Item 02 - 19 Highland Ave - Staff Report & Exhibits 40-42Planning Commission Staff Report -Page 2
19 Highland A venue/S-15-077
September 28, 2016
16. Public comment received through 11:00 a.m., Thursday,
June 2, 2016
17. Additional letters from applicant (11 pages), received June
2,2016
18. Development plans (16 pages), received March 22 ,2016
Previously received with June 8, 2016 Addendum Report:
19. Letter from appellant (58 pages), received on June 2, 2016
Previously received with June 8, 2016 Desk Item Report:
20. Re vised neighborhood outreach statement (one page),
received June 6, 2016
21. Applicant 's response to Appellant's Jette r (five pages),
received June 8, 2016
Previously received at June 8, 2016 Planning Commiss ion
Meeting:
22. Communication from appellants (11 pages), received June
8,2016
23. Presentation by appellants (15 pages), prese nted June 8,
2016
24. Communication from applicant (5 pa ges), received June 8,
2016
Previously received with August 24, 2016 Staff Re port :
25. Presentation by applicant (37 pages), pre sen ted June 8,
2016
26. Revi sed Recommended Conditions (10 pages)
27. Revised Development plans (15 pages), received July 11 ,
2016
28. Revi sed Project Data Sheet
29. Consultant Reports ( 1 0 pages)
30. Addendum to 2010 adopted Mitigated Negative
Declaration ( 101 pages), dated August 2016
31. Communication from appellants (23 pages)
32. Communication from applicant (11 0 pages)
33. Revi sed F indings
Previously received with August 24, 2016 Addendum Report:
34. Revi se d version of Exhibit 31 , Communication from
Appellants (53 pages)
Planning Commission Staff Report -Page 4
19 Highland A venue/S-15-077
September 28, 2016
Theresa Spalding, 15 Highland A venue , Los Gatos, CA 95030
Dede Smullen, 25 Highland A venue, Los Gatos, CA 95030
Anthony Badame, 73 Mariposa A venue, Los Gatos, CA 95030
N :\DEV \PC REPORTS\20 16\Highland-1 9-appeal-20 16-09-28.doc
7008 Bristol Drive, Berkeley, CA 94705 (510) 849-2354
Marni F. Moseley, AICP, Associate Planner
Town of Los Gatos Planning Division
110 East Main Street
Los Gatos, CA 95030
August 24, 2016
SUBJECT: REVISED LETTER - 19 HIGHLAND AVENUE CREEK AND CEQA ISSUES –
COMMENTS ON APPLICANT LETTERS AND ADDENDUM
Dear Ms. Moseley,
Grassetti Environmental Consulting (GECo) has been retained by a group of concerned
citizens to review California Environmental Quality Act (CEQA) compliance and creek
setback issues associated with the 19 Highland Avenue project. We submitted comments
on the project as previously designed on June 2, and on the current design on August 15.
This letter presents an update to those comments, based on a review of letters prepared by
the applicant and his attorneys, the Town’s Staff Report and on the Addendum to the 2010
IS prepared for the Town.
Based on staff report and Addendum, we understand that the Town now considers the
applicable setback of the proposed house from the creek as 20 feet (increased from the
previous 15 feet). This letter addresses the appropriateness of that determinations, as well
as overall adequacy of the CEQA approach. In summary, I have concluded that, based on a
review of available information, there is no evidence supporting the use of the 20-foot
setback (the appropriate creek setback on the project site is 25 feet), the Initial Study
Addendum is deficient in addressing the setback issue, and the Town’s impermissible CEQA
process has resulted in a denial of resource agency and public review of the proposed
project.
Creek Setback Issues
Our June 2 and August 15 letters detail why the required creek setback is 25 feet. A more
detailed analysis of the currently proposed project plans indicates that the project as
proposed fails to meet even the 20-foot standard arbitrarily applied by the applicant and
Town staff. Specifically:
19 Highland Avenue Page 2
Creek and CEQA Comments August 24, 2016
2
Decks and overhangs encroaching into the 20-ft. setback. The applicant seems to find this
permissible based on a different section of the Guidelines and Standards document that
prohibits overhang of the creek itself. That section (III.A) does not refer to single-family
residential development. Single-family residences are specifically governed by the 25-ft
setback cited in our previous letters.
Additionally, the proposed driveway also extends well into even the 20-foot the setback
area – there is nothing magical about a house vs. a driveway; both have similar impacts to
the environment and both would be subject to similar hazards associated with creeks and
slopes, therefore the required setbacks apply to the driveway as well as the house. The
slope protection guidelines apply to “all improvements”, except some very minor work (see
below).
(http://www.losgatosca.gov/DocumentCenter/View/14607):
The following structures/uses are not allowed within the slope stability protection
area:
(i) Any structure larger than 120 square feet in area (including accessory and
other structures)
(ii) Decks over 30-inches in height
(iii) Swimming pools
(iv) Parking lots
(v) Other structures subject to the Uniform
Building Code
Please note the inclusion of decks and parking lots as “structures” in the requirements.
Their inclusion in this list means that they cannot encroach into the 25-foot setback zone.
Further, based on the inclusion of parking lots as “structures”, it is reasonable to assume
that driveways also are considered “structures” and therefore subject to the setback
requirements.
Response to Applicant Attorney’s CEQA Process Comments
The applicant’s attorney (Bart Hechtman, July 11, 2016) letter goes on at length regarding
applicable CEQA Guidelines, and concludes that because the project is a minor modification
of a previously approved project, the 2010 IS can be used, along with an updating
Addendum. Setting aside for the moment the technical problems with the Addendum, the
main area of disagreement on CEQA implementation between my previous letter and the
Hechtman letter is that Hechtman assumes that the currently proposed project constitutes
a modification of a previously approved project, while I contend that it is a new project,
requiring de novo review under CEQA. It is interesting to note that nowhere in the 6-page
long letter does Hechtman state the reasoning behind his contention that the current
project is just a modification to the 2010 project.
My reasons for considering the current project de novo are:
19 Highland Avenue Page 3
Creek and CEQA Comments August 24, 2016
3
¥ The current project cannot be a modification of a previously approved project
because there is no previously approved project- the approval for the previous
project has lapsed, meaning that there is, in fact, no approved project to modify.
¥ The current application is not for an amendment or modification of a previously
approved project; it’s a new application for a new project, submitted by a new
applicant.
¥ This is not the same house as 2010 with just minor modifications; in fact, there are
no “modifications” shown on any of the plans. It’s a new design on a new footprint.
In addition to changes to the house and driveway, changes from the 2010 design
also involve a substantial reduction in stormwater treatment facilities.
¥ In addition to the above, there have been changes to on-site vegetation, new
information on biological resources (specifically special-status bats) presented in
the Pacific Biology report, and changes to the creek itself (which are not assessed in
the IS or the Addendum).
The Hechtman letter relies on the Gentry decision to support the Addendum approach vs.
preparing a new Initial Study. In Gentry, the project did not change at all, but the lead
agency changed. That has no bearing on this case. A more applicable case is Friends of the
College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061),
in which the appeals court found a low threshold for considering a project ‘new’ rather
than ‘modified’, and ruled the use of an addendum to be impermissible. That case is
currently before the State Supreme Court.
Finally, there is a substantive difference between the Addendum approach and doing a new
IS. As detailed in our previous letters, failure to do a new IS has effectively cut out the state
resource agencies from review of the currently proposed project.
Technical Issues with the 2010 IS and Addendum
The Addendum and 2010 IS continue to fail to correctly identify the potential for special-
status bats to roost in trees on the site, per the Pacific Biology report submitted along with
our June letter. Pacific Biology has reviewed that memo and their findings are include din
this letter. The July 21, 2016, Live Oak memo dismisses the potential for pallid bats to
occur on the site because “the pallid bat typically uses buildings, caves, and rock crevices,
so removal of the tree is not expected to affect [the species]”.
The Roosting Ecology discussion in the Yolo County Conservation Plan1 strongly refutes
Live Oak's assertion that Pallid bat does not roost in oak trees:
1 http://www.yoloconservationplan.org/yolo_pdfs/speciesaccounts/mammals/pallid-bat.pdf
19 Highland Avenue Page 4
Creek and CEQA Comments August 24, 2016
4
During the day this species shelters inside crevices or cavities found in natural
features such as trees, cliffs, caves and rocky outcrops, and in man-made features
such as barns, bridges, mines and attics (Barbour and Davis 1969, Hermanson and
O’Shea 1983, Pierson and Rainey 1998). Recent radio-tracking efforts in the west,
including California, suggest that the pallid bat is far more dependent on tree roosts
than was previously realized. This species has been located in tree cavities in oak,
ponderosa pine, coast redwood, and giant Sequoia (Rainey et al. 1992, Cross and
Clayton 1995, Pierson and Heady 1996 in Pierson and Rainey 1998).
Based on this discussion and conversations with a bat biologist, it is the professional
opinion of the Pacific Biology biologists that special status bats may roost in the large on-
site tree. The key issue is the depth of the cavities- it is unclear how the Live Oak biologist
accurately determined the depth of cavities in a visual survey of this large tree (see photo
below):
The Live Oak memo identifies a mitigation measure for common bat species that could also
apply to pallid bats. However, the potential impact to a listed species and an associated
mitigation measure is substantial new information that triggers a new or revised Initial
Study, and cannot be addressed in an Addendum.
19 Highland Avenue Page 5
Creek and CEQA Comments August 24, 2016
5
Under the current plans, the bioswales essential to assuring that project runoff is
adequately filtered before entering the creek have been substantially reduced compared to
the previous design. The previous design included two 40’- long swales, and one each of
30’, 25’, and 10’ lengths (total of 145 linear feet). This has been reduced to one 35’ swale,
one 25’ swale, and a 20’ swale (total of 80 linear feet). Absent a hydrologic analysis, it is
impossible to determine whether the reduced bioswale capacity is adequate to treat
anticipated runoff. This issue should be addressed in the IS.
Conclusions
As summarized above, the project continues to fail to comply with required stream
setbacks. In addition, based on information provided in the Wood and Pacific Biology
reports, the Addendum continues to incorrectly characterize the stream, failing to address
the issue in a meaningful way. Further, pallid bats may potentially roost or nest on the site.
A simple determination of the stream class would be possible by just asking CDFW and the
RWQCB to review the various biological resources report or visit the site. Similarly, CDFW
review of the bat issue could address the potential for special-status bats to use on-site
trees. The Town staff’s approach eliminated that possibility. The reduced bioswale
capacity also should be evaluated in the IS. Per CEQA Guidelines, as cited in the
Hechtman letter, the potential impact to a listed species and an associated mitigation
measure is substantial new information that triggers a new or revised Initial Study.
It is my professional opinion that the project should be re-designed to comply with the
Town’s creek setback standards and a new or revised IS should be prepared and circulated
for public and agency review according to CEQA requirements. Please feel free to contact
me at 510 849-2354 if you have any questions regarding this letter.
Sincerely,
Richard Grassetti
Principal
Grassetti Environmental Consulting
September 20, 2016
Ms Sally Samowitz
R. Henry Richards, M.D.
Jean R. Richards
118 Alpine Avenue
Los Gatos, CA 95030
Town of Los Gatos Planning Department
110 East Main Street
Los Gatos, CA 95030
RE: Architecture and Site Applications, 15 ,077, 19 Highland Avenue
Dear Ms. Samowitz,
I live at 118 Alpine Avenue and I have been a resident of Los Gatos for over 16 years. One of the
principal reasons we ch ose to purchase this prop erty is because it is s ituated on a slope
overlooking a meadow above a "Winter stream". My property actually crosses the creek and
nearly reaches Highland A venue on the opposite side.
We have obviously been aware of the development of the property at 19 Highland Avenue which
is immediately adjacent to my property line. I have observed the erection of the "story poles" on
the property with keen interest and have considered the impact a new house in that area might
have on the natural beauty and privacy that I currently enjoy.
I have been able to meet with the owner of the property who was mos t forthcoming in helping
me review the currently approved plan s for development including site location, building
footprint, and building materials.
In my opinion, Mr. Ed Pearson has made a special effort to build a horne w h ich blends and
compliments the natural environment in w hich it will b e s ituated. I do not believe that
co n struction of this horne as currently approved will have any negative impact whatsoever on
my horne or property. Therefore I h ave no objection and woul d support the Application to
develop the property at 19 Highland A venue as proposed.
Sincerely,
R.H. Richards, M.D. (signed electronically)
R. Henry Richards , M.D.
~ 4 1J
Sally Zarnowitz
From:
Sent:
To:
Cc:
Subject:
Ms Zamowitz,
Paul Pickering <paul.pickeringlgcal@gmail.com>
Sunday, September 18, 2016 8:49 PM
Sally Zarnowitz
epearsonz@outlook.com; Sonnie Pickering
Site application S-15-077
I would like prov ide a letter of support for the referenced site application made by Ed Pearson . We live at 76 Alpine Ave and our property
connects to the southern end of 19 Hi II side Ave.
