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CITIZENS FOR RESPONSIBLE EQUITABLE ENVIRONMENTAL DEVELOPMENT, Plaintiff
and Appellant, v. COURT OF APPEAL, FOURTH DISTRICT, DIVISION
D045274 APPEAL from
a judgment of the COUNSEL Briggs Law
Corporation and Cory J. Briggs for Plaintiff and Appellant. Michael J.
Aguirre, City Attorney, and Heidi A. Wierman, Deputy City Attorney, for
Defendants and Respondents. Sullivan
Wertz McDade & Wallace and Jenny K. Goodman for Real Parties in Interest. OPINION AARON, J. I. INTRODUCTION Citizens
for Responsible Equitable Environmental Development (CREED) appeals the trial
court's judgment denying its petition for a writ of mandate and dismissing its
complaint for injunctive and declaratory relief against respondents City of San
Diego Redevelopment Agency, San Diego Centre City Development Corporation, and
the City of San Diego (collectively respondents).[i] CREED filed this lawsuit seeking to require
respondents to prepare a project specific environmental impact report (EIR)
pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources
Code,[ii]
§ 21000 et seq.) to analyze a hotel project proposed by real party in
interest Westfield America, Inc. ( On appeal,
CREED claims respondents abused their discretion in determining that the
potential environmental impacts of the hotel project were adequately examined
in two prior EIRs: (1) a 1992 EIR that
analyzed environmental impacts associated with the update of the 1976 Centre
City Community Plan (Community Plan), and (2) a 1999 EIR that updated the 1992
EIR in connection with the development of a baseball stadium in the Community
Plan Planning Area (Planning Area). CREED
claims respondents were required to prepare a separate project specific EIR for
the hotel project because: (1) section
21090 requires a project specific EIR for all redevelopment projects undertaken
as part of a redevelopment plan; (2) respondents failed to satisfy the
statutory requirements for relying on the 1992 EIR as a "master
environmental impact report" under section 21157; (3) a "fair argument" can be made that the hotel
project will have significant environmental impacts; (4) respondents'
reliance on the prior EIRs violated CEQA's rules for limited environmental
review associated with a project undertaken pursuant to a "program
EIR" (Guidelines,[iv]
§ 15168); and (5) CEQA's goals of information disclosure, public
participation, and governmental accountability required a project specific
EIR. We affirm the judgment. II. FACTUAL AND PROCEDURAL BACKGROUND In 1992,
respondents adopted the "Master Environmental Impact Report for the Centre
City Redevelopment Project and Addressing the Centre City Community Plan and
Related Documents" (MEIR). The MEIR
evaluated the potential environmental impacts that would result throughout the
entire Planning Area from the update of the Community Plan, the adoption of the
Redevelopment Plan for the Centre City Redevelopment Project, and the adoption
of other related programs in downtown In 1999,
respondents adopted the "Final Subsequent Environmental Impact Report to
the Final Master Environmental Impact Report for the Centre City Redevelopment
Project and Addressing the Centre City Community Plan and Related Documents for
the Ballpark and Ancillary Development Projects, and Associated Plan
Amendments" (SEIR). The SEIR was
prepared to supplement information contained in the MEIR. The SEIR analyzed the potential environmental
impacts related to the development of a baseball stadium and various ancillary
projects in the Planning Area. In July
2002, real parties in interest submitted an application to construct a
30-story, 450-room hotel in the Planning Area, on the north side of In January
2003, CREED filed a petition for a writ of mandate and complaint for injunctive
and declaratory relief against respondents.
CREED claimed respondents had violated CEQA by relying on the MEIR and
SEIR in approving the hotel project, and requested that the trial court order
respondents to prepare a project specific EIR for the hotel project. In August 2004, after briefing and oral
argument, the trial court entered judgment denying the petition and dismissing
the complaint. CREED
timely appeals. III. DISCUSSION A. CEQA overview In Sierra Club v. County of Sonoma (1992)
6 Cal.App.4th 1307, 1315-1316 (Sierra
Club), the court provided an overview of CEQA and a description of some of
the types of EIRs that may be prepared pursuant to that statute: "Central
to CEQA is the EIR, which has as its purpose informing the public and
government officials of the environmental consequences of decisions before they
are made. [Citation.] "An
EIR must be prepared on any 'project' a local agency intends to approve or
carry out which 'may have a significant effect on the environment.' (§§ 21100, 21151; Guidelines, § 15002, subd.
(f)(1).) [Fn. omitted.] The term
'project' is broadly defined and includes any activities which have a potential
for resulting in a physical change in the environment, directly or
ultimately. (§ 21065; Guidelines,
§§ 15002, subd. (d), 15378, subd. (a); [Citation].) The definition encompasses a wide spectrum,
ranging from the adoption of a general plan, which is by its nature tentative
and subject to change, to activities with a more immediate impact, such as the
issuance of a conditional use permit for a site-specific development proposal. [Citation.] "To
accommodate this diversity, the Guidelines describe several types of EIR's,
which may be tailored to different situations.
The most common is the project EIR, which examines the environmental
impacts of a specific development project.
(Guidelines, § 15161.) A
quite different type is the program EIR, which 'may be prepared on a series of
actions that can be characterized as one large project and are related
either: (1) Geographically, (2) As
logical parts in the chain of contemplated actions, (3) In connection with
issuance of rules, regulations, plans, or other general criteria to govern the
conduct of a continuing program, or (4) As individual activities carried out
under the same authorizing statutory or regulatory authority and having
generally similar environmental effects which can be mitigated in similar
ways.' (Guidelines, §
15168, subd. (a); [citation].)" An agency also may adopt a "master environmental impact
report" as defined in section 21157.
Section 21157 provides that such a report may be prepared in connection
with various projects including "[a] general plan, element, general plan
amendment, or specific plan."
(§ 21157, subd. (a)(1).)
Section 21157, subdivision (b) specifies the required contents of a
"master environmental impact report."
Sections 21157.1 and 21157.6 describe the use of such a report in
approving subsequent projects. "Judicial
review under CEQA is generally limited to whether the agency has abused its
discretion by not proceeding as required by law or by making a determination
not supported by substantial evidence.
[Citations.]" (Sierra Club, supra, 6 Cal.App.4th at p.
1317.) The precise standard of review to
be used in determining whether an agency has abused its discretion under CEQA
varies depending on the type of claim under review. (Ibid.) B. Section 21090 does not require respondents
to prepare a separate EIR for the hotel project CREED
claims section 21090 requires respondents to prepare a separate EIR for the
hotel project. We apply the de novo
standard of review to this claim as it raises an issue of statutory
interpretation. ( "In
construing any statute, '[w]ell-established rules of statutory construction
require us to ascertain the intent of the enacting legislative body so that we
may adopt the construction that best effectuates the purpose of the law.' [Citation.]
'We first examine the words themselves because the statutory language is
generally the most reliable indicator of legislative intent. [Citation.]
The words of the statute should be given their ordinary and usual
meaning and should be construed in their statutory context.' (Ibid.) If the statutory language is unambiguous, 'we
presume the Legislature meant what it said, and the plain meaning of the
statute governs.' [Citation.]" (Whaley
v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th
479, 484-485.) Section
21090 provides: "(a)
An environmental impact report for a redevelopment plan may be a master
environmental impact report, program environmental impact report, or a project
environmental impact report. Any
environmental impact report for a redevelopment plan shall specify the type of
environmental impact report that is prepared for the redevelopment plan. "(b)
If the environmental impact report for a redevelopment plan is a project
environmental impact report, all public and private activities or undertakings
pursuant to, or in furtherance of, a redevelopment plan shall be deemed to be a
single project. However, further
environmental review of any public or private activity or
undertaking pursuant to, or in furtherance of, a redevelopment plan for which a
project environmental impact report has been certified shall be conducted if
any of the events specified in Section 21166 have occurred." CREED
contends that section 21090 requires that "every project undertaken as
part of a redevelopment plan [has] to receive project-specific environmental
review unless the plan itself was the subject of a project EIR." (Italics
added.) However, the plain language of
section 21090 does not require that an agency take any such action. Rather, section 21090 prohibits an agency from requiring further environmental review of
redevelopment plans for which a project EIR has been prepared, unless the circumstances specified in
section 21166 exist.[v] In other words, section 21090 does not
contain any requirement that an
agency prepare a project EIR. Rather, it
precludes an agency from requiring
further environmental review under the circumstances specified in that
statute. CREED
argues that one can infer from the statute's legislative history the
Legislature's intent to require such project specific EIRs via section 21090.[vi] Although we need not consider this argument
in view of the plain language of section 21090 (Whaley, supra, 121 Cal.App.4th at p. 485), the legislative history
offered by CREED supports our interpretation.
