Filed 2/26/21 Citizens for Positive Growth & Preservation v. City of Sacramento CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
CITIZENS FOR POSITIVE GROWTH & C090205
PRESERVATION,
(Super. Ct. No. 34-2018-
Plaintiff and Appellant, 80002897-CU-WM-GDS)
v.
CITY OF SACRAMENTO et al.,
Defendants and Respondents.
This California Environmental Quality Act (CEQA) (Pub. Resources Code,
§ 21000 et seq.)1 lawsuit arises from defendant City of Sacramento’s adoption of an
ordinance removing a three-block area from the Alhambra Corridor Special Planning
District (the Alhambra SPD), as part of a far-reaching Central City Specific Plan project
(the project).
1 Undesignated statutory references are to the Public Resources Code.
1
The project originally did not propose to change the boundaries of the Alhambra
SPD. That is because the three-block area at issue here already had been removed from
the Alhambra SPD by ordinances enacted in 2016, a year before the Central City project
was proposed.
However, after the draft environmental impact report (EIR) was circulated for the
project, a writ of mandate (issued in a different proceeding) compelled the City of
Sacramento (the City) to rescind the 2016 ordinances, effectively causing the western
boundary of the Alhambra SPD to revert to its prior configuration and overlap with the
eastern boundary of the newly proposed Central City Special Planning District (Central
City SPD). To address this overlap, the City revised the project to include a new
ordinance removing the three-block area from the Alhambra SPD, thereby bringing the
description of the project back into conformance with the assumptions in the draft EIR.
The City described this change in its final EIR and concluded that recirculation of the
EIR was not required because the draft EIR already analyzed the potential environmental
impacts of applying the new Central City SPD policies to the three-block area that
formerly was part of the Alhambra SPD.
After the City approved the project, plaintiff Citizens for Positive Growth &
Preservation (Citizens) filed a petition for writ of mandate and complaint for declaratory
and injunctive relief (petition) seeking to set aside the City’s certification of the EIR and
related project approvals. The trial court denied the petition.
Citizens appeals, arguing that the City violated CEQA by modifying the
boundaries of the Alhambra SPD without (1) adequately analyzing the environmental
impacts of that change, or (2) recirculating the EIR to give the public a meaningful
opportunity to review and comment upon it. We will affirm the judgment.
BACKGROUND FACTS AND PROCEDURE
The City created the Alhambra SPD in 1992. Its purpose was to “assist in the
preservation of the neighborhood scale and character [while] providing additional
2
housing opportunities in the area.” To that end, development within the Alhambra SPD
became subject to special regulations and standards, including, among other things, a
requirement that, with certain exceptions, development within 300 feet of a residential
zone not exceed 35 feet in height. The purpose of this “residential preservation transition
buffer zone” was to “protect residential neighborhoods from visual intrusion by new
development that is out of scale with the adjacent residential neighborhood.”
As originally created, the Alhambra SPD included the area bounded by the
Southern Pacific railroad levee on the north, Highway 50 on the south, 34th Street on the
east, and 26th Street on the west. However, in September 2016, the City adopted
ordinances (the 2016 Ordinances) shifting the western border of the Alhambra SPD from
26th Street to 29th Street. The effect of the 2016 Ordinances was to align the boundary
of the Alhambra SPD with Interstate Business 80, shrink the size of the Alhambra SPD
by approximately three city blocks, and rezone the parcels formerly within the Alhambra
SPD to the City’s base zoning designations. Claiming this change did not qualify as a
“project” under CEQA, the City adopted the 2016 Ordinances without environmental
review.
In November 2016, Citizens filed a petition and complaint (the 2016 lawsuit)
challenging the City’s adoption of the 2016 Ordinances. Citizens argued, among other
things, that the City violated CEQA by adopting the 2016 Ordinances without
environmental review.
In September 2017, while the 2016 lawsuit was pending, the City circulated for
public comment the draft EIR for its new Central City Specific Plan, a land use planning
document establishing guidelines and policies for the 4.25-square-mile “core” central city
area, which is bounded by the American River/River District/Railyards on the north, the
Sacramento River on the west, Broadway on the south, and Interstate Business 80 on the
east. Among other things, the Central City Specific Plan established the Central City
3
SPD, covering most of the central city area, including areas that previously were parts of
other special planning districts.
