the Project before the issuance of the notice of determination. See Pub. Res. Code § 21177; Citizens for Clean Energy v City of Woodland (2014) 225 Cal.App.4th 173, 191 (finding that any party who has objected to the project’s environmental documentation may assert any issue timely raised by other parties).
I. THE PROJECT WOULD BE APPROVED IN VIOLATION OF THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT
A. Background Concerning the California Environmental Quality Act The California Environmental Quality Act (“CEQA”) is designed to inform decision makers and the public about the potential, significant environmental effects of a project. 14 California Code of Regulations (“CCR” or “CEQA Guidelines”) § 15002(a)(1). “Its purpose is to inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR ‘protects not only the environment but also informed self-government.’ [Citation.]” Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 564. The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” Berkeley Keep Jets Over the Bay v. Bd. of Port Comm’rs. (2001) 91 Cal. App. 4th 1344, 1354 (“Berkeley Jets”); County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810.
Second, CEQA directs public agencies to avoid or reduce environmental damage when possible by requiring alternatives or mitigation measures. CEQA Guidelines § 15002(a)(2) and (3). See also, Berkeley Jets, 91 Cal. App. 4th 1344, 1354; Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553; Laurel Heights Improvement Ass’n v.
Regents of the University of California (1988) 47 Cal.3d 376, 400. The EIR serves to provide public agencies and the public in general with information about the effect that a proposed project is likely to have on the environment and to “identify ways that environmental damage can be avoided or significantly reduced.” CEQA Guidelines § 15002(a)(2). If the project has a significant effect on the environment, the agency may approve the project only upon finding that it has “eliminated or substantially lessened all significant effects on the environment where feasible” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns” specified in CEQA section 21081. CEQA Guidelines § 15092(b)(2)(A–B).
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B. The EIR Must Be Recirculated Since New Significant Information Was Added to the EIR and Must Provide Adequate Responses to Comments.
CEQA requires recirculation if new significant information is added to the EIR after the Draft EIR is circulated. CEQA Guidelines § 15088.5. CEQA provides “examples” of issues that trigger recirculation as: (1) new significant impact would result from a new mitigation measure proposed to be implemented, (2) a substantial increase in the severity of an environmental impact would result unless mitigation measures are adopted to reduce those to insignificant levels; (3) a feasible project alternative or mitigation measure considerably different from others previously analyzed would clearly lessen the significant impacts; (4) “the draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded.” Id. at subdivision (a). Moreover, recirculation requires notice pursuant to Section 15087, and consultation pursuant to Section 15086. CEQA Guidelines section 15088.5(d).
Here, the FEIR lists the above-mentioned requirements and provides: “Only minor changes to the text of the Draft EIR occurred since public circulation, and none of the changes constitute “significant new information,” which would require its recirculation. …. None of these circumstances have arisen from comments on the Draft EIR; therefore, recirculation is not required.” (FEIR, 1-3.) And yet immediately after those introductory pages, the FEIR provides an extensive comment letter from California Department of Fish and Wildlife (“CDFW”), which, inter alia, identifies numerous omissions in the EIR about the potential protected species, requires their disclosure, as well as provides numerous mitigation measures. The City’s response to the CDFW letter acknowledges the omissions in the EIR, as to some omissions, it claims the EIR, despite its circulation in 2023, was based on studies and baseline in 2019 where some species were not yet identified as protected, and ultimately adds new mitigation measures to the EIR, which had not previously been circulated to the public. As such, contrary to the City’s claims that “none” of the circumstances triggering the recirculation in the EIR occurred, the draft EIR was indeed inadequate as it failed to provide full and complete disclosures about biological impacts or their severity, and it also failed to provide mitigation measures for same.
Those issues trigger new notice and recirculation of the EIR.
In addition, per the City’s Staff Report of June 20, 2023 (“Staff Report”), which appears to suggest that Alternative 3 is the proposal to be adopted, “All of the impacts City of Santa Clarita – Shadowbox Studios Project
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of the proposed Project can be mitigated to a less than significant level. Alternative 3 would have lower impacts in areas of air quality, energy, GHG emissions, public services, transportation, and utilities; however Alternative 3 would still require the same mitigation measures as the project to ensure impacts remain less than significant.” (Staff Report, p. 3.) To the extent the City now claims that Alternative 3 will have no impacts with the proposed mitigation measures, including the new biological resources mitigation measures proposed by CDFW and somewhat added to the FEIR, the conclusion of no significant impacts to biological impacts with Alternative 3 is unsupported, since the Draft EIR had not even disclosed, let alone considered numerous biological impacts and had not even considered whether the FEIR’s added mitigation measures would indeed reduce the biological impacts to the less than significant level. As such, recirculation is required to disclose the biological impacts of the Project and the feasibility or efficiency of the proposed mitigation measures, as well as to analyze and show whether the Project’s impacts with Alternative 3 would indeed be reduced to the level of insignificance.
