July 30, 1991 - From the July, 1991 issue

CEQA/EIR Update: Courts Send Mixed Signals to Localities

The last several months have been full of mixed messages for develop­ers, consultants, and local authorities concerned with California Environ­mental Quality Act (CEQA) compli­ance. California courts seem to be continuing in the vein of Goleta II in looking to the rule of reason to con­strue EIR requirements. 

A partner at the law firm of Alschuler, Grossman & Pines, Joan A. Wolff provides further guidance in how other cases give valuable guid­ance to determine when project modifications mandate new EIRs. However, the fallout and confusion from the Friends of La Vina blast continue unabated. The Court of Appeal had not yet ruled on the County of Los Angeles’ appeal at press time. 

Waiting for La Vina 

Throughout California, cities, counties and developers alike are anxiously awaiting the ruling of the Court of Appeal in La Vina. After oral arguments in late May, the Court took the case under submission. 

At issue is the County of Los Angeles’ appeal of Judge Zebrowski’s ruling that the County failed to comply with CEQA by al­lowing the developer’s paid consult­ant to prepare an EIR. Judge Zebrowski held that this constituted an inherent conflict of interest and that the County, not the developer, should hire the consultant. The Cities of Los Angeles and San Francisco as well as the B.I.A filed amicus briefs in support of the County. 

According to observers at the Court of Appeal hearing, the court appeared somewhat uncomfortable with the widespread practice of lead agencies allowing consultants retained by developers to prepare the EIR. The court did not seem to immediately recognize the extent of public and governmental review inherent in the EIR process, notwithstanding the fact that the consultants are originally retained by the developer. The Appellants stressed that EIRs are closely scrutinized and commented upon before certification. 

One interesting point which was raised at oral arguments concerns situations where the local agency is the project proponent. If there is an inherent conflict of interest when the project proponent retains the EIR consultant, how can this conflict ever be resolved when the local agency is also the lead agency under CEQA? Stay tuned.

Local Changes in EIR Processing

Even before La Vina, both the County and the City of Los Angeles had been considering changes in EIR processing. According to Frank Eberhard, the City’s Deputy Director of Planning, the City is reviewing its entire EIR process with the assistance of Ronald Bass, a Sacramento attorney and planning consultant. According to Eberhard, EIR processing time has significantly improved since last year.

With two additional city planners acting as first readers, the City anticipates that the bottleneck at that level will be a thing of the past. However, additional help is still required at the higher levels of review.

In addition, during the next few months the City Planning Commission will probably reconsider an important proposal which the Commission tabled in September of 1990. This proposal would give developers the option to allow the City to control the preparation of an EIR in return for a guaranteed processing time of twelve months. The developer would reimburse the City for all additional costs including direct consultant fees and indirect staff costs.

The County had also begun to consider alternatives for EIR preparation prior to La Vina. The County has put out a request for proposals in search of qualified consultants who would be retained by the County to perform EIR consulting for private development projects.

Of course, if La Vina is upheld on appeal, these contemplated options for developers could quickly become the only option for processing EIRs. Confusing the issues is the fact that another Superior Court judge, Judge David Yaffe, has ruled in favor of the County under a similar set of circumstances. The project opponents have appealed the decision in that case. This issue may eventually be heard by the California Supreme Court.

Rule of Reason Strikes Again

In the recent case of Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553 (1990), popularly known as Goleta II, the California Supreme Court held that the “rule of reason” was the proper standard to determine whether an EIR’s discussion of alternatives to a proposed project was adequate and that an EIR did not have to analyze all “ostensibly feasible” alternative sites.

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In a case which closely follows the spirit of Goleta II (even though it differs factually), the Third District Court of Appeal has upheld the City of Sacramento’s approval of the expansion of its Convention Center complex. In Sacramento Old City Assn. v. City Council, 229 Cal.App.3d 1011 (1991) project opponents claimed that the city had violated CEQA by not adequately addressing parking issues and by deferring the adoption of specific parking mitigation measures to a future Transportation Management Plan.

The court held that the city’s comprehensive discussion of potential mitigation measures in the EIR was sufficient. In its conclusion the court quoted Goleta II for the proposition that the delicate balancing of interests in approving development projects is best left to the local government and that environmental protection rules should not be “subverted into instruments for oppression and delay” in the development process.

Guidance on Supplemental EIRs

Two recent cases give additional guidance as to when supplemental EIRs will be required when projects are modified. These cases place an  important new emphasis on the concept of vesting.

In Benton v. Board of Supervisors, 226 Cal.App.3d 1467 (1991), the court held that the lead agency only had to consider the incremental impacts (and not the cumulative impacts) of a project modification when the right to build the original project had previously vested.

On the other hand, a court has held that the SCAQMD did have the discretion to require an applicant to produce an EIR on the entire project where the original project had not vested. In Security Environmental Systems, Inc. v. South Coast Air Quality Management Dist., 229 Cal.App.3d 110 (1991), the applicant requested the District to extend project permits for the construction of a hazardous waste incinerator. The District required the applicant to prepare an EIR as a condition to granting the extension because the District had received new information not known at the time it issued the initial negative declaration.

Both cases also validate the CEQA Guidelines’ expansion of the language in CEQA which limits the situations in which a lead agency can require a supplemental EIR. Under Public Resources Code Section 21166, these limitations only apply when an EIR was originally prepared. The Guidelines extend this protection to projects for which a negative declaration was originally prepared.

Revisions to CEQA and Guidelines

Revisions to the CEQA Guidelines are in the works. An interim revision should be released at any time. The Office of Permit Assistance at OPR is also working on a virtual rewrite of the Guidelines which is scheduled for release near the end of this year.

Practitioners should also note a recently imposed Department of Fish and Game filing fee which project applicants must pay to the County Clerk at the time a Notice of Determination is filed. This fee, $1,250.00 for a Negative Declaration and $850.00 for an EIR, may be waived if there are no foreseeable impacts on wildlife. New Section 21089(b) of the Public Resources Code provides, in effect, that certain findings may not be final until such fees are paid. This section became effective on January 1, 1991.

Conclusion

The developments noted above provide valuable guidance for land use professionals and their clients in construing EIR requirements and determining when supplemental EIRs will be required. The next few months should also be very interesting with the La Vina decision expected in the near future and local agencies continuing to adjust their CEQA compliance procedures.

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