We have had a chance to review the new plans and support the proposal to build designed house b ased on the materials, architecture and
proposed setbacks.
Respectfully,
Paul and Alli son Pickering
76 Alpine Ave,
Los Gatos
1
September 10, 2016
Ms . Sally Zarnowitz, Planning Planner
Planning Department, Town of Los Gatos
110 East Main Street
Los Gatos, CA 95030
Re: Letter of Support, 19 Highland Avenue ; Architecture and Site Application S-15-077
Ms Samowitz:
We write this letter as long time residents of Los Gatos and more specifically as res idents of
Alpine Ave for several years. In addition , we now own 140 Foster Road and are in the process
of building a home on this site. We are one parcel away from 19 Highland .
Having worked with the town of Los Gatos over the last year to design a home in keeping with
the goals and values of the General Plan , we feel we are now well versed in the issues involved
with building a home that falls within the hillside zoning .
We have reviewed the in itial submission to the Planning Department for 19 Highland Avenue as
well as the substantially revised resubmission of this package. We feel the applicant has
worked diligently to meet the requirements set forth by the Planning Commission at the June 8,
2016 meeting. Given the sign ificant constraints of the site , the owner and architect have done a
wonderful job designing a home that fits and blends into the surround ings. It is now a very
modest and site sensitive structure with colors , materials and plantings in keeping with the
neighborhood .
It is our firm belief that once an owner has complied with the guidelines set forth in the General
Plan of the Town , Planning approval should not be unreasonably withheld. The cost to redesign
an already approved plan can become exorbitant. If the views of the Town's residents have
changed in respect to color, style , si ze , height, materials , setbacks or any one of the myriad of
conditions required to build in Los Gatos, then the Town should move forward to modify the
Planning Department guidelines accordingly .
The particular parcel at 19 Highland has a long history and it was well known that it would
eventually be a home site . Neighbors who wish to retain a "park like" setting in their backyard
had ample opportunity to buy this or any parcel on which they do not wish a home to be built.
No one stepped up to this opportunity over a four year period. The current owner envisioned a
home , complied with the Planning Department Guidelines, asked for a reasonable exemption ,
endured spurious neighborhood commentary and now it is time for the Plann ing Commission to
approve this project.
Respectfully,
Ronald Weiner and Debo rah Stanley
This Page
Intentionally
Left Blank
From: Teresa Spalding [mailto:teresaspalding @hotmail.com]
Sent: Thursday, September 22, 2016 3:22AM
To: Sally Zarnowitz
Subject: 19 highland ave.-S-15-077
Hi Sally,
I'm writing you regarding 19 Highland Ave.
Architecture and site application S-15-077
Please remove me from the appellant case.
I have reviewed the changes noted at the last meeting and
I am removing myself from the appellant case.
Thanks so much Sally,
~IBlT 42
September 22, 2016
Planning Commission
Town of Los Gatos
11 0 East Main Street
Los Gatos, CA 95030
Lisa C . Roberts
78 Alpine Avenue
Los Gatos, CA 95030
lroberts@rehonro berts . com
408-859-7585
REC\ElVED
SEP 2 2 Z016
TOWN OF LOS GATOS
PLANNING DIVISION
Re: Appeal of Architecture and Site Application S-15-077
19 Highland Avenue, Los Gatos, CA 95030
Continued Hearing Set for September 28, 2016
California Supreme Court CEQA Case: Friends of the College
of San Mateo Gardens v. San Mateo Community College District
Dear Commissioners :
I am one of the Appellants in the appeal (the "Appeal") of the approval by the Design
Review Committee ("DRC") of the above-referenced Application (the "Application") of
the Applicant Ed Pearson ("Applicant") for the above-referenced project (the "Pearson
Project").
The DRC approved the Pearson Project based on a mitigated negative declaration
prepared in 2010 (the "20 10 MND") for a prior project (the "Orphan Project") submitted
by the prior property owner, Dr. Angelo Orphan ("Dr. Orphan). Throughout the DRC
process and the frrst stages of this Appeal including the June 8 , 2016 hearing, Town Staff
and Applicant insisted that no additional environmental analysis was required. Now,
however, Town Staff has submitted, as Attachment 30 to the August 24, 2016 Planning
Commission StaffReport, an August 2016 Addendum to the Previously Adopted
Mitigated Negative Declaration prepared by Kimley-Hom and Associates (the
"Addendum"). Purportedly based on a full evaluation of all relevant evidence, the
Addendum asserts that no new negative declaration (''ND") or environmental impact
report ("EIR") is required for the Pearson Project. (Addendum, pp. 2 and 13-14.)
This letter is submitted to address the conclusions in the Addendum. Most significantly,
1
Planning Commission
Town of Los Gatos
September 22 , 2016
Page2
this letter is submitted to advise the Commissi on of a California Supreme Court opinion
that, applied to the facts in this matter, requires rejection of the Addendum, denial of the
Application, and upholding of the Appeal. A true and correct copy of the opinion in this
case, Friends of the College of San Mateo Garde ns v. San Mateo Community Colleg e
District, Case no. 8214061 ("Friends") is attached hereto as Exhibit A.
I. I ntroduction.
The Addendum 's conclusion that no new ND or EIR is required for the Pearson Project is
based on two legal conclusions: (1) that the Pearson Project is not new but modified from
the Orphan Project; and (2) that the Pearson Project will not result in any new or more
severe environmental effects than the Orphan Project.
The Friends case upends the Addendum's legal approach and thereby its entire analysis .
On the first point, as held by Friends , the pertinent inquiry is not whether a project is new
in the abstract, but , whether, due to the changed project and/or environment, the prior ND
or EIR does or does not continue to have relevance. If it does not, a new initial study is
required. The Addendum does not even address this issue and is therefore legally
unsound . Moreover, when the issue is addressed, the evidence is overwhelming that, due
to changes in the project and the environment, the 2010 MND is no longer relevant and
that a new initial study is therefore required.
On the second point as well, the Addendum has applied the wrong test. As held in
.Friends , the test applied by the Addendum-whether there will be environmental
effects-is proper only where the prior CEQA document was an EIR. That is not the test
where, as here, the prior document was an ND (mitigated or not). Where the prior
document was an ND, the pertinent question is whether there is substantial evidence
(contradicted or not) that there may be environmental effects . The Addendum also failed
to address this issue, and , having again applied the wrong test, is further legally unsound .
Additionally, addressing the proper issue, there is substantial evidence that the Pearson
Project may (and indeed would) have significant environmental impacts. Thus, not only
is a new initial study required, an EIR is required.
2
Planning Commission
Town of Los Gatos
September 22, 2016
Page 3
II. The 2010 MND is No Longer Relevant, and a New Initial Study is
Required.
The Supreme Court granted review in Friends case to decide the following issue :
When a lead agency performs a subsequent environmental review and prepares a
subsequent environmental impact report, a subsequent negative declaration, or an
addendum , is the agency's decision reviewed under a substantial evidence standard
of review (Mani Brothers Real Estate Group v. City ofLos Angeles (2007) 153
Cal.App.4th 1385) ["Mani"], or is the agency's decision subject to a threshold
determination whether the modification of the project constitutes a "new project
altogether," as a matter oflaw (Save our Neighborhood v. Lishman (2006) 140
Cal.App.4th 1288) ["Save Our Neighborhood'']?
(http :I I appellatecases .courtinfo. ca. gov I search/ caselmainCaseScreen.cfm? dist=O&doc id=
2059337&doc_no=S214061 ["Docket"].)
By way of background, in the Save Our Neighborhood case addressed in Friends , the
proponent of a project claimed that he could rely on an ND from a prior project unless
there were intervening changes that would create new or more severe environmental
impacts under CEQA Section 21166 and CE QA Guidelines Section 15162 (hereinafter
referred to as the "Subsequent Review Provisions"). The Third District Court of Appeal
held that, even before consideration of the Subsequent Review Provisions, a threshold
issue had to be decided, whether the project was merely a modification of the prior
project or a new project. If the latter, it required a new initial study without regard to the
existence or effect of intervening changes under the Subsequent Review Provisions .
Additionally, the court held that, on appeal from an agency 's decision, this threshold
issue was to be decided by the court as a matter of law, in other words, by the court anew
on a de novo basis and without deference to the agency 's findings.
In the Mani case, the Second District Court of Appeal disagreed with the Third District
Court of Appeal. It rejected the existence of a new project test and held that the need for
a subsequent EIR or ND is governed solely by the Subsequent Review Provisions. It also
rejected the matter of law standard of review applied by the Third District. It held that,
on appeal from an agency 's decision under the Subsequent Review Provisions, the
substantial evidence standard of review applies; in other words, on appeal, the reviewing
3
Planning Commission
Town of Los Gatos
September 22 , 2016
Page 4
court does notre-decide the issue anew ; rather, it is bound to uphold the decision of the
agency as long as it ,was supported by substantial evidence. (As explained in Sierra Club
v. California Dept. of Forestry & Fire Protection (2007) 150 Cal.App.4th 370,381
("Sierra"), "substantial evidence" means "enough relevant information and reasonable
inferences from this information that a fair argument can be made to support a
conclusion").)
In Friends, the Supreme Court also rejected Save Our Neighborhood's new project test.
(See Friends p. 2 [concluding that the Court of Appeal erred in its application of "this
new project test"].) It did not, however, reject the need for a threshold determination
prior to an agency's consideration of a prior EIR or ND under the Subsequent Review
Provisions. Specifically, it held that, before applying those provisions, the agency must
first determine whether the prior EIR or ND "retains any relevance" to the current
project. (Id. p. 3.) Only if it retains relevance does the agency go on to consider the
Subsequent Review Provisions and whether the changes do or do not warrant further
environmental review. (!d. p . 3 .) If the prior EIR or ND is wholly irrelevant, a new
initial study is required regardless of the Subsequent Review Provisions. As stated by the
Court:
If the proposed changes render the previous environmental document wholly
irrelevant to the decisionmaking process, then it is only logical that the agency
start from the beginning under section 21151 by conducting an initial study to
determine whether the project may have substantial effects on the environment.
(!d. p. 13; see also id. [noting that a decision to proceed under the subsequent review
provisions assumes that at least some environmental impacts of the modified project were
considered in the original CEQA document such that the document retains some
informational value].)
The Court in Friends also rejected the matter of law standard of review articulated in
Save Our Neighborhood, holding that the substantial evidence standard applies to review
of an agency 's determination whether a prior CEQA document is relevant to the current
project. (See ld. p . 3; see also id. p . 15 [noting that whether an initial environmental
document remains relevant is "predominantly a factual question" for the agency to
answer in the "first instance" with the only question before a court on review of the
agency's determination in that regard was supported by substantial evidence].)
4
Planning Commission
Town of Los Gatos
September 22, 2016
Page 5
In this matter, there has been no showing that the 2010 MND retains any relevance to the
Pearson Project. The Addendum provides no such showing. It does not examine whether
the 2010 MND is relevant at all; rather, apparently following the Save Our Neighborhood
approach, it merely asserts that the Pearson Project is modified from the Orphan Project.
It has therefore provided no justification for its consideration of this matter under the
Subsequent Review Provisions.
Moreover, as discussed in Section IV, in fact, the 2010 MND prepared for the Orphan
Project is irrelevant to the Pearson Project, and the Pearson Project requires , at a
minimum, a new initial study.
Ill An EIR is Required Because There is Substantial Evidence That the
Pearson Project May Have Significant Environmental Impacts .
While the Supreme Court granted review in Friends only to address the disagreements
between Save Our Neighborhood and Mani , after oral argument, it exercised its
discretion to consider additional issues and requested additional briefing on the following
questions :
(1) Under California Environmental Quality Act (CEQA) Guidelines section
15162, what standard of judicial review applies to an agency's determination that
no environmental impact report (EIR) is required as a result of proposed
modifications to a project that was initially approved by negative declaration or
mitigated negative declaration? (See generally Benton v. Board of Supervisors
( 1991) 226 Cal.App.3d 1467 , 14 79-1482 ["Benton"].) (2) Does CEQA Guidelines
section 15162, as app li ed to projects initially approved by negative declaration or
mitigated negative declaration rather than EIR, constitute a valid interpretation of
the governing statute? (CompareBowman v. City of Petaluma (1986) 185
Cal.App.3d 1065 , 1073-1074 with Benton at pp. 1479-1480.)
(Docket.) The issue raised by the Court's second question was whether the agency in
charge or promulgating CEQA guidelines exceeded its authority as to CEQA Guideline
Section 15162. Whereas the underlying CEQA statute, Section 21166 applied only to
EIRs, the guideline also included NDs. The Court ultimately held that the guideline was
proper, and that both prior NDs and prior EIRs are governed by the Subsequent Review
Provisions. (See Friends p. 18.)
