Appellate Court Permits The Real Party In Interest To Recover Attorney And Paralegal Costs Incurred In Preparing The Administrative Record In A SMARA Vested Rights Proceeding

No Toxic Air, Inc. v Lehigh Southwest Cement Co. ( 2016) 1 Cal.App.5th 1136

By William W. Abbott

If required due to the complexity of the matter, a prevailing party may be able to recover reasonable legal and paralegal costs incurred in preparing an administrative record required by an action in administrative mandamus.

Project opponents unsuccessfully challenged in court a vested rights determination made by Santa Clara County pertaining to a long time mining operation.  At issue was a mine begun in 1903 and had been an ongoing concern ever since, expanding in terms of physical scope and mine related activities through the years.  In 2010, the then owner sought a determination of vested rights from the County.   The County made the vested rights determination and was unsuccessfully challenged in court. The real party in interest filed a cost bill which included the attorney and paralegal costs associated with assembling the administrative record.  The unsuccessful plaintiffs moved to tax costs.  The trial court determined that the costs were reasonably incurred and appropriate for the complexity of the case, but granted the motion to tax for lack of authority to allow those costs. The real party in interest appealed. 

Code of Civil Procedure section 1094.5 provides in part “if the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.”  Looking to CEQA cases for guidance on this question, the appellate court concluded once the trial court determined the appropriateness and need for the attorney and paralegal work to prepare the record, that the motion to tax costs should have been denied and reversed.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

 

GENERAL PLAN INCONSISTENCY ANALYSIS BRINGS DOWN AN EIR

Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal. App. 4th 91

By William W. Abbott

The appellate court expands (and likely overstates) the general plan consistency disclosure obligation in an EIR. Conclusions regarding project impacts on climate change are not supported due to internal inconsistencies regarding the degree of compliance with local development standards. FEIR recirculation was required due to new information regarding compliance with general plan implementation measures and a substantial rewrite of project hydrology and mitigation.

The Tamarisk shopping center project in Victorville consists of 214,596 square feet of commercial retail uses on approximately 23.72 acres of land, currently vacant and undeveloped. Among the project's proposed commercial retail uses includes a Walmart store of approximately 184,946 square feet. The land use approvals included a general plan amendment, a zone change, a site plan, a conditional use permit, and a parcel map. The City approved the project, and the Association filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (petition) challenging the City's decision, alleging land use and CEQA claims. The trial court granted partial relief, holding that the EIR did not adequately discuss the project’s consistency with the City’s onsite electrical generation policy or project impacts on greenhouse gas emissions. The trial court also concluded that there was insufficient evidence of consistency with the onsite electrical generation policy to support the zoning change and parcel map. Wal-Mart appealed the lower court decision contending that there is substantial evidence to support the City's finding the project is consistent with the general plan and the project's EIR adequately analyzed the project's greenhouse gas emissions impacts. The Association cross-appealed, contending that the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended that the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project's parcel map. The appellate court rejected Wal-Mart’s arguments on appeal, and granted additional relief to the Association.

The case largely turns on an implementation measure of one policy contained within the general plan. That implementation measure (IM 7.1.1.4) “requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.” The EIR discussed the feasibility of onsite generation, and noted that feasibility was determined in part by the availability of tax credits along with other information relevant to the feasibility of onsite solar generation. The EIR also noted that the roof would be “solar ready” in the event that solar installation became financially feasibility. No enough according to the appellate court. Citing Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the cornerstone case on administrative findings in California, the EIR analysis was insufficient to adequately explain the infeasibility of solar, and did not discuss any other onsite generation options. Wal-Mart also argued that a project is not required to be consistent with every goal and policy which the appellate court recognized as a general proposition, but the court applied the exception for “fundamental” policies (Families Unafraid v. County of El Dorado (1998) 62 Cal.App.4th 1332).

The court then turned to the EIR evaluation of greenhouse gases. The analysis concluded that the project would not substantially contribute to GHG emissions, resting in part upon a general plan requirement that a project exceed Title 24 standards by 15 percent. However, the EIR included information suggesting that the project would exceed the Title 24 standards by at least 10 percent and in another part of the EIR, by 14 percent. Because of this conflict, the court concluded that the record did not support the City’s determination that the project’s contribution was less than significant based upon meeting the 15 percent target over Title 24.

With respect to the Association’s cross appeal, the appellate court agreed that a city or county must address both the affirmative and negative findings of the Subdivision Map Act. Government Code section 66474. Thus, tentative map approvals, including parcel maps, must include findings relating to general plan consistency, physical suitability of the site for the type and density of development, impacts to fish, wildlife and habitat, public health problems and public access easements.

The Association’s final issue on cross appeal asserted that the City was required to recirculate the FEIR due to revisions pertaining to traffic, biological resources, air quality, and hydrology and water quality. As to traffic, the text dealt with the effect of a delay in an assumed improvement and the information indicated that service would degrade, but the significance level would not change. With respect to biological resources, the revisions reflected that the streambed impact area would increase, and that the number of special status species tested in spring surveys would also increase. None of these revisions constituted substantial new information or deprived the public of a meaningful opportunity to comment. The appellate court agreed with the Association as to air quality and hydrology. Because the appellate court had concluded that there was a lack of substantial evidence to support the conclusion of consistency with the general plan implementation measures, the appellate court concluded that there was a significant adverse impact and that the public had been denied a meaningful opportunity to comment. The revisions to the hydrology section was a significant rewrite and redesign (replacing 26 pages with 350 pages of technical reports.) The changes were sufficient in degree (and no redline of changes was included to facilitate tracking) that the court concluded the revisions denied the public a meaningful opportunity to review and comment.

Commentary:

  1. I think that decision overstates the EIR’s obligation to discuss general plan consistency issues. To this practitioner, the EIR is not intended nor designed to be the resolution of broader general plan consistency issues as the CEQA Guidelines provisions on general plans are specific and narrow. See CEQA Guidelines sections 15063(d)(5) (initial study);  section 15125 (environmental setting); section 15130 (cumulative impacts); Appendix G, section N. A robust consistency analysis is best addressed through the staff report. Best practices in an EIR would include language directing the reader to the staff report for an evaluation of project consistency with the general plan.
  2. The decision draws no distinction between legislative and adjudicatory findings, although ultimately this would not have been determinative.
  3. General plan practitioners should ponder the ramifications of the court’s use of the general plan. The case vividly illustrates the risk of over committing future action in a general plan and supports the idea of under promising when drafting general plan text. As this case also illustrates, the court should not be left to its own devices to determine which policies or implementation measures are fundamental and mandatory in every instance. Best practices suggests inclusion of language in a general plan specifically disavowing characterization of policies as “fundamental” unless specifically noted as such.
  4. The court’s decision on the SMA findings will not come as a surprise or burden to many cities and counties. The court’s conclusion begs the question as to the other denial findings found in chapter 4 of the SMA. Cities and counties may be well served to develop and apply a comprehensive list of all the approval/denial related findings to every tentative subdivision and parcel map.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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Plan Bay Area EIR and Sustainable Communities Plan Upheld

Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966.

