Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 2nd quarter shown in italics and bold type face.
The pace of published CEQA cases remains relaxed for the first half of 2013. However, five cases are pending at the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees and City of Hayward v. Board of Trustees.)
At what point in time and under what circumstances does agency entanglement with an application jeopardize the later CEQA document? According to a new decision, CEQA does not preclude all agency involvement or that of elected officials.
The facts arise out of the Washington Community Service Center, a neighborhood center in the Western Addition in San Francisco. The Center proposed to demolish its existing 13,745 square foot single story building with a 68,206 square foot mixed use five story project, including 50 residential units. The Planning Department released a draft EIR which included a no project and smaller version of the project. Following a public hearing, the project design was modified to address community comments. Ultimately, the Commission certified the EIR and approved the project. Neighbors appealed. The Board made additional changes, but it too approved the project. The neighbors appealed to the superior court, which ruled in favor of the City. The opponents appealed the adverse trial court decision, and the court of appeal affirmed. The appellate court certified for publication a portion of its decision addressing the argument that the City’s pre-approval application related activities violated CEQA.
CEQA practitioners are well aware of the risks associated with agency commitment to a project in advance of proper CEQA documentation. These risks are highlighted by the California Supreme Court decision in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (discussed in our earlier blogs; For CEQA, Project Commitment Is Still A Question Of Fact and Too Early or Too Late for CEQA Review: Two Appellate Decisions Bracket the Fundamental Question of Timing) but tempered by later decisions such as Cedar Fair L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150 which upheld the practice of negotiating a term sheet at the outset of project processing. In this particular case, the Mayor’s Office of Housing loaned the center approximately $800,000 (approximately 4% of the project development costs) for completing studies necessary for the application and CEQA process. If the city approved the project, the loan would be paid back over time. If the city denied the project, the loan would be due immediately. The documentation provided that there was no commitment to project approval. The court found that there were a number of distinguishing facts from Save Tara, which reflected careful actions by the Mayor’s Office as it provided funds. The opponents also argued that the action of one supervisor to introduce the ordinance necessary to effectuate a project approval was an approval (for CEQA purposes) in and of itself. As the court noted, this was at most the position of one official, not the board of supervisors which as a body, is given the authority to approve ordinances. Finally, the opponents pointed to internal city emails as reflecting improper agency commitment to the project. The court against distinguished the content of these emails from the various affirmative statements highlighted by the California Supreme Court in Save Tara.
Commentary: this case is a worthy reminder to agency staff that “best practices” dictate that what agency staff states publically and in writing, including emails, needs to be carefully considered for its CEQA implications. We recommend that agencies spend time in internal training about communication protocols. We all tend to take these practices for granted, but you can’t. As an agency staffer or consultant to a public entity, if you don’t want your statements quoted in an opposition brief, best to keep those thoughts to yourself.
The other issue not addressed by the court is the question of timing. Pre-commitment cases are brought early in the process, before the EIR is prepared. In this case, the correct timing for litigation purposes would have been immediately following discovery of the loan. By the time the EIR was certified and the project approved, arguably the pre-commitment argument was “too little, too late.” After all, if the court agreed with the opponent’s argument, what kind of relief could the court grant?
The Court of Appeals, First District, affirmed a trial court’s grant of a writ of mandate striking down a notice of exemption pursuant to CEQA Guidelines section 15325, ordering the East Bay Regional Park District (Park District) to prepare an environmental impact report (EIR) for the District’s park project, but declined to order the District to set aside its approval of a resolution of necessity allowing the condemnation of eight acres of Golden Gate’s shoreline property in the East Bay.
Background: Public Resources Code section 5003.03 was enacted in 1992 to require the Park District to provide for a shoreline park and bay trail along the east shore of the San Francisco Bay from the Bay ridge to the Marina Bay Trail in Richmond. Pursuant to this direction, the Park District proceeded to plan the Bay Trail (a 400-mile recreational corridor along the east shore of the San Francisco and San Pablo Bays) as well as the Eastshore Park. The state and the Park District jointly prepared the Eastshore State Park General Plan.
