Filed 5/5/2017 Opinion on remand from Supreme Court
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
FRIENDS OF THE COLLEGE OF SAN
MATEO GARDENS,
Plaintiff and Respondent, A135892
v. (San Mateo County
SAN MATEO COUNTY COMMUNITY Super. Ct. No. CIV 508656)
COLLEGE DISTRICT et al.,
Defendants and Appellants.
This is a case brought under the California Environmental Quality Act (CEQA)
(Pub. Resources Code,1 § 21000 et seq.) that is before us for a second time. In the first
appeal, we affirmed the trial court’s ruling that defendant San Mateo County Community
College District violated CEQA when it responded to changes in a campus renovation
project by issuing an addendum to a mitigated negative declaration. We held that the
proposed changes constituted a “new” project not subject to an addendum. (Friends of
College of San Mateo Gardens v. San Mateo County Community College Dist. (Sept. 26,
2013, A135892 [nonpub. opn.]), 2013 WL 5377849.) Our state Supreme Court reversed
after concluding that we should not have assessed whether the changes constituted a new
project, but should have instead assessed whether CEQA’s subsequent review provisions
were applicable and, if so, whether the addendum was permissible under them. (Friends
of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016)
1 Cal.5th 937, 953 (San Mateo Gardens).)
1
All further undesignated statutory references are to the Public Resources Code.
1
Evaluating the project changes as directed, we now conclude that they amounted
to a modified project, meaning CEQA’s subsequent review provisions apply. We also
conclude that defendants’ use of an addendum violated these provisions because there is
substantial evidence to support a fair argument that the project changes might have a
significant effect on the environment. Accordingly, we again affirm the judgment.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. The Facilities Master Plan, the Mitigated Negative Declaration, and the
Addendum.
The following factual background is taken from the Supreme Court’s opinion in
San Mateo Gardens. Unless otherwise noted, we will use the same defined terms used in
that opinion.
“In 2006, [defendants] the San Mateo [County] Community College District and
its Board of Trustees (collectively, District) adopted a facilities master plan (Plan)
proposing nearly $1 billion in new construction and facilities renovations at the District’s
three college campuses. At the College of San Mateo (College), the District’s Plan
included a proposal to demolish certain buildings and renovate others. The buildings
slated for renovation included the College’s ‘Building 20 complex,’ which includes a
small cast-in-place concrete classroom and lab structure, greenhouse, lath house,
surrounding garden space, and an interior courtyard.
“In 2006, the District published an initial study and mitigated negative declaration
[(MND)] analyzing the physical environmental effects of implementing the Plan’s
proposed improvements at the College, including the proposed rehabilitation of the
Building 20 complex. The MND stated that, with the implementation of certain
mitigation measures, the Plan would not have a significant effect on the environment. In
2007, the District certified its initial study and adopted the 2006 MND.
“When the District later failed to obtain funding for the planned Building 20
complex renovations, it re-evaluated the proposed renovation. In May 2011, the District
issued a notice of determination, indicating that it would instead demolish, rather than
2
renovate, the ‘complex and replace it with parking lot, accessibility, and landscaping
improvements.’ The District also proposed to renovate two other buildings, buildings 15
and 17, that had previously been slated for demolition.
“The District concluded a subsequent or supplemental [environmental impact
report (EIR)] was not required. It instead addressed the change through an addendum to
its 2006 initial study and MND, concluding that ‘the project changes would not result in a
new or substantially more severe impact than disclosed in the 2006 [MND]. Therefore,
an addendum . . . is the appropriate CEQA documentation.’
“The newly proposed demolition of the Building 20 complex, and particularly the
demolition of the complex’s associated gardens, proved controversial. Certain members
of the public, as well as a number of College students and faculty, vocally criticized the
demolition proposal at public hearings. The District nevertheless approved demolition of
the Building 20 complex in accordance with the addendum.
“Plaintiff Friends of the College of San Mateo Gardens [(Friends)] filed suit
challenging the approval. The District thereafter rescinded its original addendum and
issued a revised addendum in August 2011. The revised addendum reiterated the original
addendum’s conclusion but bolstered its analysis. On August 24, 2011, after public
comment and discussion, the revised addendum was adopted and demolition of the
Building 20 complex was reapproved.” (San Mateo Gardens, supra, 1 Cal.5th at
pp. 946-947.)
