First District Rejects CEQA Challenge To City of Napa’s Reliance On Prior General Plan EIR For Housing Element Update Project

by Miller Starr Regalia
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The EIR has long been the judicially-proclaimed “heart of CEQA” because it represents the culmination of the statute’s environmentally-protective purposes and objectives. Yet the legal “expiration date” for the document embodying CEQA’s highest purposes is often subject to debate and confusion. A public agency’s reliance on an “old” EIR is inherently fraught with the risk of legal challenge by project opponents. But, as a recent First District decision reminds, such reliance may be perfectly proper under CEQA’s applicable rules, which focus in this context on not “reinventing the wheel” – the “wheel” being the EIR – without very good reason to do so; they also defer to the lead agency’s reasoned decision in this regard.

In Latinos Unidos de Napa v. City of Napa (1st Dist., Div. 1, 10/10/13), ___ Cal.App.4th ___, 2013 WL 5917661, the Court of Appeal affirmed the Napa County Superior Court’s judgment denying a petition for writ of mandate by an unincorporated association (“LUN”). LUN’s action challenged under CEQA the City of Napa’s reliance on its 1998 General Plan Program EIR to serve as its CEQA review document for its 2009  Housing Element Update Project. The Court found City’s reliance proper despite the fact that the EIR relied on was over a decade old.

Public Resources Code § 21166, and its implementing Guidelines § 15162, “mandate that once a public agency has prepared an EIR for a project, no further EIR is required unless either (1) substantial changes are proposed in the project that will require major revisions of the EIR, or (2) substantial changes occur with respect to the circumstances under which the project will be undertaken that will require major revisions in the EIR, or (3) new information, which was not known and could not have been known when the EIR was certified, becomes available.” Also, where an agency prepares a “program EIR” for a broad policy document – e.g., a local general plan, which is a City’s or County’s land use “constitution” – CEQA allows the agency to limit future environmental review for later activities found to be “within the scope” of the program EIR.

In this case, the City of Napa adopted a comprehensive update of its general plan (Envision Napa 2020) in 1998, which included updates to all elements except the Housing Element, which was contemplated to be updated in 2001, and was, in fact, subsequently updated and/or amended in 2001 and 2005.

In 2008, City began the process of again updating its Housing Element through a project which would revise its existing Land Use and Housing Elements and make various related zoning amendments to implement the updates and comply with State law. It conducted an Initial Study describing the Project actions, which included: increasing the minimum residential densities in 7 areas zoned “mixed use” or “community commercial” (from 10-40 to 20-40 units per acre); and increasing by 88 total units permitted densities for 8 multifamily sites located in 3 areas of the City. The Initial Study also analyzed the extent to which the Project’s changes could result in any new or different environmental impacts not already analyzed in the 1998 EIR for the 2020 General Plan EIR, and concluded the Project was “within the scope of” the 1998 EIR and required no further review.

The City received one comment letter with an attached traffic engineer’s letter asserting the 1998 EIR’s traffic impacts information was outdated and that a supplemental EIR should be prepared. The City’s Principal Planner and Public Works Director prepared a detailed memo in response, disagreeing with the commentor’s letters as “misleading and inaccurate” and relying on “incorrect and/or incomplete” information. The City Council found the update Project “within the scope” of the 1998 Program EIR, and that it would not result in any new significant environmental impacts that were not identified and mitigated through that prior EIR, and it approved the Project.

Key points of the Court of Appeal’s decision affirming the trial court’s judgment upholding the City’s actions were:

  • The traditional deferential “substantial evidence” standard of review – rather than the low threshold “fair argument” test – applied to the City’s decision under Public Resources Code § 21166 whether to require a subsequent or supplemental EIR for the Project. The City’s decision must be upheld if substantial evidence in the administrative record supports “the determination that the changes in the project or its circumstances were not so substantial as to require major modifications of the EIR.”
  • In other words, “the statutory presumption flips in favor of the [agency] and against further review…. [S]ection 21166 comes into play precisely because in-depth review has already occurred, [and] the time for challenging the sufficiency of the original EIR has long since expired….” (quoting Moss v. County of Humboldt (2008) 162 Cal.App.4th 1014, 1049-1050.)
  • In reviewing an agency’s determination of the threshold question whether the project under review is a “new” one (in which case Public Resources Code § 21151 and the “fair argument” test would apply), or whether it is a “modification of a previously reviewed project” (thus invoking § 21166 and the “substantial evidence” test), the Court treated the issue as falling under § 21166’s “substantial evidence” standard rather than as a question of law subject to do novo review. In doing so, it noted a split between the Courts of Appeal on the issue, and sided with those courts showing deference to the agency’s “determination about the environmental impact of changes to a project.”
  • Even though City’s Housing Element was revised after the 1998 General Plan EIR, in 2001, the Project’s relevant changes (i.e., those allegedly producing the environmental impacts LUN complained of) were to the Land Use Element, which was fully revised, updated and analyzed in the 1998 EIR; thus, there could be no dispute that that aspect of the Project was clearly a modification to the General Plan adopted in 1998 and that substantial evidence thus supported City’s decision to proceed under Public Resources Code § 21166.
  • Plaintiff LUN failed to carry its burden of showing no substantial evidence supported City’s decision to refrain from preparing an EIR. The Court of Appeal agreed with the trial Court’s conclusion that LUN waived any right to bring a substantial evidence challenge, because it failed to set forth and discuss all relevant evidence – including all evidence supporting City’s decision, and not merely its own contrary evidence.
  • In light of plaintiff’s failure, and the fact that the evidence showed many residential projects in the City had developed at much lesser density than allowed and analyzed under the 1998 General Plan and EIR, Plaintiff did not demonstrate “how the Project’s impacts are so different from, or more severe than, the impacts identified in the 1998 Program EIR so as to require further review.”
  • Plaintiff’s remaining challenges were “procedurally barred for failure to raise them in the administrative proceedings before the City and because plaintiff did not raise them in the trial court.”

As can be seen, the “heart of CEQA” can beat strongly for many years to support later projects “within its scope.”

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Miller Starr Regalia
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