Golden Gate Fields is a former horse racing track, which sits on a portion of 140 acres of land owned by the plaintiff/appellant Golden Gate and located within the cities of Albany and Berkeley, on the east shore of the San Francisco Bay. In 2003, the then-owners of Golden Gate Fields entered into a license agreement with the Park District to allow public use of the property for recreational purposes. The license agreement expired, but Golden Gate refused to enter into another license agreement, although it did permit continued public use of the property. In 2006, the Park District attempted to negotiate a voluntary acquisition of eight acres of Golden Gate’s property. In this vein, the Park District contracted with an engineering firm to prepared plans to identify alternatives to construct a trail and the Eastshore Park on a portion of Golden Gate’s property. The Park District offered Golden Gate approximately $1,686,000 to acquire upwards of eight acres of Golden Gate’s property, but Golden Gate declined the offer.
In 2011, the Park District noticed a public hearing to consider a resolution of necessity to authorize condemnation of the almost eight acres for purposes of acquiring the land and constructing a segment of the Bay Trail and completing the Eastshore Park. The District staff indicated that the adoption of the resolution was exempt from CEQA. Golden Gate objected, arguing an EIR was required. Despite Golden Gate’s objections, the Park District Board adopted the resolution of necessity and directed staff to file and post a notice of exemption pursuant to Section 15325 of the CEQA Guidelines.
Golden Gate challenged the Park District’s notice of exemption and resolution of necessity. (This article addresses only the CEQA challenges presented by the Park District as the court’s discussion of the resolution of necessity is unpublished.) The trial court agreed with Golden Gate that the notice of exemption was improper, and ordered that the portion of the District’s resolution of necessity relating to the notice of exemption be vacated. It also ordered the District to prepare an EIR for the project. Then the trial court held that the Park District could proceed with its eminent domain action based on the resolution of necessity, but that the Park District could not actually acquire the property until it had prepared the EIR.
Golden Gate appealed contending that the trial court should have set the entire resolution of necessity aside and that the prerequisites for eminent domain were not satisfied.
CEQA Exemption Under Section 15325: CEQA Guidelines section 15325 is entitled, “Transfers of ownership of interest in land to preserve existing natural conditions and historical resources.” [Emphasis added.] Subsection (f) of section 15325 allows a CEQA exemption for “acquisition, sale, or other transfer to preserve open space or lands for park purposes.”
In its notice of exemption, the District indicated that the project was exempt because it consisted of the acquisition of land in order to protect open space and future public access to the Eastshore Park and Bay Trail. It further noted that any improvements on the property would be subject to future CEQA review. In its legal briefing, the District argued the notice pertained to only to the acquisition of the property, not the construction of the Bay Trail because the District had not committed itself to a definite course of action to build the Bay Trail.
Both the trial and appellate courts disagreed with the Park District on the grounds that the project entailed not only the acquisition but the improvements to the park and trail. The trial court held that the Park District had committed itself to a definite course of action because it had selected a trail location, designed and obtained cost estimates for the trail, and initiated the condemnation proceedings to accomplish the site acquisition and proceed with improvements.
Court-Ordered Remedies Under CEQA: Court-ordered remedies for CEQA violations are outlined in section 21168.9 of the Public Resources Code. In reviewing whether the trial court properly ordered the Park District to vacate only a portion of the resolution of necessity, the appellate court looked at subsection (a)(1) of section 21168.9, which provides that a trial court may void a determination, finding, or decision by a public agency, in whole or in part. The trial court specifically found that the initiation of the eminent domain proceedings would not prejudice the consideration or implementation of any mitigation measures or alternatives, and further that any eminent domain action was severable from the purchase of the property and design/construction of the park and trail. The appellate court reviewed the trial court’s determination de novo.
Mootness: Notably, by the time this case reached the appellate court, the District had certified an EIR for the project, and adopted a subsequent resolution of necessity for the project. The Park District filed its return to the writ and asked the appellate court to take judicial notice of the EIR and new resolution for purposes of illustrating the CEQA lawsuit was moot. The court of appeal held the CEQA appeal was not moot because the challenge was to the validity of the limited remedy ordered by the trial court, and the appellate court determined it still had the authority to set aside the resolution of necessity if it deemed such action appropriate.
