REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast

Program: 9:00 a.m. - 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast

Program: 9:00 a.m. - 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Speculation Concerning Potential Impacts Insufficient To Defeat Use Of A Categorical Exemption

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

By Brian Russell

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The property is zoned commercial. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. The rest of the property would be used for drying and parking cars. Entry to the car wash was from a residential street, just off of a major street. From 1965 to 2001, there was a car wash on the property.

The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c).  That provided an exemption from CEQA review for commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

After an appeal and approval by city council, Appellants filed a petition challenging the CEQA exemption. The trial court ruled in favor of the city.

On appeal, the initial issue was whether the project qualified as a commercial structure and met the square footage limitations of the CEQA exemption. In reviewing the determination of whether a project fits within an exemption, the court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. The appellant also urged that the use of hazardous materials was not allowed in conjunction with the exemption. However, the evidence did not support this argument, and that the argument was based upon speculation.

Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Under the Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”), a challenger must prove both the unusual circumstances and a significant environmental effect that is due to those circumstances. If unusual circumstances are found, agencies apply the fair argument standard in determining whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Alternatively, under Berkeley Hillside, a challenger may establish an unusual circumstance with evidence that the project will have a significant environmental effect, applying the traditional substantial evidence test. Here, the court explained that a party can show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class, such as its size or location. But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence establishes that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years, which suggests that this project is not an unusual circumstance.

The court further analyzed whether the plaintiffs had established that the unusual circumstances will have a significant environmental effect. The plaintiffs argued that the operation of the car wash would violate the city’s interior and exterior noise limits at the abutting property line. However, the court rejected that argument, and found that the exceedance will not occur, because the project was conditioned upon the car wash’s adherence to the city’s noise standards. Furthermore there was an additional condition that provides that compliance with the noise requirements “shall be tested and documented prior to the final inspection and opening of the car wash operation.” Given those conditions and assurances, plaintiffs failed to meet their burden of showing that the project will actually have a significant environmental effect.

Plaintiffs then argue that the project will have a significant impact on traffic. They argued that the design of the car wash is inefficient and will cause back ups within the project property. However, the court held that plaintiffs’ argument was speculative and was contradicted by both the plaintiffs’ expert and the city’s findings that any such backup could be avoided by managing the flow of cars through the car wash. The court found that, at best, plaintiffs provided evidence that suggests that the project possibly could have a periodic impact on traffic. That was insufficient. The court held that plaintiffs failed to provide evidence that the project will actually have a significant impact on the environment by causing a substantial adverse change in the physical conditions that exist in the area.

With that holding, the court concluded that plaintiffs failed to establish the unusual circumstances exception under the Berkeley Hillside alternative analysis. Therefore, the city properly determined that the car wash project is categorically exempt under the CEQA Guidelines.

Brian Russell is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

It's Always Better the Second Time Around: California Supreme Court Concludes That The Substantial Evidence Test Applies To Project Modifications Based Upon Either An EIR Or Negative Declaration

Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937.

By William W. Abbott

The California Supreme Court has solved one of CEQA’s great riddles: when a project is modified after the original CEQA documentation and initial project approval, which standard of review applies? In a decision which will boost the confidence of lead agencies, the Court applied the more deferential substantial evidence test under the authority of Public Resources Code Section 21166 and Guidelines Section 15162.

The facts begin in 2006 with the adoption of a master plan for the San Mateo Community College District, calling for over one billion dollars in investment districtwide. This master plan was based upon an Environmental Impact Report. As to the College of San Mateo campus, the plan called for renovation of the Building 20 complex and demolition of others. In 2007, the District approved a negative declaration for the improvements at the San Mateo campus. In 2011, being unsuccessful in obtaining funding, the College modified its plans, planning on demolishing the Building 20 complex and associated gardens, and renovating other buildings. This decision was based upon the 2007 negative declaration coupled with an addendum. Project opponents filed suit, and the District rescinded its addendum and reissued a new addendum with a more in-depth analysis, but reaching the same conclusion. Opponents dismissed the first case and refiled a new lawsuit challenging the revised plans on CEQA grounds. At the opponents’ urging, the trial court concluded that the revisions constituted a new project, ordered the approvals set aside, and directed the District to prepare an EIR. The Court of Appeal concurred (relying primarily on Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288) to decide that as a matter of law the proposed building demolition was a new project. The California Supreme granted review and reversed.

