2016 CEQA 1st QUARTER REVIEW

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

Welcome to Abbott & Kindermann’s 2016 1st 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.              Exempt From CEQA Review 

Union of Medical Marijuana Patients, Inc. v. City of Upland (March 25, 2016) 2016 Cal. App. LEXIS 223

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.  

B.              Negative Declarations 

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

It is no surprise that people 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 Report

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 (Unpublished to Published January 4, 2016.)

               EIR found to be invalid for 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.

If you have any questions about these court decisions, contact William Abbott or Diane Kindermann. 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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State Of California To Redirect Infrastructure Dollars To Areas Free From Climate Change Risk.

By William W. Abbott

Citing the need for planning for the long term, Assemblyman Elwood Mead unveiled his new legislation promoting the planning and development of new urban centers in California, planned and financially underwritten by the State. With a tag line of “Five High and Dry”, this legislation calls for five new urban centers, located above projected climate change impact zones (“high”), developed to the highest standards of water use and reuse efficiency (“dry”). A new state commission would approve and fund these new communities unrestricted by local general plans and zoning regulations. The legislation calls for redirecting state capital investment away from areas which cannot be reasonably saved towards new communities which are truly sustainable measured against all metrics. The Assemblyman’s press release stated: “We are all talking about climate change and water conservation, but no one is really doing anything about it except writing environmental impact reports. This is an opportunity for the State to show some real leadership and innovative thinking by developing safe, sustainable communities.  It is time to walk the walk and talk the talk.” A spokesperson for the Assemblyman went on to say: “This is nothing new.  Around World War I, the State sponsored two agricultural communities (Delhi and Durham) and we can learn from those experiences.  During the first Jerry Brown administration, the legislature passed a new cities bill which the Governor vetoed [https://news.google.com/newspapers?nid=2245&dat=19811001&id=fGczAAAAIBAJ&sjid=SDIHAAAAIBAJ&pg=7171,3533411&hl=en]. Given what lies in store from climate change, I think that the time has come again to revisit the concept and to prioritize the State’s investment capital. Undoubtedly local governments will be opposed, but let’s face it, it is not as if they have done such a great job.”

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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Community Character Is Not Within The Scope Of Required CEQA Analysis

Preserve Poway v. City of Poway (March 9, 2016, D066635) ___ Cal.App.4th ___.

By William W. Abbott

It is no surprise that people 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 followed the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369 and rejected the argument, 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. 

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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REGISTER TODAY! WETLANDS: NEW ISSUES - NEW CONTROVERSIES -OLD AND NEW SOLUTIONS

Reserve your seat for this seminar taking place on March 15, 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve. To view the class outline click here.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

(To Register Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

 

 

REGISTER TODAY! WETLANDS: NEW ISSUES - NEW CONTROVERSIES -OLD AND NEW SOLUTIONS

Reserve your seat for this seminar taking place on March 15, 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve. To view the class outline click here.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

(To Register Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

 

Seminar on Boundary Disputes, Adverse Possession, Easements and Conflicting Surveys

Glen Hansen will be speaking at the “Boundaries and Easements” seminar on March 10, 2016, in Sacramento, California, hosted by HalfMoon Education Inc.  For more information, please click here to view the brochure.

REGISTER TODAY! WETLANDS: NEW ISSUES - NEW CONTROVERSIES -OLD AND NEW SOLUTIONS

Reserve your seat for one of two seminars taking place in February and March 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Monday, February 29, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m.
  • Program: 9:00 a.m. - 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

Please call (916) 456-9595 with any questions.

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

REGISTER TODAY! WETLANDS: NEW ISSUES - NEW CONTROVERSIES -OLD AND NEW SOLUTIONS

Reserve your seat for one of two seminars taking place in February and March 2016

This seminar addresses wetlands and associated endangered species challenges, the latest statutory and regulatory guidance, plus valuable strategies for addressing each. Compliance guidance for wetlands programs will be provided while underscoring the issues and solutions specific to the agricultural and development community.

You will hear the latest trends, case studies and policies related to wetlands and associated ESA regulations to enable you to proactively address and plan in lieu of reacting to regulatory changes and trends as they evolve.

