The County of San Diego planning staff found a project qualified for a CEQA exemption under Guideline 15183, which applies to projects consistent with a general plan for which an EIR had been prepared.  On appeal, the Board of Supervisors reversed staff’s decision, finding an EIR was required due to environmental impacts peculiar to the project.  The court overturned the Board’s decision, concluding there was no substantial evidence supporting the Board’s conclusion that impacts would not be mitigated by application of uniform policies and procedures, which meant they were no “peculiar” impacts that would prevent application of Guideline 15183.  Hilton Group, Inc. v. County of San Diego, No. D081124 (4th Dist., Feb,.16, 2024).

The Hilltop Group proposed to develop a facility that would recycle inert materials from construction projects.  The project was consistent with the general plan designation and zoning the County had applied in connection with its most recent general plan update, for which it had certified a Program EIR.  The County’s review of the recycling project was convoluted.  First, the County prepared an initial study finding potentially significant impacts and issued a notice of preparation of an EIR.  Second, after the applicant submitted numerous studies and a proposed draft EIR, the County reversed its position.  The zoning administrator found the project exempt under Guideline 15183, and the County’s Planning and Development Services approved the project’s site plan.  Third, several parties appealed, and the Board of Supervisors reversed staff’s decision.  The Board found the project would result in peculiar environmental effects that would not be mitigated by uniform policies and procedures, and that an EIR was required.

The Hilltop Group sued.  The court overturned the Board’s decision, finding the project exempt.  It addressed several aspects of Guideline 15183. 

Relevant Provisions of Guideline 15183Guideline 15183 implements Public Resources Code section 21083.3.  Subdivision 15183(a) provides that projects consistent with zoning or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects peculiar to the project or its site.  Subdivision (b) limits review of such projects to impacts that (1) are peculiar to the project or the parcel, (2) were not analyzed as significant effects in the prior EIR, (3) are potentially significant off-site impacts and cumulative impacts not discussed in the prior EIR, or (4) were previously identified significant effects but substantial new information shows the impacts will be more severe.  Subdivision (f) provides that impacts shall not be considered “peculiar” if uniformly applied development policies or standards were adopted with a finding that they will substantially mitigate the environmental effect, unless substantial new information shows that the uniform policies or standards will not do so. 

Substantial Evidence Standard Applies to a Guideline 15183 DeterminationThe court first confirmed that the substantial evidence standard governs a court’s review of CEQA exemptions, including that of Guideline 15183.  The County argued that the fair argument standard should apply because a project’s eligibility for the 15183 exemption depends on whether the project will have a significant impact.  The court disagreed, noting that the agency also must determine whether the impacts were analyzed as significant impacts in the prior EIR.

Guideline 15183 Can Provide a Partial Exemption By Narrowing the Scope of Subsequent Review.  The court rejected the County’s argument that a project otherwise eligible for the 15183 exemption is entirely ineligible if there are any impacts peculiar to the project or its site.  Rather, the court ruled, Guideline 15183 can provide a partial exemption that limits the scope of a project-level EIR to significant impacts that were not covered in the prior general plan EIR.  While an agency has discretion to choose which streamlining procedure it will use, it is required to limit environmental review of a project when a program EIR has been certified for a general plan and a later project is consistent with the general plan.  Here, the County chose Guideline 15183, which precludes additional review except as might be necessary to examine whether there are project-specific significant effects peculiar to the project or its site. Accordingly, the issue before the court was the extent to which the process was streamlined and what further review was required based on substantial evidence of the project’s peculiar environmental impacts.

Prior Initial Study Did Not Preclude Later Use of 15183 Exemption.  The court rejected the County’s argument that the initial study it had prepared at the outset precluded later use of the 15183 exemption.  It explained that the original initial study merely indicated that more evidence and analysis was required.  Distinguishing several cases decided outside the Guideline 15183 context, the court concluded that “to unequivocally require the preparation of an EIR based on the initial study, even in the face of County staff’s later findings that the project qualified for an exemption, would elevate form over substance.”