The Supreme Court’s decision is notable in several respects. First, the Court was emphatic that a decision of whether or not a proposed activity was a new project was predominately a factual question to be made by the decision making body, not a reviewing court. “It is thus a question for the agency to answer in the first instance, drawing on its particular expertise….A court’s task on review is then to decide whether the agency’s determination is supported by substantial evidence; the court’s job’ is not to weigh conflicting evidence and determine who has the better argument.’ ” The opponents also argued that Public Resources Code Section 21166 and Guidelines Section 15162 could only be invoked following the use of an EIR and therefore had no application in this instance based upon a negative declaration. Citing the legislative history, the Court rejected this argument. Finally, the opponents argued the substantial evidence test was inappropriate in circumstances of a tiered CEQA document, pointing to the master plan as the first tier. The record did not support this characterization, as the 2007 approval was a project-level decision.

As is often the case, the CEQA debate over this project approval was not over with the Supreme Court’s decision. Upon remand, the courts will have to address the unresolved issues of abuse of discretion along with the use of an addendum as it involves no formal public review process.

Commentary: Given the inventory of project approvals issued during the boom years for projects that have yet to be built out (or in many cases even launched), this decision should be a confidence builder to cities, counties and developers looking to dust off and update the earlier approvals.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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REGISTER TODAY! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast

Program: 9:00 a.m. - 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

SAVE THE DATE! Abbott & Kindermann's 16th Annual Land Use, Real Estate, and Environmental Law Update

Mark your calendar - registration for Abbott & Kindermann’s 16th Annual Land Use, Real Estate, and Environmental Law Update will open on October 18, 2016.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference 

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference 

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast

Program: 9:00 a.m. - 12:00 noon

Modesto Conference 

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference 

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Discovery Rule Does Not Apply To Statute Of Limitations In A CEQA Action

Communities for a Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715

By Glen Hansen

In Communities for a Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715 (“Communities”), the Court of Appeal for the First Appellate District affirmed the dismissal of  an action under the California Environmental Quality Act (“CEQA”) that challenged an agency’s approval, made without a notice of exemption, of a permit for a rail-to-truck facility under a ministerial exemption, because the action was not filed within 180 days after the agency’s decision; and because the discovery rule did not apply in that context. 

In Communities, respondent Kinder Morgan Material Services, LLC (“Kinder Morgan”), began operating an ethanol rail-to-truck transloading facility in Richmond, California, around 2009. In February 2013, Kinder Morgan applied to the Bay Area Air Quality Management District (“BAAQMD”) for approval to alter the facility and begin transloading crude oil from the Bakken Formation in the Great Plains. According to petitioners Communities for a Better Environment, Asian Pacific Environmental Network, Sierra Club, and Natural Resources Defense Council (collectively, “CBE”), Bakken crude oil is “highly volatile and explosive” and “[t]he range of significant adverse environmental impacts of Kinder Morgan’s operation includes a high risk to public health and safety from derailment, significant increases in toxic air contaminants, potential contamination of California’s precious waterways (that support entire ecosystems), and significant increases in greenhouse gas emissions.” BAAQMD determined that the project was “ministerial” and not subject to CEQA review. BAAQMD authorized Kinder Morgan to begin transloading crude oil by issuing a permit in July 2013 called an authority to construct. BAAQMD never issued an optional notice of exemption (“NOE”) that would have publicly announced its determination that the project was exempt from CEQA review. Kinder Morgan began transloading crude oil in mid-September 2013. 

On March 27, 2014, CBE filed a petition for writ of mandate and complaint for declaratory relief on the grounds that BAAQMD’s approval of the operational change at the transloading facility was not ministerial and an environmental impact report (“EIR”) was required pursuant to CEQA because there was a fair argument that the change would have a significant impact on the environment. The trial court dismissed the petition and complaint without leave to amend, concluding that the suit was time-barred under Public Resources Code section 21167, subdivision (d). The Court of Appeal affirmed. 