Discussion: According to the appellate court, the issue on appeal was whether an EIR has to be prepared in a case where CEQA and eminent domain law intersect. In upholding the trial court’s remedy in the matter, the appellate court found that the trial court properly concluded there were three different activities which comprised the project, and only the third activity – the park improvements – had not been properly reviewed in accordance with CEQA. The court of appeal also upheld the trial court’s determination that the initiation of the eminent domain action was a severable project activity that would not result in an adverse change to the physical environment and would not prejudice CEQA compliance, so long as the District did not actually acquire the site prior to completing CEQA review. In doing so, the appellate court reasoned that (1) Section 21168.9 does not require that CEQA review be completed prior to consideration of the severance remedy, (2) the project at issue is one for open space preservation and recreational improvements; thus, the equities weigh in favor of allowing the condemnation proceedings to go forward pending preparation of an EIR for the acquisition of the land and the actual park improvements, and (3) the court saw no danger that construction of improvements would begin without the EIR being completed because the trial court specifically ordered that no acquisition be completed prior to CEQA compliance.
Ultimately, the court of appeal held that the trial court properly interpreted Section 21168.9, and did not abuse its discretion in exercising its equitable powers to scope a remedy that allowed the condemnation proceedings to continue while environmental review of the acquisition and improvements to the proposed site was completed pursuant to CEQA.
*Petition for review denied by California Supreme Court on June 26, 2013 (2013, Cal. LEXIS 5484.)
The California Supreme Court granted review in Tuolumne Jobs & Small Business Alliance v. Superior Court, (2013 Cal. LEXIS 1082) 210 Cal.App.4th 1006; Tuolumne County Superior Court; CV56309.) Likely issues to be addressed include (1) Must a city comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter-sponsored initiative pursuant to Elections Code section 9214, subdivision (a)? (2) Is the adoption of an ordinance enacting a voter sponsored initiative under Elections Code section 9214, subdivision (a), a “ministerial project” exempt from CEQA pursuant to Public Resources Code section 21080, subdivision (b)(1)?
Long range, detailed planning got a boost from a recent decision by the appellate court which held that a residential project found by the City to be consistent with a 2002 specific plan was exempt from a later round of CEQA review, as provided for by Government Code section 65457. In 2002, the City of Dublin approved the Eastern Dublin Specific Plan, a plan calling for a high-density mixed use, transit and pedestrian-oriented development. Among other features, the plan allowed up to 2,000,000 square feet in office development, 70,000 square feet of retail and up to 1,500 dwelling units in higher density development. The City certified a program EIR (Guidelines section 15168) at the time of the specific plan approval. The EIR examined a full build out scenario.
Site C within the specific plan called for a maximum of 405 residential units and up to 25,000 square feet of ancillary retail. Developer Avalon Bay submitted proposals in 2007, 2010 and 2011, the final one which included 505 apartment units and eliminated the retail space due to existing unleased commercial space within the overall development. The ground floor residential units were designed to permit conversion to commercial uses at a later date. Avalon Bay’s request included a transfer of 100 residential units from elsewhere within the specific plan area. The planning commission approved the site approvals and recommended approval of a development agreement. Opponents, an unincorporated association and individual within the association and the Carpenters Local Union No. 713, filed an appeal. The city council concurred with the planning commission action, including the determination that no further CEQA required was required. The appellants filed a petition for writ of mandate. The trial court found that there was substantial evidence in the record to support the council’s determination that no further CEQA review was required. On appeal, the appellate court concurred, ruling as follows:
Standard of review: The appellate court ruled that the substantial evidence test, not the fair argument test, would apply to judicial review of a claim of exemption under section 65457.
The project qualified as a residential project: The benefits of section 65457 apply to residential projects. The evidence was that the project was all residential in character, even with the ability of the ground floor residential units to convert in the future. Pursuant to the terms and conditions, conversion later on would necessitate later approvals. Thus, the disputed approval was residential in character and satisfied the residential use test.
