By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart, Glen Hansen, and Daniel Cucchi
We are pleased to present our cumulative Fourth Quarter CEQA Review for 2012. In addition to being italicized and bolded, the newest decisions issued in this fourth quarter are underlined and preceded by asterisks (***).
In terms of new developments, OPR is moving forward with its CEQA Guidelines implementing SB 226 (infill streamlining). Will cities embrace these new streamlining provisions?
***Voices for Rural Living v. El Dorado Irrigation District(2012) 209 Cal.App.4th 1096: The small project categorical exemption in CEQA did not apply to exempt an agreement for water service from CEQA review due to the unusual circumstances surrounding the agreement. See Two Recent Decisions Highlight the Special Powers Held By LAFCo.
***Central Basin Municipal Water District v. Water Replenishment District Of Southern California(2012) 211 Cal.App.4th 943: A 1991 groundwater basin judgment provided the legal framework for a later, 2010 declaration of water emergency. In those circumstances, the agency issuing the declaration of emergency under the authority of the prior judgment lacked any meaningful discretion and CEQA did not apply. See Declaration of Water Emergency in Furtherance of a Judgment Was Exempt From CEQA.
***Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (2012) 210 Cal.App.4th 1006:Under the Elections Code, a city council facing a qualifying citizen sponsored land use initiative measure is precluded from direct adoption of the measure without first complying with CEQA. The Fifth Appellate District rejected a holding to the contrary in Native American Sacred Site & Environmental Protection Association v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961. See Appellate Court Draws Line In Sand Requiring CEQA Review Before City Council Enactment of Land Use Measure.
***Chung v. City of Monterey Park(2012) 210 Cal.App.4th 394: A measure placed on local ballot by city council providing for competitive bidding for trash hauling was not subject to CEQA because it was a matter pertaining to government funding and exempt pursuant to CEQA Guidelines section 15378(b)(4). See No Commitment, No "Project".
Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950: The lead agency correctly applied a Class 3 CEQA exemption to applications for permits to add wireless equipment throughout the City and County of San Francisco. The cumulative impacts exception to the Class 3 exemption is limited to activities in “the same place” not city wide. Completion of the exemption after the permit was issued was not reversible error. See Lead Agency Correctly Applied CEQA. Categorical Exemption To Permits For Wireless Equipment To Be Added To Existing Utility Poles.
Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656: A larger than average house, to be constructed on a Berkeley hillside, met the test for “unusual circumstances,” limiting the use of a CEQA categorical exemption. Based upon disputed testimony of a soils engineer, the Court found that there was substantial evidence of a fair argument, necessitating the preparation of an EIR. See Applying CEQA's Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence. NOTE: The Supreme Court granted review in this case.
Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162: The processing of sequential boundary line adjustments is categorically exempt from CEQA, as long as a discretionary permit is not concurrently processed. Although the lead agency could exercise some discretion, it was insufficient in character to shape the project, and therefore compliance with CEQA would not be meaningful. See Court Upholds Processing of Sequential Boundary Line Adjustments.
NEGATIVE DECLARATIONS: FAIR ARGUMENT TEST
Consolidated Irrigation District v. City of Selma (2012) 204 Cal.App.4th 187: To the extent that a lead agency questions the credibility of a witness in a CEQA administrative proceeding, the agency should identify the “evidence with sufficient particularity to allow the reviewing court to determine whether there were legitimate, disputed issues of credibility.” In the absence of this showing, the lead agency may be precluded from arguing the validity of proffered evidence.
NEGATIVE DECLARATIONS: FUNCTIONALLY EQUIVALENT ENVIRONMENTAL ASSESSMENTS
W.M. Barr & Company, Inc. v. South Coast Air Quality Management District (2012) 207 Cal.App.4th 406: Applying the substantial evidence standard, the court rejected a challenge to the use of an environmental assessment (as a de facto negative declaration) for the adoption of new air district rules regulating manufacturer use of ozone forming volatile organic compounds. The Air District’s CEQA review was performed under CEQA’s “functionally equivalent” rules. Substantial evidence supported the District’s determination of no impact, thus no discussion of alternatives was required.
