Save Lafayette v. City of Lafayette

Filed 12/16/22 (unmodified opn. attached)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SAVE LAFAYETTE,

Plaintiff and Appellant,

A164394

v.

(Contra Costa County

CITY OF LAFAYETTE et al.,

Super. Ct. No. MSN-20-1413)

Defendants and Respondents;

O’BRIEN LAND COMPANY LLC,

et al.,

Real Parties in Interest and

Respondents.

THE COURT:

Respondent’s petition for correction of the opinion, filed December 2,

2022, is granted. Appellant’s petition for rehearing, filed December 15, 2022,

is denied.

It is ordered that the opinion filed November 30, 2022, be modified as

follows:

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,

this opinion is certified for publication with the exception of part II (items 2–

5 of this).



Tucher, P.J., Fujisaki, J., Petrou, J. participated in the decision.

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1. On page 14 of the opinion, the words “Save Livermore” in the

first sentence of the first full paragraph shall be changed to “Save Lafayette.”

2. On page 18 of the opinion, the first sentence of the final

paragraph will be changed to read:

When some changes or additions to a previously certified EIR are

necessary but none of the conditions calling for a subsequent EIR has

occurred, the agency must prepare an addendum.

3. On page 28 of the opinion, the following footnote shall be inserted

at the end of the first full paragraph, after “(§ 21166.)”:

Save Lafayette argues in its petition for rehearing that an SEIR

is necessary because Dr. Smallwood’s proposed mitigation measures for

window collisions qualify as “[m]itigation measures or alternatives

which are considerably different from those analyzed in the previous

EIR [that] would substantially reduce one or more significant effects on

the environment,” which the project proponent did not adopt.

(Guidelines, § 15162, subd. (a)(3)(D).) Save Lafayette takes the quoted

language out of context. Section 15162, subdivision (a) of the

Guidelines provides that no SEIR is necessary unless there are

substantial changes to the project or its circumstances or unless “[n]ew

information of substantial importance, which was not known and could

not have been known with the exercise of reasonable diligence at the time

the previous EIR was certified as complete,” shows one of several

circumstances. (Italics added.) The presence of considerably different

mitigation measures that would reduce one or more significant

environmental effects is one of those circumstances, but the proposed

mitigation measures require preparation of an SEIR only if they could

not, with the exercise of reasonable diligence, have been known when

the EIR was certified. (Id., subd. (a)(3)(D).)

4. On page 31 of the opinion, the quote at the top of the page shall

be changed to read:

“ ‘impair implementation or physically interfere with an adopted

emergency response plan or emergency evacuation plan.’ ”

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5. On page 36 of the opinion, the acronym for Citizens for

Responsible Equitable Environmental Development v. City of San Diego

(2011) 196 Cal.App.4th 515, 531–532 should be changed to (CREED) in both

locations.

There is no change in the Judgment.

Dated: December 16, 2022 ____TUCHER, P.J._________

TUCHER, P.J.

Save Lafayette v. City of Lafayette et al. (A164394)

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Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Barry Baskin

Counsel: Louzeau Drury, Richard Drury, Rebecca Davis, Victoria

Yundt; and Lason, Scott Sommer for Plaintiff and

Appellant

Coblentz, Patch, Duffy & Bass, Jonathan R. Bass,

Katharine Van Dusen, and Robert B. Hodil for

Defendants and Respondents

Miller Starr Regalia, Arthur F. Coon, Bryan W. Wenter,

Matthew C. Henderson for Real Party in Interest.

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Filed 11/30/22 (unmodified version)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SAVE LAFAYETTE,

Plaintiff and Appellant,

A164394

v.

(Contra Costa County

CITY OF LAFAYETTE et al.,

Super. Ct. No. MSN-20-1413)

Defendants and Respondents;

O’BRIEN LAND COMPANY, LLC,

et al.,

Real Parties in Interest and

Respondents.

O’Brien Land Company, LLC (the applicant or O’Brien) completed an

application for a housing development project in 2011, and the City of

Lafayette (the City) certified an environmental impact report (EIR) in 2013.

Before the project was approved, the applicant and the City agreed to

suspend processing of the original project while the applicant pursued an

alternative, smaller proposal. In 2018, when it proved impossible to proceed

with the alternative project, O’Brien and the City revived the original

proposal, with some modifications. The City finally approved the resumed

project in 2020, after preparation of an addendum to the original EIR.

*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110,

this opinion is certified for publication with the exception of part II.

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A citizen’s group calling itself Save Lafayette petitioned for a writ of

mandate, claiming that the project conflicts with the City’s general plan as it

existed when the project was revived in 2018, that the EIR is inadequate as

an informational document, and that a supplemental EIR (SEIR) is required.

Save Lafayette appeals the trial court’s denial of its petition.1 In the

published portion of this opinion, we conclude that, despite the lengthy delay

between certification of the EIR and project approval, the City properly

applied the general plan standards in effect when the application was

deemed complete. In the unpublished portion, we consider and reject all of

Save Lafayette’s challenges to the EIR. We therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

O’Brien submitted an application in March 2011 for approval of the

Terraces of Lafayette Project (the apartment project or Terraces of

Lafayette), a 315-unit residential development. The City notified O’Brien

that its application was deemed complete on July 5, 2011.

As proposed, the apartment project included 14 residential buildings, a

clubhouse, a leasing office, parking in carports and garages, and internal

roadways. Its location was a 22.27-acre site in Lafayette, bounded by

Pleasant Hill Road to the east, State Highway 24 to the south, and Deer Hill

Road to the north and west.

At the time the application was deemed complete, the project site was

designated Administrative/Professional/Multi-Family Residential on the

City’s general-plan land-use map and was zoned Administrative/Professional

1 The petition named the City, the Lafayette City Council, and the

Lafayette Planning Commission as respondents, and O’Brien Land Company,

LLC and Anna Maria Dettmer as trustee for the AMD Family Trust as real

parties in interest. We shall refer to these parties collectively as respondents.

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Office in the City’s municipal code, a zoning that allowed multi-family

developments with a land use permit.

An EIR was prepared for the apartment project, and the City certified

the EIR on August 12, 2013. However, the City’s Design Review Commission

recommended that the Planning Commission deny the application for a land

use permit.

The applicant and City staff then began to consider a lower-density

alternative to the apartment project, consisting of 44 or 45 single-family

detached homes, public parkland, and other amenities (the project

alternative). As part of their discussions, the applicant and the City entered

into an “Alternative Process Agreement” (the process agreement) on January

22, 2014.

The expressed purpose of the process agreement was to establish a

process for considering the project alternative; to “suspend” the apartment

project in the meantime; and to “preserve” all of the parties’ “rights and

defenses . . . with regard to the Apartment Project” until the City made a

determination on the project alternative. Specifically, the parties agreed that

the City would “suspend the processing of the Apartment Project pending

[the] City’s processing of the Project Alternative,” and that if the City Council

did not approve the project alternative, or if an appeal, challenge, or

referendum was not resolved in a manner acceptable to the applicant, the

applicant could terminate the process agreement and the City’s processing of

the apartment project application would immediately resume, with the

parties situated as they were before the application was suspended. The

process agreement recited that, “because the Parties have mutually agreed to

toll the processing of the Apartment Project, [the] City has not failed to act to

approve or disapprove the Apartment Project under the Permit Streamlining

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Act, and the Apartment Project shall not be deemed approved under the

Permit Streamlining Act.”

The City certified an SEIR for, and approved, the project alternative

(known as the “Homes at Deer Hill”) on August 10, 2015. It also adopted a

general plan amendment changing the project site’s land use designation

from Administrative Professional Office (APO), which allows 35 dwelling

units per acre, to Low Density Single Family Residential (SFR-LD), which

allows only two units per acre. The City then adopted ordinance No. 641,

changing the zoning designation of the site from APO to Single Family

Residential (R-20).

Save Lafayette filed a petition for writ of administrative mandamus

(Code Civ. Proc., § 1094.5) on September 8, 2015, challenging approval of the

Homes at Deer Hill based on alleged violations of the California

Environmental Quality Act (Pub. Res. Code, § 21000 et seq. (CEQA)). In

January 2016, the parties entered into a settlement agreement and Save

Lafayette dismissed the action with prejudice. Acting under permits, the

applicants then demolished the buildings and structures on the project site

and removed 48 of the 117 trees on the site.

A referendum petition challenging the City Council’s approval of the

zoning ordinance and requesting that the ordinance be either repealed or

submitted to a vote was soon filed. The City Council declined to take either

course, so Save Lafayette filed a petition for writ of mandate. The trial court

denied the petition but on February 21, 2018, our colleagues in Division Four

of this court reversed, concluding the City could not properly keep the

referendum off the ballot. (Save Lafayette v. City of Lafayette (2018) 20

Cal.App.5th 657, 662, 671–672.) On June 5, 2018, the zoning ordinance

appeared on the ballot and a majority of Lafayette voters rejected it. The

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next month, the City Council adopted Ordinance No. 668, zoning the site

Single-family Residential District-65 (R-65) (i.e., requiring lot sizes more

than three times larger than those the voters had rejected).