B. This Action.
Friends voluntarily dismissed its initial suit and filed the present action in
September 2011 challenging the revised addendum. Friends sought a peremptory writ of
mandate ordering the District to set aside its approval of the Building 20 demolition
project and to fully comply with CEQA by preparing an EIR and adopting feasible
alternatives and mitigation measures. The trial court found that the demolition project
was inconsistent with the original plan and that its impacts were not addressed in the
2006 MND. The court granted Friends’ petition for a writ of mandate, ordering the
District to refrain from taking “further actions adversely affecting the physical
3
environment at the Building 20 Complex pending its full compliance with requirements
of CEQA.”
The District appealed, and we affirmed. (Friends of College of San Mateo
Gardens v. San Mateo County Community College Dist., supra, 2013 WL 5377849, at
p. *6.) We concluded as a matter of law that the District’s proposal was a new project,
subject to CEQA’s initial review standards under section 21151, rather than a modified
project subject to the subsequent review provisions of section 21166 and section 15162 of
the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.). (2013 WL 5377849, at
pp. *4-5.) Because we concluded that the initial review provisions applied, we held that
the addendum was improper and that the District was required to conduct an initial study
of the project to determine whether an EIR was required. (2013 WL 5377849, at p. *6.)
The District sought review in the Supreme Court, which reversed. (San Mateo
Gardens, supra, 1 Cal.5th at p. 961.) The Supreme Court explained that our approach in
assessing whether the proposal amounted to a new project was incorrect and “would
inevitably invite arbitrary results” because neither CEQA nor the cases interpreting it
contain any standards for determining whether a project qualifies as “new.” (Id. at
pp. 950-951.) Instead of resting on whether a project is new “in an abstract sense,” the
“decision to proceed under CEQA’s subsequent review provisions must . . . necessarily
rest on a determination—whether implicit or explicit—that the original environmental
document retains some informational value.” (Id. at p. 951.) Such an inquiry “is a
predominantly factual question . . . for the agency to answer in the first instance, drawing
on its particular expertise.” (Id. at p. 953.) “A court’s task on review is then to decide
whether the agency’s determination is supported by substantial evidence; the court’s job
‘ “ ‘is not to weigh conflicting evidence and determine who has the better argument.’ ” ’ ”
(Ibid.) The Court emphasized that “occasions when a court finds no substantial evidence
to support an agency’s decision to proceed under CEQA’s subsequent review provisions
will be rare, and rightly so; ‘a court should tread with extraordinary care’ before
reversing an agency’s determination, whether implicit or explicit, that its initial
environmental document retains some relevance to the decisionmaking process.” (Ibid.)
4
The Supreme Court also explained that our review of an agency’s decision that the
subsequent review provisions apply “is only the first step. Once a court determines that
substantial evidence supports [that] decision . . ., the next—and critical—step is to
determine whether the agency has properly determined how to comply with its
obligations under those provisions. In particular, where, as here, the agency has
determined that project changes will not require ‘major revisions’ to its initial
environmental document, such that no subsequent or supplemental EIR is required, the
reviewing court must then proceed to ask whether substantial evidence supports that
determination.” (San Mateo Gardens, supra, 1 Cal.5th at p. 953.) Whether there is
substantial evidence in this context involves a “judicial review [that] must reflect the
exacting standard that an agency must apply when changes are made to a project that has
been approved via a negative declaration.” (Ibid.) Accordingly, the Supreme Court
remanded the case to us for further proceedings. (Id. at p. 961.) After the Court issued
its remittitur, we permitted the parties to file supplemental briefs, which they have done. 2
II.
