CORRESPONDENCE - 75C - Laserfiche WebLink

Home Browse Search

City of Santa Ana City Council December 1, 2020 Page 3 circumstances in detail, and ultimately concludes that none of these conditions are present. As such, an addendum to the TZC EIR is the proper CEQA document for the City to rely upon in considering approval of theProject. C.Any judicial review of the City’s reliance on an addendum would be subject to the substantial evidence standard. SAFER’s October 12, 2020, letter states that under Sierra Club v. County of Sonoma thth (1992) 6 Cal.App.41307 and Sierra Club v. County of San Diego (2014) 231 Cal.App.41152, the fair argument test applies to the question of whether a subsequent EIR should have been used.The letter argues that this is a low threshold for a project opponent to meet, and thatunder the fair argument test, a court will overturn the City’s decision to rely upon an addendum in approving this Project. But the cases cited by the letter in fact hold the opposite. Theymake clearthat the substantial evidence standard applies to a lead agency’s decision to proceed with an addendumto an EIR, and that any court review of the lead agency’s decision must be granted substantial deference by the court. In Sierra Club v. County of Sonoma, 6 Cal.App.4th 1307, 1317, the court holds that the fair argument test applies only to “preparation of an EIR in the first instance.” The court goes on: “On the other hand, after an EIR has been prepared for a project,\[Public Resources Code\] section 21166 prohibits agencies from requiring a subsequent or supplemental EIR unless ‘substantial changes are proposed…’ Under section 21166, an agency’s determination not to require a subsequent EIR must be based on substantial evidence in the record; if there are conflicts in the evidence, their resolution is for the agency.” Here, the City has prepared a detailed environmental analysis, and based upon the facts in that analysis, determined thatthe changes required for the 4th & Mortimer Mixed Use Project (i.e., the zone change and variance) do not result in new significant impacts and do not require preparation of a Supplemental or Subsequent EIR. This determination is subject to the substantial evidence standard, and not the fair argument test, as clearly stated in Sierra Club v. County of Sonoma. Further, thecomment letter’s citation to Sierra Club v. County of San Diegois taken out of context. The same citation was similarly taken out of context in Committee for the Re- Evaluation of the T-Line Loop v. SFMTA (2016) 6 CA5th 1237,1252. The court in Committee for the Re-Evaluation of the T-Line Loop held that County of San Diegodoes not apply when a public agency is applying Public Resources Code section 21166 to determine whether an addendum is the appropriate CEQA document. The court there explained: “The quotations are inapposite because they concern the judicial standard of review under sections of the Public Resources Code other than section 21166.” Further, in County of San Diego, the issue was not a change to a proposed project, but the modification of a prior mitigation measure.