5
Planning Commission
Town of Los Gatos
September 22, 2016
Page 6
More important to this matter is the Court's resolution of the first question, specifically,
once the determination has been made that the prior EIR or ND is still relevant and that
the Subsequent Review Provisions apply, what standard of review applies to an agency's
determination under such provisions? In response to that question , the Court made a
critical distinction between prior EIRs and prior NDs. It held that, where the prior
document is an EIR, the proper inquiry is whether the modified project will have adverse
environmental effects under Subsequent Review Provisions. However, where the prior
document is an ND, the proper inquiry is not whether the project will have adverse
effects, but-like at the very beginning of a CEQA process when the "fair evidence" test
applies-whether there is substantial evidence that the modified project may have an
adverse environmental effect. (!d. p. 23.) If the answer to that que stion is yes, an EIR is
required . (!d .)
As explained in Friends, the central purpose of CEQA is to ensure long-term protection
of the environment by providing the public with information about the potential effects of
a project on the environment before the project is approved and built:
"In CEQA, the Legislature ~o ught 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."' [Citation.] At
the "heart of CEQA" (Citation) is the requirement that public agencies prepare an
EIR for any "project" that "may have a significant effect on the environment.
(Citation.) The purpose of the EIR is "to provide public agencies and the public in
general with detailed information about the effect which a proposed project is
likely to have on the environment; to list ways in which the significant effects of
such a project might be minimized; and to indicate alternatives to such a project."
(Citation.) The EI R thus works to "inform the public and its respons ible officials
of the environmental consequences of their decisions before they are made,"
thereby protecting "'not only the environment but also informed self-
government."' (Citations.)
(Friends at p. 3.) In furtherance of this policy is the "fair argument" test requiring an EIR
where, based on substantial evidence, the proposed project may have a significant
environmental impact. As explained in Friends:
[W]hen an agency initially proposes a project, an EIR is require d "whenever it can
6
Planning Commission
Town of Los Gatos
September 22 , 2016
Page 7
be fairly argued on the basis of substantial evidence that [a] project may have
significant environmental impact." (No Oil, supra, 13 Cal.3d at p. 75; see Pub.
Resources Code, § 21082.2 , subd. (a) [requiring an EIR when a project "may"
have a significant effect on the environment]; accord,§ 21151, subd. (a).)
(!d. at p . 21 .) As held in Sierra Club v. California Dept. of Forestry & Fire Protection
(2007) 150 Cal.App.4th 3 70 ("Sierra"), the fair argument test sets a "low threshold" of
proof:
"The decision to adopt a negative declaration and dispense with ·an EIR is
essentially a determination that a project will have no meaningful environmental
effect" and terminates the environmental review process. (Citation.) Thus, CEQA
imposes "a low threshold requirement for preparation of an EIR." (Citation.)
Generally, "a public agency must prepare an EIR whenever substantial evidence
supports a fair argument that a proposed project 'may have a significant effect on
the environment.'" (Citations.)
(!d. at 380-81.) As. stated in Sierra: ,
Thus, the fair argument standard of review is not the typical substantial evidence
standard, i.e., whether there is substantial evidence to support the decision not to
prepare an EIR. Rather, the fair argument standard of review is whether, after
examining the entire record , there is substantial evidence to support a fair
argument that a project may have a significant effect on the environment. This is a
low threshold for the preparation of an EIR, reflecting a preference to resolve
doubts in favor of full-blown environmental review. (Citation.)
"A logical deduction from the formulation of the fair argument test is that, if
substantial evidence establishes a reasonable possibility of a significant
environmental impact, then the existence of contrary evidence in the
administrative record is not adequate to support a decision to dispense with an
EIR. [Citations.]" (Citation.)
(Jd. at 381.)
While the central goal ofCEQA is to ensure the long-term protection of the environment,
another goal is to give some level of finality to already adopted CEQA documents.
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Town of Los Gatos
September 22 , 2016
Page 8
(Friends. pp. 10-11.) Thus, CEQA includes the Subsequent Review Provisions to limit
the circumstances under which a new EIR or ND is required. As paraphrased in Friends ,
in the context of projects with still-relevant prior CEQA documents, those provisions
preclude an agency from requiring a new EIR or ND unless, "on the basis of substantial
evidence in the light of the whole record," ... [s]ubstantial changes ... will require major
revisions ofthe previous EIR or negative declaration due to the involvement of new
significant environmental effects or a substantial increase in the severity of previously
identified environmental effects." (I d. at p. 22, quoting CEQA Guidelines Section
15162(a).)
In Friends , the plaintiff expressed concern that, as applied to NDs, Section 15162
improperly creates a "loophole" allowing agencies to avoid their obligation to apply the
fair argument standard:
Plaintiff argues that application of this substantial evidence standard to projects
initially approved via negative declaration creates a loophole in the statutory
scheme, allowing agencies to 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 had been approved.
(ld.) The Court fully appreciated the plaintiffs concern about such a loophole, but,
determined that, when properly read and applied, the Guidelines do not create such a
loophole; in other words, properly read and applied, they do not allow the agency to
evade the obligations noted by the plaintiff:
Plaintiffs argument would have force if the Guidelines did, in fact, create such a
loophole . But the substantial evidence test referred to in the Guidelines does not,
as plaintiff supposes, refer to substantial evidence that the project, as modified,
will necessarily have significant environmental effects. It instead refers to
substantial evidence that the proposed modifications will involve "[s]ubstantial
changes" that "require major revisions of the prev ious EIR or negative declaration
due to the involvement" of new or significantly more severe environmental
effects . (CEQA Guidelines,§ 15162, subd. (a); see id., § 15384 [defining
"substantial evidence"].) The distinction is important here, because whether
"major revisions" will be required as a result of project changes necessarily
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Planning Commission
Town of Los Gatos
September 22, 2016
Page 9
depends on the nature of the original environmental document. 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" (CEQA
Guidelines, § 15063, subd. (b )(2), italics added; see also Pub. Resources Code,
§§ 21151 , 21064.5), whereas an EIR is required when a project and project
alternatives may have significant effects (id., § 21002.1 , subd. (a)). When there is
a proposal to modify a project originally approved through 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. (CEQA Guidelines,
§ 15162.) Indeed, if the project modification introduces prev iously 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.
In short, the substantial evidence standard prescribed by CEQA Guidelines section
15162 requires an agency to 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 prev iously considered
in connection with the project as originally approved, and courts must enforce that
standard. (See Friends of "B" Street v. City of Hayward, supra, 106 Cal.App.3d
at p . 1 002 .) It therefore does not permit agencies to avoid their obligation to
prepare subsequent or supplemental EIRs to address new, and previously
unstudied, potentially significant environmental effects. So understood, CEQA
Guidelines section 15162 constitutes a valid gap-filling measure as applied to
projects initially approved via negative declaration, including the project at issue
in this case.
(!d. at 22-24.)
As discussed below, in this matter, there is substantial evidence that the Pearson Project
may have one or more significant environmental impacts. Therefore, an EIR must be
prepared and adopted before approval of the project.
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Page 10
IV. The Application Must Be Denied Fo r Two Sepa rate and Independent
Reasons: (A) There is Substantial Evidence That the 2010 MND
Prepared for the Orphan Project is Not Relevant to the Pearson
Project; and (B) There is Substantial Evidence-a Fair Argument-
That the Pearson Project May Have Adverse Environmental Impacts.
As noted above, as shown by the Addendum, Town Staff and Applicant have employed
the wrong tests for determining the continued relevance and validity of the 2010 MND to
the Pearson Project. Indeed, regardless of the applicable tests , the Addendum is
incomplete, misleading, and biased , including by consciously omitting at least 12
different reports and communications contradicting its conclusions regarding the nature
of the project and its effect on the current environment.
Based on all the facts, including the omitted reports and communications, the Application
must be denied for two separate and independent reasons. First, the strong weight of the
evidence is that the 2010 MND prepared for the Orphan Project is not relevant to the
Pearson Project. Even considering any alleged counter evidence, this evidence warrants
denial of the Application based on the sound consideration of this Commission. This
evidence is also sufficient to withstand appeal, easily meeting the threshold of "enough
relevant information and reasonable inferences from this information that a fair argument
can be made to support a conclusion." (See Sierra at 3 81.)
Second, there is substantial evidence that the Pearson Project may have potential adverse
environmental impacts . Under Friends , the existence of this evidence, regardless of any
alleged contrary evidence, stops the inquiry. An EIR is required.
A. The Addendum is Incomplete, Misleading, Biased, a·nd
Otherwise Insufficient and Improper.
The Addendum expressly states its alleged purpose:
The purpose of this Addendum is to evaluate whether the proposed project as
currently proposed would result in any new or substantially greater significant
effects or require any new mitigation measures not identified in the 2010 MND
prepared for the original project. This Addendum, together with the 2010 MND
will be use d by the Town when considering approval of the proposed project.
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Page 11
(See Addendum p. 2.) Based on this alleged evaluation as well as allegedly on the basis
of"substantial evidence in light of the whole record ," the Addendum concludes that there
are no such effects or measures and that a further EIR or ND is not required. (!d. p. 13.)
As noted above and as further indicated by the Addendum , s stated purpose, the
Addendum does not address the continued relevancy of the 20 10 MND and also applies
the wrong standard ("will" or "would" versus "may") for evaluating prior NDs under the
Subsequent Review Provisions.
In addition, the Addendum is utterly misleading, incomplete, biased, and oriented only to.
achieve the goal of approving tpe Project without providing the Commission with
sufficient facts and evidence to make an informed decision as required by CEQA.
First, while it purports to provide, along with the 2010 MND, all the environmental
information that the Commission needs to consider before approving the Pearson Project,
it simply ignores the significant and substantial information and evidence that contradicts
its conclusions. Indeed, it is a result of a pick-and-choose approach to fact-finding and
reporting , relying only on reports that suit its desired end result and ignoring (seemingly as
it they do not even exist) reports that do not support that result. The number and extent of
the reports and letters ignored by the Addendum is extensive, including the following
reports (hereinafter the "Omitted Reports"):
1. That Report regarding "Riparian Habitat Assessment and Biological Peer
Review, 19 Highland Avenue, Los Gatos," prepared by Wood Biological
Consulting dated January 28, 2008;
2 . That email regarding the Appeal from the undersigned to Marni Moseley
dated March 28, 2016 ;
3. That letter from Dorothea Smullen dated March 29, 2016 ;
4. That Report regarding "19 Highland Avenue Creek and CEQA Issues ,"
prepared by Grassetti Environmental Consulting ("GE CO") dated June 1,
2016
5. The Report regarding "19 Highland Avenue-Biological Resources
Review," prepared by Pacific Biology dated June 2, 2016
6. That slide presentation from Appellant Anthony Badame submitting for the
June 8, 2016 hearing before the Planning Commission;
7. That letter regarding the Appeal from the undersigned dated August 10,
20 16 including exhibits including Exhibit D regarding trees;
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September 22 , 2016
Page 12
8 . That Report regarding "19 Highland Avenue Creek and CEQA Issues,"
prepared by GECO dated August 15 , 2016;
9. That slide presentation from Appellant Anthony Badame submitting for the
August 24 , 2016 hearing before the Planning Commission;
10 . That Report regarding ''19 Highland Avenue Creek and CEQA Issues-
Comments on Applicant Letters and Addendum," prepared by GECO dated
August 24, 2016;
11 . That Revised Report regarding "19 Highland Avenue Creek and CEQA
Issues-Comments on Applicant Letters and Addendum," prepared by
GECO dated August 24, 2016 [revised to add comments by biologist
consultant]; and
12. That letter regarding the Appeal from the undersigned and Appellants
Dorothea Smullen and Anthony Badame dated August 24, 2016.
The Addendum's recommendation that the Commission find in Applicant's favor based
on "substantial evidence" while excluding evidence contrary to its position suggests that
the only inquiry for the Commission is whether, if it decides in Applicant's favor, its
decision will be upheld on appeal. Indeed, the approach under the Addendum suggests
that the Commission must find in the Applicant's favor if its position is supported by
substantial evidence. That is not true. The deference to be paid under the substantial
evidence standard of review is the deference that , when that standard applies , a court is
bound to pay to agency 's decisions under CEQA . That standard of review has nothing to
do with the agency 's obligation, in the first instance, to consider and evaluate all the
evidence, provide due process to both sides, and make a fair decision consonant with the
demands of CEQA.
Second, in a further demonstration of bias and a result-oriented approach, the Addendum
champions the Pearson Project on non-CEQA-related grounds . The stated purpose of the
Addendum was to advise on CEQA; it is not the purpose of an addendum to support a
project on non-CEQA grounds. While CEQA itself might have been created to balance
the interests of the environment and development, it is compliance with the provisions of
CEQA, and not the opinion of the lead agency or anyone else on the merits or value of a
project, that achieves that balance. Thus, the Addendum 's diversions into the alleged
merits ofth.e project on non-CEQA grounds (all of which allegedly favor the Applicant)
must be disregarded. (See, e.g., Addendum p. 4 second paragraph [asserting that the
project is in compliance with the Town 's Hillside Development Standards and Guidelines
inclusive of grading and drainage criteria, allowable floor area, height , and architectural
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Planning Commission
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September 22, 2016
Page 13
and landscape design" with the exception of the development on slopes greater than 30
percent and that the area of development on such slopes is "limited" and "consistent with
the approved placement of the residence from 2010"]; id. fifth paragraph [asserting that
the floor area is "consistent with other homes in the vicinity"1
]; and id. p . 6 fifth
paragraph [purporting to minimize the environmental significance of the additional
grading associated with the Pearson Project as opposed to the Orphan Project on the
irrelevant to the environment ground that "the additional grading is proposed to recess the
home into the hillside in compliance with the Hillside Development Standards and
Guidelines"].)