Speakers

Diane G. Kindermann is a founding partner of Abbott & Kindermann, LLP a land use, environmental and real estate firm representing clients throughout California. Since 1989, she has been practicing in the areas of environmental, land use, and real estate law representing numerous private and public agency clients, development, agricultural, industrial, mining and other landowner interests in matters concerning environmental, land use, planning and zoning laws, CEQA, Federal and State Endangered Species Acts, wetlands, water rights and water quality, mineral rights, timber and forestry resources, NEPA and hazardous waste matters, including CERCLA. She provides legal guidance on permit acquisition and compliance at the regulatory agency level and litigation services at the Federal, State and local levels.

Diane S. Moore, M.S. is the Principal Biologist of Moore Biological Consultants, a biology-based firm specializing in compliance with Clean Water Act (CWA) and State and Federal Endangered Species Acts.  She has over 25 years experience in the management of biological resources including due-diligence, baseline inventory, impact assessment, permitting, and preparation of various environmental documents and has secured wetland permits and associated approvals from the U.S. Army Corps of Engineers and other agencies for a variety of public works, development, recreation, agriculture, mining, and restoration projects, primarily in the Central Valley.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Monday, February 29, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m.
  • Program: 9:00 a.m. - 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Tuesday, March 15, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available. (Approval pending.) 

Please call (916) 456-9595 with any questions.

 

2015 CEQA ANNUAL REVIEW

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

Welcome to Abbott & Kindermann’s 2015 Annual 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.         2014 CEQA UPDATE 

To read the 2014 cumulative CEQA review, click here: 

2.         CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 6 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Friends of the Santa Clara River v. County of Los Angeles, S226749. (B256125; nonpublished opinion; Los Angeles County Superior Court; BS136549, BS138001.)

Petition for review granted. Further action stayed pending disposition of Center for Biological Diversity v. California Department of Fish and Wildlife.  

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.         GENERAL CONSIDERATIONS

California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369.

Is it the impact of the environmental on the project or the impact of the project on the environment? According to the California Supreme Court, the proper analysis is the impact of the project on the environment, not the other way around. The Court’s conclusion arose from a legal challenge to the adoption of CEQA thresholds of significance for toxic air contaminants. The California Building Industry Association filed for a writ of mandate, arguing that the proposed regulations were not authorized by CEQA. The trial court granted the writ, but the court of appeal reversed. The Supreme Court granted review and ultimately concluded that CEQA directs lead agencies to analyze the impact of the project on the environment, not the other way around. The Court noted that in certain circumstances, a proposed project might exacerbate or increase the effects associated with an existing physical condition. In those circumstances, the lead agency would have to acknowledge, analyze and potential mitigate for the increased effects. 

The Court also acknowledged specific circumstances in which CEQA required an evaluation of existing hazardous conditions: airports (PRC 21096), school construction (PRC 21151.8) and some housing projects (PRC 21159.21 (f) and (h), 21159.22 (a) and (b)(3), 21159.23(a)(2)(A), 21159.24 (a)(1), (3),  211551.(a)(4), (6), 21096,  and 21151.8.

4.         EXEMPTIONS

Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.

In a lengthy decision, the California Supreme Court addressed the standard of review on exemptions and whether or not unusual circumstances apply which would defeat the use of an exemption. The case involves the use of an exemption by the City of Berkeley to approve discretionary permits for the construction of a single family home on a steep hillside. The City treated the proposal as exempt, and the neighbors claimed that unusual circumstances applied which defeated the use of the exemption. Distilled down, the high court held: (1) evidence of a potentially significant impact does not by itself defeat the use an exemption; (2) that the deferential substantial evidence applies to the use of an exemption; and (3) the Fair Argument test applies to whether or not unusual circumstances exist which defeat the use of an exemption. The lead agency may appropriately look at the neighborhood to determine unusual circumstances. The court upheld the lead agency’s rejection of opponent’s testimony on the basis that it involved speculation as to how the home would be constructed. As the court of appeal had only addressed one challenge to the use of the exemption, the case was remanded below for application of the correct standard of review to the evidence, and for consideration of all of the objections to the use of the exemption. All told, the decision provides greater comfort to the use of exemptions.

Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943. (“BH2”)

Following remand for the purpose of examining the remaining claims challenging the use of a CEQA exemption, the court of appeal upheld the City of Berkeley’s use of a CEQA exemption for single family home. Substantial evidence supported the use of the exemption, and ample evidence supported the City’s conclusion that no unusual circumstances existed which would defeat the use of the exemption.

Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694.