The only issue on appeal was whether CBE could successfully amend its petition and complaint to allege that the action was timely by virtue of the discovery rule. CBE argued that it did not learn, and could not with reasonable diligence have learned, of the project any earlier, because BAAQMD “gave the public no notice of Kinder Morgan’s switch to … Bakken crude oil” and “Kinder Morgan’s transloading operation is entirely enclosed, making the transported commodity, and any change to it, invisible.”  In response, the court explained that an action to challenge such a determination accrues not at the time of the determination but instead on one of three alternative dates explicitly provided in section 21167(d). Those dates are: First, if the agency files an NOE under section 21152, subdivision (b), the action must be brought within 35 days of the NOE’s filing; second, if the NOE has not been filed, then the action must be brought within 180 days of the agency’s decision to carry out or approve the project; and third, if a project is undertaken without a formal decision by the agency, the action must be brought within 180 days of commencement of the project. Here, the action was not filed within 180 days after the agency’s formal approval of the project. Rejecting CBE’s argument, the court concluded that the discovery rule cannot be applied to postpone the running of those limitations periods in section 21167(d). A plaintiff is deemed to have constructive notice of a potential CEQA violation on all three alternative dates of accrual under section 21167(d). The court stated that “[t]he discovery rule has never been applied to postpone the accrual of an action beyond the date the plaintiff has constructive notice of an injury, and we decline to so apply it here.” As CBE offered no theory under which the operative events occurred less than 180 days before the lawsuit was filed, the court assumed that CBE could not amend its petition and complaint to allege that it lacked any actual or constructive notice in that timeframe. Therefore, applying the discovery rule in this case would not postpone accrual of the action. Accordingly, the court affirmed the dismissal of the action.

The ramifications of this decision were evident in the comments of BAAQMD’s district counsel: “These [permit] decisions are made hundreds or even thousands of times across all the government entities every day. … What the statute said is in those circumstances, you don’t have to give notice. … I think most agencies don’t [give notice] for very routine permits.”[1]

Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.


[1] Comments of Brian C. Bunger, quoted in Logan Noblin, “Environmental Groups Lose CEQA Appeal,” The Daily Recorder (July 21, 2016), p.2

 

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Agency's Historical Resource Determinations Subject to Deferential Substantial Evidence Review Standard

Friends of the Willow Glen Trestle v. City of San Jose (2016) ___ Cal.App.5th ___.

By Daniel S. Cucchi

As part of its plan to upgrade its trail system, the City of San Jose (the “City”) proposed to demolish the Willow Glen Railroad Trestle (the “Trestle”), a wooden bridge built in 1922 as part of a rail line accessing the canning districts near downtown, and replace it with a new steel pedestrian bridge.  The City prepared a mitigated negative declaration (“MND”) in support of the project, which found that because the Trestle design was common and was likely largely rebuilt within the last 30-40 years, it was not a historical resource, and, thus, there was no significant impact on the environment.  The Friends of the Willow Glen Trestle (“Friends”) challenged that determination and filed a writ of mandate challenging the MND, arguing that there was a “fair argument” that the Trestle was an historical resource and an environmental impact report (“EIR”) was required.  The trial court agreed with Friends, asserting that the standard of review applied in Architectural Heritage Assn. v. County of Monterey, 122 Cal.App.4th 1095 (2004), was the correct standard.  The City appealed and the appellate court reversed.

The appellate court first dismissed the argument that it was required to follow the holding in Valley Advocates v. City of Fresno, 160 Cal.App.4th 1039 (2008), concluding that it could complete its own determination of the proper legal standard.  It reasoned that, while the case held that the substantial evidence review standard applied to an agency’s determination of whether a resource was historical, the California Supreme Court’s discussion of Valley Advocates in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (2015), was limited to the question of whether a bifurcated standard could apply to a multi-part agency decision and avoided the question that was now before the court. 

The court next turned to the applicable language in Public Resources Code section 21084.1, noting that local agencies have the power to determine that a “presumed” historical resource (see Pub. Res. Code §§ 5020.1(k), 5024.1(g)), is not historic when supported by the preponderance of the evidence.  Thus, it reasoned, that application of the fair argument standard to that decision would directly contradict the statutory language. 

The court completed its analysis by reviewing the line of cases involving the review of agency decisions involving historical resources, concluding that the only cases specifically addressing the issue, Valley Advocates and Citizens for Restoration of L Street v. City of Fresno, 229 Cal.App.4th 340 (2014), were in alignment with the court’s reading of the applicable statutes.  It, therefore, held that the City’s determination of whether the Trestle was an historical resource must be reviewed under the substantial evidence standard and remanded the case back to the trial court to make that determination.      