By William W. Abbott

In a case perhaps driven primarily by philosophical considerations, the Court of Appeal (First Appellate District) upheld ABAG’s Sustainable Communities plan (the “Plan”), adopted under the authority of SB 375 (Steinberg).  SB 375, adopted in 2008, created a framework for linking transportation investment and land use planning in a manner to move the state closer to its targeted reduction in greenhouse gas emissions by passenger vehicles and light trucks. The heavy lifting under SB 375 is by the regional planning agencies, in this case Association of Bay Area Governments (“ABAG”) in consultation with the California Air Resources Board (“CARB”) as it discharges its responsibilities developing and implementing the State Scoping Plan.

In response to the targets set by CARB, ABAG developed and released a Draft Plan. The Plan identified land use and transportation strategies believed to meet the required per capita reductions. These strategies included land use intensification around transit corridors. Ultimate implementation of the strategies would rest with the individual cities and counties as the ABAG Plan did not directly control land use decisionmaking. ABAG prepared an EIR to go with the Draft Plan. The EIR evaluated (a) the Plan’s ability to meet the regional SB 375 generated targets, (b) anticipated changes in greenhouse emissions (direct and indirect) by 2040, and (c) compliance with the Executive Orders (S-3-05 and B-16-2012). With respect to the first analysis (meeting the regional targets), the EIR excluded any benefits from the Pavley I legislation and low carbon fuel requirements, whereas Pavley I and low carbon adjustments were factored into the analysis for the second and third evaluations.  ABAG submitted its Draft Plan to CARB for technical review as provided for by SB 375, and CARB approved the methodology.

Bay Area Citizens was critical of the Draft Plan along with the EIR, and offered its own alternative. Citizens claims included the argument that the Plan had to account for reductions from Pavley I and low carbon fuels and that ABAG should have considered its alternative which avoided “draconian” land use and transportation strategies. Dissatisfied with the Plan and EIR, Citizens following adoption filed a petition for writ of mandate challenging the adoption. The trial court denied relief as did the appellate court.

The appellate decision is quite detailed, setting forth the full regulatory structure for the adoption of the regional plans, including CARB’s role. Citizen’s primary attack dealt with the role of reductions from Pavley I and low carbon fuels. As the court noted, the regional targets for reductions are separate and distinct from the reductions taken under the Scoping Plan for Pavley I and low carbon fuels. The appellate court agreed with ABAG that factoring Pavley I and low carbon into the regional targets would result in double counting. As most of Citizen’s arguments were tied to its fundamental attack regarding exclusion of Pavley I and low carbon fuels into the regional targets, the appellate court rejected those as well.

Although the appellate decision is mostly dedicated to SB 375, Citizens also challenged the EIR. Its first argument challenged the project description, reintroducing the theme that Pavley I and low carbon should have been factored in as part of the project description. The appellate court readily disposed of this argument, reciting that the seven identified goals for the Plan were sufficiently broad and appropriately linked to SB 375. The appellate court then turned to Citizens’ challenge to the EIR’s alternatives. Citizens first argued that the No Project alternative was required to reflect the benefits of other state programs (notably Pavley I and low carbon fuels) which largely centered upon an argument that the EIR should have included the Citizen’s alternative. Again, the appellate court disagreed noting that the targets in greenhouse gas reduction and climate change from the Plan were developed independent from and were additive to the anticipated benefits of Pavley I and low carbon fuels. The appellate court also determined that the Pavley II impacts were not known until too late in the EIR process and therefore were not required to be reflected in the EIR. Citizens also argued that the EIR was required to review its plan as an alternative, suggesting that its plan would have met basic project objectives without the secondary effects of higher density development. The court rejected this argument finding that the EIR included a reasonable range of alternatives and that Citizens had failed to demonstrate any shortcomings against that legal standard. Citizens last argument was a variation on the same theme: because the Agency failed to account for the benefits of Pavely I and low carbon fuels, the Agency failed to adequately respond to the Citizens comments as to those issues. Again noted the appellate court, the Citizens had it wrong.

Finally, as an independent ground to uphold the EIR, the Court agreed with amicus California Attorney General that the EIR was a full disclosure document. The document was clear when and where it relied upon Pavley I and low carbon fuels, and that the challengers failed show why more analysis was required. Essentially then, Citizens challenge was to the wisdom of the Plan itself, essentially at its best that the Plan did more than the minimum to meet the law.  In the end, a challenge to the wisdom of the Plan was not a CEQA challenge.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

2016 CEQA 2nd QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi

Welcome to Abbott & Kindermann’s 2016 2nd Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

1.         2015 CEQA UPDATE 

To read the 2015 cumulative CEQA review, click here: 

2.         CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 5 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Banning Ranch Conservancy v. City of Newport Beach, S227473. (G049691; 236 Cal.App.4th 1341; Orange County Superior Court; 30-2012-00593557.) Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues: (1) Did the City's approval of the project at issue comport with the directives in its general plan to "coordinate with" and "work with" the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city's interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas - as defined in the California Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) - in the environmental impact report for the project?

Cleveland National Forest Foundation v. San Diego Assn. of Governments,

S223603. (D063288; 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TTCTL.) Petition for review after the court of appeal affirmed the judgment in a civil action. The court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? 

Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.) Petition for review after the court of appeal affirmed the judgments in actions for writ of administrative mandate. This case includes the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state owned rail line and/or leasing state-owned property?

Sierra Club v. County of Fresno, S219783 (F066798, 226 Cal.App.4th 704); Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)

Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. (A135892; nonpublished opinion; San Mateo County Superior Court; CIV508656.) Petition for review after the court of appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385)? Or, is the agency’s decision subject to a threshold determination of whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

3.         UPDATE

A.              General Considerations: When Is An MOU A Project? 

Delaware Tetra Technologies, Inc. v. County of San Bernardino (2016) 247 Cal.App.4th 352.