The Plaintiff sued the City of Santa Cruz over the adoption of a new Heritage Tree Preservation program designed to strengthen protections for “heritage trees” within the city, but removed protections for “heritage shrubs” and required a new process for city trees to be designated as a “heritage tree.” The city adopted a notice of exemption, citing the categorical exemptions in CEQA Guidelines sections 15307 and 15308, to find that the actions taken would assure the maintenance, restoration, or enhancement of a natural resource or the environment. The court dismissed both parties’ proposed methods for evaluating use of the exemptions, holding that the proper test is whether the city provided substantial evidence to demonstrate that the project is an action to assure maintenance, restoration, or enhancement of the environment. 

The court reasoned that the city’s claim that the project would not actually lead to additional tree removals, was irrelevant as to whether it was an action to assure the maintenance, preservation or enhancement of the environment. Second, because the project’s rules made it easier to cut down trees, the city’s assertion that the costs and administrative burdens would not result in more heritage tree removals was speculative, not substantial evidence. The court ultimately concluded that while some of the changes enhanced the protection of heritage trees within the city, other changes effectively reduced the number of trees that were benefitted by this enhanced protection.

Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn., (2015) 242 Cal.App.4th 555.

Use of a categorical exemption for approval of ongoing fair-related activities was affirmed as opponents failed to show unusual circumstances which would invalidate use of the exemption. The facts involved a county fair facility, which is operated by the 14th District Agricultural Association. The Fairground was created in 1941, and had been operated for agricultural-related activities ever since. Facilities included barns, livestock arena, horse stalls and ancillary facilities. A creek ran through a portion of the fairgrounds. 

In 2009, the Deputy Sheriff’s association proposed a multi-day rodeo. The District Fair Association approved the special event relying upon a CEQA categorical exemption, but the rodeo did not go forward. Around the same time, the Regional Water Quality Control Board expressed concern over water quality in the watershed as a result of increasing human and animal fecal coliform counts. The Regional Board adopted maximum daily load standards for fecal coliform in 2010, and the Agricultural Association began monitoring water quality entering and existing the Fairgrounds property. Sampling at the Fairground indicated that the coliform counts for water entering the fairgrounds property exceeded the coliform counts of water leaving the fairgrounds site. 

Starting in 1960, the Fairground had taken steps to manage manure produced at events.  Initially, the manure was stored onsite. Beginning the 1990s, the manure was removed daily as part of the special events. These practices were formalized in writing in 2010, resulting in a Manure Management Plan. In 2011, the Sheriff’s association proposed a new, smaller two day rodeo event. The District Fair Association approved the rodeo event based upon a Class 23 categorical exemption (“normal operations of existing facilities….). The Fair Association issued a Notice of Exemption (“NOE”) which documented the history of the fair activities and also discussed the inapplicability of any of the regulatory exceptions to the use of the exemption. Opponents filed suit challenging the use of a CEQA exemption. The trial court denied the petition for writ of mandate and the opponents appealed presenting three issues: (1) the manure management plan was a mitigation measure and, CEQA does not permit a lead agency to mitigate into an exemption, and (2) unusual circumstances defeated the use of an exemption.  The appellate court denied relief as well. 

First, as to the argument that the Manure Management Plan (“MMP”) was an added mitigation measure and that a lead agency should not consider mitigation measures when applying exemptions (Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098 [“SPAWN”]), the appellate court said that evidence reflected that the MMP was a pre-existing measure implemented to address a pre-existing problem. Unlike SPAWN, no mitigation measure was added to the proposed rodeo event, and none was listed on the NOE and, therefore, use of the exemption was proper. 

Turning next to the argument of unusual circumstances, the appellate court first discussed the nature of the Class 23 exemption (normal operations of Public Gathering Facilities) for purposes of framing the discussion of the unusual circumstances argument. The “normal operations” of the fairgrounds included the special events and the internal operations associated with putting on those events. There was no change in the level of use, nor was it necessary to make modifications to accommodate this particular rodeo event. The appellate court then applied the Supreme Court’s methodology from Berkeley Hillside ((2015) 60 Cal.4th 1086), applying the substantial evidence test to the factual question of whether or not the project presents unusual circumstances. The opponents urged the court to compare the rodeo to other public events like stadiums, convention centers, swimming pools and the like. The court rejected the invitation to compare the rodeo event to a broader list of public facilities given their significant differences. The court noted that even if the comparison was made, there was no evidence in the administrative record of the differences in activities and related impacts.   