On June 15, 2018, O’Brien submitted a letter notifying the City that it

was terminating the process agreement and withdrawing the project

alternative applications, and asking the City to resume processing the

apartment project application. As resumed, the project (the resumed project)

differed somewhat from the apartment project originally proposed. Pertinent

here, the resumed project would preserve 10 fewer trees than the original

project (16 rather than 26) and would plant approximately 68 more new trees

than the 700 originally planned.

The applicant’s consultant, FirstCarbon Solutions, prepared an

addendum to the original EIR for the resumed project in 2018. (14 Cal. Code

Regs., § 15164.) The City hired another consultant, Impact Sciences, to

review FirstCarbon’s addendum. Impact Sciences concluded there had been

no substantial changes in the project or its circumstances requiring major

revisions to the certified 2013 EIR, so that an addendum rather than an

SEIR was appropriate. However, it concluded further analysis was

necessary. Impact Sciences then prepared a new addendum (the addendum),

which was released in May 2020 and revised in June 2020.

The City certified the addendum as revised, and approved the renewed

project on August 24, 2020. In so doing, it concluded the project qualified as

a “ ‘housing development project’ ‘for very low, low-, or moderate-income

households’ ” under the Housing Accountability Act. (Gov. Code, § 65589.5

(HAA); see id., subds. (d) & (h)(3).) As a result, the City found, the HAA

preempted conflicting requirements of the Lafayette Municipal Code, and the

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project was exempt from certain findings the City normally required in order

to obtain the necessary permits.

Save Lafayette filed its petition for writ of mandate on September 23,

2020, alleging that, in violation of CEQA, the 2013 EIR did not adequately

analyze a number of environmental impacts—including the presence of

special-status species, the risk of wildfire, and the destruction of mature

trees—and that an SEIR was necessary. It also alleged the project was

inconsistent with applicable general plan and zoning requirements.

The trial court denied the petition. As to Save Lafayette’s contentions

under CEQA, the court ruled in its favor on two preliminary matters—

concluding Save Lafayette was entitled to challenge the 2013 certification of

the EIR, and that the dismissal of the 2015 lawsuit did not act as res judicata

to bar Save Lafayette from challenging the 2013 EIR. But the court ruled

against Save Lafayette on the merits, rejecting all of its challenges to the

adequacy of the EIR. The court also found that, despite the delay while the

parties pursued the smaller Homes at Deer Hill project, respondents were

entitled under the HAA to the benefit of the zoning in place when the

application for the apartment project was deemed complete in 2011.

The trial court entered judgment in respondents’ favor on January 4,

2022. This timely appeal ensued.

DISCUSSION

Before considering the CEQA challenge, we turn our attention to the

argument that the City of Lafayette should not have approved the resumed

project because the site is now zoned for single-family homes on large lots.

I. General Plan and Zoning Consistency

Save Lafayette contends the project as approved is inconsistent with

the site’s current general-plan land-use designation and with its zoning.

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Save Lafayette argues the project is governed by the standards in effect in

2018, when the applicant terminated the process agreement and asked the

City to resume processing its application, not by the standards that existed in

2011, when its application was deemed complete. This argument requires us

to consider the interplay among the laws governing general plans and zoning,

the HAA, and the Permit Streamlining Act. (Gov. Code, § 65920 et seq.

(PSA).)

A. Legal Background

Each city and county in California must have a general plan for its

physical development (Gov. Code, § 65300) and local land use decisions,

including zoning ordinances, must be consistent with it. (Id., § 65860,

subd. (a); Fonseca v. City of Gilroy (2007) 148 Cal.App.4th 1174, 1182.) In

turn, land use permits must be consistent with a site’s zoning. (Land Waste

Management v. Contra Costa County Bd. of Supervisors (1990) 222

Cal.App.3d 950, 959.)

In the HAA, our Legislature has established limited exceptions to these

general rules. The HAA was enacted in 1982 in an effort to address the

state’s shortfall in building housing approximating regional needs, and the

Legislature has amended the law repeatedly in an increasing effort to compel

cities and counties to approve more housing. (California Renters Legal

Advocacy & Education Fund v. City of San Mateo (2021) 68 Cal.App.5th 820,

834–835 (California Renters).)

The HAA provides that when a proposed housing development complies

with objective general-plan, zoning, and subdivision standards and criteria in

effect at the time the application is deemed complete, the local agency may

disapprove the project or require lower density only if it finds the

development would have specific adverse effects on public health or safety

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that cannot feasibly be mitigated. (California Renters, supra, 68 Cal.App.5th

at p. 835; Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066,

1074–1075; Gov. Code, § 65589.5, subd. (j)(1).) Of particular relevance here,

a local agency may not disapprove (or approve in a manner that renders

infeasible) a housing development project for very low-, low-, or moderate-

income households unless it finds, inter alia, that the project is inconsistent

with the zoning ordinance and the general-plan land-use designation existing

when the application was deemed complete. (Gov. Code, § 65589.5,

subd. (d)(5).)2 Thus, even if a project is inconsistent with the current general

plan or zoning standards, under the HAA it may need to be approved if it was

2 Subdivision (d)(5) of section 65589.5 currently provides, as one of the

permissible grounds for disapproving or reducing the density of a housing

development project for very low-, low- or moderate-income households, that

the project “is inconsistent with both the jurisdiction’s zoning ordinance and

general plan land use designation as specified in any element of the general

plan as it existed on the date the application was deemed complete, and the

jurisdiction has adopted a revised housing element in accordance with

Section 65588 that is in substantial compliance with this article. For

purposes of this section, a change to the zoning ordinance or general plan

land use designation subsequent to the date the application was deemed

complete shall not constitute a valid basis to disapprove or condition approval

of the housing development project or emergency shelter.” The final sentence

of this provision was added effective January 1, 2018. (Stats. 2017, ch. 368,

§ 1 (Sen. Bill 167); Stats. 2017, ch. 373, §1 (Assem. Bill 678).) Save Lafayette

argues that the final sentence of this provision cannot be applied

retroactively. We question whether applying the full provision to a project

approval in 2020 constitutes retroactive application of the 2018 amendment

(see Walnut Creek Police Officers’ Assoc. v. City of Walnut Creek (2019) 33

Cal.App.5th 940; Citizens for Positive Growth & Preservation v. City of

Sacramento (2019) 43 Cal.App.5th 609, 626), but in any event, we need not

consider this contention because the added sentence only reinforces the rule

already set forth in the statute: a project must be judged by the planning and

zoning standards that existed when the application was deemed complete,

not by any later changes to those standards.

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consistent with standards existing when the application was deemed

complete.

Finally, the Permit Streamlining Act addresses processes for

permitting housing and other development projects. (See Gov. Code, § 65920

et seq.) At least two aspects of the PSA are relevant here. First, the statute

requires public agencies to specify up front what information an applicant for

a development project must supply, and then the agency must review

applications for completeness within 30 days of receiving them. (Gov. Code,

§§ 65940, subd. (a)(1), 65943, subd. (a).) The PSA requires an agency to

notify an applicant what information, if any, is missing, and then the process

iterates if the applicant provides further information. “Upon receipt of any

resubmittal of the application, a new 30-day period shall begin, during which

the public agency shall determine the completeness of the application.” (Gov.

Code, § 65943, subd. (a).) If the agency does not determine in writing within

30 days whether an application for a development project is complete, “the

application shall be deemed complete.” (Ibid.) And whether an application is

complete for purposes of the PSA is also relevant under the HAA, which

incorporates by reference the PSA’s definition of a complete application. (See

Gov. Code, § 65589.5, subd. (h)(5).)

Once a development application is deemed complete, the PSA

establishes deadlines for a public agency to approve or disapprove it,

deadlines that vary with the extent of environmental review required. (Gov.

Code, § 65950, subd. (a).) The longest timeline, which appears to apply here,

runs 180 days from the time an EIR is certified. (Gov. Code, §§ 65950,

subd. (a)(1).) The PSA allows only a single 90-day extension of that period.