Citing seminal CEQA timing cases Save Tara v. City of West Hollywood, 45 Cal.4th 116 (2008) (“Save Tara”), and RiverWatch v. Olivenhain Municipal Water Dist., 170 Cal.App.4th 1186 (2009)(“RiverWatch”), the plaintiff claimed the respondent’s approval of a Memorandum of Understanding for development of a public/private partnership groundwater pumping project in the Mojave Desert (“2012 MOU”) was a “project” under CEQA and, thus, environmental review was required before it could be approved.  The court disagreed, finding that the 2012 MOU was not a “project,” because it did not commit the County “to a particular course of action that will cause an environmental impact,” affirming the trial court.  It reasoned that the instant circumstances were distinguishable from those cases, because those defendant agencies were sufficiently committed to a course of action that foreclosed alternatives or mitigation measures normally considered as part of the project approval process.  Instead, the 2012 MOU was akin to the “term sheet” in Cedar Fair, L.P. v. City of Santa Clara, 194 Cal.App.4th 1150 (2011), because the approval was merely “a process for completing the Plan” and the MOU explicitly stated that “the County retain[ed] full discretion to consider the Final EIR and then to approve the Project, disapprove it, or require additional mitigation measures or alternatives.” 

B.              Exempt From CEQA Review 

People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640.

The City of Palm Springs amended its general plan to remove minimum density requirements.  The City asserted that the amendment was categorically exempt from CEQA (CEQA Guidelines §15305 [Minor Alterations in Land Use Limitations]), as the action was consistent with prior city interpretation and administration of the General Plan which resulted in projects as less than the minimum stated in the various land use districts.  While the trial court agreed that it was exempt, the appellate court reversed on the basis that the change undermined the city’s ability to meet its state share of housing needs when it relied upon the “anticipated densities” when developing its housing element. Consequently, given the exemption’s facial exclusion for projects that result in changes to land use density, the exemption was inapplicable.

Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265.

In 2007, the City of Upland adopted an ordinance banning both “fixed or mobile” medical marijuana dispensaries within the city limits. In reaction to the likely operation of marijuana delivery services within the city limits, the council adopted a new ordinance in 2013 that explicitly banned mobile dispensaries.  The Union of Medical Marijuana Patients (“UMMP”) filed a petition for writ of mandate, arguing that adoption of the ordinance was a “project” subject to the California Environmental Quality Act and the trial court denied.  The 4th appellate district court affirmed, holding that the ordinance was not a project under CEQA.  It reasoned that the 2013 ordinance was nothing more than a ratification of the previous existing ordinance which banned mobile dispensaries. It then further found that even if the 2013 did not restate existing law, the potential environmental effects raised by UMMP through studies evaluating industrial-scale indoor growing operations—increases in electrical and water, waste plant material and odors, hazardous waste materials, increased traffic—were speculative and, thus, not reasonably foreseeable environmental effects.  It reasoned that these concerns “rest on layers of assumptions” about the similarity of the potential acts and consequences of small-scale medical marijuana patients and those on an industrial-scale if the mobile delivery service ban is upheld.  

C.              Negative Declarations 

Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016, E062479) ___ Cal.App.4th ___. 

In a challenge to the adequacy of the county’s adopted Negative Declaration, the appellate court held that petitioner failed to provide substantial evidence of a potentially significant effect from urban decay resulting from the approval of a 9,100 sq. ft. Dollar General store, because there were legitimate credibility issues regarding the opinions of the local business owner regarding the impact.  The court also held that given the relatively moderate size of the business, it was reasonable for the county to conclude that the project was consistent with the county policies for the area which favor small businesses.

Preserve Poway v. City of Poway (2106) 245 Cal.App.4th 560.

It is no surprise that people, as a general rule, dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no. 

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims. 

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.” 

The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected this argument, following the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective. 

On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest. 

            C.        Environmental Impact Reports

Bay Area Citizens v. Association of Bay Area Governments (June 30, 2016, A143058) ___ Cal.App.4th ___.

In a legal challenge perhaps driven primarily by philosophical considerations (higher density vs. lower density), the Court of Appeal (First Appellate District) upheld ABAG’s Sustainable Communities plan (the “Plan”), adopted under the authority of SB 375 (Steinberg).  SB 375, adopted in 2008, created a framework for linking transportation investment and land use planning in a manner to move the state closer to its targeted reduction in greenhouse gas emissions by passenger vehicles and light trucks. The heavy lifting under SB 375 is by the regional planning agencies, in this case Association of Bay Area Governments (“ABAG”) in consultation with the California Air Resources Board (“CARB”) as it discharges its responsibilities developing and implementing the State Scoping Plan. The adequacy of the Plan and EIR, and in particular the shift towards higher density, was challenged by Bay Area Citizens. 

Although the appellate decision is mostly dedicated to SB 375, Citizens also challenged the EIR. Its first argument challenged the project description, reintroducing the theme that Pavley I and the low carbon fuel requirements should have been factored in as part of the project description. The appellate court readily disposed of this argument, reciting that the seven identified goals for the Plan were sufficiently broad and appropriately linked to SB 375. The appellate court then turned to Citizens’ challenge to the EIR’s alternatives.  Citizens first argued that the No Project alternative was required to reflect the benefits of other state programs (notably Pavley I and low carbon fuels) which largely centered upon an argument that the EIR should have included the Citizen’s alternative.  Again, the appellate court disagreed noting that the targets in greenhouse gas reduction and climate change from the Plan were developed independent from and were additive to the anticipated benefits of Pavley I and low carbon fuels. The appellate court also determined that the Pavley II impacts were not known until too late in the EIR process and therefore were not required to be reflected in the EIR.  Citizens also argued that the EIR was required to review its plan as an alternative, suggesting that its plan would have met basic project objectives without the secondary effects of higher density development.  The court rejected this argument finding that the EIR included a reasonable range of alternatives and that Citizens had failed to demonstrate any shortcomings against that legal standard. Citizens last argument was a variation on the same theme: because the Agency failed to account for the benefits of Pavely I and low carbon fuels, the Agency failed to adequately respond to the Citizens comments as to those issues. Again noted the appellate court, the Citizens had it wrong. 

Finally, as an independent ground to uphold the EIR, the Court agreed with amicus California Attorney General that the EIR was a full disclosure document. The document was clear when and where it relied upon Pavley I and low carbon fuels, and that the challengers failed to show why more analysis was required. Essentially then, Citizens challenge was to the wisdom of the Plan itself, essentially at its best that the Plan did more than the minimum to meet the law. In the end, a challenge to the wisdom of the Plan was not a CEQA challenge.

Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal. App. 4th 91 

The appellate court expands (and likely overstates) the general plan consistency disclosure obligation in an EIR. Conclusions regarding project impacts on climate change are not supported due to internal inconsistencies regarding the degree of compliance with local development standards. FEIR recirculation was required due to new information regarding compliance with general plan implementation measures and a substantial rewrite of project hydrology and mitigation. 

