What Is So Fair About The Fair Argument Anyway?

1. What Is So Fair About The Fair Argument Anyway? Veera Tyagi - South Coast Air Quality Management District Ginetta Giovinco - Richards, Watson & Gershon Amy Hoyt - Best, Best & Krieger Alyssa Helper - LSA Ricia Hager - Woodruff, Spradlin & Smart

2. Veera Tyagi Principal Deputy District Counsel South Coast Air Quality Management District VTyagi@aqmd.gov

3. Ginetta Giovinco Shareholder Richards, Watson & Gershon ggiovinco@rwglaw.com

4. Amy Hoyt Partner Best Best & Krieger Amy.Hoyt@bbklaw.com

5. Alyssa Helper Senior Environmental Planner LSA Alyssa.Helper@lsa.net

6. Ricia Hager Partner Woodruff, Spradlin & Smart RHager@wss-law.com

7. The “Fair Argument” Standard Agencies are required to prepare an EIR for any project “which may have a significant effect on the environment.” (Pub. Res. Code Section 21151.)

8. Public Resources Code Section 21080(c) If a lead agency determines that a proposed project, not otherwise exempt from this division, would not have a significant effect on the environment, the lead agency shall adopt a negative declaration to that effect. The negative declaration shall be prepared for the proposed project in either of the following circumstances: (1) There is no substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment. (2) An initial study identifies potentially significant effects on the environment, but (A) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur, and (B) there is no substantial evidence, in light of the whole record before the lead agency, that the project, as revised, may have a significant effect on the environment.

9. What is the “fair argument” standard? • A non-deferential judicial standard of review • Creates a low threshold for requiring preparation of an EIR

10. CEQA Guidelines Section 15064(f)(1) If the lead agency determines there is substantial evidence in the record that the project may have a significant effect on the environment, the lead agency shall prepare an EIR (Friends of B Street v City of Hayward (1980) 106 Cal.App.3d 988). Said another way, if a lead agency is presented with a fair argument that a project may have a significant effect on the environment, the lead agency shall prepare an EIR even though it may also be presented with other substantial evidence that the project will not have a significant effect (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68).

11. Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988 Project: • Street improvement project, which included removal of trees, street parking, stores and residential structures, and construction of a bridge

12. Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988 Holding: • If an agency is presented with a “fair argument” that a significant environmental impact may occur, an EIR must be prepared even if the agency has substantial evidence to support their conclusion of no significant impact

13. Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 Project: • Amend County’s Aggregate Mining Plan to change land use designation from agricultural to mining; allow applicant to mine on part of that land; and amend a reclamation plan

14. Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 Holding: • No deference to agency decision because “sufficiency of the evidence to support a fair argument” is a question of law. • Expert testimony presented a fair argument even when other experts disagreed

15. Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 Project: • Residential development of 139 single family lots on 20.6 acres of undeveloped land. Previously approved Planned Unit Development zoned land for townhouses or similar developments • Project was strongly opposed by neighbors and was denied by the Planning Commission

16. Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 Holding: • Detailed factual observations by area residents (lay testimony) may constitute substantial evidence of land use and aesthetic impacts. No special expertise required for nontechnical subjects.

17. Trends in Recent Cases:Expert & Lay Opinions

18. Question: When does expert and lay opinion constitute substantial evidence of a fair argument triggering the requirement to prepare an EIR? • Answer: It depends.

19. Clews Land and Livestock, LLC v. City of San Diego (2018) 19 Cal.App.5th 161 Project: • Small high school, including one building and three classrooms on a previously developed site • Historic farmhouse would remain on the property • Adjacent to the Clews Horse Ranch, who objected • Adopted a Mitigated Negative Declaration

20. Clews Land and Livestock, LLC v. City of San Diego Evidence: • Staff comments • Lay opinion • Opponent’s fire safety expert • Opponent’s noise expert

21. Clews Land and Livestock, LLC v. City of San Diego Fire Safety Expert’s Opinion Rejected: • Focused on existing environmental hazards (effect of the environment on the project) • Expert’s “general observations” without ties to the project could not create a fair argument • Expert’s comments re: unaddressed topics cannot create a fair argument without some showing that they may create a significant effect on the environment

