By Daniel S. Cucchi

City of San Jose v. Superior Court (March 2, 2017, S218066) ___ Cal.5th ___.

Citing the need to broaden the definition of “public records” to address the “evolving methods of electronic communication,” a unanimous California Supreme Court reversed the Sixth District Court of Appeal, holding that communications related to the “conduct of the public’s business” by agency officials and employees on their personal accounts are subject to disclosure under the California Public Records Act (“CPRA”).

In June 2009, the petitioner filed a CPRA request with the City of San Jose (the “City”), which included the City’s redevelopment agency, certain elected officials and staff, for all documents related to redevelopment efforts in the City’s downtown.  The request for documents included “emails and text messages ‘sent or received on private electronic devices used by’ the mayor, two city council members, and their staff.”  The City refused to provide the information on private electronic devices, stating that they were not public records, because the emails and texts were not within the City’s custody or control.  Petitioner filed suit and the trial court ordered disclosure.  The City appealed and the appellate court reversed.  The California Supreme Court granted the petition for review.

Seeking to balance the public’s right to know enshrined within the CPRA and the California Constitution against an individual’s right to privacy, the Court outlined a standard intended to avoid an interpretation that “would allow evasion of the CPRA simply by the use of a personal account,” while limiting disclosure of private communications to only those that involve substantive discussions of public matters.  While recognizing the standard cited in San Gabriel Tribune v. Superior Court (1983) 143 Cal.App.3d 762, 774, which normally excludes only communications “totally void of reference to governmental activities” under the CPRA, the Court distinguished the context of communications sent through personal accounts, reasoning that this broad standard would likely sweep up more than necessary to comply with the CPRA.  Instead, the Court laid out a less exacting standard that these communications “must relate in some substantive way to the conduct of the public’s business” before they become a public record.  Thus, incidental mentions of a public matter would normally be insufficient to trigger disclosure.

The City also claimed that the private communications were not a public record because they were not “prepared, owned, used, or retained” by the City, nor were they accessible to, or retained by, the City.  The Court rejected this interpretation of the statute, reasoning that (1) agencies, much like corporations, can only act through its officials, and (2) the City still had constructive control over the records because its own officials and employees had access to those records.  It further noted that to conclude otherwise would allow an agency to avoid disclosure by transferring custody to a third party, or even its own employees.  The Court concluded by reviewing the various exemptions available to protect the privacy of officials and employees, including preliminary and draft notes and memoranda (Gov. Code §6254(a)), personal financial data (Id. §6254(n)), as well as the “catchall” exemption when the public interest in withholding “clearly outweighs” the public interest in disclosure (Id. §6255(a)).

In the age of technology and instant communications, it can be easy for agency officials to grab their phone to send that text or email, particularly when they do not have a device issued by the agency. Whether or not such communications were ever intended to avoid disclosure, the Court’s decision puts to rest any question that substantive communications about public matters will be considered a public record. Agencies can best avoid these complex and costly issues by establishing clear technology policies strongly discouraging use of private communication systems for public matters and, at a minimum, issuing phones and/or other similar devices to those agency officials that are most likely to generate electronic communications for agency business outside of the office.  And of course, there are always the very old school options of simply picking up the telephone or a face-to-face conversation.          

Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

 

By Daniel S. Cucchi

Hernandez v. Town of Apple Valley (2017) 7 Cal.App.5th 194

In 2011, the Town of Apple Valley (the “Town”) circulated a local initiative called the “Wal-Mart Initiative Measure,” or in some cases the “Wal-Mart Supercenter Ballot Initiative,” which was subsequently declared null and void. Two years later, the Town noticed a city council agenda item for a “Wal-Mart Initiative Measure” with a recommended action to “provide direction to staff.”  Petitioner did not attend the council meeting believing the matter was follow-up activities related to the 2011 measure.  He later learned that the Town council had adopted two resolutions for a new voter initiative for a proposed 30-acre commercial development that included a new Wal-Mart Supercenter, as well as a Memorandum of Understanding (“MOU”) to accept a gift from Wal-Mart to pay for the special election. After filing a request with the Town to cure the alleged agenda defect, which the Town rejected, Petitioner filed suit arguing the Town violated the Ralph M. Brown Act and that the initiative measure itself violated California Constitution, article II, section 12’s prohibition against specifically naming any individual or corporation to “perform any function or to have any power or duty….”  The trial court granted petitioner’s Motion for Summary Judgment on both claims, finding the MOU and the initiative were void and invalid.  The Town and Wal-Mart appealed.

The appellate court first considered the Brown Act claim, finding that while the resolutions calling for the special election were properly noticed, the Town’s adoption of the MOU was not, creating a fatal flaw in the approval of all of the resolutions. The Town argued that the agenda packet included all of the relevant information regarding the proposed initiative, but the court was not persuaded. While choosing not to rule on the question of whether information in an agenda packet can be used to bring an agency into compliance with the Brown Act, it noted that the record showed that the MOU resolution was added to the agenda item after release of the agenda.  This was fatal, the court reasoned, because it was reasonable to conclude the MOU was “a major factor in the decision to send the matter to the electorate.”  Thus, since the MOU resolution was improperly noticed, the resolutions to place the initiative measure on the ballot were null and void as a result.

Anticipating the likelihood that the initiative measure would likely return to the ballot, the court next turned to the question of whether the measure violated the California Constitution. Petitioner argued that although Wal-Mart was not specifically named in the initiative text, the ballot measure materials clearly established that approval would grant powers to the owner and developer, Wal-Mart.  The court disagreed.  It held that the initiative was properly drafted, even though it ultimately benefitted Wal-Mart, because the text of the initiative did not specifically name Wal-Mart.  It reasoned that the use of the words “developer” and “owner” in the initiative meant that if Wal-Mart were to sell the property, it would retain no superior rights in the property over the subsequent owner.  Thus, Wal-Mart’s current beneficial position was granted by ownership of the subject property and not by the initiative itself.          

Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

 

By Diane G. Kindermann and Daniel S. Cucchi

In his Executive Order, President Trump directs the EPA and USACE to clarify the 2015 Waters of the United States (“WOTUS”) Rule and in doing so, to take into consideration Justice Scalia’s 2006 Supreme Court opinion in Rapanos v. United States, 547 U.S. 715 (2006).

In Rapanos, Justice Scalia opined that a wetland may not be considered “adjacent to” remote “waters of the United States” based on a mere hydrologic connection. From Rapanos, 547 U.S. at 741-42:

Riverside Bayview rested upon the inherent ambiguity in defining where water ends and abutting ("adjacent") wetlands begin, permitting the Corps’ reliance on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters. Isolated ponds were not "waters of the United States" in their own right,… and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such….

 

Therefore, only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands, are "adjacent to" such waters and covered by the Act.…

 

Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: first, that the adjacent channel contains a "wate[r] of the United States," (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins.

For more information: https://www.whitehouse.gov/the-press-office/2017/02/28/remarks-president-trump-signing-waters-united-states-wotus-executive

Diane G. Kindermann is a shareholder and Daniel S. Cucchi is an associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

 

Class Description

Stay up-to-date on recent developments in California law affecting land use, planning and environmental compliance. Experts from the field provide succinct and practical analysis on recent case law and significant legislative and administrative changes that took effect this year.

Topics Include:

  • General plans, specific plans and zoning
  • The Subdivision Map Act
  • CEQA
  • Changes to redevelopment in California
  • Affordable housing
  • Regional land use planning and implementation of SB 375
  • Takings, exactions and dedications
  • New air quality guidelines
  • Land use litigation
  • Delta Stewardship Council’s Delta Plan
  • Adapting to sea level rise

Schedule:

March 1, 2017 – Wednesday, 9:00 a.m. to 4:30 p.m.

Sacramento: Sutter Square Galleria, 2901 K Street.

Instructors:

Cecily Talbert Barclay, Matthew Gray, and William Abbott

For more info, or to enroll visit: https://extension.ucdavis.edu/section/annual-land-use-law-review-and-update

 

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, Inc. will present its 16th 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 2016 case law and legislative updates includes the following hot topics for 2017:

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

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

Date: Wednesday, January 11, 2017

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.

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

Date: Friday, January 20, 2017

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

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

Date: Friday, January 27, 2017

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.

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

Date: Tuesday, January 31, 2017

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.

East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th.281.

Note: Requests for depublication have been filed with the California Supreme Court.  The court extended time to review these request until March 17, 2017.

Judicial deference and absence of prejudice were the continuing themes in the recent Third Appellate District decision reviewing a challenge to an EIR and a general plan consistency analysis. The project involved McKinley Village, an infill project consisting of 328 dwelling units, (http://mckinleyvillage.com/) and the project approvals were challenged based upon allegations of deficiencies in the EIR as well as arguments regarding inconsistency with the city’s general plan. The trial court ruled in favor of the city. With one exception discussed below, the appellate court affirmed. 

As to the CEQA claims, a neighborhood group East Sacramento Partnerships for a Livable City (ESPLC) argued that the EIR was deficient as a result of a defective project description, improper piecemealing, failure to analyzed health risks, failure to recognize traffic impacts and failure to disclose or mitigate methane migration. First, ESPLC argued that the project description failed to include the development agreement, a rezoning request for the multifamily units, an increase in the total units from 328 to 336 as well as variances from standard driveway widths for a limited number of dwellings.

As to the development agreement, it was disclosed to the planning commission and city council public hearings and ESPLC commented on the development agreement. This satisfied the public disclosure requirements. ESPLC further argued that the development agreement was used to modify the project at the very end of the process, when the city council, in response to citizen request, considered a second vehicular access tunnel. However, the tunnel was to become a city project and may or may not be constructed in the future. As it was not part of the developer’s project, it did not have to be part of the project description. As to the rezoning, the deletion of some single family and addition of multifamily product (a net increase of 8 units) triggered a rezoning. The impacts of the additional units were evaluated in the FEIR. The appellate court characterized this as a slight change and to be expected in the CEQA process. The opponents failed to show how the analysis was defective or how meaningful decisionmaking or public comment was precluded.

The final EIR included a discussion of a variance for driveway width in one area within the project. However, the opponents failed to demonstrate prejudice from the omission or that the modification had any significant impacts. ESPLC next argued that the city had improperly piecemealed the project. Its first argument involved the potential second tunnel, but having concluded that the tunnel was not part of the developer’s project, that there was no piecemealing issue. In response to public comment, the city included a half street closure, the effect of which was to reduce traffic impacts on one street and divert traffic to a street with greater capacity. The appellate court concluded that the minor change in response to public comment did not result in piecemeling. As part of the deliberations of the half street closure, the council directed the city manager to initiate steps to eliminate a nearby connector from the city’s general plan. While the resolution was not in the administrative record, it appears that the council direction was to consider the general plan amendment at a later date. This later action would be subject to its own CEQA review and was not considered to be piecemealing.

Turning next to health risks, the appellate court followed the Supreme Court’s holding in CBIA v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, noting that the EIR was not required to assess the impacts of the existing conditions (nearby landfill, interstate and railroad tracks). While ESPLC argued that the project would exacerbate existing conditions, those issues were already addressed in the EIR or too vague and speculative to warrant further consideration.

As to traffic, the project was consistent with the region’s sustainable communities strategy and the regional MTP, and as such was not required to address certain transportation impacts. Public Resources code section 1159.28(a). The opponent also challenged the use of intersection analysis to measure traffic impacts and ignoring roadway capacity. However, the court found substantial evidence to support the city’s methodology. EPSLC was unable to show how the city’s methodology failed to adequately assess traffic impacts.

