In a published opinion filed on August 17, 2020, the Third District Court of Appeal mostly affirmed the trial court’s judgment upholding Placer County’s partial abandonment of public easement rights in an emergency access/public transit road connecting two Lake Tahoe-area residential subdivisions; the County took the action to resolve disputes that had arisen after one subdivision’s residents began using the road as an all-purpose public road and short-cut through the other subdivision to get to Northstar-at-Tahoe.  Martis Camp Community Association v. County of Placer, et al. (Retreat at Northstar Association, et al., Real Parties in Interest) (2020) 53 Cal.App.5th 569.  My partner Bryan Wenter’s post covers the land use issues at the heart of the case, and can be found here; readers should consult that post for the case’s factual background and primary holdings.  This post covers the CEQA issue at the “tail end” of the opinion, which involved application of CEQA’s “subsequent review” rules to County’s partial road abandonment project.

Relevant Background And The Court’s CEQA Holding

For its CEQA compliance, the County prepared and relied on an addendum to the 2005 EIR certified for the first-approved, “Martis Camp” subdivision, a 2,200-acre, 650-lot gated private residential community with access to the public road and highway system via State Route (SR 267).  It was Martis Camp’s residents who in 2010 began using the emergency access road at the eastern edge of that property as a short-cut through the second-approved (also in 2005) subdivision, the “Retreat at Northstar,” a 31-acre development with 18 custom homesites immediately to the east of Martis Camp.  The emergency access road connected Schaffer Mill Road, the main private roadway running through Martis Camp, to Mill Site Road, the (previously public) road running through the Retreat that connects it to public roads serving Northstar Village and other developments to the east.  The County’s partial abandonment of Mill Site Road, which was initiated by the Retreat owners to stop the cut-through traffic, essentially converted that road to a private road for the use of Retreat owners, subject to reservation of public easements for public transit, utilities and emergency access.

The “CEQA snag” in County’s actions was that it prepared an addendum to the wrong project’s EIR since Mill Creek Road was a part of the Retreat project, not the Martis Camp project.  Per the Court, the mistake was understandable “from the perspective of informed decision making” since “the sole effect of the abandonment was to alter traffic circulation patterns in the Martis Camp community, which was analyzed in the Martis Camp EIR.”  Nonetheless, it was “inconsistent with the requirements of CEQA” because the Mill Site Road abandonment was a discretionary approval of a change to the Retreat project, not the Martis Camp project.  Indeed, as the Court concluded from detailed analysis earlier in its opinion, the Martis Camp project’s conditions of approval already prohibited non-emergency/public transit use of Mill Site Road by Martis Camp residents via the emergency road connection, so modification to the Martis Camp project was neither required nor approved through the County’s action.

After setting forth CEQA’s subsequent review rules and supporting statutory and case authorities, and holding no substantial evidence supported the County’s finding that the abandonment modified any part of the Martis Camp project approved in 2005, the Court also rejected the County’s argument that “it was a change in the circumstances surrounding that project.”  The Court observed that “the question of whether further environmental review is required for a project arises only when the public agency makes a further discretionary decision to carry out or approve that project.”  (Emph. Court’s, citing CEQA Guidelines, § 15162(c).)  Thus: “If no further discretionary approvals are required, supplemental environmental review is not required, even if the circumstances surrounding the project change or important new information becomes available.  [Citations]  Here, because Mill Site Road was not part of the Martis Camp project, abandonment of the road did not require a further discretionary approval for the Martis Camp project.  [¶] . . . Because the abandonment of Mill Site Road modified the Retreat project, we conclude the County should have looked to the Retreat EIR to determine whether the previous environmental document retains relevance in light of the proposed project modifications.”  (Citing Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944.)

Accordingly, while the Court understood the County’s “practical desire to use the Martis Camp EIR, since the effect of the abandonment is simply to restore traffic patterns to those . . . envisioned by the Martis Camp project and analyzed in its EIR[,]” it also was “not aware of any authority that allows an agency to conduct subsequent environmental review of a change to a project by relying on analysis from a prior EIR prepared for a different project.”

