New Alternative Does Not Trigger Recirculation of Draft EIR Unless Considered "Significant New Information"

by Stoel Rives LLP

In South County Citizens for Smart Growth v. County of Nevada, the Third Appellate District held that South County Citizens for Smart Growth’s (“Smart Growth”) claim that the County of Nevada violated CEQA by failing to prepare and recirculate a revised draft EIR was unfounded because the new alternative project proposal did not constitute “significant new information” under CEQA.

The case involved an EIR prepared for the Higgins Marketplace project in southwestern Nevada County, a commercial center with commercial, light industrial, and office uses.  When the County Planning Commission held a hearing on the final EIR, the staff report recommended a modified version of the project, the “staff alternative,” which was a new alternative not presented in the final EIR.  The Planning Commission voted to recommend that the Board of Supervisors (“Board”) certify the final EIR, and approve the new “staff alternative” instead of the project.

In response, the applicant worked to address the Planning Commission’s concerns and proposed a modified version of the project, mostly consistent with the “staff alternative.” Ultimately, the Planning Commission voted to recommend that the Board approve the applicant’s modified alternative, rather than the “staff alternative,” and the Board approved the modified alternative.

Smart Growth challenged the Board’s decision, arguing that the County violated CEQA by (1)  failing to prepare and recirculate a revised draft EIR with the “staff alternative”; and (2) failing to make any findings or otherwise cite substantial evidence explaining why the “staff alternative” should not or could not be approved.

. . . the County did not err by not preparing and recirculating a revised draft EIR to add the “staff alternative” because the “staff alternative” did not constitute “significant new information” under CEQA Guidelines section 15088.5(a)(3).

The Court rejected these arguments, finding that the County did not err by not preparing and recirculating a revised draft EIR to add the “staff alternative” because the “staff alternative” did not constitute “significant new information” under CEQA Guidelines section 15088.5(a)(3).  It was Smart Growth’s burden to show that there was no substantial evidence to support the County’s decision not to prepare and recirculate a revised draft EIR.  The Court found that Smart Growth failed to carry that burden, in part because it failed to set forth all the evidence favorable to the County and show why it was lacking, which was fatal to its claim. 

Furthermore, the Court found that CEQA did not require the County to adopt findings regarding the feasibility of the “staff alternative” because the alternative was proffered after the preparation of the final EIR, and the EIR’s alternatives analysis was already adequate under CEQA.  Nor was the County required to make findings why it rejected an alternative proposed after the final EIR and not included in the final EIR. 

In addition, the case also addressed the sufficiency of the EIR’s traffic analysis. The Court found that it was reasonable for the EIR to rely on the current function of the road in question as a “minor arterial,” rather than on its designation as a “major collector,” and to apply the appropriate level of service standard based on its function. 


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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