22. Clews Land and Livestock, LLC v. City of San Diego Lay Opinion on Traffic Impacts Rejected: • Opponents claimed road was narrow, had blind corners, and could not accommodate 117 additional trips • Court found the road was long and straight – deferring to the public agency on issues of credibility • Other predictions of significant impacts were not enough to create a fair argument without specific facts in the record

23. Clews Land and Livestock, LLC v. City of San Diego Take Away: • MND UPHELD! • As to “direct issues of credibility” a Court will defer to the public agency • Including evidence that is clearly inaccurate, erroneous, ill-founded, or unsubstantiated *Best Practice – make a record showing how these issues were evaluated!

24. Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877 Project: • Dream Center to house 63 young adults and to provide counseling, education, job training, activities for residents, and health and wellness center • Would utilize an existing 69-bed defunct hospital • City adopted Negative Declaration • Negative Declaration upheld

25. Jensen v. City of Santa Rosa – Take Away Evidence: • Noise impact predictions by project opponents were non-expert opinion • Noise impacts predictions by project opponents were based on speculation about traffic and did not consider the project-imposed parking restrictions

26. Keep Our Mountains Quiet v. County of Santa Clara (2016) 236 Cal.App.4th 714 Project: • The County authorized a limited number of weddings and other events on a property located in the Santa Cruz Mountains • Adopted a Mitigated Negative Declaration

27. Keep Our Mountains Quiet v. County of Santa Clara Take Away: The public may provide opinion evidence when expertise is not required, and there is an adequate basis for the opinion *personal observations

28. Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358 Project: • 9100 sq. ft. Dollar General Store on 3 vacant lots on historical Main Street in Georgetown, a State Historical Landmark

29. Georgetown Preservation Society v. County of El Dorado Holding: • EIR required because record contained substantial evidence showing a fair argument of potential significant aesthetic impacts • County’s application of its Historic Design Guide principles was not dispositive of CEQA fair argument question

30. Georgetown Preservation Society v. County of El Dorado Evidence: • Multiple fact-based comments from residents that Project’s size, scale and monolithic appearance would be inconsistent with historic Main Street

31. Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677 Project: • 9100 sq. ft. Dollar General store in community of Joshua Tree

32. Joshua Tree Downtown Business Alliance v. County of San Bernardino Holding: • EIR not required because record did not contain substantial evidence showing a fair argument that Project might cause urban blight

33. Joshua Tree Downtown Business Alliance v. County of San Bernardino Evidence: • Comments from local business owner/lawyer regarding Project’s potential to cause urban blight • Not sufficient because commenter was not an economist and comments not fact-based

34. Protect Niles v City of Fremont (2018) 25 Cal. App.5th 1129 Project: • Mixed use development with commercial uses and 85 townhomes at entrance to historic district

35. Protect Niles v City of Fremont Holding: • EIR required because record contained substantial evidence showing fair argument that Project might cause significant adverse impacts to aesthetics and noise

36. Protect Niles v City of Fremont Evidence • Fact-based testimony from residents and officials that Project’s size, siting, massing, scale, materials, and textures would be inconsistent with historic town center • Fact-based testimony from residents that reduction in level of service from level “E” to “F” would  cause excessive queuing and traffic hazard for drivers turning left into Project • Staff balanced risks and benefits of proposed left-turn lane

37. Protect Niles, Georgetown Preservation Society, and Joshua Tree Take Away?

38. Got A Fair Argument? The Checklist

39. 1) Generally - Is There Substantial Evidence? • Facts? • Reasonable assumptions based on facts? • Expert opinion supported by facts?

40. 2) Generally - Or Does the Evidence Fail to Meet the Test? • Argument • Speculation • Opinion or narrative without a basis • Clearly inaccurate or erroneous • Not credible • Social or economic impacts that do not result in physical impacts to the environment

41. 3) Generally – Is The Opinion Relevant? • Tied to the project? • Or just general observations regarding the type of alleged impact?

