Save Lafayette v. City of Lafayette

Filed 12/16/22 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SAVE LAFAYETTE,
Plaintiff and Appellant,
A164394
v.
(Contra Costa County
CITY OF LAFAYETTE et al.,
Super. Ct. No. MSN-20-1413)
Defendants and Respondents;
O’BRIEN LAND COMPANY LLC,
et al.,
Real Parties in Interest and
Respondents.
THE COURT:
Respondent’s petition for correction of the opinion, filed December 2,
2022, is granted. Appellant’s petition for rehearing, filed December 15, 2022,
is denied.
It is ordered that the opinion filed November 30, 2022, be modified as
follows:
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,
this opinion is certified for publication with the exception of part II (items 2–
5 of this).

Tucher, P.J., Fujisaki, J., Petrou, J. participated in the decision.
1
1. On page 14 of the opinion, the words “Save Livermore” in the
first sentence of the first full paragraph shall be changed to “Save Lafayette.”
2. On page 18 of the opinion, the first sentence of the final
paragraph will be changed to read:
When some changes or additions to a previously certified EIR are
necessary but none of the conditions calling for a subsequent EIR has
occurred, the agency must prepare an addendum.
3. On page 28 of the opinion, the following footnote shall be inserted
at the end of the first full paragraph, after “(§ 21166.)”:
Save Lafayette argues in its petition for rehearing that an SEIR
is necessary because Dr. Smallwood’s proposed mitigation measures for
window collisions qualify as “[m]itigation measures or alternatives
which are considerably different from those analyzed in the previous
EIR [that] would substantially reduce one or more significant effects on
the environment,” which the project proponent did not adopt.
(Guidelines, § 15162, subd. (a)(3)(D).) Save Lafayette takes the quoted
language out of context. Section 15162, subdivision (a) of the
Guidelines provides that no SEIR is necessary unless there are
substantial changes to the project or its circumstances or unless “[n]ew
information of substantial importance, which was not known and could
not have been known with the exercise of reasonable diligence at the time
the previous EIR was certified as complete,” shows one of several
circumstances. (Italics added.) The presence of considerably different
mitigation measures that would reduce one or more significant
environmental effects is one of those circumstances, but the proposed
mitigation measures require preparation of an SEIR only if they could
not, with the exercise of reasonable diligence, have been known when
the EIR was certified. (Id., subd. (a)(3)(D).)
4. On page 31 of the opinion, the quote at the top of the page shall
be changed to read:
“ ‘impair implementation or physically interfere with an adopted
emergency response plan or emergency evacuation plan.’ ”
2
5. On page 36 of the opinion, the acronym for Citizens for
Responsible Equitable Environmental Development v. City of San Diego
(2011) 196 Cal.App.4th 515, 531–532 should be changed to (CREED) in both
locations.
There is no change in the Judgment.
Dated: December 16, 2022 ____TUCHER, P.J._________
TUCHER, P.J.
Save Lafayette v. City of Lafayette et al. (A164394)
3
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Barry Baskin
Counsel: Louzeau Drury, Richard Drury, Rebecca Davis, Victoria
Yundt; and Lason, Scott Sommer for Plaintiff and
Appellant
Coblentz, Patch, Duffy & Bass, Jonathan R. Bass,
Katharine Van Dusen, and Robert B. Hodil for
Defendants and Respondents
Miller Starr Regalia, Arthur F. Coon, Bryan W. Wenter,
Matthew C. Henderson for Real Party in Interest.
4
Filed 11/30/22 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
SAVE LAFAYETTE,
Plaintiff and Appellant,
A164394
v.
(Contra Costa County
CITY OF LAFAYETTE et al.,
Super. Ct. No. MSN-20-1413)
Defendants and Respondents;
O’BRIEN LAND COMPANY, LLC,
et al.,
Real Parties in Interest and
Respondents.
O’Brien Land Company, LLC (the applicant or O’Brien) completed an
application for a housing development project in 2011, and the City of
Lafayette (the City) certified an environmental impact report (EIR) in 2013.
Before the project was approved, the applicant and the City agreed to
suspend processing of the original project while the applicant pursued an
alternative, smaller proposal. In 2018, when it proved impossible to proceed
with the alternative project, O’Brien and the City revived the original
proposal, with some modifications. The City finally approved the resumed
project in 2020, after preparation of an addendum to the original EIR.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,
this opinion is certified for publication with the exception of part II.
1
A citizen’s group calling itself Save Lafayette petitioned for a writ of
mandate, claiming that the project conflicts with the City’s general plan as it
existed when the project was revived in 2018, that the EIR is inadequate as
an informational document, and that a supplemental EIR (SEIR) is required.
Save Lafayette appeals the trial court’s denial of its petition.1 In the
published portion of this opinion, we conclude that, despite the lengthy delay
between certification of the EIR and project approval, the City properly
applied the general plan standards in effect when the application was
deemed complete. In the unpublished portion, we consider and reject all of
Save Lafayette’s challenges to the EIR. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
O’Brien submitted an application in March 2011 for approval of the
Terraces of Lafayette Project (the apartment project or Terraces of
Lafayette), a 315-unit residential development. The City notified O’Brien
that its application was deemed complete on July 5, 2011.
As proposed, the apartment project included 14 residential buildings, a
clubhouse, a leasing office, parking in carports and garages, and internal
roadways. Its location was a 22.27-acre site in Lafayette, bounded by
Pleasant Hill Road to the east, State Highway 24 to the south, and Deer Hill
Road to the north and west.
At the time the application was deemed complete, the project site was
designated Administrative/Professional/Multi-Family Residential on the
City’s general-plan land-use map and was zoned Administrative/Professional
1 The petition named the City, the Lafayette City Council, and the
Lafayette Planning Commission as respondents, and O’Brien Land Company,
LLC and Anna Maria Dettmer as trustee for the AMD Family Trust as real
parties in interest. We shall refer to these parties collectively as respondents.
2
Office in the City’s municipal code, a zoning that allowed multi-family
developments with a land use permit.
An EIR was prepared for the apartment project, and the City certified
the EIR on August 12, 2013. However, the City’s Design Review Commission
recommended that the Planning Commission deny the application for a land
use permit.
The applicant and City staff then began to consider a lower-density
alternative to the apartment project, consisting of 44 or 45 single-family
detached homes, public parkland, and other amenities (the project
alternative). As part of their discussions, the applicant and the City entered
into an “Alternative Process Agreement” (the process agreement) on January
22, 2014.
The expressed purpose of the process agreement was to establish a
process for considering the project alternative; to “suspend” the apartment
project in the meantime; and to “preserve” all of the parties’ “rights and
defenses . . . with regard to the Apartment Project” until the City made a
determination on the project alternative. Specifically, the parties agreed that
the City would “suspend the processing of the Apartment Project pending
[the] City’s processing of the Project Alternative,” and that if the City Council
did not approve the project alternative, or if an appeal, challenge, or
referendum was not resolved in a manner acceptable to the applicant, the
applicant could terminate the process agreement and the City’s processing of
the apartment project application would immediately resume, with the
parties situated as they were before the application was suspended. The
process agreement recited that, “because the Parties have mutually agreed to
toll the processing of the Apartment Project, [the] City has not failed to act to
approve or disapprove the Apartment Project under the Permit Streamlining
3
Act, and the Apartment Project shall not be deemed approved under the
Permit Streamlining Act.”
The City certified an SEIR for, and approved, the project alternative
(known as the “Homes at Deer Hill”) on August 10, 2015. It also adopted a
general plan amendment changing the project site’s land use designation
from Administrative Professional Office (APO), which allows 35 dwelling
units per acre, to Low Density Single Family Residential (SFR-LD), which
allows only two units per acre. The City then adopted ordinance No. 641,
changing the zoning designation of the site from APO to Single Family
Residential (R-20).
Save Lafayette filed a petition for writ of administrative mandamus
(Code Civ. Proc., § 1094.5) on September 8, 2015, challenging approval of the
Homes at Deer Hill based on alleged violations of the California
Environmental Quality Act (Pub. Res. Code, § 21000 et seq. (CEQA)). In
January 2016, the parties entered into a settlement agreement and Save
Lafayette dismissed the action with prejudice. Acting under permits, the
applicants then demolished the buildings and structures on the project site
and removed 48 of the 117 trees on the site.
A referendum petition challenging the City Council’s approval of the
zoning ordinance and requesting that the ordinance be either repealed or
submitted to a vote was soon filed. The City Council declined to take either
course, so Save Lafayette filed a petition for writ of mandate. The trial court
denied the petition but on February 21, 2018, our colleagues in Division Four
of this court reversed, concluding the City could not properly keep the
referendum off the ballot. (Save Lafayette v. City of Lafayette (2018) 20
Cal.App.5th 657, 662, 671–672.) On June 5, 2018, the zoning ordinance
appeared on the ballot and a majority of Lafayette voters rejected it. The
4
next month, the City Council adopted Ordinance No. 668, zoning the site
Single-family Residential District-65 (R-65) (i.e., requiring lot sizes more
than three times larger than those the voters had rejected).
