In its February 14 decision (certified for publication on March 15) in Residents Against Specific Plan 380 v. County of Riverside, the Fourth Appellate District upheld the County of Riverside’s (“County’s”) approval of a master-planned community. The opinion provides helpful guidance for lead agencies and applicants in understanding when changes made to a project in direct response to public comments after publication of a Final EIR do not necessitate recirculation. The decision also reaffirms that where defects in a notice are not prejudicial, unwinding of the approval is not required.
The case involves a proposed 200-acre development in the French Valley region of Riverside County, containing a mixture of residential, mixed use, commercial, and open space uses (“Project”). The Project, which was proposed by the Hanna Marital Trust (“Trust”), required approval of a specific plan (known as Specific Plan 380), a general plan amendment, and a zoning change.
On November 5, 2013, the County Board of Supervisors certified the Project’s EIR, adopted Specific Plan 380, amended the General Plan, and adopted a zoning change for the Project. However, the project description in the Notice of Determination (“NOD”) inaccurately described the final project in several respects. The project opponent, Residents Against Specific Plan 380 (“RASP”), filed a petition for writ of mandate challenging the County’s approval of the Project. The trial court denied the petition on all grounds and entered judgment in favor of the County.
The primary claims asserted by RASP related to: (1) changes made to the Project after publication of the Final EIR that RASP alleged required recirculation of the EIR; (2) earlier actions taken by the Board of Supervisors that RASP contended constituted “approval” of the Project; (3) errors in the NOD for the Project; (4) the County’s decision not to adopt mitigation measures proposed in public comments; and (5) the EIR’s analysis of impacts of the development of the mixed-use planning area. The Fourth District rejected all of RASP’s arguments and affirmed the trial court’s decision.
Project Changes Made after Publication of the Final EIR Did Not Require Recirculation
Initially, the Draft EIR for the Project divided the property into eight geographic planning areas: two commercial retail planning areas; two commercial office planning areas; one low-density residential planning area; one medium-density planning area; one mixed-use planning area; and one open-space conservation planning area. The draft EIR specified the acreage for each planning area, allocated uses among them, and ultimately concluded that all potentially significant environmental impacts associated with the project—with the exception of noise and air quality impacts—would be reduced below the level of significance after mitigation.
After publication of the Final EIR, the County made a series of changes to the Project in response to public comments, including comments submitted by RASP, both before and after an initial hearing before the Planning Commission. The revised Project was then presented to the Planning Commission for a second time in October 2012, at which time Planning staff concluded that recirculation of the EIR was not required as a result of the changes to the Project. Thereafter, the Planning Commission recommended approval of the Project and certification of the EIR by the Board of Supervisors.
The Board initially considered the Project and the Final EIR on December 11, 2012. At the hearing, one of the supervisors recommended changing the land-use designation for the Project’s planning area 5 from medium-density residential to mixed use. The purpose of the modification was to move denser development away from existing low-density residential areas by transferring development from the edges of the project to the center of the property. The County again evaluated whether the revision triggered recirculation, and concluded it did not. At a subsequent hearing on December 18, the Board voted to accept the Planning Department’s recommendation to tentatively certify the Final EIR and approve the Project. In November 2013, after modifications to the Project were finalized, the Board approved the project, certified the EIR, approved a statement of overriding considerations (“SOC”) addressing noise and air impacts that could not feasibly be mitigated below a level of significance, and approved a mitigation monitoring and reporting program (“MMRP”).
RASP contended that the County was required to recirculate the EIR because the change in designation for planning area 5 would cause increased traffic and biological impacts, and the redistribution of uses would create land use inconsistencies. The appeals court disagreed, finding that substantial evidence supported the County’s decision. The Court explained that the project changes related to allocation and arrangement of uses within the Project site, not the “kinds of uses permitted or the overall extent or density of the proposed development,” that the project footprint was not modified, and that the “same 61.1 acres remain designated for open space conservation.” Moreover, the County’s expert addressed the issues of increased trip generation, and the expert’s conclusions were supported by the record.
As to RASP’s argument that the EIR should have evaluated the changes in traffic patterns, the appeals court held that traffic circulation patterns need not be evaluated in the EIR. With regard to biological resources, the Court again concluded that the County’s consultants adequately evaluated those impacts and properly concluded that the EIR sufficiently evaluated the impacts of mixed use development adjacent to a conservation area. Finally, the Court rejected RASP’s argument concerning inconsistent land uses, pointing out that RASP failed to articulate any potential inconsistencies, and that record evidence supported the conclusion that relocating denser uses away from the edges of the development would actually reduce impacts to land use incompatibility.
