Minor General Plan Housing Element Update Does Not Require New EIR

In the interests of finality, the California Environmental Quality Act (“CEQA”) places limits on additional environmental review once a government agency has already completed environmental review for a project.  After an environmental impact report (“EIR”) or negative declaration has been adopted, Public Resources Code section 21166 (“section 21166”) forbids a lead agency to require a subsequent or supplemental environmental impact report or negative declaration unless substantial changes are proposed for the project, substantial changes occur to the circumstances under which the project is undertaken, or new information becomes available which was not known when the environmental impact report was certified or adoption of the negative declaration.

Also, CEQA regulations allow for a “program EIR,” a type of EIR for “a series of actions that can be characterized as one large project.” (CEQA Guidelines §15168.)  This type of EIR is often used for ongoing government policies or programs such as a regulatory program or a city or county general plan.  Under a program EIR, a lead agency may avoid preparing a new environmental document if an activity within the scope of the program EIR will not generate new environmental effects or require new mitigation measures.  (CEQA Guidelines §15168 (c)(2).)

In a recent case, the First District Court of Appeal clarified that no subsequent or supplemental EIR should be prepared for a general plan element update that would not generate new or more severe environmental impacts than those already analyzed in the general plan’s program EIR.  (Latinos Unidos De Napa v. City of Napa (2013) 221 Cal.App. 4th 192).

The City of Napa (“City”) approved an update to the housing element of its general plan along with related changes to its land use element and zoning (“project”).  The City determined that the housing element update and zoning changes were within the scope of a program EIR the City had prepared eleven years earlier for its general plan in 1998.  On that basis, the City concluded there was no need to prepare an EIR for the project.  A community group sued, claiming that the project would result in significant environmental effects and that an EIR should be prepared.  The trial court disagreed with the community group, holding that the City had properly found that the project was within the scope of the 1998 program EIR, that the community group had waived its right to challenge the City’s evidence by not setting it forth in its opening brief, and that even if it had not waived its right, the City's findings were supported by substantial evidence.  The court of appeal affirmed the trial court decision.

The appellate court rejected the community group’s argument that the stricter “fair argument” test applied to the City’s decision that no new EIR was required.  The court observed that judicial review of an agency decision under section 21166 requires application of the more deferential substantial evidence standard.  The community group cited the case Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, in which a county had certified a program EIR for a resource management plan that regulated mining, then, years later sought to amend the EIR to allow for a mining project on agricultural land expressly exempted in the EIR.  In Sierra Club, the court ruled that the fair argument standard applied because the change in the proposed use was outside the scope of the program EIR, so that section 21166 did not apply.

The appellate court stated that the facts of Sierra Club were distinguishable from the case at hand.  The project to update the housing element did not propose “any site-specific plans or any other actual changes to a designated area” and was within the scope of the 1998 general plan program EIR.  Thus, section 21166 and the substantial evidence standard applied to the housing element update.

The appellate court observed that state appellate courts are split on the standard of review to apply in reviewing an agency’s determination of whether a project is new (in which case Public Resources Code 21151 applies) or whether it is a modification of a previously reviewed project (section 21166 applies).  The appellate court applied section 21166 and the deferential substantial evidence test to the City’s decision not to prepare a new EIR.  The court found that substantial evidence did support the City’s decision.  The court pointed out that the project consisted only of limited amendments to the general plan’s housing and land use elements and minor amendments to the City's zoning ordinances, and no approval of any actual development.

The appellate court supported the trial court’s ruling that the community group waived its right to challenge the City’s findings because the group failed to carry its evidentiary burden to set forth all material evidence in the administrative record, not just its own evidence.  For example, the group merely asserted that the City did not study impacts of density changes, rather than presenting the City’s actual analysis and then addressing why it was inadequate.  The group also stated that its traffic expert’s evidence was undisputed, rather than presenting the City public works director’s response to the traffic expert.

The court also upheld the trial court’s decision that even if the community group had not waived its right to challenge the City’s evidence, the community group’s arguments on the merits of the case would still fail.  The appellate court concluded that substantial evidence supported the City’s decision that, according to section 21166, no new EIR could be prepared for the project to update the housing element because the update would not generate new or more severe environmental impacts than those already analyzed.  The court pointed out that the proposed general plan amendments and zoning changes only increased the minimum densities allowed in certain areas, so the project would not push density beyond the maximums already analyzed in the 1998 EIR.  While the project did propose an increase in the permitted density for eight multi-family sites by a total of 88 units, the City had issued far fewer residential building permits than had been anticipated in the 1998 EIR, and many projects had been developed at a lower density than allowed under the general plan.  Thus the additional units would not generate environmental effects greater than those already analyzed in the 1998 program EIR, and preparation of a subsequent or supplemental EIR was prohibited according to section 21166.