Consistency with specific plan: The project met the consistency requirement as well. Despite the appellant’s argument to the contrary, there was nothing that required Site C itself to be a mixed use project: the concept of mixed used applied to the specific plan as a whole, not to each specific parcel. Appellants also argued that the City could not now rely on the previously certified program EIR, and was obligated to provide an updated CEQA assessment. The appellate court rejected this argument as well, saying nothing in the program EIR requirements compelled later environmental review and stated that the requirement for later environmental review would be a function of the thoroughness of the initial program document. The program EIR at issue discharged the CEQA assessment as it applied to Site C.
No changed circumstances: A section 65457 exemption is subject to the changed circumstances limitation embodied in Public Resources Code section 21166. Appellants presented several arguments in support of a changed circumstances finding, all of which were rejected by the appellate court. First, the appellate court found that the density transfer was not a significant change in circumstances as it was allowed by the terms of the specific plan. The second claim of changed circumstances involved greenhouse gases. Appellant’s reliance upon the BAAQMD thresholds of significance adopted in 2010 was “highly questionable” given that a trial court had set them aside pending proper environmental review and that BAAQMD currently advised others not to rely upon those thresholds. However, the fact pattern before the court also fit within that of Citizens of Responsible Equitable Development v. City of San Diego (2011) 196 Cal.App.4th 515, wherein the appellate court concluded that greenhouse gases were not a new issue, and could have raised and litigated when the program EIR was certified. This court reached a similar conclusion. Greenhouse gases were known as potential environmental issues in 2002 and the sufficiency of the CEQA analysis as it applied to greenhouse gases could have been litigated at that time. Thus, this issue did not trigger additional CEQA review under the authority of Public Resources Code section 21166.
The voters within the San Diego Unified School District passed a school bond measure to school facilities upgrades. The school board voted to use bond proceeds to install field lighting at Hoover High School. Neighbors, concerned with the increased traffic and parking conflicts resulting from nighttime events filed suit challenging the approval as an unauthorized use of bond proceeds and for improper reliance upon a negative declaration, among other claims. The trial court ruled for the District, and the neighbors (“Taxpayers”) appealed. The court of appeal reversed on the bond authorization claim, and reversed in part on the CEQA claim.
ENVIRONMENTAL IMPACT REPORTS
Famous for its bird sitings (http://www.audublog.org/?p=4155), Panoche Valley sits nestled between Interstate 5 and Highway 101 (http://www.cosb.us/Solargen/). Few Californians have passed through this quiet terrain, and but for this court decision, would not know that this valley exists. Besides its limited number of residents and great diversity in bird species, Panoche Valley is also notable in that (1) it is exposed to high levels of solar radiation, and (2) it is bisected by a 230 kV transmission line. Just as no-good-deed-goes-unpunished, neither do conflicting environmental values resolve themselves without a CEQA lawsuit.
The Panoche Valley solar panel project involves approximately 5,000 acres, much of it covered by Williamson Act contracts. The project consists of panels necessary for a 420 megawatt facility, along with related improvements necessary to tie into California’s transmission grid. Originally, the developer sought a finding that the solar facility was consistent with the Williamson Act contracts, but later dropped that strategy to seek contract cancellation. As one would anticipate for a large project in an environmentally sensitive area, agencies and the public commented on the species impact analysis. After certification of the EIR, the Board of Supervisors cancelled the Williamson Act contracts and approved the project. Opponents sued, and the trial court ruled for the county and applicant. The opponents appealed. Addressing both EIR and Williamson Act issues, the court of appeal affirmed the lower court decision.
CEQA Alternatives. Opponents challenged the County’s determination that the Westlands CREZ, a potential solar site located nearby in Fresno and Kings counties to be an infeasible alternative. The county found the CREZ to be infeasible on multiple grounds including that fact that it was located outside of San Benito County, a relevant consideration in the assessment of the court of appeal. As the Board found that each basis for infeasibility stood on its own and operated independently from the others (as it also did for the statement of overriding considerations,) the opponents had to demonstrate that there was a lack of substantial evidence on each stated ground, a burden that they failed to overcome.
