October 2015

Join William Abbott of Abbott & Kindermann, LLP in a class which ties together best practices for land development projects. This is an advanced class aimed primarily at project managers, engineers, and development consultants. This intense, three hour class interprets and applies:

  • CEQA
  • Permit Streamlining Act
  • Subdivision Map Act
  • Clean Water Act
  • Endangered Species Act
  • Updating Existing Entitlements                                                        

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Cost $85.00 

Locations and Times

Roseville – November 5, 2015, 8:30-11:30 a.m. (To Register for the Roseville Location Click Here)

Holiday Inn Express – Roseville, 1398 E. Roseville Pkwy., Roseville, CA 95661                                                                                                  

Fairfield – November 17, 2015, 8:30-11:30 a.m. (To Register for the Fairfield Location Click Here)

Hilton Garden Inn – Fairfield, 2200 Gateway Court, Fairfield, CA 94533

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

Welcome to Abbott & Kindermann’s 2015 3rd Quarter 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 3 and are denoted by bold italic fonts.

1.              2014 CEQA UPDATE 

To read the 2014 cumulative CEQA review, click here

2.              CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 9 CEQA cases pending at the California Supreme Court. As of the publication date, two cases (Center for Biological Diversity v. Department of Fish & Wildlife and California Building Industry Assn. v. Bay Area Air Quality Management Dist.) have been argued. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Friends of the Santa Clara River v. County of Los Angeles, S226749.(B256125; nonpublished opinion; Los Angeles County Superior Court; BS136549, BS138001.)

Petition for review granted. Further action stayed pending disposition of Center for Biological Diversity v. California Department of Fish and Wildlife.

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?

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? 

Center for Biological Diversity v. Department of Fish & Wildlife, S217763. (B245131; 224 Cal.App.4th 1105; Los Angeles County Superior Court; BS131347.) 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) Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of "fully protected" species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report? (3) May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher "business as usual" baseline? 

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.)

Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn., S218240 (C070836; depublished opinion, Sacramento County Superior Court; No. 34-2011-80000902CUWMGDS). Petition for review granted. Further action stayed pending disposition of Berkeley Hillside Preservation.

Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. (A135892; nonpublished opinion; San Mateo County Superior Court; CIV508656.) Petition for review after the court of appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385)? Or, is the agency’s decision subject to a threshold determination of whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. (A135335, A136212; 218 Cal.App.4th 1171; Alameda County Superior Court; RG10548693.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. The court limited review to the following issue: Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

3.         EXEMPTIONS

Defend Our Waterfront v. California State Lands Commission (September 17, 2015, A141696, A141697) ___ Cal.App.4th ___.

The appellate court upheld the lower court’s ruling that found the State Lands Commission (“SLC”) violated CEQA when it approved a land exchange with the City of San Francisco involving a waterfront parcel of land near the S.F. Ferry Building as exempt under CEQA Guidelines section 15282(f) (State Land Commission exchanges and leases related to settlement of title and boundary problems). The appellate court first dismissed the SLC’s claims that petitioner failed to exhaust its administrative remedies, despite petitioner’s attendance at the hearing and access to a staff report that indicated the SLC intended to find the land exchange exempt from CEQA. It reasoned that because the SLC failed to meet the minimum requirements for adequate notice under Government Code section 11125(a), the SLC’s exhaustion defense was precluded under Public Resources Code section 21177(e). The appellate court then moved to the validity of the SLC’s use of the CEQA exemption and held that the land exchange with the City did not meet the limited circumstances covered by the exemption.  It reasoned that the exemption includes only circumstances where the SLC exchanges property as part of a settlement in order to resolve an actual dispute over title or boundaries, not merely to remove an impediment to development of a site that “is undoubtedly a ‘problem’ for the City….”

Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128.

CEQA is an evidence based statute, including the use of exemptions. The Barstow Unified School District Board of Education (Board) faced declining enrollments, leading the District board to consider closing existing schools and transferring the students to existing facilities. Section 21080.18 of the Public Resources Code (and the companion Guideline provision section 15314) allows for the use of an exemption in specified circumstances. An exemption is appropriate as long as the effect on the receiving school sites is the lesser of (a) increase in student population over 25% over existing capacity or (b) ten classrooms. When the District decided to close two schools, the District allowed the affected parents the choice as to which school site the relocated students would attend. The District did not set a cap on the number of the transferring students. following the decision to close the school, parents sued.

