Court Must Defer to Local Agency Decisions if Supported by Substantial Evidence

The court of appeal reaffirmed that a court should not second guess or “micro-manage” the development decisions of municipal governments; rather, the courts are simply charged with reviewing whether there is substantial evidence in the record supporting the city’s decision. Kutzke v. City of San Diego, 11 Cal. App. 5th 1034 (2017).

A developer proposed to subdivide a large parcel of property in the La Playa neighborhood of Point Loma in San Diego. The La Playa neighborhood is characterized by very-low-density large single-family homes of various ages and architectural styles. The property is currently the site of a residence constructed initially in 1929, designed by a master architect and the long-time home of a prominent figure in San Diego, Joseph E. Jessop. Among the goals and objectives of the applicable community plan include conservation of the character of existing single-family neighborhoods, such as the low-density nature of the La Playa neighborhood.

The proposed project would subdivide the property’s two existing lots into four lots. One lot would continue to have the existing 1929 residence.  New residences would be constructed on the three other lots.  The four lots would share a private driveway, which would be too steep for fire trucks to access the property. However, the project would include the installation of standpipes near the three rear residences for fire department use.The project would deviate from the City of San Diego’s municipal code in three ways.  First, the residence on the front lot would not comply with the minimum rear-yard setback. Second, the residences on the three rear lots would deviate from the minimum street footage requirement, as they would have no street footage at all. Third, one of the lots would have a retaining wall that exceeded the maximum, six-foot height. The project thus required approval of deviations from the city’s municipal code.

The city’s initial study concluded that there would be a potentially significant impact to paleontological resources.  However, the owner agreed to mitigation measures that would reduce the impact to less-than-significant levels.  As such, the city prepared a mitigated negative declaration to comply with CEQA. The local community planning board recommended denial of the project due to concerns about fire safety, fire truck access, density, and the appropriateness of the necessary deviations. However, the planning commission approved the project, and certified the mitigated negative declaration.

An opponent appealed the planning commission’s approval to the city council. After a public hearing, the city council reversed the planning commission’s decision to approve the project. The city council also concluded that the mitigated negative declaration was inadequate, particularly as to the project’s potential impacts on geology, land use and public safety. The city council also found that the project was inconsistent with the applicable community plan and that the requested deviations were inappropriate and would not result in a more desirable project as required by the municipal code. The superior court reversed the city council’s decision, finding that there was insufficient evidence to support the city’s decision.

The court of appeal reversed, finding that there was substantial evidence in the record to support the city’s decision to deny the project. In doing so, the court of appeal reiterated well-established law that it must uphold the city’s decision to deny the project if substantial evidence supported any one of the city council’s findings underlying its decision to deny the project.

In reviewing the record, the court of appeal found substantial evidence to support the city council’s finding that the project was not consistent with the community plan.  It stressed that such a finding need not be supported by expert evidence.  Rather, opinions and objections of neighbors can be sufficient.  Here, these opinions were corroborated by visual simulations of the project and photographs of the surrounding neighborhood. The simulations also demonstrated the inconsistency of the project with the surrounding neighborhood’s density and character. The court of appeal concluded that, collectively, this evidence was sufficient to support the city council’s decision.

With respect to impacts on public health, safety, and welfare, the court of appeal found the record to contain substantial evidence, including expert opinions, that the project could not be built safely on a steep sandstone hillside and would present significant challenges for fire and emergency services. Similarly, this evidence supported the city council’s conclusion that the project was inappropriate for its proposed location and the required deviations would not result in a more desirable project.

The court of appeal recognized that it is the city council’s role—not the court’s—to weigh whether evidence from the project proponent was more persuasive. Because the project proponent could not establish that no reasonable city would have reached the same decision as the City of San Diego did here, the court of appeal concluded that the city council’s decision should be upheld.


Attorney Neglect Not Grounds For Relief From Summary Judgment For Failure to Lodge Administrative Record

A party against whom summary judgment is entered as a result of attorney neglect may not seek relief under a statute that provides relief from a default judgment or dismissal resulting from attorney neglect. The Urban Wildlands Group, Inc. v. City of Los Angeles, 10 Cal. App. 5th 993 (2017).

