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SF MuniSince the California Supreme Court’s 2016 ruling in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, California appeals courts have issued a spate of decisions addressing subsequent review under the California Environmental Quality Act (“CEQA”), including two in the last two months of 2016.  In both cases, the appeals court upheld the agency’s decision not to undertake further environmental review.

The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency

On November 29, 2016, the First District Court of Appeal issued its opinion in The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237 (“T-Line”).  The opinion upheld the lead agency’s decision, concluding that substantial evidence supported the determination not to prepare a subsequent Environmental Impact Report (“EIR”).

At issue in T-Line was the San Francisco Municipal Transportation Agency’s (“Muni’s”) approval of a contract to install 900 feet of light rail line that would complete a “Loop” around a city block in San Francisco’s Dogpatch neighborhood.  In approving the contract, Muni’s Board of Directors relied, in part, on a final EIR certified by the San Francisco Planning Commission in 1998 (the “1998 FEIR”).  The 1998 FEIR discussed two phases of the proposed Third Street Light Rail Project (the “Project”), which was intended to connect the southeastern part of San Francisco with the rest of the city:  the Initial Operating Segment phase of the Project; and the subsequent New Central Subway phase of the Project.  Because the two phases of the Project were determined to be distinct, preliminary engineering had been conducted and impacts and alternatives had been evaluated for the Initial Operating Segment phase, but only planning-level information with less engineering detail was provided for the New Central Subway phase.  By 2003, construction of the Initial Operating Segment was completed, except that the Loop was not fully completed due to budget constraints and the determination that it was not necessary to complete the Loop until the New Central Subway began operating.

In approving the contract to complete the Loop, Muni’s Board of Directors also relied, in part, on statements by the San Francisco Planning Department (the “Department”).  In anticipation of receiving a federal grant to complete the Project, Muni in 2012 and 2014 sought the Department’s concurrence that completion of the Loop did not require a subsequent EIR or a supplement or addendum to the 1998 FEIR.  On both occasions, the Department found that the Loop was evaluated in the 1998 FEIR and that no additional environmental review was required.  Muni’s Board of Directors adopted a resolution authorizing the execution of a contract to complete the Loop on September 16, 2014.

In the appeal before the T-Line court, plaintiff Committee for Re-Evaluation of the T-Line Loop claimed that Muni, Muni’s Board of Directors, Muni’s Director of Transportation, and the City and County of San Francisco (collectively, the “City”) violated PRC section 21151 by relying on the 1998 FEIR instead of conducting a new CEQA analysis and that, even if the 1998 FEIR could have been relied upon, the City violated PRC section 21166 by not requiring supplemental CEQA analysis of new conditions existing in 2014.

The T-Line court first concluded that substantial evidence supported the application of PRC section 21166 to the Loop project as described in the 2014 construction contract.  The court stated that the California Supreme Court had recently ruled, in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937 (“San Mateo”), that the substantial-evidence standard applies to an agency’s determination of whether to apply PRC section 21151, addressing review in the first instance, or PRC section 21166, addressing subsequent review.  The T-Line court highlighted the California Supreme Court’s reasoning that a decision to proceed under PRC section 21166 rests on a determination by the agency, whether implicit or explicit, that the original environmental document retains some informational value, and that a finding that substantial evidence does not support the agency’s determination “‘will be rare, and rightly so.’”  The T-Line court then rejected plaintiffs’ arguments.  Based on the language of the 1998 FEIR and the Muni Board of Director’s September 2014 resolution, the court concluded that substantial evidence supported the determination that the Loop project was analyzed in the 1998 FEIR and that the 1998 FEIR retained its informational value.

The T-Line court, relying on San Mateo and noting that it is “well-established” that the “deferential substantial evidence test” applies to determinations under Section 21166, found that no subsequent review was necessary.  Muni’s 2012 and 2014 memoranda to the Department and the Department’s statements in response constituted substantial evidence that there were no substantial changes to the Loop project analyzed in the 1998 FEIR.  Although plaintiffs had identified one substantial change that could require subsequent review—the decision to defer construction of the Loop—plaintiffs had failed to cite any authority holding that “mere delay” in construction constitutes a substantial change under PRC section 21166.  Consequently, their appeal failed.