The trial court denied relief, but the appellate court reversed. On appeal, the court found that there was an evidentiary gap in the record. The District failed to determine the existing physical capacity of the schools (this being a crucial fact in the exemption determination from the appellate court’s perspective) and as a result, the District did not appropriately utilize the exemption. The impact of this lack of information was compounded by the District’s action to allow the parents to pick any school to send their children to. Notwithstanding the error, the District went on to argue that the matter was moot as the schools were closed. Not necessarily so from the court’s perspective. A writ would issue directing the District to set aside its decision and reconsider the exemption. If the District was unable to determine if an exemption applied, then the trial court could order the schools re-opened or mitigation applied to the impacted schools.

Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.

In a lengthy decision, the California Supreme Court addressed the standard of review on exemptions and whether or not unusual circumstances apply. Two of the sitting justices are no longer on the court, and with new justices to be confirmed, the continuing longevity of the decision is the subject of speculation. The case involves the use of an exemption by the City of Berkeley to approve discretionary permits for the construction of a single family home on a steep hillside. The City treated the proposal as exempt, and the neighbors claimed that unusual circumstances applied which defeated the use of the exemption. Distilled down, the high court held: (1) evidence of a potentially significant impact does not by itself defeat the use an exemption; (2) that the deferential substantial evidence applies to the use of an exemption; and (3) the Fair Argument test applies to whether or not unusual circumstances exist which defeat the use of an exemption. The lead agency may appropriately look at the neighborhood to determine unusual circumstances. The court upheld the lead agency’s rejection of opponent’s testimony on the basis that it involved speculation as to how the home would be constructed. As the court of appeal had only addressed one challenge to the use of the exemption, the case was remanded below for application of the correct standard of review to the evidence, and for consideration of all of the objections to the use of the exemption. All told, the decision provides greater comfort to the use of exemptions. 

CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488.

Following an emergency, a lead agency can reset the existing conditions “baseline” to the post-emergency repair condition in circumstances in which the lead agency had long considered undertaking the full project (pre-emergency and post-emergency work). In this case, once the emergency took place, the follow-up repair work was exempt and was not required to be factored in the scope of the “project.” Substantial evidence supported the lead agency’s use of the common sense exemption for the post-emergency repair work, and there was no substantial evidence in the record to support the application of the unusual circumstances limitation on the use of the exemption.

4.         NEGATIVE DECLARATIONS

Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714.

The Fair Argument standard remains as the operative benchmark in assessing the validity of a negative declaration. The most recent decision involves approval by Santa Clara County of a wedding site venue located off of Summit Road, a state maintained facility in rural Santa Clara County. Existing uses on the property included a winery, llama and alpaca grazing lands, barns and a residence. Adjacent properties include parkland owned by an open space district (with restricted access) and homes. In a not uncommon fact pattern, the property owner began hosting wedding events, some of which had up to 300 guests. Following complaints and direction from the County, the applicant filed for a use permit seeking 28 special events for up to 100 guests and 12 staff, during the hours of 2:00 p.m. to 10:00 p.m. The County studied the project for three years before issuing a mitigated negative declaration (MND). After taking testimony, the Planning Commission approved a revised MND in December 2011. The neighbors appealed to the Board of Supervisors who denied the appeal, affirming the MND and conditional use permit. Conditions of approval included the following limitations: only one outdoor live event (to be monitored) and the orientation of speakers away from existing homes towards the open space preserve with specific placement approved by the planning department based upon a review by a noise consultant. CEQA litigation followed. The trial court found that an EIR was required due to potential noise and traffic impacts, declining to rule on the alleged violations of planning and zoning law deeming them moot. The court also awarded the petitioner attorneys’ fees of $145,747, but declined to enhance the award as requested by the petitioner. Petitioner and real party in interest both appealed. The County did not. 

The appellate decision as always turned on the evidence in the administrative record, and whether or not there was substantial evidence in the record to support the fair argument standard. Turning first to noise, the County relied upon its General Plan and noise ordinance as defining the relevant threshold of significance, but the appellate court agreed that CEQA analysis is not confined to the question of conformity to adopted general plan and noise ordinances, but that a broader inquiry was appropriate. The evidence in the record on noise was extensive. It included the applicant’s study, a peer review conducted by the County, the petitioner’s consultant’s critique of the peer review of the noise study, as well as neighbor testimony regarding noise levels associated with actual events and those undertaken by the County’s consultant conducting a mock event. The evidence from neighbors was that sound experienced by a wedding event, with the speaker placement as contemplated by the conditions of approval (DJ speaker orientation away from the homes) could still be heard by the neighbors. As to a live band, the County’s consultant concluded that a live band could be 10 db louder than DJ-generated music, leaving no room to argue a lack of substantial evidence given the court’s conclusions regarding DJ generated sound levels. Regarding crowd generated noise, neighbor testimony again carried the day in terms of substantial evidence of a fair argument (the court again concluding that reliance on the general plan and noise standard was not dispositive). There was also evidence of noise impacts to wildlife in the adjacent open space preserve. As to the impacts to potential future users of the park, there was insufficient evidence of potential impacts as future use was hypothetical and CEQA is concerned with existing physical conditions.