The plaintiff challenged the City of Los Angeles’s finding that a project was exempt from additional environmental review under CEQA. The parties stipulated that the plaintiff would lodge the administrative record with the court. Because of a mistake on the part of the plaintiff’s attorney and his new legal assistant, the plaintiff did not lodge the record before the stipulated deadline. After a hearing, the trial court found that the plaintiff could not support its arguments because it had failed to lodge the administrative record. Accordingly, the trial court denied the plaintiff’s petition and complaint and granted summary judgment for the defendant.The plaintiff then moved to vacate the judgment under Code of Civil Procedure section 473(b), which requires a court to vacate a “default[,] . . . default judgment or dismissal” that results from an attorney’s mistake, inadvertence, surprise, or neglect. The plaintiff submitted an affidavit from its attorney attesting to his neglect in failing to lodge the administrative record. The trial court concluded that the attorney’s neglect had deprived the plaintiff of its day in court (similar to the effect of a default judgment or dismissal) and vacated the judgment.

The court of appeal reversed and ordered the judgment reinstated, explaining that a summary judgment did not fall within the scope of Section 473(b). The court noted that there are two lines of court of appeal cases interpreting Section 473(b). Under the prevailing view, explained in English v. IKON Business Solutions, Inc., 94 Cal. App. 4th 130 (2001), relief under Section 473(b) is available only for default, default judgment, or dismissal. The minority view, following Avila v. Chua, 57 Cal. App. 4th 860 (1997), is that Section 473(b) allows relief from judgments that are “directly analogous to a default judgment.”

Following the English line of cases, and expressly disapproving Avila, the court concluded that because the language of Section 473(b) is unambiguous, it should be interpreted according to its plain language. Section 473(b) did not apply to the case because “summary judgments are neither defaults, nor default judgments, nor dismissals.”

This is one more case adopting the more narrow interpretation of Section 473(b) that “default judgment or dismissal” means just that and nothing more. Because the California Supreme Court has not yet resolved the split between the English and Avila lines of cases, trial courts may continue to apply either a strict or expansive interpretation of Section 473(b).

CEQA Action Challenging Oil Well Permits Not Barred By Res Judicata

The court of appeal held that the doctrine of res judicata (which precludes relitigation by the same parties of issues previously adjudicated on the merits) does not apply when a prior judgment was based on mootness and ripeness grounds because it is not a judgment on the merits. Association of Irritated Residents v. California Department of Conservation (No. F073018, May 4, 2017).

In 2012, several environmental organizations sued the California Department of Conservation in Alameda County contending that the Department failed to comply with CEQA because of its “pattern and practice” of issuing permits for oil and gas wells without analyzing the potential environmental impacts of fracking.  While the suit was pending, Senate Bill No. 4 (SB 4) was signed into law.  SB 4 required the Department to adopt new fracking regulations and to approve projects that met certain conditions before the new law took effect. The court then dismissed the claims as moot due to the passage of SB 4 and not ripe to the extent they targeted future practices of the Department.

In 2014, environmental organizations filed a second suit in Kern County alleging that the Department failed to comply with CEQA before issuing over 200 specific drilling permits. The trial court dismissed the case on the grounds that res judicata applied because the earlier suit had involved essentially the same issues and parties and had been ruled on by the court.

The court of appeal held that res judicata was not applicable because the earlier case had not been decided on the merits but, rather, on the ground that there was no justiciable controversy before the court. The appellate court reasoned that a judgment based on mootness or ripeness not is one “on the merits” because the substance of the claim is not adjudicated. Here, the ruling in the Alameda case had been based solely on mootness and ripeness grounds, and the trial court never addressed the merits of plaintiffs’ CEQA claims.

The court of appeal also rejected the argument that the Alameda court had ruled on the merits of the case because the court order discussed specific ramifications of SB 4.  The court of appeal concluded that the Alameda court was simply explaining its mootness ruling, not adjudicating a substantive defense.

The court also held that entry of final judgment in another case in Kern County Superior Court involving similar issues did not warrant dismissal of the appeal based on collateral estoppel. The collateral estoppel doctrine bars relitigation of identical issues that were actually litigated and decided in a prior case by one who was a party in the first suit or in privity with that party (i.e., having essentially the same legal interests). The court reasoned that the ultimate legal issues in the two cases were not identical because the facts in each case were different. Further, although the Sierra Club was a plaintiff in both suits, other plaintiffs in the second Kern County case were not necessarily in privity with the Sierra Club, hence the requirements for collateral estoppel were not met.

Ninth Circuit Upholds Biological Opinion for Silver State South Solar Project in Nevada

In Defenders of Wildlife v. Zinke, the Ninth Circuit upheld the Biological Opinion prepared by the U.S. Fish & Wildlife Service to assess the impacts on the threatened desert tortoise from the Silver State South solar project in southern Nevada.  856 F.3d 1248 (9th Cir. 2017).  A key takeaway from the decision is the substantial deference that the courts give to the scientific judgments of the FWS, especially in the face of scientific uncertainty.

The Biological Opinion

The principal issue in the case was that the project, which required approval by the Bureau of Land Management of a right-of-way over federal land, would narrow the corridor for the movement of the desert tortoise through the Ivanpah Valley in southern Nevada, although the project and the affected corridor were located outside of the species’ designated critical habitat.  The Biological Opinion recognized that the project’s impact on the “connectivity” of the tortoise’s movement through the Valley was uncertain in light of the available data.  But it found that the corridor provided for the species’ movement was likely to be sufficiently wide and it included a monitoring program that would be used to develop conservation measures to identify and address any negative impacts if they did occur.

In accordance with the procedures for “formal consultation” under the Endangered Species Act, the Biological Opinion made a “no jeopardy” finding, which determined that the project would not jeopardize the continued existence of the tortoise.  The Biological Opinion further concluded that formal consultation was not required to assess the potential modifications to the critical habitat for the tortoise, and instead relied on the more summary process of “informal consultation” to find that the project was not likely to affect this habitat.

Based on the Biological Opinion, in 2014 the BLM approved the federal right-of-way for the project.

The Ninth Circuit’s Decision

In upholding the Biological Opinion, the Ninth Circuit first rejected the plaintiff’s claim that the FWS did not adequately specify the applicable mitigation measures to support the “no jeopardy” finding.  The court reasoned that nothing in the ESA required firm, binding mitigation to address negative effects that are uncertain to occur.  The court explained that “our precedents do not require mitigation measures to be identified or guaranteed when the mitigation measures themselves may be unnecessary.”

The court further explained that, while a Biological Opinion must use the best scientific data that is available, the court was required to defer to the FWS in the face of scientific uncertainty.  As the court cautioned, “it is not our job to task the FWS with filling the gaps in the scientific evidence” and “we must respect the agency’s judgment.”  The court quoted the district court’s finding that “the FWS cannot be expected to respond to data that is not yet available to surmise potential mitigation actions that are not needed under the agency’s current interpretation of the data.” Continue Reading

Tie Vote Decision Resulting in Upholding Permit Approval was Subject to Challenge Under CEQA

The court of appeal rejected a claim that a tie vote of the air quality management district’s hearing board resulted in “no action” and hence was not subject to judicial challenge. Grist Creek Aggregates. LLC v. Mendocino County Air Quality Management District (No. A149861, June 14, 2017).

The Mendocino County Air Quality Management District approved a permit for Grist Creek Aggregates to construct a heating and blending unit for production of rubberized asphalt. Plaintiff appealed issuance of the permit to the District’s Hearing Board. After two hearings, the four members of the Hearing Board who participated in the appeal split evenly on their vote. The notice of the tie vote stated that the Hearing Board “was unable to make a decision due to a 2-2 tie vote. The Hearing Board will not hold any further hearings on the appeal.”

Plaintiff sought a writ of administrative mandate under Code of Civil Procedure section 1094.5 contending that the District and Hearing Board violated CEQA by approving issuance of the permit without having conducted environmental review. The Hearing Board argued that the 2-2 vote resulted in no action, and hence there was no “final administrative order or decision” subject to judicial review.

The appellate court disagreed. Acknowledging that tie votes by administrative agencies mean different things in different contexts, the court concluded that in the statutory and procedural context presented, the tie vote gave rise to a claim for abuse of discretion by the Hearing Board. The effect of the Hearing Board’s vote was to deny plaintiff’s appeal, thereby leaving approval of the permit in place. Thus, the Hearing Board’s failure to act was itself a “decision” not to revoke the permit, which the court could review for abuse of discretion under Section 1094.5. While it was true, the court said, that lack of any factual findings by the Hearing Board would make such review more difficult, the tie vote did not render the decision immune from judicial review.

An Attorney Fee Award Is Not Available To A Project Proponent That Successfully Defends A Challenge To Project Approvals Unless The Lawsuit Was Detrimental To The Public Interest.

A project sponsor can successfully defend an action brought to challenge a permit for its project, and satisfy the standards in Code of Civil Procedure section 1021.5 for an award of attorneys’ fees, but still have its fee claim rejected, if the court concludes the aim of the lawsuit was to protect, rather than curtail, important public rights, according to the decision in Save Our Heritage Organisation v. City of San Diego, 11 Cal.App.5th 154 (4th Dist. Div. 1, 2017).


