Court Bars CEQA Challenge To Post-EIR Approvals “In Furtherance” Of Previously Approved Project
CEQA requires that, before a public agency approves a project which may adversely affect the environment, the agency must conduct environmental review of the “whole” of the proposed project. In Van De Kamps Coalition v. Board of Trustees of Los Angeles Community College District, the Second District Court of Appeal has clarified that the statute of limitations period to challenge environmental review runs from the agency’s initial project approval of the project as a whole, and is not re-triggered by subsequent approvals which merely implement the already-approved project.
Van de Kamps Coalition provides guidance for determining when a proposed action is sufficiently well-defined to constitute a “project” for which environmental review must be prepared. The case is also instructive in describing when subsequent approvals related to an already approved project do not trigger any obligation to conduct further environmental review.
Nevertheless, developers, public agencies, and legal practitioners should not read too much into the new case. The case does not hold that environmental review is never required for subsequent approvals related to a project. CEQA requires an agency to prepare “subsequent or supplemental” environmental review for subsequent approvals that constitute a “substantial change” which will cause new or substantially more severe significant environmental impacts. Therefore, before approving project-related activities after initial project approval, agencies should carefully evaluate whether the approvals may proceed without further review, as activities comprehended in the initial approval that simply “further” project implementation, or whether they are substantial changes to the project, which may require subsequent or supplemental environmental review.
Van De Kamps Coalition concerns multiple challenges to agency approvals for reuse of a historic building site. The City of Los Angeles initially certified an Environmental Impact Report (“EIR”) to demolish the historic structure and replace it with a retail store. The Los Angeles Community College District (“District”) later acquired the site and prepared a new proposal to renovate the structure as a community college campus. In doing so, the District adopted an “EIR update” and two addenda to the City’s EIR, to analyze the District’s proposed use. By 2008, however, the District realized it would not be able to use the site immediately. In 2009 the District adopted resolutions approving an interim use of the property by an outside tenant. The District concluded that no additional environmental review was required for the interim use, because the site would have the same “functionality” as was planned and reviewed in the District’s EIR update and addenda. Later in 2009, the District approved expenditures to redesign the building and acquire property adjacent to the site. Project opponents filed a CEQA lawsuit on January 11, 2010, challenging all three of the District’s 2009 approvals (“CEQA I”).
In 2010, while the “CEQA I” lawsuit was pending, the District took additional actions related to re-use of the property, including approvals of a finalized lease, minor building renovations, and amendments to a design contract (the “2010 approvals”). After failing to obtain court approval to amend the pleadings in CEQA I to add claims based on the 2010 approvals, project opponents filed a separate, second CEQA lawsuit on November 19, 2010 (“CEQA II”).
The trial court sustained the District’s demurrer to CEQA II. In upholding demurrer, the trial court held that the 2010 approvals did not constitute a new “project” for which environmental review was required under CEQA.
The Second District Court of Appeal upheld the trial court’s ruling. The court cited the California Supreme Court’s ruling in Save Tara v. City of West Hollywood, which held that CEQA review must be conducted for the whole of a project at the time of the agency’s “earliest commitment” to the project, “even though further discretionary governmental decisions would be needed before any environmental change could occur.” The Court of Appeal held that the statute of limitations under CEQA began to run from the District’s initial 2009 approval of the project. The Court held that no new statute of limitations was triggered by the 2010 approvals, which the Court held were not new projects, but rather were merely subsequent approvals “in furtherance” of the project approved in 2009. The Court further held that no new limitations period was triggered because the project opponents did not allege that the 2010 approvals were a “substantial change” to the previously approved project, and so did not allege a requirement for subsequent or supplemental environmental review.