On June 15, 2018, O’Brien submitted a letter notifying the City that it
was terminating the process agreement and withdrawing the project
alternative applications, and asking the City to resume processing the
apartment project application. As resumed, the project (the resumed project)
differed somewhat from the apartment project originally proposed. Pertinent
here, the resumed project would preserve 10 fewer trees than the original
project (16 rather than 26) and would plant approximately 68 more new trees
than the 700 originally planned.
The applicant’s consultant, FirstCarbon Solutions, prepared an
addendum to the original EIR for the resumed project in 2018. (14 Cal. Code
Regs., § 15164.) The City hired another consultant, Impact Sciences, to
review FirstCarbon’s addendum. Impact Sciences concluded there had been
no substantial changes in the project or its circumstances requiring major
revisions to the certified 2013 EIR, so that an addendum rather than an
SEIR was appropriate. However, it concluded further analysis was
necessary. Impact Sciences then prepared a new addendum (the addendum),
which was released in May 2020 and revised in June 2020.
The City certified the addendum as revised, and approved the renewed
project on August 24, 2020. In so doing, it concluded the project qualified as
a “ ‘housing development project’ ‘for very low, low-, or moderate-income
households’ ” under the Housing Accountability Act. (Gov. Code, § 65589.5
(HAA); see id., subds. (d) & (h)(3).) As a result, the City found, the HAA
preempted conflicting requirements of the Lafayette Municipal Code, and the
5
project was exempt from certain findings the City normally required in order
to obtain the necessary permits.
Save Lafayette filed its petition for writ of mandate on September 23,
2020, alleging that, in violation of CEQA, the 2013 EIR did not adequately
analyze a number of environmental impacts—including the presence of
special-status species, the risk of wildfire, and the destruction of mature
trees—and that an SEIR was necessary. It also alleged the project was
inconsistent with applicable general plan and zoning requirements.
The trial court denied the petition. As to Save Lafayette’s contentions
under CEQA, the court ruled in its favor on two preliminary matters—
concluding Save Lafayette was entitled to challenge the 2013 certification of
the EIR, and that the dismissal of the 2015 lawsuit did not act as res judicata
to bar Save Lafayette from challenging the 2013 EIR. But the court ruled
against Save Lafayette on the merits, rejecting all of its challenges to the
adequacy of the EIR. The court also found that, despite the delay while the
parties pursued the smaller Homes at Deer Hill project, respondents were
entitled under the HAA to the benefit of the zoning in place when the
application for the apartment project was deemed complete in 2011.
The trial court entered judgment in respondents’ favor on January 4,
2022. This timely appeal ensued.
DISCUSSION
Before considering the CEQA challenge, we turn our attention to the
argument that the City of Lafayette should not have approved the resumed
project because the site is now zoned for single-family homes on large lots.
I. General Plan and Zoning Consistency
Save Lafayette contends the project as approved is inconsistent with
the site’s current general-plan land-use designation and with its zoning.
6
Save Lafayette argues the project is governed by the standards in effect in
2018, when the applicant terminated the process agreement and asked the
City to resume processing its application, not by the standards that existed in
2011, when its application was deemed complete. This argument requires us
to consider the interplay among the laws governing general plans and zoning,
the HAA, and the Permit Streamlining Act. (Gov. Code, § 65920 et seq.
(PSA).)
A. Legal Background
Each city and county in California must have a general plan for its
physical development (Gov. Code, § 65300) and local land use decisions,
including zoning ordinances, must be consistent with it. (Id., § 65860,
subd. (a); Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1182.) In
turn, land use permits must be consistent with a site’s zoning. (Land Waste
Management v. Contra Costa County Bd. of Supervisors (1990) 222
Cal.App.3d 950, 959.)
In the HAA, our Legislature has established limited exceptions to these
general rules. The HAA was enacted in 1982 in an effort to address the
state’s shortfall in building housing approximating regional needs, and the
Legislature has amended the law repeatedly in an increasing effort to compel
cities and counties to approve more housing. (California Renters Legal
Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820,
834–835 (California Renters).)
The HAA provides that when a proposed housing development complies
with objective general-plan, zoning, and subdivision standards and criteria in
effect at the time the application is deemed complete, the local agency may
disapprove the project or require lower density only if it finds the
development would have specific adverse effects on public health or safety
7
that cannot feasibly be mitigated. (California Renters, supra, 68 Cal.App.5th
at p. 835; Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066,
1074–1075; Gov. Code, § 65589.5, subd. (j)(1).) Of particular relevance here,
a local agency may not disapprove (or approve in a manner that renders
infeasible) a housing development project for very low-, low-, or moderate-
income households unless it finds, inter alia, that the project is inconsistent
with the zoning ordinance and the general-plan land-use designation existing
when the application was deemed complete. (Gov. Code, § 65589.5,
subd. (d)(5).)2 Thus, even if a project is inconsistent with the current general
plan or zoning standards, under the HAA it may need to be approved if it was
2 Subdivision (d)(5) of section 65589.5 currently provides, as one of the
permissible grounds for disapproving or reducing the density of a housing
development project for very low-, low- or moderate-income households, that
the project “is inconsistent with both the jurisdiction’s zoning ordinance and
general plan land use designation as specified in any element of the general
plan as it existed on the date the application was deemed complete, and the
jurisdiction has adopted a revised housing element in accordance with
Section 65588 that is in substantial compliance with this article. For
purposes of this section, a change to the zoning ordinance or general plan
land use designation subsequent to the date the application was deemed
complete shall not constitute a valid basis to disapprove or condition approval
of the housing development project or emergency shelter.” The final sentence
of this provision was added effective January 1, 2018. (Stats. 2017, ch. 368,
§ 1 (Sen. Bill 167); Stats. 2017, ch. 373, §1 (Assem. Bill 678).) Save Lafayette
argues that the final sentence of this provision cannot be applied
retroactively. We question whether applying the full provision to a project
approval in 2020 constitutes retroactive application of the 2018 amendment
(see Walnut Creek Police Officers’ Assoc. v. City of Walnut Creek (2019) 33
Cal.App.5th 940; Citizens for Positive Growth & Preservation v. City of
Sacramento (2019) 43 Cal.App.5th 609, 626), but in any event, we need not
consider this contention because the added sentence only reinforces the rule
already set forth in the statute: a project must be judged by the planning and
zoning standards that existed when the application was deemed complete,
not by any later changes to those standards.
8
consistent with standards existing when the application was deemed
complete.
Finally, the Permit Streamlining Act addresses processes for
permitting housing and other development projects. (See Gov. Code, § 65920
et seq.) At least two aspects of the PSA are relevant here. First, the statute
requires public agencies to specify up front what information an applicant for
a development project must supply, and then the agency must review
applications for completeness within 30 days of receiving them. (Gov. Code,
§§ 65940, subd. (a)(1), 65943, subd. (a).) The PSA requires an agency to
notify an applicant what information, if any, is missing, and then the process
iterates if the applicant provides further information. “Upon receipt of any
resubmittal of the application, a new 30-day period shall begin, during which
the public agency shall determine the completeness of the application.” (Gov.
Code, § 65943, subd. (a).) If the agency does not determine in writing within
30 days whether an application for a development project is complete, “the
application shall be deemed complete.” (Ibid.) And whether an application is
complete for purposes of the PSA is also relevant under the HAA, which
incorporates by reference the PSA’s definition of a complete application. (See
Gov. Code, § 65589.5, subd. (h)(5).)
Once a development application is deemed complete, the PSA
establishes deadlines for a public agency to approve or disapprove it,
deadlines that vary with the extent of environmental review required. (Gov.
Code, § 65950, subd. (a).) The longest timeline, which appears to apply here,
runs 180 days from the time an EIR is certified. (Gov. Code, §§ 65950,
subd. (a)(1).) The PSA allows only a single 90-day extension of that period.
(Gov. Code, § 65957.) With exceptions not at issue here, “[n]o other
extension, continuance, or waiver of these time limits either by the project
9
applicant or the lead agency shall be permitted,” and “[f]ailure of the lead
agency to act within these time limits may result in the project being deemed
approved pursuant to the provisions of subdivision (b) of [Government Code]
Section 65956,” which establishes requirements for public notice. (Gov. Code,
§ 65957.) That is, if the agency fails to act within the statutory period and
the applicant provides timely notice (enabling the agency to cure), the project
may proceed without agency action, as if it had been approved. (Gov. Code,
§§ 65956, subd. (b), 65957; Linovitz Capo Shores LLC v. California Coastal
Com. (2021) 65 Cal.App.5th 1106, 1120.) The goal of the PSA is “to relieve
permit applicants from protracted and unjustified delays in processing their
permit applications.” (Riverwatch v. County of San Diego (1999) 76
Cal.App.4th 1428, 1438 (Riverwatch).)