Section 21090 was amended in September 2002. (Stats. 2002, ch. 625, § 3, eff. "For
all purposes of this division [CEQA], all public and private activities or
undertakings pursuant to, or in furtherance of, a redevelopment plan shall be
deemed to be a single project. However,
further environmental review of any public or private activity or undertaking
pursuant to, or in furtherance of, a redevelopment plan shall be conducted if
any of the events specified in Section 21166 have occurred." CREED
claims the 2002 amendments to section 21090 were a response to the Court of
Appeal's decision in Friends of Mammoth
v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th
511, 523 (Mammoth Lakes). In As the
treatise upon which CREED relies in its opening brief explains, the amendments
to section 21090 were intended to make clear that further environmental review
of a redevelopment plan would be precluded only if a project EIR had been
prepared for the plan. (Beatty et al.,
Redevelopment in California (3d ed. 2004) p. 58 (hereinafter
Beatty).) The 2002 amendments do not
require further project specific environmental review for redevelopment
projects whose environmental effects have been adequately studied in a program
EIR: "The
effect of the changes to Public Resources Code section 21090 was to restore the
flexibility that had been lost a result of the "Most
EIR's prepared for redevelopment plan adoptions will be program adoptions. [¶]] [A] program EIR prepared in connection
with redevelopment plan adoption is usually a more general document than an EIR
that might be prepared for a discrete development project. The program EIR should focus on the
'cumulative' or 'synergistic' impacts of the entire program. At this stage, less specific information is
required about subsequent plan implementing activities than will be the case
when those activities are before the public agency for decision. At that point, the agency must examine the
environmental record to determine whether it adequately discloses and analyzes
the environmental consequences of the specific implementing activity. If
it does, then the agency may proceed with the decision on the basis of the
existing environmental record. If it
does not, the further environmental studies disclosing those specific impacts
must first be prepared." (Beatty, supra, pp. 57-58, italics
added.) There is
nothing in either the plain language of section 21090 or in its legislative
history that requires the preparation of an EIR of any kind. Specifically, section 21090 does not require
an agency to prepare an EIR for a project whose environmental impacts have been
sufficiently analyzed in a prior program EIR or master EIR.[vii] In part III.E., post, we consider whether respondents properly determined that the
hotel project's potential environmental effects were adequately examined in a
prior program EIR. C. Because CREED has not established that the
MEIR is a "master environmental impact report"
(§ 21157), we need not consider its arguments that respondents have not satisfied the
statutory prerequisites of that section CREED
claims that in approving the hotel project, respondents violated CEQA to the
extent that respondents relied on the MEIR as a "master environmental
impact report," as that term is defined in section 21157. In the
trial court, respondents maintained that the MEIR was a "program EIR"
as defined by the Guidelines, section 15168, subdivision (a), and not a
"master environmental impact report" as defined in section
21157. Respondents explained that
although the MEIR's title included the words "master environmental impact report,"
the MEIR was adopted in 1992, the year prior
to the amendments to CEQA that established the existence of the "master
environmental impact report" as defined under section 21157. (Stats. 1993, ch. 1130, § 18.) Further, the MEIR states that it is a
"program EIR." CREED has
failed to put forth any argument that the MEIR is in fact a "master
environmental impact report" as defined in section 21157, rather than a
"program EIR" as defined in the Guidelines section 15168, subdivision
(a). Instead, CREED assumes that the MEIR is the same as a "master EIR" under
CEQA, and argues that respondents violated various statutory requirements
pertaining to master EIRs. Because CREED
has failed to establish that the MEIR is a "master environmental impact
report" within the meaning of section 21157, we reject CREED's argument
that respondents failed to comply with the statutory requirements pertaining to
the use of such reports in approving the hotel project. D. The fair argument standard does not apply to
judicial review of an agency's determination that a project's
potential environmental impacts were adequately analyzed in a prior program EIR CREED
claims respondents were required to prepare an EIR for the hotel project
because a fair argument can be made that the project would have significant
environmental impacts. The fair
argument standard provides that an agency must prepare an EIR "whenever it
can be fairly argued on the basis of substantial evidence that the project may
have significant environmental impact."
