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In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit for a proposed shopping center to be anchored by a Wal-Mart Supercenter (Project) after the original EIR for the Project was revised and recertified. The trial court denied Petitioners’ writ and the Third Appellate District affirmed.

The appellate court found the trial court abused its discretion in permitting the City of Lodi to withhold various emails pursuant to the deliberative process privilege because the City did not meet its burden of proof that the doctrine was applicable. However, the Court concluded that Petitioners failed to meet their burden to show that the City’s improper exclusion of the emails from the administrative record constituted prejudicial error. The Court explained that to show prejudice Petitioners should have sought writ review of the trial court’s decision to exclude the emails. Because it failed to do so, Petitioners were not entitled to reversal on appeal for this error.

In an unpublished portion of the decision, Petitioners argued that other documents withheld as attorney-client privilege lost such privileged status after the City shared the documents with the Real Parties. The Court disagreed. The Court explained that it did not matter whether the documents were shared with the Real Parties’ attorneys or the Real Parties directly: “It was still communication between parties on the same side of the litigation aimed at sharing information with one another to produce an EIR that would withstand a legal challenge for noncompliance with CEQA.”

Turning to the substantive adequacy of the revised EIR, Petitioners alleged that the EIR failed to adequately address urban decay, agricultural, climate change, and water supply impacts, and that the EIR failed to include a reasonable range of alternatives. The Court did not publish the portions of its decision addressing the substantive merits of Petitioners climate change and water supply claims. The Court did, however, publish the portion of its decision addressing the relationship of the Doctrine of Res Judicata to Petitioner Lodi First’s challenge to the water supply analysis. Each of the published portions of the decision is addressed below.

The Court held that the record contained sufficient evidence to support the conclusion that the revised EIR included a reasonable range of alternative. Based on the rule of reason and an understanding that CEQA provides no ironclad rule governing the nature or scope of alternatives, the Court concluded the City’s failure to identify a feasible alternative that could achieve most of the project objectives and avoid or significantly reduce the Project’s significant and unavoidable impacts was not error. The EIR considered five alternatives (no project, alternative land use, reduced density, reduced size, and alternative location). Reduced density and alternative land use alternatives were rejected from detailed consideration in the revised EIR. The Court upheld the City’s decision to reject these alternatives from detailed consideration. The Court explained, based on the facts in this case, that the City was not required to analyze an alternative that was inconsistent with the zoning for a project site and that substantial evidence supported the conclusion that the reduced density alternative was not economically feasible. The Court also held that the three alternatives that were analyzed in detail within the EIR (no project, reduced size, and alternative location) constituted a reasonable range of alternatives. Lastly, the court determined that substantial evidence supported the City’s rejection of the environmentally superior alternatives (no project and reduced size) because the record demonstrated that neither alternative would entirely fulfill the applicant’s or City’s objectives.

In the published portion of the opinion addressing urban decay, the Court held that the revised EIR did not need to address urban “blight” conditions. The Court concluded that the record demonstrated that urban decay and urban blight are two separate phenomena. The record demonstrated that deteriorated homes and other existing blighted properties in the Project area have no relationship to the condition of the retail environment, which needed to be evaluated to consider the Project’s potential urban decay impact. Therefore, the Court concluded that the baseline used to analyze potential urban decay impacts of the Project was not required to disclose urban blight within the Project vicinity.

The Court also affirmed the trial court’s ruling that it was proper for the City to rely on the economic baseline from 2006 and 2007 (the baseline at the time the NOP was published) in evaluating urban decay impacts in the revised EIR. The court reviewed the City’s determination not to update the baseline for an abuse of discretion. Based on this standard, the Court concluded the City was not required to update the baseline because evidence in the record demonstrated that updating the baseline was problematic as economic conditions are rapidly changing and these rapidly changing conditions did not affect the urban decay findings. Therefore, the Court held the City did not abuse its discretion in declining to update the economic baseline.

With respect to Petitioners’ challenge to the adequacy of the agricultural mitigation ratio adopted by the City, the Court concluded Petitioners’ argument demonstrated a misunderstanding of CEQA. The City concluded that no feasible mitigation could reduce impacts to agriculture to a less than significant level. Specifically, the EIR explained that because agricultural conservation is not true mitigation no level of conservation can be scientifically justified as correct and the level of mitigation is a matter of local concern. For this reason, the Court explained that the question is not whether substantial evidence supported the determination that a greater mitigation ratio was infeasible. The question is whether substantial evidence supported the conclusion that no feasible mitigation was available. The Court found the record included such evidence.

In rejecting the water supply arguments advanced by one of the Petitioners, the Court held that the claim was barred by the doctrine of res judicata. As explained by the Court, res judicata applies and bars a petitioner from re-litigating issues that were or could have been previously litigated where the prior proceeding is final on the merits and the present proceeding is on the same cause of action as the prior proceeding. Here, there was no dispute that the prior proceeding was final on the merits and the conditions and facts upon which the new proceeding was based were not materially different from the original proceeding. Therefore, because Petitioner could have raised its water supply claims in the prior proceeding, res judicata barred the claim in this proceeding.

Lastly, in the unpublished portion of the opinion addressing climate change, the Court found that the revised EIR failed to properly analyze potential climate change impacts. The Court stated that an EIR cannot refuse to analyze an impact based on the conclusion that it would be speculative. Rather, an EIR must disclose after thorough analysis of an issue the reasons further analysis is considered too speculative for evaluation. However, the Court found that the City prepared the required climate change analysis after the FEIR was released to the public. While this approach violated CEQA, a CEQA violation only invalidates an EIR if it is prejudicial. The Court concluded that CEQA Guidelines section 15088.5, subdivision (a)(4), only requires recirculation when an EIR is fundamentally and basically inadequate and conclusory. Here, only a portion of the EIR was fundamentally and basically inadequate. The Court concluded this flawed portion was not significant because the climate change analysis prepared after the FEIR was released demonstrated that the Project would not have a significant impact on climate change. The record included no evidence submitted before or after the study was produced to support the conclusion that climate change impacts were significant. Therefore, the City’s failure to analyze climate change impacts in the EIR was not prejudicial.

Key Points:

Where no level of mitigation will reduce an impact to less than significant, the mitigation measure(s) adopted by the lead agency to reduce the impact to the extent possible constitutes a policy determination that will be upheld if supported by substantial evidence.

To utilize the deliberative process doctrine to withhold documents from inclusion in the administrative record, the lead agency must ensure that the record supports the conclusion that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Lastly, in CEQA litigation in which a petitioner challenges both an original EIR and revised EIR, res judicata bars the litigation not only of issues that were actually litigated in the original lawsuit but also issues that could have been litigated.

Written By: Tina Thomas and Chris Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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