The Legislature added the prohibition on waiving the PSA’s strict time
limits in 1998, in response to our high court’s decision in Bickel v. City of
Piedmont (1997) 16 Cal.4th 1040, 1043, 1048–1052, which had held that
applicants could waive the PSA’s time limits. The applicants in Bickel sought
to remodel their house and encountered opposition. After a number of
continuances over the course of almost two years—continuances the
applicants either sought or agreed to—the planning commission denied the
application. The applicants then claimed their application was deemed
approved by operation of law under the PSA’s time limits, a contention the
city council and superior court rejected. (Id. at pp. 1044–1046.) On review,
the high court considered whether an applicant could waive the PSA’s time
limits, and answered in the affirmative. It reasoned that the time limits
primarily benefit the applicant (id. at pp. 1048–1049) and that nothing in the
PSA’s language “prohibits an applicant from voluntarily relinquishing, for
the applicant’s own benefit . . ., the right to an agency decision within the
10
statutory time limits” (id. at p. 1052). Upholding the trial court’s finding that
the applicants had waived the PSA’s time limits, the high court rejected the
argument that the project was deemed approved. (Id. at pp. 1052–1054.)
The following year, the Legislature responded by amending
Government Code section 65957 to specify that the PSA’s time limits may not
be waived by either the project applicant or the lead agency. (Sen. Bill 2005,
Stats. 1998, ch. 283, § 4.) In an uncodified portion of the legislation, the
Legislature declared that it was aware of Bickel, and that it intended to
clarify that the PSA “does not provide for the application of the common law
doctrine of waiver by either the act’s purpose or its statutory language.”
(Sen. Bill, 2005, Stats. 1998, ch. 283, § 5; see Riverwatch, supra, 76
Cal.App.4th at p. 1439.)
B. Analysis
Save Lafayette does not dispute that the apartment project, when
originally proposed, was consistent with the zoning and general plan
designations for the site in 2011. And nobody disputes that the project is
inconsistent with the zoning and general plan designations in effect on June
15, 2018, when the applicant terminated the process agreement and asked
the City to resume processing a variant of its original application. The
question before us is whether, under the HAA, the general plan and zoning
standards in effect when the application was deemed complete in 2011 govern
the project, or whether the PSA’s time limits deprived the City of the power
to act on the application, such that the applicant must be treated as if it had
resubmitted its application when it asked the City to resume processing an
apartment application in 2018.
This is fundamentally a legal issue, which requires us to decide how the
HAA and the PSA apply to undisputed facts. We thus conduct our review of
11
this question de novo. (See Peterson v. Wells Fargo Bank, N.A. (2015) 236
Cal.App.4th 844, 850.) In carrying out this review, we bear in mind that, at
least to the extent we must construe the HAA, the Legislature has instructed
that its provisions “be interpreted and implemented in a manner to afford the
fullest possible weight to the interest of, and the approval and provision of,
housing.” (Gov. Code, § 65589.5, subd. (a)(2)(L); California Renters, supra, 68
Cal.App.5th at p. 836.)
The PSA includes no provision for “ ‘suspend[ing]’ ” consideration of a
project, as contemplated by the process agreement. We thus assume for
purposes of our analysis that the multi-year delay following the process
agreement violated the PSA. But that does not mean we agree with Save
Lafayette that the application’s 2011 “ ‘substantially complete’ ”
determination lapsed under the PSA, or that the City lost power to act on the
application 180 or 270 days after certifying the EIR. According to Save
Lafayette, the applicant’s request to resume processing should be treated as a
resubmission in June 2018 of its project application, or the application should
be deemed resubmitted and reviewed under the standards in effect on a new
“ ‘deemed complete’ ” date.
In practical effect, Save Lafayette’s interpretation would mean the
application was deemed disapproved by operation of law when the City failed
to act on it within 180 or 270 days. But the PSA says no such thing. Rather,
the consequence the statutory scheme provides for failure to act is that a
project is deemed approved, if notice requirements are met. (Gov. Code,
§§ 65956, subd. (b), 65957.) Specifically, if an agency fails to approve or
disapprove a development project within 180 or 270 days after certifying an
EIR, the applicant may elect to provide the necessary public notice, including
a description of the proposed development and its location, the permit
12
application number, the name and address of the permitting agency, and a
statement that the project will be deemed approved if the permitting agency
does not act within 60 days of the notice. (Gov. Code, § 65956, subd. (b).)
An argument could be made that the PSA, taken as a whole, forces a
choice on an applicant where the agency does not act promptly on a complete
application: either provide public notice under Government Code section
65956 or submit to an application lapsing, thus losing the benefit of the HAA.
That is not an impossible reading of the statutory scheme, but neither does
the PSA compel this conclusion. Even less does it compel a conclusion that
an agency implicitly loses power to act on an application once the statutory
time limits pass. We reject Save Lafayette’s reading of the statute for four
reasons.
First is the fact that the statute nowhere states that an application is
deemed withdrawn, deemed disapproved, or deemed resubmitted at a later
date if, after the agency fails to act within the PSA’s time limits, the
applicant fails to perfect its right to “deemed approval.” (See Gov. Code,
§ 65956, subd. (b).) Given that the statute is elsewhere explicit about
deeming an application complete or deeming it approved (Gov. Code,
§§ 65943, subd. (a), 65956, subd. (b)), we consider this silence significant.
Second is the implausibility of the argument Save Lafayette makes in
favor of restarting the clock in 2018. Save Lafayette contends that the
applicant’s request for continued permit processing on the resumed project
served as a resubmittal of the project application, and that the application
should be deemed complete on the date of this ostensible resubmittal. For
this view, Save Lafayette relies on Government Code section 65943, the
PSA’s provision for determining an application’s completeness. In particular,
it quotes the language we quoted above: “Upon receipt of any resubmittal of
13
the application, a new 30-day period shall begin, during which the public
agency shall determine the completeness of the application.” (Id., subd. (a).)
But in the context of the statute, a “resubmittal of the application” refers to a
resubmittal in response to a notice that an application is incomplete, after
which the agency has an additional 30 days to assess the application’s
completeness. (Gov. Code, § 65943, subd. (a); see Orsi v. City Council (1990)
219 Cal.App.3d 1576, 1586 [statutory language and legislative history “make
clear that the Legislature in discussing ‘resubmittals’ was referring to
applications that were resubmitted after the lead agency made a timely
finding that the application as originally submitted was incomplete”].) That
is not what happened here, where the City found the application to be
complete in 2011, no resubmission was required, and no reevaluation of the
application’s completeness occurred.
The third reason we reject Save Livermore’s construction of the statute
is that it stands in tension with the provision of the PSA that expressly
addresses disapproval of applications. Government Code section 65952.2
states that “[a]ny disapproval of an application for a development project
shall specify reasons for disapproval other than the failure to timely act in
accordance with the time limits” of the PSA. If the 2011 project application
were deemed disapproved, that disapproval would only be because of the
City’s failure to “act in accordance with the time limits” of the PSA. (Ibid.)
And, of course, such a silent disapproval would have occurred without anyone
“specify[ing] reasons” for it. (Ibid.)
Our fourth reason for construing the PSA to avoid deemed disapproval
here is because we are not dealing with the PSA in a vacuum, but rather in
its relation to the HAA. The Legislature has found that California has a
“housing supply and affordability crisis of historic proportions” and that
14
millions of Californians are hurt by the “consequences of failing to effectively
and aggressively confront this crisis.” (Gov. Code, §65589.5, subd. (a)(2)(A).)
The Legislative intended in adopting and subsequently expanding the HAA
“to significantly increase the approval and construction of new housing for all
economic segments of California’s communities by meaningfully and
effectively curbing the capability of local governments to deny, reduce the
density for, or render infeasible housing development projects.” (Id.,
subd. (a)(2)(K).) We are accordingly directed to interpret and implement the
HAA to “afford the fullest possible weight to the interest of, and the approval
and provision of, housing.” (Id., subd. (a)(2)(L).) These considerations weigh
in favor of fixing the date on which the application was complete on the date
when the City actually made that determination—in 2011—rather than at
some later date after the City had twice down-zoned the project site to allow
for much less housing development.
