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California Court of Appeal Upholds Development Project EIR Even though Large Component of the Project Would Not Likely Be Built

California Court of Appeal Upholds Development Project EIR Even though Large Component of the Project Would Not Likely Be Built
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The California Court of Appeal for the Third Judicial District has rejected a laundry list of claims under the California Environmental Quality Act (CEQA) brought by the Environmental Council of Sacramento and the Sierra Club (Environmental Council) centered around an Environmental Impact Report’s (EIR) inclusion of a university component of a project that was not likely to be built. The court found that, regardless of the uncertainty regarding the university component, project approvals included a number of provisions to entice a university to locate to the project area, which was adequate for purposes of the EIR and CEQA. [Environmental Council of Sacramento et al., v. County of Sacramento et. al., ___Cal.App.5th___, Case No. C076888 (3rd Dist. Jan. 30 2020).]

Factual and Procedural Background

The subject project would be located on an undeveloped 2,669 acre site in southeastern Sacramento County previously used for grazing. As part of the project, the county approved a wide range of uses for the project site including residential, office, retail, a university campus, schools, parks, and a network of trails. The project would add a total population of 25,519 to the county, or 21,379 without the university component. Pursuant to the county’s General Plan criteria and principles for special planning areas (SPAs) in new growth areas, the project was required to include an affordable housing plan, urban services plan, fiscal impact analysis, public facilities financing plan, air quality mitigation plan, greenhouse gas plan, and a development agreement. The project also required approval of a General Plan amendment, zoning amendments, and a tentative subdivision map.

The county approved the project in January 2013 at the same time it certified a final EIR, along with findings of fact, and a statement of overriding considerations.

According to the EIR, the Cordova Hills SPA reserved 224 acres for a future unidentified university campus with 6,000 undergraduate and graduate students, 2,036 employees, and 1,870,000 square feet of facilities. Project proponents previously identified the University of Sacramento as likely to relocate to the project site, however the university withdrew and it was uncertain at project approval whether a university would ever occupy the site.

Despite this uncertainty, the development agreement for the project contained a number of provisions to promote development of a university at the project site. First, the development agreement required the project site to revert to the county if a university was not located there within 30 years. During this 30-year period, the project proponent was prohibited from applying for a change in land use designation for the prospective university site. The project owner was also required to provide the county with annual updates on its efforts to secure a university. The project owner was also required to set up a “university escrow account” where the developer would deposit millions of dollars for every thousand building permits issued for the project.

In March of 2013, the Environmental Council filed a petition for writ of mandate  At its core, the petition alleged that the project EIR failed to analyze the impacts of the project buildout without the project’s planned university component, because market factors made it unlikely that the university would actually be built. The Environmental Council’s petition challenged the adequacy of the EIR’s project description and analysis of environmental and land use impacts, the county’s alleged failure to adopt feasible mitigation measures, and an alleged failure to re-circulate the EIR after the county learned that a university tenant was unlikely. The trial court rejected the petition on all grounds.

The Court of Appeal’s Decision

The Third District Court of Appeal began by highlighting several general CEQA principles. As the court noted:

“An EIR project description should include reasonably foreseeable future activities that are the consequence of project approval. It should address environmental effects of future action, if there is credible and substantial evidence that (1) it is a reasonably foreseeable consequence of the project, and (2) the future action will be significant in that it will likely change the scope and nature of the project and its environmental effects.”

The court went on to reject each of the Environmental Council’s arguments attacking the project EIR.

Project Description

First, the court found that the EIR’s project description was not rendered inadequate merely because it contemplated a university that was not certain to be built. Attracting a university is a “daunting” task, and the difficulties in attracting a university were incorporated into the EIR. Specifically the EIR imposed several obligations on the developer and the county designed to attract a university, including $87 million incentives and commitments. Contrary to plaintiffs’ claims, the county was required to assume that all phases of the project, including the university, would be built. The proposed university was not an illusory element of the project based on pure speculation and was not included only to minimize the project’s likely environmental impacts.

Air Impacts Analysis

The court went on to dismiss Environmental Council’s claims that the EIR failed to

adequately analyze air quality impacts. The EIR found that the project would have significant and unavoidable impacts from Nitrogen (NOx) and reactive organic gas (ROG), however the EIR contained a statement of overriding considerations and included a mitigation measure that required the project to achieve an objective of a 35 percent reduction in overall total project emissions;  all future amendments to the project’s SPA were also required to be analyzed for their air quality impacts to insure they would not exceed the project’s target air quality impact reductions.

The court also determined that recirculation of the EIR was not required after changes to the above mitigation measure occurred between publication of the draft EIR and final EIR. Though, without a university, the project may only reduce NOx and ROG emissions by 20% and not 35 percent, the court noted “it is debatable whether a 15 percent reduction in mitigation is a substantial increase in the severity of these particular environmental impacts.” In any event, the court noted that revisions to the EIR’s mitigation measures did not increase overall environmental impacts from the project.

Greenhouse Gas Emissions Analysis

The court also rejected the Environmental Council’s claims that the EIR failed to adequately examine greenhouse gas impacts (GHG). As the court noted, the EIR included a mitigation measure requiring that all future specific planning area amendments analyze resulting GHG emissions. Pursuant to this measure, the project proponent needed to revise a GHG reduction plan for the project to ensure that any change in the project would not result in an exceedance of the project’s area-wide 5.80 metric-tons-per-capita significance threshold.

Traffic Analysis

The Environmental Council also failed to establish that the EIR inadequately analyzed traffic impacts. As the court noted, plaintiffs made a number of mistaken assumptions with this claim, including an assumption that the non-automotive mode assumed by the EIR for university area trips had a larger than actual reduction on the overall mode-share in the SPA. The court also noted that plaintiffs failed to account for the fact that removing the university from the project would result in 9,000 fewer daily trips.

Project Consistency

The court also rejected the Environmental Council’s claims that the EIR failed to address the project’s consistency with the Sacramento Area Council of Government’s Metropolitan Transportation Plan / Sustainable Communities Strategy (MTP/SCS). Nothing in Senate Bill 375 requires this type of consistency analysis, and plaintiffs did not cite any CEQA provision requiring such an analysis.

Phased Construction Schedule

Last, the court rejected plaintiffs’ argument that the EIR needed to adopt a “phased” construction schedule to ensure that a university would be constructed. The Environmental Council did not cite any evidence in the record that such “phasing” was a feasible mitigation measure.

Conclusion and Implications

This case highlights the core functions underlying EIRs in the California Environmental Quality Act review process. EIRs are not required to be perfect, but are required to analyze the reasonably foreseeable impacts of a project at the time the application is considered to provide local agencies with detailed information about a project’s likely impacts. Even if some project components are not ultimately completed because of market conditions and otherwise, an EIR that includes those components is not defective unless those components are purely illusory or included to mask a project’s real-life impacts. The court’s opinion is available online at:

(Travis Brooks)