(Gov. Code, § 65957.) With exceptions not at issue here, “[n]o other

extension, continuance, or waiver of these time limits either by the project

9

applicant or the lead agency shall be permitted,” and “[f]ailure of the lead

agency to act within these time limits may result in the project being deemed

approved pursuant to the provisions of subdivision (b) of [Government Code]

Section 65956,” which establishes requirements for public notice. (Gov. Code,

§ 65957.) That is, if the agency fails to act within the statutory period and

the applicant provides timely notice (enabling the agency to cure), the project

may proceed without agency action, as if it had been approved. (Gov. Code,

§§ 65956, subd. (b), 65957; Linovitz Capo Shores LLC v. California Coastal

Com. (2021) 65 Cal.App.5th 1106, 1120.) The goal of the PSA is “to relieve

permit applicants from protracted and unjustified delays in processing their

permit applications.” (Riverwatch v. County of San Diego (1999) 76

Cal.App.4th 1428, 1438 (Riverwatch).)

The Legislature added the prohibition on waiving the PSA’s strict time

limits in 1998, in response to our high court’s decision in Bickel v. City of

Piedmont (1997) 16 Cal.4th 1040, 1043, 1048–1052, which had held that

applicants could waive the PSA’s time limits. The applicants in Bickel sought

to remodel their house and encountered opposition. After a number of

continuances over the course of almost two years—continuances the

applicants either sought or agreed to—the planning commission denied the

application. The applicants then claimed their application was deemed

approved by operation of law under the PSA’s time limits, a contention the

city council and superior court rejected. (Id. at pp. 1044–1046.) On review,

the high court considered whether an applicant could waive the PSA’s time

limits, and answered in the affirmative. It reasoned that the time limits

primarily benefit the applicant (id. at pp. 1048–1049) and that nothing in the

PSA’s language “prohibits an applicant from voluntarily relinquishing, for

the applicant’s own benefit . . ., the right to an agency decision within the

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statutory time limits” (id. at p. 1052). Upholding the trial court’s finding that

the applicants had waived the PSA’s time limits, the high court rejected the

argument that the project was deemed approved. (Id. at pp. 1052–1054.)

The following year, the Legislature responded by amending

Government Code section 65957 to specify that the PSA’s time limits may not

be waived by either the project applicant or the lead agency. (Sen. Bill 2005,

Stats. 1998, ch. 283, § 4.) In an uncodified portion of the legislation, the

Legislature declared that it was aware of Bickel, and that it intended to

clarify that the PSA “does not provide for the application of the common law

doctrine of waiver by either the act’s purpose or its statutory language.”

(Sen. Bill, 2005, Stats. 1998, ch. 283, § 5; see Riverwatch, supra, 76

Cal.App.4th at p. 1439.)

B. Analysis

Save Lafayette does not dispute that the apartment project, when

originally proposed, was consistent with the zoning and general plan

designations for the site in 2011. And nobody disputes that the project is

inconsistent with the zoning and general plan designations in effect on June

15, 2018, when the applicant terminated the process agreement and asked

the City to resume processing a variant of its original application. The

question before us is whether, under the HAA, the general plan and zoning

standards in effect when the application was deemed complete in 2011 govern

the project, or whether the PSA’s time limits deprived the City of the power

to act on the application, such that the applicant must be treated as if it had

resubmitted its application when it asked the City to resume processing an

apartment application in 2018.

This is fundamentally a legal issue, which requires us to decide how the

HAA and the PSA apply to undisputed facts. We thus conduct our review of

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this question de novo. (See Peterson v. Wells Fargo Bank, N.A. (2015) 236

Cal.App.4th 844, 850.) In carrying out this review, we bear in mind that, at

least to the extent we must construe the HAA, the Legislature has instructed

that its provisions “be interpreted and implemented in a manner to afford the

fullest possible weight to the interest of, and the approval and provision of,

housing.” (Gov. Code, § 65589.5, subd. (a)(2)(L); California Renters, supra, 68

Cal.App.5th at p. 836.)

The PSA includes no provision for “ ‘suspend[ing]’ ” consideration of a

project, as contemplated by the process agreement. We thus assume for

purposes of our analysis that the multi-year delay following the process

agreement violated the PSA. But that does not mean we agree with Save

Lafayette that the application’s 2011 “ ‘substantially complete’ ”

determination lapsed under the PSA, or that the City lost power to act on the

application 180 or 270 days after certifying the EIR. According to Save

Lafayette, the applicant’s request to resume processing should be treated as a

resubmission in June 2018 of its project application, or the application should

be deemed resubmitted and reviewed under the standards in effect on a new

“ ‘deemed complete’ ” date.

In practical effect, Save Lafayette’s interpretation would mean the

application was deemed disapproved by operation of law when the City failed

to act on it within 180 or 270 days. But the PSA says no such thing. Rather,

the consequence the statutory scheme provides for failure to act is that a

project is deemed approved, if notice requirements are met. (Gov. Code,

§§ 65956, subd. (b), 65957.) Specifically, if an agency fails to approve or

disapprove a development project within 180 or 270 days after certifying an

EIR, the applicant may elect to provide the necessary public notice, including

a description of the proposed development and its location, the permit

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application number, the name and address of the permitting agency, and a

statement that the project will be deemed approved if the permitting agency

does not act within 60 days of the notice. (Gov. Code, § 65956, subd. (b).)

An argument could be made that the PSA, taken as a whole, forces a

choice on an applicant where the agency does not act promptly on a complete

application: either provide public notice under Government Code section

65956 or submit to an application lapsing, thus losing the benefit of the HAA.

That is not an impossible reading of the statutory scheme, but neither does

the PSA compel this conclusion. Even less does it compel a conclusion that

an agency implicitly loses power to act on an application once the statutory

time limits pass. We reject Save Lafayette’s reading of the statute for four

reasons.

First is the fact that the statute nowhere states that an application is

deemed withdrawn, deemed disapproved, or deemed resubmitted at a later

date if, after the agency fails to act within the PSA’s time limits, the

applicant fails to perfect its right to “deemed approval.” (See Gov. Code,

§ 65956, subd. (b).) Given that the statute is elsewhere explicit about

deeming an application complete or deeming it approved (Gov. Code,

§§ 65943, subd. (a), 65956, subd. (b)), we consider this silence significant.

Second is the implausibility of the argument Save Lafayette makes in

favor of restarting the clock in 2018. Save Lafayette contends that the

applicant’s request for continued permit processing on the resumed project

served as a resubmittal of the project application, and that the application

should be deemed complete on the date of this ostensible resubmittal. For

this view, Save Lafayette relies on Government Code section 65943, the

PSA’s provision for determining an application’s completeness. In particular,

it quotes the language we quoted above: “Upon receipt of any resubmittal of

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the application, a new 30-day period shall begin, during which the public

agency shall determine the completeness of the application.” (Id., subd. (a).)

But in the context of the statute, a “resubmittal of the application” refers to a

resubmittal in response to a notice that an application is incomplete, after

which the agency has an additional 30 days to assess the application’s

completeness. (Gov. Code, § 65943, subd. (a); see Orsi v. City Council (1990)

219 Cal.App.3d 1576, 1586 [statutory language and legislative history “make

clear that the Legislature in discussing ‘resubmittals’ was referring to

applications that were resubmitted after the lead agency made a timely

finding that the application as originally submitted was incomplete”].) That

is not what happened here, where the City found the application to be

complete in 2011, no resubmission was required, and no reevaluation of the

application’s completeness occurred.

The third reason we reject Save Livermore’s construction of the statute

is that it stands in tension with the provision of the PSA that expressly

addresses disapproval of applications. Government Code section 65952.2

states that “[a]ny disapproval of an application for a development project

shall specify reasons for disapproval other than the failure to timely act in

accordance with the time limits” of the PSA. If the 2011 project application

were deemed disapproved, that disapproval would only be because of the

City’s failure to “act in accordance with the time limits” of the PSA. (Ibid.)

And, of course, such a silent disapproval would have occurred without anyone

“specify[ing] reasons” for it. (Ibid.)

Our fourth reason for construing the PSA to avoid deemed disapproval

here is because we are not dealing with the PSA in a vacuum, but rather in

its relation to the HAA. The Legislature has found that California has a

“housing supply and affordability crisis of historic proportions” and that

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millions of Californians are hurt by the “consequences of failing to effectively

and aggressively confront this crisis.” (Gov. Code, §65589.5, subd. (a)(2)(A).)

The Legislative intended in adopting and subsequently expanding the HAA

“to significantly increase the approval and construction of new housing for all

economic segments of California’s communities by meaningfully and

effectively curbing the capability of local governments to deny, reduce the

density for, or render infeasible housing development projects.” (Id.,

subd. (a)(2)(K).) We are accordingly directed to interpret and implement the

HAA to “afford the fullest possible weight to the interest of, and the approval

and provision of, housing.” (Id., subd. (a)(2)(L).) These considerations weigh

in favor of fixing the date on which the application was complete on the date

when the City actually made that determination—in 2011—rather than at

some later date after the City had twice down-zoned the project site to allow

for much less housing development.