Similar to the comments from CDFW, the FEIR contains the comment by Paul Hubler, Chief Strategy Officer Southern California Regional Rail Authority/ Metrolink, who identified potential infeasibility of the proposed Project or road infrastructure improvements, as well as the omissions in the Draft EIR re same, stating:
“The proposed modifications to the roadways at the railroad crossings and the railroad crossings themselves should account for the future addition of more tracks through the crossing. Given the width of the right of way here, the design should support up to at least three tracks being added. In addition, the Site Plan (Exhibit 3) seems to show the development encroaching on the ROW , which would not be acceptable. This would need to be clarified, as it is not possible to tell what the encroaching elements are from the level of detail in the image.” (Emph. added.)
The identified and emphasized issues in the quote above show potential significant impacts and also omissions in the EIR. Yet, the City’s response to that comment solely provides:
“The proposed grade crossing modifications layout and the number of tracks were closely coordinated with Metrolink for several years, including multiple diagnostics meetings, an d do not preclude City of Santa Clarita – Shadowbox Studios Project
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expansion for additional tracks. The Metrolink Engineering team reviewed and accepted the proposed configuration. The proposed grading within the ROW was requested by the Metrolink Engineering team to address some drainage erosion to the existing tracks. If Metrolink would like to change this request, the Project would be able to accommodate that accordingly.” (Emph. added.)
As such, the City’s response ignores the omissions in the EIR, the commenter’s request for more specification to allow meaningful informed review and comment, and only suggests that the Project or its location was previously accepted and, upon Metrolink’s request, may change accordingly. Similarly, the City’s summary response that the proposed project or its expansion of tracks is acceptable because it was previously coordinated with Metrolink is inadequate. There is no record of what those discussions entailed, what was previously requested by Metrolink or whether the City indeed incorporated those requests. In fact, in light of Metrolink’s comment, it is quite likely that the City failed to incorporate Metrolink’s suggestions at all. Moreover, the fact that the Project may be repositioned or changed to prevent grading in the ROW further suggests that the Project’s description is not complete, accurate, finite or stable.
All of this information is significant and requiring recirculation of the EIR.
In addition, Metrolink’s comment provides other general comments and recommendations to mitigate various impacts, including noise. To those, the City lists a number of changes to be implemented to accommodate and yet does not discuss those changes or actions and their related impacts in the circulated Draft EIR. As just an example (intended to be simply illustrative and not conclusive), Metrolink proposed a 6 foot fence, whereas the City provides that the fence will be 12 feet high.
Specifically, to address Metrolink’s recommendations, the City provides the following list, in pertinent parts:
“2. All trees would be set back from the railroad ROW to avoid encroachment into railroad property.
3. A 12-foot tall security fence primarily made of woodcrete would be installed along the majority of the perimeter of the Project Site. Open rail wrought iron fencing would be installed along the southwestern corner of the Project Site, adjacent to the proposed office building.
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4. The proposed support building, which would extend along the majority of the western boundary of the Project Site, would provide the necessary acoustical buffer from the railroad noise to the sound stages.
5. The Project will coordinate with the California Public Utilities Commission (CPUC) and SCRRA and secure required permits and/or approvals regarding any proposed roadway/railroad or pedestrian/railroad crossing improvements associated with the Project.
6. The Project will coordinate with the CPUC and SCRRA and secure required permits and/or approvals regarding any utility lines crossing the railroad ROW.
7. Pole-mounted drive aisle lights would be installed along the 12-foot tall woodcrete fence along the western boundary of the Project Site.” (Emph. added.)
The emphasized issues in the above-quoted paragraph indicate potential significant impacts that the Draft EIR had not discussed or even identified. For example, the location of new trees along the railroad ROW raises an issue about whether those trees will be able to survive. The Project proposes to remove 13 mature protected oak trees, potentially reduced to only 12 oak trees; in turn, the Project proposes to plant many new trees. But the fact that the new trees would be planted close to the ROW suggests that they may not necessarily be able to survive. The Draft EIR needs to be recirculated to ensure that the new trees’ location will allow them to grow and thereby if the impacts caused by the removed oak trees will indeed be mitigated to the less than significant level.
