No Need To Address Adjacent Project In EIR Because Projects Are Separate, Have Different Proponents, And Serve Different Purposes

A city certified an environmental impact report (“EIR”) for development of a park.  A conservancy group claimed the city wrongly defined the project to exclude a residential and commercial development project that was pending on property adjacent to the park.  The court of appeal held that the project definition in city’s EIR properly excluded the neighboring development because the development is not a reasonably foreseeable consequence of the city’s park project.  (Banning Ranch Conservancy v. City of Newport Beach (--- Cal.Rptr.3d ----, Cal.App. 4 Dist., December 12, 2012).

Facts

The City of Newport Beach (“City”) bought land that abuts land commonly known as Banning Ranch.  Banning Ranch is controlled by Newport Banning Ranch, LLC, and covers more than 400 acres that are primarily undeveloped.  City adopted a general plan in 2006 that included specific policies for its Sphere of Influence, which included Banning Ranch, and represented City’s long-term intentions for Banning Ranch should it be annexed to City.  The general plan provides that City will support efforts to acquire Banning Ranch for use as permanent open space, “[b]ut failing that, the general plan contemplates developing Banning Ranch.”  City’s “Master Plan of Streets and Highways” shows two unbuilt primary roads on Banning Ranch.

City announced in March 2009 that it would be acting as lead agency to prepare an EIR for the Newport Banning Ranch Project (“Ranch Project”), which proposes the development of up to 1,375 residential dwelling units, 75,000 square feet of commercial uses, and 75 overnight resort accommodations.  The majority of the 401-acre Ranch Project site is located in an unincorporated area of Orange County and would need to be annexed to City.  The Ranch Project needs an access road.  City stated the primary entrance would be from the West Coast Highway, which may require a widening of a portion of the highway.  Bluff Road would be constructed as part of the Ranch Project from a southern starting point of West Coast Highway to 19th Street and would serve as the primary road through the Ranch Project site.  Bluff Road would be a “Primary Arterial,” which is usually a four-lane divided roadway.  In the notice of preparation, the City repeatedly referred to its plan to build a proposed park, Sunset Ridge Park, contiguous to the Ranch Project site’s southeastern boundary. 

Two months after City issued the notice of preparation for the Ranch Project, it issued a notice of preparation for the Sunset Ridge Park Project (“Park Project”).  The Park Project’s notice of preparation proposed to develop a site of approximately 18.9 acres for active and passive recreational uses.  The proposed access road for the Park Project would be constructed from West Coast Highway through the Newport Banning Ranch site.  City issued a draft EIR for the Park Project in October 2009. 

Banning Ranch Conservancy (“BRC”) submitted comments during the public review period in which they contended the draft EIR had “piecemealed” the Park Project because it failed to acknowledge the full extent of the project.  BRC claimed the “park access road” in the Park Project’s draft EIR appeared to be the same as Bluff Road in the notice of preparation for the Ranch Project.  City disagreed that the Ranch Project is part of the Park Project and maintained the two projects are distinct.  City asserted “the Banning Ranch easement for the park access road ‘is intended to be independent and does not presuppose development by the Newport Banning Ranch applicant.’”  The City Council passed a resolution certifying the final EIR.  Newport Banning Ranch, LLC, agreed to grant City a nonexclusive easement to build and maintain an access road to the park.  City agreed that it would “design and construct the Access Road Improvements from West Coast Highway to [the park] and match the proposed vertical and horizontal alignment of the east side of the proposed Bluff Road.” 

BRC filed a petition for writ of mandate.  The trial court denied the petition and found that the Park Project had not been piecemealed. 

Decision

The court of appeal affirmed the decision of the trial court.  The appellate court found that the definition of the project in the Park Project’s EIR properly excluded the Ranch Project.  The Ranch Project was “not a reasonably foreseeable consequence of the park” and the projects “are separate projects with different proponents, serving different purposes.” 

The California Environmental Quality Act (“CEQA”) “forbids the ‘piecemeal’ review of significant environmental impacts of a project.”  The “piecemealing test” set forth by the California Supreme Court provides: “[A]n EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.”  Improper piecemealing may occur if the purpose of the project that is being reviewed is the first step toward future development or where the “the reviewed project legally compels or practically presumes completion of another action.”  However, “two projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects have different proponents, serve different purposes, or can be implemented independently.”