For these reasons, the appellate court concluded that the trial court was correct in finding that recirculation of the EIR was not required, as none of the criteria specified in CEQA Guidelines section 15088.5 had been met.
Effect of County’s Earlier Actions
RASP also asserted that the County Board of Supervisors’ action on December 18, 2012 constituted “approval of the Project,” and, as such, the County improperly modified the project following approval and failed to concurrently adopt findings of fact, an SOC, and an MMRP. The Court rejected both arguments, finding that the record demonstrated that the Board’s vote on December 18 had only provided tentative approval of the EIR and the Project, that the Board had specifically directed its staff to “prepare the necessary documents for final action,” and that final approval was not given until November 2013, at which time the County properly adopted findings, an SOC, and an MMRP.
Deficiencies in the NOD
Both RASP and the County agreed that the NOD contained inaccuracies with regard to the Project description. The NOD improperly referenced the Project as it existed after the Planning Commission’s October 2012 changes, but before the Board of Supervisors’ changes in December 2012. RASP asserted these errors were prejudicial, requiring unwinding of the Project approval.
The Fourth District noted that the purpose of an NOD is to start the 30-day statute of limitations period, and that the period will not begin to run where the NOD is substantively defective in failing to properly describe the lead agency’s actions. The Court stated that review of the adequacy of an NOD is under the “substantial compliance doctrine,” which means “actual compliance” with the “substance essential to every reasonable objective of the statute even though it may contain technical imperfections of form.” The Court held that the errors in this instance did not justify “unwinding the County’s approval,” since the NOD otherwise provided adequate notice of the Project and its location, the date of the approval, and the County’s findings. The Court also found that the Project description was “close enough” to the Project as approved. Finally, and “more importantly,” RASP could not show that the errors were prejudicial, as RASP timely filed its petition. The remedy afforded to petitioners where an NOD is insufficient is to hold the statutory period does not apply—yet that remedy would provide no relief to RASP.
County’s Decision Not to Adopt Certain Mitigation Measures
RASP claimed that the County’s refusal to adopt suggested mitigation measures for air quality and noise impacts based on infeasibility findings was unsupported by evidence in the record.
With respect to air quality, RASP first pointed to a comment from the South Coast Air Quality Management District, suggesting that construction equipment meet Tier III standards. The EIR responded by stating that the “applicant did not anticipate the reasonable availability of equipment meeting the more stringent requirements.” RASP contended this conclusion was not supported by any evidence. The appeals court disagreed and found the County’s stated reason—without additional underlying evidence—was sufficient.
Next, RASP pointed to the City of Temecula’s (“City’s”) suggestion that mitigation measure AQ-12 should refer to compliance with 2010 Title 24 Energy Codes, instead of stating that the Project would be required to exceed the 2008 code version. The County responded to the City by stating that the Project would be required to “comply with the California Energy Code in effect at the time of construction.” The appeals court held that this explanation was sufficient.
RASP also claimed that the County failed to adopt the City’s suggested mitigation measures related to the 2010 California Green Building Standards. The City had suggested that the County “require prescriptive mitigation measures, such as attic fans, whole house fans, and photovoltaic, solar water heaters.” The County responded that a “performance standard was adopted” instead, which would “allow the applicant to tailor implementation to best fit the final project design and technology available at the time of construction.” The Court, again, upheld the County’s determination, finding that it provided an adequate basis for refusing to adopt the City’s proposed measures.
Finally, RASP claimed the County should have adopted its suggested measures to address noise impacts, namely the installation of temporary noise barriers, using electric construction equipment, prohibiting construction vehicles from idling for more than three minutes, resurfacing roads, banning trucks near vibration sensitive uses, and using rubberized asphalt. The appeals court held that not only were RASP’s proposed measures provided in late comments, and thus the County had no obligation to provide written responses, but the County’s rejection of these measures was supported by the record, since the measures would require equipment that may not be available or would duplicate existing requirements.
EIR’s Analysis of Impacts of Mixed Use Area
Finally, RASP asserted that the Final EIR analyzed the impacts of development of a Continuing Care Retirement Community (“CCRC”) as part of a mixed-use planning area, but the County’s approval of the Project does not require that the area be used for a CCRC, and developers could choose to build other commercial or residential uses that would generate greater impacts. The Court summarily rejected RASP’s argument, finding that the EIR clearly stated that “if the developer decides not to build a CCRC and seeks to pursue other permitted options, it could do so only if the proposed uses ‘are compatible with the adjacent planning areas, and if no additional environmental impacts would occur.’” Thus, the County’s decision to limit the scope of analysis to the CCRC was based on substantial evidence, and it was not required to undertake an environmental analysis of what were “merely possible development schemes.”
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