(No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68,
75.) This test establishes a low
threshold for the initial preparation of an EIR, reflecting a preference for
resolving doubts in favor of environmental review. (Sierra Club, supra, 6 Cal.App.4th at pp. 1316-1317.) The Sierra Club court outlined the
appropriate standard of judicial review of an agency's fair argument
determination: "A
court reviewing an agency's decision not to prepare an EIR in the first
instance must set aside the decision if the administrative record contains
substantial evidence that a proposed project might have a significant
environmental impact; in such a case, the agency has not proceeded as required
by law. [Citation.] Stated another way, the question is one of
law, i.e., 'the sufficiency of the evidence to support a fair argument.' [Citation.]
Under this standard, deference to the agency's determination is not
appropriate and its decision not to require an EIR can be upheld only when
there is no credible evidence to the contrary.
[Citation.]" (Sierra Club, supra, 6 Cal.App.4th at pp. 1317-1318.) However,
the fair argument standard does not apply to judicial review of an agency's
determination that a project is within the scope of a previously completed EIR.
(Sierra Club, supra, 6 Cal.App.4th at p. 1318.)
Once an agency has prepared an EIR, its decision not to prepare a
supplemental or subsequent EIR[viii]
for a later project is reviewed under the deferential substantial evidence
standard. (Santa Teresa Citizen Action Group v. City of San Jose (Santa Teresa) (2003) 114 Cal.App.4th
689, 702, citing Sierra Club, supra, 6 Cal.App.4th at p. 1318; see
also Sierra Club, supra, 6
Cal.App.4th at pp. 1320-1321 [concluding "evidence does not support a
determination that . . . proposed site-specific project was
either the same as or within the scope of the project, program, or plan
described in the program EIR"].) "This rule applies to
determinations regarding whether a new EIR is required following a program-EIR
level of review." (1 Kostka & Zischke, supra, §
11.16, p. 440, citing Santa Teresa, supra, 114 Cal.App.4th at p. 703.) In Santa Teresa, supra, 114 Cal.App.4th at p. 696, the City evaluated the potential
environmental impact of a proposed water recycling project within an area known
as "the Golden Triangle"[ix]
and its possible expansion, in an EIR that was completed in 1993. The EIR evaluated the "Golden
Triangle" portion of the project at the "project" level
(Guidelines, § 15161) and the future expansion of the project at
"program" level (Guidelines, § 15168). (Santa Teresa,
supra, 114 Cal.App.4th at p. 696.)
In 2000, the City completed an initial study for one possible route for
expansion of a pipeline portion of the project, which resulted in a negative
declaration.[x] (Id.
at p. 698.) In 2001, the City conducted
a second initial study for a slightly different proposed expansion. (Id.
at pp. 698, 704.) Also in 2001, the City
adopted the second initial study by way of an addendum to the initial 1993
EIR. The addendum stated, "'[a]
subsequent EIR will not be prepared because the project described in this
addendum does not involve new significant environmental effects
or a substantial increase in the severity of previously identified significant
effects.'" (Id. at p. 699.) The
petitioners filed a petition for a writ of mandate seeking to set aside the
City's action as a violation of CEQA. (Santa Teresa, supra, 114 Cal.App.4th at
p. 699.) The trial court denied the
petition. (Id. at p. 700.) On appeal,
the petitioners claimed that the 2001 initial study was inadequate because it
relied on the 1993 EIR. (Id. at p. 702.) The Santa
Teresa court rejected the petitioner's argument that the fair argument
standard applied to its claim: "When
an agency has already prepared an EIR, its decision not to prepare a[] [supplemental
or subsequent EIR] for a later project is reviewed under the deferential
substantial evidence standard.
