Upon receiving a writ of mandate from the trial court in 2003, Orange County (County) prepared a supplemental EIR (SEIR) for its Silverado Ranch Canyon Project (Project). Petitioner challenged the County’s approval of the project claiming that the SEIR did not comply with the writ issued in 2003, and that the discovery of new information about the arroyo toad required recirculation of the SEIR under CEQA. The trial court found in favor of the County. On appeal in a plurality opinion the Fourth District Court of Appeal upheld the trial court’s decision. First, the Court explained that the Petitioner should have challenged the trial court’s ruling discharging the writ rather than filing a new lawsuit. Because Petitioner did not challenge the trial court’s ruling the Appellate Court held that the Petitioner’s claim was barred by res judicata. The Court explained that res judicata bars re-litigation of causes of action that were previously decided between the same parties. Next, the Court addressed whether the SEIR should have been recirculated due to the possible presence of the arroyo toad. Citing to Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 112, the Court explained that recirculation of an EIR is required only if new information is added that involves either a new substantial environmental impact from the project, a substantial increase in severity of an environmental impact from the project, or new proposed mitigation measure. In this case, the Court found that the new information added to the SEIR did not fall into any of those three categories. The issues added were already discussed in the original EIR, therefore recirculation is not required. Lastly, the Court addressed whether an agreement between the parties in 2003 established that the Petitioner must pay the developers’ attorneys’ fees and costs in this litigation. The Court concluded fees were not owed because the developer did not comply with the notification and cure requirements relating to a breach of the agreement prior to seeking fees.
Petitioners commonly challenge revised EIRs prepared by lead agencies to comply with writs issued in CEQA litigation. The scope of review in, and the applicability of res judicata principles to, such challenges is commonly debated. This decision is important for any agency faced with such a challenge.