City of Irvine v. County of Orange (2015) 283 Cal.App.4th 526

Why It Matters: The Court of Appeal in City of Irvine v. County of Orange elaborated upon the rules dictating when a supplemental EIR, as opposed to a subsequent EIR, analysis is appropriate, concluding that substance controls over title when deciding if the correct level of analysis was utilized. The court also reaffirmed its previous holdings that in determining the adequacy of responses to comments, this component of the EIR process should not be used as a vehicle for abuse of the process by commenters. In this case, the court concluded that the comments were more litigious than substantive and therefore did not merit a detailed response.

Facts: The court's opinion represents what is likely the conclusion of the City of Irvine's multiple challenges to the proposed expansion of the James A. Musick Jail Facility in the County of Orange, but immediately adjacent to the City's boundaries. The proposed expansion project was originally planned and analyzed in an EIR that was prepared and certified in 1996, but the project languished without moving forward. Finally, after years of inactivity, the County prepared and released a supplement to the EIR in 2012 (the SEIR). The document, labeled a Supplemental EIR, analyzed changes to the proposed project since certification of the original EIR.

The City challenged the SEIR, alleging it was inadequate because (1) it should have been a subsequent EIR, (2) the traffic analysis was inappropriate, (3) the County improperly determined that the loss of agricultural land could not be mitigated, and (4) the County's responses to comments were inadequate.

The Decision: The court upheld the use of a supplemental EIR, explaining that a lead agency has discretion to determine whether project changes constitute only "minor additions or changes" (CEQA Guidelines § 15162) warranting only supplemental analysis. According to the court, the choice is "a discretionary one with the lead agency, thus tested under a reasonableness standard" and, in reviewing such decisions, courts should "look to the substance of the EIR, not its nominal title." Here, the project, the expansion of the jail facility, remained largely the same, and the only significant change to the project was changing the designation of "22 acres from direct agricultural use" to open space. This change, the court held, was properly evaluated using supplemental analysis.

Irvine next argued that the traffic analysis was inadequate because it evaluated traffic at two baselines—interim year (2014) and project completion (2030)—when the true interim year was 2018. Because the interim year baseline was incorrect, Irvine argued that the project description was fatally unstable. The court rejected this contention, concluding that the project description was appropriate and stable. In the court's view, Irvine's argument fundamentally confused the "need for a stable project description with the task of ascertaining the interim impacts of project construction as that construction takes place—on a timeline that cannot be predicted with certainty." Here, the SEIR presented detailed traffic analyses on levels of service at intersections for what was, substantively, a year reflecting existing conditions. Any discrepancies "are functions of delays in the project, and those relate to traffic—by definition a fluid condition—and not the project itself." In any case, the court concluded that any failure to update the traffic analysis was nonprejudicial under Neighbors for Smart Rail v. Exposition Metro Line Construction Authority's ((2013) 57 Cal.4th 439) harmless error test because the public and decision makers were given not just one, but two sets of comparison years (the latter of which predicted slightly less traffic than in 2014).

The issue regarding the loss of agricultural land concerned the SEIR's designation of 22 acres, originally allocated for farming in the 1996 EIR, as open space. With respect to the mitigation of loss of agricultural land, Irvine suggested numerous mitigation measures to lessen the loss of farm land, including conservation easements, transfer of development rights, and a right-to-farm ordinance. The County rejected all the measures. The court found substantial evidence supporting rejection, based primarily on the high cost of land in the County ($2 million per acre) that made agriculture cost-prohibitive.

Finally, Irvine alleged that the SEIR failed to appropriately respond to comments it had submitted. The court reviewed the comments and responses acknowledging that there is a "know-it-when-I-see-it quality to the" adequacy of responses to comments. The court then turned to the comments. The court concluded that "[T]o call all 88 items 'comments' would be a misnomer. Some are mere argumentative assertions, obviously intended to preserve an issue for litigation. Some are argumentative assertions followed by a demand for a change in the EIR. Some are the functional equivalent of one litigant's requests for production of documents to another. Some appear to be classic litigation interrogatories. And some are actually genuine questions. To determine the adequacy of the responses, the court looked to CEQA Guidelines Section 15088, which requires a lead agency to (1) provide written responses to comments on environmental issues and (2) to respond in good faith and detail to significant environmental issues and relevant case law. According to the court, the County complied with this mandate by making responses adequate to the comment and, in any event, Irvine had failed to demonstrate prejudice in the form of some inadequacy in a response. Finally, the court noted that this was a situation that bordered on abuse of the comment-and-response process and that CEQA Guidelines Section 15088 does not permit a project opponent "to use the comment-and-response process to wear down a lead agency, or delay a project, by the simple expedient of filing an onerous series of demands for information and setting up a series of hoops for the lead agency to jump through."

Practice Pointers

  • When deciding whether to conduct supplemental or subsequent analysis, focus on the change to the project and make sure substantial evidence supports your conclusion regardless of what label is proposed to be applied.
  • A baseline traffic analysis that uses an interim year and a project completion year may be valid under Neighbors for Smart Rail so long as it provides the public and decision makers with adequate information given the circumstances.
  • Courts ultimately apply a "know-it-when-I-see-it" standard when determining the adequacy of responses to comments, but will closely scrutinize the form and substance of the comments when evaluating adequacy.