Finally, the appellate court analyzed the alternative argument in Berkeley Hillside used to defeat an exemption. If a project will (as compared to may) have an impact on the environment, then that would be an unusual circumstance defeating the exemption. Looking again at the administrative record, the appellate court found that the evidence did not support a conclusion that the proposed activity would impact the environment.

Defend Our Waterfront v. California State Lands Commission (2015) 240 Cal.App.4th 570.

The appellate court upheld the lower court’s ruling that found the State Lands Commission (“SLC”) violated CEQA when it approved a land exchange with the City of San Francisco involving a waterfront parcel of land near the S.F. Ferry Building as exempt under CEQA Guidelines section 15282(f) (State Land Commission exchanges and leases related to settlement of title and boundary problems). The appellate court first dismissed the SLC’s claims that petitioner failed to exhaust its administrative remedies, despite petitioner’s attendance at the hearing and access to a staff report that indicated the SLC intended to find the land exchange exempt from CEQA. It reasoned that because the SLC failed to meet the minimum requirements for adequate notice under Government Code section 11125(a), the SLC’s exhaustion defense was precluded under Public Resources Code section 21177(e). The appellate court then moved to the validity of the SLC’s use of the CEQA exemption and held that the land exchange with the City did not meet the limited circumstances covered by the exemption.  It reasoned that the exemption includes only circumstances where the SLC exchanges property as part of a settlement in order to resolve an actual dispute over title or boundaries, not merely to remove an impediment to development of a site that “is undoubtedly a ‘problem’ for the City….”

Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128.

CEQA is an evidence based statute, including the use of exemptions. The Barstow Unified School District Board of Education (Board) faced declining enrollments, leading the District board to consider closing existing schools and transferring the students to existing facilities. Section 21080.18 of the Public Resources Code (and the companion Guideline provision section 15314) allows for the use of an exemption in specified circumstances. An exemption is appropriate as long as the effect on the receiving school sites is the lesser of (a) increase in student population over 25% over existing capacity or (b) ten classrooms. When the District decided to close two schools, the District allowed the affected parents the choice as to which school site the relocated students would attend. The District did not set a cap on the number of the transferring students. Following the decision to close the school, parents sued. 

The trial court denied relief, but the appellate court reversed. On appeal, the court found that there was an evidentiary gap in the record. The District failed to determine the existing physical capacity of the schools (this being a crucial fact in the exemption determination from the appellate court's perspective) and as a result, the District did not appropriately utilize the exemption. The impact of this lack of information was compounded by the District's action to allow the parents to pick any school to send their children to. Notwithstanding the error, the District went on to argue that the matter was moot as the schools were closed. Not necessarily so from the court's perspective. A writ would issue directing the District to set aside its decision and reconsider the exemption. If the District was unable to determine if an exemption applied, then the trial court could order the schools re-opened or mitigation applied to the impacted schools.

CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488.

Following an emergency, a lead agency can reset the existing conditions “baseline” to the post-emergency repair condition in circumstances in which the lead agency had long considered undertaking the full project (pre-emergency and post-emergency work). In this case, once the emergency took place, the follow-up repair work was exempt and was not required to be factored in the scope of the “project.” Substantial evidence supported the lead agency’s use of the common sense exemption for the post-emergency repair work, and there was no substantial evidence in the record to support the application of the unusual circumstances limitation on the use of the exemption.

5.         NEGATIVE DECLARATIONS

Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714.

The Fair Argument standard remains as the operative benchmark in assessing the validity of a negative declaration. The most recent decision involves approval by Santa Clara County of a wedding site venue located off of Summit Road, a state maintained facility in rural Santa Clara County. Existing uses on the property included a winery, llama and alpaca grazing lands, barns and a residence. Adjacent properties include parkland owned by an open space district (with restricted access) and homes. In a not uncommon fact pattern, the property owner began hosting wedding events, some of which had up to 300 guests. Following complaints and direction from the County, the applicant filed for a use permit seeking 28 special events for up to 100 guests and 12 staff, during the hours of 2:00 p.m. to 10:00 p.m. The County studied the project for three years before issuing a mitigated negative declaration (MND). After taking testimony, the Planning Commission approved a revised MND in December 2011. The neighbors appealed to the Board of Supervisors who denied the appeal, affirming the MND and conditional use permit. Conditions of approval included the following limitations: only one outdoor live event (to be monitored) and the orientation of speakers away from existing homes towards the open space preserve with specific placement approved by the planning department based upon a review by a noise consultant. CEQA litigation followed. The trial court found that an EIR was required due to potential noise and traffic impacts, declining to rule on the alleged violations of planning and zoning law deeming them moot. The court also awarded the petitioner attorneys’ fees of $145,747, but declined to enhance the award as requested by the petitioner. Petitioner and real party in interest both appealed. The County did not. 

