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 4 of 14 EIR was certified, then `CEQA requires a lead agency to prepare an initial study to determine if the later project may cause significant environmental effects not examined in the first tier EIR.' (Ibid. citing Pub. Resources Code, § 21094, subds. (a), (c).) `If the subsequent project is not consistent with the program or plan, it is treated as a new project and must be fully analyzed in a project —or another tiered EIR if it may have a significant effect on the environment.' (Friends of Mammoth, at pp. 528-529, 98 Cal.Rptr.2d 334.) (Friends of Coll. of San Mateo Gardens v. San Mateo County Cmty. Coll. Dist. ("San Mateo Gardens") (2016) 1 Cal.5th 937, 960.) The MEMU EIR is explicit that it was prepared in accordance with CEQA's Program EIR provisions, and that subsequent projects must undergo the tiered review process just described. The MEMU EIR states "[e]ach development proposal undertaken during the planning horizon of the Overlay Zone must be approved individually by the City in compliance with CEQA. Therefore, the MEMU Overlay Zone is analyzed at a program level, which evaluates the effects of the implementation of the entire Overlay Zone." (Metro East Mixed -Use Overlay District Expansion and Elan Development Projects Subsequent EIR, p. 1-4 (emphasis added).) As a result, CEQA requires the City to prepare an initial study to determine if the Project may cause significant environmental effects not examined in the MEMU EIR. (Pub. Res. Code § 21094.) There is substantial evidence supporting a fair argument that the Project may result in significant environmental impacts that were not previously analyzed in the MEMU EIR. Accordingly, an EIR must be prepared for the Project. III. THE CITY CANNOT BYPASS CEQA REVIEW FOR THE PROJECT BECAUSE IT WAS NOT ADDRESSED IN THE PROGRAM EIR. The Project has never been analyzed under CEQA. The City incorrectly states that the Project has already been analyzed under CEQA in the MEMU EIR. Those documents analyze the City's mixed -use overlay zone, and the expansion of the Metro East mixed - use overlay zone and the Elan Project. (See City of Santa Ana Metro East Mixed -Use Overlay Zone EIR, p. 1-1; see also Metro East Mixed -Use Overlay District Expansion and Elan Development Projects Subsequent EIR, p. 1-1.) Neither of those documents analyzed this Project, which is also made clear by the City's analysis of the Elan Project in the MEMU EIR and exclusion of such an analysis for the proposed Project. Since the Project has not undergone CEQA review, the City must prepare an EIR for the Project. As the California Supreme Court explained in San Mateo Gardens, subsequent CEQA review provisions "can apply only if the project has been subject to initial review; they can have no application if the agency has proposed a new project that has not previously been subject to review." (Friends of Coll. of San Mateo Gardens v. San Mateo County Cmty. Coll. Dist. ("San Mateo Gardens") (2016) 1 Cal.5th 937, 950.) If the proposed Project had already been addressed in the MEMU EIR, the standard for determining whether further review is required would be governed by CEQA Guidelines 15162 and Public Resources Code section 21166, and an addendum could potentially be allowed under CEQA Guidelines section 15164. These sections are inapplicable here,