The Tamarisk shopping center project in Victorville consists of 214,596 square feet of commercial retail uses on approximately 23.72 acres of land, currently vacant and undeveloped. Among the project's proposed commercial retail uses includes a Walmart store of approximately 184,946 square feet. The land use approvals included a general plan amendment, a zone change, a site plan, a conditional use permit, and a parcel map. The City approved the project, and the Association filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (petition) challenging the City's decision, alleging land use and CEQA claims. The trial court granted partial relief, holding that the EIR did not adequately discuss the project’s consistency with the City’s onsite electrical generation policy or project impacts on greenhouse gas emissions. The trial court also concluded that there was insufficient evidence of consistency with the onsite electrical generation policy to support the zoning change and parcel map. Wal-Mart appealed the lower court decision contending that there is substantial evidence to support the City's finding the project is consistent with the general plan and the project's EIR adequately analyzed the project's greenhouse gas emissions impacts. The Association cross-appealed, contending that the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended that the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project's parcel map. The appellate court rejected Wal-Mart’s arguments on appeal, and granted additional relief to the Association. 

The case largely turns on an implementation measure of one policy contained within the general plan. That implementation measure (IM 7.1.1.4) “requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.” The EIR discussed the feasibility of onsite generation, and noted that feasibility was determined in part by the availability of tax credits along with other information relevant to the feasibility of onsite solar generation. The EIR also noted that the roof would be “solar ready” in the event that solar installation became financially feasibility. No enough according to the appellate court. Citing Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the cornerstone case on administrative findings in California, the EIR analysis was insufficient to adequately explain the infeasibility of solar, and did not discuss any other onsite generation options. Wal-Mart also argued that a project is not required to be consistent with every goal and policy which the appellate court recognized as a general proposition, but the court applied the exception for “fundamental” policies (Families Unafraid v. County of El Dorado (1998) 62 Cal.App.4th 1332).

The court then turned to the EIR evaluation of greenhouse gases. The analysis concluded that the project would not substantially contribute to GHG emissions, resting in part upon a general plan requirement that a project exceed Title 24 standards by 15 percent. However, the EIR included information suggesting that the project would exceed the Title 24 standards by at least 10 percent and in another part of the EIR, by 14 percent. Because of this conflict, the court concluded that the record did not support the City’s determination that the project’s contribution was less than significant based upon meeting the 15 percent target over Title 24.

With respect to the Association’s cross appeal, the appellate court agreed that a city or county must address both the affirmative and negative findings of the Subdivision Map Act. Government Code section 66474. Thus, tentative map approvals, including parcel maps, must include findings relating to general plan consistency, physical suitability of the site for the type and density of development, impacts to fish, wildlife and habitat, public health problems and public access easements.

The Association’s final issue on cross appeal asserted that the City was required to recirculate the FEIR due to revisions pertaining to traffic, biological resources, air quality, and hydrology and water quality. As to traffic, the text dealt with the effect of a delay in an assumed improvement and the information indicated that service would degrade, but the significance level would not change. With respect to biological resources, the revisions reflected that the streambed impact area would increase, and that the number of special status species tested in spring surveys would also increase. None of these revisions constituted substantial new information or deprived the public of a meaningful opportunity to comment. The appellate court agreed with the Association as to air quality and hydrology. Because the appellate court had concluded that there was a lack of substantial evidence to support the conclusion of consistency with the general plan implementation measures, the appellate court concluded that there was a significant adverse impact and that the public had been denied a meaningful opportunity to comment. The revisions to the hydrology section was a significant rewrite and redesign (replacing 26 pages with 350 pages of technical reports.) The changes were sufficient in degree (and no redline of changes was included to facilitate tracking) that the court concluded the revisions denied the public a meaningful opportunity to review and comment.

Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256.

The appellate court held that the city’s EIR for a commercial retail project failed to adequately analyze energy impacts, because it failed to calculate the resulting energy impacts from increased vehicle trips resulting from the project. Furthermore, it held that the city’s reliance upon building code compliance to reduce energy use was improper, because the compliance with those standards fails to address many of the considerations required under Appendix F of the CEQA Guidelines. The court also held that the city’s adoption of an addendum to the EIR addressing these deficiencies nearly one year after its original adoption did not cure the deficiencies in the EIR, because the EIR was still inadequate at the time the decision was made to approve the project.

Center for Biological Diversity v. County of San Bernardino (2016) 247 Cal.App.4th 326.

The petitioners challenged the adequacy of the environmental impact report (“EIR”) for a proposed project to pump groundwater from an underground aquifer in the Mojave Desert, a public/private partnership between the County of San Bernardino (the “County”), the Santa Margarita Water District (“Santa Margarita”), the Fenner Valley Mutual Water Company (“Fenner Valley”), and Cadiz, Inc. (“Cadiz”)(collectively, the “Respondents”). Petitioners challenged under several theories: (1) Santa Margarita was improperly designated as the lead agency under CEQA; (2) the project description was misleading and inaccurate by (a) mischaracterizing the project’s “conservation” objectives as preventing water lost to evaporation, (b) misstating the project duration; and (c) mischaracterizing the total amount of water than will be withdrawn from the aquifer. The trial court denied the petition and the petitioners appealed. 

The appellate court affirmed on all counts. It found Santa Margarita was properly designated as the lead agency pursuant to CEQA Guidelines section 15051, because (1) it is a public agency that will carry out, in part, a public/private partnership; and (2) it will have the greatest responsibility for supervising the project as a whole. It rejected petitioners’ claim that the project does not meet its purported “conservation” purpose, finding that the purpose was broader than prevention of evaporation and included saving freshwater sources before they become non-potable due to excess salinity once they migrate into nearby dry lakes.   

The court denied petitioners claims that the project duration was indefinite, reasoning that even though the project by its terms could be extended beyond its 50-year duration in order to complete contracted-for water deliveries, the duration remained limited by the fact that any extension was limited by the maximum amount of water that may be pumped over the life of the project, and the average amount of water that can be pumped annually. It further reasoned that any extensions would require subsequent environmental review consistent with CEQA. Finally, the court rejected the claim that the quantity of water pumped was inaccurate, reasoning that the water sales agreement cited other adopted documents limiting the amount of water that may be pumped annually and that the size of the pipelines is consistent with the project design capacities. 

North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. (Unpublished to Published January 4, 2016.)

            An EIR was held to be invalid due to an inadequate range of alternatives.