The Board’s Finding that Impacts Peculiar to the Project Would Not Be Mitigated by Uniform Policies Was Unsupported in the RecordThe Board found the project would have impacts that would not be mitigated by uniformly applied policies and procedures.  The court overturned this conclusion, finding no substantial evidence in the record to support it.  Numerous studies and the proposed draft EIR submitted by the applicant established that there were no such impacts.  In contrast, the Board’s finding was conclusory and did not identify with specificity either the impacts peculiar to the project or what effect uniform policies and standards would have.  The County claimed its finding was supported by public comments and staff communications expressing concerns that the project may have significant impacts.  The court found these statements were largely speculative and, in any event, failed to address whether the purported project-specific impacts would be substantially mitigated by uniform policies. 

Board’s Decision Was Prejudicial Even Though the Project Was Not DeniedThe County argued that merely subjecting a project to further environmental review was not prejudicial.  The court noted that this position could lead to an indefinite review process without judicial recourse so long as the project application was not formally denied.  It also noted that under Public Resources Code section 21168.5, a prejudicial abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.  Such a prejudicial abuse of discretion was demonstrated here.

The City of Malibu determined that an attached accessory dwelling unit (ADU) did not fall within the coastal development permit exemptions set forth in its local coastal program (LCP). The court overturned the City’s interpretation of its own LCP, finding the ADU exempt from the coastal permit requirement.  Riddick v. City of Malibu, No. B323731 (2nd Dist., Feb. 1, 2024).

Under the Coastal Act, coastal development permits are required for most development.  Owners of a home in Malibu applied to expand their home and add an attached ADU. The City denied the original application, then refused to consider a revised application limited to adding an attached ADU, claiming a coastal development permit was required.  The homeowners sued, contending the project was exempt. 


Malibu’s LCP ordinance exempts from the requirement for a coastal development permit improvements to existing single-family residences, “including all fixtures and structures directly attached to the residence and those structures normally associated with a single-family residence, such as garages, swimming pools, fences, storage sheds and landscaping but specifically not including guest houses or accessory self-contained residential units.” 

The court ruled that the plain meaning of this text describes two categories of exempt structures:  (1) all fixtures and structures directly attached to the house; and (2) structures normally associated with a single-family residence but not including guest houses or self-contained residential units. The court rejected the City’s argument that its interpretation of its own ordinance, under which the phrase excluding guest houses and accessory units would be read to modify the first category as well as the second, was entitled to “great deference.”

The court acknowledged that it must give deference to an agency’s interpretation, but not to the exclusion of other tools of statutory construction.  Here, the language and legislative history of the LCP ordinance were unambiguous, so there was no need to defer.  The text was not technical, obscure, complex, open-ended or entwined with issues of fact, policy and discretion, so did not require the City’s expertise.  The City’s interpretation was not the result of careful consideration by senior City officials and was not long-standing, but was issued by staff in response to this particular application.  The language was not crafted in response to unique local conditions.  Instead, it reflected, almost verbatim, a Coastal Commission regulation implementing the Coastal Act, which described the two categories referenced above. 

The court found irrelevant another provision of the LCP, which states that coastal development permits for both attached and detached ADUs shall be processed as administrative coastal development permits.  The court interpreted this language to indicate how coastal permit applications will be processed and not whether coastal permits are required.  Finally, the court rejected the argument that exempting attached ADUs would be inconsistent with the LCP statutory scheme by allowing an increase in the intensity of coastal development without a coastal permit.  The court noted that the LCP contained exceptions to its exemptions for projects that involve a risk of adverse environmental impact, including ADUs in locations such as a beach or wetland.  It ruled that this language reflects a policy choice to treat single family residences in environmentally sensitive areas differently from other areas in the coastal zone. 

The court declined to rule on the question whether approval of the ADU was mandated by Government Code section 65852.2, which it described as establishing standards under which ADUs must receive ministerial approval. Plaintiffs argued that, under that statute, their ADU application must be deemed complete and they were entitled to ministerial approval of their application. However, the court of appeal ruled that the unique procedural stance of the case – the application was allegedly not completed until after the judgment was entered, and plaintiffs’ cross-appeal, which was limited to the judgment, did not include the trial court’s post-judgment order denying plaintiffs’ motion to enforce the judgment by declaring the revised ADU application complete – precluded the court from considering whether plaintiffs were entitled to a permit within 60 days of the completeness date. 

