November 30, 1992 - From the November, 1992 issue

CEQA Update: Court Decisions Shed New Light on Land-Use Law

By Clare Bronowski who is a land-use attorney at Christensen, White, Miller, Fink and Jacobs in Century City.

The month of October 1992 saw the publication of two California Court of Appeal cases upholding the adequacy of Environmental Impact Reports (EIRs) for Southern California projects against the CEQA challenges of environmental and homeowner organizations. Another recent unpublished CEQA decision will be reviewed by the California Supreme Court.

The Del Mar Case

In Del Mar Terrace Conservancy v. City Council of San Diego the Court of Appeal upheld the trial court’s determination that the EIR for a highway project in the northern area of San Diego was adequate. The project involved the widening of a 1.8 mile section of Carmel Valley Road to a four-lane freeway with expansion possibilities to six lanes. The City Council action in approving the highway project was challenged by the environmental organization on the grounds that the project had been impermissibly “piece-mealed” and did not take into consideration future plans to connect the roadway to Interstate 5 and Interstate 15.

The Court of Appeal upheld the City’s decision. The case articulates a standard for determining whether a roadway project has been impermissibly segmented or “piece-mealed” and is therefore of significance to a variety of highway and public transit projects.

The Court of Appeal also upheld the EIR against challenges to the adequacy of its discussion of cumulative impacts, alternatives and mitigation. The court found that a comprehensive drainage and restoration program was proper mitigation for the roadway project and held that it was proper to utilize the area-wide program to mitigate more than one project.

The Rossmoor Case

Closer to home, the Court of Appeal reversed a  local Superior Court judge who had found that the City of West Hollywood failed to adequately consider alternative sites for a residential care facility for senior citizens proposed by Rossmoor Enterprises. In Save Our Residential Environment (“SORE”) v. City of West Hollywood, the Court of Appeal held that CEQA’s requirement that an EIR describe “a range of reasonable alternatives to the project or to the location of the project” did not require the Rossmoor EIR to discuss any alternative sites.

The Rossmoor EIR contained a one-paragraph explanation of the fact that City staff could not identify a single site within the City of West Hollywood where a project of the same type and size could be constructed without demolishing a significant number of existing housing units. Because the City’s General Plan discourages demolition of existing housing and does not allow residential care facilities in either commercial or industrial zones, no alternative sites were chosen or discussed.

The trial court had rejected out of hand this lack of an alternative sites discussion. However, the Court of Appeal relied upon the City’s General Plan to determine that no feasible alternative sites existed, and concluded that CEQA does not require that “infeasible” alternative sites be discussed.

Because the discussion of alternative sites is dependent upon the particular facts of each case, the Rossmoor case may not be relied upon in all circumstances. The City of West Hollywood is unique in being fully developed and merely two square miles in area.


However, the Rossmoor case does underline the fact that CEQA does not require futile exercises and allows the parameters of the alternative site selection to include the appropriateness of General Plan designations and fitness for the project proposed.

Laurel Heights Update

Also of note is the recent August 1992 decision by the California Supreme Court to review the controversial (but unpublished) Court of Appeal decision in Laurel Heights Improvement Association v. Regents of the University of California.

The Laurel Heights ruling was the latest in a series of determinations regarding an attempt by the University of California to conduct biomedical research at its UCSF facility. After the original EIR for the project had been found inadequate in a case which made its way all the way to the Supreme Court in 1988, the University produced a new six-volume EIR. Yet another CEQA challenge was brought by project neighbors. In May 1992 the Court of Appeal found that two issues (noise from rooftop equipment and cumulative toxic air emissions) required recirculation of the new Final EIR due to the inclusion of new studies on noise and air toxic impacts.

Unpublished opinions can never be cited or relied upon in future cases as precedent. However, this unpublished opinion has sent a shiver through the CEQA world because of the lack of guidance on when data in the Final EIR require recirculation. The fear looms that the CEQA process will become a never-ending cycle of data, comments, responses and recirculation.

The fact that the California Supreme Court has elected to consider the case gives hope that the Court will clarify the standard in a published decision and prevent endless delays in Final EIR circulation.

Alternatively, at least one commentator has urged the California legislature to amend CEQA to specify the precise standard that governs the recirculation of Final EIRs. Look for this issue to be resolved in 1993.


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