The Ranch Project is “reasonably foreseeable” and “will likely change the scope or nature of the initial project or its environmental effects.”  The court concluded, however, that the Ranch Project is not a consequence of the Park Project.  The Park Project is not being built to induce the Ranch Project because the Ranch Project has already been planned.  The access road for the Park Project only modestly furthers the Ranch Project. 

The court found no piecemealing.  The Park Project and Ranch Projects have different proponents and they serve different purposes.  The Park Project’s purpose is to provide existing residents with recreational opportunities and the Ranch Project’s purpose is to develop a new neighborhood. 

The court rejected BRC’s contention that no roads will be built across Banning Ranch if it is acquired for open space.  A transportation study indicates that roadways must be built even without development.

The court of appeal concluded that the Park Project’s EIR adequately defines the project without inclusion of the Ranch Project.  The two projects are separate projects.  The court of appeal further concluded that the EIR adequately addresses the Park Project’s environmental impacts including cumulative traffic impacts, growth-impact, cumulative biological impacts, the California gnatcatcher habitat impact, and the project’s consistency with the Coastal Act.    

The court of appeal rejected BRC’s claim that the EIR insufficiently addressed the cumulative impact that the projects may have on traffic.  BRC noted that the traffic analysis in the draft EIR lists the Ranch Project as one of “the reasonably foreseeable projects in the [Park] Project vicinity,” but “the actual cumulative impact analysis fails to account for any traffic from the Ranch Project.  The court determined the final EIR’s traffic cumulative impact analysis was reasonable and practical.  According to the City, “the park access road was consistent with the general plan” which “‘assumed worst case conditions, including alternate residential and commercial development on the Banning Ranch property,’ and analyzed the traffic impact from the proposed Bluff Road and its intersection with West Coast Highway.”  The traffic signal analysis in the Park Project’s EIR to some extent addresses the cumulative impact of the Bluff Road and the park access road.  The court stated, “To be sure, the cumulative impact analysis in the park EIR could have been set forth more directly.”  However, the court noted “an EIR need not achieve ‘perfection.’”

The court also concluded that the EIR adequately addressed the Park Project’s impact on the California gnatcatcher habitat.  The California gnatcatcher is a threatened bird.  The Park Project’s EIR analyzed the impact of the project on the gnatcatcher’s habitat and noted that the site for the Project “is within Critical Habitat units defined by the U.S. Fish and Wildlife Service . . . for the coastal California gnatcatcher” and that the western portion of the project site “also supports the federally listed threatened coastal California gnatcatcher.”  The draft EIR acknowledges that the Park Project is expected to impact a total of 0.68 acre of habitat for the gnatcatcher.  The Project is expected to impact 0.14  acre southern coastal bluff scrub, 0.48 acre disturbed mule fat scrub/goldenbush scrub, and 0.06 acre willow scrub.  The draft EIR states, “The Encelia scrub, Encelia scrub/ornamental, and disturbed Encelia scrub on the Project site would not be considered utilized by the gnatcatcher due to the periodic mowing and traffic/pedestrian edge effects in this area.”  The EIR concluded that implementation of mitigation measures would reduce the impact on this species to a less than significant level.

The court found there was substantial evidence to support the determination that the Park Project would only significantly impact 0.68 acres of habitat.  The court concluded that “the observations and opinions of the City’s biologist sufficiently support the determination that all but 0.68 acres of the habitat was so degraded its loss would not be substantial.”  BRC claimed the scrub was degraded due to illegal mowing and that the mowing could be stopped.  The court found that the environmental impacts of a project “‘should be examined in light of the environment as it exists when a project is approved,’ and any illegal activities affecting the baseline environmental condition are best addressed by enforcement agencies.”  The court further found that there is substantial evidence to show that the mitigation measures were adequate.  The court explained mitigation measures do not have to account for every square foot of impacted habitat in order to be adequate.  What is important “is that the unmitigated impact is no longer significant.”  Also, “the fact that mitigation will be implemented over time does not mean the City has improperly deferred mitigation.”

 

 

Topics:  CEQA, Environmental Impact Report, Permits, Project Definition

Published In: Civil Procedure Updates, Environmental Updates, Commercial Real Estate Updates, Zoning, Planning & Land Use Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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