City’s Revised Environmental Impact Report On Seismic Impacts Met CEQA Requirements

In Oakland Heritage Alliance v. City of Oakland and Oakland Harbor Partners et al., (195 Cal.App.4th 884, Cal.App. 1 Dist., May 19, 2011), a court of appeal considered whether a city’s treatment of seismic impacts met the requirements of the California Environmental Quality Act (“CEQA”). The court of appeal held the city met the requisite requirements.

Facts

Oakland Harbor Partners, et al. (“Real Parties”), proposed to develop about 64 acres along the Oakland Estuary and the Embarcadero, which would include retail, residential, open space, and marina uses. The projected height of the construction would range from six to twenty-four stories. Although the environmental impact report (“EIR”) for the project identified many seismic impacts, the relevant impacts to the issues in this case are impacts F.1 and F.2. The EIR explained impact F.1 as follows: “In the event of a major earthquake in the region, seismic ground shaking could potentially injure people and cause collapse or structural damage to proposed structures.” Impact F.1 was designated to be “[p]otentially [s]ignificant” but the EIR concluded that after mitigation, the impact “would be less than significant.” The EIR explained impact F.2 as follows: “In the event of a major earthquake in the region, seismic ground shaking could potentially expose people and property to liquefaction and earthquake-induced settlement.” This impact was also designated to be potentially significant but after mitigation, the EIR likewise concluded “the impact of liquefaction would be less than significant.”

The City of Oakland (“City”) certified the EIR, adopted mitigation measures F.1 and F.2 and approved the project. Oakland Heritage Alliance (“Alliance”) challenged this action in a petition for writ of mandate alleging several violations of CEQA. Alliance alleged the City violated CEQA by certifying the EIR and “adopting CEQA findings although the mitigation measures would not reduce the effects of ground shaking, liquefaction, and earthquake-induced settlement to a less than significant level.” The trial court denied in part and granted in part the petition for writ of mandate essentially finding that the seismic risk findings failed to contain a meaningful analysis to “support the findings that the risks of ground shaking and liquefaction would be reduced to a less than significant level, and the findings were not supported by substantial evidence in the record.” The trial court found that “neither the impact statements nor the mitigation measures established which mitigation techniques would actually be used and how they would reduce the impacts of a major earthquake.” Thus, the trial court ordered the City to void its certification of the “EIR, CEQA findings and statement of overriding considerations, and the approval of the project” and the court remanded the matter to the City.

The City revised the EIR, which included significant discussion of the state and City laws regarding seismic activity, including the Seismic Hazards Mapping Act, various City ordinances, and the Building Code. The revised EIR also revised mitigation measures F.1 and F.2. However, Alliance issued a letter arguing that the revised mitigation measures F.1 and F.2 “failed to reduce seismic impacts to a less than significant level.” Before the public hearing on the revised EIR, Alliance submitted additional correspondence addressing its concerns about the seismic impact analysis contained in the revised EIR. This correspondence included an opinion letter from a geotechnical consultant on the matter. After a hearing, the City approved the revised EIR. In doing so, the City found that the revised mitigation measures F.1 and F.2 “reduced the effects of ground shaking, liquefaction, and settlement to a less than significant level.” The trial court granted City’s and Real Parties’ request to discharge the writ and terminate the suspension of the project approvals and concluded the revised EIR did not “improperly defer mitigation in violation of CEQA.”

Decision

The Alliance first contends that the City violated CEQA by not evaluating the “risk of seismic damage to structures as an adverse impact of the project.” Although the court of appeal found the Alliance failed to preserve this issue for review, it nonetheless rejected this argument on the merits. The appellate court found that the section of CEQA Guidelines relied on by the Alliance does not require a public agency to adopt thresholds of significance and does not prohibit a public agency from relying on standards developed for a specific project. However, even if it did, the court of appeal found that the threshold of significance used for the project “was effectively coextensive with the CEQA Guidelines.”