Finally, the Addendum was prepared without consultation with other public agencies as
required by CEQA. Comment from public agencies is a centerpiece of CEQA. (See,
e .g., Public Resources Code §21003.1 [stating the policy of the State that comments from
public agencies to the lead agency be made as soon as possible in the review of
environmental documents in order to allow the lead agency to identify potential
significant effects of a project].) There is no indication that the Town, as lead agency, has
made any attempt to consult with public agencies with jurisdiction over important
environmental aspects of the Property, including for wildlife habitat and water quality
and including either the California Department ofFis h and Wildlife ("CDFW") and the
San Francisco Bay Regional Water Quality Control Board ("RWQCB "). It made no
attempt to do so in connection with the DRC consideration and approval of this project,
and it has still made no attempt to do so in connection with the Addendum.
The Town has failed to do so even though it clearly realized the importance of doing so.
As noted in the June 1, 2016 Report by GE CO (the "6/1116 GECO Report"), Applicant
contacted CDFW and RWQCB by letters dated January 28, 2016 . It is highly unlikely
that he did this on his own accord but was doubtless advised by the Town to do so in
connection with his Application . Those letters stated Applicant's "request" to the
1 Even if whether the floor area is consistent with other homes in the vicinity were the
province of a CEQA-focused addendum, as discussed in Appellants ' letter dated August
24 , 2016, the Town's analysis of neighborhood square footage, likely the only basis for
the Addendum's conclusion, is flawed because, among other things, it includes homes
that are zoned differently from the proposed project, homes that were built years ago
under different rules, and cellar space in the floor area ratio numbers.
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Planning Commission
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Page 14
agencies as follows :
At this time, what I'm requesting, (sic) is correspondence from you (sic) dept.
regarding any requirements, permits/policies etc. that may have changed since the
planning approval for this site in 2010.
(See id.) As pointed out by GECO, these letters were wholly inadequate to constitute
any remotely reasonable attempt by the Town to consult with these agencies. (See id.) It
is the lead agency, not the applicant, that has the obligation to consult. Indeed, in certain
circumstances, it shall be deemed a prejudicial abuse of discretion for the lead agency to
fail to have necessary communications with other agencies. (See Public Resources Code
§21005(a).) Further, as noted by GECO, the letters did not include (or, in their mere
eight sentences each, even discuss) information essential to any response to Applicant's
request. They did not include any plans for the project, any biological reports, or any
other documents relating to the project or the property. They did not identify the setbacks
and riparian zones. These omissions directly belie the statement in the 6/8/16 Staff
Report that "[t]he applicant submitted docum entation to both the California Department
ofFish and Wildlife and the Regional Water Quality Control Board ... "· (See 6/8116 Staff
Report, p. 8, emphasis in original.) Finally, also as noted by GECO, Applicant's letters
nearly guarantied no response from CDFW which typically reviews planning-related
documents only through the CEQA process and then only upon payment of required
CEQA document review fees or through a Streambed Alteration Agreement process, or
from R WQCB which also typically responds via the CEQA or permit process.
B. Based on the Evidence, the Application Must Be Denied on
CEQA Grounds.
Based on the evidence, the Application must be denied on CEQA grounds , including that
the 2010 MND is not relevant to the Pearson Project and that there is substantial evidence
that the Pearson Project may (and indeed would) have adverse environmental impacts .
1. Woodland and Trees.
The nature of the woodland and trees on the site and the intended disposition of trees at
the site are substantially different from 2010. Numerous trees have been removed from
the site. The relocation of the house , not only from the location under the Orphan plans,
but also as between the original location under the original Pearson plans and the plans
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Planning Commission
Town of Los Gatos
September 22 , 2016
Page 15
that Applicant revised after the June 8 , 2016 Planning Commission, has resulted in
different plans for tree removal, with different trees to be removed/maintained compared
to the Orphan Project (and now even compared to the original Pearson Project).
The identification and number of trees that will be removed or lost due to construction
has also changed substantially. The Addendum asserts that only 7 trees are to be
removed under the current plans; this is only the number of trees that Applicant admits
will be lost; numerous others so near to construction that they cannot survive2 have been
"retained" just to give them, allegedly , a "fighting chance" (not to mention to give
Applicant credit for "saving" trees that will not really be saved). The number of trees
supposed to be retained but at likely peril of death from construction (9) is twice the
number of trees that Applicant admits will be removed (7).
Moreover, the tree plan is based on outdated information (from 2010) relating to the size
and diameter of the trees from which proper tree mitigation measures are measured. It is
also based on a violation of Town ordinance requiring protective fencing around trees . It
also sets forth a s tandard for proper tree protection not only also at odds with Town
ordinance but also that Applicant is not going to follow (therefore a new mitigation
measure that the applicant has declined to follow under CEQA Guidelines Section
15162(a)(3)(D))._ The trees that will be lost, including near the road and between the
property and adjacent sites (including 78 Alpine Avenue), will destroy important
aesthetic trees and shielding, affecting the aesthetic of the site in general.
Moreover, as noted in the Live Oak report on which the Addendum relies, it appears that
there will not even be room on the site to do the necessary tree replacement as required
by Town ordinance and it is expected that, instead of planting replacement trees in a
sufficient number even under Town standards , the Applicant may be asked to pay the
Town for tree placement on other sites. (See Live Oak Report dated May 5, 2016
("5/5/16 Live Oak Report"].) The destruction of these trees will have a substantial effect
on the site and the surroundings.
2 Indeed, Applicant's arborist has explained that the only trees Applicant is now
proposing for (outright) removal are the trees right inside the footprint of the proposed
house-he is proposing to "retain" all other trees even right next to the footprint and
destined to die from compression and root disruption of the construction work.
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Town of Los Gatos
September 22,2016
Page 16
Further, as discussed below, among the tree conditions that have drastically changed
since 2010 is as to Tree 56 , which is now-as opposed to in 201 0-a potential habitat for
the Pallid bat.
Additionally, it does not appear that any investigation has been made into or
consideration given as to whether, in connection with the Orphan Project, trees were
removed that, given the differences in the Pearson Project, including relocation of the
structures, would not have needed removal for the Pearson Project. In other words, this
Property has already suffered extensive tree removal, none of which ultimately
accommodated the Orphan Project, since it was never built, and some portion of which
would not be necessary for the Pearson Project, that, in tum, requires removal (by saw or
construction loss) of yet more trees that were not to be lost under the Orphan Project. 3
2. Habitat and Special Status Species.
It is undisputed that, since 2010, Tree 56 has been attacked by ambrosia beetle; its
condition has gone from Fair to Unstable; and it is filled with crevices. This is obviously
a change worthy of consideration, with the only question being its potential significance
to the habitat and environment. The Addendum chooses to be completely silent on this
issue. Live Oak concluded that the tree is not important because pallid bats do not roost
in oak trees. (See 7/21116 Live Oak Report, p. 1.) This conclusion, unsupported in the
Live Oak by any supporting resource, is directly contradicted not only Appellants' expert
Pacific Biology but also by supporting professional opinion on the roosting habits of
pallid bats strongly refuting Live Oak's conclusion that the Pallid bat does not roost in
oak trees. (See GECO Revised August 24, 2016 Report ["Rev. 8/24 /16 GECO Report"]
pp. 3-4.) The potential existence of pallid bats on the property is ofCEQA significance
because they are a special-status species. Any impact to that species would be considered
significant and therefore would require mitigation. A n ew avoidable significant impact is
3 Yet another comment needs making regarding the Live Oak conclusions on trees. Only
its May 5, 2016 addresses the tree issue, and it admits that "we were not provided with a
copy of the arborist report." (!d. p . 5.) Apparently, then, the drafter of the Addendum
did its own review of the arbor reports (although not Appellants ' comments to them).
(See Addendum p. 8 [relying on a 2010 Town Arborist report and two 2016 Arborist
reports by Applicant 's arborist].)
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Page 17
considered to be a substantial revision of an initial study, as defined in CEQA Guidelines
section 15373.5 (a)(l). As detailed in Section 15373.5, such a substantial revision
requires recirculation of the Initial Study.
On yet another habitat issue Live Oak makes assertions that have no support, including
that the loss of "woodland habitats on the site would be a les s-than-significant impact of
the project given the amount of similar habitat that occurs in the region." (Live Oak May
5, 2016 Report, p. 4.) Live Oak provides no basis for its statement, whether its statement
is based on other regions allegedly in existence in 2010 or 2016, or where those regions
4 are.
3. Creek.
One remarkable example of the Addendum failing to provide all information required by
the Commission is its discussion of the creek setback. It mentions the conflict over
whether the creek is ephemeral or intermittent and admits that the classification drives the
determination of what creek _set back is necessary . (See Addendum p. 9, first paragraph
["There are conflicting conclusions regarding the classification of the un-named tributary
as either ephemeral or intermittent. This classification has been u se d as a benchmark for
determining what the appropriate setback to the top of bank should be"].) Expressly
noting the conflict and the significance, would it not be reasonable to assume that the
Addendum would then discuss the two sides or at least state why, in the opinion of its
author, one side is more credible than the other? Would it not be reasonable for the
Addendum to include the difference in setbacks that would be dictated based on whether
the stream is ephemeral or intermittent? Should not there be at least a reference to any
reports or expert opinions that might not favor the Applicant on this issue? Given the fact
that, at the June 8 Planning Commission meeting, at least one Commissioner found the
ephemeral creek argument not credible, would it not be too much to ask for the
4 As noted above , there was no compliance with the recommendation in the Live Oak
May 5, 2016 Report for Applicant's expert Harvey to provide more calculations and
details to justify the creek setbacks proposed by Applicant. This raises the question of
compliance with the second suggestion, based on Live Oak's questioning ofHarvey's
conclusion regarding the impacts on nesting birds, that the MND be amended to add
construction mitigation for n est ing bird s. (See 5/5116 Live Oak Report, pp . 5-6.)
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Planning Commis sion
Town of Los Gatos
September 22, 2016
Page 18
Addendum to outright admit that it presumes that the creek is ephemeral ?
The Addendum does none of this. It never does say whether the creek is ephemeral or
intermittent. It gets to the desired result-a minimal setback-in a more oblique way,
accepting and setting forth Live Oak 's determinations regarding necessary setbacks
without mentioning that those determinations were expressly based on the conclusion that
the creek was ephemeral. (Compare Addendum p. 9, first paragraph [setting forth Live
Oak 's conclusions a 20-foot setback is adequate and that it can be reduced to "within 16
feet from top of bank for the home and less than 10-feet for the driveway"] with Live
Oak's May 5, 2016 report, pp. 2 and 4 [reaching those conclusions based on finding that
creek. was ephemeral].)5
Moreover, as noted above, the Addendum does not discuss-or mention the existence
of-expert reports and evidence (not only from Appellants' experts but otherwise present
in the town file that show precisely the reverse conclusion: that the creek is intermittent
and requires, depending on the size of the site, a 20-to 25-foot setback from all
improvements including the driveway and from at all points of the improvement
including the house. (See Omitted Reports.)
The Addendum does not even mention aspects of the Live Oak Report that undermine the
Addendum 's goal of project approval. E ven while purporting to rely on the 5/5/16 Live
Oak Report as to the creek setback, the Addendum fails to mention Live Oak's
recommendation as to creek setback. The Live Oak Report was a peer review of a May
5, 2016 report by H. T . Harvey & Associates (the "5 /5/16 Harvey Report"). (5 /5116 Live
Oak Report p . 1.) It expressly recommended that Harvey modify their report to set forth
more analysis regarding its creek setback conclusions and why they were justified,
specifically recommending that:
1. That H.T. Harvey modify their 2016 letter report to discuss the actual setbacks
as indicated on the Peoples Associates November 20 15 site plans between the
top of the bank of the creek and the home and driveway areas, and provide a
5 At times, Addendum addresses Applicant's prior rather than his current plans. The
Addendum's reliance on the May 5, 2016 Live Oak Report is an example of this , relating
to the November 2015 plans (including the associated proposed creek setbacks) rather
than to the current plans.
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Planning Commission
Town of Los Gatos
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Page 19
more detailed analysis as to why these setbacks are adequate. We would
recommend that this discussion include calculations/estimations of average
setbacks for the home and driveway features , and calculations/estimations of
the linear feet of setback between the home and the creek bank; that is both less
than 20 feet and that is 20 feet or greater, for comparison, and less than 10 feet
and greater than 10 feet for the driveway setback.