Save Lafayette objects that this construction of the statute renders the

Legislature’s post-Bickel amendment of the PSA an idle act. When the

Legislature amended the statute to specify that its time limits cannot be

waived (Sen. Bill 2005, Stats. 1998, ch. 283, § 4 [amending Gov. Code,

§ 65957]), Save Lafayette protests, the Legislature must have meant for the

agency to lose the power to act on an application after the statutory time

limits have passed. We reject this logic. Certainly, the City should comply

with the PSA. If it refuses, a writ might be in order. (See Morris v. Harper

(2001) 94 Cal.App.4th 52, 58; Gov. Code, § 65956 [inviting action pursuant to

Code Civ. Proc., § 1085]; LT-WR, L.L.C. v. California Coastal Com. (2007) 152

Cal.App.4th 770, 789 [writ relief available to compel Coastal Commission to

decide permit application after deadline passed].) But Save Lafayette points

us toward no statutory or case authority for the proposition that, by failing to

15

comply with the time limits of the PSA, the City loses the power to act on a

project application entirely. Indeed, the default rule is that unless the

Legislature clearly expresses a contrary intent, an agency does not lose

jurisdiction to act even after a statutory deadline passes. (LT-WR, L.L.C., at

p. 788, citing California Correctional Peace Officers Assn. v. State Personnel

Bd. (1995) 10 Cal.4th 1133, 1145, 1147.)

We therefore reject Save Lafayette’s contention that O’Brien lost the

benefit under the HAA of having submitted a complete application in 2011,

after the City failed to approve the project within 270 days of certifying the

EIR. The trial court rightly refused to disturb the City’s approval of the

resumed project; its inconsistency with the general plan and zoning

standards of June 2018 was immaterial. O’Brien got a complete project

application on file in 2011, and the HAA requires that such a project be

assessed against 2011 general plan and zoning standards.

II. CEQA Issues

A. Legal Landscape

In its CEQA challenges, Save Lafayette contends that the 2013 EIR did

not adequately examine three environmental impacts, and that respondents

were required to prepare an SEIR rather than an addendum in 2020. In

considering these contentions, we review the City’s action, not the trial

court’s decision. (Tiburon Open Space Committee v. County of Marin (2022)

78 Cal.App.5th 700, 727 (Tiburon).)

With narrow exceptions, CEQA requires preparation of an EIR

“ ‘whenever a public agency proposes to approve or to carry out a project that

may have a significant effect on the environment. [Citations.]’ [Citations.]

The basic purpose of an EIR is to ‘provide public agencies and the public in

general with detailed information about the effect [that] a proposed project is

16

likely to have on the environment; to list ways in which the significant effects

of such a project might be minimized; and to indicate alternatives to such a

project.’ [Citations.] ‘Because the EIR must be certified or rejected by public

officials, it is a document of accountability. If CEQA is scrupulously followed,

the public will know the basis on which its responsible officials either

approve or reject environmentally significant action, and the public, being

duly informed, can respond accordingly to action with which it disagrees.’ ”

(Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511–512, fn. omitted

(Fresno).) Before approving a project, the lead agency must certify that the

EIR has been completed in compliance with CEQA, that the agency has

reviewed and considered the EIR, and that the EIR reflects the agency’s

independent judgment and analysis. (14 Cal. Code Regs. § 15090, subd. (a).)

Once an EIR for a project has been prepared, the agency may not

require a subsequent or supplemental EIR except in specific circumstances.

An SEIR is required only if “[s]ubstantial changes are proposed in the

project” or “occur with respect to the circumstances” of the project,

“requir[ing] major revisions of the [EIR]” or, alternatively, if “[n]ew

information” becomes available. (Pub. Res. Code, § 21166;3 see 14 Cal. Code

Regs., §§ 15162, subd. (a)4 [subsequent EIR], 15163, subd. (a) [supplement to

EIR]; Committee for Re-Evaluation of T-Line Loop v. San Francisco

Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1246

3 All undesignated statutory references are to the Public Resources

Code.

The CEQA Guidelines are found at sections 15000 to 15387 of title 14

4

of the California Code of Regulations. We afford them great weight, unless

clearly unauthorized or erroneous under CEQA. (California Building

Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th

369, 381.) We shall refer to them as the Guidelines.

17

(Committee for Re-Evaluation).) “New information” is that which “was not

known and could not have been known” when the EIR was originally

“certified as complete.” (§ 21166, subd. (c).) And it must be “of substantial

importance,” for example because the new information shows “[s]ignificant

effects . . . will be substantially more severe than shown in the previous EIR.”

(14 Cal. Code Regs., § 15162, subd. (a)(3).) “An agency that proposes project

changes thus must determine whether the previous environmental document

retains any relevance in light of the proposed changes and, if so, whether

major revisions to the previous environmental document are nevertheless

required due to the involvement of new, previously unstudied significant

environmental impacts. These are determinations for the agency to make in

the first instance, subject to judicial review for substantial evidence.”

(Friends of College of San Mateo Gardens v. San Mateo County Community

College Dist. (2016) 1 Cal.5th 937, 944 (San Mateo); accord, Committee for Re-

Evaluation, supra, 6 Cal.App.5th at pp. 1247–1248, 1251–1252.)

The agency is entitled to rely on the whole record in determining

whether an SEIR is necessary. (Friends of Davis v. City of Davis (2000) 83

Cal.App.4th 1004, 1019.) “[T]here is no fixed format for an agency’s analysis

under section 21166”; while it may be helpful to substantiate this

determination in a single document such as an addendum, the ultimate issue

is whether the record as a whole supports the agency’s determination.

(American Canyon Community United for Responsible Growth v. City of

American Canyon (2006) 145 Cal.App.4th 1067, 1083 (American Canyon).)

When some changes or additions to a previously certified EIR are

necessary but none of the conditions calling for a subsequent EIR has

occurred, the agency may prepare an addendum. (Guidelines, § 15164,

subd. (a).) Unlike an SEIR, an addendum need not be circulated for public

18

review and comment, but it can be included in or attached to the final EIR,

and the decisionmaking body must consider it before making a decision on

the project. (Guidelines, § 15164, subds. (c), (d).) The addendum must

explain why the agency decided to prepare an addendum rather than a

supplemental EIR, and this explanation must be supported by substantial

evidence. (Guidelines, § 15164, subd. (e); see Mani Brothers Real Estate

Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397 (Mani

Brothers) [substantial evidence review applied to contention city should have

used SEIR rather than addendum for modified project].)

Often, an agency will certify the EIR for a project and approve the

project at the same hearing. (Bakersfield Citizens for Local Control v. City of

Bakersfield (2004) 124 Cal.App.4th 1184, 1200 (Bakersfield Citizens).) There

is no requirement in CEQA, however, requiring this practice. CEQA simply

requires that when, sometime after certifying an EIR, the lead agency

decides to approve a project, the agency file a notice of determination

indicating whether an EIR has been prepared and made available to the

public, and whether the project will have a significant effect on the

environment. (§ 21108, subd. (a), 21152.)

Finally, we may not interpret CEQA or the Guidelines in a manner

that “ ‘imposes procedural or substantive requirements beyond those

explicitly stated.’ ” (Committee for Re-Evaluation, supra, 6 Cal.App.5th at

p. 1247, citing § 21083.1.)

B. The Permit Streamlining Act Redux

In a variation on its argument that the City lacked authority to act on

the resumed application because the PSA’s time limits had expired, Save

Lafayette contends the City violated CEQA’s procedural requirements when

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it relied on the “ ‘stale’ ” 2013 EIR rather than preparing an SEIR when the

project was resumed in 2018. We reject this novel argument.

We have already explained that the PSA requires development projects

to be approved or disapproved within specified times, the longest such time

limit being 180 days after an EIR is certified plus one extension for up to 90

days. (Gov. Code, §§ 65950, subd. (a)(1), 65957.) Save Lafayette points out

that CEQA has a similarly short time limit for bringing an action challenging

an EIR (see § 21167), and it contends these provisions combine to prevent a

project from being approved based on a “ ‘stale’ ” EIR. But CEQA’s statute of

limitations for challenging an EIR begins to run only when the agency files

its notice of determination after approving a project (§ 21167, subd. (c)),

which does not prevent an agency from allowing considerable time to elapse

between its decisions certifying an EIR and approving a project.

Logically, Save Lafayette’s argument would mean that an agency could

not rely on an EIR that had been certified more than 180 or 270 days before a

project’s approval. CEQA contains no such prohibition, and the Legislature

forbids us to interpret CEQA in a manner that “imposes procedural or

substantive requirements beyond those explicitly stated” in CEQA or the

Guidelines. (§ 21083.1, italics added; see Berkeley Hillside Preservation v.