[Citation.] Petitioners argue
that the stricter 'fair argument' rule should apply. We disagree. "When the public agency has
already prepared an EIR, no [supplemental or subsequent EIR] is required unless
there are substantial changes in the project or the circumstances surrounding
the project, or if new information becomes available. (§ 21166.)
The reviewing court upholds an agency's decision not to require [a]
[supplemental or subsequent EIR] if the administrative record as a whole
contains substantial evidence to support the determination that the changes in
the project or its circumstances were not so substantial as to require major
modifications of the EIR. (Sierra
Club, supra, 6 Cal.App.4th at p. 1318.)
This deferential standard is a reflection of the fact that in-depth
review has already occurred.
[Citation.]" (Id. at pp. 702-703.) In this
case, CREED contends that the evidence "overwhelmingly supports a fair
argument" that the hotel project is likely to have significant
environmental impacts. In support of
its claim, CREED asserts that respondents' Secondary Study revealed that the
project was likely to have significant environmental impacts. Assuming this is accurate, the Secondary
Study went on to conclude that, "No [p]otentially [s]ignificant
[e]nvironmental [i]impacts were identified in the preceding environmental
evaluation that had not been considered in the MEIR/SEIR." As noted
above, the fair argument standard does not apply to review of an agency's
determination that a project's potential environmental impacts were adequately
analyzed in a prior program EIR. (Santa Teresa, supra, 114 Cal.App.4th at
pp. 702-703.) Therefore, in view of
respondents' determination that the project's potential environmental impacts
were adequately analyzed in the MEIR and the SEIR, we reject CREED's argument
that the fair argument standard requires that respondents prepare an EIR for
the hotel project. Finally,
CREED expressly states that it is not raising a substantial evidence challenge
to respondents' determination that the MEIR and the SEIR adequately addressed
the potential environmental impacts of the hotel project in raising its claim
pertaining to the applicability of the fair argument standard.[xi] However, CREED did raise an analogous
challenge in the context of arguing that respondents failed to satisfy the
statutory prerequisites for utilizing the MEIR as a "master environmental
impact report" as that term is defined in section 21157. We concluded in part III.C., ante, that we need not consider CREED's
arguments pertaining to whether respondents satisfied the statutory
prerequisites for utilizing the MEIR as a "master environmental impact
report" (§ 21157) in light of CREED's failure to establish that the
MEIR is such a report. However, to the
extent CREED's brief can be construed to raise a substantial evidence challenge
to respondents' determination that the hotel project's potential environmental
impacts were adequately addressed in the MEIR and SEIR, we consider this
argument in part III.E., post. E. Respondents did not violate CEQA in
determining that the potential environmental effects
of the hotel project were adequately examined in the MEIR and SEIR CREED
claims that respondents violated CEQA in determining that the potential
environmental effects of the hotel project were adequately examined in the MEIR
and SEIR.[xii] 1.
Natural Resources Defense Council v. City of Los Angeles (2002) 103 Cal.App.4th 268 (NDRC) does not
preclude respondents from relying on the MEIR in approving the hotel project CREED
claims NDRC "prohibit[s]
[r]espondents from relying on the ten-year-old MEIR." In NDRC,
the Los Angeles Harbor Department (LAHD) prepared a program EIR in 1997 in
connection with various contemplated improvements at the The
petitioners filed a petition for a writ of mandate asserting that the City had
violated CEQA. (NDRC, supra, 103 Cal.App.4th at p. 270.) The trial court denied the petition. (Ibid.) On appeal, the NDRC court determined that the city had violated CEQA by failing to
prepare an additional EIR addressing project specific impacts that were outside
the scope of the prior EIRs. (NDRC, supra, 103 Cal.App.4th at p. 270.)
NDRC is legally and factually
distinguishable from this case, and does not stand for the proposition that a
project specific EIR is required even where a governmental entity has
determined that the potential environmental impact of a project was adequately
considered in a prior EIR. In NDRC, the court noted that the city had
entered into a "side letter agreement" with the lessee that addressed
site-specific environmental concerns based on the city's "apparent[ ]
concern[] that not all environmental
issues had been addressed" in the prior EIRs. (NDRC,
supra, 103 Cal.App.4th at p. 279.)
