A proposed subdivision that undergoes environmental review and receives approval does not become a new project for California Environmental Quality Act purposes merely because the local government's approval expires and a new subdivision map is submitted, the First District Court of Appeal has ruled.

"[E]xpiration of the tentative map did not convert the Moss subdivision into a new project for purposes of CEQA review. Nothing significant about the activity to be undertaken on the land has changed in any way; all that has changed is the county's previous approval of a map expired," Presiding Justice William McGuiness wrote for the court. "Expiration of a tentative map was an abstract occurrence that had no effect on the project's environmental impacts."

Still, the court ruled that a new environmental analysis was justified in this case because of new information regarding water supply and a rare fish species.

In November 1997, the Humboldt County Planning Commission adopted a tentative negative declaration regarding environmental impacts and approved a four-lot tentative subdivision map for 94 acres of recently harvested timberland owned by Michael Moss. A group called Friends of Westhaven and Trinidad appealed to the Board of Supervisors, but the board declined to hear the appeal because it was filed too late. The group sued, but a trial court judge and the First District in an unpublished decision upheld the Board of Supervisors.

During the litigation, the tentative map expired. In August 2000, Moss asked the Board of Supervisors to postpone the expiration, and the board agreed. The same citizens group sued again and this time won at the First District. In Friends of Westhaven & Trinidad v. County of Humboldt, (2003) 107 Cal.App.4th 878, the appellate court ruled that the county could not postpone the expiration date of a map that had already expired.

So in early 2004, Moss filed a new application for the same subdivision. This time, county planners said the subdivision required an environmental impact report, not merely a mitigated negative declaration. Moss asked the Board of Supervisors to overrule its staff, but the board adopted two resolutions backing the planners. One resolution called the subdivision a new project with potential impacts in numerous areas. The second, alternative, resolution said additional CEQA review was required because of substantial new information regarding water supply, firefighting capacity, water quality, and two species of fish.

This time, Moss sued the county. Humboldt County Superior Court Judge J. Michael Brown determined that the subdivision was not a new project. But Brown ruled that substantial evidence supported the board's alternative resolution, and an EIR addressing the specific water, firefighting and species issues was required.

Moss appealed the ruling requiring an EIR; the county appealed the decision that the subdivision was not a new project. A unanimous three-judge panel of the First District, Division Three, upheld the lower court but narrowed the ruling.

The county argued that when the original subdivision map expired, all previous proceedings, including the environmental review, became void and the project had to begin anew. But the court ruled that the county's argument "improperly conflates CEQA with the Subdivision Map Act." The latter law does require a new procedure. However, McGuiness wrote, "that new government action taken with respect to the same activity for which approval is sought does not convert that activity into a new project for purposes of CEQA review."

On the issue of new evidence, the county leaned heavily on two letters from the City of Trinidad's water commissioner, the listing of a species of salmon as threatened, and observations about coastal cutthroat trout.

Trinidad was interested in the project because Moss proposed getting water for three houses from the north fork of Luffenholtz Creek. The city draws its water from the main stem of Luffenholtz Creek, below the proposed subdivision site. Trinidad Water Commissioner Chi-Wei Lin told the county that the city's water usage had increased 73% since 1995, when the county initially determined the subdivision would not have a significant impact on water resources. Lin said the creek was getting close to maximum capacity and the project had become a concern. He also contended the "shortage of water" could hinder firefighting capabilities at a time when wildfires were increasing, and the county needed to address potential water contamination from the proposed houses.

The court said Lin's statements regarding increased fires, firefighting capabilities and potential contamination were unsubstantiated opinion. However, "evidence of increased water usage is new and could not have been known at the time the project was previously reviewed," McGuiness wrote. "[E]vidence that demand upon Luffenholtz Creek was at or near the creek's maximum capacity in 2003 indicates that even a slight increase in demand from the project could have significant environmental impacts downstream."

On the issue of fish, the county pointed to the federal government's listing of several salmon species as "threatened" in June 2004 and to reports that coastal cutthroat trout — a species of special concern under state regulations — had been observed in the main stem of Luffenholtz Creek. The county argued that the EIR should address coho salmon and the trout species. The court said no review of coho salmon was necessary, however, because the federal listing concerned coastal Chinook salmon, not coho salmon. Plus, the court found, there was no evidence that coho had habitat in or near the project area.

The ruling was different on cutthroat trout. "[T]he county's initial study suggests the presence of this species in Luffenholtz Creek had only recently been brought to its attention. Although evidence of the species' presence appears largely anecdotal, we must resolve our doubts on this point in favor of the county," the court ruled.

Thus, the court concluded, the county may require supplemental environmental review "only with respect to the project's environmental impacts on (1) water supply to the City of Trinidad, and (2) the population of coastal cutthroat trout."

The Case:
Moss v. County of Humboldt, No. A114205, 2008 DJDAR 6635. Filed May 7, 2008.
The Lawyers:
For Moss: Allison Jackson, Harland Law Firm, (707) 444-9281
For the county: Carolyn Ruth, county counsel's office, (707) 445-7236.