City of Berkeley (2015) 60 Cal.4th 1086, 1107–1108.) As “there is no

indication the Legislature meant to modify or accelerate CEQA’s procedures”

in enacting the PSA (Schellinger Brothers v. City of Sebastopol (2009) 179

Cal.App.4th 1245, 1262), we decline to construe the time limitations in the

PSA as creating an implied requirement under CEQA that a project may not

be approved when its EIR is more than 270 days old. Without an express

prohibition in CEQA on the course of action the City and O’Brien pursued, we

cannot conclude CEQA forbids reliance on the original EIR, nor mandates

20

that it be updated with an SEIR. The statute and the Guidelines set forth

the circumstances that require an SEIR, and the circumstance that the

original EIR was certified more than 270 days previously is not among them.

(§ 21166; see 14 Cal. Code Regs., § 15162, subd. (a).)

C. Standard of Review

Save Lafayette next brings more conventional CEQA challenges, both

to the legal sufficiency of the original EIR and to the City’s decision not to

prepare an SEIR. We employ different standards in reviewing these two

decisions.

In reviewing the City’s decision to certify the EIR, our inquiry extends

only to whether there is a prejudicial abuse of discretion, which is established

if the agency has not proceeded in a manner required by law or if its

determination is not supported by substantial evidence. (In re Bay-Delta etc.

(2008) 43 Cal.4th 1143, 1161.) We do not pass on the correctness of the

environmental conclusions in the EIR, but only on its sufficiency as an

informational document. (Ibid.) Our ultimate inquiry is “whether the EIR

includes enough detail ‘to enable those who did not participate in its

preparation to understand and to consider meaningfully the issues raised by

the proposed project.’ ” (Fresno, supra, 6 Cal.5th at p. 516.)

As this is a mixed question of law and fact, “it is generally subject to

independent review. However, underlying factual determinations—

including, for example, an agency’s decision as to which methodologies to

employ for analyzing an environmental effect—may warrant deference.”

(Fresno, supra, 6 Cal.5th at p. 516; see also Tiburon, supra, 78 Cal.App.5th at

p. 728 [failure to comply with CEQA is reviewed independently, but factual

determinations are reviewed for substantial evidence]; County of Amador v.

El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 945–946.) We do

21

not defer, however, in determining “whether statutory criteria were

satisfied.” (Fresno, supra, 6 Cal.5th at p. 516.) For example, we

independently review “[w]hether a description of an environmental impact is

insufficient because it lacks analysis or omits the magnitude of the impact.”

(Id. at p. 514.) Applying this principle, the court in Fresno concluded an EIR

was inadequate as an informational document when it identified the health

impacts of pollutants the project produced but did not indicate the

concentrations at which such pollutants would trigger the identified

symptoms, and did not identify the amount of ozone the project would

produce. (Id. at pp. 519–521.)

As we have explained, a different standard of review governs the

decision not to prepare an SEIR but to proceed by way of addendum to the

previously certified EIR. This decision we review for substantial evidence.

(Guidelines, § 15164, subd. (e); Mani Brothers, supra, 153 Cal.App.4th at

p. 1397.) “ ‘Substantial evidence is defined as “enough relevant information

and reasonable inferences from this information that a fair argument can be

made to support a conclusion, even though other conclusions might also be

reached.” ’ ” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1198; accord,

Tiburon, supra, 78 Cal.App.5th at p. 728.) We resolve reasonable doubts in

favor of the agency’s findings and decision, and do not overturn its actions on

the ground that a different conclusion would have been equally or more

reasonable. (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs.

(2001) 91 Cal.App.4th 1344, 1356.)

Save Lafayette contends the substantial evidence standard does not

apply in our review of the City’s decision not to prepare an SEIR because the

City did not approve this project when it certified the EIR. Save Lafayette

seizes on a few words in San Mateo, supra, 1 Cal.5th at p. 949, in which our

22

Supreme Court stated, “Once a project has been subject to environmental

review and received approval, section 21166 and CEQA Guidelines section

15162 limit the circumstances under which a subsequent or supplemental

EIR must be prepared.” (Italics added.) That is because, the court explained,

“ ‘[t]he event of a change in a project is not an occasion to revisit

environmental concerns laid to rest in the original analysis.’ ” (Ibid.)

Save Lafayette also relies on cases explaining that the limitations on

supplemental review “ ‘come[] into play precisely because in-depth review has

already occurred, the time for challenging the sufficiency of the original EIR

has long since expired [citation], and the question is whether circumstances

have changed enough to justify repeating a substantial portion of the

process.’ ” (American Canyon, supra, 145 Cal.App.4th at p. 1072, italics

altered, quoting Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065,

1073; accord, Mani Brothers, supra, 153 Cal.App.4th at p. 1398.) As Save

Lafayette accurately observes, the time for challenging the sufficiency of this

EIR expired only recently. Indeed, no challenge to the sufficiency of the EIR

was ripe until 2020, when the City finally approved the project. (See § 21167,

subd. (c) [limitations period for action challenging EIR begins to run after

project approval, with filing of notice of determination].) Save Lafayette

therefore urges us to apply, instead of substantial evidence review, the

standard for evaluating the sufficiency of an EIR as an informational

document in the first instance.

Save Lafayette has found a few favorable phrases in precedent but

taken them out of context. The cases on which Save Lafayette relies are

inapposite because none addresses the effect of a delay between certification

of an EIR and approval of a project. Certainly, none suggests that when an

EIR has been certified but a project not approved, courts should employ

23

something other than the substantial evidence standard that normally

governs in reviewing an agency’s determination to update an EIR by

addendum rather than SEIR.

The language of the statute and the Guidelines refutes Save Lafayette’s

argument. Section 21166 expressly limits the circumstances requiring an

SEIR when an EIR has been “prepared” for a project—as certainly occurred

here—and limits the “[n]ew information” circumstance to instances in which

the information was not, or could not have been, known when the EIR was

“certified as complete.” (§ 21166, subd. (c).) Neither of these benchmarks—

when an EIR is “prepared” or “certified as complete”—has any bearing on

whether or when the project was approved. And turning to the CEQA

Guidelines, we note they expressly distinguish between certification of an

EIR and project approval. (Compare Guidelines, § 15162, subd. (a)(1)–(3)

with Guidelines, § 15162, subd. (c).) Section 15162 of the Guidelines explains

that when an EIR has been “certified,” no SEIR shall be prepared unless one

of the enumerated events has occurred—substantial changes to the project or

its circumstances, or new information. (Guidelines, § 15162, subd. (a)(1)–(3).)

Thus, the Guidelines contemplate that the rules for preparation of an SEIR

apply independently of whether or when a project is approved.

We will accordingly apply the normal standard of review to the City’s

decision to proceed by way of addendum—that is, we review for substantial

evidence. (Mani Brothers, supra, 153 Cal.App.4th at p. 1397.) To the extent

Save Lafayette’s arguments challenge the adequacy of the EIR as an

informational document, however, we will apply the standard of review

described in Fresno.

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D. Special-Status Species on Project Site

The 2013 EIR reported that numerous animal species with special

status had been recorded, or their presence was suspected to occur, in the

vicinity of Lafayette. The applicant’s consulting biologist considered a total of

23 such species to be potentially present on the site, including one

invertebrate, 14 bird, and 8 bat species. The majority of these species’

activities were likely limited to foraging, but it was possible they could

establish nests or roosts before construction began, according to the EIR. The

EIR reported that most of the special-status amphibian and reptile species

known from the surrounding region, including the California tiger

salamander, the California red-legged frog, and the western pond turtle,

depended on aquatic habitat not found on the site or its vicinity. Nor,

according to the EIR, did the site contain suitable habitat for other special-

status mammal species, including the American badger.

The mitigation measures proposed by the EIR included conducting a

survey for nesting raptors and migratory birds within 14 days before

removing vegetation or beginning construction to identify active nests on the

site and nearby; establishing an adequate setback around any nest location

and restricting vegetation removal and construction until any young birds

have fledged; not demolishing buildings during bats’ winter roosting and

pupping periods; surveying buildings before demolition to avoid “ ‘tak[ing]’ ”

bats that have begun using a structure, and leaving doors and windows open

until demolition if bats are present; assessing trees to be removed for roosting

habitat no more than two weeks before removing the trees and clearing

vegetation; and, to reduce further the effects of the project on wildlife,

providing and enhancing an area of at least 25 feet from the centerline of the

creek as natural habitat.

25

The 2020 addendum explained that the resumed project was generally

similar to the original apartment project analyzed in the EIR and would not

result in new or substantially more severe impacts to biological resources.

The addendum proposed revisions to some of the mitigation measures,

including requiring the survey for nesting raptors and other migratory birds

by a qualified biologist to occur within seven days before beginning vegetation

removal or construction during nesting season, with a resurvey if vegetation

removal or construction was delayed more than seven days.

