Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
2783/032881-0002
17267034.5 a12/20/21
“change” to the approved project shifted 100 residential units from one location within a transit center to another location – but was still deemed not to require preparation of a supplemental EIR where the previously-approved project contemplated the change and there was no evidence that previously-studied impacts on the environment would be significantly increased. (Id.) The Revised Addendum accurately demonstrates, with appropriate references to substantial evidence in the record, that none of the limited exceptions to Pub. Res. Code § 21166 are raised by the current CUP application. (See, Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1136–1142 [explaining why even some new technical studies and minor project changes did not trigger the need for additional detailed environmental study].)
Use of an Addendum to the prior EIR is authorized and appropriate.
The Soluri letter erroneously implies that City Staff’s preparation of the Revised Addendum to the approved Project EIR is somehow improper, but cites no legal authority for such an argument – and is flatly wrong. Use of an addendum to a previously certified EIR, such as that prepared by City Staff in this case, is expressly authorized and directed by Section 15164 of the CEQA Guidelines, which provides: “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guidelines section] 15162 calling for preparation of a subsequent EIR have occurred. [¶] … [¶] (c) An addendum need not be circulated for public review but can be included in or attached to the final EIR … . [¶] (d) The decision-making body shall consider the addendum with the final EIR … prior to making a decision on the project. [¶] (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guidelines section] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record. The explanation must be supported by substantial evidence.” The California Resources Agency’s discussion of Guidelines Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs … without recirculating the EIR …” and further explains the Guideline was adopted ... to encourage other agencies to use the device [an addendum] as a way of making minor corrections in EIRs without recirculating the EIR.” (SOHO, p. 666.) The Soluri letter errs by mischaracterizing and criticizing the City’s current Revised Addendum as though it is being presented as merely an addendum to the addendum prepared in 2015. That is an erroneous distortion of the current Revised Addendum, however, which clearly and repeatedly states that it is a “Revised Addendum to a certified Environmental Impact Report
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
2783/032881-0002
17267034.5 a12/20/21
(EIR”)” for the Project originally known as Curtis Park Village, and the EIR certified for that project in April 2010 (Resolution No. 2010-174).
That certified EIR was never challenged, and it therefore remains appropriate to use an Addendum to that EIR to address minor revisions to the Project (CEQA Guidelines § 15164.) Purported “updates to CEQA” do NOT require new supplemental CEQA review.
There is no merit to the Soluri letter’s attack on the comprehensive and current Revised Addendum, nor to the argument that the City “consultants must ... perform supplemental review of the 2010 Curtis Park Village EIR ... and base that review on new facts, available information and applicable law presently applicable [sic]....” To the contrary, the Revised Addendum is fully consistent with the “applicable law” under CEQA.
First, the argument in the Soluri letter misstates, or ignores, the express text of Pub. Res.
Code Section 21166 [the applicable state statute -- “law as it exists”] describing the three limited exceptions to the prohibition against supplemental CEQA review. The evidence and analysis in the City’s Revised Addendum makes clear that none of the three limited exceptions in PRC § 21166 are applicable. The City in preparing the Revised Addendum did properly apply “the law in existence” at this time, i.e., Pub. Res. Code Section 21166 and CEQA Guidelines §§ 151262 and 15164 – which continue to prohibit any detailed subsequent or supplemental review, with three limited exceptions which do not apply.
Second, the Soluri letter erroneously conflates alleged “updates to CEQA” with “new facts” raising significant new, previously-unstudied, impacts on the environment that might warrant supplemental review.1
It notably fails to cite any legal authority holding that purported changes or “updates to CEQA” are an exception to the rule of law as it exists prohibiting subsequent or supplemental reviews. It would be unreasonable and contrary to CEQA’s declared policy of protecting the interests of finality to require that previously-certified EIRs must undergo detailed new supplemental review just because there may have been an alleged update to the CEQA laws. The Soluri argument is not supported by any citation to case law, and is contrary to the Supreme Court’s holding in Friends, supra, explaining that subsequent review of certified CEQA documents should be “rare.”
Third, none of the alleged updates to CEQA mentioned in the Soluri letter raise the type of new “facts” or “information” about environmental impacts that might require, or even allow for,
1 California courts have historically recognized the distinction between “facts” and “laws” in many situations. (E.g., Vu v. Prudential Property & Cas. Ins. (2001) 26 Cal.4th 1142, 1151.)
