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| Title: Environmental Baseline (The "Baseline") | | By: Salvador M. Salazar, JD, AICP | | Category: General Planning | | Posted: Wednesday, May 05, 2010 | Article viewed: 486 times |
(Sal Salazar, the author of this article, is a land use and CEQA attorney and former city planner for various cities in Southern California. Sal Salazar may be contacted at salmsalazar@aol.com)
The first topic in the series of articles that will be provided on information you can use is the Environmental Baseline (the “Baseline”).
Cities, Counties and project applicants need to keep in mind that the adequacy of an environmental document (such as a Negative Declaration, Mitigated Negative Declaration, or an Environmental Impact Report) depends in great part in measuring the impacts created by project from an adequate environmental baseline. The Baseline is the basis for determining whether a project has a significant environmental impact or does not have an environmental impact at all. To that end Section 15125 (a) of the California Environmental Quality Act (“CEQA”) states in part that:
“An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant."
The key word in Section 15125(a) is normally constitutes the baseline. This means that in some instances the Baseline may not be the existing physical conditions, but some other condition. For guidance we look at some court cases that have analyzed the Baseline for various development activities including, but not limited, the following:
- General Plan Amendments
- Specific Project (Zone Changes, Conditional Use Permits and Illegal Activities)
- The No Project Alternative
- Subsequent Environmental Documents (Negative Declarations and Environmental Impact Reports)
- General Plan Amendments. The Baseline for a proposed general plan amendment which reduces the amount of development allowed under the existing general plan is the existing physical condition on the ground and not the amount of development previously planned for under the existing general plan. (See Environmental Planning and Information Council v. County of El Dorado, 97 Cal.App.3d 1270 (1982)).
- Changes Involving Specific Projects.
- Zone Changes. The Baseline for a proposed zone change that reduces the amount of development allowed under the existing zoning is the existing physical condition and not what could have been built under the previous zoning designation (See Woodward park Homeowners Association, Inc. v. City of Fresno, 150 Cal. App. 4th 683 (2007)).
- Conditional Use Permits. The baseline for a modification to a conditional use permit that would allow the expansion of the use and would generate more truck trips is the maximum number of daily truck trips allowed and analyzed under the former CUP and environmental document (See Fairview Neighbors v. County of Ventura, 70 Cal.App.4th 238 (1999)).
- Illegal Activities. In two cases, the courts have held that unauthorized changes to the environment do not require a different baseline. The courts in those cases further noted that in the absence of more detailed guidance either from the legislature or the resources secretary, we (the courts) believe that a more prudent method of dealing with alleged prior illegality is to rely in the first instance on direct enforcement by the agencies charged with the responsibility of doing so, and second to rely on such enforcing agencies to comment in the EIR process on the impact any new project may have on their enforcement activities (See Fat v. County of Sacramento, 97 Cal.App.4th 1270 (2002), and Riverwatch v. County of San Diego, 76 Cal.App.4th 1428 (1999) where the court held that illegal quarrying did not mandate that the County use an earlier baseline). In other words, the Baseline is reviewed on a case by case basis when illegal activities are involved.
- The No Project Alternative. This is one of the most often confused environmental issues. Generally, the specific alternative of "no project" must be evaluated along with its environmental impact. The no project alternative is not the Baseline for determining whether a proposed project's environmental impacts may be significant. It is important to note that the "no project" alternative baseline is to be based on the conditions in existence at the time the notice of preparation is published or when the environmental review is commenced if a notice of preparation is not published.
- Subsequent Environmental Documents. Development activities allowed and analyzed under a previously approved project need only consider the changes in the revised project. In other words, the environmental analysis should focus on the net change between what is proposed and what was previously analyzed and approved (See Temecula Band of Luiseno Mission Indians v. Rancho California Water District, 43 Cal.App.4th 425 (1996), and Benton V. Board of Supervisors, 226 Cal.App.3d 1467 (1991)). Therefore, once an Negative Declaration has been adopted or an Environmental Impact Report has been certified for a project, further CEQA review is limited. These limited CEQA is permitted whether or not the project has been constructed. In effect, the baseline for purposes of CEQA is adjusted such that the originally approved project is assumed to exist.
Conclusion
The Baseline is one of the most important components in determining the level of environmental impacts a project is creating. Without an adequate Baseline a lead agency would be unable to adequately mitigate the significant environmental impacts. In summary, unless there are special conditions, the Baseline’s environmental analysis should focus on the environmental impacts created by the project from the existing physical conditions if no previous environmental document exists. On the other hand only the incremental impacts should be analyzed when there is a previously adopted negative declaration or certified environmental impact report.
This information is intended for general purposes and does not represent a legal opinion or legal advice on the issue described. Should further analysis or explanation of the subject matter be required, please contact your legal counsel with whom you normally consult. |
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