The appellate court did agree with ESPLC on one issue. The EIR discussed that there were different general plan LOS standards for downtown (accepting higher congestion) compared those to residential neighborhoods. The court faulted the city for relying upon its general plan policies and standards, and failing to explain how the same level of traffic congestion is an impact in one neighborhood but not another. This issue resulted in the appellate court compelling the EIR be set aside, although only this one issue was required to be addressed upon remand.

Turning to ESPLC’s land use contentions, the appellate court applied a very deferential standard of review, acknowledging the weighing and balancing steps that a city or county employs in evaluating a project. (Certain of ESPLC’s arguments were based upon general plan policies which had been subsequently modified or repealed. The appellate court considered those claims to be moot.) ESPLC argued inconsistency over public health, transportation and noise policies and standards. The appellate court noted that some of ESPLCs arguments were based upon vague policies or ones which were not mandatory, and applying a deferential standard of review, the court concluded that it could not be said as a certainty that the project was inconsistent. Of note was the court’s recognition of a policy which required noise mitigation “to the extent feasible”, a concept found in many general plans. As this requirement was not mandatory in each circumstance, the appellate court could not find error.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.

 

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

Welcome to Abbott & Kindermann’s 2016 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 C and are denoted by bold italic fonts.

A.        2015 CEQA UPDATE 

To read the 2015 cumulative CEQA review, click here: 

B.        CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 4 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? 

**The case was argued before the California Supreme Court in early January, 2017.

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.)

C.        Update

1.               CEQA Significance Thresholds 

California Building Industry Association v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. 

Hearing the case on remand from the California Supreme Court, the First District Court of Appeal considered the efficacy of BAAQMD’s significance thresholds used to evaluate the significance of a project’s air quality impacts on sensitive receptors under CEQA.  In light of the California Supreme Court’s decision in California Building Industry Assn. v. BAAQMD (2015) 62 Cal.4th 369, holding that, as a general rule, CEQA does not require an effect of the existing environment on a project’s future occupants or users, the court held that BAAQMD’s receptor thresholds could not be used to evaluate effects on future users, because to do so could trigger the need to prepare an EIR solely because the emissions in the existing environment meet the thresholds as to future users.  The court did, however, hold that the receptor thresholds could be used under certain circumstances, consistent with the California Supreme Court’s ruling, such as: (1) when the effect is ‘exacerbated’ by the project; (2) when a lead agency wishes to use such information for its own evaluation purposes; and (3) for those certain projects specifically identified in CEQA that call for an analysis of impacts on future users (see 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.)  The court then remanded the case to the trial court for further action consistent with the California Supreme Court and appellate court decisions.

2.               General Considerations: What Is The Definition Of 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 2012 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.”

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 “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 CEQA 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. 

Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103.

The city adopted an ordinance regulating the establishment and regulation of medical marijuana cooperatives within the city, finding the ordinance was not a “project” under CEQA, because it will not result in a direct or reasonably foreseeable indirect change in the physical environment. (CEQA Guidelines §15060(c)(3).)  The petitioners (“UMMP”) challenged the city’s adoption of the ordinance under CEQA, arguing the ordinance was a project under CEQA, because it had the potential to cause environmental impacts as a result of traffic, air pollution, and effects from home cultivation sites around the city.  The trial court denied the petition and UMMP appealed.  The Fourth District Court of Appeal affirmed, holding that the city’s ordinance was not a “project” subject to CEQA.  It reasoned that UMMP’s concerns over potential indirect impacts were too speculative to meet the reasonably foreseeable standard.

3.               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 at less than the minimum density 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 share of the state’s 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.

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. From 1965 to 2001, there was a car wash on the property.  The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c) for “New Construction or Conversion of Small Structures.”   

In reviewing the determination of whether a project fits within the exemption, the appellate court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence established that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years. 

On the final issue, the court held that appellants failed to provide evidence that the project will actually have a significant impact due to noise and traffic, reasoning that the car wash was conditioned to adherence to the city’s noise standards, and that, at best, appellants provided evidence that suggests that the project possibly could have a periodic impact on traffic. Therefore, the city properly determined that the car wash project was categorically exempt under the CEQA Guidelines. 

4.               Negative Declarations 

Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677. 

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’s general plan policies for the area which favor small businesses.

Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560.

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. 

Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457. 

Petitioners challenged the City of San Jose’s mitigated negative declaration in support of its proposal to demolish the Willow Glen Railroad Trestle (the “Trestle”), a wooden bridge built in 1922 as part of a rail line accessing the canning districts near downtown, and replace it with a new steel pedestrian bridge.  The City found that, because the Trestle design was common and was likely largely rebuilt within the last 30-40 years, it was not a historical resource.  Thus, there was no significant impact on the environment.  Petitioners challenged that determination and filed a writ of mandate, arguing that there was a “fair argument” that the Trestle was an historical resource and an environmental impact report (“EIR”) was required. The appellate court ruled in favor of the City, reasoning that the statutory language precluded the application of the fair argument standard to the initial decision of whether it was an historical resource, because the City was specifically authorized under Public Resources Code section 21084.1 to make such determinations based upon “the preponderance of the evidence.” 

Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937.

In 2006, the San Mateo Community College District adopted a master plan, calling for over one billion dollars in investment districtwide. This master plan was based upon an environmental impact report (“EIR”). As to the College of San Mateo campus, the plan called for renovation of the Building 20 complex and demolition of others. In 2007, the District approved a negative declaration for the improvements at the San Mateo campus. In 2011, being unsuccessful in obtaining funding, the College modified its plans, planning now to demolish the Building 20 complex and associated gardens, and renovate other buildings. This decision was based upon the 2007 negative declaration coupled with an addendum. Project opponents filed suit, and the District rescinded its addendum and reissued a new addendum with a more in-depth analysis, but reaching the same conclusion. Opponents dismissed the first case and refiled a new lawsuit challenging the revised plans on CEQA grounds. At the opponents’ urging, the trial court concluded that the revisions constituted a new project, ordered the approvals set aside, and directed the District to prepare an EIR. The Court of Appeal concurred (relying primarily on Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288) to decide that as a matter of law the proposed building demolition was a new project. The California Supreme granted review and reversed. 

