221 Cal. App. 4th 316
Cal. Ct. App.2013Background
- KKP proposed Higgins Marketplace, a commercial project on ~20 acres in Nevada County; draft EIR (2007) identified two significant traffic impacts and one significant cumulative air-quality impact that could not be fully mitigated.
- Draft EIR analyzed four alternatives (including a Redesign/Reduced Density alternative) and was circulated; planning staff later proposed a staff alternative (more open space, 75,000 sq ft cap, 100-foot wetland buffer, no fast-food drive-throughs).
- Planning Commission initially recommended the staff alternative but later recommended KKP’s revised project (a modified applicant alternative reducing square footage to ~75,710 and adopting a 50-foot setback plus 20-foot buffer); the final EIR was certified and the Board approved the revised project in August 2009.
- Smart Growth petitioned for writ of mandate alleging CEQA violations: (1) County should have prepared/recirculated a revised draft EIR including the staff alternative; (2) County failed to make findings on feasibility of the staff alternative; (3) County relied on future/unapproved traffic improvements (Combie Road redesignation) to find impacts less than significant.
- Trial court denied the petition; the Court of Appeal affirmed, applying substantial-evidence review on whether the staff alternative was “significant new information” requiring recirculation and rejecting Smart Growth’s other claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County had to recirculate a revised draft EIR to include the staff alternative | Staff alternative was a feasible, considerably different alternative that would lessen significant impacts and thus required recirculation | Recirculation is required only for "significant new information"; staff alternative was not significantly new and EIR already contained a reasonable range of alternatives | No recirculation required; substantial evidence supports that the staff alternative was not "significant new information" |
| Whether Board had to make express findings on infeasibility of staff alternative | Once Planning Commission recommended the staff alternative, Board had to adopt it or make findings explaining why it was infeasible | No statute or guideline requires findings for an alternative proposed after the final EIR; feasibility findings are required for alternatives discussed in the EIR at scoping, not for belated proposals | No findings required; Board could implicitly conclude recirculation unnecessary and need not make express infeasibility findings for a post‑EIR alternative |
| Whether County improperly relied on future traffic improvements (Combie Road) to declare impacts less than significant | County assumed future widening/redesignation and access limitations that are not guaranteed, so impacts may be significant unless those future actions occur | County analyzed traffic based on the road’s actual function (minor arterial behavior) and may reasonably rely on substantial evidence about future conditions without conditioning approval on those improvements | County did not unlawfully rely on future mitigation; traffic analysis based on existing functional conditions was supported by substantial evidence |
| Standard of review and burden on appellant | Smart Growth argued procedural error (abuse of discretion) | Court: abuse of discretion where agency failed to follow law; but significance/feasibility determinations reviewed for substantial evidence; appellant bears burden to show no substantial evidence supports agency action | Appellant failed to meet burden; substantial‑evidence review applied and supports County’s decisions |
Key Cases Cited
- Laurel Heights Improvement Assn. v. Regents of Univ. of Cal., 6 Cal.4th 1112 (Cal. 1993) (recirculation is exception; no express finding required when certifying final EIR without recirculation)
- Laurel Heights Improvement Assn. v. Regents of Univ. of Cal., 47 Cal.3d 376 (Cal. 1988) (EIR must disclose adequate analysis and reasons when rejecting alternatives)
- Citizens of Goleta Valley v. Board of Supervisors, 52 Cal.3d 553 (Cal. 1990) (scope of alternatives, administrative record may supply reasons for rejecting belatedly raised alternatives)
- Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 40 Cal.4th 412 (Cal. 2007) (appellate CEQA review is de novo; significance/factual determinations reviewed for substantial evidence)
- Western Placer Citizens v. County of Placer, 144 Cal.App.4th 890 (Cal. Ct. App. 2006) (agency’s certification of final EIR implies conclusion that new information did not require recirculation)