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Fourth Appellate District Rejects CEQA Challenge to Project Changes after Final EIR Published

In Residents Against Specific Plan 380 v. County of Riverside (Mar. 15, 2017, E063292) __ Cal.App.5th __, the Fourth Appellate District rejected a California Environmental Quality Act (CEQA) challenge brought based on, among other things, the county’s failure to recirculate the Environmental Impact Report (EIR) for a project when changes were made to the project after the final EIR had been released.  The court held that the County of Riverside (County) sufficiently established that the changes made after the publication of the final EIR did not present new or substantially increased environmental impacts; therefore, no recirculation was required under CEQA.

The project at issue is a specific plan that proposes a master-planned community including various residential, mixed use, and commercial land uses along with open space uses.  The community is to be located on about 200 acres of undeveloped land in Riverside County.  The project went through several revisions before being approved on November 5, 2013.  First, the draft EIR was released on July 28, 2011.  The draft EIR contemplated a community with eight planning areas, a total of 320 housing units, and a total of 650,000 square feet of commercial space (including commercial retail and commercial office).

After receiving public comments on the project, the County’s Planning Commission considered the final EIR for the project in April 2012, which kept the same eight planning areas, residential units, and commercial space as the draft EIR, but changed the locations of the development within the same project footprint.  At the hearing, the Planning Commission made several changes to the project with regard to which land uses would be allowed in which planning areas.  The County’s environmental consultant determined that these changes would not affect the project’s impacts on the environment, because the overall footprint of the project remained the same.

In December 2012, the Board of Supervisors considered the project and again modified the layout of the project, but did not change the number of residential units or square footage of commercial space.  The County’s environmental consultants again prepared a report on the changes and concluded that they would not cause new significant environmental impacts nor would they substantially increase existing environmental impacts.  The Board of Supervisors tentatively approved the project, with instructions for staff to incorporate the changes into the specific plan.  The Board of Supervisors then approved the project several months later, on November 5, 2013.

Residents Against Specific Plan 380 (Residents) challenged the certification of the EIR and adoption of the specific plan because, among other things, they alleged that the changes made to the layout of the specific plan required recirculation of the final EIR.  The court rejected this argument because it found the changes made after the publication of the final EIR to be focused on “the details of the allocation and arrangement of uses within the project site, not the kinds of uses permitted or the overall extent or density of the proposed development.”  The overall footprint of the community did not change, which means that no new impacts could arise from the changes to the project in this way.  Additionally, the County’s environmental consultants adequately studied the changes in proposed locations for different land uses and concluded that modifying the location of a land use would not have new or greater environmental impacts than the original plan.  This was sufficient evidence to support the County’s conclusion that no new impacts or increased impacts would occur.  Accordingly, the court held that the County correctly determined that recirculation of the EIR was not necessary.

Residents also challenged the County’s certification of the EIR for this project based on allegations that the Board of Supervisors had approved the project in December 2012 and not November 2013, and that the changes made to the project between the December 2012 and November 2013 hearings were made after approval.  The court rejected this argument because the minutes from the December 2012 meeting reflected that the Board of Supervisors only gave tentative approval, pending incorporation of the changes to the project.

The Court rejected Residents’ other challenges, which were based on alleged defects in the project’s description in the Notice of Determination for the project, a failure to analyze the impacts of mixed uses that are not a retirement community, and a failure to adopt mitigation measures proposed by Residents and other commenters.

First, the court held that although the description of the project in the Notice of Determination did not completely match the project as adopted, most of the description was correct, making it “close enough” to satisfy CEQA.  The court also held that the error was not prejudicial, because the notice still served its purpose of notifying the public about the deadline to file a CEQA challenge and the basic information about the project.

The court next rejected the argument that the EIR was insufficient because it did not analyze other potential uses in one area aside from a retirement community.  The specific plan provided that this area would be developed into an assisted living or retirement community, and these impacts were analyzed.  It also provided that it could be developed for another mixed use, if compatible with nearby planning areas and, critically, if no additional environmental impacts would arise, based on the County’s review.  This assurance that the County would investigate whether additional environmental impacts could occur if another use was chosen was sufficient to satisfy CEQA.

Next, the court held that the County correctly declined to adopt mitigation measures for air quality impacts suggested by the Southern California Air Quality Management District because the County properly rejected requiring equipment with higher emissions quality ratings as infeasible because such equipment would not be available at the time.  The County also correctly declined to adopt mitigation measures proposed by the City of Temecula, because it explained its reasoning why existing mitigation measures better address impacts while maintaining needed flexibility for the project.

The court also held that the County properly declined to adopt noise mitigation measures that were proposed late in Residents’ comments to the Board of Supervisors.  These comments were submitted about 14 months after the public comment period closed on the draft EIR.  CEQA does not require that the County provide written responses to such late-submitted comments.

For more information on this case, please contact Brenda Bass at bbass@somachlaw.com.

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