The appellate decision as always turned on the evidence in the administrative record, and whether or not there was substantial evidence in the record to support the fair argument standard. Turning first to noise, the County relied upon its General Plan and noise ordinance as defining the relevant threshold of significance, but the appellate court agreed that CEQA analysis is not confined to the question of conformity to adopted general plan and noise ordinances, but that a broader inquiry was appropriate. The evidence in the record on noise was extensive. It included the applicant’s study, a peer review conducted by the County, the petitioner’s consultant’s critique of the peer review of the noise study, as well as neighbor testimony regarding noise levels associated with actual events and those undertaken by the County’s consultant conducting a mock event. The evidence from neighbors was that sound experienced by a wedding event, with the speaker placement as contemplated by the conditions of approval (DJ speaker orientation away from the homes) could still be heard by the neighbors. As to a live band, the County’s consultant concluded that a live band could be 10 db louder than DJ-generated music, leaving no room to argue a lack of substantial evidence given the court’s conclusions regarding DJ generated sound levels. Regarding crowd generated noise, neighbor testimony again carried the day in terms of substantial evidence of a fair argument (the court again concluding that reliance on the general plan and noise standard was not dispositive). There was also evidence of noise impacts to wildlife in the adjacent open space preserve. As to the impacts to potential future users of the park, there was insufficient evidence of potential impacts as future use was hypothetical and CEQA is concerned with existing physical conditions. 

Turning next to traffic impacts, the court also found substantial evidence of potential impacts given the narrow road width and blind curves, as documented by the neighbors and the opponent’s consultant. The traffic studies indicated a substantial increase in traffic levels, increasing the risk. Evidence from Caltrans indicated that the accident history in the vicinity of the project was twice the statewide average. This evidence was sufficient to meet the Fair Argument standard.

6.         ENVIRONMENTAL IMPACT REPORTS

North Coast Rivers Alliance v. Kawamura (December 2, 2015) ___ Cal.App.4th ___.

            EIR found to be invalid for 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 7 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 (5 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 7 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 to not consideration 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 it the record supported the inference that impacts associated with control might be greater that eradication because of the potentially indefinite duration. 

Petitioners also argued another of 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 7 year effects and treatment) in the evaluation of cumulative impacts.

City of Hayward v. Trustees of California State University (2015) 242 Cal. App. 4th 833.

The California State University Board of Trustees (“Trustees”) certified an EIR for its adoption of a Campus Master Plan for future expansion at California State University East Bay in the City of Hayward. The City of Hayward filed suit, arguing the Trustees: (1) failed to mitigate the projects impacts from increased demands on the city’s fire and medical emergency services; (2) adopted deferred mitigation for traffic and parking impacts under its Transportation Demand Management Plan; and (3) failed to properly analyze the project’s impacts on parkland from the additional students. The court found that the Trustees’ EIR was adequate as to emergency services, as well as traffic and parking mitigation, but that the Trustees must re-analyze the impacts to parkland. The court reasoned that no mitigation was necessary for increased demand for fire/emergency services, because those impacts were social and economic effects that did not require mitigation under CEQA. It also reasoned that the Transportation Demand Management Plan was sufficient mitigation, due to the inclusion of performance goals, policies, timelines, monitoring and an enforceable commitment to mitigate. As for parkland impacts, the court was not satisfied with the Trustees’ reliance on a finding that students’ use of the City’s neighboring parks was minimal. It reasoned that the Trustees failed to include any evidence to support that finding and, thus, must go back and meaningfully analyze the potential impacts from increased students at the campus.

Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627.

The Los Angeles County Metropolitan Transportation Authority (Metro) approved a subway system expansion that includes a new station in Century City, along with a tunnel under a high school.  The Beverly Hills Unified School District filed a writ petition alleging that Metro failed to comply with the California Environmental Quality Act (CEQA).  The City of Beverly Hills also filed a writ petition, alleging that Metro failed to comply with CEQA and failed to provide a full and fair hearing under Public Utilities Code section 30639.  The Court of Appeal for the Second Appellate District affirmed the trial court’s denial of both petitions on the grounds that, among other things: (1) substantial evidence supported Metro’s decision not to prepare and recirculate a new draft environmental impact statement/environmental impact report (EIS/EIR) for public comment due to an additional fault study regarding the station and tunnel safety study; (2) the EIS/EIR adequately discussed localized air pollution and public health impacts from construction of the project; and (3) Metro did not violate the statutory requirements in conducting a transit hearing under section 30639 and that the City received a full and fair hearing.

