It's OK To Use A CEQA Exemption Tiering Off Of A General Plan EIR

It’s not unusual for neighboring residents who dislike a project to use the California Environmental Quality Act process as a way to try to stop the problem no matter what is environmental impact. And it’s not unusual for elected officials to give angry neighbors what they want, again by using CEQA. It is a bit unusual for an appellate court to call everybody out, however. And in a ruling that could have widespread consequences for tiering of environmental impact reports, that’s just what the Fourth District Court of Appeal has done in a case involving a proposed recycling plant. The opinion is important because it allows a exemption to tier off of a programmatic environmental impact report. Located in unincorporated territory near the City of Escondido, the so-called North County Environmental Resources (NCER) project would operate 12 hours a day and surrounding residents are understandably opposed to it. But in 2020, San Diego County’s planning staff concluded that all the project’s potentially significant environmental impacts were dealt with in the programmatic EIR prepared for the update of the county’s General Plan in 2011 and, as a result, recommended that the project exempt under §15813 of the CEQA Guidelines unless there are project-specific significant impacts “peculiar” to the project or the site. The county’s zoning administrator agreed as did the planning commission. But neighboring residents appealed the decision to the San Diego County Board of Supervisors, which reversed the exemption decision and ordered an EIR to be prepared for the project. But the board had a hard time coming up with specific “peculiar” impacts, instead ordering the EIR based on general environmental concerns. The recycling center developer sued and won at the trial court level. But the appellate court used strong language to reverse. “We have not identified substantial evidence in the record to support the Board of Supervisors’ findings that the NCER Project would result in “peculiar” impacts in the areas of aesthetics, noise, traffic, GHG emissions, and air quality, within the meaning of Guidelines section 15183, subdivisions (b)(1) and (f).,” wrote Justice Terry O’Rourke for a unanimous three-judge panel. The case is especially important because it ties together programmatic EIR tiering with an exemption in a subsequent project. CEQA Guidelines §15813 states that lead agencies “shall not” require additional environmental review for a project that is consistent with current general plan policies “except as might be necessary to examine whether there are project-specific significant effects which are peculiar to the project or its site – essentially meaning that an additional EIR does not need to be prepared if no peculiar effects are likely. But neither the law or the guidelines that a lead agency can use §15813 as the basis for an exemption. Unclear as to whether site-specific environmental impacts might result from the NCER project, the county asked the developer of the project to provide a series of additional studies. After receiving those studies, the county staff concluded (in a 106-page “Statement of Reasons for Exemption from Additional Environmental Review and §15183 Checklist Pursuant to CEQA Guidelines §15183” (available here) that an exemption was warranted. The appellate court accepted the argument, laying down significant language explaining how §15183 can be used to support an exemption. Before the appellate court, San Diego County’s lawyers – put in a difficult position because they had to defend the Board of Supervisors’ decision even though county staff and planning commission disagreed – argued that the “fair argument” test typically applied to whether an EIR should be prepared must also be used to review not only a determination that an exemption is appropriate but also a determination that an exemption should be denied, as was the case in front of the Board of Supervisors. The court did not buy this argument, saying: “We find no meaningful distinction between an agency decision approving a CEQA exemption, and a decision denying an exemption, that would warrant a differing standard of review. Guidelines §15183 is simply a regulation that effectuates the statutory exemption in §15183, and it therefore functions as a CEQA statutory exemption.” The county sought to invoke the 1995 case of Gentry v. City of Murrieta, 36 Cal.App.4th 1359, but the court instead relied on the discussion of §15183 in the recent case of Lucas v. City of Pomona, 92 Cal.App.5th 508, a cannabis case in which the court upheld an exemption based on comformance with the city’s adopted general plan. The court also spent considerable time on the question of whether the testimony of nearby residents created the need for an EIR in the case of the recycling center. For example, one resident testified that construction of the project would force him “to listen to loud crushing machines all hours of the day.” In very clear language the court distinguished between the potential experience of individuals and the “peculiar” impacts of a project required for an EIR under §15183. “Although these comments discuss ways in which individuals and the broader community may be personally impacted by the NCER Project, they altogether fail to address whether the purported project-specific impacts will be substantially mitigated by uniform policies in the PEIR,” Justice O’Rourke wrote. He added: “These residents may very well be able to hear, see, or otherwise perceive some aspects of the NCER Project, but this is not the threshold for determining the applicability of Guidelines section 15183. Further, the County does not suggest that any of the commenters, whether individuals commenting at the public hearings, or representatives of nearby municipalities and homeowners associations, were experts or qualified to contribute expert testimony.” The Case:Hilltop Group v. County of San Diego, No. D081124 (filed February 16, 2024). The Lawyers: For Hilltop Group (developer of recycling plant): David P. Hubbard , Gatzke Dillon & Ballance, dhubbard@gdandb.com For San Diego County: Joshua M. Heinlein, Deputy County Counsel, joshua.heinlein@sdcounty.ca.gov

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