The Third Appellate District found an EIR to be inadequate for lack of a particular alternative. While this suggests a potential micromanagement of the EIR process, the decision involves an unusual fact pattern. The lead agency was California Department of Food and Agriculture, proposing a seven year program to eradicate an invasive insect, the light brown apple moth (“LBAM”)[1]. Found in select northern California counties, this insect had spread rapidly notwithstanding State efforts to control the pest. The State proposed a program to eliminate the insect (as compared to managing its population) and prepared an EIR. At the end of the EIR process, the State approved a seven year program to control LBAMs based upon new information that eradication was not deemed to be attainable. “Control,” as compared to eradication, was not considered in the EIR as a reasonable alternative. Rather, the alternatives section examined seven techniques for management (five of which were approved as part of the project.) Opponents filed suit, arguing primarily project segmentation (after all, the pest was only to be controlled, not eradicated, within seven years), unstable project description and inadequate project alternatives. 

The project objective was defined as “eradication,” an objective determined by the appellate court to be too narrow. Eradication was used as a screening tool that prevented the consideration of control, which in the end is what the State approved. The fact that the State approved control in the end did not salvage the EIR as the error was deemed to be prejudicial. While late project adjustments might be allowable if insignificant, the court viewed the administrative record as lacking in supporting an insignificance conclusion because of the omission of any consideration of control in the EIR. The court also observed that the record supported the inference that impacts associated with control might be greater than eradication because of the potentially indefinite duration. 

Petitioners also argued other technical defects in specific impact analyses, but these were all rejected by the appellate court. The court considered but rejected an argument that the EIR was defective for failure to consider site specific impacts.  Finally, the court addressed a cumulative impacts argument stating that the new EIR take into consideration the long term (post seven year effects and treatment) in the evaluation of cumulative impacts.

D.        OPR VMT CEQA Guidance 

January 20, 2016 Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA.  (Item 1.)

If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Dan Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.



[1] From Australia, which has also brought us Mad Max, Crocodile Dundee, and shrimp-on-the-barbie.

 

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Fifth Appellate District Defers To Municipality When Reviewing Findings Of General Plan Consistency

Naraghi Lakes Neighborhood Preservation v. City of Modesto (June 7, 2016, F071768) ___ Cal.App.4th ___.

By William W. Abbott

Why Words Matter In Your General Plan: Resolving Issues Of Horizontal And Vertical Consistency.

When does language in a general plan regarding the size of a shopping center denote a mandatory or directory requirement for purposes of determining consistency? It all depends upon the wording according to the Fifth Appellate District.  At issue was the City of Modesto General Plan and the policies adopted (in 1974) in the general plan as part of the Neighborhood Plan Prototype (NPP). Within neighborhoods (estimated at 480 acres), the NPP called for a 7-9 acre shopping center with 60000-100,000 square feet of gross leasable area. In 2011, a developer proposed an 18 acre shopping center with approximately 170,000 square feet of gross leasable area. While the City initially processed a negative declaration, the CEQA processing shifted to an EIR. The project was opposed by neighboring property owners, and following City approval of the project, the neighbors filed suit on both land use and CEQA grounds. The trial court ruled for the City, and the neighbors appealed. The appellate court upheld the City’s decision, but published only the portion of the opinion pertaining to the land use claims.

The land use claim tested the consistency of the shopping center with the NPP, given that it was significantly larger than the acreage range contained within the NPP. The court cited the established rule that the consistency does not require exact conformity, but general compatibility. Sequoya Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 and Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807. The court also noted that a city or county was entitled to deference when making those findings. The City’s findings had noted that the acreage notations in the NPP were for guidance purpose, and also noted that the City had approved a number of commercial centers in excess of the 7-9 acre range. While there was a legal debate as to whether the referenced centers were subject to the NPP, the appellate court concluded that it did not matter in the end. In the court’s view, there was substantial evidence in the record to support the City’s consistency determination in that the site fit the City’s location criteria for commercial centers and conformed to all of the other policies. One troubling argument involved the language of the NPP which recognized the need for potential minor adjustments to accommodate existing development in the area. The neighbors used this exception language to argue that the acreage range was in fact a mandatory standard. The appellate court concluded that this language, by its terms, only concerned itself with existing development and was not controlling as the question of whether or not the other NPP policies were mandatory and binding.

Comment: It is all about the staff report and findings. As this case illustrates, a city or county needs to make the case for consistency and other required determinations while the project is being processed. The reward for doing your homework is judicial deference, a worthy incentive.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

Vested Rights And The Chicago Cubs Winning The World Series: Long Odds On Both

Stewart Enterprises, Inc. v. City of Oakland (2016) 248 Cal.App.4th 410

By William W. Abbott

A judicial determination that a vested right exists brings to mind one of those folksy truisms I occasionally like to quote: even the blind squirrel finds a nut once in a while. Simply stated, California’s common law rule on vested rights is hostile to land investment and development as rights are not protected until very late in the regulatory process. The Supreme Court invited the California Legislature to craft a different rule, and that invitation introduced development agreements, vesting tentative maps and the locking-in of subdivision standards into California land use practice. Other than those changes, there has been only microscopic adjustments to the common law rule which requires an applicant to acquire a building permit (or equivalent) and undertake substantial good faith expenditures based upon that permit in order to vest rights against regulatory changes since the seminal California Supreme Court decision in Avco Community Developers, Inc. v. South Coast Regional Commission (1976) 17 Cal. 3d 785.

But enough with ancient history. The latest vested rights case involves an applicant (Stewart) who obtains a permit to construct a crematorium. Stewart identified property zoned Commercial Industrial Mix 2, an intensive zoning district. City staff made a determination that a crematorium was an allowable use and granted a zoning clearance. BAAQMD issued an authority to construct in November 2011, and Stewart purchased the property in January 2012. Stewart obtained a building permit in May 2012, and at that time, the City’s code had general provisions [1]recognizing that the issuance of a building permit was a recognized vesting point against later changes in the zoning code. Stewart’s plans created community concerns, and the staff worked on an interim ordinance which then morphed into an urgency ordinance. The public supported the proposed regulatory changes. The City Council adopted the urgency ordinance which had the effect of adding the conditional use permit requirement. The ordinance contained the usual health, safety and welfare findings, and also recognized that applicants with vested rights would be exempt from the ordinance. Following passage of the ordinance, the planning director wrote Stewart advising it that a use permit was required. Stewart appealed the staff determination, and the Planning Commission, following consideration of public input opposed to the appeal, denied the appeal on a 3-2 vote. Stewart then brought suit to invalidate the Planning Commission decision, alleging eleven causes of action. The case went to trial on the administrative mandamus claim, and the trial court granted relief in favor of Stewart based upon the general vesting provisions of the City Code. Eventually, Stewart dismissed the balance of the case.