San Diegans for Open Government v. City of San Diego

On December 7, 2016, the Fourth District Court of Appeal issued its opinion in San Diegans for Open Government v. City of San Diego (2016) 6 Cal.App.5th 995 (“San Diegans”).  The opinion concluded that neither CEQA nor the San Diego Municipal Code (the “SDMC”) gave plaintiffs a right of appeal to the City of San Diego (the “City”) Council regarding a substantial conformance review (“SCR”) determination by the City’s staff.

At issue in San Diegans was a proposed development by Sunroad Enterprises and Sunroad Centrum Partners L.P. (collectively, “Sunroad”) of an office, residential, and retail project in the Kearny Mesa area of San Diego (the “Project”).  The City Council had approved the Kearny Mesa area for development under a master plan and, in connection with the master plan, undertaken three environmental assessments under CEQA:  in 1997, the City Council certified a final, program EIR that contemplated actions by the City to implement specific development plans (the “1997 FEIR”); in 2000, the City Council adopted an addendum to the 1997 FEIR that determined that there were no new significant environmental impacts from a proposed residential development  (the “2000 Addendum”); and, in 2002, the City Council adopted a subsequent mitigated negative declaration finding that additional residential units would not have a significant environmental impact in light of the proposed mitigation measures (the “2002 MND”).  After receiving a permit from the City in 2012, Sunroad sought approval for modified design plans through the SCR process, and the City’s staff found that the modified plans substantially conformed to the conditions and requirements of the permit and that no further environmental impact documentation was needed under CEQA.

Plaintiffs San Diegans for Open Government and CREED-21 appealed the staff’s decision to the City Planning Commission, arguing that the design changes were not minor and that the SCR process was inappropriate for such major changes.  The Planning Commission upheld the SCR decision after a public hearing.  The City then refused to process the plaintiffs’ appeal to the City Council, the members of which are elected.  The City stated that a determination that subsequent environmental review is not required is not appealable to the City Council and cited CEQA Guidelines section 15162 and SDMC section 113.0103.  After the Superior Court denied plaintiffs’ petition for writ of mandate, plaintiffs argued before the Court of Appeal that they were entitled to appeal the SCR decision to the City Council under CEQA and the SDMC.

In San Diegans, the Court of Appeal concluded that plaintiffs were not entitled to appeal the SCR decision to the City Council.  Under PRC section 21151, subdivision (c), “[i]f a nonelected decisionmaking body of a local lead agency certifies an environmental impact report, approves a negative declaration or mitigated negative declaration, or determines that a project is not subject to this division, that certification, approval, or determination may be appealed to the agency’s elected decisionmaking body, if any.”  The court found that the City staff and the Planning Commission did not take action during the SCR process that would trigger PRC section 21151, subdivision (c), and therefore the action was not appealable.  Neither the City staff nor the Planning Commission had determined that the project was not subject to CEQA, because the Project remained subject to CEQA and the mitigation measures in the 1997 FEIR, the 2000 Addendum, and the 2002 MND.  The court also found that a determination that an activity is discretionary or subject to CEQA does not independently trigger a right to appeal.

The court then determined that SDMC section 112.0520 did not apply.  Pursuant to SDMC section 112.0520, subdivision (a), an “environmental determination” not made by the City Council may be appealed by any person to the City Council.  Because an “environmental determination” is defined in the SDMC as “a decision by any non-elected City decision maker, to certify an environmental impact report, adopt a negative declaration or mitigated negative declaration, or to determine that a project is exempt from the California Environmental Quality Act (CEQA), under State CEQA Guidelines Section 15061(b),” the court determined that the SCR decision was not an “environmental determination” under the SDMC for the reasons discussed in its CEQA analysis.

San Diegans counsels that careful consideration of the applicable decisionmaking body and the character of the subject determination—particularly on subsequent review under CEQA—is crucial to ensuring  whether and when those administrative decisions must be challenged in court.