by Joel Ellinwood, AICP

A recently published case illustrates that there is danger in investing too much in a sense of righteous indignation about the perceived abuse of CEQA in delaying public projects. Ramona Unified School District v. Tsinkas (2005) 135 Cal.App.4th 510.

The Ramona Unified School District (“District”) adopted a Mitigated Negative Declaration (“MND”) for a school construction project that was originally proposed to have an on-site septic system. The limitations period for challenging the MND passed without a suit being filed. The District then considered revising the project to include a connection to the sewer system and an expansion of the treatment plant operated by the local water district. The District determined that the possible connection was exempt under CEQA, but also prepared an “addendum” to the MND (thereby avoiding the necessity of public circulation and comment, see CEQA Guidelines § 15164 (c)) which concluded that there would be no significant impact of the potential sewer connection.

A neighborhood group filed a CEQA action to challenge the adoption of the addendum. They contended that an EIR should be prepared because the sewer line extension could have growth-inducing impacts on the surrounding area. The District ultimately decided to abandon the sewer extension proposal and proceed with the project as originally proposed in the MND. The District filed a motion to dismiss the CEQA action as moot, and argued that even if the sewer extension had been included that all CEQA standards were met. The court granted the motion but gave the petitioners the opportunity to amend their petition. The District filed a demurrer to the amended petition, which the trial court sustained – thereby terminating the CEQA lawsuit on the merits in favor of the District. The neighborhood group filed a motion for the award of attorney fees under the theory that the filing of the CEQA action caused the District to abandon the sewer extension. The District filed its own motion for the award of attorney fees. The trial court denied both motions and dismissed the petition.

Not being satisfied with prevailing in the CEQA action, the District then filed a separate lawsuit against the neighborhood group and their attorney for abuse of process and barratry (the practice of instituting a multiplicity of groundless legal proceedings). In defense, the defendants filed a motion to dismiss the action pursuant to the anti-SLAPP (Statregic Litigation Against Public Participation) statute, Code of Civil Procedure section 425.16, contending that the CEQA lawsuit and amended petitions and attorney fee motions were protected First Amendment activities, and that the District was unlikely to prevail on the merits. The trial court granted the motion, dismissed the District’s complaint, and awarded attorney fees to the neighborhood group and its attorney for their work in filing the anti-SLAPP motion. Upset at the fact that the District now had to pay the project opponents’ attorney fees even though the District had prevailed in underlying lawsuit, the District appealed.

The Court of Appeals upheld the trial court’s dismissal of the District’s complaint and the award of defendants’ attorney fees. The policy vindicated in this case is that public participation in the full exploration of potential impacts under CEQA is a protected First Amendment activity. Project opponents have the right to be wrong without having to pay a penalty for it. A pro-active, participatory and patient strategy that accepts these principles (even at the cost of project delays and increased short-term costs), rather than a resentful and punitive approach in response to a challenge of procedure or substantive conclusions will most likely be successful.

The use of available and perfectly legal shortcuts (such as an addendum to a MND in this case) increases the risk of legal challenges that a more conservative and participatory approach may avoid (e.g., the use of a “subsequent” negative declaration, with a 30-day recirculation and comment period per Guidelines § 15162 (d)), thus potentially saving the time and cost in litigation. Ultimately, opponents may not be satisfied with any process or conclusion that results in project approval and it may be necessary and appropriate to litigate to defend and vindicate the agency’s compliance with CEQA. With success at the trial level, however, it is best to quit while still ahead.

Joel Ellinwood, AICP is a senior associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.