By: Sean M. Sherlock
Ordinarily the threat of a lawsuit under the California Environmental Quality Act (“CEQA”) passes once the statute of limitation expires – in most cases 30 days after the filing of a Notice of Determination. But a recent Court of Appeal decision illustrates how a project may remain subject to CEQA litigation if it varies from the project description in the Environmental Impact Report (“EIR”).
In Ventura Foothill Neighbors v. County of Ventura, — Cal.Rptr.3d —, 2014 WL 7021891 (Cal.App. 2 Dist.), a local community group sued Ventura County under CEQA for building a medical clinic building 15 feet higher than described in the EIR. The trial court ruled in favor of the community group, and ordered the County to prepare a supplemental EIR and mitigate any new significant environmental impacts. The Court of Appeal affirmed.
The County prepared an EIR in 1993 for the construction of a 75-foot-tall clinic building. In 1994, the County’s Board of Supervisors certified the EIR, approved the project, and filed a Notice of Determination (“NOD”). Under CEQA, the filing of a NOD starts the running of a 30-day statute of limitation to file a lawsuit challenging the EIR. Pub. Res. Code, §21167(c). But the County put off construction for over a decade. In 2005, the County decided to proceed with the project, but in a slightly different location – 200 feet north, and 160 feet west of the original location. For the relocated project, the County prepared an “Addendum” to the EIR. The Addendum mentioned that the project location would be moved, but that the project would be “virtually the same size and configuration” as the original project, and that the impacts for the relocated project for height and view shed are less than and within the scope of analysis of the original EIR. Therefore, the County concluded, no subsequent or supplemental EIR was required. The Addendum did not mention that the building would be 90 feet tall, rather than 75 feet tall as described in the EIR. The County filed another NOD after approving the Addendum.
Two years later, during project construction, a member of the community group discovered that the building would be built to 90 feet in height. Within two months of that discovery the group filed its CEQA lawsuit. The County argued that the CEQA lawsuit was barred by the 30-day statute of limitation. But the Court of Appeal held that because neither the Addendum nor the NOD gave any notice of the increase in the building’s height, the 30-day statute of limitation was inapplicable. Therefore, the Court of Appeal affirmed the trial court’s judgment requiring the County to prepare a supplemental EIR and mitigate any new significant environmental impacts.
 In the author’s opinion, both the trial court and the Court of Appeal erred in concluding as a matter of law that a supplemental EIR was required. Whether a supplemental EIR is required depends upon whether there are “substantial changes” in the project requiring “major revisions” in the EIR. 14 Cal. Code Regs. §§15162, 15163. An agency’s decision to not prepare a supplemental EIR is valid so long as it is supported by substantial evidence. Ibid.; see Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1075. The burden is on the challenger to demonstrate that the agency’s decision is not supported by substantial evidence. Mani Bros. Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1397. Thus, rather than concluding as a matter of law that a 15-foot increase in the height of a building was a substantial change in the project warranting a supplemental EIR, the courts should have remanded the case to the County for further consideration of that issue.