A court of appeal held a CEQA challenge time-barred because it was not commenced within 30 days after a Notice of Determination (NOD) was filed for approval of a subdivision map based upon a Mitigated Negative Declaration (MND). The fact that the map and its vested rights were conditioned upon a later rezoning did not change that conclusion.  Similarly, the fact that the city re-adopted the MND for each project approval was not dispositive.  “It is the first approval that triggers the running of the statute of limitations, and later approvals do not restart the statute of limitations clock.”  Guerrero v. City of Los Angeles, Nos. B326033 and B327032 (2nd Dist., Jan. 17, 2024).

Developers proposed 42 homes on a parcel in Los Angeles.  The project included a vesting subdivision map and a rezoning ordinance.  In March of 2020, the city adopted an MND for the project, approved the vesting tentative map, and filed an NOD.  In May of 2020, the city again adopted the MND, approved some retaining walls, and filed a second NOD.  More than a year later, in June of 2021, the city again adopted the MND, rezoned the site, and filed a third NOD.

Project opponents filed suit on July 16, 2021, alleging CEQA claims.  They argued their petition was timely because it was filed within 30 days of the third NOD.  The appellate court disagreed, ruling that the suit was barred because it was not commenced within 30 days of the first NOD.   

The court focused on CEQA’s directive that an agency must conduct environmental review at the earliest feasible opportunity, which occurs when an agency commits to a project.  It found that the city made its earliest firm commitment to the project when it approved the tentative map.  Neither the conditions attached to the map nor the fact that rights would not vest until the rezoning was complete were relevant.  Delaying vested rights impacts only the developer’s protection against subsequent changes in local regulations; it does not affect the conclusion that approval of the tentative map constituted a project approval under CEQA. The court also rejected arguments based upon the city’s re-adoption of the MND, reasoning that “because there [had] been no changes to the project requiring a subsequent or supplemental MND, the later adoptions of the same MND [could not] restart or retrigger a new limitations period.”

A court rejected a developer’s attempt to take advantage of provisions in the Housing Accountability Act that prohibit a City from requiring a rezoning when zoning is inconsistent with the General Plan.  It upheld Los Angeles’ determination that the existing zoning was consistent with the General Plan, even though the zoning was not expressly listed as a “corresponding zone” for the applicable General Plan land use designation and the existing zoning allowed less development that the “corresponding zones” that were listed in the Plan. Snowball West Investments v. City of Los Angeles, No B314750 (2nd Dist., Oct., 2023).

Snowball West Investments proposed 215 homes in Los Angeles. The existing zoning for the site was RA and A1, and Snowball requested that it be rezoned to RD5 and R1 to allow its proposed higher density. The City’s General Plan included community plans, and the community plan applicable to the property designated the site Low Residential and Low Medium I.  For each land use designation, the community plan listed “corresponding zones” that were deemed consistent.  It did not expressly list the existing zoning districts, but included a footnote stating that each land use category includes the zones expressly listed as well as any more restrictive zones not listed.

The City denied Snowball’s rezoning application. Snowball then asked the City to accept and process the Project’s approved Vesting Tentative Tract Map for clearance of conditions required for Final Map approval, arguing that under the Housing Accountability Act (HAA), no rezoning could be required. The City refused, and Snowball filed a petition for writ of mandate.  Californians for Home Ownership and the California Building Industry Association filed amicus briefs in support of Snowball’s position.

The court sided with the City.  It ruled that the City acted within its discretion in concluding that the community plan footnote meant the existing zoning was consistent. It rejected the argument by Snowball and Amici that the City violated the spirit of the HAA by relying on low-density zoning to deny this housing project.  “[C]ompliance with the HAA does not mean that every proposed project must be approved or that maximum allowable density must be allowed at every site.” 

Snowball also argued that the City was required to make findings under Government Code section 65589.5(j) of the HAA when denying the rezoning.  The court noted that subdivision (j) requires certain findings for denial of a housing project only when the project complies with applicable zoning in effect at the time the development application is complete. Here, the project did not comply with the existing zoning.  Finally, Snowball argued that the City’s denial of its rezoning application was based on invalid findings under the City’s municipal code, which were also lacking evidentiary support.  The court found the City Council’s decision, which adopted findings made by other City bodies, sufficient.  It also held that they were supported by a voluminous record documenting problems that could result from the rezoning, including inconsistency with the density of surrounding properties and concerns about the ability to evacuate in the event of a wildfire.

