(June 29, 2004) 04 C.D.O.S. 5877

By Lori Wider

Introduction

The decision of the Fourth Appellate District in this case reflects a common sense approach to implementing CEQA and its requirements. In upholding an EIR prepared by the City of Irvine for development of the Northern Sphere project on a 7,743-acre site located northeast of the former Marine Corps Air Station at El Toro, the California Court of Appeal agreed with the trial court and rejected all of Petitioner’s claims that the EIR was inadequate and should be set aside. Petitioner Defend the Bay raised a number of issues under the following three primary grounds.

A. Jobs/Housing Imbalance

Defend the Bay argued that there was insufficient evidence to support the EIR’s conclusion that the jobs to housing imbalance (17,667 jobs and 12,350 housing units; a 1.44 ratio) created by the project, while substantial, would not result in a significant adverse impact on housing or employment growth. The EIR concluded that the jobs to housing ratio for the project would lower the overall jobs to housing ratio in the City (3.29 ratio in 2000), and that project housing would add affordable housing in a “jobs rich” area.

The EIR also concluded that while the cumulative housing impact with the project would be substantial, it too would not be adverse for the same reasons the project housing impact would not be, and because the housing shortfall could be met by more plentiful housing in surrounding communities. Petitioner contended that the jobs/housing imbalance created a housing shortage and was inconsistent with the City’s General Plan, and that these constituted significant environmental impacts.

These arguments were viewed by the court as merely differing assessments of the impact of the jobs/housing ratio, with Petitioner striking a “different balance with the City,” which did not equate to a lack of support in the record for the City’s conclusion of no significant impact. Defend the Bay’s final arguments on the treatment of the jobs/housing ratio, that the alternatives analyzed in the EIR and the City’s adopted Statement of Overriding Considerations were legally insufficient because they failed to consider the housing imbalance, were recognized by the court as the City’s conclusion that with the project, the jobs/housing ratio would be improved overall with the project and the court properly deferred to the City’s policy decision.

B. Agricultural Resources

The EIR concluded that the conversion of 3,100 acres of prime farmland was a significant unavoidable environmental impact, as no feasible on-site or off-site mitigation was possible. On-site agricultural use was determined not to be economically viable over the long term and reducing the development site would impede the City’s General Plan goals and objectives for housing and improving the jobs/housing imbalance. The court rejected Petitioner’s claim that economic viability is an impermissible reason under CEQA for finding mitigation infeasible. Off-site mitigation was deemed infeasible because no other comparable land was planned for agricultural use under the City’s General Plan. The court determined that Petitioner’s argument that non-agricultural lands could be converted to agricultural use by the City was merely a policy disagreement.

Defend the Bay argued that the proposed General Plan amendment which sought to amend an objective dealing with agriculture was inadequately analyzed in the EIR. The amendment essentially proposed a change in policy from “preserve and protect agriculture” within designated agricultural areas to “encourage the maintenance of agriculture” in certain areas pending future development or where no development would be available. The EIR discussed the change in various places, including under the Land Use and Planning Section of the EIR and in response to comments. Petitioner objected on the grounds that the discussion of this major policy shift should have been included in the Agricultural Resources Section of the EIR and the significance of the policy shift inherent in the General Plan amendment was only first addressed in a response to a comment on the draft EIR, after the public comment period had closed, thereby depriving the public the opportunity to comment.

The court emphasized the importance of what is discussed in the EIR, not where it is discussed, stating that Petitioner’s “wrong place” argument was “trivial in this context.” The court applied the recirculation test under Public Resources Code § 21092.1 and the decision in Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112 in determining that the response to comment did not raise “significant new information” requiring recirculation of the EIR.

C. Biological Resources

Petitioner’s last claim of alleged inadequacy was that the EIR improperly deferred mitigation for impacts to biological resources and, therefore, the record did not support the conclusion that there would be no significant impact on biological resources. An adopted Natural Community Conservation Plan and Habitat Conservation Plan (NCCP/HCP) applicable to the site provided that where species that are “conditionally covered” under the NCCP/HCP will be affected by a project, the U.S. Fish & Wildlife Service (FWS) and the California Department of Fish & Game (CDFG) must be consulted and a specific mitigation plan developed.

The EIR concluded that the Least Bell’s Vireo (an endangered bird species conditionally covered under the NCCP/HCP) habitat would be impacted by the project, and proposed mitigation in the alternative depending on the ultimate conservation value classification of the habitat, a determination to be made in the future by the FWS and CDFG. The EIR indicated that then available data suggested it would be classified in a lower value category. The mitigation required the owner, prior to the tentative map, to consult with and obtain permits from the FWS and CDFG, conduct surveys during the breeding season, obtain a determination of the long-term value of the habitat, and coordinate avoidance measures with the FWS and CDFG in ways to incorporate seven enumerated items.

The court rejected the argument that failure to first obtain the habitat’s conservation value was an improper deferral of mitigation. Relying primarily on Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, the court found that there was no improper deferral of mitigation because the EIR was prepared at the early stage of the planning process (General Plan amendment and zone change), and the City committed to mitigation for which there was criteria specifically identified.

For the Foothill Mariposa Lily (conditionally covered under the NCCP/HCP; two colonies of 28 plants would be affected by the project), the EIR discussed the required mitigation under the NCCP/HCP which included design modifications to reduce impacts, evaluation of mitigation techniques, monitoring and management, coordination with the FWS and CDFG, and approval from the FWS. Again, the court determined that while no actual mitigation plan was set out in the EIR and the mitigation was deferred, such deferral was not improper. The City was required to mitigate impacts pursuant to the NCCP/HCP and the EIR committed the City to do so. The EIR also identified what is to be required in the mitigation plan.

With respect to the Western Spadefoot Toad (a “sensitive” species), the EIR reported that the toad had not been found in the project area. Since there was suitable habitat for this species, the EIR called for surveys to be conducted in potential breeding pools prior to issuance of grading permits and if toads are found, then the FWS and CDFG must be consulted, and a mitigation plan prepared which must include construction of breeding pools on nearby protected lands. In response to Petitioner’s claim that there was no timetable for the surveys and no avoidance of impacts where feasible, the Court determined that the City’s commitment to mitigation and to a plan to build breeding pools was sufficient and there was a timetable–prior to issuance of grading permits.

For more information please contact Lori Wider. Lori Wider is special counsel in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.