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
2783/032881-0002
17267034.5 a12/20/21
supplemental review. (See, e.g., Citizens for Responsible Equitable Envt’l Dev. v. City of San Diego (2011) 196 Cal.App.4th 515, 531 [holding that “new information” on the effect of greenhouse gas (“GHG”) on climate, or climate change, was known or could have been known long before City approved a 1994 FEIR, and does not require preparation of a further or supplemental EIR]; see also, Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 807 [upholding the City’s use of multiple CEQA addenda to a 1997 EIR and finding that information about the environmental impact of GHG emissions and climate change was known since the 1970s, well before 1997 EIR and 2003 SEIR].) The Revised Addendum properly evaluates the Project under the applicable laws.
The City’s Revised Addendum to the Project EIR certified by Council properly evaluated the CUP application under applicable state and local laws, including the current and applicable limits of Pub. Res. Code Section 21166. The Soluri letter acknowledges that California appellate courts have frequently held that “the ... ordinance in effect at the time of the Council’s prior decision [denying the permit] should apply to the future development of the project, absent some state statute dictating otherwise” [emphasis by Soluri, and quoting the 1996 decision in Clark v City of Hermosa Beach, and other cases cited in Clark]. The Soluri letter does not identify any “state statute dictating otherwise” so the rehearing of this application is properly subject only to the laws in effect at the time of the previous proceedings. See Clark, supra; see also Ross v. City of Yorba Linda, supra, 1 Cal.App.4th at 969, where the Court of Appeal held .
The Soluri letter erroneously implies that the Revised Addendum, and the Council’s rehearing on the CUP application, should address vaguely-referenced “new laws,” but does not identify any state statutes, other than “updates to CEQA,” nor any local ordinances, that are supposedly applicable. To the contrary, the weight of authority (including the cases cited in the Soluri letter) holds that on re-hearing of this CUP application, the City’s ordinances and policies which were in effect at the time of the prior hearing remain applicable. In Ross v. City of Yorba Linda (1991) 1 Cal.App.4th 954, 969, for example, the Court held that the City could not lawfully apply a newly-enacted ordinance to the rehearing of a previously-denied application. The Soluri letter does not argue to the contrary.
The appellate decision in Clark (quoted by Soluri) followed the rule of other California cases broadly holding that a local ordinance in effect at the time of an earlier (reversed-on-appeal) council action should remain applicable to the reconsideration or rehearing of the same matter -- rather than a new more restrictive ordinance or statute adopted after “the final administrative decision.”
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
2783/032881-0002
17267034.5 a12/20/21
The Court of Appeal in Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App. 3d 183, 201-202, stated the rule of law, generally requiring application of the laws in effect at the time of the initial administrative action on a permit application, recognizing that the time of enactment of the new law relative to the permit application is a critical point of distinction:
[A]t bench, the new height ordinance was not enacted until after final administrative decision. Thus City should have applied the old ordinance and the trial court should have tested the propriety of City’s conduct under the ordinance existing at the time of the administrative appellate review by city council. The amendment having been passed after final administrative decision cannot support denial of appellant’s application for permit nor the petition for writ of mandamus in the trial court. ( Keizer v. Adams, 2 Cal.3d 976, 980; McCombs v. Larson, 176 Cal.App.2d 105; in accord Munns v. Stenman, 152 Cal.App.2d 543; see 169 A.L.R. 585, indicating that this view is in accord with the American weight of authority; County of San Diego v.Williams, 126 Cal.App.2d 804.)
Thus, contrary to the assertion of the Soluri letter, this rule calling for the City to apply the local ordinances “existing at the time of the administrative appellate review by the city council” is not “a narrow exception” to a purported general rule otherwise allowing application of newlyenacted ordinances on rehearing. Nor does it depend solely on a showing of “bad faith” intent to frustrate a particular project. Subsequently-enacted ordinances intended to frustrate a prior application are invalid and not applicable on rehearing,2 but that is not the only circumstance
precluding application of new law on a rehearing.
