol grounds, to adequately inform decision-makers and the public of the Project’s impacts. The Court also rejected Plaintiffs’ contention that the EIR did not disclose how construction might impact remaining trees by compacting their root zones, holding that, although the EIR did not address root compaction specifically, it did analyze potential impacts to retained trees and contained measures to mitigate these impacts.

In response to Plaintiffs’ argument that these mitigation measures improperly relied on the formulation of a future plan and the City of Sacramento’s tree ordinance to mitigate the impact to trees, the Court noted that CEQA allows for reliance on a future plan as mitigation so long as the local agency committed itself to the plan, adopted specific performance standards, and identified the types of actions that could achieve those performance standards. Here, the Court found that DGS’s reliance on state standards and the City’s tree ordinance, which required DGS to meet established performance standards, met CEQA’s requirements for future mitigation plans.

Plaintiffs also alleged that the EIR’s analysis of biological impacts was inadequate because it failed to evaluate how the Project would expose birds to death by bird strikes, especially considering the new annex’s glass exterior. The Court rejected this argument, finding that the annex’s glass exterior would have a “frit pattern” coating that would reduce the likelihood of strikes. Further, the Court found that substantial evidence supported the EIR’s conclusion that substantial avian mortality, including to protected species, was not expected to occur.

Impacts on Aesthetics, Light, and Glare

Plaintiffs argued that the EIR’s determination that the mostly-underground visitor center would not impact the view of the Capitol’s west façade, as seen from the Capitol Mall, was not supported by substantial evidence because the EIR did not contain elevations or other means of evaluating the center’s visual impact on the protected scenic vista. Observing that the importance of considering aesthetic impacts to both the Capitol complex and the view of the west façade of the Capitol “cannot be overstated,” the Court noted that the EIR did not include a grade view of the Capitol’s west façade that included a depiction of the visitor center. Although CEQA does not expressly require visual simulations, in this instance, the Court found that the EIR’s lack of visual depictions of the aboveground portions of the visitor center failed to provide decision-makers and the public with sufficient information to meaningfully consider the center’s impact on the scenic vista. Dissenting only to this issue, Justice Mauro opined that it was within DGS’s considerable discretion to choose the manner of EIR discussion, and that DGS provided extensive details, including a number of visual depictions, which should have allowed for meaningful consideration of the issues raised by the Project.

Plaintiffs also contended that the EIR failed to analyze light and glare from the new annex’s glass exterior because the exterior design was not disclosed until the FEIR was released. Although the FEIR states that the Project would meet CALgreen standards, which limits light and glare generated from state-owned buildings, Plaintiffs argued that compliance with building standards did not excuse DGS from analyzing the Project’s impacts regardless of compliance with these standards. The Court agreed, finding that the use of specific materials, while potentially adequate as mitigation, did not excuse DGS’s failure to inform the public and decision-makers of meaningful information by analyzing the light generated by the new annex and how it affected aesthetics within the Capitol complex.

Impacts to Traffic, Utilities, and Service Systems

Plaintiffs argued that the EIR assumed without substantial evidence that the construction of the new annex would not result in higher occupancy and more vehicle trips, even though the new annex would be more than twice the size of the current one. The Court rejected this argument, finding that substantial evidence supported the EIR’s contention that the number of employees and visitors to the Capitol would not change as a result of the new annex, and the excess space was due to the addition of modern facilities to support legislative functions. The Court also rejected Plaintiffs’ contention that the EIR did not adequately analyze traffic impacts associated with constructing the Project. In doing so, the Court found that the EIR’s detailed analysis of construction-related traffic impacts along with the development of a traffic management plan that was to be approved by the City’s traffic engineer represented substantial evidence supporting the EIR’s finding of less than significant traffic impacts.