EIRs: PROJECT DESCRIPTION
***Banning Ranch Conservancy v. City of Newport Beach (December 12, 2012) ___ Cal.App.4th ___: Plaintiff argued that the City’s EIR improperly described the Sunset Ridge Park project to include only the park and the access road. In particular, plaintiff claimed that the project description should have included a neighboring housing development (the Banning Ranch project), and the failure to do so constituted piecemeal review of a project. The court of appeal disagreed and denied the writ. See Neither A Shared Access Road Nor The Gnatcatcher Stop Sunset Ridge Park Project Under CEQA.
Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899:
The lead agency’s failure to list a development agreement as an approval required as part of project did not preclude “informed decisionmaking concerning the project” and therefore was not a basis for setting aside the EIR certification. See Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown.
Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 200 Cal.App.4th 1480: The Court of Appeal, Second District, upheld the use of a variable baseline in Neighbors for Smart Rail. The project was a phase II rail line extension, and as to traffic and air quality, the lead agency used a future year scenario as the baseline (as opposed to existing conditions). Notably, the Second Appellate District sharply disagreed with the decisions in Sunnyvale West Neighborhood Association v. City of Sunnyvale (2010) 190 Cal.App.4th 1351 and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 to the extent the decisions categorically rejected any use of future baseline scenarios. See A Judicial Throwdown on CEQA's Baseline Requirements. NOTE: The Supreme Court granted review in this case.
EIRs: AGRICULTURAL IMPACTS
Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296: Appellants challenged the City’s analysis of project impacts on agriculture arguing that the city failed to disclose the cumulative impacts to agriculture, and failed to support its rejection of a heightened mitigation ratio (i.e., 2:1) with substantial evidence. The court of appeal soundly rejected both contentions and upheld the City’s mitigation measure which required Wal-Mart to purchase a permanent agricultural conservation easement over 40 acres (1:1 ratio) to mitigate for the loss of the 40 acres of prime land due to the project’s development. See Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around.
EIRs: LAND USE AND PLANNING
***Banning Ranch Conservancy v. City of Newport Beach (December 12, 2012) ___ Cal.App.4th ___: An EIR prepared for a public park project was consistent with the California Coastal Act as it properly identified relevant Coastal Act policies, and provided for mitigation of the potentially sensitive areas should they be designated as environmentally sensitive habitat area by the Coastal Commission in the future. The EIR’s analysis of wetlands was also consistent with the Coastal Act since no wetlands as defined by the Act were located on the park site according to the biological technical report. See Neither A Shared Access Road Nor The Gnatcatcher Stop Sunset Ridge Park Project Under CEQA.
EIRs: PUBLIC SERVICES/RECREATION IMPACTS
City of Hayward v. Board of Trustees of the California State University (2012) 207 Cal.App.4th 446: There was a lack of substantial evidence to support the conclusion that the impacts to parks would be less than significant. See Town Versus Gown Fight Continues Over State University EIR. NOTE: The Supreme Court granted review in this case.
EIRs: TRAFFIC IMPACTS
City of Hayward v. Board of Trustees of the California State University (2012) 207 Cal.App.4th 446: With respect to traffic impacts, the EIR was a programmatic EIR, and was not required to analyze neighborhood street impacts as that would be analyzed in conjunction with the review and approval of specific projects which would be the basis for more detailed evaluation. A mitigation requirement for a Transportation Demand Management program did not result in deferred mitigation, as the mitigation measure included a required performance standard. See Town Versus Gown Fight Continues Over State University EIR. NOTE: The Supreme Court granted review in this case.
EIRs: WATER SUPPLY ASSESSMENTS
***Preserve Wild Santee v. City of Santee(2012) 210 Cal.App.4th 260: EIR held to be inadequate for (1) failure to explain material distinction between the EIR and the water supply assessment’s water demand numbers, (2) failure to disclose potential uncertainties associated with long term delivery of a firm water supply, (3) failure to assess impacts of groundwater extraction to fill and maintain a 10 acre project lake. See EIR Set Aside For Failure To Explain Discrepancy Between EIR And WSA In Water Demand Number And To Analyze Groundwater Impacts Resulting From Filling A Lake.
EIRs: ECONOMIC INFEASIBILITY
Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603: An EIR is not required to contain an economic infeasibility analysis, even when used as the basis to reject an alternative or mitigation measures. The standard for economic feasibility for a public agency is based upon a “reasonably prudent property owner” standard, not necessarily what the agency or applicant can afford to pay. See EIR Fails For Insufficient Response To One Comment Letter.