A chief goal in establishing the Central City Specific Plan was to facilitate and
encourage “more compact” infill development within the central city by, among other
things, expanding allowable heights and densities, especially in areas near transit
services. The draft EIR discussed, among other things, how the proposed project would
alter maximum building heights for areas within the Central City Specific Plan, including
the Central City SPD. The draft EIR disclosed that the proposed project would increase
the maximum allowable height in the general commercial (C-2) zone (from 65 to 85
feet), the office business low-rise mixed-use (OB) zone (from 35 to 65 feet), and the
residential mixed-use (RMX) zone (from 45 to 65 feet).
Although building height in the Alhambra SPD is limited to 35 feet within 300
feet of residential zones, as noted above, the draft EIR assumed that the three-block area
between 26th Street and 29th Street already had been removed from the Alhambra SPD
by the 2016 Ordinances. Thus, in analyzing the potential impacts of development that
could occur under the proposed project, the draft EIR focused on how the project would
increase the maximum allowable heights in the C-2, OB, and RMX base zones, without
regard to the Alhambra SPD’s special height restrictions.
The draft EIR analyzed the environmental impacts of the project by comparing the
conditions under full build-out of the Central City Specific Plan, at the maximum
allowable heights and densities, against the existing physical conditions in the area
affected by the project. The draft EIR identified 13 significant impacts that could not be
reduced to less than significant levels with the implementation of mitigation measures.
The draft EIR concluded all other potentially significant impacts would be reduced to less
than significant levels with the implementation of mitigation measures.
In January 2018, after the close of the public comment period on the draft EIR, the
superior court issued its decision in the 2016 lawsuit. The court ruled in favor of
4
Citizens, concluding that the City violated CEQA by adopting the 2016 Ordinances
without environmental review. The court therefore granted the petition (in part) and
issued a writ commanding the City to rescind the 2016 Ordinances.2
In February 2018, when the City released the final EIR for the Central City
Specific Plan, the City discussed the 2016 lawsuit and the effect that the court’s
invalidation of the 2016 Ordinances would have on the proposed project. The City
explained that the court’s decision created an overlap between the boundaries of the
Alhambra SPD and the Central City Specific Plan and a potential inconsistency in zoning
designations for parcels in the area between 26th Street and 29th Street. To remedy this,
the City proposed a new legislative action to remove the area between 26th Street and
29th Street from the Alhambra SPD.
The City acknowledged that removing the three-block area from the Alhambra
SPD could result in taller developments due to increased allowable heights under the
Central City Specific Plan zoning designations. Nevertheless, the City concluded that
this change would not affect the environmental analysis of the proposed project because
it merely would bring the description of the project into conformance with the assumed
conditions in the draft EIR, and therefore would not have any new significant
environmental impacts or cause a substantial increase in the severity of any previously
identified environmental impacts that were not already analyzed in the draft EIR.
In April 2018, over Citizens’ objection, the City certified the final EIR and
approved the Central City Specific Plan. As part of its list of approvals for the project,
the City adopted Ordinance No. 2018-0014 (the 2018 Ordinance), amending section
17.420.010 of the Sacramento City Code to remove the area between 26th Street and 29th
2 In or about March 2018, the City complied with the superior court’s writ by
rescinding the 2016 Ordinances, temporarily reestablishing the previous western
boundary of the Alhambra SPD at 26th Street.
5
Street from the Alhambra SPD. The City filed a notice of determination for the project
on April 20, 2018.
In May 2018, Citizens filed a verified petition for writ of mandate and complaint
for declaratory and injunctive relief challenging the certification of the EIR and adoption
of the Central City Specific Plan. Citizens argued that the City violated CEQA by
approving the Central City Specific Plan without studying the environmental impacts of
removing the area between 26th Street and 29th Street from the Alhambra SPD, and by
adding significant new information to the final EIR after the close of the public comment
period without revising and recirculating the EIR.