Species Impacts. With respect to the Blunt-nosed Leopard Lizard, the appellate court upheld the EIR’s requirement of a later protocol level survey to be conducted prior to commencement of construction, and where discovered, a minimum 22 acre buffer zone for each lizard. In response to claims of deferred mitigation, the appellate court found the EIR contained the requisite performance standards (blunt nosed leopard lizard, nest birds, San Joaquin coachwhip, coast horned lizard, kangaroo rate, San Joaquin pocket mouse and Tulare grasshopper mouse) necessary to satisfy CEQA’s standards for deferred mitigation. The opponents also challenged the mitigation ratios, but the appellate court held that CEQA did not require acre-for acre mitigation, only mitigation to a less than significant level. Substantial evidence in the record supported the Board of Supervisors’ findings in that regard.
Agricultural Lands Mitigation. The EIR required conservation easements and restoration of the site to its original condition at the conclusion of the project was sufficient to reduce impacts to lands. Notwithstanding the opponents’ claim, CEQA did not require the applicant to create additional agricultural lands such that there would be a net-zero effect.
Findings and Statement of Overriding Considerations. The opponents challenged the timing of the statement of overriding considerations, which occurred on the same date as the contract cancellation but in advance of final approval. The appellate court found no error as the cancellation of the contracts constituted a form of project approval. As against a general attack there was a lack of substantial evidence in support of the project findings, the court found sufficient substantial evidence in the record. The fact that there was conflicting evidence in the record did not negate the substantial evidence in support of the Board’s conclusions.
Williamson Act: Although cancellation of Williamson Act contracts is disfavored, contracts can be cancelled if the approving agency makes certain findings, which include that “other public concerns substantially outweigh the objectives of this chapter, (and) there is no proximate non contracted land which is both available and suitable for the use to which it is proposed the contracted land be put….”. Government Code section 51282. The administrative record included relevant discussions of the legislative push to expand renewable energy sources, making up California’s energy portfolio, as well as an analysis of the relative role of the contracted land as a percentage of San Benito County and statewide Williamson Act lands. This satisfied the first prong of the test for cancellation. The record also contained substantial evidence as to the availability (in actuality, the lack of availability) of the Westlands CREZ site. This evidence supported the second prong of the test necessary for a contract cancellation that there was no proximate non contracted land available for the proposed use. As the appellate court observed, it was not tasked “with weighing the pros and cons of cancelling the Williamson Act contracts”. That responsibility belonged to the Board of Supervisors. Having found substantial evidence to support the required findings, the appellate court was satisfied.
Comment: The solar project in Panoche Valley is an outgrowth of the legislative mandate to increase the mix of renewable energy sources in California’s generation portfolio. As with other renewable energy projects proposed in recent years, this is a positive step towards achieving California’s objective of reducing impacts to climate change, unless apparently the proposed project is to be located within the boundaries of California. When that happens, the state strategy defaults to “let’s do the right thing, but let’s hang our dirty laundry elsewhere” philosophy in environmental policy advancement. The blame lies not with the various interest groups who participate in the debate, but with the State Capitol. California lacks an institutional mechanism by which conflicting policy objectives can be resolved. Right now, every regulator and every interest group is out to defend their own turf without regard for any other policy considerations and the state only makes progress through the default of what is the least objectionable, not what is best. The war of policy attrition will continue until the Legislature and the Governor step up, provide leadership, and make hard choices. Good luck with that.
The Marin Municipal Water District (District) proposed to construct a desalination plant in Marin County, and certified an environmental impact report (EIR) for the project. The North Coast Rivers Alliance (Alliance) challenged the EIR on the grounds that the EIR failed to properly analyze various impact categories, including aesthetics, land use and planning, seismology, hydrology and water quality, biological resources, and greenhouse gases. The Alliance further claimed that a number of mitigation measures were improperly deferred, and that a feasible green energy alternative was not considered in violation of CEQA. The trial court granted the writ, but on appeal, the Court of Appeal, First Appellate District, reversed and ordered the trial court to issue a new judgment denying the writ petition.
