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Chapter VI - Common Developer Tactics and How to Respond

Developers’ lawyers employ several standard arguments that you will probably encounter. Some are specious generalities, impressive to those who’ve done only a casual reading of CEQA. Others exploit ambiguity in the statute or attempt generally to fog the critical underlying issues. Be prepared for them. The opposition lawyers are aware that many judges know little about CEQA, and will try to take full advantage of this.

Since the courts are bogged down with cases, judges will often read only as much of your case as they need to find a quick way to get rid of it. Knowing this, the opposition will first bury the court in papers, then oversimplify the case to offer the judge a quick way out of reading all of it.

The following are some arguments you may hear, their purposes, and their weaknesses.

“The petitioner [you] has failed to prove, based on evidence in the record, that this project will have any significant environmental impact, so no EIR need be prepared.”

This is a classic dodge for getting out of doing an EIR, or denying that an impact identified in an EIR is significant. The developer and the agency simply refuse to study anything that might be damaging, or to reveal damaging information if they have it. Then they turn to you and say, “We don’t see any evidence of a significant impact,” thereby trying to shift the burden of proof to you.

Presumably, you’re supposed to go out and conduct biological surveys, water sampling, and traffic studies, to document the significance of effects both you and they know are there. If you don’t, they’ll dismiss your concerns about these issues as a rumor, or the “mere apprehension” of a non-expert. Even if you manage to pin something on them, they’ll counter that the effect “isn’t significant.”

First of all, to force preparation of an EIR, you need only make a “fair argument” that there may be a significant environmental impact, even though a contrary conclusion may be possible. (CEQA Guidelines §15064(g)(1), Friends of B Street v. Cfty of Hayward (1980) 106 Cal.App.3d 988.) In marginal cases, an EIR must be prepared if there is a “serious public controversy” or a “disagreement between experts.” (CEQA Guidelines §15064(h)(1),(2). CEQA sets a “low threshold” for preparation of an EIR. (No 0il Inc. v. City of Los Angeles (1974)13 Cal.3d 68, 84.)

Second, “relevant personal observations” are evidence. For example, an adjacent property owner may testify to traffic conditions based upon personal knowledge.” (Citizens Association for Sensible Development of Bishop Area v. County of lnyo (1985) 172 Cal.App.3d 151, 173.) Third, “CEQA places the burden of environmental investigation on government rather than the public,” and if “the local agency has failed to study an area of possible environmental impact, a fair argument may be based on the limited facts in the record.” The agency may not “hide behind its own failure to gather relevant data.” (Sundstrom V. County of Mendocino (1988) 202 Cal.App.3d 296, 311.)

Finally, although it’s tough to demonstrate that something is “significant” when all of the opposition’s experts are saying it isn’t, CEQA provides some guidance. PRC § 21083 and CEQA Guidelines §15065 list “mandatory findings of significance.” Also, Appendix G of the CEQA Guidelines provides a long list of effects which are normally considered significant.

“The petitioner is bringing this law suit because he or she simply doesn’t agree with the decision the city council made. The petitioner may not like the decision, but that’s how democracy works.”

In our adversarial system of legal justice, it’s up to the opponents of a government action to see that the laws regulating the action are enforced. Developers or the state Board of Realtors certainly are not going to do it. Nor is there any state agency in charge of enforcing CEQA. Enforcement is left to citizen-initiated lawsuits.

“The EIR and record of proceedings over yyy public hearings were held. The record of proceedings in this case comprises over xxxx pages, and this shows that environmental issues were thoroughly considered.”

CEQA actually encourages brief documents written in plain language, and ones that reduce paperwork. (PRC § 21003, CEQA Guidelines §§15006, 15140, 15141.) The purpose of long, technical dissertations is often to snow the decision makers.

But regardless of its bulk, the EIR must contain specified information. (CEQA Guidelines §§15120-15132.) Noncompliance with the information-disclosure provisions of CEQA, which precludes relevant information from the public agency, constitutes an abuse of discretion. (PRC § 21005, Kings County Farm Bureau V. City of Hanford (1990) 211 Cal.App.3d 692, 712.)

“The city council (or board of supervisors) has discretion over land use decisions, and the courts may not interfere.”

CEQA contains two main mandatory provisions:

• First, the agency must prepare a legally sufficient EIR for projects which may have a significant environmental impact. (PRC §21151.)
• Second, the agency must reduce or eliminate the project’s identified significant impacts to the extent feasible, through available mitigation measures or project alternatives—and demonstrate that it has done so by making a supported written finding for each significant impact. (PRC §§21002, 21002.1, 21081, 21081.5, CEQA Guidelines §15091.)

Thus, CEQA does proscribe the discretion vested in the city council or board of supervisors. So does the state Planning and Zoning Law, dealing with general plans and zoning. They can’t simply do whatever they want.

“Numerous significant changes were made in the project as originally proposed in order to reduce its environmental impacts, demonstrating a good faith effort to comply with CEQA.”