Similarly, the fact that a 12-foot tall security fence made of woodcrete would be installed instead of the Metrolink’s proposed 6-foot fence suggests the Project may have aesthetic impacts which had not been considered or mitigated in the Draft EIR.
Also, the City’s comment that “necessary acoustical buffer” would extend along the majority of the Project’s western boundary to reduce noise impacts fails to provide complete information about what that acoustical buffer would be and hence fails to provide any evidence as to whether such unidentified buffer will indeed reduce the Project’s noise impacts to the level of insignificance, as the Final EIR appears to claim for Alternative 3. As such, the Final EIR is incomplete and inaccurate as it omits critical information about the noise impacts.
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The FEIR also proposes that there will be lighting on the 12-foot fence; while such lighting will ensure safety and deter improper railroad crossing, they also raise new aesthetic impact issues as they will become a source of new light and glare, especially on the 12-foot fence, instead of the 6-foot one as proposed by Metrolink.
Similarly, the South Coast Air Quality Management District (“SCAQMD”) comment mentions that the Draft EIR failed to provide an accurate estimate of the Project’s operational impacts in light of the potential use of generators and portable or stationary devices that would have emissions, fails to disclose health impacts of the Project in light of the air quality and GHG impacts, recommends a Health Risk Assessment, as well as mentions that the Project is located within 25 feet of residential development. The City’s response to this comment and concern is:
“The comment notes that the Draft EIR included the operation of six emergency generators operating for up to four hours per day. The comment further stated that, given the nature of the Project, other stationary sources, such as boilers , internal combustion engines, and spray booths, could be typical of the film and television studio campus. It further asserts that failing to account for these additional sources could lead to an underestimation of the total operational emissions.
Subsequent to the initial analysis, it was determined that no generators would be included as part of the base Project. Generators , as needed, would be brought on-site by individual production entities, which would need to permit the generator use independent of the Projec t development. No changes to the emissions inventories in the Draft EIR have been made as emission levels are less than significant even with the inclusion of emissions from the previously assumed six generators.
Thus, the emissions inventory and impact an alysis in the Draft EIR are conservative.
Currently, it is unknown if any other permitted or non-permitted stationary or portable sources of toxic air pollutants (TACs) or pollutants would be included as part of the Project. Therefore, the EIR correctly analyzed the known. CEQA does not require the analysis of activities that are not known parts of the Project. It would be speculative City of Santa Clarita – Shadowbox Studios Project
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at best to assume any of the mentioned sources. Accordingly, no additional analysis is necessary.
Additionally, the comment states that daily values for generator emissions were multiplied by 12 to derive the maximum emissions of four hours per day but was unable to determine how the emissions, specifically diesel particulate matter (DPM), were calculated. As stated in the assumptions, the six generators were assumed to be Tier 3 based on the data sheet for the model anticipated to be used. The generators were assumed to operate 20 mi nutes per month for testing ….” (FEIR, p. 2-71, emph. added.)
The City similarly claims:
“The comment states that the Draft EIR did not contain a comprehensive assessment of health risk associated with mobile , stationary, and portable sources during Project operations . As discussed in detail in Response to Comment No. A3 -3 above, there are no additional known sources of stationary or portable TACs associated with the operation of the Project. Additionally, generators would not be part of the P roject and, as needed, would only be implemented by production that was leasing space from the studio.
These generators would need to be permitted through the South Coast AQMD and the risk associated with the generators would be required to be below regulatory thresholds as part of the permitting process.” (FEIR, p. 2-73, emph. added.)