DISCUSSION
A. The General Legal Framework.
“In CEQA, the Legislature sought to protect the environment by the establishment
of administrative procedures drafted to ‘[e]nsure that the long-term protection of the
environment shall be the guiding criterion in public decisions.’ ” (No Oil, Inc. v. City of
Los Angeles (1974) 13 Cal.3d 68, 74.) Under CEQA, a public agency generally conducts
an initial study to determine if a project “may have a significant effect on the
environment.” (CEQA Guidelines, § 15063, subd. (a).) Usually, when an agency
proposes a project, it must prepare an EIR if the project may have a significant effect on
2
Friends filed a request for judicial notice of a November 22, 2016 Supreme Court
order granting review, transferring for reconsideration in light of San Mateo Gardens,
and depublishing our decision in Coastal Hills Rural Preservation v. County of Sonoma
(Aug. 31, 2016, A145573 [nonpub. opn.]). The order is unnecessary to our decision, and
we therefore deny the request. (See JRS Products, Inc. v. Matsushita Electric Corp. of
America (2004) 115 Cal.App.4th 168, 174 & fn. 4.)
5
the environment. (§§ 21080, subd. (a), 21100, subd. (a), 21151, subd. (a).) But if the
initial study shows that there is no substantial evidence that the project may have a
significant effect on the environment, CEQA requires the agency to prepare a negative
declaration. (CEQA Guidelines, § 15070, subd. (a).) “[I]f the project has potentially
significant environmental effects but these effects will be reduced to insignificance by
mitigation measures that the project’s proponent has agreed to undertake, CEQA requires
the . . . agency to prepare a mitigated negative declaration.” (Moss v. County of
Humboldt (2008) 162 Cal.App.4th 1041, 1048.)
CEQA’s subsequent review provisions apply when an agency modifies a project
after it has certified an EIR or has adopted a negative or mitigated negative declaration.3
As we explain in more detail below, these provisions require the agency to prepare a
subsequent EIR or negative declaration under certain circumstances. (CEQA Guidelines,
§ 15162, subds. (a)(1) & (b).) They also allow the agency to prepare an addendum, rather
than a subsequent EIR or negative declaration, if only “minor technical changes or
additions are necessary or none of the conditions described in [CEQA Guidelines]
Section 15162 calling for the preparation of a subsequent EIR or negative declaration
have occurred.” (CEQA Guidelines, § 15164, subd. (b).)
B. CEQA’s Subsequent Review Provisions Apply to the Project Changes.
Our first task is to determine whether the Building 20 project is subject to CEQA’s
initial review provisions, which do not allow for an addendum, or CEQA’s subsequent
review provisions, which do. San Mateo Gardens teaches that this determination
depends on whether “the original environmental document”—in this case the 2006
MND—“retains some informational value.” (San Mateo Gardens, supra, 1 Cal.5th at
p. 952.) As already stated, this is a “predominantly factual question” that is “for the
agency to answer in the first instance, drawing on its particular expertise.” (Id. at p. 953.)
By preparing an addendum to the MND, the District determined that the MND retained
3
All further references to “negative declarations” include mitigated negative
declarations unless otherwise noted.
6
informational value. Our role is to decide whether substantial evidence supports the
District’s determination. (See ibid.)
We conclude that it does. The Plan as described in the MND called for the
demolition of up to 16 buildings on the College campus and the renovation of several
others. It also listed several mitigation measures intended to negate the demolition’s
impact, such as reducing construction noise, preventing groundwater contamination, and
protecting people from exposure to lead and asbestos. The revised plan as described in
the addendum added one Building complex to the demolition list (Building 20) and
removed two others (Buildings 15 and 17). But the addendum did not affect the plans to
demolish the 14 other buildings or remove the measures adopted to mitigate those plans’
environmental effects. These circumstances constitute substantial evidence that the
MND remained relevant, thus allowing the District to proceed under CEQA’s subsequent
review provisions.
C. The District’s Use of an Addendum Contravened CEQA’s Subsequent
Review Provisions.
1. The standard of review that applies to an agency’s determination that
major revisions to a negative declaration are not required.
As we have mentioned, our conclusion that substantial evidence supports the
District’s decision to proceed under CEQA’s subsequent review provisions “is only the
first step.” (San Mateo Gardens, supra, 1 Cal.5th at p. 953.) “Once a court determines
that substantial evidence supports an agency’s decision to proceed under CEQA’s
subsequent review provisions (see § 21166; CEQA Guidelines, § 15162), the next—and
critical—step is to determine whether the agency has properly determined how to comply
with its obligations under those provisions.” (San Mateo Gardens, at p. 953.)
