A mitigated negative declaration for a never-built project cannot be used for a subsequent, similar project proposed for the same site, the Third District Court of Appeal has ruled.

The court rejected the City of Placerville’s use of a seven-year-old mitigated negative declaration with a new addendum for a proposed hotel and retail development. The court ruled that projects proposed for the same site in 1997 and 2004 were unrelated, and the California Environmental Quality Act (CEQA) required an independent review of the latest proposal.

For two decades, various developers have pitched projects for the 8.2-acre site — in a rural residential area just north of Highway 50 in the Gold Rush city — involved in this case. In 1986, the city approved a 100-unit motel for a portion of the property. Two years later, the city approved a 104-unit motel, restaurants, banquet facilities, lounge, retail area and gas station for the property. Nothing got built, and when the proponent resubmitted plans for the latter project in 1995, the city said no.

In 1997, the city approved the North Point project consisting of a 106-unit motel, restaurants, and a gas station with a convenience store and car wash. The project also involved a new road to provide better Highway 50 access. The city approved the project based on a mitigated negative declaration that said potentially significant impacts — such as increased runoff, traffic, noise, light and glare, and intrusion into wetlands — could be offset to less than significant levels.

Again, no development occurred. In 2004, developer Edward Mackay submitted plans for a 102-room Holiday Inn Express with convention facilities, plus a gas station with a large convenience store and a carwash. The Gateway proposal also included the access road and extensive grading, including the filling of 1.4 acres of seasonal wetlands and realignment of a drainage channel traversing the wetlands.

The city prepared an initial study and mitigated negative declaration for the project. A group called Save Our Neighborhood insisted that the city should complete an environmental impact report. Instead, the city put together an addendum to the North Point mitigated negative declaration, saying the 2004 Gateway project involved only “minor changes” to the 1997 North Point project. In August 2004, the Placerville City Council approved the Gateway project, finding that the North Point mitigated negative declaration was still valid.

Save Our Neighborhood sued, arguing that the city violated CEQA. El Dorado County Superior Court Judge James Wagoner ruled for the city. On appeal, the Third District overturned the lower court.

A section of CEQA (Public Resources Code § 21166) and CEQA Guidelines § 15162 address the use of an already-prepared EIR or negative declaration when a project is being modified or conditions have changed. “The event of a change in a project,” the court explained, “is not an occasion to revisit environmental concerns laid to rest in the original analysis. Only changed circumstances, and any additional environmental impacts they cause, are at issue.”

Save Our Neighborhood, though, argued that the projects were unrelated, and that Guidelines § 15162 did not contemplate a city using a previous environmental document for a different project.
The city said the North Point and Gateway projects were related in that they both involved the same piece of land, mix of uses and proposed connector road. The city cited numerous cases in which courts have ruled that a new environmental review was not necessary when a project was modified years after its initial approval.

But the Third District found that those cases “do not stand for the proposition that an addendum may be used if the project is replaced by another project that happens to be similar in nature. Each of the cases cited by respondents [the city] involved only one project that underwent changes after completion of the initial environmental review.”

In fact, the city’s initial study for the Gateway project “made no mention of the North Point project,” Justice Harry Hull Jr. wrote for the court. “Only after the city met resistance from Save Our Neighborhood did it decide to treat the Gateway project as a modification of the North Point project.”

Hull continued: “Although planned for the same land and involving similar mixes of uses, the North Point project and the Gateway project are different projects nonetheless. They have different proponents and there is no suggestion the latter project utilized any of the drawings or other materials connected with the earlier project as a basis for the new configuration of uses.”

Concluding that the city violated CEQA by relying on an addendum to the North Point mitigated negative declaration, the court ordered the city to set aside approval of the Gateway project.

The Case:
Save Our Neighborhood v. Lishman, No. C049525, 06 C.D.O.S. 5863, 2006 DJDAR 8335. Filed June 28, 2006.
The Lawyers:
For Save Our Neighborhood: Stephan Volker, (510) 496-0600.
For the City of Placerville: Whitman Manley, Remy, Thomas, Moose & Manley, (916) 443-2745.