On appeal, the City argued that the later enactment requiring a conditional use permit trumped the general ordinance provisions which vested permit holders. Not according to the terms of the City’s own ordinance according to both the trial and appellate courts. The City also argued that the later ordinance which added a conditional use permit requirement was not in conflict with the vesting ordinance as it did not prohibit the activity, but simply added an additional discretionary permit requirement. Both the trial and appellate courts rejected this argument concluding the introduction of a discretionary permit requirement effectively prohibited what would have otherwise been permitted, and therefore conflicted with the local ordinance. The City’s final argument was that any impairment of Stewart’s rights were justified to protect the public welfare. The appellate decision discusses both the urgency enactment (the legislative act) and the adjudicatory act (denial of Stewart’s appeal) and refers to the evidence in front of the City in both proceedings. Looking at all of the evidence, but without distinguishing which hearing was the relevant hearing to evaluate the evidentiary support to apply a public welfare exception to the vested rights rule, the appellate court also concurred that the generalized objections presented to and by the City were insufficient to support a public welfare determination sufficient to denial Stewart of its vested rights.

PS.   The Cubs last won the Series in 1908. Perhaps the odds on vested rights in California are a better play.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.



[1] A provision which is found in many local codes.

 

Abbott & Kindermann, LLP Is Pleased To Announce That Two Of Its Attorneys Have Been Chosen For The 2016 Northern California Super Lawyers List

Diane G. Kindermann and William W. Abbott were again selected for the Northern California Super Lawyers List in the practice areas of Environmental, Land Use/Zoning and Real Estate Law. More information is available at http://www.superlawyers.com/california-northern/. The firm is pleased to continue to serve private and public clients in Northern California on land use, environmental and real estate matters for more than 20 years.

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City Elimination Of Minimum Densities Not Exempt From CEQA Review

People for Proper Planning v. City of Palm Springs (April 22, 2016, E062725) ____ Cal.App.4th ____. 

By William W. Abbott

In 2013, the City of Palm Springs amended its general plan to remove any mention of minimum densities in the residential land districts. The text of the general plan in some residential districts provided for a range of densities, in others an average density or one stated density. The general plan also provided that the stated densities at the upper end were maximums, but the lower end reflected “the minimum amount of development anticipated, provided that all other required conditions can be met.” The City Council’s resolution adopting the amendment provided in part that “the current and past practice of the city… is to consider only the maximum density allowed within each land category and consider and approve lower density projects.” The Council passed the resolution relying upon a categorical exemption (Class 5; “minor alterations in land use limitations in areas of average slope of less than 20%, which do not result in any changes in land use or density….”). A citizens group filed suit, challenging the amendment on CEQA grounds as well as violations of the state planning and zoning law. The trial court ruled in favor of the city and the petitioners appealed. In the published portion of the decision, the appellate court reversed the City’s use of an exemption.

Surprisingly, the appellate court did not cite the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, on judicial review of CEQA exemptions. The appellate court’s first point was that the amendment facially conflicted with the terms of the exemption in that that it resulted in change in densities. Accepting for the sake of argument the City’s position that the amendment simply reflected actual city practices, the appellate court noted that the petitioner had presented sufficient evidence of a fair argument (without elaborating on that evidence) and that the general plan amendment was capable of significant cumulative effects to the supply of high density, low and moderate income housing. To this latter point, the court noted that the 2007 General Plan EIR discussed the role of high density housing to meet its housing needs and to avoid unnecessary conversion of surrounding desert lands. The Court then questioned the City’s ability to meet its fair share of housing as a basis to overturn the use of the CEQA exemption.

The court went on to address the City’s argument that the baseline had not changed, asserting that as the City had not interpreted its general plan in a manner which dictated minimum densities, there was therefore no change from the baseline as a result of the general plan amendment. The Court concluded that once the general plan was adopted, it became the new baseline. Since the general plan relied upon the anticipated densities to meet housing needs, the question remained as to the City’s ability to meet its fair share housing needs. Although the published decision lacks critical analysis, the inference is that this unanswered question defeated the use of the categorical exemption.

Comment: The court’s characterization of the general plan as the new baseline while in many circumstances this would be an ideal approach in reducing CEQA burdens, this court’s approach is at variance with a number other long standing CEQA decisions, and lead agencies should be cautious about uncritical reliance upon this approach. The decision is best viewed as an unusual analysis of a CEQA exemption and left at that.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

Court Of Appeal Holds That, While The California Constitution Does Not Guarantee A Right of Access To Martin's Beach, The Public May Have An Access Right Under The Theory Of Common Law Public Dedication.

By Glen Hansen

Friends Of Martin's Beach v. Martin's Beach 1, LLC (2016) 246 Cal.App.4th 1312

In a dispute between a plaintiff unincorporated association asserting public rights and defendant property owners over the use of a road, parking area and the inland dry sand of a popular beach that were owned by defendants, the Court of Appeal for the First Appellate District in Friends Of Martin’s Beach v. Martin’s Beach 1, LLC (2016) 246 Cal.App.4th 1312, 2016 Cal.App.LEXIS 341, held: (1) that the trial court properly granted summary adjudication as to plaintiff’s claim that Article X, section 4, of the California Constitution, confers on the public a right of access over private property to tidelands; and (2) that the trial court erred in granting summary adjudication as to plaintiff’s claim that, under the theory of common law dedication, the owner’s predecessors dedicated such access to the public through their words and acts, and that the public accepted that offer by using those parts of defendants’ property.

The Martin’s Beach case involved two parcels of land bounded on the east by Highway 1 and on the west by the Pacific Ocean (“Property”). At the western edge of the Property is a crescent-shaped strip of land known as “Martin’s Beach.” The only land access to Martin’s Beach is via a road that runs across the Property from Highway 1 to the beach. The Property was once part of a larger tract of land that was provisionally granted by the Mexican Governor of California in 1838 (“Rancho”).  The grant was not finalized by the time war broke out between Mexico and the United States in 1848. The Treaty of Guadalupe Hidalgo ended the war, and in 1851, Congress passed legislation to implement the Treaty. The 1851 Act established the process to address pre-war land claims.  Claims that were confirmed in those proceedings resulted in a federal patent, which is the equivalent of a deed from the federal government conveying fee simple ownership.  A patent claim for the Rancho was eventually confirmed in such patent proceedings, and by the United States Supreme Court on appeal.  Over time, the Rancho was divided into smaller parcels, including the Property, and conveyed to various persons. 

