Project Descriptions in CEQA: Too Much Flexibility Is a Bad Thing

In v. City of Los Angeles, 31 Cal.App.5th 1 (2019), the Second District Court of Appeal provided further guidance regarding how specific or flexible a project description can be when undergoing CEQA analysis. The applicant proposed a mixed use development that included the historic Hollywood Capital Records Tower as well as residences, retail, offices, restaurants, parking, a hotel, and a fitness center. Instead of detailing the location, size, purpose, and appearance of each proposed building, the applicant proposed specific parameters for the site that would allow a mix and match approach for which land uses would go where and what they would look like. Under the project’s development agreement, no additional environmental review would occur once the final configuration was chosen.

Since the applicant had not provided a description of or detail about what exactly it intended to build, the Draft EIR analyzed three different sample scenarios: an illustrative scenario demonstrating one potential development; a scenario that maximized the amount of housing that could be built; and a scenario that maximized the amount of commercial use. The City of Los Angeles and the applicant argued that by analyzing the environmental impacts of these scenarios, the EIR analyzed and mitigated the greatest possible environmental impacts that could be caused by the proposed project and thus complied with CEQA. 

The court disagreed. It noted that CEQA’s role is not just to document and mitigate for the maximum potential impacts of a project, but to provide relevant information to enable informed decision making and public participation.

Here, the court found the project’s description did not provide sufficient specificity to enable the public to provide meaningful comments. Despite having detailed development regulations, established height zones, and a maximum floor space ratio, the court found the description insufficient because there was no sense of what the project would ultimately look like except for the renovation of two historic buildings. The project failed to provide any description of the location, size, mass, number, or appearance of any other buildings. As a result, the court found the EIR did not provide the required stable and finite project description needed for informed decision making and public participation.  

This isn’t the first time the courts have weighed in on what level of certainty is needed for a legally adequate project description. Washoe Meadows Community v. Department of Parks & Recreation, 17 Cal.App.5th 277 (2017) involved a river restoration project that included moving an adjacent golf course to improve the integrity of the river. The project description included five widely varying options for the project, without identifying a preferred alternative until the Final EIR. The court found this approach inadequate because there was no stable, consistent, and finite project description for the public to comment on. By providing a wide range of possible projects, rather than identifying one specific proposed project, the public could not focus its comments on the project ultimately approved. As in Stopthemillenium, the court found the public needed to know from the EIR circulated for comment what specifically the project would look like in order to  meaningfully participate in the public process.

A situation akin to Stopthemillenium arose in South of Market Community Action Network v. City and County of San Francisco, 33 Cal.App.5th 321 (2019), but led to the opposite result. There, the developer presented two alternative proposals for the project—an office scheme and a residential scheme. Petitioners argued that this description represented multiple possible projects, not a finite description of a single project. The court, however, disagreed and focused on the similarities of the two options. Both included substantially the same overall square footage, with a varying mix of office versus residential uses. Both schemes had similar massing and land uses. They both included new ground floor spaces, retention of two existing buildings, demolition of all other existing buildings, and construction of four new buildings with specified heights.

The court found that the project description complied with CEQA because it provided a clear description of the proposed uses and explained the key differences between the schemes. Additionally, the EIR’s analysis appropriately focused on the impacts from the office scheme because it had the larger development envelope and more intensive uses. The court emphasized that the analysis in the EIR was not curtailed, misleading, or inconsistent and fully disclosed the maximum scope of the project.  The outcome in this case was different from that in  Stopthemillenium because the EIR in South of Market analyzed only two very similar and specific options for the project, whereas the development options for the Stopthemillenuim project were numerous and undefined. 

The court in Stopthemillenium also distinguished the project in that case from the project in Citizens for a Sustainable Treasure Island v. City and County of San Francisco, 227 Cal.App.4th 1036 (2014). There, the proposed project involved construction of a mixed use development on a former naval base. The project description detailed parts of the project, but left the final design and location of other elements until after project approval. The court found the project description legally adequate even though the EIR did not pin down the exact location of some of the proposed buildings for the project. The location of the buildings, however, remained uncertain due to the contamination of the soil from former Navy activity. Determining the location of the remaining buildings depended on the extent of the contamination. Additionally, the EIR explained that further environmental review would occur for the ultimate siting and design of the buildings. Due to these factors, the court found that the facts in Treasure Island were fundamentally different from those in Stopthemillenium.    

So what can we learn from these cases? Agencies and developers often want flexibility when designing and approving infill mixed-use developments so they can respond to future market conditions. However, Stopthemillenium shows that there are limits to how flexible a project description can be under CEQA. In order to comply with CEQA, the public and decisionmakers need to know what ultimately will be constructed and what it will look like, at least generally. While the project can include a limited number of options, the EIR needs to describe those options in detail and disclose the greatest environmental impacts that could result. Where uncertainty remains about the future design or uses, project applicants must explain why they cannot be determined now and commit to future environmental review when final plans are in place. Agencies that follow these guidelines will reduce the likelihood that they will lose CEQA lawsuits due to inadequate project descriptions.

For more information, contact SMW attorney Tamara Galanter.

By Tamara Galanter and Benjamin Gonzalez

To print, click here.