The Court was emphatic that a decision of whether or not a proposed activity was a new project was predominately a factual question to be made by the decision making body, not a reviewing court. “It is thus a question for the agency to answer in the first instance, drawing on its particular expertise….A court’s task on review is then to decide whether the agency’s determination is supported by substantial evidence; the court’s job’ is not to weigh conflicting evidence and determine who has the better argument.’ ” The opponents also argued that Public Resources Code Section 21166 and CEQA Guidelines Section 15162 could only be invoked following the use of an EIR and therefore had no application in this instance based upon a negative declaration. Citing the legislative history, the Court rejected this argument. Finally, the opponents argued the substantial evidence test was inappropriate in circumstances of a tiered CEQA document, pointing to the master plan as the first tier. The record did not support this characterization, as the 2007 approval was a project-level decision.

5.               Environmental Impact Reports

The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency, 2016 Cal.App. LEXIS 1154 

In 1998, the San Francisco MTA certified an EIR for the addition of a new light rail line to connect the southeastern portion of the City to the rest of San Francisco, included a portion of the project called the Initial Operating Segment (“IOS”).  Over the next decade, portions of the IOS were constructed, but the “Loop” was not fully constructed due to budget constraints.  In 2013, the City received approval of a federal TIGER grant to complete construction of the “Loop,” and City planning department staff determined that the 1998 EIR provided sufficient CEQA review of the project.  In 2014, the City entered into a contract for construction of the “Loop” and the plaintiffs filed suit arguing: (1) the 1998 EIR did not sufficiently cover construction of the “Loop,” and, thus, the court should apply the fair argument standard of review for CEQA compliance; and (2) even if it did, supplemental review of the existing 2014 conditions should have been completed.  The trial court denied the petition and plaintiffs appealed.

The First District Court of Appeal affirmed.  Citing Friends of College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937, the court found that the substantial evidence standard of review applies to review of the City’s determination that the 1998 EIR was sufficient.  Thus, based upon review of the record, the court held that substantial evidence supported the City’s decision to rely on the 1998 EIR.  In addition, it held that plaintiffs’ claim that the analysis of the “Loop” in the 1998 EIR was inadequate was time-barred pursuant to Public Resources Code section 21167.2.  As to the question of whether supplemental review was required, the court also found the plaintiffs’ arguments were meritless.  It reasoned that prior case law cited by plaintiffs that suggest support for their position involve prior program or plan EIRs, while this matter involved a project-level EIR, and found that: (1) substantial evidence in the record supported the City’s decision not complete supplemental review; and (2) the delay between the 1998 EIR and the 2014 construction was not a substantial change to the project necessary to trigger supplemental analysis.

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

Reviewing 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 on 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 held that the EIR prepared for a shopping center, including a new Wal-Mart, lacked substantial evidence to support a finding of consistency with the General Plan because the analysis of the project’s noncompliance with a plan policy requiring on site electricity generation did not adequately explain the infeasibility of solar or consider other onsite generation options. Analysis of greenhouse gas emissions impacts was insufficient because some documents in the record indicated energy efficiency standards would not be met. Before approving the parcel map the city was required to affirmatively address all of the factors in Government Code Section 66474. Significant changes to the air quality analysis and the hydrology and water analysis required recirculation.

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. 

San Diegans for Open Government v. City of San Diego, 2016 Cal.App. LEXIS 1095.

The city staff reviewed a developer’s proposed changes to a previously approved project and determined that the project, as amended, was in substantial conformance with the conditions and requirements of the approved permit and no further CEQA compliance was required.  Plaintiffs, a local public interest group, appealed the determination to the Planning Commission which upheld the decision of staff.  The city then rejected the request to appeal the matter to the city council.  Plaintiffs filed suit arguing: (1) they were entitled to an administrative appeal under Public Resources Code section 21151(c), requiring agencies to accept appeals of CEQA determinations made by non-elected decision making bodies; (2) the determination was discretionary, thus entitling them to an appeal to the city council; and/or (3) the local ordinance provides for an appeal of environmental determinations.  The trial court denied the petition and plaintiffs appealed. 

The appellate court affirmed, holding that the city was not obligated to allow plaintiffs to appeal the decision.  It reasoned that: (1) nothing in the CEQA Guidelines supports the notion that section 21151(c) applies to review of a project that merely confirms a previous CEQA determination still applies; (2) the discretionary nature of a decision is not sufficient on its own to establish a right to an administrative appeal; and (3) the action was not an “environmental determination” as defined in the city code, because it did not “certify an environmental impact report, adopt a … mitigated negative declaration, or determine that a project was exempt from [CEQA].”

Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th 160.

A citizens group challenged the City and County of San Francisco’s (“City”) certification of an environmental impact report for the construction of an arena for the Golden State Warriors and adjacent facilities in the Mission Bay South redevelopment plan area.  Plaintiffs challenged several issues, including: (1) that certain environmental issues were improperly “scoped-out” and there was a fair argument of potentially significant impacts; (2) mitigation requiring the Warriors to “work with” transit agencies to address traffic impacts was legally inadequate; (3) inclusion of the Muni Transit Service Plan (“TSP”) in the project description, rather than as mitigation, prevented the consideration of other potential mitigation measures under Lotus v. DOT (2014) 223 Cal.App.4th 645; (4) the City’s use of an “ambient plus increment” noise threshold improperly disregarded noise impacts where the noise levels were already high; and (5) failure to quantify GHG emissions and rely on a qualitative standard of consistency with the City’s GHG strategy was legally deficient.  The trial court denied the petition and plaintiffs appealed. 

