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October 28, 2014  |  Written by Aaron A. Ferguson

Court of Appeal Holds That Subdivision Map Is a Project for Purposes of CEQA

On September 9, 2014, the Court of Appeal for the Third Appellate District held in Rominger v. County of Colusa that approval of a subdivision map is a California Environmental Quality Act (CEQA) project even if it does not include any specific plans for development.  Rominger v. County of Colusa (2014) 229 Cal.App.4th 690.  In Rominger, the Court upheld Petitioners’ reliance on CEQA’s fair argument standard in the face of contrary substantial evidence, noting that the issue when determining whether an environmental impact report (EIR) is required is whether there is a fair argument that the public agency was wrong in concluding that the project may have a significant impact on the environment.

Background

In 2009, a project applicant sought approval of a tentative subdivision map to divide four parcels (Project) located in Colusa County (County).  At the time, the existing uses for the property at issue were agricultural, light industrial, and open space.  The applicant indicated that it intended to continue these existing uses.  For the Project, the County completed an initial study and mitigated negative declaration (IS/MND).  The Petitioners commented that even though the County did not know the exact future uses for the subdivided lots, the County was required to analyze the potential impacts of the operations based on the most reasonably foreseeable significant impacts.  As a result of the Petitioners’ comments, the County prepared a revised IS/MND.  The revised IS/MND evaluated potential industrial development related to agriculture.  The County, however, took the position that because the future development scenario was presented for analysis only, and was not currently proposed, the analysis was not required by CEQA.  Petitioners sought judicial review, arguing that the revised IS/MND was deficient and that the County violated CEQA by failing to prepare an EIR for the Project.  The trial court sided with the County after determining that the Project was not a “project” for purposes of CEQA.

Appellate Court Review

Before the Court of Appeal, the Petitioners argued that because the County treated the subdivision as a project by approving an MND, the County should have been barred from asserting in the trial court that the subdivision was not a project for purposes of CEQA.  The County maintained that it provided public information about impacts that could occur if development were pursued, even though it was not legally required to do so.  The Court of Appeal found that because the County consistently took the position that what it was doing was not required by CEQA, it could reasonably argue in court that the subdivision was not a project.

While the Court found that the County could argue that the subdivision was not a project, the Court ultimately reviewed the County’s determination anew and held that the Project qualified as a CEQA project.  An activity is a project if CEQA has identified the activity as a project regardless of whether the activity will have an environmental impact.  See Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 381.  Subdivision (a) of section 21080 provides that “[e]xcept as otherwise provided in [CEQA], [CEQA] shall apply to discretionary project proposed to be carried out or approved by public agencies, including … the approval of tentative subdivision maps …” unless the project is exempt.  In this case, the Court found that by enacting subdivision (a) of section 21080, the Legislature has determined that approval of tentative subdivision maps always have at least the potential to cause a direct physical change or reasonably foreseeable indirect physical change in the environment.  On this standard, the Court held that the Project in this case constituted a CEQA project, and the Project was not otherwise exempt.

Ultimately, the Court of Appeal determined that the County should have prepared an EIR, rather than a mitigated negative declaration.  If an initial study identifies potentially significant effects on the environment but revisions would mitigate the effects to a point where clearly no significant effects would occur, then there is no substantial evidence that the project may have a significant effect on the environment.  San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382, 389, 390.  Where substantial evidence supports a fair argument that the project may have a significant effect, it may not be overcome by substantial evidence to the contrary, and an EIR is required.

In this case, the Court found that there was substantial evidence in the record supporting a fair argument that the Project would have a significant effect on traffic, and that the County was required to prepare an EIR.  Petitioners presented evidence supporting a fair argument that development associated with the Project may occur and that, as a result, the greater traffic generated may have a significant effect on the environment.  The County argued that its traffic assumptions were supported by substantial evidence.  The Court found, however, that the issue was not whether there was substantial evidence to support the County’s conclusions, but whether there was evidence to support a fair argument that the County was wrong and that the Project may have a significant impact on traffic.  The Court held that the Petitioners had met this standard and that the County prejudicially abused its discretion by failing to prepare an EIR.

Conclusion

The Court makes clear that a public agency may undertake preliminary environmental review for informational purposes and still argue in court that the activity it reviewed is not a CEQA project.  Public agencies are advised, however, that a court will still review the agency’s underlying determination in this regard.  Further, the decision presents a straightforward application of the fair argument standard, showing how a court looks for substantial evidence supporting a petitioner’s argument, and rejects attempts to provide substantial evidence to the contrary.

For additional information please contact Aaron Ferguson at aferguson@somachlaw.com.

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