Turning next to traffic impacts, the court also found substantial evidence of potential impacts given the narrow road width and blind curves, as documented by the neighbors and the opponent’s consultant. The traffic studies indicated a substantial increase in traffic levels, increasing the risk. Evidence from Caltrans indicated that the accident history in the vicinity of the project was twice the statewide average. This evidence was sufficient to meet the Fair Argument standard.

5.         ENVIRONMENTAL IMPACT REPORTS

City of San Diego v. Board of Trustees of the California State University (2015) 61 Cal.4th 945.

A state university’s obligation to mitigate for offsite impacts is not limited to mitigation authorized by specific legislative appropriation. In its most recent CEQA decision, the Supreme Court clarified its prior language in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 was dictum, that is a statement of principle not necessary to the resolution of the earlier decision. The Marina language in dispute read as follows: “[A] state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” In a challenge to expansion plans for CSU San Diego, the California Supreme Court concluded that there was nothing in the Marina opinion to support the interpretation that legislative funding was a condition precedent to offsite mitigation. No other state agencies apparently took a similar position, and there was nothing in the Education Code which would support a special rule for the state university system. The Supreme Court noted the consequences of the University’s position: if the University was excluded from mitigation, impacted communities would not be able to shift the funding shortfall to other parties due to requirements of nexus the Mitigation Fee Act. After concluding that the University must re-analyze strategies for mitigating impacts, including how it discharged its core educational function, the Court concluded by underscoring the University’s duty to include all feasible mitigation.

City of Irvine v. County of Orange (2015) 238 Cal.App.4th 526.

The county chose to prepare a supplemental EIR (“SEIR”) over a subsequent EIR for a proposed jail expansion project, because it had previously prepared an EIR for a similar jail expansion project in 1996 that was never completed due to funding issues. The city challenged the SEIR arguing the county: (1) inappropriately used a supplemental EIR for the project; (2) prepared inadequate responses to comments; (3) failed to adequately analyze impacts on local traffic; and (4) failed to demonstrate why loss of agricultural land could not be mitigated. The trial court ruled against the city on all claims and the city appealed. The appellate court upheld the trial court ruling finding that: (1) the county had the discretion to prepare either a supplemental or subsequent EIR under CEQA Guidelines section 15163, and that the test was whether the substantive environmental analysis was adequate, not its title; (2) the responses were adequate, because most comments were merely “interrogatory” in nature and failed to raise “significant environmental issues,” while other comments were vague or essentially asked for more data making the responses reasonable in light of the comment; (3) the traffic analysis was consistent with the standard outlined in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, (2013) 57 Cal. 4th 439, requiring analysis of current conditions as well as future conditions, because it used both an existing baseline only two years later than the 2012 SEIR adoption and a 2030 project completion analysis; and (4) the high-cost of land in the county undermined the viability of a conservation easement program, a Transfer of Development Rights program was untenable since fallow landholdings in the County are shrinking, and a Right-to-Farm ordinance was meaningless when landowners in the county don’t even want to farm.

Charles Conway Jr. v. State Water Resources Control Board (2015) 235 Cal.App.4th671.

Functionally equivalent CEQA documents can be tiered similar to the environmental impact report. In this case, the appellate court upheld the Regional Board’s preparation of a functional equivalent document for the TMDL on lake sediment in McGrath Lake. The appellate court held that only a first-tier analysis was necessary for the TMDL because a TMDL merely identifies goals for levels of one or more pollutants in a water body and does not, by itself, preclude or require any actions. In rejecting the appellants arguments that the functional equivalent documents failed to analyze the environmental and economic impacts associated with dredging, the court noted that the Basin Plan Amendment (BPA) specifically calls for the cooperation of various landowners and the Regional Board in negotiating and executing a memorandum of agreement on how the TMDL for lake sediment should be implemented.  Specifically, the court held that, “Until such a plan is formulated, a full environmental analysis of any particular method of remediation is premature.”