Daniel S. Cucchi is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

Appellate Court Permits The Real Party In Interest To Recover Attorney And Paralegal Costs Incurred In Preparing The Administrative Record In A SMARA Vested Rights Proceeding

No Toxic Air, Inc. v Lehigh Southwest Cement Co. ( 2016) 1 Cal.App.5th 1136

By William W. Abbott

If required due to the complexity of the matter, a prevailing party may be able to recover reasonable legal and paralegal costs incurred in preparing an administrative record required by an action in administrative mandamus.

Project opponents unsuccessfully challenged in court a vested rights determination made by Santa Clara County pertaining to a long time mining operation.  At issue was a mine begun in 1903 and had been an ongoing concern ever since, expanding in terms of physical scope and mine related activities through the years.  In 2010, the then owner sought a determination of vested rights from the County.   The County made the vested rights determination and was unsuccessfully challenged in court. The real party in interest filed a cost bill which included the attorney and paralegal costs associated with assembling the administrative record.  The unsuccessful plaintiffs moved to tax costs.  The trial court determined that the costs were reasonably incurred and appropriate for the complexity of the case, but granted the motion to tax for lack of authority to allow those costs. The real party in interest appealed. 

Code of Civil Procedure section 1094.5 provides in part “if the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.”  Looking to CEQA cases for guidance on this question, the appellate court concluded once the trial court determined the appropriateness and need for the attorney and paralegal work to prepare the record, that the motion to tax costs should have been denied and reversed.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

 

GENERAL PLAN CONSISTENCY ANALYSIS IS INSUFFICIENT TO ESTABLISH PROJECT CONFORMITY WITH A "FUNDAMENTAL" GENERAL PLAN IMPLEMENTATION ACTION

Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal. App. 4th 91

By William W. Abbott

The Tamarisk shopping center project in Victorville consists of 214,596 square feet of commercial retail uses on approximately 23.72 acres of land, currently vacant and undeveloped. Among the project's proposed commercial retail uses includes a Walmart store of approximately 184,946 square feet. The land use approvals included a general plan amendment, a zone change, a site plan, a conditional use permit, and a parcel map. The City approved the project, and the Association filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (petition) challenging the City's decision, alleging land use and CEQA claims. The trial court granted partial relief, holding that the EIR did not adequately discuss the project’s consistency with the City’s onsite electrical generation policy or project impacts on greenhouse gas emissions. The trial court also concluded that there was insufficient evidence of consistency with the onsite electrical generation policy to support the zoning change and parcel map. Wal-Mart appealed the lower court decision contending that there is substantial evidence to support the City's finding the project is consistent with the general plan and the project's EIR adequately analyzed the project's greenhouse gas emissions impacts. The Association cross-appealed, contending that the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended that the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project's parcel map. The appellate court rejected Wal-Mart’s arguments on appeal, and granted additional relief to the Association.

The case largely turns on an implementation measure of one policy contained within the general plan. That implementation measure (IM 7.1.1.4) “requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.” The EIR discussed the feasibility of onsite generation, and noted that feasibility was determined in part by the availability of tax credits along with other information relevant to the feasibility of onsite solar generation. The EIR also noted that the roof would be “solar ready” in the event that solar installation became financially feasibility. No enough according to the appellate court. Citing Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the cornerstone case on administrative findings in California, the EIR analysis was insufficient to adequately explain the infeasibility of solar, and did not discuss any other onsite generation options. Wal-Mart also argued that a project is not required to be consistent with every goal and policy which the appellate court recognized as a general proposition, but the court applied the exception for “fundamental” policies (Families Unafraid v. County of El Dorado (1998) 62 Cal.App.4th 1332).

The court then turned to the EIR evaluation of greenhouse gases. The analysis concluded that the project would not substantially contribute to GHG emissions, resting in part upon a general plan requirement that a project exceed Title 24 standards by 15 percent. However, the EIR included information suggesting that the project would exceed the Title 24 standards by at least 10 percent and in another part of the EIR, by 14 percent. Because of this conflict, the court concluded that the record did not support the City’s determination that the project’s contribution was less than significant based upon meeting the 15 percent target over Title 24.

With respect to the Association’s cross appeal, the appellate court agreed that a city or county must address both the affirmative and negative findings of the Subdivision Map Act. Government Code section 66474. Thus, tentative map approvals, including parcel maps, must include findings relating to general plan consistency, physical suitability of the site for the type and density of development, impacts to fish, wildlife and habitat, public health problems and public access easements.

