Spot-Zoning” Specific Plan Amendment Authorizing Use
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Second District Applies CEQA's “Subsequent Review” Rules to Uphold EIR Addendum for Revised Target Superstore Project Including “Spot-Zoning” Specific Plan Amendment Authorizing Use By Arthur F. Coon on September 7, 2018 In a lengthy published opinion filed August 23, 2018, the Second District Court of Appeal reversed the trial court’s judgment, and upheld the City of Los Angeles’ addendum to a prior project-level EIR for a Target Superstore as legally sufficient CEQA compliance for a revised plan-level project which amended a specific plan so as to authorize that same development. Citizens Coalition Los Angeles v. City of Los Angeles (Target Corporation, Real Party in Interest) (2018) ___ Cal.App.5th ___. The Court further held the specific plan amendment was not impermissible “spot zoning,” even if approved only to authorize the site-specific Superstore project, because there was a “reasonable basis” for the City to find it was in the public interest. While these holdings are not surprising, some of the analysis used to reach the Court’s clearly correct CEQA holding – which analogizes subsequent review rules to piecemealing concepts – is novel and potentially confusing, as discussed below. Prior Litigation Successfully Challenges Originally Approved Superstore Project And City Approves Revised Project The case’s factual and procedural background included earlier CEQA/land use litigation that resulted in a judgment upholding the EIR, but invalidating (as unsupported by substantial evidence) the numerous variances the City granted for the Target Superstore Project. That project was a site-specific development project proposing a 3-story, 75-foot structure, with a 163,862 square-foot Superstore occupying the top story, parking on the second story, and various retail stores and public spaces on the ground level. In a scenario that is every developer’s nightmare, the trial court’s order that all construction cease left a partially completed structure on the site; that, in turn, prompted the City to amend by ordinance its Vermont/Western Transit Oriented District Specific Plan (a “Station Neighborhood Area Plan,” or “SNAP”) to authorize completion of the development. In relevant part, the amendments created a new “Subarea F” within the SNAP. Not coincidentally, Subarea F applied to areas with commercial uses of over 100,000 square feet, on sites over 3.5 acres, located within one-quarter mile of both a transit station and freeway on- and off-ramps – features exactly describing the Target Superstore project and site. Subarea F allows structures up to 75 feet in height that “substantially conform” with building facade requirements, so long as the developments dedicate at least 80% of street frontage to the same types of retail and public uses as the Superstore project. The Ordinance also designated just a single location within the SNAP as Subarea F – the Target Superstore site. City Approves EIR Addendum For Revised Project And Concludes It Will Have No New Significant or More Severe Environmental Impacts To satisfy its CEQA review obligations, the City approved an Addendum to the previously certified Target Superstore EIR that defined the “Revised Project” as (1) amendment of the SNAP (and portions of other relevant plans), and (2) all construction activities needed to complete the existing Superstore structure and its operation. The City approved the Addendum, which examined the impacts of the Revised Project as compared to the Original Project, using updated air quality, GHG, noise, and traffic analyses, and concluded the Revised Project did not require major revisions of the prior EIR because it did not involve any new significant environmental effects or a substantial increase in the severity of previously identified effects. Plaintiffs File New Litigation Challenging Revised Project on CEQA and “Spot Zoning” Grounds And The Trial Court Finds The SNAP Amendments Constitute A New Project Requiring New EIR The same plaintiffs that brought the prior litigation filed new writ petitions challenging the Revised Project approvals on grounds that the Addendum violated CEQA (which they argued required an EIR instead), and that City’s application of Subarea F only to the Superstore constituted impermissible “spot zoning.” The trial court declined to reach the “spot zoning” issue, but found an EIR was required because the Ordinance enacting the SNAP amendments constituted an “independent project” requiring a wholly independent CEQA analysis that should also analyze the potential environmental impacts of reasonably foreseeable future projects on sites that could be designated as Subarea F. The Court Of Appeal Reverses The Judgment And Upholds The Addendum And Revised Project Against All Challenges In reviewing the City’s actions without deference to the trial court’s decision, the Court of Appeal reversed the judgment and held that (1) City’s reliance on the Addendum did not violate CEQA, and (2) City did not impermissibly “spot zone.” Notable points and CEQA holdings from the Court’s published opinion (along with my own observations regarding some of them) include: • As a general matter, “CEQA operates, not by dictating pro-environmental outcomes, but rather by mandating that “decision-makers and the public” study the likely environmental effects of contemplated government actions and thus make fully informed decisions regarding those actions. [Citations.] In other words, CEQA does not care what decision is made as long as it is an informed one.” • When a public agency considers a project for which there has already been CEQA review, whether that review resulted in an EIR or negative declaration, Public Resources 2 Code § 21166 prohibits preparation of a new or supplemental EIR or negative declaration unless (1) substantial changes are proposed in the project which will require major revisions of the EIR or negative declaration; (2) substantial changes in the surrounding circumstances will require major revisions in the EIR or negative declaration; or (3) new information, which was not known and could not have been known when the EIR or negative declaration was approved, becomes available. • The question whether the SNAP amendments constituted a project for which there had been prior CEQA review (to which Section 21166 applies), or an “entirely new project” requiring initiation of CEQA’s familiar 3-step analysis, turns not on any “abstract characterization” of it as “new” or “old”, but on whether the previous CEQA document retains any relevance. (Friends of College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937, 944.) • The question whether the initial CEQA document remains relevant despite changed plans or circumstances, like the question whether major revisions will be required, is a predominantly factual question for the agency to answer, drawing on its particular expertise. The agency’s determination is deferentially reviewed by courts for substantial evidence support. The greater judicial deference accorded to an agency’s determination whether further CEQA review is required – as opposed to the decision whether initial review is required – is supported by weighty policy considerations. Specifically because “ “‘In depth review has already occurred’” “‘the interests of finality’” are weightier and “the statutory presumption flips in favor of the developer and against further review.”” (Citing and quoting Melom v. City of Madera (2010) 183 Cal.App.4th 41, 48-49; Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1049-1050.) In other words: “The question is no longer whether to conduct the environmental review process in the first place, but rather “‘whether circumstances have changed enough to justify repeating a substantial portion of th[at] process.’”” (Quoting Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 55.) • In next addressing the unique factual scenario that likely led it to publish its opinion, the Court observed that a prior environmental document will in most cases remain relevant where the prior and current CEQA analyses pertain to related projects at the same level of generality – i.e., when both deal with a specific development, or both deal with a more generalized “program” (such as a general or specific plan). It then concluded that CEQA’s subsequent review rules under section 21166 are not rendered inapplicable simply because the related projects -- as in the case before it – “operate at different levels of generality.” Of primary importance is whether the prior CEQA document retains relevance in light of the proposed changes, not the “label” attached to the project. Here, the Court held, because the environmental impact of the Superstore (as a large commercial development placed in Subarea F) was by definition part of the necessary CEQA analysis for the SNAP amendments, the prior Superstore EIR retained relevance and Section 21166 applied. The Court thus further held that an “agency must file an addendum” to the prior CEQA document unless substantial changes in the project or surrounding circumstances, or new information that was not known and could not have been known, will require “major revisions” of the prior document due to the involvement of new or substantially more severe significant effects, in which case a subsequent or supplemental EIR is required. 3 • At this point, the Court’s analysis becomes novel, and rather esoteric, finding that the required “subsequent review” analysis regarding whether “major revisions” will