On October 24, 2018, the Fourth Appellate District upheld the trial court’s decision in Save Our Heritage Organization v. City of San Diego (D073064), finding that the use of an addendum as outlined in section 15164 of the California Environmental Quality Act (“CEQA”) Guideline for approval of project modifications is valid under CEQA and does not conflict with CEQA’s public review requirements.  Additionally, the Court also found that once an EIR is approved, the lead agency is not required to make any additional findings under the Public Resources Code (“PRC”) section 21081 of CEQA to approve modifications to a project using an addendum.  Overall, this appellate decision is in agreement with the line of CEQA cases approving the use of addenda to approve project modifications that do not result in additional significant environmental impacts.  Once again, the appellate court affirmed the CEQA policy that once an EIR is certified, “the interests of finality are favored over the policy of encouraging public comment.”

Background

In a case with a voluminous record and lengthy litigation history, Petitioner challenged the City of San Diego’s (“City”) use of an addendum to an environmental impact report (“EIR”) for approval of the revisions to the Plaza de Panama project (“Project”) at Balboa Park.  In 2012, the City approved a revitalization project “to remove vehicular access and parking from the Plaza de Panama, El Prado, Plaza de California, the Mall, and Pan American Road East and allow these areas to be used by pedestrians only.”  Additionally, the project proposed a new bypass bridge in for Balboa Park, along with a new underground parking structure, additional parkland atop the new parking structure, and a tram service to connect the new parking structure to the Plaza de Panama, with possible expansion to serve other areas of the Park.  Petitioner challenged the EIR and the trial court granted the petition on some of the asserted grounds and entered a judgment directing the City to rescind the project approval, but the appellate courts reversed the decision and ruled in favor of the City.

In 2016, the City approved several Project modifications using an addendum to the EIR. The addendum addressed several physical changes to the project area’s environmental setting that occurred while the earlier litigation on the Project was pending.  The addendum reviewed the potential environmental effects of the project modifications on land use, historical resources, visual effects and neighborhood character, transportation circulation and parking, air quality, biological resources, energy conservation, geologic conditions, greenhouse gas emissions, health and safety and hazardous materials, hydrology and water quality, noise, paleontological resources, public services and facilities, and public utilities.  Pursuant to PRC section 21166, the addendum included the relevant findings regarding Project modifications and concluded that a subsequent EIR was not required.  The City adopted the addendum and approved the Project modifications.

Petitioners challenged the City’s use of the addendum to approve Project modifications on two grounds: (1) the addendum process outlined in CEQA Guideline section 15164 is invalid under CEQA; and (2) the City failed to proceed in the manner required by law by failing to make new findings under the PRC section 21081 when it approved the addendum.  As outlined below, the Court rejected both the arguments.

Validity of CEQA Guidelines Section 15164 under CEQA

The appellate court rejected Petitioner’s challenge to the addendum process outlined in CEQA Guideline section 15164.  In reviewing the validity of that section, the court considered whether the Guideline is (1) consistent and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.

The Court held that the state’s Natural Resources Agency properly promulgated CEQA Guideline section 15164 to implement PRC section 21166 because the addendum process outlined fills a gap in CEQA for projects with a previously certified EIRs requiring revisions that do not warrant the preparation of subsequent EIRs.  The Court found that CEQA Guideline section 15164 is consistent with and furthers the objectives of PRC section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review under the substantial evidence review standard.  The Court further found that the addendum process reasonably implements the objective of PRC section 21166:  to balance the consideration of environmental consequences in public decision making with interests in finality and efficiency.

Further, the Court reasoned that the absence of a public review process for an addendum, as compared to the substantial public review required for an initial or subsequent EIR, does not render CEQA Guideline section 15164 inconsistent with CEQA.  The Court pointed out that the addendum document is only used to describe insubstantial project revisions that do not require subsequent environmental review.  “The absence of public review also reflects the finality of adopted EIRs and [PRC] section 21166’s proscription against further environmental review except in specified circumstances.”

The Court also noted that the Resources Agency had first promulgated CEQA Guideline section 15164 in 1983, and since then, the Legislature has not acted to modify CEQA to eliminate the addendum process.

Findings Under Public Resources Code Section 21081

The Court also rejected Petitioner’s second argument: that the City failed to proceed in the manner required by law by failing to make new findings under PRC section 21081 when it approved the addendum.  PRC section 21081 requires that when a lead agency decides to approve a project for which an EIR has been certified, the lead agency should make one or more of the following written findings with respect to each significant effect identified for the project:

(1) Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment. (2) Those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency. (3) Specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in the environmental impact report.

The Court held that “[n]ew findings under section 21081 are not required in connection with the approval of an addendum to an EIR.”  If the original EIR had already addressed the significant environmental effects through findings required under PRC section 21081, and an addendum is only proper where no new significant environmental impacts are discovered, then there is no rationale for the lead agency to prepare additional findings in connection with an addendum.  “The only purpose of findings is to address new significant effects to show the lead agency has properly considered ways in which to mitigate or avoid such effects.”