In the bargaining process called land use planning, developers rarely if ever put their final offer on the table up front. CEQA is concerned with the impacts of the project as finally approved. Are they still significant? Are there project alternatives or mitigation measures which could reduce these impacts further? If so, they must be incorporated into the project or explicitly rejected as infeasible, based on substantial evidence in the record. (PRC § 21081.) CEQA’s base line or reference point is the existing physical environment, not one of the versions of the development plan.

“The council (or board) carefully weighed the project’s benefits against its environmental impacts and decided that the scales tipped in favor of its benefits. Witness the finding of ‘overriding considerations.’”

It’s surprising how many professional planners and others say things such as, “CEQA simply requires information disclosure. After considering the EIR, the city or county is free to approve the project any way they want to. They only have to make a finding of overriding considerations.”

If the judge hearing your case isn’t too familiar with CEQA, be sure the opposition doesn’t sell him or her on this “information disclosure only” concept of CEQA. It might be well to lay out in brief the substantive requirements of CEQA, as explained above.

The “overriding considerations” can be invoked only after the city our county has prepared an adequate EIR and mitigated or avoided each significant impact identified in that EIR to the extent feasible. Again, CEQA allows approval of projects having significant environmental impacts (PRC § 21002), but only after preparation of an adequate EIR and adoption of all feasible mitigation measures or alternatives which could reduce the significant impacts.

“The EIR’s analysis of cumulative impacts was adequate. CEQA requires only that other currently approved projects in the general plan be included in the analysis.”

This insidious interpretation of CEQA regards all unapproved future development as pure speculation. It allows the developers to evade CEQA’s requirements and paint a rosy environmental picture by simply concealing their future plans until they’re ready to seek approval.

The CEQA Guidelines actually say that “probable future projects” must be considered. (CEQA Guidelines § 15130(b)(1)(B).) (See Kings County Farm Bureau v. City of Hanford (1990) 211 Cal.App.3d 692, and Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376.) If the project at issue involves a general plan amendment, you should use that very fact to illustrate the absurdity of not projecting beyond the existing general plan.

“The Token Oaks project will have no significant environmental impact because it complies with the general plan and other relevant planning documents.”

Compliance with the general plan and CEQA are independent requirements. The mere fact that a project is consistent with an adopted general plan does not mean that its environmental effects cannot be significant. (City of Antioch v. City Council of the City of Pittsburgh (1986) 187 Cal.App.3d 1325.)

“We’ve substantially mitigated a significant environmental impact identified in the EIR by limiting the extent of the impact. Instead of wiping out 10 endangered species, we’ve wiped out only five. Therefore, we’ve preserved 50% of this resource.”

This common bit of sophistry is usually based on CEQA Guidelines §15370(b). However, this section defines mitigation as “minimizing impacts by limiting the degree or magnitude of the action and its implementation.” Did they really minimize the impact, or could they feasibly have done more? CEQA requires that significant impacts be reduced to the extent feasible. Have they demonstrated that no more could feasibly have been preserved?

“The local freeway is already severely congested, carrying 250,000 vehicles per day. This project will add only 1,000 more, or 0.4%, which is an insignificant impact.”

This “ratio” test was rejected by the court in Kings County Farm Bureau v. City of Hanford (1990) 211 Cal.App.3d 692. In fact, any contribution to an already impacted situation must be considered significant. This is also consistent with CEQA’s definition of “cumulative impact,” the project’s impact viewed in combination with those of other past, present, and reasonably foreseeable probable future projects.

Nonetheless, you will often hear developers claim that, since a road, or the air, or some other resource has already been ruined by previous bad decisions, the situation would be unacceptable whether the project were approved or not. They’ll also make a “fairness” argument, that they should not be penalized for an impact not of their own making, or required to mitigate it. As unfair as that may seem, it’s simply the law—and rightly so. If every subsequent developer could get a free ride once a resource had been impacted, it would be impossible to avoid or mitigate serious environmental problems once they got out of hand.

Also regarding fairness, one could argue that the developer who didn’t make it to the environmental trough in time has been treated no less unfairly than the general public, forced to partake of polluted air, congested roads, overcrowded schools, and other unsavory accomplishments of the profiteers.

“The city’s decision was perfectly justified. By building more houses, they reduced commuting distances and traffic congestion.”

If a finding is not supported by the evidence, the defenders of greed may try to snow the judge into adding a different finding. They’ll laud the virtues of the project, and often they’ll produce colorful visual aids to bolster their sales pitch.

The first thing you should do is object to any extraneous displays that were not before the decision makers when they approved the project. Then you should point out that it is the job of the city council or board—not the court—to weigh the evidence and make findings explaining why they approved the project. Point out that it’s improper for them to ask the court to reweigh the evidence and substitute an after-the-fact court finding for one the council or board failed to make. You can also mention that their need to do so underscores the weakness of the finding.