Court Upholds CEQA Baseline that Recognizes Fluctuating Economic Conditions

COURT UPHOLDS CEQA BASELINE THAT RECOGNIZES FLUCTUATING ECONOMIC CONDITIONS

North County Advocates v. City of Carlsbad (2015) --- Cal.App.4th ---

In 2010, the California Supreme Court’s opinion in Communities for a Better Environment v. South Coast Air Quality Management District held that the baseline under the California Environmental Quality Act (CEQA) should “normally” reflect the physical conditions that exist when the environmental review begins. In the five years since, a small but growing number of cases have applied this guidance to projects that seek to reauthorize or reapprove existing, established activities.

The latest decision is North County Advocates v. City of Carlsbad (2015), a case involving a longstanding shopping center in the City of Carlsbad. The project was to renovate the center, which was originally built in 1969. For nearly thirty years, the center had been anchored partly by a Robinsons-May store. In 2006, Robinsons-May ended its tenancy, leaving the space vacant (except for holiday-season retailers). In 2012, however, the EIR’s traffic analysis assumed levels of traffic generated by a fully-occupied store as part of the baseline.

Petitioner North County Advocates challenged the EIR, contending that the city had “falsely inflated the existing traffic conditions” in a manner prohibited by Communities for a Better Environment. The court disagreed, relying upon the historical operation of the space at full occupancy for over 30 years: “[w]e view this as fluctuating occupancy – which is in the nature of a shopping center – as akin to the varying oil refinery operations…that led the Supreme Court to recognize that agencies have discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations.” (Internal quotes omitted.)

The decision provides added protection for established industrial and commercial operations – from retailers to mining companies – whose businesses are characterized by fluctuating levels of output, and gives lead agencies the tools to recognize the fluctuations themselves as the existing condition when preparing their environmental reviews.

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