The Association’s final issue on cross appeal asserted that the City was required to recirculate the FEIR due to revisions pertaining to traffic, biological resources, air quality, and hydrology and water quality. As to traffic, the text dealt with the effect of a delay in an assumed improvement and the information indicated that service would degrade, but the significance level would not change. With respect to biological resources, the revisions reflected that the streambed impact area would increase, and that the number of special status species tested in spring surveys would also increase. None of these revisions constituted substantial new information or deprived the public of a meaningful opportunity to comment. The appellate court agreed with the Association as to air quality and hydrology. Because the appellate court had concluded that there was a lack of substantial evidence to support the conclusion of consistency with the general plan implementation measures, the appellate court concluded that there was a significant adverse impact and that the public had been denied a meaningful opportunity to comment. The revisions to the hydrology section was a significant rewrite and redesign (replacing 26 pages with 350 pages of technical reports.) The changes were sufficient in degree (and no redline of changes was included to facilitate tracking) that the court concluded the revisions denied the public a meaningful opportunity to review and comment.

Commentary:

  1. I think that decision potentially overstates the EIR’s obligation to discuss general plan consistency issues. The court noted that nowhere in the record was there evidence to explain consistency with the policy, leaving the door open that the requisite explanation and supporting evidence may lie elsewhere. To this practitioner, the EIR is not intended nor designed to be the resolution of broader general plan consistency issues as the CEQA Guidelines provisions on general plans are specific and narrow. See CEQA Guidelines sections 15063(d)(5) (initial study);  section 15125 (environmental setting); section 15130 (cumulative impacts); Appendix G, section N. A robust consistency analysis is best addressed through the staff report. Best practices in an EIR would include language directing the reader to the staff report for an evaluation of project consistency with the general plan.
  2. The decision draws no distinction between legislative and adjudicatory findings, although ultimately this would not have been determinative.
  3.  General plan practitioners should ponder the ramifications of the court’s use of the general plan. The case vividly illustrates the risk of over committing future action in a general plan and supports the idea of under promising when drafting general plan text. As this case also illustrates, the court should not be left to its own devices to determine which policies or implementation measures are fundamental and mandatory in every instance. Best practices suggests inclusion of language in a general plan specifically disavowing characterization of policies as “fundamental” unless specifically noted as such.
  4. The court’s decision on the SMA findings will not come as a surprise or burden to many cities and counties. The court’s conclusion begs the question as to the other denial findings found in chapter 4 of the SMA. Cities and counties may be well served to develop and apply a comprehensive list of all the approval/denial related findings to every tentative subdivision and parcel map.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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Plan Bay Area EIR and Sustainable Communities Plan Upheld

Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966.

By William W. Abbott

In a case perhaps driven primarily by philosophical considerations, the Court of Appeal (First Appellate District) upheld ABAG’s Sustainable Communities plan (the “Plan”), adopted under the authority of SB 375 (Steinberg).  SB 375, adopted in 2008, created a framework for linking transportation investment and land use planning in a manner to move the state closer to its targeted reduction in greenhouse gas emissions by passenger vehicles and light trucks. The heavy lifting under SB 375 is by the regional planning agencies, in this case Association of Bay Area Governments (“ABAG”) in consultation with the California Air Resources Board (“CARB”) as it discharges its responsibilities developing and implementing the State Scoping Plan.

In response to the targets set by CARB, ABAG developed and released a Draft Plan. The Plan identified land use and transportation strategies believed to meet the required per capita reductions. These strategies included land use intensification around transit corridors. Ultimate implementation of the strategies would rest with the individual cities and counties as the ABAG Plan did not directly control land use decisionmaking. ABAG prepared an EIR to go with the Draft Plan. The EIR evaluated (a) the Plan’s ability to meet the regional SB 375 generated targets, (b) anticipated changes in greenhouse emissions (direct and indirect) by 2040, and (c) compliance with the Executive Orders (S-3-05 and B-16-2012). With respect to the first analysis (meeting the regional targets), the EIR excluded any benefits from the Pavley I legislation and low carbon fuel requirements, whereas Pavley I and low carbon adjustments were factored into the analysis for the second and third evaluations.  ABAG submitted its Draft Plan to CARB for technical review as provided for by SB 375, and CARB approved the methodology.