Troesh Materials, Inc. submitted an application to the County of Santa Barbara (“County”) to operate a new mine within the dry bed of the Cuyama River. The mine would be positioned away from the active streambed, and roughly 1500 feet upstream from an existing, active mine. Potential excavation could proceed to a maximum depth of 90 feet, with an average production of 500,000 cubic yards per year. Petitioner filed a CEQA petition for writ of mandate which was denied by the trial court. The ensuing appeal involved two topical areas: hydrological and water resource (supply/quality) impacts.
Threshold of Significance: The appellate court upheld the County’s use of a threshold of significance specific to this proposed project. The County was not compelled to use CEQA’s Appendix G thresholds, nor was it obligated to explain why it elected to not use Appendix G thresholds, or to formally adopt the alternative threshold.
Impact Analysis: Addressing appellant’s challenge to the impact conclusions, the appellate court applied the substantial evidence test and concluded that ample evidence (based in part on the evidence and experience acquired from the existing mine located 1500 feet away), that there would be insignificant impacts resulting from headcutting or scouring. Appellants also criticized the EIR’s suggestion of no impacts, then the addition of a proposed mitigation measure, arguing internal inconsistency. The EIR acknowledged that there was some uncertainty in the impact analysis, thus, the appellate court found no inconsistency in the use of backstopping mitigation, but simply a conservative CEQA assessment.
The appellate court then assessed the challenge to one of the mitigation measures. The dispute centered on a mitigation measure responsive to potential hydrology impacts. Despite the EIR’s analysis that the impacts would be not be significant, the EIR also recognized the potential for uncertainty, and on that basis, included a mitigation measure, and with that measure, concluded that there would be a less than significant impact. This measure required semi-annual surveys up and downstream be submitted to the State’s Office of Mine Reclamation (“OMR”), the County’s Planning and Development Department, and the County’s Flood Control District as part of OMR’s SMARA compliance review. The purpose of this review would be to “confer with the County agencies to modify the mining pit layout, width and/or depth to avoid these impacts” should those be detected as part of the review. Although this requirement lacked the detail typically sought in performance based mitigation, the appellate court concluded that as this mitigation requirement was part of the EIR’s discussion of hydrologic impacts, the court could rely upon that analysis to establish a context for understanding the mitigation requirement. In other words, the discussion within the EIR provided the missing framework and context to shore up the mitigation requirement. Accordingly, the appellate court rejected appellant’s arguments that mitigation lacked the required performance standards to avoid a challenge of deferred mitigation.
The CEQA Error Was Not Prejudicial: The final matters of concern involved water supply and water quality. Appellant claimed that it was error for the lead agency to use the same threshold of significance for both direct and cumulative water supply impact, further arguing that the cumulative effects had been ignored. The appellate court disagreed, concluding that the standard that was used satisfied the required cumulative analysis, and despite the failure to look at non-cumulative effects, the error was rectified by the more rigorous cumulative impact analysis. The appellate court did agree with the appellant that insufficient evidence supported the conclusion of no impact to groundwater, given that the EIR contained potentially conflicting data as to groundwater levels. The County had required compliance with a mitigation measure designed to protect groundwater contamination by requiring a six foot separation between depth of excavation and groundwater, the effectiveness of this strategy which was uncontested. However, in this particular situation, the appellant could not show that the EIR’s unsubstantiated conclusion regarding no impact resulted in prejudicial error. Accordingly, the petition for writ of mandate was properly denied.
In Citizens for Ceres, the Fifth Appellate District considered an appeal from the trial court’s order denying the Citizens’ motion to augment the administrative record with various communications and documents excluded by the City. In overruling the trial court’s order, the Court of Appeal held that while Public Resources Code section 21167.6(e)(10) does not abrogate the attorney-client and attorney work-product privileges, “the common interest privilege does not protect otherwise privileged communications disclosed by the developer to the city or by the city to the developer prior to project approval.” Such a ruling conflicts with the implied holding of the California Oak Foundation v. County of Tehama (2009) 174 Cal.App.4th1217 (California Oak) ruling on this issue.