The appellate court affirmed.  It held that: 

(1)  the substantial evidence standard of review was proper, because the City made a determination that the project was consistent with a prior program EIR, while identifying the specific issues that warranted more detailed environmental review, consistent with CEQA Guidelines section 15168. 

(2)  the mitigation that required the Warriors to “work with” the transit agencies was adequate, reasoning that the adopted transportation management plan specific performance standards and substantial evidence supported the conclusion that the mitigation will “actually be implemented as a condition of development”;  

(3)  Lotus was inapplicable, reasoning that unlike the Lotus environmental document, the arena EIR fully disclosed the traffic and transit impacts of the project, and analyzed both with and without the TSP under the same threshold to determine significance;

(4)  The noise analysis was not deficient, because the EIR incorporated a smaller incremental threshold for high ambient noise levels, the cumulative analysis expressly addresses the issue raised by plaintiffs, and the impact analysis fully describes the noise impacts on human health; and

(5)  the EIRs reliance on compliance with an adopted GHG reduction strategy, even without quantifying the GHG emissions, was: (a) consistent with CEQA Guidelines section 15064.4 which grants agencies discretion in determining the proper significance threshold for a given project; and (b) does not run afoul of the California Supreme Court’s holding in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 219, because it did not hold that quantification was necessary in every case, it identified “potential pathways to compliance.”

East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281.

Note: Requests for depublication have been filed with the California Supreme Court.  The court extended time to review these request until March 17, 2017. 

The court of appeal refused to set aside an EIR due to minor changes that occurred through the EIR process. These include:

·       Failure to discuss the development agreement;

·       A minor density change resulting in an increase of eight more residential units from 328 units to 336 units;

·       The discussion, but no decision of a potential secondary vehicle access (to be built if at all as an independent city project);

·       Driveway width variances for a handful of four-house residential T-court clusters;

·       A modification to over circulation resulting in traffic being diverted to another street with additional capacity;

·       The EIR was not required to analyze impacts from the existing nearby landfill on the project. 

However, the EIR failed to substantiate the use of a different level of service on downtown, as compared to suburban intersections.

Finally, with respect to general plan consistency claims, the court of applied a deferential review, finding no irreconcilable conflicts with mandatory policies.

6.               Litigation Procedures 

Highland Springs Conf. & Training Center v. City of Banning (2016) 244 Cal.App.4th 267. 

After a successful challenge to the approval of an Environmental Impact Report (“EIR”) for a 1,500-acre development project, the appellants, Highland Springs Conference & Training Center (“Highland Springs”), were awarded over $1 million in attorney fees and costs against the real party in interest, SCC/Black Bench, LLC, dba SunCal Companies (“SCC/BB”) in 2008.  Four years later, appellants sought to add SCC Acquisitions, Inc. (“SCCA”), as an additional judgment debtor, claiming that SCCA was the alter ego of SCC/BB and filed the motion shortly after they became aware that SCC/BB had dissolved back in 2010.  The trial court denied the motion to amend reasoning that while Highland Springs likely would have prevailed on the motion had they filed it earlier, it was denied because Highland Springs failed to provide sufficient evidence to support their “long delay” in filing the motion.  Highland Springs appealed.

The appellate court reversed, holding that the court erred by failing to apply the alter ego doctrine to the motion, which would have put the burden was on SCCA to provide sufficient evidence that it was prejudiced by Highland Springs delay in filing the motion under a laches defense.  The appellate court remanded the case for further proceedings consistent with the opinion. 

Center for Biological Diversity v. Cal. Dept. of Fish & Wildlife (2016) 1 Cal.App.5th 452. 

After extended litigation over a mandate petition regarding the certification of an Environmental Impact Report (“EIR”) related to several approvals for the proposed land development project called Newhall Ranch, the California Supreme Court held that issues involving greenhouse gas emissions and protected fish species required further analysis under CEQA and remanded the case back to the appellate court.  In the published portion of the decision, the appellate court considered the defendants’ argument that the appellate court had the authority under the California Supreme Court decision to retain supervision of the agency’s compliance after remand.  The Court of Appeal held that it is not empowered to retain jurisdiction to supervise the return to the writ of mandate, because Public Resources Code section 21168.9, subdivision (b) expressly vests such power in the trial court.

Communities for a Better Environment v. Bay Area Air Quality Mgmt. Dist. (2016) 1 Cal.App.5th 715. 

The petitioners, Communities for a Better Environment (“CBE”), filed a writ of mandate challenging the Bay Area Air Quality Management District’s (“BAAQMD”) approval of a modification to operations at a rail-to-truck facility to transload crude oil, instead of ethanol, as a “ministerial” approval exempt from the California Environmental Quality Act (“CEQA”).  Though CBE’s action was filed more than 180 days after both BAAQMD’s approval of the change in operations, as well as the commencement of the new operations, CBE argued the “discovery rule” should apply to toll the statute of limitations.  Because of the nature of the change in operations and BAAQMD did not file a Notice of Exemption, CBE maintained that it neither learned about the project, nor could have discovered it using reasonable diligence, until it received an email disclosing the project.  In its defense, CBE cited Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association, 42 Cal.3d 929 (1986), in which the California Supreme Court allowed a CEQA suit filed more than 180 days after construction began on an amphitheater project, because the Association made substantial changes to the project that were not made public and were not discoverable until the first concert was held at the site.  However, the trial court held the claim was time-barred, dismissed the case, and CBE appealed. 