Bay Area Citizens was critical of the Draft Plan along with the EIR, and offered its own alternative. Citizens claims included the argument that the Plan had to account for reductions from Pavley I and low carbon fuels and that ABAG should have considered its alternative which avoided “draconian” land use and transportation strategies. Dissatisfied with the Plan and EIR, Citizens following adoption filed a petition for writ of mandate challenging the adoption. The trial court denied relief as did the appellate court.

The appellate decision is quite detailed, setting forth the full regulatory structure for the adoption of the regional plans, including CARB’s role. Citizen’s primary attack dealt with the role of reductions from Pavley I and low carbon fuels. As the court noted, the regional targets for reductions are separate and distinct from the reductions taken under the Scoping Plan for Pavley I and low carbon fuels. The appellate court agreed with ABAG that factoring Pavley I and low carbon into the regional targets would result in double counting. As most of Citizen’s arguments were tied to its fundamental attack regarding exclusion of Pavley I and low carbon fuels into the regional targets, the appellate court rejected those as well.

Although the appellate decision is mostly dedicated to SB 375, Citizens also challenged the EIR. Its first argument challenged the project description, reintroducing the theme that Pavley I and low carbon should have been factored in as part of the project description. The appellate court readily disposed of this argument, reciting that the seven identified goals for the Plan were sufficiently broad and appropriately linked to SB 375. The appellate court then turned to Citizens’ challenge to the EIR’s alternatives. Citizens first argued that the No Project alternative was required to reflect the benefits of other state programs (notably Pavley I and low carbon fuels) which largely centered upon an argument that the EIR should have included the Citizen’s alternative. Again, the appellate court disagreed noting that the targets in greenhouse gas reduction and climate change from the Plan were developed independent from and were additive to the anticipated benefits of Pavley I and low carbon fuels. The appellate court also determined that the Pavley II impacts were not known until too late in the EIR process and therefore were not required to be reflected in the EIR. Citizens also argued that the EIR was required to review its plan as an alternative, suggesting that its plan would have met basic project objectives without the secondary effects of higher density development. The court rejected this argument finding that the EIR included a reasonable range of alternatives and that Citizens had failed to demonstrate any shortcomings against that legal standard. Citizens last argument was a variation on the same theme: because the Agency failed to account for the benefits of Pavely I and low carbon fuels, the Agency failed to adequately respond to the Citizens comments as to those issues. Again noted the appellate court, the Citizens had it wrong.

Finally, as an independent ground to uphold the EIR, the Court agreed with amicus California Attorney General that the EIR was a full disclosure document. The document was clear when and where it relied upon Pavley I and low carbon fuels, and that the challengers failed show why more analysis was required. Essentially then, Citizens challenge was to the wisdom of the Plan itself, essentially at its best that the Plan did more than the minimum to meet the law.  In the end, a challenge to the wisdom of the Plan was not a CEQA challenge.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

2016 CEQA 2nd QUARTER REVIEW

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

Welcome to Abbott & Kindermann’s 2016 2nd 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.         2015 CEQA UPDATE 

To read the 2015 cumulative CEQA review, click here: 

2.         CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 5 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

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?

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.)

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)?

3.         UPDATE

A.              General Considerations: When Is An MOU A Project? 

Delaware Tetra Technologies, Inc. v. County of San Bernardino (2016) 247 Cal.App.4th 352.

Citing seminal CEQA timing cases Save Tara v. City of West Hollywood, 45 Cal.4th 116 (2008) (“Save Tara”), and RiverWatch v. Olivenhain Municipal Water Dist., 170 Cal.App.4th 1186 (2009)(“RiverWatch”), the plaintiff claimed the respondent’s approval of a Memorandum of Understanding for development of a public/private partnership groundwater pumping project in the Mojave Desert (“2012 MOU”) was a “project” under CEQA and, thus, environmental review was required before it could be approved.  The court disagreed, finding that the 2012 MOU was not a “project,” because it did not commit the County “to a particular course of action that will cause an environmental impact,” affirming the trial court.  It reasoned that the instant circumstances were distinguishable from those cases, because those defendant agencies were sufficiently committed to a course of action that foreclosed alternatives or mitigation measures normally considered as part of the project approval process.  Instead, the 2012 MOU was akin to the “term sheet” in Cedar Fair, L.P. v. City of Santa Clara, 194 Cal.App.4th 1150 (2011), because the approval was merely “a process for completing the Plan” and the MOU explicitly stated that “the County retain[ed] full discretion to consider the Final EIR and then to approve the Project, disapprove it, or require additional mitigation measures or alternatives.” 