Background Facts: The Citizens for Ceres case arose out of the City of Ceres’ (City) approval of a 300,000 square foot shopping center with a 200,000 square foot Wal-Mart store. The City certified an environmental impact report (EIR) and approved the project in September 2011. Petitioners, the Citizens for Ceres (Citizens), challenged the City’s certification and approval of the project under the California Environmental Quality Act (CEQA).
In the course of the preparation of the administrative record, the Citizens discovered the proposed record contained no emails or internal memoranda. Despite Citizens’ concerns regarding the dearth of emails and internal memoranda in the proposed administrative record, the City certified and lodged the record. The Citizens filed a motion to augment the record with emails and internal memoranda, which motion the City opposed on the grounds that such documents were attorney-client, work product privileged subject to the common interest doctrine. The City also prepared a privilege log of the withheld communications, along with four declarations supporting the confidentiality of the documents. The trial court denied the Citizens’ motion to augment the record, which the Citizens now appeal.
In overruling the trial court’s order denying the Citizens’ motion to augment the administrative record, the appellate court noted that the privilege log prepared by the City was unclear as to who the parties listed on the documents were (i.e., whether they were attorneys) and what privileges or protections applied to keep each of the documents from being disclosed. The court of appeal also noted that with the exception of four documents, the declarations did not state the declarants’ personal knowledge that any of the documents were communications made in the course of the attorney-client relationship or were the work product of an attorney.
Discussion: The first issue addressed by the appellate court was whether CEQA abrogates all privileges generally. The court concluded CEQA does not abrogate all privileges generally because the phrase “notwithstanding any other law” at the beginning of section 21167.6 did not apply to subsection (e) thereof. The court of appeal reasoned that if the Legislature intended to abolish the attorney-client and work product privileges for purposes of compiling CEQA records, it would have stated that intention clearly, which it did not.
Next, the court addressed whether the common-interest doctrine protected communications between the City and the developer pre-project approval. In holding, the common interest doctrine does not protect such communications prior to project approval, the court of appeal stated that the doctrine extends to communications protected by the attorney-client privilege or the work product doctrine only where the disclosure is necessary to accomplish the purpose for which the legal advice was sought” and that the “doctrine is not an independent privilege but a doctrine specifying circumstances under which disclosure to a third party does not waive privileges.” In citing OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874, the Fifth Appellate District noted that “for the common interest doctrine to attach, most courts seem to insist that the two parties have in common an interest in securing legal advice related to the same matter –and the communications be made to advanced their shared interest in securing legal advice on that common matter.” (Id. at p. 891.) The court reasoned that the city and the applicant/developer had no common interest because “the developer ha[d] no interest in the development of an environmental document that does not support the developer’s proposal.” Additionally, the court reasoned that “the agency cannot have an interest, prior to project approval, in producing a legally defensible EIR or other environmental document that supports the applicant’s proposal. At the same time, of course, the applicant’s primarily interest in the environmental review process is in having the agency produce a favorable EIR that will pass legal muster. These interests are fundamentally at odds.”
Citing the California Oak case, the City and applicant argued that the communications between them pre-project approval were privileged because they had a common interest in not only defending, but producing, a legally defensible EIR. The Fifth Appellate District disagreed and declined to follow California Oak.
Commentary: Because the Fifth Appellate District has explicitly disagreed with and declined to follow the Third Appellate District’s ruling on the issue of common interest doctrine as outlined in the California Oak case, there is now a very clear split among the appellate districts. Hopefully, the City and/or Walmart will petition the California Supreme Court for review of this issue so lead agencies can obtain clear guidance on whether the common interest doctrine truly only attaches post-project approval as the Fifth Appellate District now suggests.
Despite the ruling issued by the Third Appellate District in the California Oak case, some public agency lawyers have remained skeptical about the protection afforded by the common interest doctrine and have taken the conservative approach, advising their clients that anything written in an email and/or memorandum is subject to inclusion in the administrative record. Until we get some clarification on whether the common interest doctrine is truly inapplicable pre-project approval, as I have always cautioned both my lead agency and developer clients alike, if you don’t want to see an email between the applicant’s counsel and the agency’s counsel in the administrative record … DON’T WRITE IT! Instead, as Bill Abbott has always advised, “Pick up the damn phone.”