In a footnote, the Court noted that it did not read The Supreme Court’s San Mateo Gardens decision “as authorizing a lead agency to choose any prior environmental review as long as it has some “informational value.””  The subsequent review provisions apply to a modified prior project that has been subject to environmental review, but not if the agency deals with a proposed new project not previously analyzed in the original environmental document.  Per the Court: “By parity of reasoning, we conclude the subsequent review provisions do not apply when an agency approves changes to a different project subject to a different environmental document.”

Further, the Court held that reliance on an addendum to the wrong project’s EIR was clearly prejudicial “because the County failed to consider whether the proposed abandonment will require major revisions to the Retreat EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.”

SEIR vs. Addendum And Baseline Issues Not Resolved

The Court also provided guidance on, but did not decide, a question of key practical importance to the parties: would an addendum suffice or would a subsequent EIR be required to account for the additional VMT and emissions resulting from shifting Martis Camp “short-cut” traffic from the emergency connector/Mill Site Road back onto SR 267 (a longer route to Northstar), as was always intended by the County’s planning and environmental documents, and as had been the case before the “shortcuts” began?  The Court observed that an SEIR is required when necessary to explore the impacts of a substantial change not considered in the original EIR, and if the impacts resulting from project changes do not differ significantly from those described in the prior EIR, then an SEIR is not required.  (Citing Pub. Resources Code, § 21166; River Valley Preservation Project v. Metropolitan Transit Development Bd. (1995) 37 Cal.App.4th 154, 166-167; Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1079-1081.)  Per the Court: “Unlike the Martis Camp EIR, the Retreat EIR never analyzed the traffic-related impacts of Martis Camp vehicles traveling to/from Northstar via SR 267.  It had no reason to since those trips were not direct or indirect impacts of the Retreat project.  But this does not necessarily mean the County would be required to prepare a SEIR, since there is nothing to suggest that impacts from the modified project are any different from the original project analyzed in the Retreat EIR.  We express no opinion here on this issue.”

The Court further observed that different rules govern initial review of a project under Public Resources Code § 21151 than apply to supplemental review under § 21166, which “provides that an agency may not require preparation of another EIR unless ‘substantial changes’ in the project or its circumstances will require ‘major revisions’ to the EIR.”  (Citing Bowman, at 1073.)  Consideration of plaintiffs’ improper baseline argument was held premature pending County’s determination, in the first instance on remand, and as a factual matter, whether the Retreat EIR retains informational relevance despite changes to the project and its circumstances; and then, if so, whether the changes require major revisions to the Retreat EIR due to the involvement of new significant effects or a substantial increase in the severity of previously identified significant effects.  (Citing San Mateo Gardens, at 952-953.)  (Obviously, if the County were to determine the Retreat EIR retained no informational relevance, it would have to start from scratch, analyzing the abandonment as a new project under CEQA’s initial review rules.)

Conclusion and Implications

The CEQA snag hit by the County as a result of the Court’s opinion here will likely not hinder it for long.  The Retreat project’s 2005 EIR will undoubtedly be found by the County to retain informational relevance – a determination subject to deferential substantial evidence review – and the partial Mill Site Road abandonment would not appear to be a substantial change in the Retreat project itself that would require major revisions of its EIR; it does not increase the impacts caused by that project, which never contemplated or studied “cross-cut” traffic originating outside the subdivision that its uses did not generate and that County’s laws, regulations and plans did not allow.  Nor, as the Court pointed out, did the Retreat EIR study impacts of Martis Camp traffic using its intended SR 267 route to Northstar, and it had no reason to do so.  As the Court also observed, CEQA’s subsequent review rules for modified projects differ materially from its initial review rules for entirely new projects, as do its baseline rules, and there are substantial hurdles to overcome before a subsequent EIR can be required.  But it will certainly be interesting to see if this case generates further litigation or published precedent.

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.