EIRs: CUMULATIVE EFFECTS
***Banning Ranch Conservancy v. City of Newport Beach (December 12, 2012) ___ Cal.App.4th ___: Plaintiff contended the cumulative traffic analysis of a proposed public park failed to consider any traffic impacts from an adjacent proposed development (the Banning Ranch project). The appellate court disagreed holding that the final EIR outlined the park access road which was consistent with the general plan and that the general plan EIR had assumed worst-case scenarios (including development on the Banning Ranch property) and analyzed the traffic impacts from the proposed access road as well as the intersection with the West Coast Highway. Plaintiff also argued that the draft EIR analysis for cumulative biological impacts was inadequate because it failed to mention the Banning Ranch project all together. However, the appellate court held that the final EIR reasonably and practically addressed cumulative impacts on biological resources. See Neither A Shared Access Road Nor The Gnatcatcher Stop Sunset Ridge Park Project Under CEQA.
***Preserve Wild Santee v. City of Santee(2012) 210 Cal.App.4th 260: A lead agency properly conditioned a project on meeting or exceeding the requirements for a multi-species conservation plan. The lead agency could reasonable assume that additional future development would comply with the multi-species plan. This evidence supported the conclusion that the project’s cumulative effects were not cumulatively considerable. See EIR Set Aside For Failure To Explain Discrepancy Between EIR And WSA In Water Demand Number And To Analyze Groundwater Impacts Resulting From Filling A Lake.
Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899:
For purposes of analyzing cumulative traffic impacts, the lead agency could rely upon a regional transportation assessment prepared by the COG, and was not confined to using the list method for assessing cumulative effects. The lead agency could, for purposes of cumulative air quality impacts, rely upon its direct impacts as a reflection of cumulative effects in lieu of a quantification of impacts in conjunction with nearby projects. This practice conformed to the Air Maintenance District’s recommendations for CEQA cumulative assessments. The EIR’s treatment of project impacts on global warming and climate change was sufficiently thorough and the conclusion that the impact was “too speculative” to quantify was not an abuse of discretion, recognizing in part that the EIR was certified in July 2008. See Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown.
EIRs: GROWTH-INDUCING IMPACTS
***Banning Ranch Conservancy v. City of Newport Beach (December 12, 2012) ___ Cal.App.4th ___: The EIR for a city-sponsored park project properly concluded that the park project would have no growth-inducing impacts despite the fact that the project would contain an access road linking a proposed separate but adjacent mixed-used development project. See Neither A Shared Access Road Nor The Gnatcatcher Stop Sunset Ridge Park Project Under CEQA.
EIRs: MITIGATION MEASURES AND IMPACT FEES
Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156: A county’s mitigation fee program required the preparation of an EIR prior to its adoption because the evidence in the record did not support a conclusion that payment of the fee presumptively established full mitigation. See Approval of Oak Woodland Management Plan and Mitigation Fee Program Based on a Negative Declaration is Overturned by Third District Appellate.
EIRs: MITIGATION MEASURES AND PUBLIC SAFETY IMPACTS
City of Hayward v. Board of Trustees of the California State University (2012) 207 Cal.App.4th 446: Reviewing a master plan for a state university campus, the appellate court found that substantial evidence supported the conclusion that the construction of an additional fire station would have less than significant impacts. The lead agency was not required to mitigate for the socio-economic impacts such as station staffing. See Town Versus Gown Fight Continues Over State University EIR. NOTE: The Supreme Court granted review in this case.
EIRs: MITIGATION MEASURES AND SPECIES
***Banning Ranch Conservancy v. City of Newport Beach (December 12, 2012) ___ Cal.App.4th ___: Mitigation measures, including no scrub removal during breeding and nesting season and preserving two acres of habitat for every one acre lost, to reduce impacts on habitat for the California gnatcatcher were sufficient for purposes of CEQA. The court noted that “mitigation need not account for every square foot of impacted habitat to be adequate” and that mitigation could be implemented over time. Additionally, the City’s park project site was included in a Natural Communities Conservation Plan/Habitat Conservation Plan area, which sufficed for the mitigation of cumulative biological resources. See Neither A Shared Access Road Nor The Gnatcatcher Stop Sunset Ridge Park Project Under CEQA.
Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899:
Species mitigation measures which call for coordination with USFWS through the Section 10a process was a valid approach for mitigating species impacts. Likewise, a mitigation measure for CNPS listed species considered “rare, threatened, or endangered,” which called for further field assessment and set standards and strategies for mitigation including a monitored success ratio, was acceptable mitigation. Finally, with respect to burrowing owls, pre-grading burrow surveys (with protocols already approved by USFWS and CDFG), and a requirement to generally follow the Western Riverside Multiple Species Habitat Conservation Plan, was sufficient. See Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown.
***Habitat & Watershed Caretakers v. City of Santa Cruz (2012) 211 Cal.App.4th 429:As part of a settlement agreement between the city and the UC Santa Cruz Regents over the North Campus Long Range Development Plan, the City prepared an EIR to support an application to the local agency formation commission (LAFCo) for a sphere of influence amendment and a request for extra-territorial water and sewer service for on-campus housing. Habitat sued claiming violations of CEQA regarding analysis of water supply, watershed resources, biological resources, inadequate mitigation measures, and the failure to provide a reasonable range of alternatives. The trial court denied all claims. The court of appeal upheld the trial court’s determination that the impact analysis and mitigation measures were supported by substantial evidence, but overruled the trial court regarding the alternatives analysis. It reasoned that the city misstated the project objectives by indicating the city was required to provide water and sewer service to North Campus when the settlement agreement only required the city to seek LAFCo approval. The court of appeal held that the misstated project objectives improperly limited the range of potential alternatives that could be considered by LAFCo and vacated the certification of the EIR. It’s unclear at this time whether the city and/or the Regents will appeal the decision.
***Mount Shasta Bioregional Ecology Center v. County of Siskiyou(2012) 210 Cal.App.4th 184: In absence of evidence of other feasible alternatives, an EIR which examines the project and no project alternative may be sufficient. Alternatives considered and rejected early on do not count towards the reasonable range of alternatives. See Co-Gen EIR With Limited Range Of Alternatives Upheld.
City of Maywood v. Los Angeles Unified School District (2012) 208 Cal.App.4th 362:
A lead agency could rely upon DTSC’s clean up requirements as a basis for concluding no impacts from hazardous wastes. An EIR is only required to include a reasonable range of alternatives. It is good CEQA practice to always recite alternatives considered but rejected early on. An EIR can rely upon growth assumptions in its traffic analysis as long as there is substantial evidence in the record to support the assumption. See Appellate Court Re-grades EIR Exam and Gives L.A.U.S.D. High Marks; Assigns More Homework to Address Pedestrian Safety for High School Project.
Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899: When considering a proposal for a 284,000 square foot commercial center, the lead agency properly rejected an alternative which retained the 250,000 square foot Wal-Mart, but eliminated the outparcels. The lead agency found that the smaller project alternative would not meet project objectives of providing a mix of retail and restaurant tenants, thus providing residents with additional shopping and eating options. This finding was supported by substantial evidence in the record. See Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown.
Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296: The Third Appellate District rebuffed Petitioner Lodi First’s contention that an EIR must include alternatives that both satisfy most of the project objectives and reduce significant effects of the project. Focusing on subdivision (a) of CEQA Guidelines section 15126.6 and citing to Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, the court of appeal reiterated the “rule of reason” as a guide to selecting what alternatives should be analyzed in an EIR, and held that despite the fact the revised EIR did not discuss an alternative the would feasibly attain the most basic project objectives and avoid or significantly reduce project impacts to less than significant, the record contained substantial evidence to support the conclusion that a reasonable range of alternatives had been analyzed. See Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around.
Association of Irritated Residents v. California Air Resources Board (2012) 206 Cal.App.4th 1487: The Association of Irritated Residents and several other nonprofit organizations (collectively, “AIR”) filed a petition challenging the California Air Resources Board’s (“CARB”) adoption of the Climate Change Scoping Plan alleging the scoping plan fails to achieve the maximum technologically feasible and cost-effective reductions in greenhouse gas emissions, fails to require emissions reduction measures for significant sources of emissions, fails to include policies to avoid the downsides of other greenhouse gas emission trading programs, fails to address how CARB will monitor and enforce reductions in a regional market, fails to assess the likely impacts of proposed policy choices and regulatory programs, and fails to prevent increases in criteria and toxic co-pollutant emissions. AIR also alleged the related functional equivalent document did not comply with CEQA, including the failure to adequately analyze alternatives to the regional cap-and-trade program included in the scoping plan. Applying a deferential standard of review, the appellate court held there was substantial evidence in the record to uphold CARB’s approval of the Scoping Plan as in compliance with the Global Warming Solutions Act of 2006 (AB 32).