Save Lafayette objects that this construction of the statute renders the
Legislature’s post-Bickel amendment of the PSA an idle act. When the
Legislature amended the statute to specify that its time limits cannot be
waived (Sen. Bill 2005, Stats. 1998, ch. 283, § 4 [amending Gov. Code,
§ 65957]), Save Lafayette protests, the Legislature must have meant for the
agency to lose the power to act on an application after the statutory time
limits have passed. We reject this logic. Certainly, the City should comply
with the PSA. If it refuses, a writ might be in order. (See Morris v. Harper
(2001) 94 Cal.App.4th 52, 58; Gov. Code, § 65956 [inviting action pursuant to
Code Civ. Proc., § 1085]; LT-WR, L.L.C. v. California Coastal Com. (2007) 152
Cal.App.4th 770, 789 [writ relief available to compel Coastal Commission to
decide permit application after deadline passed].) But Save Lafayette points
us toward no statutory or case authority for the proposition that, by failing to
15
comply with the time limits of the PSA, the City loses the power to act on a
project application entirely. Indeed, the default rule is that unless the
Legislature clearly expresses a contrary intent, an agency does not lose
jurisdiction to act even after a statutory deadline passes. (LT-WR, L.L.C., at
p. 788, citing California Correctional Peace Officers Assn. v. State Personnel
Bd. (1995) 10 Cal.4th 1133, 1145, 1147.)
We therefore reject Save Lafayette’s contention that O’Brien lost the
benefit under the HAA of having submitted a complete application in 2011,
after the City failed to approve the project within 270 days of certifying the
EIR. The trial court rightly refused to disturb the City’s approval of the
resumed project; its inconsistency with the general plan and zoning
standards of June 2018 was immaterial. O’Brien got a complete project
application on file in 2011, and the HAA requires that such a project be
assessed against 2011 general plan and zoning standards.
II. CEQA Issues
A. Legal Landscape
In its CEQA challenges, Save Lafayette contends that the 2013 EIR did
not adequately examine three environmental impacts, and that respondents
were required to prepare an SEIR rather than an addendum in 2020. In
considering these contentions, we review the City’s action, not the trial
court’s decision. (Tiburon Open Space Committee v. County of Marin (2022)
78 Cal.App.5th 700, 727 (Tiburon).)
With narrow exceptions, CEQA requires preparation of an EIR
“ ‘whenever a public agency proposes to approve or to carry out a project that
may have a significant effect on the environment. [Citations.]’ [Citations.]
The basic purpose of an EIR is to ‘provide public agencies and the public in
general with detailed information about the effect [that] a proposed project is
16
likely to have on the environment; to list ways in which the significant effects
of such a project might be minimized; and to indicate alternatives to such a
project.’ [Citations.] ‘Because the EIR must be certified or rejected by public
officials, it is a document of accountability. If CEQA is scrupulously followed,
the public will know the basis on which its responsible officials either
approve or reject environmentally significant action, and the public, being
duly informed, can respond accordingly to action with which it disagrees.’ ”
(Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511–512, fn. omitted
(Fresno).) Before approving a project, the lead agency must certify that the
EIR has been completed in compliance with CEQA, that the agency has
reviewed and considered the EIR, and that the EIR reflects the agency’s
independent judgment and analysis. (14 Cal. Code Regs. § 15090, subd. (a).)
Once an EIR for a project has been prepared, the agency may not
require a subsequent or supplemental EIR except in specific circumstances.
An SEIR is required only if “[s]ubstantial changes are proposed in the
project” or “occur with respect to the circumstances” of the project,
“requir[ing] major revisions of the [EIR]” or, alternatively, if “[n]ew
information” becomes available. (Pub. Res. Code, § 21166;3 see 14 Cal. Code
Regs., §§ 15162, subd. (a)4 [subsequent EIR], 15163, subd. (a) [supplement to
EIR]; Committee for Re-Evaluation of T-Line Loop v. San Francisco
Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1246
3 All undesignated statutory references are to the Public Resources
Code.
The CEQA Guidelines are found at sections 15000 to 15387 of title 14
4
of the California Code of Regulations. We afford them great weight, unless
clearly unauthorized or erroneous under CEQA. (California Building
Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th
369, 381.) We shall refer to them as the Guidelines.
17
(Committee for Re-Evaluation).) “New information” is that which “was not
known and could not have been known” when the EIR was originally
“certified as complete.” (§ 21166, subd. (c).) And it must be “of substantial
importance,” for example because the new information shows “[s]ignificant
effects . . . will be substantially more severe than shown in the previous EIR.”
(14 Cal. Code Regs., § 15162, subd. (a)(3).) “An agency that proposes project
changes thus must determine whether the previous environmental document
retains any relevance in light of the proposed changes and, if so, whether
major revisions to the previous environmental document are nevertheless
required due to the involvement of new, previously unstudied significant
environmental impacts. These are determinations for the agency to make in
the first instance, subject to judicial review for substantial evidence.”
(Friends of College of San Mateo Gardens v. San Mateo County Community
College Dist. (2016) 1 Cal.5th 937, 944 (San Mateo); accord, Committee for Re-
Evaluation, supra, 6 Cal.App.5th at pp. 1247–1248, 1251–1252.)
The agency is entitled to rely on the whole record in determining
whether an SEIR is necessary. (Friends of Davis v. City of Davis (2000) 83
Cal.App.4th 1004, 1019.) “[T]here is no fixed format for an agency’s analysis
under section 21166”; while it may be helpful to substantiate this
determination in a single document such as an addendum, the ultimate issue
is whether the record as a whole supports the agency’s determination.
(American Canyon Community United for Responsible Growth v. City of
American Canyon (2006) 145 Cal.App.4th 1067, 1083 (American Canyon).)
When some changes or additions to a previously certified EIR are
necessary but none of the conditions calling for a subsequent EIR has
occurred, the agency may prepare an addendum. (Guidelines, § 15164,
subd. (a).) Unlike an SEIR, an addendum need not be circulated for public
18
review and comment, but it can be included in or attached to the final EIR,
and the decisionmaking body must consider it before making a decision on
the project. (Guidelines, § 15164, subds. (c), (d).) The addendum must
explain why the agency decided to prepare an addendum rather than a
supplemental EIR, and this explanation must be supported by substantial
evidence. (Guidelines, § 15164, subd. (e); see Mani Brothers Real Estate
Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397 (Mani
Brothers) [substantial evidence review applied to contention city should have
used SEIR rather than addendum for modified project].)
Often, an agency will certify the EIR for a project and approve the
project at the same hearing. (Bakersfield Citizens for Local Control v. City of
Bakersfield (2004) 124 Cal.App.4th 1184, 1200 (Bakersfield Citizens).) There
is no requirement in CEQA, however, requiring this practice. CEQA simply
requires that when, sometime after certifying an EIR, the lead agency
decides to approve a project, the agency file a notice of determination
indicating whether an EIR has been prepared and made available to the
public, and whether the project will have a significant effect on the
environment. (§ 21108, subd. (a), 21152.)
Finally, we may not interpret CEQA or the Guidelines in a manner
that “ ‘imposes procedural or substantive requirements beyond those
explicitly stated.’ ” (Committee for Re-Evaluation, supra, 6 Cal.App.5th at
p. 1247, citing § 21083.1.)
B. The Permit Streamlining Act Redux
In a variation on its argument that the City lacked authority to act on
the resumed application because the PSA’s time limits had expired, Save
Lafayette contends the City violated CEQA’s procedural requirements when
19
it relied on the “ ‘stale’ ” 2013 EIR rather than preparing an SEIR when the
project was resumed in 2018. We reject this novel argument.
We have already explained that the PSA requires development projects
to be approved or disapproved within specified times, the longest such time
limit being 180 days after an EIR is certified plus one extension for up to 90
days. (Gov. Code, §§ 65950, subd. (a)(1), 65957.) Save Lafayette points out
that CEQA has a similarly short time limit for bringing an action challenging
an EIR (see § 21167), and it contends these provisions combine to prevent a
project from being approved based on a “ ‘stale’ ” EIR. But CEQA’s statute of
limitations for challenging an EIR begins to run only when the agency files
its notice of determination after approving a project (§ 21167, subd. (c)),
which does not prevent an agency from allowing considerable time to elapse
between its decisions certifying an EIR and approving a project.
Logically, Save Lafayette’s argument would mean that an agency could
not rely on an EIR that had been certified more than 180 or 270 days before a
project’s approval. CEQA contains no such prohibition, and the Legislature
forbids us to interpret CEQA in a manner that “imposes procedural or
substantive requirements beyond those explicitly stated” in CEQA or the
Guidelines. (§ 21083.1, italics added; see Berkeley Hillside Preservation v.
