Project EIR or Program EIR? “A Rose By Any Other Name . . . .”

You are entitling a large project to be built in phases which reflect market conditions, lending constraints, absorption rates, and your appetite for risk. The final phases of your project may not be built for ten or more years, when planning and marketing considerations may have changed. Your EIR cannot possibly evaluate every last detail of the overall project, but you want to get started with the initial phases NOW. So, you hear your CEQA consultants, your lawyers, and the agency’s staff anguishing over whether your EIR will be a “program” EIR or a “project” EIR. You’re hearing that what you call the EIR may be more important than what it says and that a wrong decision on the label may drop you into the black hole of CEQA litigation. Really? Can this be true?

Fear no more. A recent appellate court decision involving the EIR for a master plan to redevelop Treasure Island, which sits between San Francisco and Oakland, has declared that substance does indeed trump form. The Treasure Island master plan called for up to 8,000 homes, new commercial and office buildings, 500 hotel rooms, a new ferry terminal, and parks, playgrounds and open space. Completion of the project was projected to take 15 to 20 years.

The core of the challenge was that the EIR identified itself as a “project level” EIR, suggesting – at least to the Petitioners – that no additional CEQA evaluation would be required throughout the project’s expected long course of development. The Petitioners wanted the label to matter more than the substance, because they hoped that would mean that every later phase of the “program” would provide an opportunity for them to bring a new CEQA challenge.

The Treasure Island court chose a more rational and practical interpretation of CEQA, holding that the EIR needed only to evaluate the level of detail known at the time the EIR is prepared. “The level of specificity of an EIR is determined by the nature of the project and the ‘rule of reason’, rather than any semantic label accorded to the EIR.” Regardless of whether you call it a “program EIR” or a “project EIR,” your ability to rely on the EIR for later phases should be the same. So, if you find that your multi-phase project’s EIR is being delayed by the agency because it is struggling with whether it needs a project EIR or a program EIR, have your land use counsel share the wisdom of the Treasure Island case with agency staff and keep your entitlement process on track.

(Note: Cox Castle & Nicholson represented Treasure Island Homeless Development Initiative in this case).

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