Transcript CEQA for LAFCo Staff and Commissioners

CALAFCO
2009 Annual Conference
Tenaya Lodge Yosemite
CEQA FOR LAFCo COMMISSIONERS & STAFF
By Scott Browne
Counsel for Butte, Colusa, Lake, Nevada and Solano LAFCos
BASIC CEQA CONCEPTS
AND TERMS
 The California Environmental Quality Act (CEQA) was adopted by
the Legislature in 1970
 CEQA requires environmental review be done for all discretionary
projects carried out or approved by state and local agencies that
could affect the environment
 Environmental Review can be in three forms:
 Categorical Exemption
 Negative Declaration of Environmental Impact
 Environmental Impact Report
 An EIR must be prepared if a project may cause a significant
environmental impact
BASIC CEQA CONCEPTS
AND TERMS
 The first agency making a decision on a project is usually
responsible for conducting the environmental review—it is called the
“Lead Agency” under CEQA.
 Other agencies that must also approve the project later, are required
to consider the environmental review done by the Lead Agency.
They are termed “Responsible Agencies”.
 CEQA authorizes individuals or groups to challenge the approval of
a project by an agency if the agency failed to comply with the
requirement of CEQA in approving the project. If they prevail, the
Court orders the project is sent back to the agency to correct the
violation and the Court may award legal fees to the challengers
under the “Private Attorney General” doctrine.
LAFCO AND CEQA
LAFCO’s Normal Role as A Responsible Agency
LAFCo are usually a Responsible Agency and must rely upon the
environmental document prepared by the lead agency unless:
 LAFCo is acting as the lead agency for the project; or
 Grounds exist to require supplementation of the environmental
document pursuant to Section 15162; or
 The lead agency failed to allow LAFCo the opportunity to
participate in the environmental review before the lead agency
and LAFCo believes that the environmental document is
inadequate for their purposes. (Section 15052)
LAFCo must rely on the lead agency environmental document even
where the environmental document has been challenged and
litigation is pending PRC § 21167.3)
LAFCo’s Role in Reviewing
Lead Agency Environmental Document
 LAFCo must “review and consider” the environmental
document prepared by the Lead Agency (15052)
 LAFCo is required to adopt feasible mitigation measures
within the agency’s jurisdiction (15041(b), 15096(g)) even if
not recommended in the environmental document
 LAFCo may deny approval in order to avoid significant
adverse environmental impacts (15042)
LAFCo’s Role in Reviewing
Lead Agency Environmental Document
continued
Must still make CEQA findings:
 Make findings as to each significant impact under
Section 15091
 Adopt a statement of Overriding social or economic
concerns if the EIR identifies significant, unavoidable
environmental impacts as required by Section 15092.
 Can often use the lead agency findings but the better
practice is to have staff tailor findings to fit LAFCo’s role
on the project.
When Can LAFCo Require that the Environmental
Document Be Supplemented?
The Rule is Set forth in Section 15162 of the State CEQA
Guidelines
Requirements are that one of three changes set forth below
has occurred with respect to the project that involve new
significant environmental effects or a substantial increase in
the severity of previously identified significant effects:
1. Substantial changes are proposed in the project itself
» Example: LAFCo has determined that additional
undeveloped lands need to be added to the annexation to
a city in order to avoid the creation of an island or illogical
boundary that were not considered by the city in its
environmental document.
When Can LAFCo Require that the Environmental
Document Be Supplemented?
2. Substantial changes occur with respect to the
circumstances under which the project is
undertaken
» Example: Between the time that the EIR was prepared
for a major annexation and the time it is submitted to
LAFCo, the Regional Water Quality Control Board has
issued a cease and desist order ordering the Special
District not to issue any more sewer connections
When Can LAFCo Require that the Environmental
Document Be Supplemented?
3.New information of substantial importance is
presented which was not known and could not
have been known with the exercise of reasonable
diligence at the time the previous EIR was certified
» Example: It is discovered after the City approved a
project and annexation that a portion of the proposed
project and annexation actually lies in a different county
Authority to Request Additional Information under CKH
LAFCos have authority outside of CEQA to request additional
information regarding a project under their authority under CorteseKnox-Hertzberg Act.
 Can request information that falls within factors set forth in
56668
• Example: Can require a vacant land inventory and
absorption study for proposed conversion of prime
agricultural land in order to comply with the requirements
of Section 56377
 Requests may be limited if application has been deemed
complete by the Executive Officer
CEQA AND LAFCO
Key Cases
•
Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 529 P.2d 1017; 118 Cal. Rptr.