City of Berkeley (2015) 60 Cal.4th 1086, 1107–1108.) As “there is no
indication the Legislature meant to modify or accelerate CEQA’s procedures”
in enacting the PSA (Schellinger Brothers v. City of Sebastopol (2009) 179
Cal.App.4th 1245, 1262), we decline to construe the time limitations in the
PSA as creating an implied requirement under CEQA that a project may not
be approved when its EIR is more than 270 days old. Without an express
prohibition in CEQA on the course of action the City and O’Brien pursued, we
cannot conclude CEQA forbids reliance on the original EIR, nor mandates
20
that it be updated with an SEIR. The statute and the Guidelines set forth
the circumstances that require an SEIR, and the circumstance that the
original EIR was certified more than 270 days previously is not among them.
(§ 21166; see 14 Cal. Code Regs., § 15162, subd. (a).)
C. Standard of Review
Save Lafayette next brings more conventional CEQA challenges, both
to the legal sufficiency of the original EIR and to the City’s decision not to
prepare an SEIR. We employ different standards in reviewing these two
decisions.
In reviewing the City’s decision to certify the EIR, our inquiry extends
only to whether there is a prejudicial abuse of discretion, which is established
if the agency has not proceeded in a manner required by law or if its
determination is not supported by substantial evidence. (In re Bay-Delta etc.
(2008) 43 Cal.4th 1143, 1161.) We do not pass on the correctness of the
environmental conclusions in the EIR, but only on its sufficiency as an
informational document. (Ibid.) Our ultimate inquiry is “whether the EIR
includes enough detail ‘to enable those who did not participate in its
preparation to understand and to consider meaningfully the issues raised by
the proposed project.’ ” (Fresno, supra, 6 Cal.5th at p. 516.)
As this is a mixed question of law and fact, “it is generally subject to
independent review. However, underlying factual determinations—
including, for example, an agency’s decision as to which methodologies to
employ for analyzing an environmental effect—may warrant deference.”
(Fresno, supra, 6 Cal.5th at p. 516; see also Tiburon, supra, 78 Cal.App.5th at
p. 728 [failure to comply with CEQA is reviewed independently, but factual
determinations are reviewed for substantial evidence]; County of Amador v.
El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945–946.) We do
21
not defer, however, in determining “whether statutory criteria were
satisfied.” (Fresno, supra, 6 Cal.5th at p. 516.) For example, we
independently review “[w]hether a description of an environmental impact is
insufficient because it lacks analysis or omits the magnitude of the impact.”
(Id. at p. 514.) Applying this principle, the court in Fresno concluded an EIR
was inadequate as an informational document when it identified the health
impacts of pollutants the project produced but did not indicate the
concentrations at which such pollutants would trigger the identified
symptoms, and did not identify the amount of ozone the project would
produce. (Id. at pp. 519–521.)
As we have explained, a different standard of review governs the
decision not to prepare an SEIR but to proceed by way of addendum to the
previously certified EIR. This decision we review for substantial evidence.
(Guidelines, § 15164, subd. (e); Mani Brothers, supra, 153 Cal.App.4th at
p. 1397.) “ ‘Substantial evidence is defined as “enough relevant information
and reasonable inferences from this information that a fair argument can be
made to support a conclusion, even though other conclusions might also be
reached.” ’ ” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198; accord,
Tiburon, supra, 78 Cal.App.5th at p. 728.) We resolve reasonable doubts in
favor of the agency’s findings and decision, and do not overturn its actions on
the ground that a different conclusion would have been equally or more
reasonable. (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs.
(2001) 91 Cal.App.4th 1344, 1356.)
Save Lafayette contends the substantial evidence standard does not
apply in our review of the City’s decision not to prepare an SEIR because the
City did not approve this project when it certified the EIR. Save Lafayette
seizes on a few words in San Mateo, supra, 1 Cal.5th at p. 949, in which our
22
Supreme Court stated, “Once a project has been subject to environmental
review and received approval, section 21166 and CEQA Guidelines section
15162 limit the circumstances under which a subsequent or supplemental
EIR must be prepared.” (Italics added.) That is because, the court explained,
“ ‘[t]he event of a change in a project is not an occasion to revisit
environmental concerns laid to rest in the original analysis.’ ” (Ibid.)
Save Lafayette also relies on cases explaining that the limitations on
supplemental review “ ‘come[] into play precisely because in-depth review has
already occurred, the time for challenging the sufficiency of the original EIR
has long since expired [citation], and the question is whether circumstances
have changed enough to justify repeating a substantial portion of the
process.’ ” (American Canyon, supra, 145 Cal.App.4th at p. 1072, italics
altered, quoting Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065,
1073; accord, Mani Brothers, supra, 153 Cal.App.4th at p. 1398.) As Save
Lafayette accurately observes, the time for challenging the sufficiency of this
EIR expired only recently. Indeed, no challenge to the sufficiency of the EIR
was ripe until 2020, when the City finally approved the project. (See § 21167,
subd. (c) [limitations period for action challenging EIR begins to run after
project approval, with filing of notice of determination].) Save Lafayette
therefore urges us to apply, instead of substantial evidence review, the
standard for evaluating the sufficiency of an EIR as an informational
document in the first instance.
Save Lafayette has found a few favorable phrases in precedent but
taken them out of context. The cases on which Save Lafayette relies are
inapposite because none addresses the effect of a delay between certification
of an EIR and approval of a project. Certainly, none suggests that when an
EIR has been certified but a project not approved, courts should employ
23
something other than the substantial evidence standard that normally
governs in reviewing an agency’s determination to update an EIR by
addendum rather than SEIR.
The language of the statute and the Guidelines refutes Save Lafayette’s
argument. Section 21166 expressly limits the circumstances requiring an
SEIR when an EIR has been “prepared” for a project—as certainly occurred
here—and limits the “[n]ew information” circumstance to instances in which
the information was not, or could not have been, known when the EIR was
“certified as complete.” (§ 21166, subd. (c).) Neither of these benchmarks—
when an EIR is “prepared” or “certified as complete”—has any bearing on
whether or when the project was approved. And turning to the CEQA
Guidelines, we note they expressly distinguish between certification of an
EIR and project approval. (Compare Guidelines, § 15162, subd. (a)(1)–(3)
with Guidelines, § 15162, subd. (c).) Section 15162 of the Guidelines explains
that when an EIR has been “certified,” no SEIR shall be prepared unless one
of the enumerated events has occurred—substantial changes to the project or
its circumstances, or new information. (Guidelines, § 15162, subd. (a)(1)–(3).)
Thus, the Guidelines contemplate that the rules for preparation of an SEIR
apply independently of whether or when a project is approved.
We will accordingly apply the normal standard of review to the City’s
decision to proceed by way of addendum—that is, we review for substantial
evidence. (Mani Brothers, supra, 153 Cal.App.4th at p. 1397.) To the extent
Save Lafayette’s arguments challenge the adequacy of the EIR as an
informational document, however, we will apply the standard of review
described in Fresno.
24
D. Special-Status Species on Project Site
The 2013 EIR reported that numerous animal species with special
status had been recorded, or their presence was suspected to occur, in the
vicinity of Lafayette. The applicant’s consulting biologist considered a total of
23 such species to be potentially present on the site, including one
invertebrate, 14 bird, and 8 bat species. The majority of these species’
activities were likely limited to foraging, but it was possible they could
establish nests or roosts before construction began, according to the EIR. The
EIR reported that most of the special-status amphibian and reptile species
known from the surrounding region, including the California tiger
salamander, the California red-legged frog, and the western pond turtle,
depended on aquatic habitat not found on the site or its vicinity. Nor,
according to the EIR, did the site contain suitable habitat for other special-
status mammal species, including the American badger.
The mitigation measures proposed by the EIR included conducting a
survey for nesting raptors and migratory birds within 14 days before
removing vegetation or beginning construction to identify active nests on the
site and nearby; establishing an adequate setback around any nest location
and restricting vegetation removal and construction until any young birds
have fledged; not demolishing buildings during bats’ winter roosting and
pupping periods; surveying buildings before demolition to avoid “ ‘tak[ing]’ ”
bats that have begun using a structure, and leaving doors and windows open
until demolition if bats are present; assessing trees to be removed for roosting
habitat no more than two weeks before removing the trees and clearing
vegetation; and, to reduce further the effects of the project on wildlife,
providing and enhancing an area of at least 25 feet from the centerline of the
creek as natural habitat.
25
The 2020 addendum explained that the resumed project was generally
similar to the original apartment project analyzed in the EIR and would not
result in new or substantially more severe impacts to biological resources.
The addendum proposed revisions to some of the mitigation measures,
including requiring the survey for nesting raptors and other migratory birds
by a qualified biologist to occur within seven days before beginning vegetation
removal or construction during nesting season, with a resurvey if vegetation
removal or construction was delayed more than seven days.