San Francisco Baykeeper, Inc. v. State Lands Commission (2015) 242 Cal.App.4th 202. 

The Court of Appeal for the First Appellate District held that the State Lands Commission (“SLC”) complied with CEQA in authorizing new 10-year mineral extraction leases for dredge mining of sand on sovereign land under the San Francisco Bay. Specifically, SLC applied a proper baseline based upon a five year average of prior operations. Also, CEQA was complied with because erosion and cumulative impacts were sufficiently discussed; recirculation based on new studies that altered no substantive conclusions on those issues was unnecessary; measuring impacts on mineral resources in terms of access was permissible; and although SLC violated CEQA requirements designed to ensure that it consult with affected agencies including the California Coastal Commission and the City of San Francisco, there was no evidence of prejudice from those notice and consultation violations. However, the Court of Appeal also held that SLC erred in approving the leases without considering whether the leases were a proper use of public trust property. 

Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal.4th 204.

The California Supreme Court upheld the use of the Scoping Plan as an appropriate threshold of significance for evaluating greenhouse impacts. The issue arose in the context of a project approval for Newhall Ranch, a new community to be located north of Los Angeles. The EIR concluded that the project’s impact would be less than significant given that the anticipated GHG levels would be below the Scoping Plan targets due to project design elements. The court also rejected the argument that reliance upon the Scoping Plan improperly utilized a future baseline. The court concluded that due to the unique characteristics of GHG generation that reliance on the Plan’s future year targets was appropriate. However, the court held the EIR analysis to be invalid because there was no explanation of how the Scoping Plan targets could be correlated to individual projects.  

Without endorsing any particular approach for any given situation, the court identified three pathways for a sufficient analysis.

a.                Utilizing the data behind the Scoping Plan to show how there is correlation to a specific project (note: most practitioners express serious doubts about whether this can be done.)

b.               Tiering or streamlining through a Climate Action Plan or SCS.

c.                Using an appropriate numerical threshold.  (Note, while the lead agency can use a threshold of significance, these thresholds represent the “norm” and the lead agency must still independently determine the significance.)

Crenshaw Subway Coalition v. Los Angeles County Metropolitan Transportation Authority 2015 U.S. Dist. LEXIS 143642.

The U.S. District Court considered several CEQA challenges to the adequacy of a joint EIR/EIS prepared for approval Crenshaw/LAX Transit Corridor Project (the "Project"), an 8.5-mile light-rail line that connects the Metro Green Line to the Exposition Line in Los Angeles County.  The respondent agencies, the Federal Transit Administration and the L.A. County Metropolitan Transportation Authority (“FTA/MTA”), after evaluating several design options, initially dismissed a below-grade design option at the contested location as infeasible for cost and engineering reasons. The agencies subsequently completed the CEQA/NEPA process, receiving hundreds of comments, and ultimately approving the at-grade design option for a seven block section of Crenshaw Boulevard. The petitioners filed suit, claiming several violations of CEQA, in addition to NEPA and unlawful discrimination claims, including failure to: (1) evaluate the below-grade alternative in the EIR/S; (2) adopt infeasibility findings for the below-grade alternative; (3) adequately support findings on impacts to land use, community, parking, public safety and environmental justice with substantial evidence; and (4) adopt adequate mitigation measures. 

The District Court dismissed each claim, finding that FTA/MTA properly adopted the EIR/S and granted the agencies’ Motion for Summary Judgment on all CEQA claims. The court reasoned that FTA/MTA was not required to evaluate the below-grade alternative in the EIR/S, because it had already properly rejected the option as infeasible early in the process. In addition, because of the alternative was properly rejected, nothing in CEQA required FTA/MTA to adopt specific infeasibility findings. The court then relied on numerous factual citations in the record to reject the claim that the agencies’ factual findings were unsupported, and dismissed the petitioner’s claims on the adequacy of mitigation measures, finding that they were barred for failure to raise such concerns during the administrative process.

North County Advocates v.City of Carlsbad(2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since. 

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal. 

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment. 