In response to the addendum, Save Lafayette provided a letter by an

ecologist, Shawn Smallwood, Ph.D., commenting on the project’s effects on

biological resources. Dr. Smallwood reported that he visited the project site

in May 2020. He saw 23 species of birds, five of which are special-status

species. Specifically, he saw osprey flying over the site, a white-tailed kite

foraging on the project site for extended periods, and two red-tailed hawks

foraging, and he heard the calls of a Cooper’s hawk and an olive-sided

flycatcher. He also reported: the project site included riparian woodland that

appeared suitable habitat for the dusky-footed woodrat; a creek likely served

as a movement corridor for the red-legged frog, a California threatened

species; multiple special-status species of bats likely roosted in trees on the

site and used the riparian corridor for movement; and other special status

terrestrial species, including the American badger and the Western pond

turtle, likely used the project site. According to Dr. Smallwood, 42 special-

status bird species had been detected nearby or within the region of the

project site, as had 10 special-status species of mammals, reptiles, or

amphibians. He opined that the EIR and the addendum did not address the

potential for loss of habitat provided by the mature trees that would be

removed under the project and the loss of breeding territory for birds. And he

26

expressed concern that birds would be killed by colliding with windows, for

which he proposed mitigation measures.

Save Lafayette contends the EIR’s discussion of special-status species

did not comply with CEQA’s mandate that an EIR provide the information

necessary for informed decisionmaking and informed public participation. In

light of Dr. Smallwood’s observations, the EIR was incorrect, as was the 2020

addendum, in stating there were no special-status species on the project site,

Save Lafayette contends. (See Ocean Street Extension Neighborhood Assn. v.

City of Santa Cruz (2021) 73 Cal.App.5th 985, 1004.) In the alternative, Save

Lafayette treats the presence of five protected species either seen at or heard

from the project site as new information that required consideration in an

SEIR.

We disagree with both arguments. The EIR specifically contemplated

that protected species may use the project site for foraging and perhaps for

nesting and roosting, although none were seen there in 2013. The EIR

proposed measures to mitigate any harm, measures the addendum

strengthened. Consistent with the possibility that special-status birds might

use the site, Dr. Smallwood observed or heard such species at or near the site

when he visited in 2020. But there is no indication they inhabited or nested

at the site, merely that they were nearby, flew over it, or foraged there. To

the extent Save Lafayette challenges the adequacy of the analysis, we

disagree, concluding the EIR fulfills its role as an informational document

because it anticipates the occasional presence of special-status bird species

even though it did not report any actual sightings. To the extent Save

Lafayette critiques the factual support for the EIR’s conclusions and the

City’s decision to proceed by way of addendum rather than through an SEIR,

27

those are questions we review for substantial evidence, and such evidence is

present here.

Save Lafayette also points to Dr. Smallwood’s conclusion that the site,

particularly the riparian woodland of the creek, contains habitat suitable for

a number of special-status species. And, Save Lafayette points out, Dr.

Smallwood expressed concern that birds would collide with windows at the

project and he proposed mitigation measures. But these concerns do not fall

within any of the categories justifying the preparation of an SEIR—

substantial changes to the project, substantial changes in circumstances, or

“[n]ew information, which was not known and could not have been known at

the time the environmental impact report was certified as complete.”

(§ 21166.)

We are unpersuaded by Save Lafayette’s reliance on Banning Ranch

Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918 (Banning Ranch).

The project at issue there was in the coastal zone, subject to the requirements

of the California Coastal Act of 1976 (§ 30000 et seq. (Coastal Act)) that areas

designated environmentally sensitive habitat be protected against significant

disruption in habitat values, and that development in adjacent areas be

designed to prevent impacts that would degrade them. (§ 30240, subds. (a),

(b); Banning Ranch, at p. 926.) Although there were Environmentally

Sensitive Habitat Areas on the project site, the EIR did not discuss the

subject in detail and omitted any analysis of the Coastal Act’s requirements

for such areas. (Banning Ranch, at pp. 930, 932–933, 937.) The court

concluded this discussion was inconsistent with CEQA’s requirements that

an EIR integrate CEQA review with the requirements of the Coastal Act,

consider regionally significant impacts in a regional context, and evaluate

project alternatives and mitigation measures. (Banning Ranch, at pp. 936–

28

938). By failing to account for the Coastal Act’s specific protections, the EIR

fell short. (Banning Ranch, at p. 941.) But the project site before us does not

implicate the Coastal Act, and Save Lafayette has not identified any other

environmental statute or regulatory scheme the EIR should have addressed.

Nor did the EIR here ignore the possibility that special-status species might

use the project site; rather, it expressly took that possibility into account and

adopted mitigation measures to address it.

Nor do the other cases upon which Save Lafayette relies establish that

an SEIR was necessary. The project in Mira Monte Homeowners Assn. v.

County of Ventura (1985) 165 Cal.App.3d 357, as originally proposed, would

place residential lots within or directly adjacent to wetlands; it was then

revised to eliminate the encroaching lots, and the review continued on the

assumption the development would not encroach on the wetland area. (Id. at

p. 360.) After an EIR was prepared but before it was certified, it was

discovered that a portion of the project would encroach on the wetlands. (Id.

at pp. 360–361.) This discovery, the appellate court concluded, was a change

in circumstances that required preparation of a subsequent or supplemental

EIR before project approval, and by failing to prepare one, the county did not

consider the full range and effectiveness of alternatives and mitigation

measures. (Id. at pp. 364–365.) Here, in contrast, the EIR contemplated that

special-status species might be found on the project site, and it proposed

mitigation measures.

Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1066 is also

of limited utility to Save Lafayette. The question there was whether the

evidence supported a county’s decision to require further environmental

review when the presence of a trout species of special concern had only

recently been brought to its attention. The court resolved doubts in favor of

29

the county and concluded substantial evidence supported its decision. (Ibid.)

The situation here is reversed, as the City declined to require further

environmental review.

Save Lafayette also points to Sierra Club v. Gilroy City Council (1990)

222 Cal.App.3d 30 (disapproved on another point in Western States Petroleum

Assn. v. Superior Court (1995) 9 Cal.4th 559, 570, fn. 2, 576, fn. 6), but that

case does not assist it. The EIR for a housing development analyzed the

project’s potential to affect the habitat of the California Tiger Salamander,

which had been observed nearby, and proposed measures to mitigate any

impact on California Tiger Salamanders. (Sierra Club, at p. 37.) The

appellate court rejected a project challenger’s contention that the later

discovery of the species on the site required an SEIR, as the issue had

already been thoroughly analyzed in the final EIR. (Id. at pp. 45–46.) In the

EIR before us, the discussion of special-status species was not as robust, but

the document considered the possibility that such species would be present at

the project site when construction began, and it proposed measures to

mitigate this impact.

We thus conclude the EIR was adequate as an informational document,

and the record contains substantial evidence to support the City’s

determination under section 21166 that there were no substantial changes in

the project or its circumstances requiring major revisions to the EIR, nor new

information of substantial importance regarding the project’s effects on

wildlife.

E. Wildfire Risks

Save Lafayette next challenges the adequacy of the environmental

review of the project’s effects on wildfire risks. The CEQA Guidelines’

appendix G checklist indicates that a project’s impact would be significant if

30

the project would “ ‘impair implementation or physically interfere with an

adopted emergency response plan to emergency evacuation plan.’ ” (See

League to Save Lake Tahoe v. County of Placer (2022) 75 Cal.App.5th 63, 133

(Tahoe).)

1. EIR’s Discussion of Wildfire Risks

The 2013 EIR for the apartment project considered whether the project

would expose people or structures to significant risk from wildland fires. In a

one-paragraph discussion, the EIR explained that CalFire includes the City

in its list of cities containing Very High Fire Hazard Severity Zones

(VHFHSZ), but that the project site did not include any areas designated

Very High risk. According to the EIR, the entire project site was in a “ ‘High’

risk zone” and, under the City’s general plan, the applicant would be required

to prepare a City-approved vegetation management plan that included

native, drought-tolerant, and fire-resistant species. And mandatory

compliance with the California Building Code, which included a requirement

for automatic sprinkler systems, would further prevent or reduce the risk to

people or structures from wildland fires.

The EIR also concluded the project would not have a significant impact

on an emergency response plan or emergency evacuation plan, explaining

that the project’s internal roadway system would provide residential and

emergency access, that a mitigation measure would ensure turning radii

were provided on-site, and that vehicles would use three entrance points to

the project site. Therefore, according to the EIR, “the Project would not

impair implementation of[,] or physically interfere with[,] the City of

Lafayette’s Emergency Operations Plan, which addresses . . . natural

disasters, including wildfires[,] and associated impacts would be less than

significant.”