(Addendum p. 6 , emphasis added.) There is no indication either in the Addendum or
otherwise that this recommendation was ever followed.6
It is solely on the basis of Live Oak's conclusions that the Addendum concludes that the
Project would have no impact on the creek. (Addendum p . 6, second paragraph "[t]he
proposed project would have no impact on the existing creek and no mitigation is
required"].) The lack of consideration or mention of the other reports establishes the lack
of support for this conclusion.
Additionally, because the Addendum has incorrectly adopted Live Oak's ephemeral
creek conclusion and done so on the basis of Applicant's previous, not current revised
plans, it has failed to address, much less successfully minimize, Applicant' continued
refusal to comply with required creek setbacks including by adhering only to a 20-foot
setback even though a 25-foot setback is required for properties like Applicant's with
10,000 square feet or more ; by reducing even that setback around structures (the
driveway and turnaround) that are equally deemed to be structures bound by the setback
rules ; and by trying to get past the setbacks through cantilevering in violation of law.
Moreover, the Addendum makes no mention of the redirection of the course of the Creek.
As addressed in Appellants' August 24, 2016 letter and acknowledged by Live Oak in its
6 1t must also be noted the underlying Harvey Report purportedly peer-reviewed by Live
Oak is questionable. It purports to be an "update" of Harvey's previous biotic constraints
analysis. That previous biotic constraints analysis was done nearly 20 years ag o, in
1997. (See 5/5/16 Harvey Report p . 1 and Addendum p. 7 .) It is hardly credible that
only an "update" to that completely outdated report was necessary.
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Page 20
7/21/16 Report, the creek was diverted and redirected. Contrary to Live Oak's non-
percipient opinion and based on witness testimony, the creek was moved by bulldozer,
not by natural processes. The Addendum fails to address the potential effects of the creek
movement.
The creek setback is a critical issue. The purpose of the setback has numerous
environmental purposes, including to provide erosion control both during and after
construction, to protect water quality both during and after construction, to provide an
adequate area for regrowth of riparian vegetation and protection of the limited wetland
vegetation on the site, to provide habitat for stream-dependent upland species, to protect
the aesthetics of the creek corridor, to provide adequate flood protection (notably, current
maps of 1 00-year flood zones do not reflect a changing climate that has resulted in more
severe storms and therefore more severe flooding than when the maps were developed),
and to provide room for the creek to meander without damaging the house. On the last
point, if, as the Live Oak claims, the past channel relocation was natural (in spite of the
bulldozer evidence), then the proposed setback clearly would not be adequate to protect
the proposed house and driveway from such a wildly shifting stream channel.
4. Grading, Erosion, Size, Footprint, Relocation.
It is not disputed that there will be substantially more grading and substantially more cut
and fill with the Pearson Project than was contemplated for the Orphan Project when the
2010 MND was prepared (total of868 cubic feet of cut and fill in 2016 compared to 530
in 2010). (See Addendum p . 5.) The Addendum merely glosses over these changes, and
their potential effect on erosion, road and creek health , and destruction of habitat, by
(falsely) asserting that the additional grading will allow the house to follow the
topography of the slope at the road in alleged conformance with Hillside Design and
Development Standards and by ignoring cut and fill and focusing only exported soil. Not
only is the assertion about conforming to the natural topography untrue, as shown in Dr.
Badame 's August 24, 2016 slides, it-and the alleged compliance with Hillside
Guidelines-is completely irrelevant to the effect of these grading changes on the
environment under CEQA. As for the soil removal and cut and fill , the Addendum has
simply elected to consider one issue while completely ignoring an equally if not more
important issue-and one that, like all environmental effects-must be considered.
Additionally , the Addendum, without explanation and in contradiction to expert
20
Planning Commission
Town of Los Gatos
September 22, 20 16
Page 21
conclusions in the Omitted Reports , similarly makes merely conclusory statements that
the increased size of the house will not affect the environment because the footprint is
smaller even though the footprint calculation is deceiving because of the cantilevering
included in the Project to intrude into the creek setback.
Nor does the Addendum address the effects of the relocation of the structures from the
location contemplated in 2010 , including deeper into the slope at the road while still
intruding in the creek setback and including the potential effects on trees , stability,
shadow, and erosion and runoff patterns. One of the structures is the driveway which,
based on Applicant's choice oflocation, originally involved significant retaining walls
for support. While Applicant's revised plans have reduced the walls, the reduction has at
the same time, again because of Applicant's choice of location for the driveway,
significantly altered the erosion potential both on both sides of the driveway including
into the creek setback and bed on the one side and to the steep roadside slope on the
other.
5. Storm Drainage.
The Addendum fails to address changes resulting from a change in storm drainage
measures . The Orphan Project provided for a dissipation system to address storm water
drainage to ensure that project runoff is adequately filtered before entering the Creek.
The Pearson Project has eliminated that plan altogether in favor of a bioswale system.
The Addendum has not addressed this change or its potential effect.
Moreover, from his original plans to his recent revised plans, Applicant has modified his
drainage system even further by eliminating two of the five bioswales that were
originally proposed for his Project and reducing the size of the others such that the total
linear footage (and therefore capacity) of the bioswales is reduced by 45% from
Applicant's original plan. There is no mention of this critical difference in t~e
Addendum and there is no discussion of the need for a hydrologic analysis to ensure that
the Project's current storm water system adequately protects the Creek. Indeed, the only
report on which the Addendum relies that mentions bioswales is the 5/5/16 Live Oak
Report that presumes five, not three, bioswales. (See 5/5/16 Live Oak Report p. 4
["[P]otential water quality issues with regard to run off from new impervious surfaces
have been addressed through the incorporation of five bioswales ... into the design, four of
which occur between the proposed home and the creek .... "].)
21
Planning Commission
Town of Los Gatos
September 22, 2016
Page 22
6. Other Aesthetic and Environmental Changes.
As set forth in the Omitted Reports," there have been substantial changes in the project
design and surrounding environment affecting the aesthetics of the proposed project.
These changes have either been ignored or unjustifiably minimized in the Addendum.
They range from the 3-plus-story edifice that Applicant now desires to construct on the
site, to a complete change in design and materials (including, contrary to the Addendum,
not to a house of just stone and wood but a predominantly stucco house with few
elements of stone and wood siding), to a house that it uncommonly and unattractively
close to the road, to a house that, because of tree removal on the prior unconsummated
Orphan Project (except for tree removal), is significantly less shielded that the prior
project. Even the driveway has been substantially altered, with 703 more square feet than
designed for the Orphan Project. (See Addendum p . 5 [3,583 square feet for the Pearson
Project as opposed to only 2,880 for the Orphan Project).) Similarly ignored by the
Addendum are the effects of the differing garage sizes (see Addendum p . 5 [617 square
feet for the Pearson Project as opposed to only 592 square feet for the Orphan Project and
different retaining wall locations (id.)
Moreover, as detailed in the Omitted Reports, and not addressed in the Addendum, there
have been s ignificantly more substantial changes to the environment since 2010,
including the obvious effects of an unforeseen, severe, and unprecedented drought; as
well as Applicant's recent illegal destruction of understory at proposed fire turnaround
and driveway area and associated dumping into the creek. Under CEQA, "[ e ]very citizen
has a responsibility to contribute to the preservation and enhancement of the
\. environment." (See Public Resources Code §21000(e).) Applicant has not met this
responsibility. The Town must.
V. Conclusion.
As set forth in prior reports, correspondence, and presentations, there are many non-
CEQA reasons why this Application should be denied and the Appeal upheld before this
Commission needs to reach the CEQA issues.
Independently, as well, as set forth above, the Application should also be denied and the
Appeal upheld on CEQA grounds. It is indisputable that the legal premises in the
Addendum are untenable under Friends. The Addendum is demonstrably incomplete and
22
Planning Commission
Town of Los Gatos
September 22, 2016
Page 23
misleading. The Town Staff has clearly failed in their obligation to consult with public
agencies. The 2010 MND for the Orphan Project is not relevant to the Pearson Project.
There is substantial evidence that the Pearson Project may result in significant
environmental impacts . Either an initial study, at the very least, or, in all likelihood, an
EIR is required for approval of this project.
Thank you for your consideration of the above. If you have any questions regarding any
aspect of this matter, please feel free to contact me.
23
EXHIBIT A
Filed 9/19116
IN THE SUPREME COURT OF CALIFORNIA
FRIENDS OF THE COLLEGE OF )
SAN MATEO GARDENS, )
)
Plaintiff and Respondent, )
)
v. )
)
SAN MATEO COUNTY COMMUNITY )
COLLEGE DISTRICT et al., )
)
Defendants and Appellants. )
S214061
Ct.App. 111 A135892
San Mateo County
Super. Ct. No. CIV 508656
To ensure that governmental agencies and the public are adequately
informed about the environmental impact of public decisions, the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)
requires a lead agency (id., § 21067) to prepare an environmental impact report
(ETR) before approving a new project that "may have a significant effect on the
environment." (ld., § 21151 , subd. (a).) When changes are proposed to a project
for which an EIR has already b een prepared, the agency must prepare a subsequent
or supplemental EIR only if the changes are "[s]ubstantial" and require "major
revisions" of the previous EIR. (Jd., § 21166.) Guidelines promulgated by the
state Natural Resources Agency (Resources Agency) extend this subsequent
review framework to projects for which a n egative declaration was initially
adopted, and no EIR prepared, because the agency had concluded the project
would have no potentially significant environmental effects. (Cal. Code Regs., ti t.
14 , § 15162; hereafter CEQA Guidelines.)
In this case, a community 'college district proposed a district-wide facilities
improvement plan that called for demolishing certain buildings and renovating
others. The district approved the plan after determining that it would have no
potentially significant, unmitigated effect on the environment. Years later, the
district proposed changes to the plan. The changes included a proposal to
demolish one building complex that had originally been slated for renovation, and
to renovate two other buildings that had originally been slated for demolition. The
district approved the changes after concluding they did not require the preparation
of a subsequent or supplemental EIR under Public Resources Code section 21166
(section 21166) and CEQA Guidelines section 15162. The Court of Appeal
invalidated the di strict's decision, finding it "clear" as a matter of law that the
district's proposed demolition of the building complex was not merely a change to
its previously approved project, but a new project altogether. The court ruled that
the district's proposal was therefore subject to the initial environmental review
standards of Public Resources Code section 2115 I (section 21151) rather than the
subsequent review standards of section 21166 and CEQA Guidelines section
15162.
We conclude that the Court of Appeal erred in its application of this new
project test. When an agency proposes changes to a prev iously approved project,
CEQA does not authorize courts to invalidate the agency's action based so lely on
their own abstract evaluation of whether the agency's proposal is a new project,
rather than a modified version of an old one. Under the statutory scheme, the
agency 's environmental revie w o bligations depend on the effect of the propose d
changes on the decisionmaking process, rather than on any abstract
characterization of the proj ect as "new" or "old." An agency that proposes project
2
changes thus must determine whether the previous environmental document
retains any relevance in light of the proposed changes and, if so, whether major
revisions to the previous environmental document are nevertheless required due to
the involvement of new, previously unstudied significant environmental impacts .
These are determinations for the agency to make in the first instance, subject to
judicial review for substantial evidence.
I.
A.
"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 (No Oil).) At the
"heart ofCEQA" (CEQA Guidelines ,§ 15003 , subd. (a)) is the requirement that
public agencies prepare an EIR for any "project" that "may have a significant
effect on the environment." (§ 21151, subd. (a); see id., §§ 21080, subd. (a),
21100, subd. (a).) The purpose of the EIR is "to provide public agencies and the
public in general with detailed information about the effect which a proposed
project is likely to have on the environment; to list ways in which the significant
effects of such a project might be minimized; and to indicate alternatives to such a
project." (Pub. Resources Code,§ 21061.) The EIR thu s works to "inform the
public and its responsible officials of the environmental consequences of their
decisions before they are made," thereby protecting" 'not only the environment
but also informed self-government.' " (Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 564, quoting Laurel Heights Improvem e nt
Ass n. v. Regents of Univ ersity of California (1988) 47 Cal.3d 376,_3 92 (Laurel
H e ights).)
3
Under CEQA and its implementing guidelines , an agency generally
conducts an initial study to determine "if the project may have a significant effect
on the environment." (CEQA Guidelines,§ 15063 , subd. (a).) If there is
substantial evidence that the project may have a significant effect on the
environment, then the agency must prepare and certify an EIR before approving
the project. (No Oil, supra, 13 Cal.3d at p . 85; see also Pub. Resources Code,
§§ 21100 [state agencies], 21151 [local agencies].) On the other hand , no EIR is
required if the initial study reveals that "there is no substantial evidence that the
project or any of its aspects may cause a significant effect on the environment."