In response to the addendum, Save Lafayette provided a letter by an
ecologist, Shawn Smallwood, Ph.D., commenting on the project’s effects on
biological resources. Dr. Smallwood reported that he visited the project site
in May 2020. He saw 23 species of birds, five of which are special-status
species. Specifically, he saw osprey flying over the site, a white-tailed kite
foraging on the project site for extended periods, and two red-tailed hawks
foraging, and he heard the calls of a Cooper’s hawk and an olive-sided
flycatcher. He also reported: the project site included riparian woodland that
appeared suitable habitat for the dusky-footed woodrat; a creek likely served
as a movement corridor for the red-legged frog, a California threatened
species; multiple special-status species of bats likely roosted in trees on the
site and used the riparian corridor for movement; and other special status
terrestrial species, including the American badger and the Western pond
turtle, likely used the project site. According to Dr. Smallwood, 42 special-
status bird species had been detected nearby or within the region of the
project site, as had 10 special-status species of mammals, reptiles, or
amphibians. He opined that the EIR and the addendum did not address the
potential for loss of habitat provided by the mature trees that would be
removed under the project and the loss of breeding territory for birds. And he
26
expressed concern that birds would be killed by colliding with windows, for
which he proposed mitigation measures.
Save Lafayette contends the EIR’s discussion of special-status species
did not comply with CEQA’s mandate that an EIR provide the information
necessary for informed decisionmaking and informed public participation. In
light of Dr. Smallwood’s observations, the EIR was incorrect, as was the 2020
addendum, in stating there were no special-status species on the project site,
Save Lafayette contends. (See Ocean Street Extension Neighborhood Assn. v.
City of Santa Cruz (2021) 73 Cal.App.5th 985, 1004.) In the alternative, Save
Lafayette treats the presence of five protected species either seen at or heard
from the project site as new information that required consideration in an
SEIR.
We disagree with both arguments. The EIR specifically contemplated
that protected species may use the project site for foraging and perhaps for
nesting and roosting, although none were seen there in 2013. The EIR
proposed measures to mitigate any harm, measures the addendum
strengthened. Consistent with the possibility that special-status birds might
use the site, Dr. Smallwood observed or heard such species at or near the site
when he visited in 2020. But there is no indication they inhabited or nested
at the site, merely that they were nearby, flew over it, or foraged there. To
the extent Save Lafayette challenges the adequacy of the analysis, we
disagree, concluding the EIR fulfills its role as an informational document
because it anticipates the occasional presence of special-status bird species
even though it did not report any actual sightings. To the extent Save
Lafayette critiques the factual support for the EIR’s conclusions and the
City’s decision to proceed by way of addendum rather than through an SEIR,
27
those are questions we review for substantial evidence, and such evidence is
present here.
Save Lafayette also points to Dr. Smallwood’s conclusion that the site,
particularly the riparian woodland of the creek, contains habitat suitable for
a number of special-status species. And, Save Lafayette points out, Dr.
Smallwood expressed concern that birds would collide with windows at the
project and he proposed mitigation measures. But these concerns do not fall
within any of the categories justifying the preparation of an SEIR—
substantial changes to the project, substantial changes in circumstances, or
“[n]ew information, which was not known and could not have been known at
the time the environmental impact report was certified as complete.”
(§ 21166.)
We are unpersuaded by Save Lafayette’s reliance on Banning Ranch
Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918 (Banning Ranch).
The project at issue there was in the coastal zone, subject to the requirements
of the California Coastal Act of 1976 (§ 30000 et seq. (Coastal Act)) that areas
designated environmentally sensitive habitat be protected against significant
disruption in habitat values, and that development in adjacent areas be
designed to prevent impacts that would degrade them. (§ 30240, subds. (a),
(b); Banning Ranch, at p. 926.) Although there were Environmentally
Sensitive Habitat Areas on the project site, the EIR did not discuss the
subject in detail and omitted any analysis of the Coastal Act’s requirements
for such areas. (Banning Ranch, at pp. 930, 932–933, 937.) The court
concluded this discussion was inconsistent with CEQA’s requirements that
an EIR integrate CEQA review with the requirements of the Coastal Act,
consider regionally significant impacts in a regional context, and evaluate
project alternatives and mitigation measures. (Banning Ranch, at pp. 936–
28
938). By failing to account for the Coastal Act’s specific protections, the EIR
fell short. (Banning Ranch, at p. 941.) But the project site before us does not
implicate the Coastal Act, and Save Lafayette has not identified any other
environmental statute or regulatory scheme the EIR should have addressed.
Nor did the EIR here ignore the possibility that special-status species might
use the project site; rather, it expressly took that possibility into account and
adopted mitigation measures to address it.
Nor do the other cases upon which Save Lafayette relies establish that
an SEIR was necessary. The project in Mira Monte Homeowners Assn. v.
County of Ventura (1985) 165 Cal.App.3d 357, as originally proposed, would
place residential lots within or directly adjacent to wetlands; it was then
revised to eliminate the encroaching lots, and the review continued on the
assumption the development would not encroach on the wetland area. (Id. at
p. 360.) After an EIR was prepared but before it was certified, it was
discovered that a portion of the project would encroach on the wetlands. (Id.
at pp. 360–361.) This discovery, the appellate court concluded, was a change
in circumstances that required preparation of a subsequent or supplemental
EIR before project approval, and by failing to prepare one, the county did not
consider the full range and effectiveness of alternatives and mitigation
measures. (Id. at pp. 364–365.) Here, in contrast, the EIR contemplated that
special-status species might be found on the project site, and it proposed
mitigation measures.
Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1066 is also
of limited utility to Save Lafayette. The question there was whether the
evidence supported a county’s decision to require further environmental
review when the presence of a trout species of special concern had only
recently been brought to its attention. The court resolved doubts in favor of
29
the county and concluded substantial evidence supported its decision. (Ibid.)
The situation here is reversed, as the City declined to require further
environmental review.
Save Lafayette also points to Sierra Club v. Gilroy City Council (1990)
222 Cal.App.3d 30 (disapproved on another point in Western States Petroleum
Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2, 576, fn. 6), but that
case does not assist it. The EIR for a housing development analyzed the
project’s potential to affect the habitat of the California Tiger Salamander,
which had been observed nearby, and proposed measures to mitigate any
impact on California Tiger Salamanders. (Sierra Club, at p. 37.) The
appellate court rejected a project challenger’s contention that the later
discovery of the species on the site required an SEIR, as the issue had
already been thoroughly analyzed in the final EIR. (Id. at pp. 45–46.) In the
EIR before us, the discussion of special-status species was not as robust, but
the document considered the possibility that such species would be present at
the project site when construction began, and it proposed measures to
mitigate this impact.
We thus conclude the EIR was adequate as an informational document,
and the record contains substantial evidence to support the City’s
determination under section 21166 that there were no substantial changes in
the project or its circumstances requiring major revisions to the EIR, nor new
information of substantial importance regarding the project’s effects on
wildlife.
E. Wildfire Risks
Save Lafayette next challenges the adequacy of the environmental
review of the project’s effects on wildfire risks. The CEQA Guidelines’
appendix G checklist indicates that a project’s impact would be significant if
30
the project would “ ‘impair implementation or physically interfere with an
adopted emergency response plan to emergency evacuation plan.’ ” (See
League to Save Lake Tahoe v. County of Placer (2022) 75 Cal.App.5th 63, 133
(Tahoe).)
1. EIR’s Discussion of Wildfire Risks
The 2013 EIR for the apartment project considered whether the project
would expose people or structures to significant risk from wildland fires. In a
one-paragraph discussion, the EIR explained that CalFire includes the City
in its list of cities containing Very High Fire Hazard Severity Zones
(VHFHSZ), but that the project site did not include any areas designated
Very High risk. According to the EIR, the entire project site was in a “ ‘High’
risk zone” and, under the City’s general plan, the applicant would be required
to prepare a City-approved vegetation management plan that included
native, drought-tolerant, and fire-resistant species. And mandatory
compliance with the California Building Code, which included a requirement
for automatic sprinkler systems, would further prevent or reduce the risk to
people or structures from wildland fires.
The EIR also concluded the project would not have a significant impact
on an emergency response plan or emergency evacuation plan, explaining
that the project’s internal roadway system would provide residential and
emergency access, that a mitigation measure would ensure turning radii
were provided on-site, and that vehicles would use three entrance points to
the project site. Therefore, according to the EIR, “the Project would not
impair implementation of[,] or physically interfere with[,] the City of
Lafayette’s Emergency Operations Plan, which addresses . . . natural
disasters, including wildfires[,] and associated impacts would be less than
significant.”