The appellate court affirmed.  Looking to Concerned Citizens, the appellate court reasoned that the California Supreme Court did not apply the discovery rule, because to do so would be inconsistent with the Legislature’s intent in adopting the strict timelines in Public Resources Code 21167.  Instead, the court noted that the California Supreme Court allowed the suit to proceed because the changes from the original project were so substantial the plaintiffs had neither actual nor constructive notice of the changes until the first concert was held.  Thus, they had 180 days from the time they “knew or reasonably should have known that the project under way differs substantially from the one described in the EIR.”  The court then considered another case, Stockton Citizens for Sensible Planning v. City of Stockton, 48 Cal.4th 481 (2010), to conclude that the public has received constructive notice through either a formal decision to approve the project or the project’s commencement.  Thus, the court held that CBE’s suit was subject to the 180 day limitations period from the date CBE had constructive notice, which was the date of project commencement, not the date of the email giving CBE actual notice.

Citizens for Ceres v. City of Ceres (2016) 3 Cal.App.5th 237.

A citizens group unsuccessfully challenged the city’s environmental review and approval of a shopping center project.  The developer reimbursed the city for the costs to prepare the administrative record and requested the court grant an award that included those costs.  The citizens group filed a motion to tax those costs and the trial court granted it.  The developer appealed and the appellate court reversed the order to tax costs and remanded to the trial court.  It reasoned that: (1) nothing in the statute prohibits a real party in interest from submitting cost bills after it reimbursed the agency for preparing the administrative record; and (2) neither could such a prohibition imply that to do so would undermine the public policy of incentivizing agencies to reduce costs.

7.               CEQA Guidelines Updates 

a.     OPR VMT CEQA Guidance 

On January 20, 2016, the Governor’s Office of Planning and Research (“OPR”) released its Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA, which followed its “Preliminary Discussion Draft” released in 2014.  OPR accepted public comments on the revised draft through February 29, 2016.  Key proposals include: 

·       A recommendation that VMT be used throughout the state, not just in transit priority areas, phased in over time, beginning in urban areas. 

·       Establishes that under CEQA, “a project’s effect on automobile delay does not constitute a significant environmental impact.”

·       Authorizing agencies to use significance thresholds adopted by other agencies, so long as they are supported by substantial evidence.

·       The proposal includes a Technical Advisory that sets forth recommended VMT screening thresholds, as well as several examples of potential mitigation measures and alternatives to reduce VMT. 

To date, no further steps have been taken and there is no timeline for adoption of final regulations. More information can be found at: http://www.opr.ca.gov/s_sb743.php

b.     AB 52 CEQA Guidelines Update 

California Natural Resources Agency adopts final rule to implement AB 52, Tribal Cultural Resources under CEQA on September 29, 2016. 

See Environmental Law Update, Cultural Resources Protection Section, Update, Item 1.

D.        Legislation

SB 122 (Chapter 476) California Environmental Quality Act: record of proceedings.  

This bill requires: (1) the lead agency to concurrently prepare the administrative record with the administrative process, upon the request of the applicant and the consent of the agency, at the sole cost of the applicant, and certify the record within 30 days after filing the notice of determination; and (2) directs OPR to implement an online public database of all CEQA documents and notices, and requires lead agencies to submit these documents in either hard-copy or electronic format, as determined by OPR.

SB 734 (Chapter 210) Environmental quality: Jobs and Economic Improvement Through Environmental Leadership Act of 2011.

This bill extends the sunset date until January 1, 2019, for projects to qualify for the expedited CEQA judicial review process established in the Jobs and Economic Improvement Through Environmental Leadership Act in 2011.

SB 1008 (Chapter 588) California Environmental Quality Act: Los Angeles Regional Interoperable Communications System: exemption.  

This bill exempts from CEQA the design, construction and operation of the Los Angeles Regional Interoperable Communications System, a radio and broadband communications system for emergency responders, under specified conditions.

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, Inc., 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.

 

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th 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 2016 case law and legislative updates includes the following hot topics for 2017:

  • 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, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

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

Date: Wednesday, January 11, 2017

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.

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

Date: Friday, January 20, 2017

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

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

Date: Friday, January 27, 2017

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.

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

Date: Tuesday, January 31, 2017

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.

 

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

By Brian Russell

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The property is zoned commercial. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. The rest of the property would be used for drying and parking cars. Entry to the car wash was from a residential street, just off of a major street. From 1965 to 2001, there was a car wash on the property.

The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c).  That provided an exemption from CEQA review for commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

After an appeal and approval by city council, Appellants filed a petition challenging the CEQA exemption. The trial court ruled in favor of the city.

On appeal, the initial issue was whether the project qualified as a commercial structure and met the square footage limitations of the CEQA exemption. In reviewing the determination of whether a project fits within an exemption, the court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. The appellant also urged that the use of hazardous materials was not allowed in conjunction with the exemption. However, the evidence did not support this argument, and that the argument was based upon speculation.

Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Under the Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”), a challenger must prove both the unusual circumstances and a significant environmental effect that is due to those circumstances. If unusual circumstances are found, agencies apply the fair argument standard in determining whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Alternatively, under Berkeley Hillside, a challenger may establish an unusual circumstance with evidence that the project will have a significant environmental effect, applying the traditional substantial evidence test. Here, the court explained that a party can show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class, such as its size or location. But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence establishes that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years, which suggests that this project is not an unusual circumstance.

The court further analyzed whether the plaintiffs had established that the unusual circumstances will have a significant environmental effect. The plaintiffs argued that the operation of the car wash would violate the city’s interior and exterior noise limits at the abutting property line. However, the court rejected that argument, and found that the exceedance will not occur, because the project was conditioned upon the car wash’s adherence to the city’s noise standards. Furthermore there was an additional condition that provides that compliance with the noise requirements “shall be tested and documented prior to the final inspection and opening of the car wash operation.” Given those conditions and assurances, plaintiffs failed to meet their burden of showing that the project will actually have a significant environmental effect.