The superior court denied the petition and complaint. The court concluded
Citizens failed to show that the EIR did not adequately analyze the environmental
impacts of removing the area between 26th Street and 29th Street from the Alhambra
SPD, or that the City was required to revise and recirculate the EIR. Citizens timely
appealed the court’s judgment.
DISCUSSION
I
Standard of Review
In a mandate proceeding to review an agency’s compliance with CEQA, we
review the administrative record to determine whether the agency prejudicially abused its
discretion. (Chico Advocates for a Responsible Economy v. City of Chico (2019) 40
Cal.App.5th 839, 845 (Chico Advocates); § 21168.5.) An agency may abuse its
discretion under CEQA by failing to proceed in the manner required by law or by
reaching factual conclusions unsupported by substantial evidence. (Vineyard Area
Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,
435.) Judicial review of these two types of errors differs significantly. (Ibid.) Where the
claim is predominantly one of improper procedure, we determine de novo whether the
6
agency employed the correct procedures, scrupulously enforcing all legislatively
mandated requirements. (Ibid.)
Where the claim is predominantly a dispute over the facts, we must accord
deference to the agency’s factual conclusions. (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.) Reviewing courts
do not determine whether the EIR’s ultimate conclusions are correct, but only whether
they are supported by substantial evidence. (San Joaquin Raptor Rescue Center v.
County of Merced (2007) 149 Cal.App.4th 645, 653.) Under CEQA, substantial evidence
means “enough relevant information and reasonable inferences from this information that
a fair argument can be made to support a conclusion, even though other conclusions
might also be reached.” (Cal. Code Regs., tit. 14, § 15384, subd. (a) [CEQA’s regulatory
guidelines; hereafter CEQA Guidelines].) In applying the substantial evidence test, we
must indulge all reasonable inferences to support the agency’s determination and resolve
all conflicts in the evidence in favor of the agency’s decision. (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393
(Laurel Heights I); Chico Advocates, supra, 40 Cal.App.5th at p. 845.) Regardless of
what is alleged, an EIR is presumed legally adequate, and the party challenging the EIR
has the burden of proving otherwise. (Chico Advocates, at p. 846.)
II
Adequacy of Impacts Analysis
Citizens argues the City violated CEQA by voting to approve the project without
analyzing the environmental impacts of the project on the three-block area between 26th
Street and 29th Street that was removed from the Alhambra SPD. We disagree. Those
impacts were discussed in the EIR, and a change in the special planning district
designation does not alter how the significance of environmental impacts should have
been analyzed.
7
The fundamental goal of CEQA is “ ‘to compel government at all levels to make
decisions with environmental consequences in mind.’ ” (Laurel Heights I, supra, 47
Cal.3d at p. 393.) Consistent with this objective, CEQA requires an EIR whenever an
agency proposes to approve or carry out a project that may have a significant effect on
the environment. (§§ 21080, subd. (d), 21082.2, subd. (d), 21100, 21151; CEQA
Guidelines, § 15002, subd. (f)(1).)
The primary purpose of an EIR is to provide public agencies and the public with
information about the effects a proposed project is likely to have on the environment.
(Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57
Cal.4th 439, 447 (Neighbors for Smart Rail); § 21061.) The term “environment” means
the physical conditions which exist within the area affected by a proposed project.
(§ 21060.5.) The “effects” analyzed under CEQA must relate to a physical change in that
environment. (CEQA Guidelines, § 15358, subd. (b); accord, Wal-Mart Stores, Inc. v.
City of Turlock (2006) 138 Cal.App.4th 273, 288, disapproved in part on other grounds as
stated in Hernandez v. City of Hanford (2007) 41 Cal.4th 279, 297; see also § 21065;
CEQA Guidelines, § 15064, subd. (d).) Thus, to evaluate a project’s effects on the
environment, an EIR must first define the physical environmental conditions, or baseline,
against which the project’s predicted changes will be compared. (Neighbors for Smart
Rail, supra, at p. 447; see also Wal-Mart Stores, supra, at p. 289 [change is identified by
comparing existing physical conditions with the physical conditions reasonably predicted
to exist after the project is implemented].)