In addition, notwithstanding this side letter agreement, the City failed
to prepare an initial study to determine whether additional environmental
analysis was required. (Id. at p. 282.) The NDRC
court concluded, "The fact that the port[[xiii]]
and China Shipping entered into a side letter agreement addressing
site-specific environmental concerns arising from this Project provides
adequate support for appellants' argument that the port was required to prepare
an initial study leading to either preparation of an EIR or a negative
declaration for this Project." (Id. at p. 282.) Further, the NDRC court held that neither the 1997
EIR nor the 2000 EIR "adequately addresses the site-specific environmental
concerns expressed in the side letter agreement." (Id.
at p. 284.) In this case, in contrast,
respondents performed an initial study that concluded that the MEIR and SEIR
had adequately examined all potentially significant environmental impacts from
the hotel project. For the reasons
stated in part III.E.2, post, there
is substantial evidence to support respondents' conclusion. In
addition, respondents cite NDRC as
supporting their repeated assertion that respondents unlawfully relied on the
MEIR and the SEIR in approving the hotel project because the project was not
proposed until after the MEIR and the SEIR were certified. We acknowledge that the NDRC opinion contains some language that suggests that a program
EIR may not serve as the EIR for a project proposed after its certification. For example, the NDRC court stated: "The
China Shipping project arose more than three years after the 1997 EIR and was not specifically
addressed in the 2000 SEIS/SEIR. It
cannot be considered part of the overall 'project' addressed in those documents." (NDRC,
supra, 103 Cal.App.4th at pp. 284-285.)
However, there is other language in NDRC
that suggests the court's acknowledgment that a program EIR may, under
appropriate circumstances, be used as an EIR for a project proposed after its
certification. (Id. at p. 282 ["A program EIR does not always suffice for
a later project"].) To the
extent NDRC can be read to suggest
that a program EIR is never sufficient to analyze a project proposed after its
certification, we disagree. The
Guidelines unambiguously state that a program EIR may be used with
"subsequent activities" as follows: "(c)
Use With Later Activities. Subsequent activities in the program must be
examined in the light of the program EIR to determine whether an additional
environmental document must be prepared. "(1)
If a later activity would have effects that were not examined in the program
EIR, a new initial study would need to be prepared leading to either an EIR or
a negative declaration. "(2)
If the agency finds that pursuant to Section 15162, no new effects could occur
or no new mitigation measures would be required, the agency can approve the
activity as being within the scope of the project covered by the program EIR,
and no new environmental document would be required. "(3)
An agency shall incorporate feasible mitigation measures and alternatives
developed in the program EIR into subsequent actions in the program. "(4)
Where the subsequent activities involve site specific operations, the agency
should use a written checklist or similar device to document the evaluation of
the site and the activity to determine whether the environmental effects
of the operation were covered in the program EIR. "(5)
A program EIR will be most helpful in dealing with subsequent activities if it
deals with the effects of the program as specifically and comprehensively as
possible. With a good and detailed analysis of the program, many subsequent
activities could be found to be within the scope of the project described in
the program EIR, and no further environmental documents would be
required." (Guidelines,
§ 15168, subd. (c).) To hold
that a project specific EIR must be prepared for all activities proposed after
the certification of the program EIR, even where the subsequent activity is
"within the scope of the project described in the program EIR"
(Guidelines, § 15168, subd. (c)(5)),
would be directly contrary to one of the essential purposes of program
EIRs, i.e., to streamline environmental review of projects within the scope of
a previously completed program EIR. We
conclude that a program EIR may serve as the EIR for a subsequently proposed
project to the extent it contemplates and adequately analyzes the potential
environmental impacts of the project, and that respondents were not prohibited
from relying on the MEIR under NDRC,
supra, 103 Cal.App.4th 268. 2. Respondents'
determination that the potential environmental effects of the hotel project were adequately
examined in the MEIR and SEIR is supported by substantial evidence CREED
contends that respondents' determination that the hotel project "will not
have any significant effect on the environment that was not identified and
considered in the MEIR" is not supported by substantial evidence. In Santa Teresa, supra, 114 Cal.App.4th at
page 704, the court outlined the substantial evidence standard of review in
this context: "We
independently review the administrative record.
[Citation.] We resolve reasonable
doubts in favor of the administrative decision.
[Citation.] 'We do not judge the
wisdom of the agency's action in approving the Project or pass upon the
correctness of the EIR's environmental conclusions. [Citations.]
Our function is simply to determine whether the agency followed proper
procedures and whether there is substantial evidence supporting the agency's
determination that the changes in the Project (or its circumstances) were not
substantial enough to require an SEIR.'
[Citation.]" CREED first
suggests that the hotel project was not within the geographic scope of the MEIR
and that, therefore, the MEIR did not analyze the potential environmental
impacts of the hotel project identified in the Secondary Study. The MEIR defines the term Planning Area and
includes a map that identifies the boundaries of the Planning Area. The MEIR states, "The environmental
analysis contained in this EIR considers the entire Planning
Area . . . ."
The Secondary Study contains a map that indicates that the hotel project
is within the Planning Area as defined by the MEIR. Therefore, we reject CREED's claim that the
MEIR "exclud[es] the part of downtown where the Project is to be
built." Second,
CREED reiterates its argument that the MEIR could not have served as an EIR for
the hotel project because the project was proposed after certification of the
MEIR. We reject that argument for the
reasons stated in part III.E.1., ante. Respondents
point to considerable evidence in support of their determination that the
potential environmental impacts of the hotel project were within the scope of
the MEIR and the SEIR. First, the MEIR
states that it is a program MEIR that will serve as "the basis for the
environmental assessment of the proposed Community Plan." As noted in the MEIR, the Community Plan
designated the area where the hotel is to be built as a "Commercial/Office
District" in which "hotels and motels" would be emphasized as
among the allowable land uses. In
addition, the MEIR states that it is providing an environmental assessment of
the "ultimate capacity buildout scenario" of the Planning Area over a
35-year period. The MEIR forecasts that
a total of 5,880 additional hotel rooms would be constructed over a 35-year
period within the Planning Area, and expressly contemplates the completion of
the Horton Plaza Redevelopment Project, which the hotel project will
complete. Further, the MEIR specifically
provides that "this EIR will be used for project-specific approvals of
future development activities with the . . . Planning
Area." Respondents
also completed the Secondary Study, an initial study pursuant to Guidelines
section 15063, subdivision (d), to determine whether an additional EIR would be
required for the hotel project. The
Secondary Study analyzed potential environmental impacts from the project with
reference to the MEIR and the SEIR, and concluded that all of the potential
significant environmental impacts from the hotel project had been sufficiently
analyzed in the MEIR and the SEIR.[xiv]
For example, the Secondary Study noted
that the hotel project "is consistent in land use and intensity" with
the Community Plan. The Secondary Study
did state that the "cumulative impacts of the [hotel project] would be
significant and not fully mitigable with respect to air quality and traffic." However, the Study concluded that these "cumulative
impacts would not be greater than those identified in the MEIR [and] SEIR." We conclude
that respondents' determination that the hotel project's potential
environmental effects were adequately examined in the MEIR and SEIR is
supported by substantial evidence. F. Respondents did not violate the goals of
CEQA by failing to prepare a project specific EIR for the hotel project CREED
claims that respondents' improper failure to prepare a project specific EIR for
the hotel project violated the goals of information disclosure, public
participation, and government accountability embodied in CEQA. CREED also raises the specific claim that
respondents improperly failed to circulate a draft of the Secondary Study for
public comment. We
concluded in parts III.B.-E., ante,
that respondents did not violate CEQA by failing to prepare a project specific
EIR for the hotel project. Accordingly,
we reject CREED's claim that respondents' purported violation of CEQA
frustrated CEQA's purposes. With regard
to the specific claim concerning respondents' failure to circulate a draft of
the Secondary Study for public comment, CREED has not cited any authority, and
we are aware of none, that would require respondents to take such action. The Secondary Study stated that it "was
prepared in compliance with the requirements for an Initial Study"
according to the Guidelines. Guidelines
section 15063, subdivision (d) outlines the requirements of an initial study. That section does not require that a draft
initial study be circulated for public comment.