Fundamentally, this issue may all be much ado about nothing. Specifically, regardless of whether an email between the agency and developer’s counsel call out a deferred mitigation measure or identifies an additional alternative that should have been analyzed, presumably, the agency has addressed the issue(s) in either a recirculated draft EIR or the final EIR and the disclosure of such an email will not result in anything other than a little extra briefing to explain to a court that the issues was properly resolved in accordance with CEQA.
The Third District Appellate Court held that California Code of Civil Procedure section 473 does not provide relief from a petitioner’s mistake that resulted in the late filing of a CEQA petition. While the provisions of section 473 are to be liberally construed, the statute cannot be construed to offer relief from mandatory deadlines deemed jurisdictional in nature such as Public Resources Code section 21167.
In 2008, Bohemia Properties, LLC submitted an application to the County of Placer (County) for the development of a 155,000-square foot building. The County required that an environmental impact report (EIR) be prepared for the project. After the requisite hearings, the Planning Commission certified the EIR and approved the project in July 2010. Alliance filed an appeal to the Board of Supervisors, which was heard on September 28, 2010. The Board denied the appeal and again certified the EIR and approved the project. The County timely filed and posted a notice of determination on September 29, 2010.
Pursuant to Public Resources Code section 21167(c), an action to set aside an EIR must be filed within 30 days from the date of the filing of the notice of determination. In this case, the Alliance was required to file its CEQA petition on or before October 29, 2010. However, Alliance did not file its petition until three days later on November 1, 2010.
Bohemia filed a demurrer to the petition, alleging the petition was not timely filed. Alliance filed a motion for relief under CCP section 473, as well as an opposition to the demurrer, on the grounds that the late filing resulted from a “miscommunication with the attorney service as to the deadline for receipt of the Writ.” The trial court sustained Bohemia’s demurrer without leave to amend and denied Alliance’s motion for relief on the grounds of mistake and excusable neglect on the grounds that the 30-day statute of limitations contained in Public Resources Code section 21167 is mandatory and does not provide for an extension of time to file a petition based on a showing of good cause.
In interpreting CCP section 473, the appellate court looked to the California Supreme Court case of Maynard v. Brandon (2005) 36 Cal.4th 364 (Maynard). In Maynard, the Supreme Court considered whether relief under section 473 was available for a party who failed to comply with the 30-day statute of limitations in the Mandatory Free Arbitration Act. The Court held that it did not, noting that section 473 provides relief only for procedural errors (i.e., untimely demands for expert witness disclosures, etc.). The appellate court also looked to Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, wherein the court held that section 473 could not operate to provide relief for the late filing of a petition for writ of mandate to review an administrative decision on the basis that statute of limitations are not flexible in nature, but are firmly fixed, unless the legislature expressly provides for an extension based on a showing of good cause.
The court of appeal in this case noted that while the provisions of section 473 are to be liberally construed generally, and further, that CEQA should be broadly interpreted to protect the environment, CEQA also clearly requires prompt resolution of lawsuits claiming violations of it. Alliance argued that other courts have required relief to CEQA’s 30-day statute of limitations, but the court distinguished each case Alliance offered in support of its argument and specifically noted that none of the cases proffered by Alliance related to section 21167.
Moral: If you are a petitioner and you are going to file a petition for writ of mandate to challenge an agency’s actions under CEQA – whether that challenge is procedural or substantive in nature – compliance with the statutes of limitations under Public Resources Code section 21167 are mandatory. CEQA provides three distinct statutes of limitations - a 30-day, 35-day, and 180-day statute of limitations - depending on the specifics of the CEQA challenge and whether a notice of exemption or notice of determination was properly filed and posted. Strict compliance is required as failure to timely file a petition for writ of mandate pursuant to CEQA will not be excused.
CEQA reform is on the move in the legislature this year. The primary vehicle is Senate Bill 731, by the pro tem, Darrell Steinberg. Whether reform will be cosmetic or substantive remains to be seen.
If you have any questions about these court decisions, contact William Abbott, Diane Kindermann, 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.