31

2. Addendum

By the time the project was resumed, the addendum reported that the

site’s designation had changed. The site was now within the VHFHSZ on the

City’s adopted map, which depicts data compiled from the Contra Costa

County Fire Protection District fire hazards map and CalFire. Fire risks

were “Very High” because the semi-rural character of the project site,

involving a mix of population with the vegetation and open spaces of a rural

environment, was subject to wildland fires that could cause loss of life and

property.

The addendum included a discussion of evacuation in the event of fire.

The project site is located along the eastern limits of Zone 3 of the City of

Lafayette Emergency Operation Plan. Pleasant Hill Road would serve as the

primary evacuation route for the project but, depending on conditions on

Pleasant Hill Road, Deer Hill Road could also be used. The resumed project

included mitigation measures to ease traffic flow, including during

emergencies, and the addendum reported that with these measures the

project would not adversely affect the operations and emergency response of

the Lafayette Police Department or the Contra Costa County Fire Protection

District. Moreover, the fire protection district would review the project to

ensure adequate emergency access as part of the project’s permitting

approval.

3. Comments and Further Reports

Save Lafayette raised concerns that the project would increase traffic

delays for existing residents in the vicinity if it were necessary to evacuate

due to fire. Members of the public also pointed out that a major fire had

recently taken place at the Lafayette Tennis Club.

32

TJKM, the traffic consultant that had assisted with the EIR and the

addendum, prepared a memorandum addressing concerns about emergency

evacuation. The memorandum, dated June 22, 2020, concluded that by

increasing roadway capacity with the addition of a “through” lane at Pleasant

Hill Road and Deer Hill Road/Stanley Boulevard and a “trap” lane for an on-

ramp onto Highway 24, the project would improve existing evacuation

operations, more than compensating for the additional traffic generated by

the project.

Thomas J. Cova, Ph.D., a professor in the Department of Geography at

the University of Utah, provided comments on the project’s potential effects

on emergency evacuation. He opined that the area could experience fast-

moving fires that left little time for an orderly evacuation, that Pleasant Hill

road, the primary means of egress for communities north of Highway 24, was

likely to become congested during an evacuation, and that the addition of

new residents would “of course” cause delays in evacuation for residents to

the north of the project site. He said the issue required further study. There

is no indication he had reviewed the TJKM report.

Save Lafayette provided a memorandum by a consultant, Lin Zhang,

Ph.D., of the Elite Transportation Group, who reviewed TJKM’s emergency

evacuation modeling and analysis.5 Dr. Zhang opined that TJKM’s models

were flawed. His models showed that in an evacuation, a large number of

vehicles (3,400 with a trap lane and more than 3,800 with no trap lane)

5 This memorandum, dated August 23, 2020, says it was made in part

to respond to a TJKM memorandum dated August 10, 2020. Save Lafayette

does not tell us where in the voluminous record an August 10 report may be

found, and we decline to search for one. (See Del Real v. City of Riverside

(2002) 95 Cal.App.4th 761, 768 [appellate court need not search record on its

own seeking error].)

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would be “denied entry,” or unable to get onto the streets for evacuation

during the morning peak hours of 7:00 to 8:00 a.m., and that from the project

site, only two percent of vehicles (assuming no trap lane) or 30 percent

(assuming a trap lane) would be able to enter the roadways.

4. Analysis

Save Lafayette makes two primary challenges to the wildfire risk

analysis in its opening brief. First, it argues the EIR was insufficient as an

informational document because after the EIR was certified but before the

project was approved, the City adopted a resolution redesignating the project

site VHFHSZ. This redesignation, Save Lafayette argues, necessitated an

evacuation analysis. Second, it contends, the redesignation constituted a

changed circumstance and significant new information requiring preparation

of an SEIR. These contentions rest in part on a factual mistake and on a

separate misreading of the EIR.

First, the factual mistake: the City adopted an ordinance redesignating

the project site VHFHSZ on June 24, 2013 (apparently at a meeting at which

the City Council also considered the certification of the EIR), and the

ordinance became effective 30 days later. The EIR was certified on August

12, 2013, several weeks after the redesignation went into effect, contrary to

Save Lafayette’s assertion in its opening brief that the site was redesignated

after the EIR’s certification. Respondents’ brief pointed out this mistake, and

in its reply brief, Save Lafayette pivots to arguing that the 2013 EIR was

inadequate as an informational document, not only because the VHFHSZ

designation necessitated a wildfire evacuation analysis but also because its

error in stating the project site was not in a VHFHSZ zone rendered the

description of the environmental setting inaccurate.

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Second, Save Lafayette misreads the EIR as concluding wildfires were

not a significant risk because “the Project does not include any areas

designated as ‘Very High’ risk.” The clear implication is that the EIR’s

analysis ended there, but that is a gross oversimplification of the EIR. While

the EIR incorrectly noted the project site itself was not designated “ ‘Very

High’ ” risk, the EIR also explained that CalFire included the City in its list

of those with VHFHSZ’s, and that the entire project site was designated a

“ ‘High’ risk zone.” And, it went on, the applicant would be required to

prepare a City-approved vegetation management plan with drought-tolerant

and fire-resistant plantings,6 to install automatic sprinklers as required by

the California Building Code, and to submit to the Contra Costa County Fire

Protection District’s plan review. Those factors, not the simple lack of a

VHFHSZ designation, rendered impacts associated with wildfire risk less

than significant. And, as discussed above, the EIR examined whether the

project would interfere with emergency response and evacuation plans,

concluding that with planned mitigation it would not.

Neither Save Lafayette nor anyone else appears to have objected to the

EIR before it was certified on the ground that its wildfire risk discussion was

inadequate.7 Save Lafayette’s argument now is based largely on the change

6 On our own motion, we take judicial notice of Policy S-4.5 of the

City’s general plan, which requires such vegetation management plans for

developments in high-risk fire areas.

7 Without detailed analysis, respondents suggest a challenge to the

2013 EIR on this ground is barred for failure to exhaust administrative

remedies. Because the adequacy of the wildfire evacuation analysis was

raised before the public hearing at which the project was approved, we will

not treat this challenge as forfeited. (See Bakersfield Citizens, supra, 124

Cal.App.4th at pp. 1200–1201; Galante Vineyards v. Monterey Peninsula

Water Management Dist. (1997) 60 Cal.App.4th 1109, 1121.)

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in designation of the project site to a “Very High” fire risk zone. To the extent

Save Lafayette continues to maintain its position that this redesignation, in

itself, constitutes significant new information or creates a changed

circumstance requiring an SEIR, we are unpersuaded. Courts analyzing

whether new information necessitates an SEIR look to the physical

characteristics of a site and the actual environmental effects of a project, not

to mere regulatory changes. For example, when CEQA Guidelines changed

and began requiring consideration of greenhouse gas emissions, citizens’

groups were unsuccessful in demanding that SEIRs be prepared to address

the subject. (See, e.g., Citizens Against Airport Pollution v. City of San Jose

(2014) 227 Cal.App.4th 788, 806–808 (CAAP); Citizens for Responsible

Equitable Environmental Development v. City of San Diego (2011) 196

Cal.App.4th 515, 531–532 (CREEP).) The regulatory requirement may be

new, one court explained, but “the potential environmental impact of

greenhouse gas emissions has been known since the 1970’s.” (CAAP, at

p. 807; see also CREEP, at p. 531 [“An SEIR is not required absent new

information, and . . . information on the effect of greenhouse gas emissions on

climate was known long before the City approved the 1994 FEIR”].) So, here,

though the VHFHSZ designation was at some point new, there is no new

information about the physical environment that Save Lafayette points to as

necessitating a new or more detailed analysis than when the property was

still included in a “High” risk zone.

Nor do we agree with Save Lafayette’s argument that the redesignation

rendered the description of the environmental setting so deficient as to make

the EIR inadequate as an informational document. A description of the

environmental setting must describe “the physical environmental conditions

in the vicinity of the project.” (Guidelines, § 15125, subd. (a), italics added.)

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Although the designation of the project site had changed between the time

the EIR was prepared and its certification, there is no indication the EIR

inaccurately described the physical conditions. It described the area as in a

“High” risk zone and in the same city as “Very High” risk zones, it explained

how that risk would be reduced, and, in the section considering emergency

response plans and evacuation plans, it explained why emergency vehicle

operations would not be impaired and that vehicles would use the internal

roadway system and three entrance points. We are not persuaded that the

EIR failed as an informational document because it did not include a

quantitative analysis of evacuation times, or because it did not reach the

same conclusions as Dr. Zhang.