Because CEQA is concerned with physical changes to the environment, the
impacts of a proposed project ordinarily are compared to the actual conditions in the
vicinity of the project as they existed at the time the environmental analysis was
commenced. (CEQA Guidelines, § 15125, subd. (a).) This is supported by a long line of
authority holding that the baseline must reflect the existing physical conditions, rather
than future conditions hypothetically allowable under plans or regulations. (See, e.g.,
8
Communities for a Better Environment v. South Coast Air Quality Management Dist.
(2010) 48 Cal.4th 310, 320-322 [air pollution effects of project to expand refinery must
be measured against existing emission levels rather than levels that would have existed
had refinery operated at maximum permitted capacity]; Environmental Planning &
Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354, 357-358
[effects of proposed general plan amendments must be compared to existing physical
conditions, rather than to development permitted under existing plan]; San Joaquin
Raptor Rescue Center v. County of Merced, supra, 149 Cal.App.4th at pp. 657-658
[baseline for proposed expansion of mining operations must be existing operations, not
hypothetical peak operations]; City of Carmel-by-the-Sea v. Board of Supervisors (1986)
183 Cal.App.3d 229, 246-247 [effects of rezoning must be compared to existing real
conditions on ground, rather than development allowed under prior land use plan]; Fat v.
County of Sacramento (2002) 97 Cal.App.4th 1270, 1277-1281 [agency properly used
existing physical conditions as baseline even though they resulted from prior illegal
activities].) A departure from the normal rule is appropriate only in “unusual”
circumstances where an analysis based on existing environmental conditions would be
“uninformative or misleading.” (Neighbors for Smart Rail, supra, 57 Cal.4th at pp. 451-
453; accord, POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 78-79.)
Here, the City followed the normal rule, describing the existing physical
conditions in the area affected by the project and analyzing the potential environmental
impacts of the project against that baseline. Nevertheless, Citizens argues that the EIR is
deficient because it did not analyze the impacts of the changes on the Alhambra SPD.
Citizens contends that because the project changed the boundaries of the Alhambra SPD,
allowing increased building heights in the area between 26th Street and 29th Street, the
EIR should have specifically analyzed the impacts of the project in relation to what was
allowed under the land use regulations of the Alhambra SPD.
9
However, CEQA requires consideration of the potential environmental effects of
the project approved by the public agency, not some different, hypothetical project.
(County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 199; Rio Vista Farm
Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 372.) Here, the project
approved by the City was a comprehensive scheme—it did not merely alter height
restrictions that applied under the Alhambra SPD’s rules, it also increased the maximum
allowable heights for various base zones within the Central City SPD (namely, C-2,
RMX and OB). The EIR appropriately analyzed the potential physical impacts of
development that could occur, assuming that development would be constructed to the
new maximum allowable heights for each zoning designation. Citizens cannot show that
limiting the EIR’s analysis to the impacts of changing the Alhambra SPD’s height
restrictions would have provided a more accurate picture of the project’s impacts. To the
contrary, it may have presented an unrealistic assessment of the project, minimizing its
potential impacts.
Further, as discussed above, CEQA is concerned with the effects a project will
have on the physical environment, not the effects it will have on existing land use plans.
(Environmental Planning & Information Council v. County of El Dorado, supra, 131
Cal.App.3d at p. 354.) As a consequence, the proper starting point for an EIR’s impacts
analysis ordinarily is the existing physical condition of the property, not the potential
future condition of the property under existing development standards.3 (Communities
3 This is not to say that there is no place in an EIR to compare a project’s impacts to
projected future conditions under a previously adopted plan. Such matters are
appropriately considered in an EIR’s discussion of the project’s cumulative effects and in
the EIR’s discussion of the “no project” alternative. (Neighbors for Smart Rail, supra, 57
Cal.4th at p. 454; § 21083, subd. (b)(2); CEQA Guidelines, §§ 15130, 15065, subd.