31
2. Addendum
By the time the project was resumed, the addendum reported that the
site’s designation had changed. The site was now within the VHFHSZ on the
City’s adopted map, which depicts data compiled from the Contra Costa
County Fire Protection District fire hazards map and CalFire. Fire risks
were “Very High” because the semi-rural character of the project site,
involving a mix of population with the vegetation and open spaces of a rural
environment, was subject to wildland fires that could cause loss of life and
property.
The addendum included a discussion of evacuation in the event of fire.
The project site is located along the eastern limits of Zone 3 of the City of
Lafayette Emergency Operation Plan. Pleasant Hill Road would serve as the
primary evacuation route for the project but, depending on conditions on
Pleasant Hill Road, Deer Hill Road could also be used. The resumed project
included mitigation measures to ease traffic flow, including during
emergencies, and the addendum reported that with these measures the
project would not adversely affect the operations and emergency response of
the Lafayette Police Department or the Contra Costa County Fire Protection
District. Moreover, the fire protection district would review the project to
ensure adequate emergency access as part of the project’s permitting
approval.
3. Comments and Further Reports
Save Lafayette raised concerns that the project would increase traffic
delays for existing residents in the vicinity if it were necessary to evacuate
due to fire. Members of the public also pointed out that a major fire had
recently taken place at the Lafayette Tennis Club.
32
TJKM, the traffic consultant that had assisted with the EIR and the
addendum, prepared a memorandum addressing concerns about emergency
evacuation. The memorandum, dated June 22, 2020, concluded that by
increasing roadway capacity with the addition of a “through” lane at Pleasant
Hill Road and Deer Hill Road/Stanley Boulevard and a “trap” lane for an on-
ramp onto Highway 24, the project would improve existing evacuation
operations, more than compensating for the additional traffic generated by
the project.
Thomas J. Cova, Ph.D., a professor in the Department of Geography at
the University of Utah, provided comments on the project’s potential effects
on emergency evacuation. He opined that the area could experience fast-
moving fires that left little time for an orderly evacuation, that Pleasant Hill
road, the primary means of egress for communities north of Highway 24, was
likely to become congested during an evacuation, and that the addition of
new residents would “of course” cause delays in evacuation for residents to
the north of the project site. He said the issue required further study. There
is no indication he had reviewed the TJKM report.
Save Lafayette provided a memorandum by a consultant, Lin Zhang,
Ph.D., of the Elite Transportation Group, who reviewed TJKM’s emergency
evacuation modeling and analysis.5 Dr. Zhang opined that TJKM’s models
were flawed. His models showed that in an evacuation, a large number of
vehicles (3,400 with a trap lane and more than 3,800 with no trap lane)
5 This memorandum, dated August 23, 2020, says it was made in part
to respond to a TJKM memorandum dated August 10, 2020. Save Lafayette
does not tell us where in the voluminous record an August 10 report may be
found, and we decline to search for one. (See Del Real v. City of Riverside
(2002) 95 Cal.App.4th 761, 768 [appellate court need not search record on its
own seeking error].)
33
would be “denied entry,” or unable to get onto the streets for evacuation
during the morning peak hours of 7:00 to 8:00 a.m., and that from the project
site, only two percent of vehicles (assuming no trap lane) or 30 percent
(assuming a trap lane) would be able to enter the roadways.
4. Analysis
Save Lafayette makes two primary challenges to the wildfire risk
analysis in its opening brief. First, it argues the EIR was insufficient as an
informational document because after the EIR was certified but before the
project was approved, the City adopted a resolution redesignating the project
site VHFHSZ. This redesignation, Save Lafayette argues, necessitated an
evacuation analysis. Second, it contends, the redesignation constituted a
changed circumstance and significant new information requiring preparation
of an SEIR. These contentions rest in part on a factual mistake and on a
separate misreading of the EIR.
First, the factual mistake: the City adopted an ordinance redesignating
the project site VHFHSZ on June 24, 2013 (apparently at a meeting at which
the City Council also considered the certification of the EIR), and the
ordinance became effective 30 days later. The EIR was certified on August
12, 2013, several weeks after the redesignation went into effect, contrary to
Save Lafayette’s assertion in its opening brief that the site was redesignated
after the EIR’s certification. Respondents’ brief pointed out this mistake, and
in its reply brief, Save Lafayette pivots to arguing that the 2013 EIR was
inadequate as an informational document, not only because the VHFHSZ
designation necessitated a wildfire evacuation analysis but also because its
error in stating the project site was not in a VHFHSZ zone rendered the
description of the environmental setting inaccurate.
34
Second, Save Lafayette misreads the EIR as concluding wildfires were
not a significant risk because “the Project does not include any areas
designated as ‘Very High’ risk.” The clear implication is that the EIR’s
analysis ended there, but that is a gross oversimplification of the EIR. While
the EIR incorrectly noted the project site itself was not designated “ ‘Very
High’ ” risk, the EIR also explained that CalFire included the City in its list
of those with VHFHSZ’s, and that the entire project site was designated a
“ ‘High’ risk zone.” And, it went on, the applicant would be required to
prepare a City-approved vegetation management plan with drought-tolerant
and fire-resistant plantings,6 to install automatic sprinklers as required by
the California Building Code, and to submit to the Contra Costa County Fire
Protection District’s plan review. Those factors, not the simple lack of a
VHFHSZ designation, rendered impacts associated with wildfire risk less
than significant. And, as discussed above, the EIR examined whether the
project would interfere with emergency response and evacuation plans,
concluding that with planned mitigation it would not.
Neither Save Lafayette nor anyone else appears to have objected to the
EIR before it was certified on the ground that its wildfire risk discussion was
inadequate.7 Save Lafayette’s argument now is based largely on the change
6 On our own motion, we take judicial notice of Policy S-4.5 of the
City’s general plan, which requires such vegetation management plans for
developments in high-risk fire areas.
7 Without detailed analysis, respondents suggest a challenge to the
2013 EIR on this ground is barred for failure to exhaust administrative
remedies. Because the adequacy of the wildfire evacuation analysis was
raised before the public hearing at which the project was approved, we will
not treat this challenge as forfeited. (See Bakersfield Citizens, supra, 124
Cal.App.4th at pp. 1200–1201; Galante Vineyards v. Monterey Peninsula
Water Management Dist. (1997) 60 Cal.App.4th 1109, 1121.)
35
in designation of the project site to a “Very High” fire risk zone. To the extent
Save Lafayette continues to maintain its position that this redesignation, in
itself, constitutes significant new information or creates a changed
circumstance requiring an SEIR, we are unpersuaded. Courts analyzing
whether new information necessitates an SEIR look to the physical
characteristics of a site and the actual environmental effects of a project, not
to mere regulatory changes. For example, when CEQA Guidelines changed
and began requiring consideration of greenhouse gas emissions, citizens’
groups were unsuccessful in demanding that SEIRs be prepared to address
the subject. (See, e.g., Citizens Against Airport Pollution v. City of San Jose
(2014) 227 Cal.App.4th 788, 806–808 (CAAP); Citizens for Responsible
Equitable Environmental Development v. City of San Diego (2011) 196
Cal.App.4th 515, 531–532 (CREEP).) The regulatory requirement may be
new, one court explained, but “the potential environmental impact of
greenhouse gas emissions has been known since the 1970’s.” (CAAP, at
p. 807; see also CREEP, at p. 531 [“An SEIR is not required absent new
information, and . . . information on the effect of greenhouse gas emissions on
climate was known long before the City approved the 1994 FEIR”].) So, here,
though the VHFHSZ designation was at some point new, there is no new
information about the physical environment that Save Lafayette points to as
necessitating a new or more detailed analysis than when the property was
still included in a “High” risk zone.
Nor do we agree with Save Lafayette’s argument that the redesignation
rendered the description of the environmental setting so deficient as to make
the EIR inadequate as an informational document. A description of the
environmental setting must describe “the physical environmental conditions
in the vicinity of the project.” (Guidelines, § 15125, subd. (a), italics added.)
36
Although the designation of the project site had changed between the time
the EIR was prepared and its certification, there is no indication the EIR
inaccurately described the physical conditions. It described the area as in a
“High” risk zone and in the same city as “Very High” risk zones, it explained
how that risk would be reduced, and, in the section considering emergency
response plans and evacuation plans, it explained why emergency vehicle
operations would not be impaired and that vehicles would use the internal
roadway system and three entrance points. We are not persuaded that the
EIR failed as an informational document because it did not include a
quantitative analysis of evacuation times, or because it did not reach the
same conclusions as Dr. Zhang.