The Property was eventually acquired by the Deeney family.  The Complaint in this case alleged that, from the 1930s or earlier, the Deeney family invited the public to use the beach and the road to the beach both by words and conduct, specifically by posting a large billboard on the highway inviting the public to come to the beach by way of the road, by “welcom[ing] all ‘with open arms,’” and by constructing public toilets, a parking area and a convenience store catering to those who visited the beach.  For some of that time they charged a 25ȼ parking fee.  The Complaint also alleged: “Postcards from the ‘50s show hundreds of people enjoying idyllic days at a beach that at times had the feel of a Mediterranean escape.” “In more recent years, surfers, in particular, enjoyed what the website Surfpulse refers to as a ‘mystical and multi-faceted playground’ and what Save the Waves’ program director called ‘a natural theme park with sand.’”  The Deeney family sold the Property to defendants Martin’s Beach 1, LLC and Martin’s Beach 2, LLC (“Owners”) in 2008.  In 2009, the Owners locked a gate barring the entrance to the road, placed “No Trespassing” signs there and otherwise prevented the public from using the road or the beach.

Plaintiff Friends of Martin’s Beach, an unincorporated association (“Plaintiff”), filed a complaint against the Owners “on behalf of the general public,” citing numerous legal theories and causes of action in order to assert “nonexclusive rights and interests acquired by the general public in the beach to high tide at Martin’s Beach, the dry sand inland, an inland area historically used for parking and access along Martin’s Beach Road.”  In response to the parties’ cross-motions for summary adjudication, the trial court ruled in favor of Owners on all of the public access issues.  Plaintiff appealed.  The Court of Appeal affirmed in part, reversed in part, and remanded the case to the trial court on the public dedication claim. 

Plaintiff’s Constitutional Claims For Public Access

Plaintiff argued that Article X, section 4, which was adopted by the People as part of the Constitution of 1879, entitled the public to an easement to use the road across the Property for the purpose of gaining access to the tidelands.  That section 4 provides:

 

No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof. 

However, the Court of Appeal affirmed the trial court’s conclusion that, whatever public rights exist under section 4 (that issue was not decided), do not override the federal land patent title in the Owner in light of Summa Corp. ex rel. Lands Commission v. California (1984) 466 U.S. 198.   In Summa, the U.S. Supreme Court held that the State of California acquired no public trust interest in lands to which title was confirmed under the federal Act of 1851 patent process based on a Mexican land grant, unless such interest was asserted by the State in the patent proceedings.  Here, Plaintiff's cause of action based on section 4 was barred under Summa because California did not acquire a public interest in the Property.  That was so because the State did not assert any such interest during the patent proceedings for the Rancho in the 1850s.  In response to Plaintiff’s attempts to distinguish Summa, the Court further held (1) that the provisional nature of the Mexican land grant for the Rancho did not alter the conclusive application of Summa; (2) that section 4 is, at least in part, a codification of the public trust doctrine; and (3) that section 4 is not a mere regulation of an “incident of ownership.”  Thus, Plaintiff’s constitutional claim based on section 4 was barred under Summa.  The Court also explicitly rejected Plaintiff’s alternative argument that section 4 is retroactive and burdens lands held in private ownership before its enactment. Not surprisingly, counsel for the owner called the Court of Appeal’s ruling on the section 4 claim, which ruling rejected the idea of a guaranteed right of beach access under the California Constitution, “a win for our client and for all coastal property owners.”

Plaintiff’s Common Law Dedication Claim For Public Access

The Court of Appeal held that the trial court erred in granting summary adjudication as to Plaintiff’s common law dedication claim.  A common law dedication is a “grant and a gift” of land or an interest in land to the public for a public use.  A claim for dedication has two elements: “intention to dedicate by the owner, and acceptance by the public.” To constitute a dedication at common law no particular formality of either word or act is required. All that is necessary is sufficient evidence that the property owner either expressly or impliedly manifested an unequivocal intention to offer the property for a public purpose and that there was an acceptance of the offer by the public. Such intent may be demonstrated in any conceivable way that a person’s intention can be shown.  Similarly, the acceptance element may be formal, as by resolution or ordinance, or by use.  Here, the Court rejected the Owner’s singular focus on the “express” dedication label that was used in Plaintiff’s Complaint. The elements are the same for either an implied or an express dedication; the only difference is in the mode of proof of the intent element. Contrary to the Owners’ argument, the “intent to dedicate” element in an express dedication may be established by words or overt conduct of an owner other than a grant deed to a public agency or similar formal writing.  Also contrary to the Owners’ argument, an express dedication does not need to be accepted in a formal way or by a public entity. Here, the Court of Appeal held that “there can be little doubt that the facts [Plaintiff] alleged are sufficient to establish the elements of common law dedication, if they can be proven at trial. The complaint alleged a number of acts on the part of the owners that could manifest an intent to dedicate to the public, coupled with public use over many decades that could establish acceptance.” 

Furthermore, it was error for the trial court to conclude, as a matter of law, that the fact that the Deeneys “at some point charged a fee” to the public negated any intent to dedicate.  Evidence of such permissive use may tend to show the owner intended to control or qualify other parties’ access to the property and thereby rebut a finding of dedicative intent.  But that was a triable issue of fact.  Also, the Court held that the trial court erred when it inferred that the Deeneys’ commercial purpose for inviting the public to use the road and beach negated the intent to dedicate the road or beach, as a matter of law.  In fact, such commercial purpose may support a finding of intent to dedicate.

Accordingly, the Court held that Plaintiff alleged facts sufficient to state a common law dedication claim, and the Owners failed to show, as a matter of law, that they are entitled to judgment on this cause of action. The Court remanded the case to the trial court to adjudicate Plaintiff’s common law public dedication claim.  After the Court of Appeal opinion was issued, counsel for Plaintiff stated the ruling “gave us a road map to how to win at trial.”  However, that remains to be seen in this very public lawsuit.

Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

Homeowners' Association Receives $6,620 Judgment For Fines, Dues and Fees Against Property Owner; Then Association Obtains $101,803 Award Of Attorneys' Fees And Costs Against Owner As The "Prevailing Party."

By Glen C. Hansen

Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761

In an action by a homeowners’ association to enforce $54,000 in dues, fees, fines and interest imposed on property owners under the applicable CC&Rs, the Court of Appeal for the Sixth Appellate District held in Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th 761, 2016 Cal.App LEXIS 301 that (1) the trial court properly issued a judgment that concluded that only $6,620 of the fines were valid against the owners; (2) the trial court did not abuse its discretion in determining that the association achieved its main enforcement objectives and was therefore the prevailing party under the Davis-Stirling Common Interest Development Act (“ Act,” Civ. Code §§4000 et. seq.); and (3) the trial court’s award in favor of the association of its full attorneys’ fees and costs in the amount of $101,803.15 was not unreasonable.