EIRs: RESPONSES TO COMMENTS
Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603: A lead agency has a duty to respond to comments which raise significant environmental issues. The failure to do so can result in setting aside the certification of the EIR. See EIR Fails For Insufficient Response To One Comment Letter.
***Mount Shasta Bioregional Ecology Center v. County of Siskiyou(2012) 210 Cal.App.4th 184: Reports summarized and relied upon in a draft EIR, but then physically attached to the final EIR did not constitute substantial new information necessitating recirculation. See Co-Gen EIR With Limited Range Of Alternatives Upheld.
EIRs: STATEMENT OF OVERRIDING CONSIDERATIONS
Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603: It is acceptable practice for lead agencies to structure statements of overriding considerations in the alternative (as compared to drafting them in the cumulative.) This forces the opponents to argue the insufficiency of each ground, and the evidence in the record to support each finding. See EIR Fails For Insufficient Response To One Comment Letter.
EIRs: SECOND TIER / SUPPLEMENTAL DOCUMENTS
Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156: A county’s approval of a negative declaration for an oak woodlands program and related impact fee was overturned where the program EIR did not adequately study the potential impacts of the oak woodland management plan and fee program because it did not assess how the payment of a mitigation fee would lessen the impacts of development on the county’s oak woodlands. A tiered EIR was required. See Approval of Oak Woodland Management Plan and Mitigation Fee Program Based on a Negative Declaration is Overturned by Third District Appellate.
Abatti v. Imperial Irrigation District (2012) 205 Cal.App.4th 650: The appellate court applied the traditional substantial evidence (not “fair argument”) standard to a CEQA challenge to 2008 minor amendments to a water allocation regulation. Applying CEQA Guidelines section 15162, the lead agency had concluded that no new CEQA document was required. The 2008 regulatory amendments come on the heels of the adoption of policy in 2006 (based upon a negative declaration), and the adoption of complementary regulations in 2007, which also relied upon the 2007 negative declaration. The appellate court affirmed the applicability of Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467. See Court Affirms Use of Substantial Evidence Test in CEQA Challenge to Annual Adjustment in Water Allocation Regulations.
No Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 573: While CEQA provides for an administrative appeal of the certification/approval of CEQA documents, (Public Resources Code section 21151; CEQA Guidelines sections 15090(b), 15356), a local board of supervisors does not have appellate review rights of a landfill permit granted by a local enforcement agency.
Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899:
A citizen group challenging a city’s approval of a Wal-Mart had standing to challenge the city’s approval on the grounds that the citizen group met the public interest exception to the general rule that the petitioner(s) must be beneficially interested in the litigation. See Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown.
LITIGATION: PUBLIC AGENCIES AS PLAINTIFFS
Consolidated Irrigation District v. City of Selma (2012) 204 Cal.App.4th 187: A water district has sufficient statutory interest to bring a CEQA lawsuit challenging assessment of impacts to groundwater basins.
LITIGATION: EXHAUSTION OF ADMINISTRATIVE REMEDIES
***Mount Shasta Bioregional Ecology Center v. County of Siskiyou(2012) 210 Cal.App.4th 184: Lead agencies can adopt rules for the submission of written documentation in advance of a hearing. Comments submitted after the allowed filing date but before the final hearing on appeal were untimely. See Co-Gen EIR With Limited Range Of Alternatives Upheld.
Tomlinson v. County of Alameda(2012) 54 Cal.4th 281: In circumstances in which a county provided a noticed public hearing on a project it deemed to be exempt pursuant to CEQA, it was entitled to assert Public Resources Code section 21177 as defense to a CEQA claim that the exemption was improperly applied. See Supreme Court Says Exhaustion Requirement Applies in CEQA Exemption Suit.