Plaintiffs then argue that the project will have a significant impact on traffic. They argued that the design of the car wash is inefficient and will cause back ups within the project property. However, the court held that plaintiffs’ argument was speculative and was contradicted by both the plaintiffs’ expert and the city’s findings that any such backup could be avoided by managing the flow of cars through the car wash. The court found that, at best, plaintiffs provided evidence that suggests that the project possibly could have a periodic impact on traffic. That was insufficient. The court held that plaintiffs failed to provide evidence that the project will actually have a significant impact on the environment by causing a substantial adverse change in the physical conditions that exist in the area.

With that holding, the court concluded that plaintiffs failed to establish the unusual circumstances exception under the Berkeley Hillside alternative analysis. Therefore, the city properly determined that the car wash project is categorically exempt under the CEQA Guidelines.

Brian Russell is an attorney 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.

 

Alaska Oil & Gas Assn. v. Pritzker, ___ F.3d. ___, 2016 U.S. App. LEXIS 19084 (9th Cir., case nos. 14-35806, 14-35811, Oct. 24, 2016).

By Glen Hansen

In 2008, the Center for Biological Diversity ("CBD") filed a petition requesting that the U.S. Secretary of Commerce list three “sea ice seal” species as endangered or threatened under the federal Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. The National Marine Fisheries Service (“NMFS”) concluded that the Okhotsk and Beringia distinct population segments (“DPS”) of the Pacific bearded seal subspecies were “likely to become . . . endangered species within the foreseeable future throughout . . . a significant portion of [their] range.” Plaintiffs Alaska Oil and Gas Association (“AOGA”), the State of Alaska, and North Slope Borough (collectively, “Plaintiffs”) filed separate lawsuits in the United States District Court for the District of Alaska challenging the listing decision. Plaintiffs alleged that the listing decision was not based on the “best scientific and commercial data available” in violation of 16 U.S.C. § 1533(b)(1)(A); that the population of bearded seals was plentiful; that a lack of reliable population data made it impossible to determine an extinction threshold; that NMFS’s use of predictive climate projections beyond 2050 were speculative; that NMFS had unreasonably “changed tack” from its previous Arctic sea-ice listing decisions; and that NMFS had failed to demonstrate a causal connection between the loss of sea ice and the impact of that loss to the Okhotsk and Beringia DPS’s viability. 

The District Court granted summary judgment to Plaintiffs on their challenge to NMFS’s decision to list the Beringia DPS as a threatened species because NMFS’s long-term climate projections were volatile and the agency lacked data on the bearded seal’s adaptability and population trends, including “a specified time” at which the seal would reach an extinction threshold.  (Alaska Oil & Gas Ass’n v. Pritzker, No. 4:13-cv-18-RRB, 2014 U.S. Dist. LEXIS 101446 (D. Alaska, July 25, 2014).)  The District Court pointed out that “NMFS acknowledged that it lacks sufficient data on the resilience of bearded seals to cope with climatic changes; or to define an extinction threshold for bearded seals and assessing the probability of reaching that threshold within a specified time; and that, because the existing body of information regarding bearded seal population and trends was limited, additional studies were needed to understand the population dynamics and habitat of the bearded seal.” The District court added:

Troubling to this Court is that it does not appear from the Listing Rule that any serious threat of a reduction in the population of the Beringia DPS, let alone extinction, exists prior to the end of the 21st century.  Indeed, the Listing Rule itself concedes that, at least through mid-21st century, there will be sufficient sea-ice to sustain the Beringia DPS at or near its current population levels.  Indeed, with respect to the second half of the century it appears that no significant threat to the Beringia DPS is contemplated before 2090.  Even as to that date, NMFS acknowledges that it lacks any reliable data as to the actual impact on the bearded seal population as a result of the loss of sea-ice. Under the facts in this case, forecasting more than 50 years into the future is simply too speculative and remote to support a determination that the bearded seal is in danger of becoming extinct.

NMFS and CBD appealed the District Court decision. The Ninth Circuit reversed.

The Court of Appeals described the key issue on appeal as follows: “When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?” The standard of review that the court applied in this case was significant because it required a “high threshold for setting aside agency action.” Specifically, the court stated that it “will affirm that action ‘so long as the agency “considered the relevant factors and articulated a rational connection between the facts found and the choices made.”’” The court ultimately held that, “[i]n light of the robustness of NMFS’s rulemaking process, as well as our highly deferential standard of review, we hold that NMFS’s final rule listing the Beringia DPS as threatened was not arbitrary or capricious, and its listing decision was supported by substantial evidence.”

The court described that “rulemaking process” and the “substantial evidence” in support of NMFS’ decision as follows:

NMFS established a Biological Review Team of eight marine mammal biologists, a fishery biologist, a marine chemist, and a climate scientist to review the status of the “best scientific and commercial data available” regarding bearded seals. NMFS solicited four scientists to conduct independent peer reviews of the Review Team’s report. … The review concluded that bearded seals generally prefer to hunt organisms found on the ocean floor. As a result, the seals prefer to congregate where non-contiguous sea ice floes appear over shallow water between 50 to 200 meters deep, and the seals avoid “unbroken, heavy, drifting ice or large areas of multi-year ice” located over deeper waters. The seals use ice floes to give birth (whelp) and to nurse their pups; to allow mothers close access to food sources while nursing; to enable their pups to gain experience with diving, swimming, and hunting away from their predators; to provide a location for males to attempt to attract females; and to provide a platform where male seals can rest while molting.  [¶] Using observational and predictive data from the Intergovernmental Panel on Climate Change’s (“IPCC”) Fourth Assessment Report, NMFS used six climate models to determine when the Beringia DPS’s sea ice habitat would degrade to such an extent that it would render the Beringia DPS endangered, and it made available for public review its methodology and data. … [¶] After considering thousands of comments to the proposed rule, NMFS extended the review period and sought additional independent peer reviews of the sections of the status review report that generated the greatest disagreement among peer reviewers–the timing and magnitude of climate change effects on the availability of sea ice in the Bering Sea. NMFS additionally updated its climate predictions to include studies published after the Proposed Listing Rule. NMFS also held public hearings in Anchorage, Barrow, and Nome to solicit comments. 

