In Latinos Unidos de Napa v. City of Napa (1st Dist., Div. 1, 10/10/13, A134959), ___ Cal.App.4th ___, 2013, the court of appeal found no abuse of discretion in the City of Napa’s approval of revisions to the housing element of its general plan, and related general plan and zoning amendments, despite plaintiff’s argument that an environmental impact report was required.  The court determined that substantial evidence supported the City’s decision not to proceed with any additional environmental review as the plaintiff did not satisfactorily explain how the project’s impacts were so different from, or more severe than, the impacts identified in an earlier EIR so as to require further review.

Fair Argument vs. Substantial Evidence

Plaintiff argued that the “fair argument” test should apply to the City’s decision to refrain from preparing a new EIR because the project was not adequately covered or mitigated in the project’s prior EIR.  The “fair argument” test reflects a legislative preference for resolving doubts in favor of environmental review and therefore creates a “low threshold” for requiring an EIR.

The court determined, however, that the “substantial evidence” standard applied, which required the court to decide “only whether the administrative record as a whole demonstrates substantial evidence to support the determination that the changes in the project or its circumstances were not so substantial as to require major modifications of the EIR.” Sierra Club v. County of Sonoma 6 Cal.App.4th1307, 1318 (1992).  The court explained that the “fair argument” test should be applied to “new” projects, whereas the “substantial evidence” standard should be applied to modifications of previously reviewed projects.  Here, the court concluded the project was the same as, or within the scope of, that which was described in the project’s prior EIR.

Application of Substantial Evidence Standard

Plaintiff argued that the City’s decision to refrain from preparing an EIR is unsupported by substantial evidence.  Plaintiff reasoned that the project was not covered by the prior EIR because while the high density residential units approved as part of the project were “anticipated” by the prior EIR, they were neither addressed, known, nor adequately covered.

The court disagreed with plaintiff, finding that substantial evidence supported the City’s decision not to proceed with any additional environmental review.  It explained that the entire project consisted of limited amendments to the housing and land use elements and relatively minor amendments to the City’s zoning ordinances, which were within the scope of the prior EIR.  In support of its determination, the court referred to a study prepared by City staff to analyze the project, which determined that the project would not create any new or more severe environmental impacts over those analyzed in the prior EIR.  Therefore, the court found that the City’s decision was supported by substantial evidence, and another EIR was not required.