SAN FRANCISCO — The California
Supreme Court will not depublish its decision regarding an
environmental-impact report in a residential development project
despite numerous requests by local and state organizations,
associations, developers and law firms.
The court, which made the
on Feb. 15, is upholding its decision in the East Sacramento
Partnership for a Livable City v. City of Sacramento case that
maintained the EIR created for a residential project violated the
California Environmental Control Act by presenting findings that
traffic would not have a significant impact on the community.
case is centered around the McKinley
Project, a 328-unit residential development. The development is
to include a community recreation center along with three parks on an
approximately 49-acre infill site in East Sacramento.
filed an EIR for the development, which the East Sacramento
Partnership for a Livable City claimed held several violations with
the CEQA. While the court initially denied the claims, East
Sacramento Partnership for a Livable City filed an appeal
in the 3rd District Court of Appeal, which invalidated the
city’s approval of the McKinley Project.
For the findings, the
traffic level of service — or LOS — plan found in the city’s
general plan was used to showcase compliance. The court maintained
that the general plan allowed for a more flexible use of the LOS
standards and didn’t provide for significant impacts. The
California Supreme Court agreed with the decision and stated
that it didn’t provide enough “deference” to the city and the
level of significance lacked proper threshold.
defer to the agency’s threshold of significance for judging traffic
impacts, and normally the selection of a [threshold of significance]
is subject to very deferential substantial evidence review,” Arthur
F. Coon, a shareholder at real-estate law firm Miller
Starr Regalia, told the Northern California Record.
Following the decision, several organizations, developers,
associations, and law firms stepped forward to have the decision
depublished to prevent the ruling from taking precedence in
development cases under CEQA.
“Agencies and real party
developers are concerned that this case may set a precedent for other
courts substituting their own judgment for lead agencies as to
appropriate [threshold of significance] in different situations and
in other impact areas, hence the strong depublication effort,” Coon
While the California Supreme Court has refused to depublish
its decision, the LOS under CEQA may soon disappear, instead
requiring vehicle-miles traveled — or VMT — analysis, making the
decision a moot point.
“There is no further appeal, and the
Supreme Court denied depublication, so the case will stay on the
books as published precedent, but if the CEQA Guidelines changes
stating decreased LOS is no longer considered a significant traffic
impact, and that only increased VMT should be considered such an
impact, come into effect before the FEIR (final environmental impact
report) is revised in response to the decision, then the holding in
that regard effectively may be mooted,”Coon said.
forward, it is likely to be of little or no precedential value on the
specific LOS/significant impact issue due to the Guidelines changes,
although practitioners remained concerned about the general lack of
deference shown the local agency’s TOS selection and that it may
somehow linger on as a harmful precedent in other areas.”