Second District Court of Appeal Upholds Project Approved via MND (and a Categorical Exemption)
The Second District Court of Appeal upheld an infill project approved by the City of Covina in the case Covina Residents for Responsible Development v. City of Covina (Cal. Ct. App., Feb. 28, 2018, No. B279590). The project at issue involved a 58-unit, mixed use, infill project located about a quarter-mile from a commuter rail station. The city certified an MND for the project, and also issued a notice of categorical exemption for a Class 32 infill project. Project opponents sued, arguing that the City was required to prepare an EIR to address potential parking impacts.
The appellate court upheld the City’s determination based, in part, on Public Resources Code section 21099, which excludes from consideration potential aesthetic and parking impacts associated with residential, mixed-use, or employment center projects located within transit priority areas. Thus, project opponents’ claims regarding potentially significant parking impacts were precluded.
The appellate court also determined that the city properly tiered the MND adopted by the city from an earlier EIR. In a footnote, the Court acknowledges that the city adopted a categorical exemption but explains that the parties did not raise the exemption on appeal. It is unclear to this author why the city chose to defend the MND instead of relying on the categorical exemption. Categorical exemptions are easier to defend than MNDs, though this is the second published case upholding an MND to come out in the last few months. Still, project applicants and lead agencies should generally favor exemptions over MNDs.