42. 4) Specifics – Evaluating Lay Opinion • Does the witness have personal knowledge of the facts? • Is it a subject on which lay testimony is appropriate? • Is the testimony credible? • Any other reasons why the evidence is not credible *Recommended Best Practices • Make a record throughout the process • Respond to comments presented both before the hearing and at the hearing

43. 5) Specifics – Evaluating Expert Opinion • Is the evidence based on relevant facts? • Is it specific to the project or simply general criticisms or observations? • Does the evidence adequately explain why a significant impact may be the result? • Is the evidence within the expert’s field of expertise? • Is the evidence credible? *Recommended Best Practices • Make specific findings why the opinion does not create a fair argument • Don’t ignore expert opinion

44. Recommended Best Practices

45. When to Prepare an IS/MND or an EIR • Public Controversy- • Identify the likelihood for a legal opposition and identify known opposition groups • Have opposition groups already formulated? • Are there local community members speaking out against the project? • Has your project been in the newspaper before you started the environmental process? • If there is a high level of controversy from the outset, prepare an EIR High Level of Risk Prepare an EIR • If no controversy, proceed with document of choice

46. When to Prepare an IS/MND or an EIR • Budget and Schedule-These are generally the two primary considerations • Risks: If you start with MND, you may spend more time and money trying to make it legally defensible than if you started with an EIR. Also more time and money starting over with EIR Example: You prepare an MND for a Marina rehabilitation project and engage boat owners to ensure you address their concerns in the MND. Unbeknownst to you, paddle boarders, kayakers, and swimmers form their own opposition group and raise new environmental issues. Given the new issues brought forth by the opposition groups and the controversy surrounding the project, what level of document would you prepare? Would you continue with an MND?

47. Determine the Appropriate Level of Environmental Documentation for your Project • Start by preparing an Initial Study • If everything can be identified as having “no impact” or a “less than significant” impact, consider preparing an ND or MND • If you have “Potentially Significant” impacts, consider preparing an EIR • Prepare technical studies first • Identify potential significant adverse impacts that would put you in EIRterritory • Identify features that can be incorporated into the project’s design to ensure the project is self-mitigating. Potential to prepare MND or even CE

48. Determine the Appropriate Level of Environmental Documentation for your Project • Prepare technical studies first continued… • If impacts are just below or close to a threshold level, consider an EIR • A “fair argument” could be made that someone else preparing the technical analysis could identified impacts above the threshold Example: You prepare analysis for a residential project and you find that the project would have 3,480 metric tons (MT) of carbon dioxide equivalent (COe per year). The threshold for residential uses is 3,500 MT per year. As such, you may want to consider the fair argument that different inputs would result in operational emissions above the threshold for residential uses. Example: You prepare a noise study for a commercial project that is adjacent to residential uses and a school. The results of the study show that you may have a significant adverse noise impact. You determine that the noise impact can be avoided with a noise wall. Incorporate noise wall in the project’s design so the project is self-mitigating and proceed with an MND.

49. Determine the Appropriate Level of Environmental Documentation for your Project • Reliance on Previous Environmental Documentation • Consider the adequacy of the previous documents • Would the technical studies still hold up in court? • Could a fair argument be made that newer technical analyses would show the project has a significant adverse impact? • If relying on older studies, prepare a Subsequent EIR rather than an MND • Consider preparing more recent studies when preparing an MND

50. When in Doubt, Prepare an EIR • Example: Your project involves the installation of a new electronic billboard near a freeway. Most environmental impacts seem to be clearly less than significant and you feel you can mitigate aesthetic impacts related to light and glare. However, there is significant controversy surrounding the project due to opposition from local business owners in the area. Consider a Focused EIR that centers on aesthetic impacts to help shield your project from controversy. • Consider preparing an EIR when the risk level for litigation is high, even if environmental impacts are low • Don’t be afraid of EIRs! • An Initial Study or Focused EIR can reduce the scope of an EIR.