249 (CEQA applies to LAFCo annexation decisions. Contains the memorable phrase: “This is not
the case of a rancher who feels that his cattle would chew their cuds more contentedly in an
incorporated pasture.”)
•
City Of Livermore V. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 230 Cal.Rptr. 867
(Revision of LAFCo Sphere Guidelines is subject to CEQA)
•
Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065 [230 Cal.Rptr. 413] (Decision of agency
not to prepare a supplemental EIR will be upheld if supported by substantial evidence)
•
City of Redding v. Shasta County Local Agency Formation Commission (1989) 209 Cal.App.3d
1169 (LAFCo may not be sued for relying on CEQA document of the lead agency, even where
that document is being challenged)
•
Laurel Heights Improvement Association v. Regents of the University of California (1993) 6
Cal.4th 1112 [26 Cal.Rptr.2d 231] (commonly referred to as Laurel Heights II) (Establishes
standards for requiring supplementation of an EIR approving CEQA Guideline 21162)
•
Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 87 Cal.Rptr.2d
702; 981 P.2d 543 (Reconsideration request not required before challenging LAFCo decision in
court)
LAFCOs and CEQA
Discussion Problem
The City of San Garbanzo
prepared an EIR in connection
with a regional commercial project
“Big Box Mall” to be located on
land proposed to be annexed to
the city. The City duly notified
LAFCo of the proposed
environmental document. LAFCo
commented extensively on the
project, noting concerns regarding
agricultural conversion, regional
traffic impacts, and impacts on
other public services. LAFCo also
pointed out that the County is also
proposing a similar project just
outside the City limits.
The City’s EIR provided
minimal responses to the
LAFCo comments. With
respect to agricultural impacts,
the EIR noted that the project
land had contained mature
walnut orchards, but these had
been cut down in the last year
immediately prior to the
application for entitlements.
The land was designated with
a soil classification of II on the
USDA Natural Resources
Conservation Service land use
capability classification.
However because the property
was no longer under active
agricultural production and the
area was designated for urban
development under the City
General Plan, the EIR
concluded that the land was
not prime agricultural land and
that conversion would not
generate a significant
environmental impact. The EIR
concluded that impacts on
adjacent agricultural
operations would be mitigated
below the level of significance
because the City would be
adopting a “Right to Farm”
ordinance.
The EIR identified
significant unavoidable
impacts on traffic, and air
quality. It did note that
the wastewater treatment
plant was close to
capacity but that City staff
had determined that there
was adequate capacity to
serve the project and that
plans were in process to
upgrade the plant.
The EIR has been challenged
in court by a local
environmental group “No Big
Boxes”. They are opposed to
the commercial development.
The project has also been
challenged by the developer
seeking to build a competing
big box mall in the County.
The litigation is pending at the
time the City has brought
forward the annexation to
LAFCo.
Shortly after the annexation
application was filed with
LAFCo, the front page of the
San Garbanzo Herald carried
an article indicating that the
Regional Water Quality Control
Board had issued a cease and
desist order to the City and
fined the City $850,000 for
repeated spills. The order
limited the inflows into the
wastewater plant to an amount
equal to existing average flows
until major improvements were
made to the facility.
The S&%t Has Finally Hit
the Fan!
LAFCO Process
LAFCo proceeds to public
hearing on the project.
At the hearing the local
irrigation district manager
complains that they were never
notified of the EIR for the
project even though
detachment from the district is
part of the annexation
proposal. He points out that
the project is immediately
adjacent to a major district
irrigation canal and that storm
drainage from the project is
proposed to be drained into the
canals.
He also argues that the City
will be pumping more
groundwater to supply water
for the project, reducing the
supply for farmers. He
demands that LAFCo mitigate
these impacts
Public Hearing Issues
The No Big Boxes Group also
testifies in opposition to the
annexation. They assert that
LAFCo should deny the
annexation because of lack of
sewer capacity or at least
require a supplemental EIR to
address that issue and the
multiple other impacts
inadequately addressed in the
City’s EIR. They also claim
that the EIR failed to address
the production of green house
gases that would be generated
to power the project and the
cars that would travel to the
mall.
WWYD?
(What Would You Do?)
You are a LAFCo
Commissioner
considering this project.
What would you propose
that the Commission do
to comply with CEQA and
Cortese-Knox-Hertzberg
with respect to this
project?
Issues to Consider:
• Do you rely on the City’s EIR?
• Should you require that the EIR be supplemented?
• How do you address the concerns raised by the Irrigation District?
• How do you address your obligations under CKH to preserve and
protect agricultural lands?
• If you do rely on the EIR, what findings do you need to make?
• Do You See Any Other Issues that Need to Be Considered?