In Almanor, the plaintiff was a homeowners association (“Association”) under the Act for the Almanor Lakeside Villa development (“Development”) on Lake Almanor in Plumas County.  Defendants and cross-complainants James and Kimberly Carson owned a lodge and two chalets (the “Properties”) within the Development.  The Properties are among only a few lots in Development that accommodate commercial use, partially due to the preexisting use of the lodge. The Properties were subject to the CC&Rs of the Development.  Among other things, section 4.09 of the CC&Rs prohibited owners from using their lots “for transient or hotel purposes” or renting for “any period less than 30 days.” From 2010 through 2012 the Association’s Board developed rules to enforce the CC&Rs, including enforcement of the section 4.09 restriction on short-term rentals if a copy of any rental agreement is provided to the Association seven days before the rental period.  Other rules were adopted that affected the Properties, such as parking, trash storage, use of common areas, and issuing decals for any boats using the Association’s boat slips. The Carsons did not believe that such rules applied to their Properties because of section 4.01 of the CC&Rs and the long-established commercial status of the Properties.  The Association sought to impose fines and related fees of $19,979.97 on the Carsons for alleged rule violations related to the Carsons’ leasing of their properties in the development as short-term vacation rentals. The Carsons viewed the rules as unlawful and unfair use restrictions on their commercially zoned properties. Also, the Carsons argued that the Association improperly applied $1,160 of the Carson’s payment for dues toward the fines imposed by the Association.

The Association sued to enforce its rules and recover the fines it imposed, estimating that the total owed by the Carsons was $54,000.  The Carsons cross-complained for breach of contract, private nuisance, and intentional interference with prospective economic advantage. The trial court found that the 30-day minimum rental restriction imposed by section 4.09 of the CC&Rs presented an “obvious conflict” with section 4.01, which “expressly allow[ed] the Carsons to use their lots for commercial purposes (presumably including lodging, since the properties are, in fact, lodges).” The trial court concluded only $6,620 in fines pertaining to the nonuse of the Association’s boat decals were reasonable.  The trial court also concluded that, even assuming the Association had breached the CC&Rs, the Carsons had not proven any damages and so they received nothing on their cross-complaint.  On the parties’ competing motions for attorneys’ fees, the trial court determined the Association to be the prevailing party and awarded the Association its full $101,803.15 in attorneys’ fees and costs.  The Carsons appealed. The Court of Appeal affirmed the judgment.

On appeal, the Court addressed three issues.  First, the Carsons challenged the trial court’s determination that they failed to prove damages for their breach of contract cause of action in their cross-complaint. The Court held that, while the trial court’s statement of decision did not specifically reference the Carson’s $1,160 damages claim asserted on appeal, the trial court’s finding that the Carsons failed to establish damages by competent evidence was sound.

Second, the Court addressed the Carsons’ argument that the trial court abused its discretion when it found that the Association was the prevailing party despite having disallowed a majority of the fines the Association sought to have imposed.  The Court explained that Civil Code section 5975 of the Act provides that, in an action to enforce CC&Rs “the prevailing party shall be awarded reasonable attorney's fees and costs.” Thus, “‘“the trial court is therefore obligated to award attorney fees whenever the statutory conditions have been satisfied.”’” The test for prevailing party “is a pragmatic one, namely whether a party prevailed on a practical level by achieving its main litigation objectives.” That test involves a comparison of “the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” Thus, the court must compare “‘the extent to which each party ha[s] succeeded and failed to succeed in its contentions’” and “the practical effect of the relief attained by each.”

Here, the trial court did not abuse its discretion in determining that the Association was the prevailing party.  Of the 88 fines that the Association sought to enforce at trial, the trial court upheld only eight. The Carsons’ success at trial substantially lowered their liability for damages and supported their position that the CC&Rs and associated rules could not impose an unreasonable burden on the properties.  However, by upholding a subset of the fines, the trial court “ruled more broadly” that the Association could impose reasonable use restrictions on the Carsons’ properties. That ruling “echoed [the Association’s] stated objective at trial that the Association sought to counter the Carsons’ position that ‘because their lot is zoned “Commercial,” they are not bound by the rules.  “The fractional damages award does not negate the broader, practical effect of the court’s ruling, which on the one hand narrowed the universe of restrictions that [the Association] could impose on the properties, but on the other hand cemented [the Association’s] authority to promulgate and enforce rules pursuant to the CC&Rs so long as they are not unreasonable.” The court also ruled entirely in favor of the Association on the Carsons’ cross-complaint by finding that the Carsons’ alleged damages were unsupported by competent evidence and too speculative. Thus, the trial court did not abuse its discretion in determining the Association to be the prevailing party.

The Carsons made the public policy argument that, by granting attorneys’ fees to the Association, “the Court is stating that the Carsons should have paid the $54,000.00 that Respondent claimed was owed … , even though only $6,620.00 was actually owed, because they would be penalized for defending themselves and, in the end, owe an additional $101,803.15 in attorney's fees for defending themselves.” The Court rejected that argument because the Act mandates the award of attorneys’ fees to the prevailing party, and so the trial court had no discretion to deny attorney's fees once it determined who was the prevailing party.

Third, the Court addressed the Carsons’ argument that the amount of the attorneys’ fees that the trial court awarded was unreasonable (“grossly disproportionate”) in light of the Association’s limited success at trial.   That is an issue committed to the discretion of the trial court. The Carsons argued that Code of Civil Procedure section 1033, subdivision (a), provides that the court has the discretion to disallow attorney's fees if a party obtains less than the statutory minimum to be classified as an unlimited civil matter.  But the Court rejected that argument because the discretionary provisions of section 1033, subdivision (a), are irreconcilable with the mandatory fees award under section 5975 of the Act.  The Court recognized that “degree of success” may be considered in determining reasonable attorney's fees under Civil Code section 5975 of the Act, and to the extent a trial court is concerned that a particular award is excessive, “‘it has broad discretion to adjust the fee downward.’” In this case, however, the record did not show that trial court committed a manifest abuse of discretion by awarding the full attorney’s fees sought.  Also, the Carsons did not request a statement of decision with regard to the fee award, and so all intendments and presumptions are indulged to support the judgment. Furthermore, the trial court’s decision is supported by the fact that the minor subset of the fines that formed the basis for the Association’s monetary award requested was sufficient to satisfy the statutory criteria of an action to enforce the governing documents. “In practical effect, [the Association’s] limited success established a baseline from which it can continue to adopt and enforce reasonable use restrictions under the CC&Rs.” Thus, the Court did not find that the award of attorney's fees, compared to the overall relief obtained by the Association was so disproportionate as to constitute an abuse of discretion.

Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.