The Housing Crisis Act of 2019, which enacted Government Code section 66300, generally precludes a city from reducing the intensity of land use on a parcel where housing is allowed below what was allowed on January 1, 2018.  A court held that this provision prohibits reductions in the Floor Area Ratio (FAR) as well as reductions in density.  Yes in My Back Yard v. City of Culver City, No B321477 (2nd Dist., Oct. 27, 2023).

Culver City initiated proceedings to address community concerns regarding “mansionization” in the City’s R-1 single family residential zoning district. A consultant concluded that houses maximizing the existing FAR are “consistently disliked.”  A staff report opined that because recent state laws preclude counting second units in FAR calculations, the original intent of the FAR had been undermined. Accordingly, an ordinance reducing the FAR in the R-1 district was proposed.

Staff asked the California Department of Housing and Community Development (HCD) whether the proposed ordinance would violate the Housing Crisis Act.  HCD warned that the Act “ta[lk]s about intensity of uses,” and stated that because the proposed FAR reduction could affect the number of bedrooms, the proposed ordinance “might trigger the less intensive use provision.”

In 2020, the Council enacted an ordinance reducing the FAR from .60 to .45.  Yes In My Back Yard sued to invalidate the ordinance. 

The City defended its ordinance by relying on dictionaries to argue the terms “density” and “intensity” are ambiguous. It further argued that the Legislature intended that only a reduction in density, meaning the number of housing units, violates the Act. The court disagreed, noting that the Act itself defines “reducing the intensity of land use” to include reductions in floor area ratio.  “A statute itself furnishes the best evidence of its own meaning, and if an act’s intent can be ascertained clearly from its own provisions, that intent prevails and courts do not resort to other aids for construction.”  The ordinance therefore violated the Act.

A court upheld an ordinance that restricted development standards in designated overlay zones to protect wildlife corridors, finding that it did not establish a “use” that would be subject to certain requirements of the Surface Mining and Reclamation Act (SMARA).  The court also upheld the County’s reliance on CEQA exemptions for the protection of a natural resource and the environment.  It held that the Class 7 exemption requires only protection of a natural resource, not protection of the entire environment, and that a potential for environmental impacts was not sufficient to defeat an exemption.  California Construction and Industrial Materials Association v. County of Ventura, 97 Cal. App. 5th 1 (2023).

The County of Ventura enacted an ordinance creating two overlay zones designed to preserve wildlife corridors. The overlay zones were applied to rural areas, including those in which extraction of minerals could occur. The County found the project exempt from CEQA. Two associations sued, claiming the ordinance violated both SMARA and CEQA.  The court rejected all claims.

SMARA requires that, prior to “permitting a use” that would threaten the potential to extract minerals, the County must submit a statement specifying its reasons to the state for review.  The court agreed with the County that the wildlife corridor ordinance was not subject to this requirement.  In discussing what the Legislature meant by “permitting a use,” the court concluded that had the Legislature intended to include changes in permitting requirements, it would have said so. Further, “permitting a use” did not mean simply changing permitting requirements that may have the potential for changing what uses are permitted.  The court also rejected the project opponents’ argument that the ordinance permits a “use” consisting of a wildlife corridor, noting that the use is by wildlife.  “We are confident that wildlife is loath to seek permission from the County.”  The ordinance only set standards for future developments that might otherwise interfere with wildlife movement, which was not a use.  Finally, the opponents could not show prejudice.  “Nothing in the record shows it is reasonably probably that the Project Opponents would have obtained a more favorable result had the County issued a statement of reasons.” 

The court then addressed the CEQA claims.  The County relied on the common sense CEQA exemption, where it can be seen with certainty there is no possibility that the activity in question may have a significant effect on the environment, and on the Class 7 and Class 8 categorical exemptions, which apply to actions taken by regulatory agencies to assure the maintenance, restoration, or enhancement of a natural resource or the environment.

