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San Mateo Gardens Teaches College District a Lesson on Picking Thorny Subsequent Review Procedure

The California Supreme Court recently addressed an important California Environmental Quality Act (CEQA) issue: Who decides whether CEQA’s subsequent review provisions are applicable when there are changes to an adopted project? Subsequent review provisions include a subsequent Environmental Impact Report (EIR) or Negative Declaration (ND), a supplemental EIR, or an addendum to an EIR or ND.  When a project that has been reviewed and finalized under CEQA is altered, what type of review process under CEQA is required, if any?  As we said before on Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al., (2016) 1 Cal.5th 937 (Friends of the College), the Court determined that the lead agency makes this determination.  The question that the lead agency should be analyzing is whether the original document “retains some informational value” – if it does, then CEQA’s subsequent review procedures apply.  Should the lead agency’s decision be challenged, then the Court must decide whether “substantial evidence” supports the lead agency’s conclusion.

The First District Court of Appeal thus took up applying this standard on remand. In Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al., (2017 WL *1829176) (San Mateo Gardens), the Court of Appeal upheld the San Mateo County Community College District’s determination that it could proceed under CEQA’s subsequent review provisions.  The District had previously analyzed its project, including the demolition or renovation of some buildings on a San Mateo college campus, through a mitigated negative declaration (MND).  After a failure to obtain funding for renovations to the “Building 20 complex,” the District altered the project to include demolition of Building 20 and its associated gardens (the centerpiece of the dispute) and to renovate two other buildings that were previously slated for demolition.  The District determined that these changes would “not result in a new or substantially more severe impact than disclosed” in the original MND, and thus proceeded to adopt the alteration through a subsequent review procedure document called an addendum. 

The Court of Appeal held that the District’s decisions to proceed by CEQA’s subsequent review procedures was supported by substantial evidence. The relevant changes only altered the treatment of three buildings while leaving alone plans to demolish 14 others with attendant mitigation measures. 

That the District could proceed by CEQA’s subsequent review procedures, however, only answers the first question. The subsidiary, and more “critical” issue, is “to determine whether the agency has properly determined how to comply with its obligations under those provisions.” Friends of the College, 1 Cal.5th at 953.  In other words, which subsequent review procedure is correct to use.  The Court of Appeal held that a more rigorous standard of review is applicable at this second step when a project is originally accompanied by a negative declaration than when an approved project is originally analyzed through an EIR.  This more rigorous standard looks to whether the negative declaration will require a “major revision.”  A major revision is required when “there is ‘substantial evidence that the changes to a project for which a negative declaration was previously approved might have a significant environmental impact not previously considered in connection with the project as originally approved.’ ” San Mateo Gardens, 2017 WL *1829176 (quoting Friends of the College, 1 Cal.5th at 959).  If the project was previously analyzed through an EIR, however, the agency may proceed without a subsequent EIR so long as substantial evidence supports the agency’s conclusion that no major revisions to the original document are necessary. 

It is at this critical second step that the District failed. The Court of Appeal determined that there was substantial evidence that the altered project might have a significant “aesthetic impact”, which is a cognizable environmental impact under CEQA.  The “Building 20 complex” demolition would include removal of gardens which were of particular value to the college community for aesthetic purposes.  The Court of Appeal therefore concluded that the District violated CEQA in analyzing the altered project through an addendum when a subsequent EIR or MND was necessary. 

The takeaway from this case is that lead agencies will have to be especially keen on determining the impact of project changes when the original project is adopted by a negative declaration. While the original document may retain some residual “informational value,” and thus allow CEQA’s subsequent review procedures, it may be difficult to show that project changes do not require some type of further environmental review. It is the lead agencyiess responsibility to determine the need for and type of further review, but that decision must be based upon substantial evidence.

© 2020 Beveridge & Diamond PC


About this Author

David McCray, Infrastructure development, Beveridge and Diamond Law Firm
Of Counsel

David McCray’s practice focuses on major project and infrastructure development, including environmental reviews, permitting and approvals from a wide range of federal and state natural resources agencies, and litigation defense of project decisions and policies.  He counsels clients on regulatory matters and litigation regarding issues such as the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), climate change, water, wetlands, project mitigation, and mobile source air toxics and related health impacts.

Jacob P. Duginski, Beveridge Diamond, Environmental Regulation Attorney, Manufacturing Industry Lawyer

Jacob Duginski works with clients nationwide across industrial sectors on a variety of environmental litigation and regulatory matters.

While at Lewis & Clark Law School, Jacob served as Associate Editor of Environmental Law (Law Review), and as a case summary author for Ninth Circuit Environmental Review, writing and editing summaries of cutting-edge environmental cases in the Ninth Circuit which were published in Environmental Law. Jacob competed in the National Environmental Law Moot Court Competition at Pace Law School in 2015 as part of Lewis & Clark’s semi-finalist team.  

Jacob interned at Trustees for Alaska, where he drafted legal memoranda requiring synthesis of statutory interpretation and case law under Alaska Statutes and various federal natural resource statutory regimes, and also at Earthrise Environmental Law Litigation Clinic, where he conducted research under the Clean Water Act and the United States Army Corps of Engineers Nationwide Permit Program.

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