Under CEQA’s subsequent review provisions, “no subsequent EIR shall be
prepared for [a] project unless the lead agency determines, on the basis of substantial
evidence in the light of the whole record” that “[s]ubstantial changes are proposed in the
project which will require major revisions of the previous EIR or negative declaration
due to the involvement of new significant environmental effects or a substantial increase
7
in the severity of previously identified significant effects.” (CEQA Guidelines, § 15162,
subds. (a), (a)(1).) “If changes to a project or its circumstances occur or new information
becomes available after adoption of a negative declaration,” and if no subsequent EIR is
required, the agency “shall determine whether to prepare a subsequent negative
declaration, an addendum, or no further documentation.” (CEQA Guidelines, § 15162,
subd. (b).) “An addendum to an adopted negative declaration may be prepared if only
minor technical changes or additions are necessary or none of the conditions described in
[CEQA Guidelines] Section 15162 calling for the preparation of a subsequent EIR or
negative declaration have occurred.” (CEQA Guidelines, § 15164, subd. (b).) CEQA
Guidelines section 15162 does not clearly specify when the agency must prepare a
subsequent negative declaration instead of issuing an addendum or providing no further
documentation. But as we discuss further below, a subsequent mitigated negative
declaration is at least appropriate where a subsequent EIR would otherwise be required
under CEQA Guidelines section 15162 but the project’s new significant environmental
effects may be avoided through mitigation measures.
The Supreme Court in San Mateo Gardens provided guidance for how to apply the
subsequent review provisions. It explained that whether “major revisions” will be
required as a result of project changes “necessarily depends on the nature of the original
environmental document,” i.e., whether it was an EIR or a negative declaration. (San
Mateo Gardens, supra, 1 Cal.5th at p. 958.) It further explained that the appropriate
standard of review also depends on the nature of the original environmental document.
Although an agency’s determination of whether major revisions are required is reviewed
for substantial evidence, “judicial review must reflect the exacting standard that an
agency must apply when changes are made to a project that has been approved via a
negative declaration,” as opposed to the deferential standard that applies when the project
was originally approved by an EIR. (Id. at p. 953; see Committee for Re-Evaluation of T-
Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th
1237, 1247, 1251-1252 [applying San Mateo Gardens in case where project originally
approved by EIR]; Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192,
8
200.) In the words of the Court, “A negative declaration is permitted when ‘there is no
substantial evidence that the project or any of its aspects may cause a significant effect on
the environment’ [citations], whereas an EIR is required when a project and project
alternatives may have significant effects [citation]. When there is a proposal to modify a
project originally approved through [an] EIR, no ‘major revision’ to the initial EIR is
required if the initial EIR already adequately addresses any additional environmental
effects that may be caused by the proposed modification. In contrast, when a project is
initially approved by negative declaration, a ‘major revision’ to the initial negative
declaration will necessarily be required if the proposed modification may produce a
significant environmental effect that had not previously been studied. [Citation.] Indeed,
if the project modification introduces previously unstudied and potentially significant
environmental effects that cannot be avoided or mitigated through further revisions to the
project plans, then the appropriate environmental document would no longer be a
negative declaration at all, but an EIR.” (San Mateo Gardens, at p. 958, some italics
added.) In sum, “an agency [must] prepare an EIR whenever there is substantial evidence
that the changes to a project for which a negative declaration was previously approved
might have a significant environmental impact not previously considered in connection
with the project as originally approved, and courts must enforce that standard.” (Id. at
p. 959.)
Thus, the standard of review we use in evaluating an agency’s initial
determination of the applicability of the subsequent review provisions to project changes
is analytically different from the standard of review we use, after it has been determined
that those provisions apply, in then evaluating an agency’s determination of whether
major revisions are required to a negative declaration. When we apply the first standard,
we ask whether “substantial evidence supports an agency’s decision to proceed under
CEQA’s subsequent review provisions.” (San Mateo Gardens, supra, 1 Cal.5th at
p. 953.) The standard requires us to approve the agency’s determination when it is
supported by substantial evidence, even if other evidence undermines the determination.
Similarly, if a project was originally approved by an EIR, we affirm the agency’s
9
determination whether a subsequent or supplemental EIR is required when the
determination is supported by substantial evidence, even if there is other evidence to the
contrary. (Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal
Transportation Agency, supra, 6 Cal.App.5th at pp. 1251-1252; Latinos Unidos de Napa
v. City of Napa, supra, 221 Cal.App.4th at p. 200.)