(a)(3), 15126.6, subd. (e); see also CEQA Guidelines, § 15125, subd. (a).) But as our
Supreme Court has explained, the baseline for determining whether a proposed project’s
10
for a Better Environment v. South Coast Air Quality Management Dist., supra, 48 Cal.4th
at pp. 320-322.) The City’s EIR adhered to the normal rule of comparing the impacts of
the project to the actual environmental conditions. Citizens has not shown that the EIR
was deficient, or that this approach rendered the EIR’s analysis uninformative or
misleading. Accordingly, Citizens has not shown that the City abused its discretion.
Citizens’ chief complaint is that the EIR failed to evaluate the significance of
allowing taller buildings “in an area previously designated as a ‘residential preservation
transition buffer zone.’ ” But that is precisely what the EIR did when it analyzed the
environmental impacts of allowing taller buildings in the area between 26th Street and
29th Street.
Although the draft EIR did not frame the discussion in terms of the effects of
moving the Alhambra SPD’s western boundary—because it assumed that boundary
already had been moved—the final EIR disclosed that because the 2016 Ordinances had
to be rescinded, the City would be including a new legislative approval to move the
boundary and bring the conditions of the project into conformance with the
environmental conditions discussed in the draft EIR. The final EIR expressly discussed
the differences in height restrictions and other limitations under the Alhambra SPD and
Central City Specific Plan, and explained how the revisions did not alter the draft EIR’s
significance conclusions.4
environmental impacts may be significant normally is not the same as the no project
alternative. (Neighbors for Smart Rail, at p. 454.)
4 The current physical conditions for the 26th through 29th Street area (like the
other areas subject to the proposed Central City Specific Plan) were identified and the
environmental impacts of the new guidelines and policies in the proposed project were
assessed against that baseline. When the City rescinded the 2016 Ordinances, the three-
block area was effectively returned to the Alhambra Corridor SPD. This altered the
special planning designation and required new legislative action for the Central City
Specific Plan, but it did not alter any potential impacts or existing physical conditions.
11
Citizens has failed to show—or even attempt to show—that the EIR’s significance
conclusions are not supported by substantial evidence, despite having the burden to do so.
(South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th
316, 330 (South County Citizens); Defend the Bay v. City of Irvine (2004) 119
Cal.App.4th 1261, 1266.) Mere disagreement with an EIR’s conclusions does not
establish that the analysis which led to those conclusions was deficient. (North Coast
Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th
614, 627-628.)
Citizens further argues that the EIR’s analysis was deficient because (1) it failed to
use a different threshold of significance when assessing impacts in the area formerly
designated as a residential preservation transition buffer zone,5 as allegedly required by
CEQA Guidelines section 15064, and (2) it failed to evaluate the project’s consistency
with the Alhambra SPD, as allegedly required by CEQA Guidelines section 15125. The
City has filed a motion to strike these arguments, contending they are not properly before
us on appeal. We are inclined to agree. The trial court refused to consider such
arguments because they were not timely presented, and Citizens’ opening brief fails to
show how the trial court’s ruling was in error.6 (Regency Outdoor Advertising, Inc. v.
The EIR’s analysis of the physical environmental impacts of applying the new Central
City plans and policies to the three-block area had already been completed and no further
analysis was required.
5 Citizens apparently assumes that because the area previously was part of a
“residential preservation transition buffer zone,” the impacts from allowing taller
buildings in that area necessarily would be more significant. But it produced no evidence
to show this is true. Citizens also fails to identify or discuss any physical differences
between the area between 26th and 29th Streets and the remainder of the Central City
SPD area that might compel additional analysis in the EIR.
6 Citizens argued in its opening brief in the trial court that the City violated CEQA
by, among other things, failing to evaluate the significance of impacts caused by
12
Carolina Lanes, Inc. (1995) 31 Cal.App.4th 1323, 1333; Quiles v. Parent (2018) 28
Cal.App.5th 1000, 1013.)
But even if we assume Citizens properly raised the claims below, it has not
adequately supported them on appeal. For example, it has not shown what thresholds of
significance were used by the City, why the City’s thresholds were improper, or how they
were prejudicial to the EIR’s impacts analyses. Similarly, Citizens has failed to explain
why the EIR should have discussed the project’s inconsistencies with a plan (the
Alhambra SPD) that, upon approval, expressly would no longer apply. (South of Market
Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th
321, 353 [EIR not required to discuss inconsistencies with requirements for special use
district where proposed project would be rezoned out of that area]; Sierra Club v. City of
Orange (2008) 163 Cal.App.4th 523, 543-544 [EIR not required to discuss
inconsistencies with county general plan where, upon approval, project would be
governed by general plan of city, rather than county]; CEQA Guidelines, § 15125, subd.