The City of San Diego approved a site development permit for a revitalization project in Balboa Park and Save Our Heritage Organisation filed suit to challenge the permit. The superior court ruled the permit was invalid, and the city did not appeal. The project sponsor, Plaza de Panama Committee, did appeal however, and succeed in having the superior court judgment reversed. After the case was sent back to the superior court, the Committee requested an award of attorney fees against Save Our Heritage for its time spent on the appeal and in bringing the motion for fees. The superior court denied the fee motion and the Committee again appealed.

A Project Proponent May Be Entitled to a Fee Award If It Successfully Defends a Permit Challenge and Satisfies the Statutory Requirements for an Award.

Code of Civil Procedure section 1021.5 codifies the so-called private attorney general doctrine, which seeks to promote lawsuits that vindicate public rights but that might not be otherwise be brought because of the cost of litigation. On appeal, Save Our Heritage asserted that fees may never be awarded to a project sponsor that successfully defends a challenge to its project, because such an award would have a chilling effect on litigation brought to protect the public interest. The court rejected this argument. The statute allows a court to award attorney fees to “a successful party,” and does not draw a distinction between prevailing plaintiffs and prevailing defendants. Accordingly, the court held that any successful party in litigation involving public rights that otherwise satisfies the statute’s requirements may claim a fee award, not just the party that filed suit.

The Committee Satisfied the Three-Part Test for Obtaining an Attorney Fee Award Under Section 1021.5.

A party seeking a fee award under the statute must show that: (1) the litigation resulted in enforcement of an important right that affects the public interest; (2) a significant benefit was conferred on the public or a large class of persons; and (3) an award would be appropriate given the need for private enforcement and the financial burden of enforcement. Save Our Heritage did not dispute the Committee’s showing that it had met this three-part test for obtaining a fee award.

Fees Could Not Be Awarded Against Save Our Heritage Because It Did Nothing to Compromise Public Rights.

The main issue before the court was whether, under an exception recognized by the California Supreme Court, Save Our Heritage was the “type of party upon whom private attorney general fees were intended to be imposed.” Under this exception, “a section 1021.5 fee award may not be imposed on a litigant who did nothing to adversely affect the public interest.” A party adversely affects the public interest when it seeks to curtail or compromise important public rights or seeks to exonerate itself from the violation of such rights. The court held that the suit brought by Save Our Heritage did not adversely affect the public interest, but rather sought to correct what it believed to be significant violations of environmental, historic preservation, and land use laws by the city. Although the suit was unsuccessful, it involved the type of public interest claims section 1021.5 was enacted to encourage and was not detrimental to the public interest. A fee award against Save Our Heritage would, therefore, not be appropriate.

Court of Appeal Rejects CEQA Piecemealing Challenge to County’s “Zoning Modernization” Ordinances

The court in Aptos Council v. County of Santa Cruz  (6th District, No. H042976, April 25, 2017) rejected a lawsuit claiming that three pro-development zoning ordinances the county adopted constituted a single project that that should have been reviewed together in an environmental impact report. The court of appeal found that the zoning ordinances could be implemented separately and operated independently, and were not a reasonably foreseeable “consequence” of one another. The ordinances therefore did not constitute a single project and completion of separate environmental assessments did not amount to improper piecemeal CEQA review.


The three zoning ordinances related to minor zoning exceptions, exceptions from sign standards, and height, density and parking requirements for hotels. The county adopted the ordinances as part of a broader effort to reform its land use regulations.

The zoning exception ordinance authorized administrative approval of “minor exceptions” to zoning standards, such as a 5% height increase. The county found no significant impacts and adopted a negative declaration.

The sign ordinance allowed administrative approval of sign exceptions with public notice. The county found the ordinance qualified for various CEQA exemptions.

Finally, the hotel ordinance removed a requirement that hotels have 1,100 square feet of developable area per room, removed a three-story height limit, and reduced required parking from 1.1 spaces per room to 1.0 space per room. The county adopted a negative declaration.

Aptos Council, a community group, filed suit to challenge the county’s approval of the ordinances. It asserted that the negative declaration for the minor exceptions ordinance was invalid and the sign ordinance was not exempt. It also claimed that the county improperly engaged in piecemeal CEQA review of the three ordinances and that environmental review of the hotel ordinance should have considered the impacts of potential future hotel projects. The trial court rejected these claims and denied the petition.

