2011 CEQA MID-YEAR UPDATE

By Leslie Z. Walker, William W. Abbott, Cori M. Badgley and Katherine J. Hart

In the first six months of 2011, the appellate courts have issued eight opinions and the results are a mixed bag. On the one hand, the Sixth Appellate District gave cities and project proponents a strategy to deal with Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150); the First Appellate District gave more clarity on deferred mitigation in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884; and the Fourth District held that petitioners failed to exhaust their administrative remedies when they did not fairly present evidence to the City (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032). On the other hand however, the Fifth Appellate District held that project components not properly documented for CEQA purposes cannot be severed from the balance of the approval and a project found to partially violate CEQA, must be set aside in its entirety (Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675.)

IS IT A PROJECT? 

Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150: A city and its redevelopment agency entered into a “term sheet” for the development of a professional football stadium development project. While the term sheet expressly bound the parties to continue negotiating in good faith, it did not commit the public agencies to a definite course of action with respect to the development of the stadium or effectively rule out any mitigation measure or alternative. Thus, under Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the public agencies did not “approve” the project for purposes of CEQA. See A Very Detailed Agreement In The Process of Negotiating A Development Project May Not Constitute an Approval for CEQA Environmental Review Purposes.

INFILL EXEMPTION 

Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329: Development standards waived under density bonus laws were not applicable to a density bonus project because Government Code section 65915 requires a local agency grant waivers or reductions of development standards that “will have the effect of physically precluding the construction of a development meeting the criteria” of the density bonus statute, and the City’s code requires the City to grant density bonuses upon a proper application. Further, the project was not required to comply with the CEQA Guidelines section 15332 requirement that the project be consistent with the applicable general plan designations and policies and all applicable zoning designations and regulations…” in order for the infill exemption to apply. See The Normal Rules Don't Apply When it Comes to Affordable Housing Projects.

THRESHOLDS OF SIGNIFICANCE

Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884: The City's significance threshold to evaluate seismic impacts did not violate CEQA for two reasons: (1) there is no requirement that a significance threshold be formally adopted; and (2) the significance threshold used substantially conformed to the significance threshold for service impacts in Appendix G of the CEQA Guidelines.

ADDENDUMS/EXHAUSTION OF ADMINISTRATIVE REMEDIES

Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032: A Challenge to the adoption of an addendum to an EIR prepared in 1994 was rejected where petitioner failed to demonstrate that the city’s decision to approve the addendum over a supplemental EIR was not supported by substantial evidence, and where petitioner failed to exhaust its administrative remedies on the issues of drought and climate change. The Court held that the letters submitted to the city clerk on the date of the CEQA hearings contained only general, unelaborated objections, which were insufficient to satisfy the exhaustion doctrine. It also held that petitioner's last minute document dump of 4,000 documents placed on a compact disc did not fairly present issues to the City. 

CUMULATIVE IMPACTS

Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538: Where the project did not discharge anything into the groundwater, the city was not required to analyze the project’s contribution to cumulative groundwater impact. See No Discharge, No Cumulative Impact.

MITIGATION MEASURES

Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884: Mitigation of seismic effects was not improperly deferred where the EIR discussed the statutes and regulations aimed at increasing seismic safety, proposed compliance with them, and gave adequate assurances that seismic impacts would be mitigated through engineering methods known to be feasible and effective. Substantial evidence supported the City's determination that these mitigation measures would reduce the seismic impacts to a less-than-significant level.

Chawanakee Unified School District v. County of Madera (2011, No. F059382) ____ Cal.App.4th ____: This case involved the technical interpretation of the provision in the School Facilities Act limiting the “methods of considering and mitigating impacts on school facilities” to the fees provided in the School Facilities Act. (Gov. Code, § 65996(a).) The court held that the term “considering” means that an EIR is not required to “contain a description and analysis of a development’s impacts on school facilities.” However, the court also held that the phrase “on school facilities” narrowed the application of the statute to direct impacts on school facilities only. Thus, indirect impacts such as increased traffic or construction impacts caused by building a new school must be analyzed in the EIR. See "The Devil is in the Details . . . At least When it Comes to Interpreting the School Facilities."

CEQA LITIGATION

Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538: A Challenge to project’s construction impacts on hydrology and water was moot because the construction was complete.

Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675: Public Resources Code section 21168.9 makes the issuance of the writ following an entry of judgment mandatory. If the trial court finds that an element of the CEQA document must be redone, the trial court may not sever one portion of the project from the portion tainted by the invalid CEQA analysis. See CEQA Remedies for CEQA Sins.

Latinos Unidos de Napa v. City of Napa (2011, Case No. A129584) ____ Cal.App.4th ____: Code of Civil Procedure Section 12 governs the calculation of the 30 day posting period for Notice of Determination under Public Resources Code section 21152, subdivision (c) and the Notice of Determination must be posted for the entire 30th day to satisfy the 30-day posting requirement.

GREENHOUSE GASES 

Association of Irritated Residents, et al. v. California Air Resources Board, et al., (May 20, 2011, Case Number CPF-09-509562): The San Francisco Superior Court enjoined the implementation of the Air Resources Board’s Climate Change Scoping Plan, finding the alternatives analysis and public review process violated both CEQA and the Air Resources Board’s certified regulatory program. The Air Board has appealed the decision, but has also issued a revised Functional Equivalent Document. See AB 32 Scoping Plan Enjoined.

Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 184 Cal.App.4th 1032: Information about Greenhouse Gases was not new information requiring a supplemental EIR because information about Greenhouse Gases or Emissions has been available since the late 1970s.

If you have any questions about these court decisions or about CEQA, contact Leslie, Bill, Cori, Kate or Partners Diane Kindermann and Elizabeth Strahlstrom. at (916) 456-9595. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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