Save Lafayette relies on Newtown Preservation Society v. County of El
Dorado (2021) 65 Cal.App.5th 771, but that case does not assist it. A county
there prepared a mitigated negative declaration (MND) rather than an EIR
for a project, explaining that there would be road closures during
construction, that the county would coordinate with the sheriff’s emergency
services office and the county’s fire protection district to maintain access to
all residences, and that there would be a specified temporary evacuation
route. (Id. at pp. 775–777.) In response to comments, the county explained
further that if a fire blocked a particular road, the emergency services office
would use other options, listing several possible evacuation routes. (Id. at
pp. 778–779.) The appellate court rejected a contention that the county
should have prepared an EIR to examine the project’s effects on an existing
escape route from the project area, relying in part on the fact that the
emergency services office and the fire department, which had expertise in
emergencies and evacuation, “ ‘were comfortable’ ” with the county’s proposal.
(Id. at p. 789; see also Clews Land & Livestock, LLC v. City of San Diego
37
(2017) 19 Cal.App.5th 161, 176, 194 [rejecting challenge to MND for school in
VHFHSZ when emergency evacuation plan described two evacuation routes,
and school would close on red flag warning days].) The question here is not
whether an EIR should have been prepared but whether the EIR was
adequate. Newtown refutes the contention that the EIR here is deficient
because it lacked quantitative analysis. Whether or not a such an analysis
would have been useful (see Tahoe, supra, 75 Cal.App.5th at p. 137 [finding
evacuation analysis adequate in part based on modeling of evacuation time]),
the EIR contained sufficient information and analysis to allow the public to
discern the City’s analytical route in approving the project (id. at p. 139).
(See also Tiburon, supra, 78 Cal.App.5th at p. 754 [“ ‘That further study . . .
might be helpful does not make it necessary’ ”].)
In reaching this conclusion, we do not quarrel with Save Lafayette’s
argument that if the EIR is inadequate as a matter of law, the TJKM
analysis—which was not the basis for or included in a circulated EIR or
SEIR—cannot save it. As recently explained in Sierra Watch v. County of
Placer (2021) 69 Cal.App.5th 86, 103, “to the extent an agency omits an
adequate discussion of a project’s potential impacts in its EIR, it cannot
afterward ‘make up for the lack of analysis in the EIR’ through post-EIR
analysis.” But Save Lafayette has not shown the EIR was inadequate when
it was certified in August 2013. And TJKM’s analysis is relevant to whether
the City’s decision to proceed with an addendum rather than with an SEIR is
supported by substantial evidence.
Save Lafayette has not shown that substantial changes or new
information necessitated an SEIR to address the project’s effect on emergency
response and evacuation plans. Although Dr. Cova raised concerns about the
effect of the project on evacuation times and Dr. Zhang challenged TJKM’s
38
analysis, the TJKM report concluded that the project’s additional roadway
capacity would actually improve evacuation times. This is substantial
evidence supporting the City’s finding that the EIR’s emergency response and
evacuation discussion was adequate, and no intervening changes or new
information required major revisions to the EIR. (§ 21166.)
Save Lafayette objects that the TJKM report cannot act as substantial
evidence because it was “based on false statements.” At a city council
meeting on August 10, 2020, a TJKM employee testified that, when
considering how students from nearby schools would be evacuated in an
emergency, she called County Connection to ask where the necessary buses
would come from and how big their buses were. She continued, “And
basically they didn’t indicate that there would be any problem at all getting
this number of buses from their yard.” Her statements, Save Lafayette
contends, were “utter fabrications,” contradicted by a letter from the General
Manager and CEO of County Connection, who said no one on his staff could
recall speaking with anyone about the project, and that its ability to respond
to an emergency would depend on factors such as traffic, the nature of the
emergency, the distance, and how quickly County Connection could organize
its employees. At a later city council meeting, the TJKM employee testified
that she had found notes of her conversations with a County Connection
employee, who told her during a brief conversation the size of the buses and
where they would be likely to come from, but that she had not received a
specific commitment to send buses. Her cell phone bill reflected calls to and
from County Connection.
Save Lafayette suggests this is a discrepancy that casts doubt on
TJKM’s credibility and all of its analysis, and the City should therefore have
disregarded TJKM’s report. For this proposition, it relies on Bowman v. City
39
of Berkeley (2004) 122 Cal.App.4th 572, 582–583, which concluded an agency
was within its discretion to discount the credibility of an expert who had
made misrepresentations. We reject the implication that the discrepancy
between the TJKM employee’s statements and the recollection of County
Connection employees compelled the City to reject TJKM’s traffic analysis.
The discrepancy can easily be seen as a failure of recollection on the part of
County Connection employees that does not cast doubt on the reliability of
TJKM’s analysis, and the City was well within its discretion to rely on that
analysis.
F. Tree Removal
The EIR explained that the project would require removal of 91 of the
117 trees on the project site that qualified as “ ‘protected trees’ ” under the
City’s tree protection ordinance, among them a large valley oak with a 58-
inch diameter, which was more than 200 years old. As specified in the Tree
Protection Ordinance, replacement trees would have to be planted. Avoiding
the felling of protected trees would have required a major redesign of the
project, and the EIR treated the impact after mitigation as significant and
unavoidable.
The 2020 addendum reported that the resumed project would remove
ten more trees than the project originally proposed, or a total of 101 trees,
thus preserving 16 instead of 26 trees. As mitigation, 68 more replacement
trees than the 700 originally planned would be planted, for a total of 768 new
trees. With implementation of this mitigation measure, the addendum
concluded, impacts on tree resources would be similar to those identified in
the 2013 EIR, with no new or substantially more severe significant
environmental impacts that would conflict with applicable land use plans,
40
policies or ordinances. The impact remained significant and unavoidable
even after mitigation.
Save Lafayette argues that removal of the additional ten trees creates a
substantially more significant environmental impact requiring preparation of
an SEIR, and that the EIR is inadequate as an informational document
because it does not contain an “ ‘accurate, stable, and finite project
description.’ ” (See County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d
185, 193.) As we have explained, CEQA contemplates that changes in a
project might occur after an EIR is certified, and it limits the circumstances
in which an SEIR must be prepared. (§ 21166.) We are unpersuaded that
the change at issue here renders the project description inaccurate. The
proper question before us is whether substantial evidence supports the City’s
determination that none of the conditions necessitating an SEIR are present.
(See Guidelines, § 15164, subd. (e); Mani Brothers, supra, 153 Cal.App.4th at
p. 1397.)
This record is sufficient to support that determination. As originally
contemplated, the project included removing most of the trees on the site,
including a large valley oak that was more than 200 years old, and the
impact would be significant even after mitigation. Under the resumed project
the valley oak and other oaks to the southeast would still be removed,
rendering the impact still significant and unavoidable, but mitigation in the
form of tree replacement would increase in compliance with the City’s Tree
Protection Ordinance to account for the additional trees now also being
removed. Substantial evidence supports a conclusion that the changes to the
project are not so substantial as to require “major revisions” of the EIR.
(§ 21166, subd. (a).)
41
Save Lafayette relies on American Canyon to argue otherwise, but its
reliance is unavailing. (American Canyon, supra, 145 Cal.App.4th 1062.)
The American Canyon court held further environmental review was
necessary where a mitigated negative declaration for a three-component
project had previously been adopted; there was a 6.5 percent increase in the
size of the retail component of the project, a big box store; the city’s zoning
ordinance treated a five percent increase in the square footage of an approved
structure to be a major modification of a project; and the city inexplicably
excluded some of the building area from the square-footage analysis when
evaluating changes to the size of the retail component. (Id. at pp. 1067–1068,
1075–1077.) Here, in stark contrast, the EIR analyzed the effect of removing
trees, the addendum acknowledged that 10 more trees would be removed
than earlier contemplated and that the impact remained significant after
mitigation, and changes to the project complied with local ordinance by
requiring additional trees to be planted. American Canyon does not persuade
us that an SEIR is necessary to study the effects of removing 10 additional
trees.
In sum, Save Lafayette’s challenges under CEQA all fail. The EIR was
adequate as an informational document, although it lacked the information
Save Lafayette subsequently developed about special-status species and
about wildfire risks, and although the project description changed to include
the felling of additional trees. Nor has Save Lafayette shown that an SEIR
was required to address new information.
DISPOSITION
The judgment is affirmed.
42
TUCHER, P.J.
WE CONCUR:
FUJISAKI, J.
PETROU, J.
Save Lafayette v. City of Lafayette et al. (A164394)
43
Trial Court: Contra Costa County Superior Court
Trial Judge: Hon. Barry Baskin
Counsel: Louzeau Drury, Richard Drury, Rebecca Davis, Victoria
Yundt; and Lason, Scott Sommer for Plaintiff and
Appellant
Coblentz, Patch, Duffy & Bass, Jonathan R. Bass,
Katharine Van Dusen, and Robert B. Hodil for
Defendants and Respondents
Miller Starr Regalia, Arthur F. Coon, Bryan W. Wenter,
Matthew C. Henderson for Real Party in Interest.
44