On appeal, Aptos Council dropped its CEQA challenges to the minor exceptions ordinance and the sign ordinance. The court’s analysis therefore focused on two issues: (1) whether the three ordinances taken together constituted a single project and the county engaged in improper piecemeal environmental review by evaluating them separately and (2) whether the county erred by adopting a negative declaration for the hotel ordinance rather than preparing an EIR. Continue Reading

Court Finds CARB’s New Analysis of Biodiesel Low Carbon Fuel Regulations Still Doesn’t Comply With CEQA But Leaves Current Regulations In Place Pending Compliance

In 2013, the fifth district court of appeal ruled that the California Air Resources Board violated CEQA when it adopted its 2009 Low Carbon Fuel Standard regulations, and the court directed issuance of a writ of mandate requiring that CARB take corrective action.  The court allowed the LCFS regulations to remain in effect while CARB completed a new CEQA analysis, concluding that leaving the regulations in place would provide more protection for the environment than suspending their operation.   (See our post analyzing the court’s 2013 decision here.)  CARB then completed a further CEQA analysis and adopted revised regulations.  Now, the same court has held that the CARB’s new analysis failed to comply with CEQA or its prior decision.   POET, LLC v. State Air Resources Board, 5th Dist. No. F073340 (May 30, 2017).  This time, the court provided specific suggestions for further CEQA review, but it again allowed the revised regulations to remain in place while CARB takes further action to comply.

The Challenge to CARB’s Revised CEQA Review

The challenger, the largest U.S. ethanol producer, again contested CARB’s analysis of the environmental effects of the biodiesel portion of CARB’s LCFS regulations. Biodiesel combustion emits reduced greenhouse gases compared to other fuels, but increases NOx emissions, which have local and regional air quality impacts.  The challenge attacked the Board’s decisions to: 1) limit its CEQA analysis to the impact of its new biodiesel regulations rather than including the effects of its original 2009 regulations; and 2) use 2014 statewide biodiesel emissions as the baseline for CEQA analysis.

The Board Did Not Comply with the Writ of Mandate or CEQA

First, the court of appeal held that CARB had not complied with the writ of mandate because it still had not analyzed the environmental impacts of its original biodiesel regulations, adopted in 2009.  Instead, the CARB analyzed only the impacts of the new regulations it adopted in 2015, and compared biodiesel use under those regulations to statewide biodiesel use in 2014. The court held that the original 2009 regulations and its impacts were part of the “project” CARB was required to analyze. Continue Reading

A Project Is Not Discretionary If the Agency Lacks Authority to Require Mitigation

In Sierra Club v. County of Sonoma, (A147340, May 22, 2017) the First District Court of Appeal affirmed that a decision to issue a permit will trigger the duty to comply with CEQA only when the agency has the ability and authority to mitigate the project’s environmental impacts to some degree.

The Agricultural Commissioner of Sonoma County issued an erosion-control permit that allowed the applicants to establish a vineyard on former rangeland under the county’s vineyard and orchard development ordinance. The commissioner reviewed the application and property for conformance with a lengthy list of standards set out in the ordinance and used a form checklist to indicate whether applicable standards were met. The commissioner determined issuance of the permit was ministerial and therefore exempt from CEQA.

CEQA Only Applies When the Agency Has Discretion to Mitigate a Project’s Environmental Impacts to a Meaningful Degree

Environmental groups challenged the commissioner’s determination, alleging the permit approval was discretionary because of the broad and vague substantive standards of the ordinance. Those standards provide guidance on proper grading, drainage improvements, and vineyard and orchard site development. The environmental groups argued the ordinance gave the commissioner broad discretion both to interpret and apply those standards and to require measures to mitigate environmental impacts that might occur.

The trial court upheld the commissioner’s decision and the court of appeal affirmed. The court’s opinion focuses on the functional distinction between discretionary projects which are subject to CEQA, and ministerial activities which are exempt: whether applicable permitting standards give the agency the discretion to deny a permit or impose mitigation measures based on the project’s environmental impacts, or instead require the agency to approve the project if it is found to comply with permitting standards, whether or not it might adversely affect the environment.