B.              Exempt From CEQA Review 

People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640.

The City of Palm Springs amended its general plan to remove minimum density requirements.  The City asserted that the amendment was categorically exempt from CEQA (CEQA Guidelines §15305 [Minor Alterations in Land Use Limitations]), as the action was consistent with prior city interpretation and administration of the General Plan which resulted in projects as less than the minimum stated in the various land use districts.  While the trial court agreed that it was exempt, the appellate court reversed on the basis that the change undermined the city’s ability to meet its state share of housing needs when it relied upon the “anticipated densities” when developing its housing element. Consequently, given the exemption’s facial exclusion for projects that result in changes to land use density, the exemption was inapplicable.

Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265.

In 2007, the City of Upland adopted an ordinance banning both “fixed or mobile” medical marijuana dispensaries within the city limits. In reaction to the likely operation of marijuana delivery services within the city limits, the council adopted a new ordinance in 2013 that explicitly banned mobile dispensaries.  The Union of Medical Marijuana Patients (“UMMP”) filed a petition for writ of mandate, arguing that adoption of the ordinance was a “project” subject to the California Environmental Quality Act and the trial court denied.  The 4th appellate district court affirmed, holding that the ordinance was not a project under CEQA.  It reasoned that the 2013 ordinance was nothing more than a ratification of the previous existing ordinance which banned mobile dispensaries. It then further found that even if the 2013 did not restate existing law, the potential environmental effects raised by UMMP through studies evaluating industrial-scale indoor growing operations—increases in electrical and water, waste plant material and odors, hazardous waste materials, increased traffic—were speculative and, thus, not reasonably foreseeable environmental effects.  It reasoned that these concerns “rest on layers of assumptions” about the similarity of the potential acts and consequences of small-scale medical marijuana patients and those on an industrial-scale if the mobile delivery service ban is upheld.  

C.              Negative Declarations 

Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016, E062479) ___ Cal.App.4th ___. 

In a challenge to the adequacy of the county’s adopted Negative Declaration, the appellate court held that petitioner failed to provide substantial evidence of a potentially significant effect from urban decay resulting from the approval of a 9,100 sq. ft. Dollar General store, because there were legitimate credibility issues regarding the opinions of the local business owner regarding the impact.  The court also held that given the relatively moderate size of the business, it was reasonable for the county to conclude that the project was consistent with the county policies for the area which favor small businesses.

Preserve Poway v. City of Poway (2106) 245 Cal.App.4th 560.

It is no surprise that people, as a general rule, dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no. 

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims. 

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.” 

The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected this argument, following the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective. 

On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest. 

            C.        Environmental Impact Reports

Bay Area Citizens v. Association of Bay Area Governments (June 30, 2016, A143058) ___ Cal.App.4th ___.

In a legal challenge perhaps driven primarily by philosophical considerations (higher density vs. lower density), the Court of Appeal (First Appellate District) upheld ABAG’s Sustainable Communities plan (the “Plan”), adopted under the authority of SB 375 (Steinberg).  SB 375, adopted in 2008, created a framework for linking transportation investment and land use planning in a manner to move the state closer to its targeted reduction in greenhouse gas emissions by passenger vehicles and light trucks. The heavy lifting under SB 375 is by the regional planning agencies, in this case Association of Bay Area Governments (“ABAG”) in consultation with the California Air Resources Board (“CARB”) as it discharges its responsibilities developing and implementing the State Scoping Plan. The adequacy of the Plan and EIR, and in particular the shift towards higher density, was challenged by Bay Area Citizens. 

