United States: Undisclosed Change In Building Height Requires Supplemental EIR

Ventura Foothill Neighbors v. County of Ventura (12/15/14, 2d Civil No. B254120)

The Court of Appeal for the Second Appellate District of California has ruled that (i) a 20% increase in the actual height of a building over the stated height in the certified EIR required Ventura County to prepare a supplemental EIR rather than an addendum; and (ii) the County's failure to prepare a supplemental EIR including the taller height of the building made the County susceptible to a valid claim beyond the standard 30-day statute of limitations on CEQA claims. The court's conclusion highlights the need for EIRs and notices of decision ("NODs") to more completely describe a project, with all its details, to avoid potential claims.

In 1993, the County decided to construct an ambulatory care clinic (the "Clinic") at the Ventura County Medical Center. The original 1993 EIR included a proposed location and an "up to 75 feet in height" limit for the Clinic. The County certified the EIR in January 1994 and approved the project, filing an NOD (which did not mention the Clinic's height). The County delayed construction until May 2005, when it decided to relocate the project. While the updated plans for the Clinic mentioned the relocation and an "about 5 feet lower ... elevation due to the topography at the revised location," the plans failed to include the taller height. The County prepared an addendum to the EIR, which concluded that since the Clinic was "virtually the same size and configuration," no subsequent or supplemental EIR was required. On May 25, 2005, the Board approved the 1994 plans, and the County filed an NOD stating that the project would be changed by relocating the Clinic, but failing again to mention the Clinic's taller height. In 2007, the plans for the Clinic were modified to show the new height of 90 feet.

Upon being informed by someone passing by the construction site who had learned that the new Clinic building would be 90 feet high, the Ventura Foothill Neighbors filed a petition for a writ of mandate and motion for injunction to stop the construction and to require the County to refrain from further approvals "pending certification of an adequate supplemental EIR." The trial court denied the motion for a preliminary injunction, but granted a peremptory writ of mandate, stressing that the County acted improperly in not preparing a supplemental EIR. The appellate court affirmed.

Regarding the County's decision to file the addendum to the original EIR rather than a supplemental EIR, the appellate court found the County's reasoning "conclusory" and "insufficient" and held that the County had acted improperly. The court stated that no subsequent or supplemental EIR is required unless (1) substantial changes are proposed, which would require major revisions to the EIR, (2) substantial changes arise, requiring major revisions to the EIR, or (3) new information is available, which was not known at the time of the EIR certification. The court concluded that the 20% increase in the building's height from 75 to 90 feet was a "material discrepancy" and a "violation of CEQA" that required "major revisions" to the EIR. In the court's opinion, these changes were material; the addendum to the original EIR was inadequate; and a supplemental EIR was the required.

The County argued that the Neighbors' claims were time-barred, having been brought well after the 30-day statute of limitations for CEQA claims. The Neighbors contended, and the court agreed, that the challenge was not to the 1993 EIR, but rather to the County's failure to prepare a supplemental EIR for the 90-foot Clinic. The court opined that since neither the EIR, the addendum, nor the NOD explicitly addressed the increase in height, this change was a "substantial change" to the project, which necessitated preparation of a supplemental EIR. Since no supplemental EIR had been prepared or circulated to the public before the Clinic was constructed, neither the Neighbors nor anyone else could have been on notice of the change until the construction cranes were already working. The proper time frame then was not the 30-day window for CEQA challenges "to the decision announced in the [NOD]" but rather 180 days from when the Neighbors "knew or reasonably should have known the project differed substantially from the one described in the EIR." Thus, the 180 days began when the passerby noticed the cranes. Therefore, the Neighbors' claim regarding the new height of the Clinic was timely.

The Neighbors had also challenged the decision to relocate the Clinic. However, the court concluded that this claim was barred because the May 24, 2005 NOD to the addendum expressly included "relocation of replacement Clinic." Because the NOD "announced" the relocation "decision," the court held that the Neighbors had been on notice and had not brought the relocation claim in a timely manner.

Significance of the Case

The court grounded its decision on the need for government to "turn square corners" and be fair to its citizens, "applaud[ing]" the trial court's finding for the Neighbors. The court held that the County's use of an addendum rather than a supplemental EIR and the omission of the new taller height of the building was an abuse of discretion and a failure to proceed in the manner required by law under CEQA. Because the court explicitly contrasts the relocation claim (which was described in the NOD, and time-barred) with the claim regarding the taller height of the Clinic (which was not described in the EIR or the NODs, and which was not time-barred), other courts following this precedent could potentially allow for late CEQA claims if the specific aspects of the projects in dispute are not explicitly spelled out in the EIR and/or NOD.

On the other hand, an approach arguably more consistent with prior precedent would be to rely on the text of CEQA Guidelines 15094 (b)(2) requiring the NOD to provide only a "brief description" of the project, and thus judicial exploration into the merits of the public agencies' decision is improper where an NOD or NOE has been filed and posted for the time period required by CEQA. This approach would seem to be more in keeping with the California Supreme Court's determination in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 rejecting the notion that "only if the agency has filed valid notices of determination and negative declarations will the 30-day statute apply." The Supreme Court confirmed that "[i]t seems rather obvious ... that subdivision (a), the 180-day statute, applies where the agency proceeds without any attempt at compliance, while (b) and (e) apply where compliance is alleged to be defective. This interpretation also makes sense, in that, if an agency proceeds without any effort to comply, interested parties are less likely to receive early notice of the action than where there has been even an insufficient effort to comply." Id. quoting, California Manufacturers Assn. v. Industrial Welfare Com. (1980) 109 Cal.App.3d 95, 125.)

Courts could also distinguish this case on the grounds that the County (apparently) only disclosed the height increase in the 2007 project plans, after the NOD had been filed. If faced with similar facts, the court could focus legal analysis on whether the changes in the plan were ministerial changes or discretionary changes that would trigger additional environmental review.

As of the date of this posting, no decision had been made on whether the County will appeal the decision to a Supreme Court that has previously affirmed that NODs need only impart constructive notice of a decision through a brief description of the project. In light of the uncertainty this case introduces into previously settled case law, until the courts provide further clarification, public agencies may want to include a detailed revised project descriptions in an EIR Addendum and explicitly incorporate by reference the revised project description into the NOD's brief project description section.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
24 Oct 2018, Seminar, Orange, United States

Please join us for Sheppard Mullin's Labor & Employment Law Update & Happy Hour Seminar Series. 2018 presents significant developments in California labor and employment laws that will affect the way you run your day-to-day business operations.

25 Oct 2018, Other, San Diego, United States

Protecting the company’s brand is critical in cybersecurity. One of the greatest dangers of digital threats is a potential impact to organization’s reputation.

30 Oct 2018, Webinar, Los Angeles, United States

A tripartite agreement to save NAFTA has been reached. The accord would be renamed the U.S.-Mexico-Canada Agreement (“USMCA”). The USMCA will replace the North American Free Trade Agreement, which dates to 1994 and covers $1.2 trillion in trade.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions