In a lengthy and scholastic published opinion filed May 27, 2014, the Fifth District Court of Appeal reversed and remanded the trial court’s decision, which had upheld the EIR and other approvals (including a General Plan Amendment, Specific Plan, rezoning, and Development Agreement) for the Friant Ranch project.  The proposed project was a master-planned senior community to be located on 942 acres of unirrigated grazing land adjacent to Friant near the San Joaquin River.  Sierra Club v. County of Fresno (5th Dist. 2014) __ Cal.App.4th __, 2014 WL 2199317.  The Court of Appeal rejected Plaintiffs’ and Appellants’ claims of General Plan inconsistency and inadequate hydrogeology and wastewater disposal analysis, but found the EIR’s air quality impacts analysis insufficient and its related mitigated measures vague, unenforceable and improperly deferred.  The lengthy opinion contains various holdings and analyses of interest to CEQA and land use practitioners and their clients; while few break truly new ground, many serve as helpful reminders, primers and interstitial analyses of settled principles.  Key takeaways in this regard include:
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In a partially-published opinion filed January 30, 2014, the First District Court of Appeal, Division 3, reversed the trial court’s judgment denying a writ petition, and held that Caltrans must correct certain deficiencies in its EIR for a highway construction project to realign a 1-mile stretch of US Route 101 through Richardson Grove State Park (Park).  (Lotus v. Department of Transportation, et al. (1st Dist., Div. 3, 1/30/14) 223 Cal.App.4th 645.)  While rejecting many of appellants’ challenges, the Court of Appeal in the published portion of its opinion held the EIR “failed to properly evaluate the significance of impacts on the root systems of old growth redwood trees adjacent to the highway.”
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The EIR has long been the judicially-proclaimed “heart of CEQA” because it represents the culmination of the statute’s environmentally-protective purposes and objectives.   Yet the legal “expiration date” for the document embodying CEQA’s highest purposes is often subject to debate and confusion.  A public agency’s reliance on an “old” EIR is inherently fraught with the risk of legal challenge by project opponents.  But, as a recent First District decision reminds, such reliance may be perfectly proper under CEQA’s applicable rules, which focus in this context on not “reinventing the wheel” – the “wheel” being the EIR – without very good reason to do so; they also defer to the lead agency’s reasoned decision in this regard.
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In a recent decision extensively analyzing and applying CEQA’s rules on alternatives analysis, recirculation, and a petitioner’s burden to show agency error, the Third District Court of Appeal affirmed the Nevada County Superior Court’s judgment denying a writ petition challenging a commercial real estate project.  South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13) 221 Cal.App.4th 316.

Plaintiff “Smart Growth” challenged County’s approval of the 20-acre Higgins Marketplace Project being developed by Katz Kirkpatrick Properties (KKP) in southwestern Nevada County.  The Draft EIR (DEIR) analyzed subdivision of the site into 10 parcels, with approximately 80,000 square feet of retail uses, two fast food restaurants, 482 parking stalls, reservation of 5 acres for future development of 42,000 square feet of light industrial and office uses, and preservation of about 3.26 acres of wetlands with a 25-foot buffer.  It identified three significant and unavoidable impacts – two traffic impacts and one cumulative air quality impact – and found all other impacts would be less than significant with mitigation.  It analyzed four (4) project alternatives, including the CEQA-mandated no project alternative; a restricted turning access alternative to try to avoid SR 49 impacts; a business park alternative under current general plan designations (designed to reduce traffic and noise); and a redesign/reduced density alternative which would eliminate 6,500 feet of commercial development, relocate the fast food restaurants, and provide greater buffers to reduce biological, noise, visual and traffic impacts.


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