The City’s response fails CEQA mandates. In the face of the expressly identified six generators in the EIR running for at least 4 hours a day, the City now claims no generators will be used – solely to avoid studying their emission impacts and rebut the agency’s challenge about the EIR’s underestimation of same. The City further uses this disclaimer of the use of generators to support its conclusion that no Health Risk Assessment is required. As for operational and stationary devices and their operational emissions and impacts as is typical for the nature of the Project, the City’s response is merely that those devices will be used by individual leasing production companies and will require respective permits and therefore their use is unknown at this time and any analysis would be speculative. Notably, the City does not deny that the Project’s operation may utilize such stationary or portable devices. The City’s response as to the City of Santa Clarita – Shadowbox Studios Project
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emissions, reliance on future permitting, and refusal to require a health risk assessment despite the acknowledged possibility of such additional operational emissions in close proximity to the residential sensitive receptors is error. While CEQA does not require to speculate, what the SQACMD pointed out is not speculation – it is a reasonably foreseeable impact related to the nature of the Project and therefore needs to be considered in the worst case scenario. That the individual production companies may or may not seek permits for the use of their devices in the future does not obviate the need for the City to account for their potential use in the EIR and estimate their emission impacts and health risks, especially where the Project is so massive and also so close to the residential areas. In other words, that the Project may not have impacts is not relevant for CEQA – what matters is that the Project may have impacts due to the potential use of production company devices. Hence, the City may not avoid their impacts by claiming such analysis would be speculative.
The above-noted examples in the omissions and inadequate responses of comments by the City in the EIR are merely illustrative. The City should recirculate the EIR to remove all inconsistencies and include the information that even state agencies identified as omitted in the EIR, as well as should include a complete and accurate information about the Project, its impacts, and its proposed mitigation measures, including for biological impacts, noise, air/GHG, and health impacts of the Project.
B. The Project Description Is Inadequate.
The DEIR must be recirculated because it also lacks an adequate Project description. “[A]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient” environmental document. County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 200. “A curtailed or distorted project description may stultify the objectives of the reporting process” as an accurate, stable, and finite project description is necessary to allow “affected outsiders and public decision-makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal (i.e., the “no project” alternative) and weigh other alternatives in the balance. Ibid. at pp. 192-93, see also Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357, 365 [212 Cal.Rptr. 127]. “CEQA compels an interactive process of assessment of environmental impacts and responsive project modification which must be genuine. It must be open to the public, premised upon a full and meaningful disclosure of the scope, purposes, and effect of a consistently described project, with flexibility to respond to unforeseen City of Santa Clarita – Shadowbox Studios Project
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insights that emerge from the process.” (Id., at p. 366, internal quotation marks omitted.) (Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 592, emph. added.)
CEQA Guidelines, section 15124 requires a project describe in enough detail to allow for evaluation of its potential environmental impacts: (a) the project’s precise location and boundaries; (b) a clearly written statement of objectives sought by the proposed project; (c) a description of the project’s technical, economic, and environmental characteristics; and (d) a statement describing a list of agencies, permits, and approval which the project expects to use.
For reasons provided above, including the lack or use of generators, the use of operational stationary or portable production devices, the added mitigation measures or potential design changes in the Project to mitigate impacts, the Project fails to provide an accurate, finite, and stable Project description and thereby precludes meaningful public comment.
Further, the Staff Report provides:
“As such, the overall development footprint and grading for Alternative 3 would be the same as the proposed project, and have the same oak tree impacts. Alternative 3 would still use the Metropolitan Water District (MWD) property for excess parking. Lastly, Alternative 3 would require the same roadway improvements as the proposed project. With a reduction in the overall project size, the employment numbers for the studio facility would be reduced by approximately 10 to 15 percent, reducing the number of individual one -directional trips to 5,494 as compared to the 6,993 individual one-directional trips generated by the project.” (Staff Report, p. 3, emph. added.) The Staff Report further provides that the Alternative 3 will reduce the impacts of the Project to less than significant. However, that conclusion is inaccurate as it appears to consider only part of the Project’s impacts, and ignores the reasonably foreseeable impacts of the street improvements that the Project proposes with Alternative 3. Thus, per the Staff Report’s information – improperly missing from the EIR – the Project proposes significant street improvements, including adding of numerous lanes on different streets:
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• Widening of the rail crossing at 13th Street and Railroad Avenue from two traffic lanes to five traffic lanes. In addition to widening of the intersection, the railroad crossing would be upgraded to meet the current safety standards as directed by the California Public Utilities Commission (CPUC); • Widening of 13th Street from two traffic lanes to six traffic lanes, Arch Street from two traffic lanes to six traffic lanes, and 12th Street from two traffic lanes to three traffic lanes;
• Installation of a four-leg, signalized intersection at 13th Street and Arch Street; • Installation of a four-leg, signalized intersection at Arch Street and 12th Street; and
• Installation of a three-leg, half signalized intersection of Placerita Canyon Road and Dockweiler Drive.
• Requiring the 13th Street at-grade crossing to stage construction such that access to Placerita Canyon will remain open during construction.” (Staff Report, p. 3, emph. added.)