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline: 

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.” 

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.” 

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

City of San Diego v. Board of Trustees of the California State University (2015) 61 Cal.4th 945.

A state university’s obligation to mitigate for offsite impacts is not limited to mitigation authorized by specific legislative appropriation. In its most recent CEQA decision, the Supreme Court clarified its prior language in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 was dictum, that is a statement of principle not necessary to the resolution of the earlier decision. The Marina language in dispute read as follows: “[A] state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” In a challenge to expansion plans for CSU San Diego, the California Supreme Court concluded that there was nothing in the Marina opinion to support the interpretation that legislative funding was a condition precedent to offsite mitigation. No other state agencies apparently took a similar position, and there was nothing in the Education Code which would support a special rule for the state university system. The Supreme Court noted the consequences of the University’s position: if the University was excluded from mitigation, impacted communities would not be able to shift the funding shortfall to other parties due to requirements of nexus the Mitigation Fee Act. After concluding that the University must re-analyze strategies for mitigating impacts, including how it discharged its core educational function, the Court concluded by underscoring the University’s duty to include all feasible mitigation.

City of Irvine v. County of Orange (2015) 238 Cal.App.4th 526.

The county chose to prepare a supplemental EIR (“SEIR”) over a subsequent EIR for a proposed jail expansion project, because it had previously prepared an EIR for a similar jail expansion project in 1996 that was never completed due to funding issues. The city challenged the SEIR arguing the county: (1) inappropriately used a supplemental EIR for the project; (2) prepared inadequate responses to comments; (3) failed to adequately analyze impacts on local traffic; and (4) failed to demonstrate why loss of agricultural land could not be mitigated. The trial court ruled against the city on all claims and the city appealed. The appellate court upheld the trial court ruling finding that: (1) the county had the discretion to prepare either a supplemental or subsequent EIR under CEQA Guidelines section 15163, and that the test was whether the substantive environmental analysis was adequate, not its title; (2) the responses were adequate, because most comments were merely “interrogatory” in nature and failed to raise “significant environmental issues,” while other comments were vague or essentially asked for more data making the responses reasonable in light of the comment; (3) the traffic analysis was consistent with the standard outlined in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, (2013) 57 Cal. 4th 439, requiring analysis of current conditions as well as future conditions, because it used both an existing baseline only two years later than the 2012 SEIR adoption and a 2030 project completion analysis; and (4) the high-cost of land in the county undermined the viability of a conservation easement program, a Transfer of Development Rights program was untenable since fallow landholdings in the County are shrinking, and a Right-to-Farm ordinance was meaningless when landowners in the county don’t even want to farm.

Charles Conway Jr. v. State Water Resources Control Board (2015) 235 Cal.App.4th 671.

Functionally equivalent CEQA documents can be tiered similar to the environmental impact report. In this case, the appellate court upheld the Regional Board’s preparation of a functional equivalent document for the TMDL on lake sediment in McGrath Lake. The appellate court held that only a first-tier analysis was necessary for the TMDL because a TMDL merely identifies goals for levels of one or more pollutants in a water body and does not, by itself, preclude or require any actions. In rejecting the appellants arguments that the functional equivalent documents failed to analyze the environmental and economic impacts associated with dredging, the court noted that the Basin Plan Amendment (BPA) specifically calls for the cooperation of various landowners and the Regional Board in negotiating and executing a memorandum of agreement on how the TMDL for lake sediment should be implemented.  Specifically, the court held that, “Until such a plan is formulated, a full environmental analysis of any particular method of remediation is premature.”

Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549 (Saltonstall II).

In a challenge to the EIR for a downtown entertainment and sports arena, the court of appeal affirmed the adequacy of the EIR. In terms of CEQA timing, the city had the discretion to enter into a non-binding term sheet with the developer and engage in eminent domain proceedings. The EIR included a reasonable range of alternatives and the lead agency was not required to evaluate a remodeling of the existing facility as sufficient evidence supported conclusions of infeasibility and lack of meeting city objectives. Applying the substantial evidence standard of review, the trial court and court of appeal deferred to the lead agency on traffic impacts of state highways. The court went on to hold that crowd violence was not a CEQA issue. Finally, appellants failed to perfect claims on appeal under the Public Records Act as to emails which should have been included in the administrative record.

Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234 Cal.App.4th 214. 