Focusing on the increase in the annex’s size, Plaintiffs alleged that the EIR failed to consider the Project’s long-term demand on water, electricity, sewage and solid waste disposal. Noting that the demand for water and wastewater was tied to the number of facility occupants and visitors, and that the EIR’s determination that these number would not change was supported by substantial evidence, the Court found that the Plaintiffs had offered no evidence to rebut these findings. Further, the Court held that the EIR’s determination that the Project would have less than significant impacts on the City’s water supply, landfills, and sewer system was adequately supported given the City’s surplus supply of water, ample landfill capacity, and ongoing infrastructure improvements to the sewer system.

Alternatives Analysis

Due to the decision to relocate the underground parking facility from south of the Capitol to the east of the new annex in the FEIR, Plaintiffs argued that the EIR should have included an alternative that moved the visitor center to the south lawn to avoid significant and unavoidable impacts to the historic west lawn of the Capitol. The Court found that the omission of an alternative locating the visitor center to the south lawn, given that the parking garage had moved from the south to the east and design changes had been made to the visitor center, prejudicially affected the EIR’s consideration of a range of alternatives.

Recirculation

Finally, Plaintiffs made a number of arguments regarding the need to recirculate the EIR. Because the Court had already determined that the revised project description, historical resource and aesthetics analyses, and alternatives analysis would have to be addressed in a new environmental document on remand, the Court only considered whether the disclosure in the FEIR of the Project’s enlarged boundaries for parking garage ramps and greater impacts on trees should have triggered recirculation.

Instead of removing 20-30 trees as contemplated in the DEIR, the FEIR determined that the Project would affect a total of 133 trees and require the removal of 56 trees. Plaintiffs argued that no substantial evidence supported DGS’s determination not to recirculate in light of this substantial increase in the impacts to the trees onsite. Considering that the difference in removed trees in the DEIR and FEIR only represented a three percent increase compared to the 850 trees in Capitol Park, the Court found that this increase was merely an amplification of the information already disclosed in the previous EIR, and that DGS’s determination not to recirculate was supported by substantial evidence. The Court also rejected the argument that the FEIR’s citation to a cultural landscape evaluation of Capitol Park required recirculation as the study did not identify any new impacts or the increased severity of an impact that was not already identified in the FEIR.

After the Project’s boundaries were expanded to accommodate entry and exit ramps for the underground parking facility to the east of the Capitol, the FEIR stated that the areas within the expansion did not contain any habitat or biological resources different from those already identified as affected by the Project. Plaintiffs argued that this statement did not support DGS’s determination not to recirculate because these changes would exacerbate the existing impacts of the Project. Noting that Plaintiffs failed to describe exactly how the boundary change exacerbated the Project’s impacts, the Court found that recirculation was not triggered by simply worsening impacts, but by significant new information that a substantial increase in the severity of an environmental impact would occur. The Court held that Plaintiffs failed to show any evidence that the expanded boundaries would substantially increase the Project’s environmental impacts, and that DGS’s decision not to recirculate was supported by substantial evidence.

Remedy

After the Court’s opinion was filed, DGS petitioned the Court for rehearing, requesting that it be allowed to proceed with demolition while the identified defects in the EIR were corrected. The Court granted rehearing, vacated its opinion and issued a new opinion granting the requested relief. The Court found severance of demolition of the activities proper under CEQA’s remedies statute (Pub. Resources Code, § 21168.9), and ordered the lower court’s writ to direct only partial decertification of the EIR, allowing demolition of the existing annex to proceed.

Though the split in authority is not addressed in this opinion, the Courts of Appeal have disagreed on whether partial decertification of an EIR is allowed under CEQA. Two published opinions from the Fifth District have found it to be prohibited whereas published opinions from the Second and Fourth Districts have reached the opposite conclusion. (See Sierra Club v. County of Fresno (2020) 57 Cal.App.5th 979, 987-989 [describing the split in authority and rejecting the validity of partial decertification].) This opinion now adds the Third District to the list of courts that have published opinions finding partial decertification of an EIR to be appropriate.

Key Points

• Courts may apply the stable project description test to recirculation issues.
• Aesthetic project changes in an FEIR may require recirculation if they preclude public comment on changes to historic or cultural resources.

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