Northern California Record

Monday, July 15, 2019

California Supreme Court declines to depublish decision in CEQA case

By Dawn Geske | Mar 31, 2017

| J.smith

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 denial 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.

The 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.

The city 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.

“It doesn’t 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 said.

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.

“And going 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.”

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