Law Review: If a development may have adverse impacts on the environment, an EIR must be prepared
Our case today comes out of Yolo County. A large bed and breakfast and special events facility as well as a demonstration agricultural project was proposed six miles northwest of the City of Winters. A place I know well. The planning commission denied the project but the board of supervisors approved along with the mitigated negative declaration.
CALIFORNIA ENVIRONMENTAL QUALITY ACT
Under CEQA, if “a fair argument” can be made that a proposed project may have a significant effect on the environment, a full environmental impact report must be prepared. If there is no evidence that any part of the project may cause a significant effect on the environment, the approving agency may prepare a negative declaration – a less thorough (and costly) analysis. Immediately after our Winters project, Field and Pond, was approved, a suit was filed.
The trial court agreed a fair argument could be made that the project may have a significant impact on the tricolored blackbird, the valley elderberry longhorn beetle and the golden eagle. Normally that would result in project denial, re-filing and preparation of a full EIR to address all of the projects’ potential impacts.
The Yolo County Superior Court judge; however, allowed the project approval to remain in place, and ordered an EIR limited only to addressing the project’s impacts on the three species. The concept is efficient and makes sense but…
BACK TO THE DRAWING BOARD
The Third Appellate District Court of Appeal panel overturned the trial court, with Justice Robie, one of the best, writing the Opinion. The court of appeal found no authority in CEQA allowing preparation of anything less than a full EIR on all parts of the project if a fair argument could be made that any part of the project – like impacts on three species – may cause a significant adverse effect.
As the project admittedly could cause an adverse impact on the beetle, golden eagle and tricolored blackbird, the project approval was overturned and the developer is required to start over and prepare a full EIR.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com
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