LITIGATION: STATUTES OF LIMITATION
Van De Kamps Coalition v. Board of Trustees of Los Angeles Community College District (2012) 206 Cal.App.4th 1036: Follow-up actions by a school district in leasing out surplus property did not constitute a new project and therefore, did not trigger a new CEQA claim. A writ filed challenging the later actions was properly dismissed as duplicative and barred by the original statute of limitations triggered by the District’s prior approval of an interim use plan. See Court Says No Second Servings in CEQA Case.
Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408: The City of Visalia approved a distribution facility up to 750,000 square feet. The Coalition challenged the city’s use of a CEQA exemption (ministerial approval) as well as the City’s agreement to reimburse the developer for street improvements related to the project. The trial court granted the real party’s demurrer on the basis that the lawsuit was filed more than 35 days after the notice of exemption (NOE) was filed. However, as reflected in the pleadings, City records indicated that the project was approved on November 8, 2010, three days after the NOE was posted. The appellate court held that a notice of exemption filed before a final project approval does not trigger the 35-day statute of limitations contained in Public Resources Code section 21167(d), and thus, the demurrer should not have been granted as the facts, as alleged on the face of the petition, were that the lawsuit was filed within the 180 day CEQA default statute of limitation.
LITIGATION: AUGMENTING THE LITIGATION RECORD
Consolidated Irrigation District v. City of Selma (2012) 204 Cal.App.4th 187: An appellate court reviews a trial court order to augment the record under the traditional appellate substantial evidence test.
Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296: The appellate court found that the trial court erred in excluding 22 emails from the administrative record based on the deliberative process privilege asserted by the city. The court reasoned that the city failed to make the detailed and specific showing required to establish a claim of privilege and never demonstrated that the public’s interest in nondisclosure outweighed the public’s interest in disclosure of the 22 emails. Notwithstanding, the appellate court rejected appellant’s argument that any time one document is erroneously excluded from an administrative record, reversal of project approval is required. See Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around.
Consolidated Irrigation District v. Superior Court of Fresno County (2012) 205 Cal.App.4th 697: Substantial evidence supported a conclusion that a City’s subconsultant files were not considered public agency files under Public Resources Code section 21167.6(e)(10). Additionally, the court held that audio recordings of public meetings were “other written materials” pursuant to Section 21167.6(e)(10) and therefore, should have been included in the administrative record. Finally, documents merely referenced in a comment letter and which were not made readily available to the public agency could not be considered “written evidence submitted” under 21167.6(e)(7), and thus, were properly excluded from the administrative record.
LITIGATION: TOLLING AGREEMENTS
Salmon Protection and Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195: It is not uncommon in CEQA cases for the opponents and the lead agency to extend the statute of limitations through a tolling agreement. The use of such agreements can help facilitate settlement by taking the press of litigation off the front burner. In a case involving the use of a tolling agreement to extend the time lines for a CEQA challenge to a general plan update, a demurrer was sustained to a complaint in intervention brought by property owners potentially affected by the CEQA lawsuit. The complaint alleged that the underlying lawsuit was barred due to the passage of the statute of limitations, and that any extension was contrary to public policy. Relying in part on the policy favoring settlement of litigation, the court of appeal upheld the dismissal of the complaint in intervention. See Tolling Agreement for CEQA Lawsuit Challenging a General Plan Update is Upheld Against Property Owner Challenge.
LITIGATION: PREJUDICE, REMEDIES
***Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184: A mathematical error of 7 percent in calculating emissions was not prejudicial, and could not have “precluded informed decision making or informed public participation.” See Co-Gen EIR With Limited Range Of Alternatives Upheld.
***Preserve Wild Santee v. City of Santee(2012) 210 Cal.App.4th 260: The trial court has the discretion to fashion a CEQA remedy to fit the nature of the violation. A trial court is not compelled to set aside all of the approvals.SeeEIR Set Aside For Failure To Explain Discrepancy Between EIR And WSA In Water Demand Number And To Analyze Groundwater Impacts Resulting From Filling A Lake.
LITIGATION: ATTORNEYS FEES
Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988: In awarding attorneys’ fees under the authority of Code of Civil Procedure section 1021.5, the trial court has the discretion to award fees to an attorney who is also a named petitioner.
If you have any questions about these court decisions, contact William Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine Hart or Glen Hansen. 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.