This case Is useful from a EIR consultant’s perspective because it is an important “piecemealing” or “project splitting” case.
In this case the Plaintiff, Banning Ranch Conservancy contended the EIR wrongly defined the project to exclude the pending residential and commercial development on an adjacent property, Banning Ranch. It claimed the park and development were one interrelated project to which the City gave improper “piecemeal” review. In this case the appellate court disagreed, reiterating the piecmealing test in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390 (Laurel Heights) and then going on to harmonize piecemealing case law around three key concepts.
Laurel Heights Piecemealing Test – According to Laurel Heights an EIR must include an analysis of the environmental effects of future expansion or other action if:
- it is a reasonably foreseeable consequence of the initial project; and
- the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.” (see Laurel Heights, supra, 47 Cal.3d at p. 396.)
Banning Ranch Piecemealing Test Additions – The appellate court in the instant case then went on to addresses the question of what is a reasonably foreseeable “consequence” of the project, and to articulate the following three principals for determining if there is improper piecemealing:
- “First, there may be improper piecemealing when the purpose of the reviewed project is to be the first step toward future development.”
- “And there may be improper piecemealing when the reviewed project legally compels or practically presumes completion of another action.”
- “On the other hand, two projects may properly undergo separate environmental review (i.e., no piecemealing) when the projects have different proponents, serve different purposes, or can be implemented independently.”
In the instant case the appellate court found there was no piecemealing because: (1) “the park project and the NBR project have “different project proponents””; (2) they “serve different purposes, one provides recreational opportunities for existing residents, the other develops a new neighborhood”; (3) have significant independent or local utility and could be implemented independently of each other since “the City can and will build the park regardless of any development on Banning Ranch”; and (4) “(f)inally, and importantly, the City’s general plan calls for construction of Bluff Road or its equivalent and City intends to build a north and south road from West Coast Highway to 19th Street whether it acquires Banning Ranch to preserve it as open space or annexes Banning Ranch as part of the NBR project.”
In addition to the piecemealing argument, plaintiff asserted the EIR insufficiently analyzed: (1) the park’s cumulative traffic impact; (2) growth-inducing impact: (3) cumulative biological impact,; (4) impact on the California gnatcatcher’s habitat; and (5) consistency with the California Coastal Act of 1976. In this case the court found the analyses acceptable:
Cumulative Traffic Impact – The court noted: “‘We review an agency’s decision regarding the inclusion of information in the cumulative impacts analysis under an abuse of discretion standard. “The primary determination is whether it was reasonable and practical to include the projects and whether, without their inclusion, the severity and significance of the cumulative impacts were reflected adequately.”‘” (Long Beach, supra, 176 Cal.App.4th at p. 906.). The court found that the “EIR met cumulative impact requirement by referencing general plan that “necessarily addressed the cumulative impacts of buildout to the maximum possible densities allowed by those plans”.”
Growth-inducing impact – The court noted that the EIR evaluated: “”[t]he potential growth-inducing effects of the Project . . . in three ways: 1. Would the Project have an effect on undeveloped land that may not be designated on any general plan for urban development, but would nonetheless experience increased growth pressure due to the presence of the Project? 2. Would the Project have an effect by removing constraints, thereby facilitating the construction of previously approved projects? 3. Would the Project influence redevelopment of areas at a higher intensity than currently exists?” and concluded the park “would serve an identified need” by filling a “citywide park deficiency,” “rather than induce population growth and/or new development in the City . . . .” It noted the park was “compatible with adjacent land uses”; “consistent [with] the City’s General Plan, Coastal Land Use Plan, and Zoning designations for the site”; and would not “induce substantial new unforeseeable development in the area.””
The court also noted the following other considerations supporting the EIR’s growth-inducing impact analysis:
First, the EIR noted the park’s access road is consistent with the general plan. (See Clover, supra, 197 Cal.App.4th at p. 228 [“growth has already been analyzed in the City’s general plan EIR,” which the project EIR incorporated “when it referenced the reader” to it]; Friends of the Eel River v. Sonoma County Water Agency (2003) 108 Cal.App.4th 859, 877 [acceptable for agency, “[i]n considering the growth inducing impacts of the Project [to] incorporate[] the discussion contained in . . . general plan EIR’s”].) Second, any impact on growth is “indirect” because the access road “removes only one of potentially numerous obstacles and approval requirements for developing” the NBR project. (Clover, at p. 228.) Finally, the NBR project is undergoing its own environmental review. (Id. at p. 227 [“it is relevant . . . that future effects will themselves require analysis under CEQA”].)
The court also noted that:
“Under CEQA, a public agency is not always ‘required to make a detailed analysis of the impacts of a project on [future] housing and growth.’ [Citation.] ‘Nothing in the [CEQA] Guidelines, or in the cases, requires more than a general analysis of projected growth. The detail required in any particular case necessarily depends on a multitude of factors, including, but not limited to, the nature of the project, the directness or indirectness of the contemplated impact and the ability to forecast the actual effects the project will have on the physical environment.’ [Citation.] [¶] ‘In addition, it is relevant, although by no means determinative, that future effects will themselves require analysis under CEQA.'” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 388; accord Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200, 227 (Clover).)
Cumulative biological impact – with the clarifications included in the FEIR provided in response to comments, the EIR adequately addressed the plaintiff’s criticism.
Impact on the California gnatcatcher’s habitat – the conclusions were supported by evidence.
Consistency with the California Coastal Act of 1976 – the court concluded that the ESHA and wetlands analyses were adequate and that there “are no inconsistencies at the moment; the EIR adequately flagged potential inconsistencies and addressed them in advance through proposed mitigation.”