Item 27 - Appeal Application Nos. 2020-03 and 2020-04 - Central Pointe Mixed-Use Development

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Central Pointe Mixed -Use Development Project November 9, 2020 Page 3 of 14 policy -oriented EIR is called a programmatic EIR ("PEIR") and offers the advantage of allowing "the lead agency to consider broad policy alternatives and program wide mitigation measures at an early time when the agency has greater flexibility to deal with basic problems or cumulative impacts." (14 CCR ("CEQA Guidelines") §15168.) CEQA regulations strongly promote tiering of EIRs, stating that "[EIRs] shall be tiered whenever feasible, as determined by the lead agency." (PRC § 21093.) Once a program EIR has been prepared, "[s]ubsequent activities in the program must be examined in light of the program EIR to determine whether an additional environmental document must be prepared." (CEQA Guidelines § 15168(c).) The first consideration is whether the activity proposed is covered by the PER. (ld.) If a later project is outside the scope of the program, then it is treated as a separate project and the PER may not be relied upon in further review. (Sierra Club v. County of Sonoma (1992) 6 Cal.AppAth 1307.) The second consideration is whether the "later activity would have effects that were not examined in the program EIR." (CEQA Guidelines § 15168(c)(1).) A PER may only serve "to the extent that it contemplates and adequately analyzes the potential environmental impacts of the project." (Sierra Nevada Conservation v. County of El Dorado ("El Dorado") (2012) 202 Cal.AppAth 1156.) If the PER does not evaluate the environmental impacts of the project, a tiered EIR must be completed before the project is approved. (Id.) For these inquiries, the "fair argument test" applies. (Sierra Club, 6 Cal.AppAth 1307, 1318; see also Sierra Club v. County of San Diego (2014) 231 Cal.AppAth 1152, 1164 ("when a prior EIR has been prepared and certified for a program or plan, the question for a court reviewing an agency's decision not to use a tiered EIR for a later project 'is one of law, i.e., the sufficiency of the evidence to support a fair argument."').) Under the fair argument test, a new EIR must be prepared "whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact. (ld. at 1316 (quotations omitted).) When applying the fair argument test, "deference to the agency's determination is not appropriate and its decision not to require an EIR can be upheld only when there is no credible evidence to the contrary." (Sierra Club, 6 Cal. App. 4th at 1312.) "[I]f there is substantial evidence in the record that the later project may arguably have a significant adverse effect on the environment which was not examined in the prior program EIR, doubts must be resolved in favor of environmental review and the agency must prepare a new tiered EIR, notwithstanding the existence of contrary evidence." (Id. at 1319.) In Friends of College of San Mateo Gardens the California Supreme Court explained the differing analyses that apply when a project EIR was originally approved and changes are being made to the project, and when a tiered program EIR was originally prepared and a subsequent project is proposed consistent with the program or plan: For project EIRs, of course, a subsequent or supplemental impact report is required in the event there are substantial changes to the project or its circumstances, or in the event of material new and previously unavailable information. (Friends of Mammoth, citing § 21166.) In contrast, when a tiered EIR has been prepared, review of a subsequent project proposal is more searching. If the subsequent project is consistent with the program or plan for which the