But once we have determined that the subsequent review provisions apply to a
project approved through a negative declaration, our application of the standard of review
changes and is less deferential to the agency. It is less deferential because a negative
declaration requires a major revision—i.e., a subsequent EIR or mitigated negative
declaration—whenever there is substantial evidence to support a fair argument that
proposed changes “might have a significant environmental impact not previously
considered in connection with the project as originally approved.” (San Mateo Gardens,
supra, 1 Cal.5th at p. 959, citing Friends of “B” Street v. City of Hayward (1980) 106
Cal.App.3d 988, 1002.) Proposed changes might have a significant environmental
impact when there is some competent evidence to suggest such an impact, even if other
evidence suggests otherwise. (See Friends of “B” Street, at p. 1002.) This means that an
agency’s determination that a major revision to a negative declaration is not required will
necessarily lack substantial evidence when a fair argument exists that the project might
have a previously unstudied significant environmental impact.4
The District argues that the standard of review is “much more subtle and
complex.” According to the District, San Mateo Gardens requires courts to apply the fair
argument standard “only in limited subsequent review circumstances that are not present
in this case. These limited subsequent review situations exist only where an agency first
4
This is also made clear by the Supreme Court’s disapproval of Benton v. Board
of Supervisors (1991) 226 Cal.App.3d 1467. (San Mateo Gardens, supra, 1 Cal.5th at
p. 958, fn. 6.) Benton considered whether a proposal to relocate a winery previously
approved via negative declaration required the preparation of an EIR. The Court of
Appeal concluded that no EIR was required because, among other things, substantial
evidence supported the agency’s conclusion that “[t]he environmental impacts of the
modification were not significant.” (Benton, at p. 1483.) This standard is effectively the
reverse of the standard announced by San Mateo Gardens.
10
determines that a previously-adopted negative declaration or MND for an approved
project is no longer wholly relevant to proposed project changes, and then secondly
identifies one or more entirely new, previously unstudied potentially significant
environmental impacts that might result from such changes.” (Italics omitted.)
We disagree with the District. There is only one reasonable interpretation of San
Mateo Gardens: where, as here, an agency originally prepares a negative declaration, we
must assess whether there is “substantial evidence that the changes to a project for which
a negative declaration was previously approved might have a significant environmental
impact not previously considered in connection with the project as originally approved.”
(San Mateo Gardens, supra, 1 Cal.5th at p. 959, italics added.) If there is such evidence,
we cannot uphold the agency’s determination that no major revisions were required. It is
of no consequence whether the District believed that the prior MND remained “wholly
relevant” or whether the District independently identified a new potentially significant
environmental impact. San Mateo Gardens held that where a project is originally
approved through a negative declaration, “agencies [cannot] evade their obligation to
prepare an EIR based on the more demanding ‘fair argument’ standard, so long as the
potential environmental effects of the project are caused by changes in the project after a
negative declaration has been approved.” (Id. at p. 958.) Were we to accept the
District’s argument, it would create just the sort of “loophole” for agencies that the
Supreme Court emphasized does not exist. (Id. at p. 957.)
2. Application of the standard of review in this case.
Having settled on the appropriate standard of review, we turn to assess whether
substantial evidence shows that the Building 20 demolition project might have a
significant effect on the environment. If substantial evidence shows that it might, there is
substantial evidence of a possible significant environmental effect and the District’s
adoption of the addendum was not permitted under CEQA. (CEQA Guidelines,
§§ 15164, subd. (b), 15384, subd. (a).) For CEQA purposes, the types of evidence that
constitute substantial evidence include “fact, a reasonable assumption predicated upon
fact, or expert opinion supported by fact.” (§ 21080, subd. (e)(1); CEQA Guidelines,
11
§ 15384, subd. (b).) In our review, we do not “ ‘revisit environmental concerns laid to
rest in the original analysis. Only changed circumstances . . . are at issue.’ ” (San Mateo
Gardens, supra, 1 Cal.5th at p. 949.)
