76 Cal.App.5th 1154
Cal. Ct. App.2022Background
- Icon proposed a mixed-use redevelopment of an ~9-acre Panorama City site; initial DEIR (Apr 2017) described 422 residences (387,000 sf) and ~200,000 sf commercial space with several alternatives.
- The RDEIR (Aug 2017) kept the same description; public comments raised concerns about traffic, contaminated soils, and local sewer connections; LASAN said Hyperion Plant had capacity but local gauging was needed.
- The FEIR (Feb 2018) added Alternative 5 (675 units, 60,000 sf commercial). In March 2018 City staff proposed and the Advisory Agency approved a Revised Project (623 units, 60,000 sf commercial) that was not circulated for DEIR comment.
- Petitioners (unions) sued, arguing the approved Revised Project differed materially from the DEIR/FEIR (violating CEQA’s requirement of an accurate, stable, finite project description), that recirculation was required, and that the FEIR inadequately addressed local sewer capacity.
- The trial court agreed, granted the writ, and ordered a new/supplemental EIR; the Court of Appeal reversed, holding the project description remained sufficiently stable and the sewer response was adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the approved Revised Project violated CEQA’s requirement that the DEIR/FEIR describe an accurate, stable, finite project | The Revised Project (623 units/60k sf commercial) was not described in the DEIR/RDEIR/FEIR; public could not meaningfully comment on the actual approved project | The project remained a single, defined mixed-use proposal on the same footprint; changes were only compositional (residential vs commercial) and contemplated by alternatives | Reversed trial court: project description was sufficiently accurate, stable, and finite — Revised Project was a variant of alternatives and stayed within the defined project footprint |
| Whether recirculation under CEQA Guideline §15088.5 is the exclusive mechanism for addressing post-DEIR changes (i.e., whether a “materially different” test applies) | CEQA requires recirculation or new EIR when significant new information or a materially different project is approved without public comment | The City argued petitioners waived any recirculation claim and that §15088.5 governs recirculation; courts should not graft a separate “materially different” test | Court held §15088.5’s recirculation standard governs and no separate materially-different project-description recirculation rule should be engrafted; recirculation was not required here |
| Whether the public was entitled to a new comment period on the Revised Project (procedural prejudice) | Approval of an uncirculated Revised Project after close of DEIR comment deprived the public of its participation rights and prejudiced petitioners | The public had extensive prior comment opportunities (92 days total) and multiple hearings after the Revised Project was proposed; petitioners waived a recirculation claim | Court found no prejudicial failure: substantial public process occurred and petitioners failed to show loss of meaningful participation |
| Whether the FEIR’s response to LASAN’s sewer comment was adequate | LASAN’s note that local sewer gauging was required meant the FEIR improperly deferred necessary environmental analysis of local sewer capacity and mitigation | LASAN confirmed Hyperion Plant capacity and said local gauging would occur during permitting; any needed local line upgrades would be the developer’s obligation and would not present significant environmental effects | Court held City’s response was adequate: Hyperion capacity addressed treatment and LASAN’s gauging requirement properly deferred to the permit stage; no substantial evidence of significant environmental impacts from local sewer upgrades |
Key Cases Cited
- County of Inyo v. City of Los Angeles, 71 Cal.App.3d 185 (Cal. Ct. App.) (project description must be stable, definite, unambiguous)
- Washoe Meadows Community v. Department of Parks & Recreation, 17 Cal.App.5th 277 (Cal. Ct. App.) (DEIR must present a stable project rather than a set of disparate alternatives)
- South of Market Community Action Network v. City & County of San Francisco, 33 Cal.App.5th 321 (Cal. Ct. App.) (two fully described options in DEIR acceptable where core project elements were stable)
- Citizens for a Sustainable Treasure Island v. City & County of San Francisco, 227 Cal.App.4th 1036 (Cal. Ct. App.) (an EIR may include fixed and conceptual elements when project specifics cannot yet be locked down)
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 6 Cal.4th 1112 (Cal. 1993) (recirculation required when significant new information is added after public comment)