Even the case quoted in the Soluri letter (Selby Realty v. City of San Buenaventura (1973) 10 Cal.3d 110, 125, does not support such a broad mis-statement of the law, as pointed out in Gabric v. City of Rancho Palos Verdes, supra, 73 Cal.App. 3d 183, 201-202:
At footnote 11, the [Selby] court notes: The cases holding that an appellate court will apply the rule in existence at the time of deciding the appeal appear to be inconsistent with another line of authority holding that if an applicant complies with all the requirements for a building permit at the time the application is made he is entitled to a permit even though the law has been changed prior to the decision on appeal. [Citations.] These two apparently conflicting lines of cases have been distinguished on the ground that the change in the ordinance is deemed inapplicable
2 E.g., Keizer v. Adams (1970) 2 Cal.3d 976; Ross v. City of Yorba Linda, supra, 1 Cal.App.4th at 969; Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App. 3d 183; Munns v. Steadman (1957) 152 Cal.App.2d 543.
Mindy Cuppy, City Clerk
Leslie Walker, Senior Deputy City
Attorney
Tom Pace, Director,
December 20, 2021
2783/032881-0002
17267034.5 a12/20/21
if its enactment stemmed from an attempt to frustrate a particular developer’s plans. [Citations.]” (At p. 126.)
Of course, Selby does not hold that an attempt to frustrate a particular developer’s plans is the only criterion or reason why a subsequent change in the law should not be applied. That is simply the assessment by Selby of the distinguishing feature between the two lines of cases and is but a repetition of one consideration made in Russian Hill Improvement Assn. v. Board of Permit Appeals, supra, 66 Cal.2d
34.) There are other circumstances which should be considered.
As explained by the Court of Appeal in Gabric, above, the rule precluding application of newly-enacted ordinances to the rehearing of a land use application does not depend on a showing that the newly-enacted ordinance was adopted in a “bad faith” effort to frustrate the applicant’s plans. For example, in the Clark case the Court did not mention “bad faith” but simply explained that a newly-enacted restrictive ordinance was inapplicable on rehearing because it would leave the applicant “without a remedy” for the City’s previous mishandling of the administrative appeal. (48 Cal.App.4th at 1177, fn. 26.) See also, Schneider v. California Coastal Comm. (2006) 144 Cal.App.4th 1339, 1342, where the Court of Appeal (citing Clark) remanded for a new hearing, and expressly directed that “on rehearing, Coastal Commission may not consider” unauthorized view-protection goals – without any implication that the Commission had acted “in bad faith.” For all of the foregoing reasons, as well as the reasons provided in the Revised Addendum itself, it is respectfully submitted that the letter from Mr. Soluri fails to demonstrate any error in the use of an addendum to the extensive EIR that was properly certified by the Council in 2010, or any inadequacies in the content of the current comprehensive Revised Addendum. It is therefore respectfully requested that the Council favorably consider and approve the Revised Addendum in connection with the rehearing of this matter. Thank you for your consideration.
RUTAN & TUCKER, LLP
David P. Lanferman
DPL
VIA PERSONAL DELIVERY & E-MAIL
Mindy Cuppy, MMC
City Clerk
City of Sacramento
915 I Street,
Sacramento, California 95814
[email protected]
Re: Request for Continuance - Public Hearing item 20 (Rehearing-Third Party Appeal: Curtis Park Village Fuel Center), January 4, 2022; File ID: 2021-01331
Dear City Clerk,
The City of Sacramento, Council Rules of Procedure, Chapter 6, Rule F 4(a)(i) (along with any other applicable law, ordinance, rule of procedure, or otherwise) provides that the applicant scheduled for a public hearing before the Council may obtain one continuance of such hearing as a matter of right. As applicant, I am writing to request a continuance of public hearing item 20 (Rehearing-Third Party Appeal: Curtis Park Village Fuel Center, File ID: 2021- 01331) that is currently scheduled to be heard by the City Council on January 4, 2022. Please let us know the rescheduled hearing date at your earliest convenience.
If you have any questions, please contact my in-house counsel, John M. Cox, via email ([email protected]).
Sincerely,
Paul S. Petrovich
cc: Leslie Walker, Senior Deputy City Attorney (via e-mail only) Jason Smith, Smith McDowell Powell (via e-mail only)