A project’s negative effect on the aesthetic, natural, scenic, or historical
environmental qualities in its vicinity may constitute a significant environmental impact
under CEQA. (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903,
936-937; § 21001, subd. (b).) The question whether a project might have an aesthetic
impact “by its very nature is subjective.” (Ocean View Estates Homeowners Assn., Inc.
v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402.) “As on other CEQA topics,
the opinions of area residents, if based on direct observation, may be relevant as to
aesthetic impact and may constitute substantial evidence in support of a fair argument; no
special expertise is required on this topic.” (Pocket Protectors, at p. 928.)
Here, the record contains substantial evidence that the planned removal of a
portion of the gardens surrounding Building 20 might have a significant aesthetic impact
on the College campus. A long-time professor explained that beginning in the 1960’s,
the College campus had been developed in a way that gave it “the sterile aspect of an
industrial park.” The gardens around Building 20 were the “single surviving semi-natural
asylum” on the campus. As another professor put it, the gardens were “the only place left
on campus where students, faculty, and staff can go to get away from the concrete and
rigid plots of monoculture plantings that have taken over the campus[.]” A number of
students similarly believed that removal of the gardens would have a severe impact on the
aesthetic appeal of the campus, as the gardens provide a “sanctuary” and “sense of calm”
for the student body. Of particular concern in the garden south of Building 20 was the
fate of a Dawn Redwood tree, a tree species once thought to be extinct. Students
described the tree as “tall and majestic” and “irreplaceable.” The revised addendum
stated that the tree would be preserved as part of the Building 20 demolition. But an
assessment prepared by the District explained that construction associated with the
demolition “may cause future health or structural problems” to the tree and that “steps
must be taken to protect the tree to reduce future problems.”
12
The District tries to discount many of the student and faculty comments because
they were provided after the original addendum was adopted in May 2011 but before the
revised addendum was adopted that August. But the comments remained relevant after
the revised addendum. Although the revised addendum provided additional analysis
regarding measures to retain portions of the gardens, the impact on the gardens remained
significant: about 20 percent of the garden north of Building 20 would be removed,
while over half of the garden south of the building would be removed. Each of the 11
plant and tree species slated for removal or relocation under the original addendum
remained subject to removal or relocation under the revised addendum. And, as
suggested above, the potential impact to the Dawn Redwood tree remained significant
after the revised addendum.
The District also argues that its plan to remove a portion of the gardens around
Building 20 was insignificant because the planned removal would result in a loss of less
than one-third of one percent of the total landscaped and open space on campus. We are
not persuaded. The significance of an environmental impact is not based on its size but is
instead “ ‘measured in light of the context where it occurs.’ ” (San Francisco Beautiful v.
City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1026; see also CEQA
Guidelines, § 15064, subd. (b) [“An ironclad definition of significant effect is not always
possible because the significance of an activity may vary with the setting”].) Here,
substantial evidence shows that the gardens around Building 20 were unique in the
campus setting. They were “the only place left on campus where students, faculty, and
staff [could] go to get away from the concrete and rigid plots of monoculture plantings
that have taken over the campus[.]” As such, while the gardens may not have taken up
much space, there is substantial evidence to support a fair argument that removing a
significant portion of them might have a significant aesthetic impact.
The District’s reliance on Preserve Poway v. City of Poway (2016)
245 Cal.App.4th 560 to support the claimed lack of an aesthetic impact is misplaced.
There, the plaintiffs challenged the City of Poway’s decision to adopt an MND instead of
an EIR for a plan to turn a horse boarding facility into 12 homes. (Id. at p. 565.) The
13
trial court granted the plaintiffs’ petition because there was substantial evidence creating
a fair argument that the project would have a significant effect on Poway’s “community
character.” (Id. at p. 573.) The appellate court reversed. It explained that the impacts
described by Poway citizens were “not aesthetic impacts; rather, they [were] impacts to
the collective psyche of Poway residents related to living in the ‘City in the Country’ and
social impacts caused by the loss of the [boarding facility].” (Id. at p. 578.) No one
contended that the project was an “eyesore.” (Id. at p. 565.) Instead, citizens complained
about things such as children’s not being able to ride horses any longer and worried that
Poway would lose its “ ‘City in the Country’ ” feel. (Id. at p. 579.)