Saltonstall v. City of Sacramento (2015) 234 Cal.App.4th 549 (Saltonstall II).

In a challenge to the EIR for a downtown entertainment and sports arena, the court of appeal affirmed the adequacy of the EIR. In terms of CEQA timing, the city had the discretion to enter into a non-binding term sheet with the developer and engage in eminent domain proceedings. The EIR included a reasonable range of alternatives and the lead agency was not required to evaluate a remodeling of the existing facility as sufficient evidence supported conclusions of infeasibility and lack of meeting city objectives. Applying the substantial evidence standard of review, the trial court and court of appeal deferred to the lead agency on traffic impacts of state highways. The court went on to hold that crowd violence was not a CEQA issue. Finally, appellants failed to perfect claims on appeal under the Public Records Act as to emails which should have been included in the administrative record.

Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234 Cal.App.4th 214. 

The California Department of Fish and Wildlife’s program environmental impact report that analyzed its statutorily mandated fish hatchery and stocking enterprise’s impacts on a statewide basis complied with the California Environmental Quality Act where: (1) it contained a sufficient level of analysis; (2) it did not impermissibly defer formulation of mitigation measures; (3) it considered a reasonable range of alternative projects; and (4) the Department properly used the existing hatchery and stocking practice as its environmental baseline. The mitigation measures adopted by the Department on private fish vendors were underground regulations that violated the Administrative Procedure Act (APA), Gov. Code, § 11340 et seq., as they imposed qualification requirements and monitoring and reporting obligations on the vendors without complying with the APA’s notice and hearing procedures.

6.         LITIGATION

Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (2015) 238 Cal.App.4th 513.

The City of Yucaipa approved a 613,000 square foot shopping center on a 60-acre site for a new Target store and other new commercial uses. The petitioner filed suit arguing the city’s EIR violated CEQA and the trial court ruled in favor of the city. Petitioner appealed, but prior to Target filing its response brief, the city and Target moved for dismissal on mootness grounds. Target had been in a separate contract action with the landowner which had led to Target abandoning the project and the city revoking the entitlements for the project. Petitioner moved for attorney’s fees under Code of Civil Procedure section 1021.5, but the trial court rejected them finding that the litigation was not a catalyst for project abandonment. The appellate court upheld the trial court’s determination, reasoning that merely filing an appeal after losing at the trial court provided insufficient reason to overturn the trial court’s determination that the CEQA suit was not a catalyst to the ultimate revocation of the entitlements.

Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179.

The Court of Appeal for the Fourth Appellate District held that a petitioner failed to show that a trial court abused its discretion when it awarded petitioner $19,176 in attorneys’ fees under Code of Civil Procedure section 1021.5 despite  petitioner’s request for $231,098, for the following reasons:  (1) The extent of a party’s success is a key factor in determining the reasonable amount of attorney fees to be awarded, and here the petitioner prevailed on only one of its numerous claims under CEQA and local zoning ordinances;  (2) petitioner excessively billed the case, such as expenditure of 40 hours to prepare a reply brief that  was only 14 pages long and reiterating arguments made in the opening brief and billing partner rates for essentially clerical work; and (3) petitioner provided no reasonable explanation as to why it was entitled to Los Angeles attorney fee rates in a case in San Bernardino County. 

If you have any questions about these court decisions, contact William Abbott or Diane Kindermann. 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.

Join William Abbott of Abbott & Kindermann, LLP in a class which ties together best practices for land development projects. This is an advanced class aimed primarily at project managers, engineers, and development consultants. This intense, three hour class interprets and applies:

  • CEQA
  • Permit Streamlining Act
  • Subdivision Map Act
  • Clean Water Act
  • Endangered Species Act
  • Updating Existing Entitlements                                                        

MCLE and American Planning Association continuing education credits offered, pending approval.

MCLE 3.0       CM 3.0

Cost $85.00 

Locations and Times

Roseville – November 5, 2015, 8:30-11:30 a.m. (To Register for the Roseville Location Click Here)

Holiday Inn Express – Roseville, 1398 E. Roseville Pkwy., Roseville, CA 95661                                                                                                  

Fairfield – November 17, 2015, 8:30-11:30 a.m. (To Register for the Fairfield Location Click Here)

Hilton Garden Inn – Fairfield, 2200 Gateway Court, Fairfield, CA 94533