(Accord Santa Teresa, supra,
114 Cal.App.4th at p. 702 ["City was not required to give notice that an
initial study was being prepared, nor was City required to circulate the
addendum [adopting the initial study] for public comment," citing
Guidelines, §§ 15063, 15164, subds. (a), (c)].) We therefore reject CREED's claim that
respondents were required to circulate a draft of the Secondary Study for
public comment. IV. DISPOSITION The
judgment is affirmed. CONCURRING HUFFMAN, Acting
P. J. IRION, J. FOOTNOTES [i]
The distinctions between these entities are not relevant for purposes of
this appeal. Therefore, for ease of reference, we refer to them interchangeably
as "respondents." [iv] References
to Guidelines are to the administrative guidelines for implementation of
CEQA. ( [v] Section
21166 provides: "When an
environmental impact report has been prepared for a project pursuant to this
division, no subsequent or supplemental environmental impact report shall be
required by the lead agency or by any responsible agency, unless one or more of
the following events occurs: [¶] (a)
Substantial changes are proposed in the project which will require major
revisions of the environmental impact report.
[¶] (b) Substantial changes occur with respect to the circumstances
under which the project is being undertaken which will require major revisions
in the environmental impact report. [¶]
(c) New information, which was not known and could not have been known at the
time the environmental impact report was certified as complete, becomes
available." (See also Guidelines,
§ 15162 [implementing § 21166].) [vi] We
grant CREED's unopposed request that we take judicial notice of the bill
history for Statutes 2002, chapter 625, section 3, which amended section 21090. [vii] In
light of our conclusion, we need not consider respondents' alternative
arguments for rejecting CREED's section 21090 claim. [viii] A
"supplemental" EIR is used to make minor changes to an existing EIR,
while a "subsequent" EIR is required to make more extensive
changes. (1 Kostka
& Zischke, Practice Under the [x] An
"initial study" is used by an agency to determine whether a project
will have a significant effect on the environment under CEQA. (Guidelines, § 15063.) If the initial study "results in a
finding the project will not significantly affect the environment, the agency
may so declare in a negative declaration."
(Dixon v. Superior Court (1994)
30 Cal.App.4th 733, 742.) [xi] In
its reply brief, CREED states: "Respondents spend nearly twenty five pages
of their opposition brief trying to demonstrate that 'substantial evidence'
supports their reliance on the MEIR and the SEIR together as the EIR for the Project. [Citation.]
As noted at the outset of this brief, such evidence has no impact on
whether Respondents proceeded in the manner prescribed by law. [Citation.]" CREED further states, "Only the last two
sections in Appellant's opening brief [discussing whether the statutory
prerequisites for use of the MEIR as a master environmental impact report were
met] turn on the existence of substantial evidence." CREED continues, "[T]he only aspect of
Appellant's case that turns on the existence of 'substantial evidence' is its
contention, under section 21157.6 [pertaining to master environmental impact
reports], that there is substantial evidence of both changed circumstances and
new information." [xii] We
note that respondents do not contend that the hotel project was exempt from
CEQA scrutiny pursuant to section 21083.3.
Section 21083.3 limits CEQA review in cases in which a project is
consistent with a community plan or a general plan when various statutory
prerequisites are met. Because the
parties present no argument regarding the potential applicability of section
21083.3, we do not consider the application of that statute to the issues in
this case. [xiii] Although
it is not entirely clear, it appears the NDRC
court treated a governmental entity referred to as "the port" in the
opinion, and the City, as interchangeable entities. (NDRC,
supra, 103 Cal.App.4th at pp. 279, 282.) [xiv] The
Secondary Study explained that the SEIR was prepared to supplement and update
information in the MEIR. Although the
SEIR did not specifically address the area in which the hotel project is to be
located, the SEIR did analyze the potential environmental impacts that would
result from the development of a baseball stadium project in the Planning
Area. Therefore, the SEIR is relevant in
determining whether or not the environmental impacts of the hotel project had
been adequately analyzed in the two prior EIRs.
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