Here, by contrast, the College community expressed concerns about the aesthetic
value of the gardens around Building 20, not just the gardens’ social value. The gardens
were described as “beautiful” and as having a “positive aesthetic effect on the campus,
especially in view of all the concrete that has been laid as part of the new landscaping of
the campus.” There was widespread concern that replacing the gardens with a parking lot
would remove one of the last green spaces on campus.
In sum, there is substantial evidence that the Building 20 demolition project might
have a significant environmental effect due to its aesthetic impact on the College
campus.5 We will not, however, order the District to prepare an EIR on remand, as
Friends requests. The District can choose to prepare a subsequent MND if it determines
that the possibly significant environmental effects will “be reduced to insignificance”
through the implementation of mitigation measures. (Moss v. County of Humboldt,
supra, 162 Cal.App.4th at p. 1048.) What is clear is that the decision to adopt an
addendum was improper under CEQA’s subsequent review provisions, since an
addendum may be prepared only if there are “minor technical changes or additions” or if
5
In reaching this conclusion, we express no opinion on whether the demolition of
the Building 20 complex might have other significant environmental effects.
14
none of the circumstances calling for a subsequent EIR or negative declaration have
occurred.6 (CEQA Guidelines, § 15164, subd. (b).)
III.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
6
Because we conclude that the District must prepare either an EIR or a subsequent
MND, we need not address Friends’ alternative argument that the provision in CEQA
Guidelines section 15164 allowing for the use of an addendum is without statutory
authority.
15
_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Dondero, J.
Friends of the College of San Mateo Gardens v. San Mateo County Community College
District (A135892)
16
Friends of the College of San Mateo v. San Mateo Community College
A135892 – Dondero, J., Concurring
I concur in the result of this case. I seek to emphasize that the District incorrectly
relied on the addendum process to deal with the modifications of the project approved
under the original negative declaration, as detailed in the lead opinion. I do not believe
the addendum process was the appropriate method to address the changes contemplated
by the District. While the addendum process is limited to instances concerning “minor
technical changes or alterations” (Cal. Code Reg., tit. 14, § 15164), the proposal reviewed
in this case involved demolishing a major building and transforming into a parking lot an
important garden space with unique trees and vegetation. Neither of these changes were
discussed in the original negative declaration. These revisions exposed “new, potentially
significant environmental effects that had not previously been considered in connection
with the earlier environmental study.” (See Friends of College of San Mateo Gardens v.
San Mateo Community College District (2016) 1 Cal.5th 937, 958, fn. 6.) Clearly the
employment of the addendum process in a subsequent review study under the facts of this
case did not satisfy the exacting standard called for when the original review involved no
environmental impact report (EIR).
As indicated in the lead opinion, an agency may conduct a subsequent review of
the environmental impact in several ways, including the preparation of an EIR or
mitigated negative declaration (MND). Courts will assess the propriety of the subsequent
review document by focusing on whether there is substantial evidence the changes to the
project previously approved by a negative declaration “might” have new or increased
significant environmental effects “not previously considered in connection with the
project as originally approved.” (Friends of College of San Mateo Gardens v. San Mateo
Community College District, supra, 1 Cal.5th at p. 959.) This means a negative
declaration or MND may be appropriate for a subsequent review, especially where the
original negative declaration considered the particular subject matter evaluated in the
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subsequent study. In a subsequent review evaluated by an MND, as opposed to an EIR,
the reviewing court will need to examine the details of the new MND, as well as its
assessment of what was originally considered in the initial negative declaration. (See
Abatti v. Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 674; Snarled Traffic
Obstructs Progress v. City and County of San Francisco (1999) 74 Cal.App.4th 793,
801.)
______________________________
Dondero, J.
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Trial Court:
San Mateo County Superior Court
Trial Judge:
Hon. Clifford v. Cretan
Counsel for Defendants and Appellants:
Eugene Whitlock, San Mateo County Counsel
James G. Moose, Remy Moose Manley LLP
Sabrina V. Teller, Remy Moose Manley LLP
John T. Wheat, Remy Moose Manley LLP
Counsel for Plaintiff and Respondent:
Susan Brandt-Hawley, Brandt-Hawley Law Group
Friends of the College of San Mateo Gardens v. San Mateo County Community College
District (A135892)
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