February 8, 2023

Volume XIII, Number 39


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February 06, 2023

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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.

© 2023 Beveridge & Diamond PC National Law Review, Volume VII, Number 139

About this Author

David H. McCray Project & Infrastructure Development Attorney Beveridge & Diamond San Francisco, CA
Of Counsel

David'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 of project decisions and policies.

He counsels clients on regulatory matters and litigation involving the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), climate change, water, wetlands, project mitigation, land use, air, and mobile source air toxics and related health impacts. He also works on cutting-edge technological advances...

Jacob Duginski Beveridge and Diamond Environmental Regulation Attorney

Jake maintains a diverse regulatory and litigation practice providing client-centered, solution-driven advice.

He litigates before California’s trial and appellate courts, advises on regulatory compliance with a focus on California-specific issues, and represents clients in various administrative enforcement settings. His practice philosophy is to provide sound, timely, actionable advice with sensitivity to each individual client’s business needs. 

Clean Air, Climate Change, and CEQA

Clients who operate in California routinely find themselves with...