The court continued:

Having concluded that the availability of sea ice in shallow water was crucial to the Beringia DPS’s viability, NMFS evaluated several climate models to determine the magnitude and timing of climate change’s impact on the availability of sea ice in areas inhabited by the Beringia DPS.  … [¶][¶] …The IPCC’s climate models for 2050 to 2100, showed greater volatility, and thus less reliable predictive value, in the Arctic. And so NMFS used two models considered to be particularly reliable with respect to Arctic sea ice, and it used “medium” and “high” emissions scenarios to project monthly sea ice concentrations between March and July for each decade, beginning in 2025 and ending in 2095. After confirming the models’ accuracy, NMFS applied each to the areas occupied by the Beringia DPS to determine the range of temperatures per month from 2050 to 2100, and used those temperature projections to determine the impact of local warming on sea ice melt. NMFS’s projections demonstrated that by May and June 2050, there would be no sea ice in the Bering Strait, the East Siberian Shelf, or the Barents or Bering Seas.  By July 2050, sea ice would recede to less than 20% of the mean or disappear entirely from the Beaufort, Chukchi, and East Siberian seas. Most dramatically, by the time NMFS sought a second round of public comment on its climate projections, sea ice scientists published research indicating there would be “[a] nearly sea ice free summer Arctic by mid-century.” 

Plaintiffs argued that NMFS used climate models that cannot reliably predict the degree of global warming beyond 2050 or the effect of that warming on a subregion, such as the Arctic.  However, the court explained that in earlier cases “we adopted the D.C. Circuit’s holding that the IPCC climate models constituted the ‘best available science’ and reasonably supported the determination that a species reliant on sea ice likely would become endangered in the foreseeable future.”  Here, the court explained, “NMFS provided ample evidence of significant sea ice loss from 2007 to 2050, a period in which specific data supports the IPCC climate projections. Those projections indicate that during months in which bearded seals used that ice for ‘critical life events’ such as mating, birthing, and nursing, most Beringia DPS habitats will have lost most, if not all, of their sea ice. … NMFS’s projections for the second-half of the century are also reasonable, scientifically sound, and supported by evidence.” 

In response to the District Court’s conclusion about agency speculation, the Ninth Circuit stated that the ESA “does not require NMFS to base its decision on ironclad evidence when it determines that a species is likely to become endangered in the foreseeable future; it simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination.”  The appellate panel rejected what it called the District Court’s “request for unobtainable, highly specified data would require NMFS to wait until it had quantitative data reflecting a species’ decline, its population tipping point, and the exact year in which that tipping point would occur before it could adopt conservation policies to prevent that species’ decline.”  The court explained that “the ESA does not require an agency to quantify population losses, the magnitude of risk, or a projected ‘extinction date’ or ‘extinction threshold’ to determine whether a species is ‘more likely than not’ to become endangered in the foreseeable future.”  In this case, the court concluded, “NMFS has demonstrated that it ‘considered the relevant factors and articulated a rational connection between the facts found and the choices made.’ That is all the ESA requires.”  Accordingly, the Ninth Circuit reversed the District Court’s grant of summary judgment in favor of Plaintiffs.

Comment:

The case could have far-reaching results. Using unequivocal – but politically controversial – language to describe climate change issues, the Court of Appeal stated:  “There is no debate that temperatures will continue to increase over the remainder of the century and that the effects will be particularly acute in the Arctic. The current scientific consensus is that Arctic sea ice will continue to recede through 2100, and NMFS considered the best available research to reach that conclusion.” (Emphasis added.) An attorney for the state of Alaska noted: “If this opinion stands, [NMFS] would list a species that is abundant and in good health based on the claim that climate change will impact habitat over the next 100 years and may cause harm.”

Like the District Court in this case, numerous other courts and judges have deemed long-range climate change projections as too speculative. (See e.g., Coalition for Responsible Regulation, Inc. v. EPA, 2012 U.S. App. LEXIS 25997 at *42, den. reh’g en banc (D.C.Cir., case no. 09-1322, Dec. 20, 2011)(J. Brown, dissenting) [“any harm to human health and welfare flowing from  climate change comes at the end of a long speculative chain”]; Center for Biological Diversity v. U.S. Dept. of the Interior, 563 F.3d 466, 478, (D.C. Cir. 2009) (holding that the plaintiffs’ concern that “significant adverse effects of climate change ‘may’ occur at some point in the future” was insufficient to constitute an “actual, imminent, or ‘certainly impending injury’ required to establish standing”);  Oceana, Inc. v. Pritzker, 125 F.Supp.3d 232, 351 (D.D.C. 2015) [as to impacts on a population of sea turtles, NMFS admitted that “[l]onger-term effects of the fishery and climate change . . . are speculative and difficult to extrapolate beyond ten years”]; Alliance for the Wild Rockies v. Austin, 55 F.Supp.3d 1294, 1309 (D.Mont. 2014) [“Very generally, the Fish & Wildlife Service determined that the potential effects of climate change on the North American wolverine population are too speculative at this time to warrant listing pursuant to the factors in 16 U.S.C. § 1533(a)(1)(A)-(E)”].)  However, the Ninth Circuit now appears to have changed that analysis with this declaration in this case:  “The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process.”  As a staff attorney for CBD stated, “This legal victory is likely to have major implications for many other climate-threatened species.”  The implications of the Ninth Circuit’s position for future agency decisions in the areas of environmental, land use and natural resources law could be significant. 

Glen Hansen is 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.