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

by Miller Starr Regalia

In a rare grant of review of an unpublished case, the California Supreme Court granted review on January 15, 2014 of the decision in Friends of the College at San Mateo Gardens v. San Mateo County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

Miller Starr Regalia on:

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