Save Lafayette relies on Newtown Preservation Society v. County of El

Dorado (2021) 65 Cal.App.5th 771, but that case does not assist it. A county

there prepared a mitigated negative declaration (MND) rather than an EIR

for a project, explaining that there would be road closures during

construction, that the county would coordinate with the sheriff’s emergency

services office and the county’s fire protection district to maintain access to

all residences, and that there would be a specified temporary evacuation

route. (Id. at pp. 775–777.) In response to comments, the county explained

further that if a fire blocked a particular road, the emergency services office

would use other options, listing several possible evacuation routes. (Id. at

pp. 778–779.) The appellate court rejected a contention that the county

should have prepared an EIR to examine the project’s effects on an existing

escape route from the project area, relying in part on the fact that the

emergency services office and the fire department, which had expertise in

emergencies and evacuation, “ ‘were comfortable’ ” with the county’s proposal.

(Id. at p. 789; see also Clews Land & Livestock, LLC v. City of San Diego

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(2017) 19 Cal.App.5th 161, 176, 194 [rejecting challenge to MND for school in

VHFHSZ when emergency evacuation plan described two evacuation routes,

and school would close on red flag warning days].) The question here is not

whether an EIR should have been prepared but whether the EIR was

adequate. Newtown refutes the contention that the EIR here is deficient

because it lacked quantitative analysis. Whether or not a such an analysis

would have been useful (see Tahoe, supra, 75 Cal.App.5th at p. 137 [finding

evacuation analysis adequate in part based on modeling of evacuation time]),

the EIR contained sufficient information and analysis to allow the public to

discern the City’s analytical route in approving the project (id. at p. 139).

(See also Tiburon, supra, 78 Cal.App.5th at p. 754 [“ ‘That further study . . .

might be helpful does not make it necessary’ ”].)

In reaching this conclusion, we do not quarrel with Save Lafayette’s

argument that if the EIR is inadequate as a matter of law, the TJKM

analysis—which was not the basis for or included in a circulated EIR or

SEIR—cannot save it. As recently explained in Sierra Watch v. County of

Placer (2021) 69 Cal.App.5th 86, 103, “to the extent an agency omits an

adequate discussion of a project’s potential impacts in its EIR, it cannot

afterward ‘make up for the lack of analysis in the EIR’ through post-EIR

analysis.” But Save Lafayette has not shown the EIR was inadequate when

it was certified in August 2013. And TJKM’s analysis is relevant to whether

the City’s decision to proceed with an addendum rather than with an SEIR is

supported by substantial evidence.

Save Lafayette has not shown that substantial changes or new

information necessitated an SEIR to address the project’s effect on emergency

response and evacuation plans. Although Dr. Cova raised concerns about the

effect of the project on evacuation times and Dr. Zhang challenged TJKM’s

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analysis, the TJKM report concluded that the project’s additional roadway

capacity would actually improve evacuation times. This is substantial

evidence supporting the City’s finding that the EIR’s emergency response and

evacuation discussion was adequate, and no intervening changes or new

information required major revisions to the EIR. (§ 21166.)

Save Lafayette objects that the TJKM report cannot act as substantial

evidence because it was “based on false statements.” At a city council

meeting on August 10, 2020, a TJKM employee testified that, when

considering how students from nearby schools would be evacuated in an

emergency, she called County Connection to ask where the necessary buses

would come from and how big their buses were. She continued, “And

basically they didn’t indicate that there would be any problem at all getting

this number of buses from their yard.” Her statements, Save Lafayette

contends, were “utter fabrications,” contradicted by a letter from the General

Manager and CEO of County Connection, who said no one on his staff could

recall speaking with anyone about the project, and that its ability to respond

to an emergency would depend on factors such as traffic, the nature of the

emergency, the distance, and how quickly County Connection could organize

its employees. At a later city council meeting, the TJKM employee testified

that she had found notes of her conversations with a County Connection

employee, who told her during a brief conversation the size of the buses and

where they would be likely to come from, but that she had not received a

specific commitment to send buses. Her cell phone bill reflected calls to and

from County Connection.

Save Lafayette suggests this is a discrepancy that casts doubt on

TJKM’s credibility and all of its analysis, and the City should therefore have

disregarded TJKM’s report. For this proposition, it relies on Bowman v. City

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of Berkeley (2004) 122 Cal.App.4th 572, 582–583, which concluded an agency

was within its discretion to discount the credibility of an expert who had

made misrepresentations. We reject the implication that the discrepancy

between the TJKM employee’s statements and the recollection of County

Connection employees compelled the City to reject TJKM’s traffic analysis.

The discrepancy can easily be seen as a failure of recollection on the part of

County Connection employees that does not cast doubt on the reliability of

TJKM’s analysis, and the City was well within its discretion to rely on that

analysis.

F. Tree Removal

The EIR explained that the project would require removal of 91 of the

117 trees on the project site that qualified as “ ‘protected trees’ ” under the

City’s tree protection ordinance, among them a large valley oak with a 58-

inch diameter, which was more than 200 years old. As specified in the Tree

Protection Ordinance, replacement trees would have to be planted. Avoiding

the felling of protected trees would have required a major redesign of the

project, and the EIR treated the impact after mitigation as significant and

unavoidable.

The 2020 addendum reported that the resumed project would remove

ten more trees than the project originally proposed, or a total of 101 trees,

thus preserving 16 instead of 26 trees. As mitigation, 68 more replacement

trees than the 700 originally planned would be planted, for a total of 768 new

trees. With implementation of this mitigation measure, the addendum

concluded, impacts on tree resources would be similar to those identified in

the 2013 EIR, with no new or substantially more severe significant

environmental impacts that would conflict with applicable land use plans,

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policies or ordinances. The impact remained significant and unavoidable

even after mitigation.

Save Lafayette argues that removal of the additional ten trees creates a

substantially more significant environmental impact requiring preparation of

an SEIR, and that the EIR is inadequate as an informational document

because it does not contain an “ ‘accurate, stable, and finite project

description.’ ” (See County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d

185, 193.) As we have explained, CEQA contemplates that changes in a

project might occur after an EIR is certified, and it limits the circumstances

in which an SEIR must be prepared. (§ 21166.) We are unpersuaded that

the change at issue here renders the project description inaccurate. The

proper question before us is whether substantial evidence supports the City’s

determination that none of the conditions necessitating an SEIR are present.

(See Guidelines, § 15164, subd. (e); Mani Brothers, supra, 153 Cal.App.4th at

p. 1397.)

This record is sufficient to support that determination. As originally

contemplated, the project included removing most of the trees on the site,

including a large valley oak that was more than 200 years old, and the

impact would be significant even after mitigation. Under the resumed project

the valley oak and other oaks to the southeast would still be removed,

rendering the impact still significant and unavoidable, but mitigation in the

form of tree replacement would increase in compliance with the City’s Tree

Protection Ordinance to account for the additional trees now also being

removed. Substantial evidence supports a conclusion that the changes to the

project are not so substantial as to require “major revisions” of the EIR.

(§ 21166, subd. (a).)

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Save Lafayette relies on American Canyon to argue otherwise, but its

reliance is unavailing. (American Canyon, supra, 145 Cal.App.4th 1062.)

The American Canyon court held further environmental review was

necessary where a mitigated negative declaration for a three-component

project had previously been adopted; there was a 6.5 percent increase in the

size of the retail component of the project, a big box store; the city’s zoning

ordinance treated a five percent increase in the square footage of an approved

structure to be a major modification of a project; and the city inexplicably

excluded some of the building area from the square-footage analysis when

evaluating changes to the size of the retail component. (Id. at pp. 1067–1068,

1075–1077.) Here, in stark contrast, the EIR analyzed the effect of removing

trees, the addendum acknowledged that 10 more trees would be removed

than earlier contemplated and that the impact remained significant after

mitigation, and changes to the project complied with local ordinance by

requiring additional trees to be planted. American Canyon does not persuade

us that an SEIR is necessary to study the effects of removing 10 additional

trees.

In sum, Save Lafayette’s challenges under CEQA all fail. The EIR was

adequate as an informational document, although it lacked the information

Save Lafayette subsequently developed about special-status species and

about wildfire risks, and although the project description changed to include

the felling of additional trees. Nor has Save Lafayette shown that an SEIR

was required to address new information.

DISPOSITION

The judgment is affirmed.

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TUCHER, P.J.

WE CONCUR:

FUJISAKI, J.

PETROU, J.

Save Lafayette v. City of Lafayette et al. (A164394)

43

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Barry Baskin

Counsel: Louzeau Drury, Richard Drury, Rebecca Davis, Victoria

Yundt; and Lason, Scott Sommer for Plaintiff and

Appellant

Coblentz, Patch, Duffy & Bass, Jonathan R. Bass,

Katharine Van Dusen, and Robert B. Hodil for

Defendants and Respondents

Miller Starr Regalia, Arthur F. Coon, Bryan W. Wenter,

Matthew C. Henderson for Real Party in Interest.

44