(CEQA Guidelines,§ 15063 , subd. (b)(2).) The agency instead prepares a
negative declaration "briefly describing the reasons that a proposed project ...
will not have a significant effect on the environment and therefore does not require
the preparation of an EIR." (Jd., § 15371 ; see id., § 15070.) Even when an initial
study shows a project may have significant environmental effects, an EIR is not
always required. The public agency may instead prepare a mitigated negative
declaration (MND) if "(1) revisions in the project plans ... before the proposed
negative declaration and initial study are released for public review would avoi d
the effects or mitigate the effects to a point where clearly no significant effect on
the environment would occur, and (2) there is no substantial evidence in light of
the whole record before the public agency that the project, as revised , may have a
significant effect on the environment." (Pub. Resources Code, § 21 064 .5.)
For many projects, this is the end of the environmental review process. But
like all things in life , project plans are subject to change. When such changes
occur, section 21166 provides that "no subsequent or supplemental environmental
impact report shall be required " unless at least one or more of the following
occurs: ( 1) "[ s ]ubstantial changes are proposed in the project which will require
major revisions of the environmental impact report ," (2) there are "[s]ubstantial
4
changes " to the project's circumstances that will require major revisions to the
EIR , or (3) new information becomes available. (§ 21166.)
Although section 21166 does not, by its terms, address cases in which a
negative declaration or an MND, rather than an EIR, has been prepared, CEQA
Guidelines section 15162 provides that no subsequent EIR is required either
"[w]hen an EIR has [previously] been certified or [when] a negative declaration
[has previously been] adopted for a project," unless there are substantial changes
to a project or its circumstances that will require major revisions to the existing
ETR or negative declaration. (CEQA Guidelines, § 15162 , subd. (a), italics added ;
see also§ 21166.) "If changes to a project or its circumstances occur or new
information becomes availabl e 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).) CEQA Guidelines further provide that an
agency must prepare an addendum to a previously certified EIR "if some changes
or additions are necessary but none of the conditions described in Section 15162
calling for preparation of a subsequent EIR have occurred." (ld., § 15164 , subd.
(a).) 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 Section 15162 calling for the preparation of a subsequent EIR or
negative declaration have occurred." (!d.,§ 15164 , subd. (b).)
B.
This case arises from a series of proposed facilities improvements to a
college campus in San Mateo County. In 2006, the San Mateo 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
5
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 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 20 11, the
District issued a notice of determination, indicating that it would instead demolish,
rather than 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 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 disclose d in the 2006 [initial study and
mitigated negative declaration]. Therefore, an addendum ... is the appropriate
CEQA documentation." (San Mateo County Community College Dist., CEQA
Addendum: Evaluation ofProject Change to Building 20 Complex (May 2011)
p. 20.)
6
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 filed suit challenging
the approval. The District thereafter rescinded its original addendum and issued a
revised addendum in August 20 II . 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. Plaintiff voluntarily
dismissed its prior suit and filed the present action, challenging the revised
addendum and the reapproval of the demolition. Plaintiff sought a peremptory
writ of mandate ordering the District to set aside its approval of the Building 20
complex demolition and to fully comply with CEQA, including preparing an
adequate ETR and adopting feasible alternatives and mitigation measures. The
trial court found that the demolition project was inconsistent with the previously
approved plan and that its impacts were not addressed in the 2006 mitigated
negative declaration. The trial court thus granted plaintiffs petition for a writ of
mandate, ordering the District to refrain from taking further action adversely
affecting the physical environment at the Building 20 complex pending the
District's full compliance with CEQA.
The Court of Appeal affirmed. Relying primarily on Save Our
Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288 (Save Our
Neighborhood), the court concluded, as a threshold matter of law, that the
proposed building demolition was a new project, rather than a project
7
modification. The court accordingly concluded that the agency is required to
engage in an initial study of the project to determine whether an EIR is required
under section 21151.
In so holding, the Court of Appeal deepened a disagreement among the
appellate courts concerning the reasoning of Save Our Neighborhood, supra, 140
Cal.App.4th 1288. In Save Our Neighborhood, the Court of Appeal invalidated an
agency's approval of a proposed modification to a project that had previously been
approved via negative declaration. Although the original project and the proposed
modification involved "the same land and ... similar mixes of uses ," there were a
number of differences. (!d. at p . 1300 [the original project was a 1 06-unit motel
that included some 15,000 square feet of other retail uses ; the purported
modification was a I 02-unit hotel that did not include any separate retail uses and
was sponsored by a different developer than the original project].) The court held
that the agency had erroneously relied on the statutory and regulatory provisions
governing the preparation of subsequent or supplemental EIRs because the
proposal was not a modification at all but rather a "new project altogether." (!d. at
p. 1301.) The court concluded that whether the proposal constituted a "new
project" was "a threshold question" of law and rejected the agency's determination
to treat the proposal as a modification after rev iewing that question de novo.
(Ibid.)
Save Our Neighborhood was criticized in Mani Brothers Real Estate Group
v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1400 (Mani Brothers). In
Mani Brothers , the agency certified an EIR for an original project consisting of
"five buildings with ... offices, a 550-to 770-room hotel , retail facilities, and an
optional cultural center." (!d. at p. 1389 .) Fifteen years later, the project's
developer proposed to revise the project, including by "reduc[ing] much of the
[o]riginal [p]roject's office and retail space, and eliminat[ing] the optional culture
8
J
use component, while maintaining the hotel component and adding residential
components," which increased the overall size of the project from "approximately
2 .7 milli o n square feet to a maximum of just over 3.2 million square feet." (Jd. at
p. 1391.) The Mani Brothers court affirmed the agency's determination that the
proposal was a modification of an existing project and found the a gency's
conclusion that no supplemental EIR was required to be supported by substantial
evidence. (ld. at pp. 1398-1399.) The court distinguished Save Our
Neighborhood, supra, 140 Cal.App.4th 1288, on the ground that it "involved an
addendum to a previously certified negative declaration and not ... an addendum
to a previously certified EIR." (Mani Brothers, at p. 1400.) But the court also
opined that, even if it were not distinguishable, Save Our Neighborhood's
"fundamental analysis is flawed." (Mani Brothers , at p. 1400.) The court
explained that Save Our Neighborhood's threshold " 'new project' test ...
in appropriately bypassed otherwise applicable statutory and regulatory
provisions," and "undermine[ d) the deference due the agency." (Mani Broth ers, at
pp. 1400-140 I ; see also Pub. Resources Code , § 21 083 .1.)
The Court of Appeal in this case ac knowledge d the di sagreement between-
Save Our Neighborhood and Mani Broth ers. It concluded, however , that "in the
narrow circumstances of the present case, where it is clear from the record that the
nature of the project has fundamentally and qualitatively changed to the point
where the new proposal is actually a new project altogether," the approach
adopted in Save Our N eighborhood "is both workable and sound."l Here, the
Shortly after issuing its d ecision in this case, the same division of the Court
of Appeal i ssued a decision in which it declined to apply the Sav e Our
N e ighborhood new projec t test to rev iew a city's determinatio n that changes to a
previously approved proj ect did not require a supplemental or subsequent EIR.
(Latinos Unidos de Napa v. City ofNapa (2013) 221 Cal.App.4th 192, 201 -202.)
(Foot note continued on nex t page)
9
court observed, the District's 2011 addendum "changes 'renovation ' of the
Building 20 complex to 'demolition' of the complex's buildings and a substantial
portion of the gardens." The court concluded: "[A]t least under the
straightforward facts of the present case we can decide, as a matter of law, that the
demolition project is a 'new project.' "
The Court of Appeal acknowledged the District's argument that the
proposal to demolish the Building 20 complex is only one component of the
District's project, which, as revised, now proposes to renovate two buildings that
had previously been slated for demolition . Relying on Sierra Club v. County of
Sonoma (1992) 6 Cal.App.4th 1307 (Sierra Club), however, the Court of Appeal
concluded that when an agency initially adopts a broad, large-scale environmental
document -such as the 2006 MND here -that addresses the "environmental
effects of a complex long-term management plan" (id. at p. 1316), a court can find
a material alteration regarding a particular site or activity covered by that plan to
be a new project triggering environmental review under section 21151.
II.
Once a project has been subject to environmental review and received
approval, section 21166 and CEQA Guidelines section 15162 limit the
circumstances under which a subsequent or supplemental EIR must be prepared .
These limitations are designed to balance CEQA's central purpose of promoting
consideration of the environmental consequences of public decisions with interests
(Footn ote continued from previous page.)
Explaining that " 'a court should tread with extraordinary care before reversing a
local agency 's determination about the environmental impact of changes to a
project,' " the court instead "elect[ ed] to evaluate the City's decision to proceed
under section 21166 using the substantial evidence test." (!d. at p. 202.)
10
in finality and efficiency. (See Bowman v. City of P e taluma ( 1986) 185
Cal.App.3d I 065 , 1074 (Bowman).) Thus, as both Save Our Neighborhood and
Mani Brothers explained: "The purpose behind the requirement of a subsequent
or supplemental EIR or negative declaration is to explore environmental impacts
not considered in the original environmental document. . . . The event of a change
in a project is not an occasion to revisit environmental concerns laid to rest in the
original analysis. Only changed circumstances ... are at issue." (Save Our
Neighborhood, supra, 140 Cal.App.4th at p. 1296 ; accord, Mani Brothers, supra ,
153 Cal.App.4th at pp. 1398-1399.)
Consistent with these principles, section 21166 and CEQA Guidelines
section 15162 provide that an agency that proposes changes to a previously
approved project must determine whether the changes are "[s]ubstantial" and "will
require major revisions of the previous EIR or negative declaration due to the
involvement of new significant environmental effects or a substantial increase in
the severity of previously identified significant effects." (CEQA Guidelines,
§ 15162, subd. (a)(l).) If the proposed changes meet that standard, then a
subsequent or supplemental EIR is required.
Drawing on the reasoning of Save Our Neighborhood, plaintiff argues that
implicit in the statutory and regulatory scheme is a threshold inquiry that
determines whether the subsequent review provisions properly apply in the first
place. Because section 21166 and CEQA Guidelines section 15162 both refer to
substantial changes to "a project"-and not, as the Save Our Neighborhood court
observe<:!, changes to "a new project proposed for a si te where a similar project
was previously approved"-a court reviewing an agency's proposed approval of
project changes must first satisfy itself that the project remains the same project as
before, rather than an entirely new project, before proceeding to evaluate whether
the changes call for a subsequent or supplemental EIR under CEQA' s subsequent
11
review proviSIOns. (Save Our Neighborhood, supra, 140 Cal.App.4th at p. 1297.)
Plaintiff further argues that whether an agency's proposal qualifies as a new
project is a question of law for courts to decide based on their independent
judgment. The premise of plaintiffs argument is sound, but its conclusions are
not.
Plaintiff is correct that the subsequent review provisions can apply only if
the project has been subject to initial review; they can have no application if the
agency has proposed a new project that has not previously been subject to review.
But plaintiff's approach would assign to courts the authority -indeed, the
obligation -to determine whether an agency's proposal qualifies as a new
project, in the absence of any standards to govern the inquiry. Plaintiff does not
suggest any standards, nor do the cases on which it relies. The Save Our
Neighborhood court simply asserted that the modified project proposal at issue
was a new project, pointing out that while the "projects" at issue involved the
"same land" and a "similar mix[] of uses," they "ha(d] different proponents and
there [was] no suggestion the latter project utilized any of the drawings or other
materials connected with the earlier project ... "(Save Our Neighborhood, supra,
140 Cal.App.4th at p. 1300). The court neither purported to give any content to
the determination whether a proposal counts as a new proj ect, nor did it explain
why the distinctions it identified make any di f~erence for purposes of CEQA,
whose ai m is si mply to "compe l government ... to make deci sion s with
environmental consequences in mind." (Bozung v. Local Agency Formation Com.
(1975) 13 Cal.3d 263 , 283 .) The Court of Appeal in this case likewise offered no
standards to guide the inquiry, simply declaring it "clear" that the proposal at issue
constituted a "new project."
In the absence of any benchmark for measuring the newness of a given
project, the new project test plaintiff urges would inev itably invite arbitrary
12
results. As the Court of Appeal in Mani Broth ers observed, to ask whether an
agency proposal constitutes a " 'new project' "in the abstract "does not provide an
objective or useful framework. Drastic changes to a project might be viewed by
some as transfonning the project to a new project, while others may characterize
the same drastic changes in a project as resulting in a dramatically modified
project. Such labeling entails no specific guidelines and simply is not helpful to
our analysis." (Mani Broth ers , supra, 153 Cal.App.4th at p. 1400.)
What is more, to ask whether proposed agency action constitutes a new
project, purely in the abstract, misses the reason why the characterization matters
in the first place. The central purpose of CEQA is to ensure that agencies and the
public are adequately informed of the environmental effects of proposed agency
action. The subsequent review provisions, as Save Our Neighborhood recognized,
are accordingly designed to ensure that an agency that proposes changes to a
previously approved project "explore[s] environmental impacts not considered in
the original environmental document." (Save Our Neighborhood, supra, 140
Cal.App.4th at p . 1296.) This assumes that at least some of the environmental
impacts of the modified project were considered in the original environmental
document, such that the original document retains some relevance to the ongoing
decisionmaking process. A decision to proceed under CEQA's subsequent review
provisions must thus necessarily rest on a determination -whether implicit or
explicit -that the original environmental document retains some informational
value. If the proposed changes render the previous environmental document
wholly irrelevant to the decisionmaking process, then it is only logical that the
agency start from the beginning under section 21151 by conducting an initial study
to determine whether the project may have substantial effects on the environment.