The California Department of Fish and Wildlife's program environmental impact report that analyzed its statutorily mandated fish hatchery and stocking enterprise's impacts on a statewide basis complied with the California Environmental Quality Act where: (1) it contained a sufficient level of analysis; (2) it did not impermissibly defer formulation of mitigation measures; (3) it considered a reasonable range of alternative projects; and (4) the Department properly used the existing hatchery and stocking practice as its environmental baseline. The mitigation measures adopted by the Department on private fish vendors were underground regulations that violated the Administrative Procedure Act (APA), Gov. Code, § 11340 et seq., as they imposed qualification requirements and monitoring and reporting obligations on the vendors without complying with the APA's notice and hearing procedures.

7.         LITIGATION

Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513.

The City of Yucaipa approved a 613,000 square foot shopping center on a 60-acre site for a new Target store and other new commercial uses. The petitioner filed suit arguing the city’s EIR violated CEQA and the trial court ruled in favor of the city. Petitioner appealed, but prior to Target filing its response brief, the city and Target moved for dismissal on mootness grounds. Target had been in a separate contract action with the landowner which had led to Target abandoning the project and the city revoking the entitlements for the project. Petitioner moved for attorney’s fees under Code of Civil Procedure section 1021.5, but the trial court rejected them finding that the litigation was not a catalyst for project abandonment. The appellate court upheld the trial court’s determination, reasoning that merely filing an appeal after losing at the trial court provided insufficient reason to overturn the trial court’s determination that the CEQA suit was not a catalyst to the ultimate revocation of the entitlements.

Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179. 

The Court of Appeal for the Fourth Appellate District held that a petitioner failed to show that a trial court abused its discretion when it awarded petitioner $19,176 in attorneys’ fees under Code of Civil Procedure section 1021.5 despite  petitioner’s request for $231,098, for the following reasons:  (1) The extent of a party's success is a key factor in determining the reasonable amount of attorney fees to be awarded, and here the petitioner prevailed on only one of its numerous claims under CEQA and local zoning ordinances;  (2) petitioner excessively billed the case, such as expenditure of 40 hours to prepare a reply brief that  was only 14 pages long and reiterating arguments made in the opening brief and billing partner rates for essentially clerical work; and (3) petitioner provided no reasonable explanation as to why it was entitled to Los Angeles attorney fee rates in a case in San Bernardino County. 

8.         LEGISLATION

AB 117 (Chapter 16) Public Resources Budget Trailer Bill

Provides that an “Environmental Leadership” project certified by the Governor under the Environmental Leadership Act of 2011, which allows the Governor to certify projects that meet specific environmental and economic benefit standards for streamlined CEQA review, loses the certification if the lead agency does not approve the project by January 1, 2017.

AB 323 (Chapter 52) California Environmental Quality Act: exemption: roadway improvement

Extends the sunset date from January 1, 2016 to January 1, 2020, for the CEQA exemption for projects to repair, or make minor alterations to an existing roadway, as defined, if the project is carried out by a city or county with a population less than 100,000 to improve public safety.

SB 88 (Chapter 88) Water

Enacts the following new CEQA exemptions: (1) a statutory exemption for a project carried out by a public agency to construct a recycled water pipeline for groundwater replenishment within an existing right-of-way that does not affect wetlands or sensitive habitat and fully mitigates its construction impacts consistent with applicable law – the exemption remains operative until the emergency drought declaration ends or January 1, 2017, whichever comes first; (2) a state agencies’ adoption of building standards for recycled water systems – the exemption remains operative until July 1, 2017; and (3) adoption of an ordinance by local agencies limiting the drilling of new or deeper groundwater wells, or to limit or prohibit increased water extractions from existing wells through conditions on the issuance of well permits or changes in land use intensity that increases groundwater demand – the exemption remains operative until the emergency drought declaration ends or July 1, 2017, whichever is later.

SB 348 (Chapter 143) California Environmental Quality Act: exemption: railroad crossings

Requires a lead agency that applies the CEQA exemption for a railroad grade separation project that either: (1) eliminates an existing grade crossing; or (2) reconstructs an existing grade separation, to file a Notice of Exemption with the Office of Planning and Research. In addition, local lead agencies must also file the Notice of Exemption with the county clerk of every affected county. The bill also extends the sunset date from January 1, 2016, to January 1, 2019, for the CEQA exemption for the California Public Utilities Commission’s closure of a railroad grade crossing based upon a threat to public safety.

If you have any questions about these court decisions, contact William Abbott or Diane Kindermann. 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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