Substantial Evidence: It’s a thing. Fifth District Court of Appeal Upholds General Plan Update, Citing Plaintiff’s Failure to Introduce Substantial Evidence
In an unpublished opinion filed January 4, 2018, the Fifth District Court of Appeal rejected challenges to a general plan update prepared by the City of Visalia. Plaintiffs in the case argued that the EIR prepared by the City failed to adequately address urban decay impacts. In particular, plaintiffs argued that the 40,000 square foot cap on anchor tenants in Neighborhood Commercial areas would actually discourage smaller businesses from being established. The trial court rejected the challenge, and plaintiffs appealed.
On appeal, the Fifth District addressed the adequacy of the evidence introduced by plaintiffs to support their urban decay argument. Prior to the City’s certification of the final EIR, plaintiffs introduced a report prepared by a real estate broker with experience in commercial transactions. This report concluded that the square footage cap could result in urban decay impacts, implicating adverse physical changes to the environment. However, the Court of Appeal noted that the report relied on speculation and unsupported conjecture to reach its conclusions. As a result, plaintiffs did not present adequate substantial evidence to support an argument that the square footage cap could result in significant urban decay impacts. In reaching this conclusion, the Fifth District affirmatively cited Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, which also addressed the sufficiency of evidence introduced by project opponents. CEQA defines substantial evidence, and this case serves as a reminder that not all evidence introduced by project opponents rises to the quality of evidence required by CEQA.
On a different note, the Draft EIR in this case was circulated for review and comment from March 31 through May 14, 2014. The Final EIR was released on June 26, 2014. Plaintiffs introduced the letter from the real estate agent on October 6, 2014. This illustrates one of the recurring inefficiencies in the CEQA process: late hits. It’s unreasonable to expect lead agencies and applicants to provide meaningful responses to extensive public comments submitted after the public comment period and shortly prior to project approval. Furthermore, these tactics do not facilitate informed decision making. Rather, these tactics only serve to cause delay and insert confusion into the administrative process.