It follows that, for purposes of determining whether an agency may proceed
under CEQA's subsequent review provisions, the question is not whether an
13
agency's proposed changes render a project new in an abstract sense. Nor does
the inquiry tum on the identity of the project proponent, the provenance of the
drawings, or other matters unrelated to the environmental consequences associated
with the project. (Cf. Save Our Neighborhood, supra, 140 Cal.App.4th at
p. 1300.) Rather, under CEQA, when there is a change in plans, circumstances, or
available information after a project has received initial approval , the agency 's
environmental review obligations "tum[] on the value of the new information to
the still pending decisionmaking process." (Marsh v. Oregon Natural Resources
Council (1989) 490 U.S. 360, 374 (Marsh).)2 If the original environmental
document retains some informational value despite the proposed changes, then the
agency proceeds to decide under CEQA 's subsequent review provisions whether
project changes will require major revisions to the original environmental
document because of the involvement of new , previously unconsidered significant
environmental effects. 3
2 In this respect, CEQA resembles the federal statute on which it was
modeled. (See Marsh, supra, 490 U.S. at p. 374 [agencies employ a" 'rule of
reason ' "in determining whether to issue a supplemental environmental impact
statement under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321
et seq.]; Citizens of Goleta Valley v. Board of Supervisors , supra, 52 Cal.3d 553 ,
565, fn. 4 ["CEQA was modeled on the National Environmental Policy Act
(NEP A)" and " 'we have consistently treated judicial and administrative
interpretation of the latter enactment as persuasive authority in interpreting
CEQA.' "].)
3 As a practical matter, if proposed modifications have rendered the prior
environmental review wholly irrelevant to the ongoing deci sionmaking process,
and if the modifications create potentially significant environmental impacts, the
two inquiries will yield substantially the same result: the agency mu st prepare an
EIR. Although CEQA di stinguishes "subsequent EIRs" (§ 21166) from initial
EIRs (see§ 21151), both types ofEIRs are subject to the same general procedural
and substantive requirements. (See generally Pub. Resources Code,§ 21061
[defining environmental impact report]; see also id., §§ 21100, 21100.1
(Footnote continued on next page.)
14
This understanding of the relevant statutory framework supplies the
b enchmark missing from the Court of Appeal's application of the new project test
in this case. It also exposes the court's error in treating the new project inquiry as
a question for the court's independent determination under a de novo standard.
Plaintiff, seeking to defend the court's chosen standard of review, likens the new
project inquiry to the inquiry whether a particular activity qualifies as a project
within the meaning of CEQ A. (See Save Our Neighborhood, supra, 140
Cal.App.4th at p. 1297; cf. Save Tara v. City of West Hollywood (2008) 45 Cal.4th
116, 13 1; Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41
Cal.4th 372, 382; Fullerton Joint Union High School Dist. v. State Bd. of
Education (1982) 32 Cal.3d 779, 795-798.) The comparison fails. Whether a .
proposed activity is a project within the meaning of CEQA is , as we have
recogni ze d, a predominantly legal que stion, for it depends on whether "undisputed
data in the record on appeal" satisfy the detailed statutory definition of the term
"project." (Muzzy Ranch Co., supra, 41 Cal.4th at p. 382 , citing Pub . Resources
Code, § 21065 [ defming "project" as "an activity which may cause either a direct
physical change in the environment, or a reasonably foreseeable indirect physical
change in the environment"].) But whether an initial environmental document
remains relevant despite changed plans or circumstances -like the question
whether an initial environmental document requires major revisions due to
changed plans or circumstances -is a predominantly factual question. It is thus a
question for the agency to answer in the first instance, drawing on its particular
(Footnote continued from previous page.)
[information to be included], 21104,21153 [consultation requirements], 21091-
21092 [public notice and comment].)
15
expertise. (Center for Biological Diversity v. Department of Fish & Wildlife
(2015) 62 Cal.4th 204, 215 .) 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.)
We expect 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.
(Moss v. County of Humboldt (2008) 162 CaJ.App.4th 1041 , 1052, fn. 6. )4 But
this is only the first step. 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 . In particular, where , as here, the
agency has determined that project changes will not require "major rev isions" 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. As explained below, 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.
4 As noted , an agency 's decision to proceed under CEQA 's subsequent
review provisions necessarily incorporates an implicit conclusion that the original
environmental document retains at least some degre e of relevance. Nothing in the
statute requires the age ncy to make an explicit finding to that effe ct.
16
III.
Perhaps anticipating our disagreement with the Court of Appeal 's
formulation and application of Save Our Neighborhood's new project test,
plaintiff asks us to affirm the judgment below on the alternative ground that
CEQA 's subsequent review provision, section 21166, applies only to projects for
which an initial EIR was prepared. Plaintiff urges us to hold that CEQA
Guidelines section 15162 is invalid to the extent that it extends the section 21166
subsequent review framework to projects that were initially approved via negative
declaration , like the campus improvement project at issue in this case.s
The Resources Agency, as the "agency with primary responsibility for
statewide implementation of CEQA," promulgated CEQA Guidelines section
15162 in accordance with its statutory obligation to establish guidelines for
CEQA 's implementation . (California Building Industry Assn. v . Bay Area Air
Quality Managem ent Dist. (20 15) 62 Cal. 4th 369, 378; see Pub. Resources Code,
§ 21 083.) These Guidelines, we have said , are "central to the statutory scheme";
they "serve to make the CEQA process tractable for those who must administer it,
those who must comply with 'it, and ultimately, those members of the public who
must live with its consequences." (California Building Industry Assn., supra , 62
Cal.4th at pp . 384-385.) Although we have "not [yet] decided ... whether the
Guidelines are regulatory mandates or only aids to interpreting CEQA" (Laurel
5 Plaintiff did not raise this issue in its response to the petition for review,
and indeed conceded in its opening brief that the "point has not been at issue in
this case." At oral argument , however, both parti~s focused on this issue rather
than on the issue on which we had granted review. Concluding that a full response
to the issue presented requires resolution of plaintiff's claim that CEQA
Guidelines section 15162 is invalid as applied to projects initially approved by
negative declaration, we solicited supplemental briefmg from the parties and the
Resources Agency to address it.
17
Heights, supra, 47 Cal.3d at p. 391, fn. 2), we have nevertheless concluded that
the Guidelines are owed deference insofar as they reflect the agency's specialized
knowledge and expertise and were adopted through a process of notice and public
comment under the California Administrative Procedure Act. (California Building
Industry Assn., supra, 62 Cal.4th at pp. 381, 389-390.) Thus, we afford the
Guidelines "great weight" unless a provision is "clearly unauthorized or erroneous
under the statute." (ld. at p. 381.)
Plaintiff argues that CEQA Guidelines section 15162 is clearly erroneous
because section 21166 is, by its terms, limited to projects for which an EIR has
been prepared. Plaintiff argues that the omission of any reference to negative
declarations reflects a legislative intent to exclude projects initially approved via
negative declaration from the subsequent review framework of section 21166, and
instead to require a new round of initial study each time changes are proposed in
project plans or circumstances. We disagree.
To begin with, the omission of any reference to negative declarations in
secti~m 21166 is less revealing than plaintiff suggests. At the time section 21166
was enacted in 1972, no provision of CEQA referred to negative declarations; the
category of negative declarations originated with the Resources Agency's
promulgation of the first set of CEQA implementation guidelines the following
year. (See No Oil, supra, 13 Cal.3d at p . 74 and fn. 2, citing former Cal. Admin.
Code, tit. 14 , § 15083 [adopted 1973].) The Legislature subsequently ratified this
innovation in 1976, when it amended CEQA to direct the Resources Agency to
"include objectives and criteria for ... the preparation of environmental impact
reports and n egative declarations ." (Pub. Resources Code,§ 21083, subd. (a), as
amend~d by Stats. 2004, ch. 689, § 1, p. 5239, italics added.) Because, at the time
of section 21166's enactment, EIRs were the only type of environmental document
expressly referenced b y CEQA's text, the Legislature could not have used the
18
phrase "environmental impact report" in section 21166 with any specific intent to
exclude negative declarations from its scope.
Plaintiff directs our attention to the Legislature 's 1977 amendments to
CEQA in Assembly Bill No. 884 (AB 884), which, among other things, amended
section 21166 to add a provision for the preparation of subsequent or supplemental
ETRs based on the discovery of new information. (See Stats. 1977 , ch. 1200, § 16,
p. 4003.) Plaintiff observes that while the Legislature did not amend section
21166 to add a reference to negative declarations , it did add two statutory ·
provisions that do specifically refer to negative declarations. (See Pub. Resources
Code, § 21080.1 ["The lead agency shall be responsible for determining whether ·
an environmental impact report [or] a negative declaration ... shall be required for
any project which is subject to [CEQA]. That determination shall be final and
conclusive on all persons ... unless challenged as provided in Section 21167."];
id., § 21080.3, subd. (a) ["Prior to determining whether a negative declaration or
environmental impact report is required for a project, the lead agency shall consult .
with all responsible agencies .... "].) Plaintiff argues that the Legislature 's failure
to add a similar reference to section 21166 demonstrates its intent to limit section
21166 's reach to projects initially approved via EIR, and to treat any and all
changes to projects initially approved via negative declaration as though they were
entirely new projects for purposes of section 21151 review.
Plaintiff here places more weight on the 1977 amendments than they can
bear. Given that the Guidelines had already authorized the use of negative
declarations without express statutory authorization -a development the
Legislature had ratified the previous year -the Legislature simply may not have
perceived a need to add an express reference to negative declarations in section
21166 . But in any event, when the 1977 amendments did refer to negative
declarations , it was in order to affirm that a lead agency's decision to proceed by
19
negative declaration is entitled to the same degree of finality as a decision to
proceed by EIR. (Pub. Resources Code,§ 21080.1.) In light of that provision,
plaintiff's reading of the 1977 amendments -as implicitly requiring agencies to
start the environmental review process over each time there is a change in plans or
circumstances , no matter how minor -is an unlikely one.
Ultimately, plaintiffs argument simply highlights a gap in CEQA's
statutory structure. No provision of CEQA directly addresses the subsequent
environmental review obligations for projects that were initially approved via
negative declaration. CEQA authorizes the Resources Agency to fill such gaps
in the statutory scheme, so long as it does so in a manner consistent with the
statute. (See Pub. Resources Code,§§ 21082-21083; City of Santa Ana v. City
ofGarden Grove (1979) 100 Cal.App.3d 521, 529 [the CEQA "statute
empowers [the] administrative agency to exercise a judgment ofhigh order in
implementing legi slative policy"].) And in the year following the 1977
amendments, the Resources Agency filled that gap by extending the predecessor
to CEQA Guidelines section 15162 to projects initially approved by negative
declaration . (See former Cal. Admin. Code , tit. 14, § 15067 [adopted 1978].)
Limiting agencies ' postapproval review obligations for projects that were
initially approved via negative declaration is wholly consistent with a statutory
scheme in which negative declarations, no less than EIRs, are entitled to a
presumption offinality once adopted. (See Pub. Resources Code,§ 21080.1 , subd.
(a).) As explained in Benton v. Board of Supervisors (1991) 226 Cal.App.3d
1467, 14 79-1480 (Benton): "In a case in which an initial EIR has been certified,
section 21166 comes into play precisely because in-depth review of the project has
already occurred, the time for challenging the sufficiency of the original CEQA
document has long since expired, and the question before the agency is whether
circumstances have changed enough to justify repeating a substantial portion of
20
the process. [Citations.] These same principles apply with even greater force in a
case such as this ," in which the project "initially raised so few environmental
questions that an EIR was not required, but a negative declaration was found to
satisfy the environmental review requirements of CEQA." The alternative that
plaintiff proposes -which would restart the CEQA process every time plans or
circumstances change, or whenever new information comes to light -"would
render agency decisionmaking intractable, always awaiting updated information
only to find the new information outdated by the time a decision is made."
(Marsh, supra, 490 U.S. at p . 373 ; see also Laurel Heights, supra, 47 Cal.3d at
p. 396 [noting the original environmental review process includes consideration of
reasonably foreseeable future expansions to the project, and that subsequent EIRs
are necessary when evaluating future action not considered in the initial review].)
The Resources Agency did not act unreasonably in concluding that the statutory
scheme calls for some limitations on postapproval environmental review of
projects initially approved via negative declaration.