The appellate court further rejected Alliance’s argument that the revised EIR “‘sidestep[ed]’ mitigation of earthquake damage to structures.” The court of appeal found that “[m]itigation measure F.1 required the investigation for each development parcel to ‘[d]etermine structural design requirements as prescribed by the most current version of the California Building Code, including applicable City amendments, to ensure that structures can withstand ground accelerations expected from known active faults.’” Mitigation measure F.2 “required the project sponsor to submit a site-specific, design-level geotechnical investigation that would use proven methods to reduce the risks associated with liquefaction to a less than significant level, and listed a number of possible methods, including subsurface soil improvement, deep foundations, and structural slabs.” Because the parties disagreed on the proper standard of review, the court of appeal considered a question as to whether the above mitigations were “in fact sufficient to reduce seismic risks to a less than significant level” is factual and would be reviewed for substantial evidence. The appellate court did not agree with Alliance’s argument that under CEQA, seismic impacts are considered significant “unless buildings could be repaired and ready for occupancy after a major earthquake” because neither CEQA, the cases construing it, or common sense requires this conclusion.

The court of appeal next considered whether substantial evidence supported the City’s “finding that seismic impacts have been mitigated to a less than significant level.” The appellate court found that the revised EIR included a significant discussion of the requirements of the Building Code and City’s ordinances and a detailed Geotechnical Investigation. The Alliance asserts the evidence is insufficient to support the City’s conclusion that the revised mitigation measures F.1 and F.2 “reduced the effects of ground shaking, liquefaction, and settlement to a less than significant level.” The court of appeal disagreed with the Alliance finding that “compliance with the Building Code, and the other regulatory provisions, in conjunction with the detailed Geotechnical Investigation, provided substantial evidence that the mitigation measures would reduce seismic impacts to a less than significant level.” The appellate court refused to interfere with the City’s findings or its “policy decision to rely on the relevant codes and ordinances.”

The court of appeal further rejected the Alliance’s argument that compliance with regulations “is not a substitute for compliance with CEQA’s mitigation requirements.” The Alliance cites to the evidence it submitted including the opinion letter from its geotechnical consultant to support its argument. The court of appeal held it would not substitute its judgment for that of the City. It further found no abuse of discretion exists in a conclusion that compliance with the current building standards along with the other requirements set forth in the revised EIR “adequately mitigated the seismic impacts of the project.”

The Alliance also argues the City improperly “deferred mitigation of the seismic effects of the project.” After a review of California caselaw on the issue, the court of appeal concluded that the City did not improperly defer mitigation. The appellate court held the revised EIR discussed the regulations and statutes regarding increasing seismic safety and it explained the Seismic Hazards Mapping Act “establishes a statewide public safety standard for mitigation of earthquake hazards, and that the minimum level of mitigation for a project ‘should reduce the risk of ground failure during an earthquake to a level that does not cause the collapse of a building intended for human occupancy,’ though generally not to a level of no ground failure to all.” Furthermore, the Building Code creates standards for “seismic safety in the design and construction of buildings.” The revised EIR additionally explained the City’s building ordinances intended to mitigate seismic and other geologic hazards. The revised EIR also discussed the building official’s and engineer’s responsibilities and the “processes to ensure that site investigations, grading, and construction are completed in accordance with the laws designed to protect the public and property from the effects of earthquake shaking and ground failure.” The revised EIR discussed that those who prepared it relied on the Geotechnical Investigations, which “determine[d] project feasibility in light of the site geotechnical conditions and identifie[d] areas of development opportunity and areas of development constraint.”

The appellate court held that mitigation measures F.1 and F.2 follow the rule found in California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 621 (CNPS) that “‘when a public agency has evaluated the potentially significant impacts of a project and has identified measures that will mitigate those impacts,’ and has committed to mitigating those impacts, the agency may defer precisely how mitigation will be achieved under the identified measures pending further study.” The Geotechnical Investigation and EIR provide evidence that mitigation is “feasible and discuss a range of mitigation measures.” The revised EIR “proposes compliance with a regulatory scheme designed to ensure seismic safety.” Thus, even though the final design of the structures is deferred to a later time, the revised EIR “gives adequate assurance that seismic impacts will be mitigated through engineering methods known to be feasible and effective.” The court of appeal held the revised EIR did not “improperly defer mitigation of seismic impacts.” The court of appeal affirmed the order granting the motion to discharge the writ.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Jeffrey L. Massey or Daniel J. O’Hanlon | 916.321.4500

Jon E. Goetz | 805.786.4302