(d).)
For all of these reasons, we conclude that Citizens failed to meet its burden to
show that the EIR did not properly analyze the project’s environmental impacts.7
(Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549, 581 [deferential standard
of review applies to challenges to the scope of an EIR’s analysis of a topic and the
methodology used for studying an impact]; Chico Advocates, supra, 40 Cal.App.5th at p.
849, fn. 6 [agency’s choice of a significance threshold will be upheld if supported by
shrinking the boundaries of the Alhambra SPD, “taking into account the purpose of the
Alhambra SPD’s height restrictions.” But Citizens did not argue that the City used an
improper threshold of significance, and CEQA Guidelines section 15064 was not cited
until its reply. CEQA Guidelines section 15125 was not cited in either the opening brief
or the reply.
7 Because we reject these arguments on the merits, we deny the City’s motion to
strike.
13
substantial evidence]; South County Citizens, supra, 221 Cal.App.4th at p. 330 [petitioner
must lay out the evidence favorable to the other side and show why it is lacking].)
III
Recirculation of EIR
Citizens also argues that the City violated CEQA by failing to recirculate the EIR
despite making significant changes to the project after the close of the public comment
period. We disagree the changes to the final EIR required the City to recirculate the EIR.
When new information has been added to a previously circulated EIR, the lead
agency may be required to recirculate the EIR. (§ 21092.1; CEQA Guidelines, §
15088.5, subd. (a); Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal.4th 1112, 1126-1130 (Laurel Heights II).) However,
recirculation is required only when the new information is “significant.” (§ 21092.1;
Laurel Heights II, supra, at pp. 1126-1127.)
New information added to an EIR is “significant” when the EIR has been changed
in a way that deprives the public of a meaningful opportunity to comment upon a
substantial adverse environmental effect of the project or a feasible way to mitigate or
avoid such an effect. (Laurel Heights II, supra, 6 Cal.4th at p. 1129; CEQA Guidelines,
§ 15088.5, subd. (a).) Recirculation is required when the new information discloses:
(1) a new substantial environmental impact; (2) a substantial increase in the severity of an
environmental impact (unless mitigated to a level of insignificance); (3) a feasible project
alternative or mitigation measure that clearly would lessen the environmental impacts of
the project, but which the project’s proponents declined to adopt; or (4) that when the
draft EIR was so fundamentally and basically inadequate and conclusory in nature that
public comment on the draft was effectively meaningless. (Laurel Heights II, at pp.
1129-1130; accord, Silverado Modjeska Recreation & Park Dist. v. County of Orange
(2011) 197 Cal.App.4th 282, 302-303; CEQA Guidelines, § 15088.5, subd. (a).) But
recirculation is not required if the new information merely clarifies, amplifies, or makes
14
insignificant modifications to an otherwise adequate EIR. (Laurel Heights II, at p. 1130;
accord, CEQA Guidelines, § 15088.5, subd. (b).)
In determining whether an agency erred in deciding not to recirculate an EIR, we
apply the substantial evidence standard of review. (Laurel Heights II, supra, 6 Cal.4th at
p. 1135; Silverado Modjeska Recreation & Park Dist. v. County of Orange, supra, 197
Cal.App.4th at p. 304.) The party challenging the EIR bears the burden of demonstrating
that the agency’s decision is not supported by substantial evidence. (Santa Clarita
Organization for Planning the Environment v. County of Los Angeles (2007) 157
Cal.App.4th 149, 158; accord, South County Citizens, supra, 221 Cal.App.4th at p. 330
[petitioner bears burden of proving a double negative, that there was no substantial
evidence to support the determination that the new information was not significant].)