The court found that there was ample evidence to support the exemptions, including reports regarding the need to preserve wildlife corridors. It rejected the opponents’ argument that mining activity would be diverted elsewhere, since nothing in the ordinance prohibited the extraction of minerals. It also ruled that the exemptions do not require a showing that the project will protect the entire environment; Class 7 requires only protection of “a natural resource.”  

The court also addressed the opponents’ reliance on Wildlife Alive v. Chickering, 18 Cal. 3d 190 (1976), which stated that a reasonable possibility of a significant effect made an exemption improper.  Wildlife Alive was disapproved in Berkeley Hillside Preservation v. City of Berkeley, 60 Cal. 4th 1086, 1102 (2015), in which the California Supreme Court concluded “the Legislature, through the Guidelines, intended to enumerate classes of projects that are exempt from CEQA because, notwithstanding their potential effect on the environment, they already ‘have been determined not to have a significant effect on the environment.’”  Accordingly, the potential for a significant impact was not relevant; instead, the court is to review whether the decision that the project fits within the category is supported by substantial evidence. The court then rejected the argument that unusual circumstances established an exception that precluded application of the exemptions. The opponents cited no evidence that the project was significantly larger than other projects in its class. Also, while the opponents pointed out that the project overlays 10,000 acres of classified mineral resources, they cited no evidence that other projects in Classes 7 and 8 do not overlay similar resources.

The First District Court of Appeal has approved an EIR analyzing a proposed fifty percent increase in density at the Parnassus campus of the University of California, San Francisco. Yerba Buena Neighborhood Consortium, LLC v. Regents of the University of California, 95 Cal.App.5th 779 (2023, petitions for review filed 10/30/2023).

In the five published sections of a much longer opinion, the court rejected neighbors’ claims, holding that:

  • The EIR considered a reasonable range of alternatives to the proposed project and was not required to analyze an additional project alternative focused on constructing a large hospital building at a different UCSF campus. The court relied on two CEQA principles:
    • An alternatives analysis is not required to include both alternatives to the project and alternatives to its location; and
    • CEQA “alternatives” are alternatives to the project as a whole, not alternatives to only one component of the project, such as one building in a campus-wide redevelopment plan.
  • The EIR incorrectly analyzed the project’s impacts to public transit as informational only rather than as CEQA impacts, but the error did not preclude informed participation by the decisionmakers and the public, and therefore did not require invalidation of the EIR.
  • UCSF was not required to preserve historically significant buildings even if they could be repaired and reused for some purpose; the proposed project required their demolition to make way for new buildings as part of the campus revitalization plan. An alternative may be rejected as infeasible if it is “impractical or undesirable from a policy standpoint.”
  • The EIR was not required to analyze aesthetic impacts because the project met the criteria of CEQA section 21099(d)(1), which provides that aesthetic impacts of a “residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” In a case of first impression, the court held that despite the campus’s “Public” zoning on San Francisco’s zoning map, the city’s zoning did not govern; the university’s own “functional zones” allowed commercial uses; and therefore the project satisfied the restriction of “employment center projects” to sites that are zoned for commercial use. 
  • The EIR adequately identified mitigation measures for the project’s wind impacts. Distinguishing – with difficulty – the analysis in East Oakland Stadium Alliance v. City of Oakland, 89 Cal.App.5th 1226 (2023), which reached the opposite result, the court held that the project’s wind mitigation measures were just certain enough to meet CEQA requirements.

This case addressed both application of CEQA’s categorical exemption for renovation of historical resources and application of an exception to the exemption that turned on the question whether the project complied with Secretary of Interior standards regarding renovation of historic structures.  The court ruled that this issue is to be reviewed under the substantial evidence standard rather than the fair argument standard. Historic Architecture Alliance v. City of Laguna Beach, 96 Cal.App.5th 186 (2023).

The Kirbys sought to expand and renovate their house in Laguna Beach, which was listed in the city’s historic register.  During processing of their application, the Kirbys revised their project to conform to recommendations from the city’s historic resources consultant, its heritage committee and city staff, all to bring the project into consistency with Secretary of Interior standards. 

