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In Save North Petaluma River and Wetlands v. City of Petaluma (Nov. 14, 2022, A163192) __Cal.App.4th__ [2022 Cal. App. LEXIS 1009], the First District Court of Appeal held that the City of Petaluma (City) did not violate CEQA when it certified the EIR for a 180-unit apartment complex (Project) on roughly 15-acres of vacant land along the Petaluma River.

Although the City published the Notice of Preparation (NOP) in 2007, the City did not issue the Draft EIR (DEIR) for the Project until 2018. In response to the conclusions raised in the DEIR and public comments, the Project underwent a number of subsequent revisions, and a version of the Project, which included reductions to the Project’s overall footprint and number of proposed units, was approved by the City in 2020. A group called Save North Petaluma River and Wetlands, along with an individual (collectively, Petitioners), filed suit challenging the adequacy of the EIR on a number of grounds, including the EIR’s analysis of special status species and emergency evacuations. The trial court denied the petition, and Petitioners timely appealed.

Impacts to Special Status Species

On appeal, Petitioners argued that the trial court erred in upholding the City’s approval because the EIR failed to properly analyze the Project’s impacts on special status species. Petitioners alleged that the City never investigated the Project’s baseline conditions in 2007 when the NOP was issued, and that, as a result, the EIR contained inaccurate and incomplete information about the environmental setting, which led to inadequate analysis and mitigation of impacts on protected species in the EIR.

The Court noted that these claims were premised largely on Petitioners’ assumption that the EIR’s partial reliance on a 2004 special status species report and its 2001 site assessment, provided an inadequate baseline for evaluating the Project’s impacts given that the NOP was issued in 2007. Rejecting these arguments, the Court found that the EIR’s use of reports, site visits, studies, and habitat evaluations — undertaken both before and after the NOP was issued — to describe baseline conditions was within the City’s discretion and supported by substantial evidence. In response to Petitioners’ contention that references to site visits in the EIR were inadequate because certain information, such as the names of participants and descriptions of what took place, was not on the record, the Court noted that the EIR need not include all reports used in its preparation and that the EIR here generally identified the sources of such information.

The Court concluded that Petitioners failed to show the EIR’s analysis of impacts to special status species was inadequate simply because no special status species analysis was conducted in 2007, and there was no evidence to indicate that the conditions documented in the EIR were incorrectly described or that the analysis was flawed due to on-site changes that occurred over the time period at issue. Having rejected Petitioners’ challenge to the adequacy of the EIR’s special status species analysis, the Court found that no additional mitigation was required.

Public Safety Impacts Relating to Emergencies

Relying on public comments regarding flooding and grass fires in the area, along with a one-page letter from a self-described “National Evacuation Expert,” Petitioners argued that the EIR was inadequate because it omitted an analysis of egress and evacuation safety in the event of an emergency. Noting that Petitioners failed to identify any applicable emergency evacuation plan that the EIR had failed to analyze, the Court found that the EIR adequately detailed specific information about possible flood or fire threats at the Project site and then drew on that information to conclude that the Project would not interfere with an emergency evacuation plan. The Court held that this analysis was sufficient to demonstrate the analytic route from specific underlying evidence to the ultimate conclusion of less than significant safety/emergency access impacts. Further, the Court found that a staff report, which corroborated the public safety analysis in the EIR, provided additional evidence supporting the City’s certification of the EIR. The Court concluded that, even if it “generously” assumed that these public comments provided evidence of potential public safety impacts, these submissions did not prove that the EIR was legally inadequate.

Key Point:

An agency need not use the date of the issuance of the NOP to determine the existing physical conditions without the project as long as the agency’s selection of a baseline is supported by substantial evidence.