On May 4, 2016, at 9 a.m. in its San Francisco courtroom, the California Supreme Court will hear oral arguments in yet another of the many significant CEQA cases it has tackled in recent years, this one presenting critically important issues involving the application of CEQA’s “subsequent review” rules.  The case – Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061) – raises issues regarding the appropriate standard of judicial review and degree of deference CEQA requires to be accorded to a lead agency’s environmental determinations when it approves changes to an already approved project that underwent full (and presumptively adequate) CEQA review in its original form.

Specifically at issue is the College District’s adoption of a revised 2011 Addendum to an earlier, never-challenged 2007 Mitigated Negative Declaration (“MND”) for a project consisting of campus-wide facility improvements to the District’s College of San Mateo campus.  The revised facilities plan’s changes included demolition of one building complex (Building 20) that was slated for renovation in the original plan along with removal of a portion of that horticultural complex’s associated (and, apparently, much beloved by students and faculty) landscaping and gardens in order to make way for additional campus parking.  Two other buildings elsewhere on the campus that had been slated for demolition under the previously reviewed project would be renovated instead under the revised project.

The trial and appellate courts held the District’s Addendum was inadequate under CEQA to cover its changes in course regarding the Building 20 area’s disposition.  The lower courts viewed those changes as constituting an “entirely new project” subject to de novo CEQA review under the low threshold “fair argument” standard, rather than a project modification subject to review under the “subsequent review” provisions embodied in Public Resources Code § 21166 and CEQA Guidelines § 15162.  The latter provisions of CEQA contain a strong presumption against further CEQA review and accord substantial deference – in the form of “substantial evidence” review – to the agency’s decisions for even substantially “changed” or “modified” projects, in order to promote the interests of finality and certainty where a project has already undergone a full CEQA review process.  (See, e.g., Pub. Resources Code, § 21166 [when EIR has been prepared for project, “no subsequent or supplemental [EIR] shall be required by the lead agency or any responsible agency, unless one or more of the following events occurs:  …”], emph. added.)  The CEQA Guidelines and case law have extended this “high bar” for subsequent review to situations where the originally reviewed and approved project posed so few environmental concerns that a negative declaration was adopted.  (14 Cal. Code Regs., § 15162(a); Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650; Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467.)

Underscoring the importance of the issues, the Supreme Court granted review of the First District’s unpublished opinion on January 15, 2014, on the following issue:  “When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lisham (2006) 140 Cal.App.4th 1288)?”

If the Court were to hold that a threshold “new” versus “modified” project determination applies and presents a question of law, proceeding under CEQA’s subsequent review rules would be fraught with risk and uncertainty for lead agencies and project proponents.  Trial or appellate judges would then appear to have discretion to decide applicability of CEQA’s subsequent review provisions based on their own subjective determinations about the nature and degree of project changes, and no court has yet (in my opinion) stated any cogent test or analysis for distinguishing “entirely new” from “modified” projects.  Such a ruling would also inevitably result in more litigation, more expense, and more unnecessary and repetitive environmental reviews – all of which it appears were intended to be avoided through the application of CEQA’s subsequent review rules to changed projects.

Due to its significant ramifications for public agencies and project proponents considering and seeking modifications of already approved projects – as is frequently necessary to address changing economic and market conditions and community needs – the case has generated much attention among CEQA practitioners and stakeholders.  Amicus curiae filing briefs in support of the College District’s position include the League of California Cities, California State Association of Counties, Association of California Water Agencies, California Building Association, Building Industry Association of the Bay Area, California Business Properties Association, and the Regents of the University of California.  Weighing in as amici on the petitioner group’s side are the California Preservation Foundation, High Sierra Rural Alliance, Association of Irritated Residents, Revive the San Joaquin, Madera Oversight Coalition, and the Sierra Club.

The Supreme Court’s decision is currently anticipated to be rendered sometime within 90 days of the May 4 oral argument.

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.