A thorough analysis of building codes and local ordinances applicable to seismic hazards provides the substantial evidence necessary to uphold a city's revised environmental impact report, the First District Court of Appeal ruled in Oakland Heritage Alliance v. City of Oakland.

In successful challenges under the California Environmental Quality Act, the petitioner generally has a second bite at the apple by challenging the return of the writ. If a petitioner is successful in its challenge to an EIR, the trial court issues a writ of mandate that requires the agency to bring the EIR into compliance with CEQA. Once the agency has complied with the writ of mandate by "fixing" the EIR, the agency files a return of the writ with the court. If the court finds that the city has satisfied the writ of mandate, the court discharges the writ. 

In this case, developers Oakland Harbor Partners, LLC, Signature Properties, Inc., and Reynolds & Brown proposed to develop the "Oak to Ninth" project, a development of approximately 64 acres along the Oakland Estuary and the Embarcadero. The development would convert a maritime and industrial area into residential, retail/commercial, open space, and marina use.  Building heights would range from six to 24 stories. The EIR for the project noted a risk of seismic danger, especially because the bay-adjacent site is vulnerable to liquefaction. 

The city certified the EIR and adopted mitigation measures with respect to seismic hazards. Community group Oakland Heritage Alliance filed the suit, claiming numerous CEQA violations including that the EIR did not properly mitigate for seismic hazards. The Alliance alleged the city had violated CEQA by certifying the EIR and adopting CEQA findings although the mitigation measures would not reduce the effects of ground shaking, liquefaction, and earthquake-induced settlement to a less than significant level.

The trial court granted, in part, and denied, in part, the petition for writ of mandate. The court directed the city to void its certification of the EIR, CEQA findings and statement of overriding considerations, and the approval of the project, and remanded the matter to the City.  The trial court then discharged the writ of mandate after the city submitted a revised EIR. The petitioner, Oakland Heritage, appealed the trial court's discharge of the writ on the grounds the city had still failed to adequately analyze and mitigate seismic impacts. The appellate court disagreed and upheld the trial court's discharge of the writ.

Petitioner's challenge focused on three areas relating to seismic impacts: (1) the significance threshold was improper; (2) the mitigation did not adequately mitigate to a less than significant level; and (3) the mitigation constituted an improper deferral of mitigation.

Although the petitioner had failed to mention the significance threshold argument during the trial court's proceedings on the return of the writ, and was therefore barred from bringing it up on appeal, the appellate court addressed the issue and found that the significance threshold used to evaluate seismic impacts was proper. The court based its conclusion on two grounds. First, contrary to petitioner's assertions, the city was not required to formally adopt a significance threshold that differed from the threshold listed in Appendix G of the CEQA Guidelines. According to the court, CEQA Guidelines section 15064.7 encouraged the adoption of the standard thresholds of significance, but did not require it. Second, the threshold of significance used by the city "was effectively coextensive with the CEQA Guidelines" Appendix G, and therefore, petitioner's argument had no merit.

In relation to the second issue of adequate mitigation, the two mitigation measures adopted by the city required that the buildings comply with all applicable state and local regulations. They also required that the buildings comply with the final design parameters and building recommendations that would be included in the geotechnical investigations for each building site. The appellate court found that substantial evidence supported the city's determination that the mitigation reduced seismic impacts to a less than significant level. 

The court cited Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, which found that the incorporation of state energy efficiency standards into the project constituted proper mitigation. In this case, the thorough discussion of the building codes and local ordinances, as well as the duties of the geotechnical engineer, constituted substantial evidence that the mitigation would reduce impacts. The added discussion provided the required "why" discussion, explaining how code compliance operates as effective mitigation.

Like the second issue of proper mitigation, the court disagreed with petitioner's final argument that the two mitigation measures for seismic impacts constituted an improper deferral of mitigation. The court found that the mitigation measures properly included performance standards that had to be met in order to insure that the project impacts would be mitigated. Therefore, the city did not improperly defer mitigation.

In the end, the petitioner's attempt to further delay the project and require additional analysis by the city failed. This case provides a good example of the information that agencies should include in the CEQA document when the mitigation involves adherence to state codes and local regulations. A thorough explanation of the state codes and local regulations referred to in the mitigation goes a long way to providing substantial evidence in the record.

The Case: 

Oakland Heritage Alliance v. City of Oakland (2011, Case No. A126558) 2011 Cal.App.LEXIS 60