Beyond omission of this information in the original EIR, requiring recirculation, the above-noted changes also suggest that, by adding so many lanes on so many streets, the Project will also induce other local or regional travel unrelated to the Project’s own employees. Yet, the EIR fails to consider this reasonably foreseeable impact and the Staff Report, solely based on the reduced Alternative 3 and reduced number of employees, concludes that the Project will have no significant traffic impacts.
For all the above-noted reasons, the EIR must be recirculated and accurate information about the Project’s impacts and their mitigation must be provided.
C. The EIR Is Based on Inaccurate Baseline Assumptions and Flawed Impact Analysis.
The Project has incrementally expanded over time and will likely continue to expand given its proposed phases, approximately two to three years. Currently, the Project requires discretionary actions from the City, such as certification of the Final EIR, approval of at least one conditional use permit, including one for all new development within the Planned Development Overlay and for studio use within the MXN zone, at least one Minor Use Permit for the provision of less than the minimum residential density required in the MXN zone, a tentative map to subdivide the Project site into City of Santa Clarita – Shadowbox Studios Project
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five lots, an Oak Tree Permit for the encroachment into the protected zone and removal of oak trees, a ridgeline alteration permit for proposed development activity within 100 feet vertically and/or horizontally from a designated significant ridgeline as identified in the land use element of the general plan, approval of a zone change to modify the boundaries of the Jobs Creation Overlay Zone south of Placerita Creek and to change the zoning of the northern portion of the site from NU5 to MXN, and approval of a General Plan Amendment to modify the general plan land use designation from NU5 to MXN to remain consistent with the proposed zone change and to make text changes to the discussion regarding the North Newhall Area according to the Land Use Element of the General Plan concerning allowable development potential and building height in the area (FEIR 1-2).
And yet, the Project may require permits and possible modifications, associated with its street improvements or use of various generators and stationary/portable movie production devices, or encroachment onto the ROW. The EIR fails to account for future changes or permits and fails to view those as part of the same Project.
The FEIR’s failure to consider the impacts of the whole of the action and the potential expansion of uses on the Project site or its choice to defer such analysis to a later time when individual movie production contractors apply for permits is in violation of CEQA’s piecemealing prohibition. (Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, 1208–1209 [“The requirements of CEQA cannot be avoided by piecemeal review which results from ‘chopping a large project into many little ones-each with a minimal potential impact on the environment-which cumulatively may have disastrous consequences.’ (Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283–284.”)].) The danger of piecemealing is many-fold. First, it precludes consideration of impacts of the “whole of an action” under CEQA Guidelines § 15387, as has happened here. As explained by courts:
“[O]nly through an accurate view of the project may the public and interested parties and public agencies balance the proposed project's benefits against its envi ronmental cost, consider appropriate mitigation measures, assess the advantages of terminating the proposal and properly weigh other alternatives....” (City of Santee v. County of San Diego, supra, 214 Cal.App.3d at p. 1454, 263 Cal.Rptr. 340.) Here, the f ailure to consider the expansion of the wastewater treatment plant as part of the project under consideration resulted in an inaccurate project description City of Santa Clarita – Shadowbox Studios Project
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and incomplete identification and analysis of the environmental effects of the development project (Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d at p. 829, 173 Cal.Rptr. 602.) As stated in **717 Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 166, 217 Cal.Rptr. 893, “[t]he dang er of filing separate environmental documents for the same project is that consideration of the cumulative impact on the environment of the two halves of the project may not occur. This danger was here realized.” Thus, because the FEIR did not “adequately apprise all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project,” informed decision making was precluded. The FEIR is inadequate as a matter of law. (City of Santee v. Co unty of San Diego, supra, 214 Cal.App.3d at pp. 1454– 1455, 263 Cal.Rptr. 340.) The certification by the Board of the FEIR as complete and adequate constituted an abuse of discretion. (County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at p. 200, 139 Cal.Rptr. 396.)
(San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 734–735.)
Piecemealing also alters the accurate baseline of the CEQA analysis. Thus, under CEQA, the baseline environmental conditions (to measure the Project’s impacts against) must be set as early as possible when the Project’s environmental review begins. (CEQA Guidelines § 15125(a)(1).) Here, the environmental review of the project began at least in 2019, and likely earlier, given the surveys conducted.