The city found the project exempt under CEQA Guidelines section 15331, the historical resources exemption.  That exemption applies to the “maintenance, repair, stabilization, rehabilitation, restoration, preservation, conservation or reconstruction of historical resources in a manner consistent with the Secretary of the Interior’s Standards for the Treatment of Historic Properties . . . .”  Two historic resources groups sued, alleging the City violated CEQA. 

The appellate court acknowledged that “The Secretary’s Standards are the benchmark that CEQA uses to establish whether a project will have a significant adverse impact on a historical property.”  It confirmed that the substantial evidence standard applies to a determination whether a project fits within a categorical exemption, and concluded that substantial evidence supported the city’s determination that the project was consistent with the Secretary’s standards and therefore fit within the section 15331 categorical exemption. 

The court noted that mitigation measures may not be used to support a categorical exemption but rejected petitioners’ argument that the changes made to the project throughout processing constituted mitigation measures.  “Prior to the City’s approval, revisions were made . . . so the project was consistent with the Secretary’s Standards; these revisions were not mitigation measures as used in the context of CEQA’s mitigated negative declarations, negative declarations, or EIRs.” 

The court then rejected petitioners’ argument that an exception to the categorical exemption applied, which should be evaluated under the fair argument standard.  Petitioners relied on the exception in CEQA Guideline section 15300.2(f), which states “a categorical exemption shall not be used for a project which may cause a substantial adverse change in the significance of a historical resource.”  Pursuant to prior case law, the determination whether the exception applies is reviewed under the fair argument standard.  Under this standard, an agency must determine whether the record shows substantial evidence of a fair argument that there may be a significant environmental effect. The agency is not permitted to weigh the evidence or come to its own conclusion about whether there will be a significant effect.

The court explained that once a city has determined that the project complies with the Secretary’s Standards under the substantial evidence standard, the issue has been resolved and need not be reconsidered in the context of applying the exception under the fair argument standard.  The court explained:

[T]he single inquiry to be determined is whether the project complies with the Secretary’s Standards. During this inquiry, the agency considers the evidence and argument of the opposing sides. If the agency finds the project follows the Secretary’s Standards, the agency’s finding establishes the project does not have a significant impact on the historical resource and the historical resource exception would not bar reliance on the historical resource exemption.

The court concluded that the fair argument standard did not apply and affirmed a trial court judgment denying the writ. 

A court of appeal has upheld Monterey County’s approvals for a desalination plant, rejecting challengers’ claims that uncertainty regarding the availability of source water for the plant necessitated additional CEQA review. Marina Coast Water District v. County of Monterey, 96 Cal.App.5th 46 (2023).

In 2018, the California Public Utilities Commission, acting as the CEQA lead agency, certified an EIR for and approved a Water Supply Project that had two principal components: a desalination plant in Monterey County and slant wells in the City of Marina that would supply brackish water to the desalination plant. The CPUC approval acknowledged that many additional approvals would be needed from other agencies if the project were to be built and operated.

In 2019, the County approved construction and operation of the desalination plant. The County determined that it could rely on the CPUC EIR and did not need to prepare a supplemental or subsequent EIR in its role as a CEQA responsible agency. The County also issued a statement of overriding considerations explaining its decision to approve the project despite its significant and unavoidable environmental impacts. Plaintiffs challenged both the County’s decision not to prepare an additional CEQA analysis and the bases for the statement of overriding considerations.

Plaintiffs Showed No New Information Triggering a Supplemental or Subsequent EIR

Plaintiffs identified five categories of new information that they alleged required the County to re-study the project in a supplemental or subsequent EIR. The court dismissed all of the challengers’ claims, primarily on the basis that the claimed new information was either not new or not relevant to the County’s approvals:

  • The City of Marina’s denial of approvals for the slant wells did not require additional CEQA review. Uncertainty regarding the project’s water source was not new. In addition, the City’s denial would undergo de novo review by the Coastal Commission; accordingly, when the County made its decision, it was not clear whether the project would need a new water source.
  • The County’s condition of approval describing steps the project sponsors would need to take if the plant could not obtain source water, or if construction ceased for more than five years, did not require environmental analysis of those scenarios. The court cited Berkeley Hillside Preservation v. City of Berkeley, 60 Cal.4th 1086, 1120 (2015) for the rule that the potential consequences of an approved project’s failure need not be analyzed when the project is approved.
  • A battle of the experts concerning the existing and future direction of groundwater flow was not new; nor was uncertainty created by the Sustainable Groundwater Management Act. Substantial evidence supported the County’s conclusion that regardless of these uncertainties, the vast majority of the project’s intake water would come from the ocean.
  • Substantial evidence supported the County’s (and earlier, the CPUC’s) conclusion that the expansion of a different water supply project, Pure Water Monterey, was speculative and even if approved and constructed would not represent an adequate alternative supply.
  • The availability of excess groundwater storage capacity, which could in theory be used along with Pure Water Monterey water to provide an alternative supply, was not new information given the decades of groundwater overdraft that had created that capacity.

The County’s Statement of Overriding Considerations Permissibly Relied on Project Benefits That Would Accrue Only if Source Water Became Available

Plaintiffs argued that the County’s statement of overriding considerations for the project’s significant unavoidable environmental impacts was invalid because it relied on water-related benefits that would never materialize if source water could not be obtained. Plaintiffs claimed that the County should have relied only on benefits from the portion of the project that was subject to its jurisdiction – the desalination plant. The court rejected this argument, holding that for purposes of a statement of overriding considerations by a responsible agency, the “project” whose benefits are described is the whole project, not only the portion of the project that is within the responsible agency’s jurisdiction to approve.

Finally, plaintiffs argued that the County’s statement of overriding considerations was defective because it did not describe the uncertainty of the project’s source water supply. The court, citing extensive evidence in the record of robust public debate on this issue, held that neither the decisionmakers nor the public were deprived of information on this topic.

The Third District Court of Appeal has held that Sacramento County’s environmental impact report for a master planned community complied with CEQA’s requirements for analysis of greenhouse gas emissions. Tsakopoulos Investments, LLC v. County of Sacramento, 95 Cal.App.5th 280 (2023). Describing in detail the County’s analysis, the court held that substantial evidence – encompassing both County-specific and land use-specific data – supported the County’s choice of numeric significance thresholds for GHG emissions.

The project the County approved included more than 3,500 residential units, an environmental education campus, a research and development park, two schools, and 21 acres of commercial-retail uses, as well as park, community center and open space uses, on an 848-acre site.

The plaintiff claimed that the methodology the County used to identify significance thresholds for the project’s GHG emissions was the same as the methodology rejected in two earlier cases: Center for Biological Diversity v. Department of Fish & Wildlife, 62 Cal.4th 204 (2015), and Golden Door Properties, LLC v. County of San Diego, 27 Cal.App.5th 892 (2018).

In Center for Biological Diversity, the EIR used the Air Resources Board’s 2008 Scoping Plan target of a 29 percent statewide reduction in business-as-usual GHG emissions as its significance threshold for a development project. The California Supreme Court disapproved this significance threshold, finding no substantial evidence in the project record that the state’s 29 percent statewide GHG reduction goal was “the same for an individual project as for the entire state population and economy.”

In Golden Door, the EIR applied a uniform significance threshold of 4.9 metric tons of CO2 equivalent per person per year. Because the County based this threshold on statewide rather than local data, and treated all land uses as the same, the court held that this EIR’s GHG significance threshold, like that rejected in Center for Biological Diversity, was not supported by substantial evidence. 

The court in Tsakopoulos held that the County’s GHG thresholds of significance differed from those invalidated in the earlier cases. For its general plan update in 2011, to identify its share of the state’s 2020 GHG reduction goals, the County used specific countywide rather than statewide data to model the county’s existing GHG emissions; divided those emissions into transportation, residential, commercial and industrial sectors, among others; applied the same percentages to those sectors in the future; and set sector-by-sector thresholds. For the master plan project, the County updated its thresholds to account for the then-new 2017 Scoping Plan. Again using countywide and sector-specific data rather than statewide data, the project EIR identified significance thresholds of 0.73 metric tons of CO2e per capita per year for residential; 4.28 metric tons per 1,000 square feet for commercial and industrial; and 1.47 metric tons per capita for transportation. Rather than make assumptions based on statewide information, as in the cases on which the plaintiff relied, here the County supported its significance thresholds with relevant and substantial evidence.