The court of appeal first acknowledged that some provisions of the ordinance required that the commissioner exercise discretion when applying them to a proposed project. It explained, however, that the discretion-conferring provisions of the ordinance would only be relevant to the analysis if they actually applied to the project. Here, the court held that only three provisions of the ordinance that could be interpreted as involving a discretionary determination applied to the project. But none of those provisions gave the commissioner the authority to exercise judgment or deliberation in deciding whether to approve the application or to mitigate environmental impacts in a meaningful way. Continue Reading

Fair Argument Test Applies To Agency Determination Whether Subsequent CEQA Review Is Required Once A Negative Declaration Has Been Adopted

This court of appeal decision was issued upon remand for further proceedings after a California Supreme Court decision in which the court considered the standard of review that applies when an agency makes significant changes to a project that was originally approved based on a negative declaration and determines that no further environmental review is required. This decision applies the Supreme Court’s ruling that the question of whether further environmental review is required for modifications to a project approved based on a negative declaration is not subject to the deferential substantial evidence test but is instead governed by the more searching “fair argument” standard.  Friends of College of San Mateo Gardens v San Mateo County Community College District, First Dist. No A135897, May 5, 2017.

Regulatory Background

CEQA provides that when changes are proposed to a project for which an EIR has already been prepared, a subsequent or supplemental EIR is required only if the changes are substantial and require major revisions of the previous EIR. The CEQA Guidelines extend this subsequent review framework to projects for which a negative declaration was initially adopted and provide for agencies to determine whether a subsequent EIR, a supplemental EIR, a negative declaration, or an addendum should be used for later project approvals.

Factual Background

The case before the court involved a master plan approved by a community college district in 2006. The plan contemplated nearly $1 billion in new construction and building renovations at the District’s three campuses. At the College of San Mateo, the District planned to demolish certain buildings and renovate others. The district approved the master plan after adopting a mitigated negative declaration, finding that implementation of the plan would have no significant unmitigated environmental effects.

Five years later, the district decided to demolish one building complex it previously had planned to renovate and to renovate some buildings it previously had planned to demolish. The district prepared an addendum to the prior mitigated negative declaration to document its analysis finding the project changes did not trigger the need for further CEQA review.

The plaintiff challenged the district’s approvals and claimed the changes to the master plan amounted to a “new project” that required its own independent review under CEQA, starting with an initial study of the project. Both the trial court and the court of appeal agreed, finding the newly proposed building demolition was a new project, which required restarting the CEQA process.

The Supreme Court’s Decision

The California Supreme Court rejected the “new project” test applied by the trial and appellate courts. It held that whether prior environment review can be relied for later approvals turns on whether the prior document retains relevance—that at least some of the environmental impacts of the new proposal were considered in the original document. In discussing the standard of review that should be applied under CEQA’s subsequent review provisions, the court held that the standard differs depending on whether the initial environmental document was an EIR or negative declaration. It concluded that the CEQA Guidelines require agencies to prepare an EIR rather than a negative declaration “whenever there is substantial evidence that the changes to a project for which a negative declaration was previously approved might have a significant environmental impact not previously considered.”

The Court of Appeal Decision on Remand

In implementing the Supreme Court’s decision on remand, the court of appeal used a “two-step” inquiry to determine the validity of the District’s use of an addendum for the modified project.

Step 1: Whether the subsequent review provisions are applicable

The first step requires a court to determine whether the agency’s resort to CEQA’s subsequent review provisions is appropriate. Under the Supreme Court’s decision, this determination depends on whether the original environmental document “retains some informational value.” As this is a “predominantly factual question,” the agency’s decision on this issue will be upheld if it is supported by substantial evidence.

Here the court had no trouble finding substantial evidence to support the District’s decision. The revised plan did not affect most of the original demolition plans, nor did it remove the measures adopted to mitigate those plans’ environmental effects, so the prior mitigated negative declaration was still relevant.

Step 2: Whether the use of an addendum was consistent with CEQA’s subsequent review provisions

Once a court determines an agency properly proceeded under CEQA’s subsequent review provisions, the next step is to determine whether the agency has correctly determined how to comply with its obligations under those provisions.

Following the Supreme Court’s guidance, the court of appeal applied a less deferential standard in reviewing the District’s decision to use an addendum because the project was originally approved based upon a negative declaration: an EIR or mitigated negative declaration would be required if substantial evidence supported a fair argument that the proposed changes to the project might have a significant impact not previously considered when the project was originally approved.

The court found substantial evidence in the record that the revised plan would have an impact that was not evaluated in the prior negative declaration: removal of a portion of a garden, which evidence from faculty and students showed might have a significant aesthetic impact. Consequently, the court ruled that the agency’s use of an addendum was inappropriate.

The court, however, refrained from ordering the district to prepare an EIR on remand, noting that the District could adopt a subsequent mitigated negative declaration if it determined that “the