Further, for CEQA purposes, the fact that a project is entitled or is warranted under the general plan is not relevant for the baseline. (CEQA Guidelines § 15125(a)(3) [“An existing conditions baseline shall not include hypothetical conditions such as those that might be allowed, but have never actually occurred under existing permits or plans as the baseline.”]). So the General Plan’s designation is not relevant to the baseline or current property’s existence as a vacant lot.
Here, the Project is not even consistent with the General Plan as it seeks to change the General Plan designation. Apart from the fact that this raises a potential land use impact under CEQA, the Project’s inconsistency with the City’s General Plan is also a violation of the Planning and Zoning Law, which the EIR does not adequately City of Santa Clarita – Shadowbox Studios Project
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disclose. The Project is both vertically inconsistent with the General Plan, as well as – due to its massive proposed land use changes, including massive street modifications and infrastructure improvements – the Project also causes a horizontal inconsistency between the elements of the General Plan, including land use and circulation elements.
Yet, the Project seeks an amendment only to the General Plan’s land use element and not to the circulation element to support the changes. This omission is even more critical as the Project appears to add numerous lanes on various streets and, as such, triggers the need to amend the Circulation Element to view the proposed amendments in total, along with the City’s other circulation infrastructure.
Moreover, to the extent the City plans to omit or later amend the Circulation Element to account for the changes the Project proposes, these amendments are also in violation of both CEQA, which requires to consider the impacts of the whole of an action, and the Planning and Zoning Law, which requires concurrent amendments to the land use and circulation elements. This also raises the potential need to add an Environmental Justice Element to the City’s general plan, to ensure the Project does not affect any disadvantaged communities.
The Applicant is trying to use various 2019 baselines and surveys instead more updated or recent baselines post-covid, and thereby inflates the baseline through its 2019 approvals and other changes in the surrounding area, in order to minimize and understate the changes it proposes. This is the classic case of trying to end run CEQA, where courts agree a different baseline must be used. “Of course, were there evidence of an attempted end run around CEQA, use of a different baseline may well be appropriate.” (Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768, 781, fn. 11.) (See also, POET, LLC v. State Air Resources Bd (2017) 12 Cal.App.5th 52, 83 [use of an inflated baseline had the effect of understating the increase of impacts, requiring reversal]; County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 953 (“County of Amador”) [without an accurate baseline, the “analysis of impacts, mitigation measures and project alternatives becomes impossible.”])
The Project appears to have manifestly piecemealed the Project by initially proposing a smaller scale project for approval now and will likely incrementally increasing the scale and intensity of the Project. The Project represents a classic case of piecemealing where the same applicant fails to accurately disclose the full scope of the project during the initial environmental review and incrementally increases the project after the initial City of Santa Clarita – Shadowbox Studios Project
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environmental document is approved, in order to avoid analyzing the impacts of the “whole of the action” as CEQA requires. That is what CEQA prohibits and to which the case law is clear. (Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333, 1348–1351 [requiring an EIR for the whole of an action, including permitted and even built out single family homes and rejecting the applicant’s argument about vested rights, “Compliance with these existing laws was thus required notwithstanding the City's failures and/or Arviv's misleading project descriptions which may have prevented the City from appreciating the full scope of the proposed development.” Id. at 1350.])
For these reasons as well, the EIR must be recirculated to provide adequate disclosures about the Project’s scope, baseline, potential expansion of uses, and future discretionary actions, including the Project’s vertical and, as related, the associated horizontal inconsistency with the City’s General Plan, the need for amendment to the Circulation Element of the General Plan, and review of the Project’s proposed changes to the streets and circulation vis-à-vis the City’s existing circulation infrastructure.
II. CONCLUSION
Based on the foregoing, we respectfully request the City to deny the Project, its FEIR, and order the applicant to revise the Project to ensure its consistency with all applicable laws and regulations as detailed above, as well as to study the “whole of the action” and use the accurate bona fide project description and baseline for purposes of CEQA review. “CEQA contemplates serious and not superficial or pro forma consideration of the potential environmental consequences of a project. Leonoff v.
Monterey County Bd. Of Supervisors (1990) 222 Cal.App.3d 1337, 1347, 272 Cal.Rptr. 372; emphasis added; Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, 593, fn. 3.
If the City has any questions or concerns, please do not hesitate to contact our office.
Sincerely,
City of Santa Clarita – Shadowbox Studios Project
July 17, 2023
Jason A. Cohen
Attorneys for Southwest Mountain
States Regional Council of Carpenters