Plaintiff's stronger arguments do not concern the Guidelines' limitations of
postapproval environmental review as such, but instead focus on the substance of
the limitations the Guidelines prescribe. As plaintiff points out, when an agency
initially proposes a project, an EIR is required "whenever it can be fairly argued
on the basis of substantial evidence that [a] project may have significant
environmental impact." (No Oil, s upra , 13 Cal.3d at p . 75 ; see Pub. Reso urces
Code,§ 21082.2, subd. (a) [requiring an EIR when a project "may" have a
significant effect on the environment]; accord,§ 21151 , subd. (a).) Thus, when a
reviewing court evaluates an agency's initial determination whether to proceed
with an EIR, the court's function is "to determine whether substantial evidence
supported the agency's conclusion as to whether the prescribed 'fair argument'
could be made. If there was substantial evidence that the proposed project might
21
have a significant environmental impact, evidence to the contrary is not sufficient
to support a decision to dispense with preparation of an EIR ... because it could
be 'fairly argued' that the project might have a significant environmental impact."
(Friends of "B " Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1 002; see
Bowman , supra , 185 Cal.App.3d at p. 1073 [" 'fair argument' "test is a question
of law , permitting the court's independent analysis of the sufficiency of the
evidence).) By contrast, when an agency proposes changes to a previously
approved project, CEQA Guidelines section 15162 generally prohibits the agency
from requiring a subsequent or supplemental EIR unless the agency determines,
"on the basis of substantial evidence in the light of the whole record," that
"[s]ubstantial changes ... will require major revisions ofthe previous EIR or
negative declaration due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified significant
effects." (CEQA Guidelines,§ 15162 , subd. (a).) Plaintiff argues that application
of this substantial evidence standard to projects initially approved via negative
declaration creates a loophole in the statutory scheme, allowing agencies to 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 had been approved.
Plaintiff's argument would have force if the Guidelines did, in fact , create
such a loophole. But the substantial evidence test referred to in the Guidelines
does not, as plaintiff supposes, refer to substantial evidence that the project, as
modified, will necessarily have significant environmental effects. It instead refers
to substantial evidence that the proposed modifications will involve "[s]ubstantial
changes" that "require major revisions of the previous EIR or negative declaration
due to the involvement" of new or significantly more severe environmental
effects. (CEQA Guidelines,§ 15162 , subd. (a); see id., § 15384 [defining
22
"substantial evidence"].) The distinction is important here, because whether
"major revisions" will be required as a result of project changes necessarily
depends on the nature of the original environmental document. 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" (CEQA
Guidelines, § 15063, subd. (b )(2), italics added; see also Pub. Resources Code,
§§ 21151 , 21064.5), whereas an EIR is required when a project and project
alternatives may have significant effects (id., § 21002.1 , subd. (a)). When there is
a proposal to modify a project originally approved through 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. (CEQA Guidelines,
§ 15162.) 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.6
6 We recognize that language in the appellate cases might be read as applying
a different rule. In Benton, supra , 226 Cal.App.3d 1467, for example, the Court of
Appeal considered whether a proposal to relocate a winery that had previously
been approved via negative declaration required the preparation of a subsequent or
supplemental EIR. Benton held that, under CEQA Guidelines section 15162, the
question whether a subsequent or supplemental EIR was required depended on the
effect of the proposed relocation; the changes were not an occasion to reopen the
original environmental review of the winery project. (Benton, at pp. 1482-1484.)
As the Court of Appeal in Abatti v. Imperial Irrigation Dist. (2012) 205
Cal.App.4th 650 later observed, "the central premise of B enton [is] that it makes
(Footno te co nt inued on n ext p age.)
23
In short, the substantial evidence standard prescribed by CEQA Guidelines
section 15162 requires an agency to 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. (See Friends of "B" Street v. City of Hayward, supra , 106
Cal.App.3d at p . 1002.) It therefore does not permit agencies to avoid their
obligation to prepare subsequent or supplemental EIRs to address new, and
previously un studied, potentially significant environmental effects. So
understood, CEQA Guidelines section 15162 constitutes a valid gap-filling
(Fo otnote continued from previous page.)
little sense to set a lower threshold for further environmental review of a project
that is determined not to have a significant effect on the environment than section
21166 sets for a project that may have significant effects on the environment."
(Abatti, at p. 673 [agreeing with the "central premise" of Benton].) Benton's
longstanding interpretation has been followed by courts and the Resources Agency
and is a correct statement of the law insofar as it recognizes that negative
declarations, like EIRs, are entitled to a presumption of finality; it would, as
B enton says, be "absurd" to require agencies to restart the entire process of
environmental review from scratch each time the agency proposes any change, no
matter how minor, simply because the project was previously approved by
negative declaration. (Benton, supra, 226 Cal.App .3d at p. 1480.) But Benton
went on to conclude that no subsequent or supplemental EIR was required in that
case because, among other things, substantial evidence supported the agency 's
conclusion that "[t]he environmental impacts of the modification were not
significant .... " (ld. at p. 1483.) As seen, however, the inquiry prescribed by the
Guidelines is not whether the environmental impacts of the modification are
significant, but whether the modification requires major revisions to the negative
declaration because of the involvement of new, potentially significant
environmental effects that had not previously been considered in connection with
the earlier environmental study.
24
measure as applied to projects initially approved via negative declaration,
including the project at issue in this case.
IV.
Finally, plaintiff contends that both section 21166 and CEQA Guidelines
section 15162 are inapplicable because the District 's initially approved project is
akin to a plan, a phased project, or a program rather than a simple project. Relying
on Sierra Club, supra, 6 Cal.App.4th 1307 , plaintiff argues that the District's
proposed changes to the plans for the Building 20 complex should therefore be
treated as a new site-specific project that triggers new environmental review under
CEQA's provisions for so-called "tiered" EIRs. (See Pub. Resources Code,
§§ 21068.5 , 21094.) The Court of Appeal appeared to accept this argument as
further support for its conclusion that the project changes at issue may be
considered a new project under a de novo standard of review. The argument also
fails, however, because the tiering provisions -and therefore Sierra Club, supra,
6 Cal.App.4th 1307 (involving a tiered EIR)-have no direct application here.
Unlike "[p]roject EIR[s]," which "examine[] the environmental impacts of
a specific development project" (CEQA Guidelines, § 15161 ), the CEQA
provisions governing tiered EIRs "permit[] the environmental analy sis for long-
term, multipart projects to be 'tiered,' so that the broad overall impacts analyzed in
an EIR at the first-tier programmatic level need not be reassessed as each of the
project's subsequent, narrower phases is approved." (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,429
(Vin eyard Area Citizens); see CEQA Guidelines,§ 15152 ["'Tiering' refers to
using the analysis of general matters contained in a broader EIR (such as one
prepared for a general plan or policy statement) with later EIRs and negative
declarations on narrower projects; incorporating by reference the general
25
discussions from the broader EIR; and concentrating the later EIR or negative
declaration solely on the issues specific to the later project."].)
"The standard for determining whether to engage in additional CEQA
review for subsequent projects under a tiered EIR is more relaxed than the
prohibition against additional review imposed by Public Resources Code section
21166 for project EIR 's ." (Friends of Mammoth v. Town of Mammoth Lakes
Redevelopment Agency (2000) 82 Cai.App.4tb 511, 528 .) For project EIRs , of
course, a subsequent or supplemental impact report is required in the event there
are substantial changes to the project or its circumstances, or in the event of
material new and previously unavailable information . (Ibid., citing§ 21166.) In
contrast, when a tiered EIR has been prepared, review of a subsequent project
proposal is more searching. If the subsequent project is consistent with the
program or plan for which the EIR was certified, then "CEQA requires a lead
agency to prepare an initial study to determine if the later project may cause
significant environmental effects not examined in the first tier EIR." (Ibid., citing
Pub . Resources Code,§ 21094 , subds. (a), (c).) "If the subsequent project is not
consistent with the program or plan , it is treated as a new project and mu st be fully
analyzed in a project-or another tiered EIR if it may have a significant effect on
the environment." (Friends of Mammoth, at pp. 528-529.)
In Sierra Club, on which plaintiff relies, a county approved a project
through a program EIR, a type of tiered EIR where the agency first analyzes
"general matters contained in a broader [initial] EIR ... with later EIRs and
negative declarations [analyzing] narrow projects ." (CEQA Guidelines ,§ 15152 ,
subd . (a); see id., § 15168.) The Sierra Club court concluded that when a program
EIR is employed, if a later proposal is not "either the same as or within the scope
of the project ... described in the program EIR," then review of the proposal is
not governed by section 21166 's deferential substantial evidence standard . (Sierra
26
Club, supra, 6 Cal.App.4th at p. 1321, citing CEQA Guidelines,§ 15168, subd.
(c)(5).) Instead , under Public Resources Code section 2 1094, the agency is
required to apply a more exacting standard to determine whether the later project
might cause significant environmental effects that were not fully examined in the
initial program EIR. (Sierra Club, at p. 13 21 ; Pub. Resources Code, § 21094,
subd. (c).)
Unlike the program EIR at issue in Sierra Club , the 2006 initial study and
MND were not a tiered EIR. The District's 2006 initial study and MND did not
purport "to defer analysis of certain details of later phases of long-term linked or
complex projects until those phases are up for approval." (Vineyard Area Citizens,
supra, 40 Cal.4th at p. 431.) The District's initial environmental review
documents instead expressly concluded that "all potential impacts " of the entire
project -including every building on the campus -had "been mitigated to a
point where no significant impacts wou ld occur, and there is no substantial
evidence the project would have a significant effect on the environment." (San
Mateo County Community College Dist., Proposed Mitigated Negative
Declaration (Dec . 20 , 2006) p . 2; see a lso San Mateo County Community College
Dist., Initial Study and Mitigated Negative Declaration for Facility Improvements
at College of San Mateo (Dec. 2006) p. 2 [describing the project and various
encompassed improvements , including those related to the Building 20 complex].)
To now entertain the argument that the 2006 MND should be treated as a tiered
EIR would disregard the substance of the District's conclusions in order to permit
plaintiff to raise an untimely challenge as to the adequacy of th e MND, as well as
the District's decision to proceed by MND in the first place.
v.
Our conclusion today does not end this case. Plaintiff argues that even if
the proposed changes to the earlier-approved project do not render it a new project
27
altogether, the District abused its discretion in approving the Building 20 complex
demolition based on the 2006 MND and the 2011 addendum. Plaintiff also argues
that CEQA Guidelines sections 15162 through 15164 improperly authorize lead
agencies to approve certain proposed project modifications through the use of
addenda without public comment, rather than requiring the issuance of a
subsequent or supplemental EJR or negative declaration. The Court of Appeal did
not address these questions, nor are they fairly encompassed by the question on
which we granted review, and we accordingly express no view on them.
VI.
We reverse the judgment of the Court of Appeal and remand for further
proceedings consistent with this opinion.
WE CONCUR:
CANTll..-SAKAUYE, C. J.
WERDEGAR, J.
CHIN,J.
CORRIGAN, J .
LIU, J.
CUELLAR,J.
28
KRUGER,J.
September 22 , 2016
Planning Commission
Town of Los Gatos
110 E. Main Street
Los Gatos, CA 95030
Lisa C. Roberts
78 Alpine A venue
Los Gatos, CA 95030
lroberts@rehonroberts.com
408-859-7585
Re: Appeal of Architecture and Site Application S-15-077
Continued Hearing Set for September 14, 2016 (Pending Request for
Continuance to September 28, 2016)
Dear Commissioners:
This letter comments on the email from William Edwards at 1 06 Alpine A venue stating support
by him and his wife for the above-referenced project. That email was dated and submitted at
10:49 a.m., on August 24, 2016,just in time for submission as a desk item for the Planning
Commission hearing on the project that evening.
Neighborhood input is very important, but I would ask the Commission to take three facts in
consideration regarding this input.
1. The Edwardses have listed their property for sale and are not likely to be affected by the
project. This is not apparent from Mr. Edwards' email, which mentions only how long
the Edwards have lived at 106 Alpine , implies that they will be personally affected by the
project, and says nothing about their intention to move from the house. It is, however,
shown by the For Sale sign posted at their property by their agent Ducky Grabill of The
Sereno Group. This sign was installed approximately 10 days before the date of Mr.
Edwards ' email. Since then, the property has been actively marketed, including by
Saturday and Sunday open houses.
2. Mr. Edwards's relationship with the Applicant for the above-referenced project is
complicated by Mr. Edwards's role in having diverted the creek on 19 Highland. He is
not just any neighbor on Alpine; he is the neighbor that caused the creek to be bulldozed
and moved and the former creek bed to be used to shore up his bank. These actions have
added to the already numerous and serious concerns regarding Applicant's failure to
comply with CEQA on this project. Notably, Mr. Edwards 's email does not deny the
creek diversion. It does not mention it at all .
3. Never before August 24 did the Edwardses express any support for the above-referenced
project. Only after they had listed their property, only after they undoubtedly learned
about the significance of the creek diversion to the project, and only now that they
anticipate no further association with this neighborhood, have they elected to write a
statement of support.
I do not know the Edwardes well , but I certainly wish them well, and I do not mean to criticize
them for their input, since, again, neighborhood input is important. However, I do believe that it
is important for the Commission to know the facts surrounding the input.
~4~~ CG:~ Roberts
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