e-Bulletin: Court Rules that Residential Development Project Requires EIR

The Court of Appeal of California, Second Appellate District recently held that a mitigated negative declaration (“MND”) prepared by the City of Los Angeles for a 21-unit residential development project was improper under the California Environmental Quality Act (“CEQA”) because a fair argument existed that the Project would have significant environmental impacts on wildlife and traffic.   The Court ruled that the City must prepare an Environmental Impact Report (“EIR”).  The Court also held that the Project’s administrative record should have included documents relating to prior versions of the Project and that the record could be augmented through the use of a request for judicial notice.

The Court found evidence in the record that the Project site contained many types of animal life and was used as a movement corridor for many small animals.  In addition, numerous residents stated that they had seen many types of wildlife on the property, and the City admitted that the site contained hundreds of trees.  Despite this evidence, the City concluded that “no impacts” to wildlife would result from the Project.  The Court held that the City failed to explain the inconsistencies of its significance determination with the other record evidence, hence there was a fair argument that significant impacts to wildlife would occur and an EIR was required.

The Court then analyzed impacts to traffic.  Several residents stated that the street serving the proposed Project was too narrow to accommodate any increase in traffic.  The City Department of Transportation stated that the street was a “collector street” which would have to carry traffic from surrounding areas.  In defense, the City pointed to a significance threshold established by the City Department of Transportation – providing that traffic impacts were negligible for projects of 40 or fewer residential units.  The Court rejected this, holding that public agencies cannot use a significance threshold to ignore substantial evidence of an impact’s potential significance.  Based on record evidence, the Court found that a fair argument existed that substantial impacts to traffic may occur and an EIR was required.

Finally, the Court considered Mejia’s request for judicial notice of numerous documents relating to earlier versions of the Project.  The City argued that Mejia’s attempt to add materials to the administrative record could only be achieved through a noticed motion to augment the record.  The Court rejected this argument, finding that the request for judicial notice was the practical equivalent of a motion to augment and that Public Resources Code section 21167.6(e) required that documents relating to prior versions of a project be included in the record.