Here, Citizens claims rescission of the 2016 Ordinances and the addition of the
2018 Ordinance was significant new information that required the City to recirculate the
EIR. Citizens argues that eliminating the Alhambra SPD’s height restrictions in the area
between 26th Street and 29th Street allowed taller developments that, in turn, will cause
“new and exacerbated” environmental impacts, such as increased traffic and noise.
The EIR, in contrast, concluded the new information was not significant because
the draft EIR assumed the area already had been removed from the Alhambra SPD.
Therefore, the change could have no impacts beyond those already addressed in the draft
EIR. Substantial evidence supports the EIR’s conclusion.
As discussed earlier, the City properly used the existing physical conditions in the
area as the baseline for its environmental analysis. The City’s draft EIR analyzed the
potential impacts of the project, including its increased maximum allowable building
heights, relative to the existing conditions in the area. Because the information added to
the final EIR had no effect on the existing physical conditions or the maximum heights
allowed under the project, the City correctly concluded that the new information did not
alter the EIR’s analysis of the project’s environmental impacts. (Residents Against
15
Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, 964-968 [changes to
configuration of master plan community did not require recirculation because the
revisions would not cause impacts beyond those studied in the EIR].)
Recirculation is not required simply because new or different information was
added to the EIR. (South County Citizens, supra, 221 Cal.App.4th at p. 328.) “As the
California Supreme Court observed in [Laurel Heights II], ‘the final EIR will almost
always contain information not included in the draft EIR’ given the CEQA statutory
requirements of circulation of the draft EIR, public comment, and response to these
comments prior to certification of the final EIR. [Citation.] But ‘[r]ecirculation was
intended to be an exception, rather than the general rule.’ [Citation.]” (South County
Citizens, at p. 328.)
Citizens has failed to show how the revisions to the City’s final EIR deprived the
public of a meaningful opportunity to comment upon a substantial adverse environmental
effect of the project or a feasible way to mitigate or avoid such an effect. The revisions
did nothing to change the environmental impacts of the project analyzed in the EIR. (See
Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal.App.4th 91, 108 [“As the
revisions did not change the nature of the potential impacts, their likelihood to occur, or
the mitigation for them, we cannot conclude the revisions deprived the public of a
meaningful opportunity to comment on a substantial adverse environment effect”].)
Indeed, the purpose of the 2018 Ordinance was to bring the project into conformance
with what was analyzed in the draft EIR.
The draft EIR analyzed the potential impacts of the development that could occur
under the maximum allowable building heights under the Central City Specific Plan,
relative to the existing conditions in the area. The new information discussed in the final
EIR had no effect on the maximum allowable building heights under the Central City
16
Specific Plan or the existing building heights in the area. It follows that the information
did not affect the analysis in the draft EIR.8
Citizens also claims that the City was required to recirculate because the draft EIR
was “fundamentally inadequate and misleading” insofar as it falsely represented that the
project would not change the boundaries of the Alhambra SPD. Yet Citizens ignores
that, at the time the draft EIR was prepared, the area between 26th Street to 29th Street
was not part of the Alhambra SPD, having been removed by the 2016 Ordinances. Thus,
the draft EIR’s representation was not misleading or false.
When the City subsequently rescinded the 2016 Ordinances, the draft EIR’s
representation that the project would not change the boundaries of the Alhambra SPD
became false. But we are not persuaded this means the draft EIR was so “inadequate and
conclusory in nature” that meaningful public review and comment were precluded.
(CEQA Guidelines, § 15088.5, subd. (a)(4).)
8 One notable exception is the EIR’s analysis of the “no project” alternative, which
takes into account future changes in the environment reasonably expected to occur if the
project were not approved. (CEQA Guidelines, § 15126.6, subd. (e)(3)(A).) The final
EIR revised the “no project” alternative to explain that, if the proposed project is not
approved, the western boundary of the Alhambra SPD would remain at 26th Street and
certain parcels would remain subject to the Alhambra SPD’s existing zoning
requirements, including a maximum allowable height of 35 feet within 300 feet of
residential zones. But Citizens does not argue, and has not shown, that the EIR’s analysis
of the “no project” alternative was inadequate or that the new information rendered it a
feasible alternative.
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DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)
KRAUSE , J.
We concur:
ROBIE , Acting P. J.
HOCH , J.
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