Although the appellate decision is mostly dedicated to SB 375, Citizens also challenged the EIR. Its first argument challenged the project description, reintroducing the theme that Pavley I and the low carbon fuel requirements should have been factored in as part of the project description. The appellate court readily disposed of this argument, reciting that the seven identified goals for the Plan were sufficiently broad and appropriately linked to SB 375. The appellate court then turned to Citizens’ challenge to the EIR’s alternatives.  Citizens first argued that the No Project alternative was required to reflect the benefits of other state programs (notably Pavley I and low carbon fuels) which largely centered upon an argument that the EIR should have included the Citizen’s alternative.  Again, the appellate court disagreed noting that the targets in greenhouse gas reduction and climate change from the Plan were developed independent from and were additive to the anticipated benefits of Pavley I and low carbon fuels. The appellate court also determined that the Pavley II impacts were not known until too late in the EIR process and therefore were not required to be reflected in the EIR.  Citizens also argued that the EIR was required to review its plan as an alternative, suggesting that its plan would have met basic project objectives without the secondary effects of higher density development.  The court rejected this argument finding that the EIR included a reasonable range of alternatives and that Citizens had failed to demonstrate any shortcomings against that legal standard. Citizens last argument was a variation on the same theme: because the Agency failed to account for the benefits of Pavely I and low carbon fuels, the Agency failed to adequately respond to the Citizens comments as to those issues. Again noted the appellate court, the Citizens had it wrong. 

Finally, as an independent ground to uphold the EIR, the Court agreed with amicus California Attorney General that the EIR was a full disclosure document. The document was clear when and where it relied upon Pavley I and low carbon fuels, and that the challengers failed to show why more analysis was required. Essentially then, Citizens challenge was to the wisdom of the Plan itself, essentially at its best that the Plan did more than the minimum to meet the law. In the end, a challenge to the wisdom of the Plan was not a CEQA challenge.

Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal. App. 4th 91 

The appellate court expands (and likely overstates) the general plan consistency disclosure obligation in an EIR. Conclusions regarding project impacts on climate change are not supported due to internal inconsistencies regarding the degree of compliance with local development standards. FEIR recirculation was required due to new information regarding compliance with general plan implementation measures and a substantial rewrite of project hydrology and mitigation. 

The Tamarisk shopping center project in Victorville consists of 214,596 square feet of commercial retail uses on approximately 23.72 acres of land, currently vacant and undeveloped. Among the project's proposed commercial retail uses includes a Walmart store of approximately 184,946 square feet. The land use approvals included a general plan amendment, a zone change, a site plan, a conditional use permit, and a parcel map. The City approved the project, and the Association filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (petition) challenging the City's decision, alleging land use and CEQA claims. The trial court granted partial relief, holding that the EIR did not adequately discuss the project’s consistency with the City’s onsite electrical generation policy or project impacts on greenhouse gas emissions. The trial court also concluded that there was insufficient evidence of consistency with the onsite electrical generation policy to support the zoning change and parcel map. Wal-Mart appealed the lower court decision contending that there is substantial evidence to support the City's finding the project is consistent with the general plan and the project's EIR adequately analyzed the project's greenhouse gas emissions impacts. The Association cross-appealed, contending that the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended that the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project's parcel map. The appellate court rejected Wal-Mart’s arguments on appeal, and granted additional relief to the Association. 

The case largely turns on an implementation measure of one policy contained within the general plan. That implementation measure (IM 7.1.1.4) “requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.” The EIR discussed the feasibility of onsite generation, and noted that feasibility was determined in part by the availability of tax credits along with other information relevant to the feasibility of onsite solar generation. The EIR also noted that the roof would be “solar ready” in the event that solar installation became financially feasibility. No enough according to the appellate court. Citing Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the cornerstone case on administrative findings in California, the EIR analysis was insufficient to adequately explain the infeasibility of solar, and did not discuss any other onsite generation options. Wal-Mart also argued that a project is not required to be consistent with every goal and policy which the appellate court recognized as a general proposition, but the court applied the exception for “fundamental” policies (Families Unafraid v. County of El Dorado (1998) 62 Cal.App.4th 1332).

The court then turned to the EIR evaluation of greenhouse gases. The analysis concluded that the project would not substantially contribute to GHG emissions, resting in part upon a general plan requirement that a project exceed Title 24 standards by 15 percent. However, the EIR included information suggesting that the project would exceed the Title 24 standards by at least 10 percent and in another part of the EIR, by 14 percent. Because of this conflict, the court concluded that the record did not support the City’s determination that the project’s contribution was less than significant based upon meeting the 15 percent target over Title 24.

With respect to the Association’s cross appeal, the appellate court agreed that a city or county must address both the affirmative and negative findings of the Subdivision Map Act. Government Code section 66474. Thus, tentative map approvals, including parcel maps, must include findings relating to general plan consistency, physical suitability of the site for the type and density of development, impacts to fish, wildlife and habitat, public health problems and public access easements.

The Association’s final issue on cross appeal asserted that the City was required to recirculate the FEIR due to revisions pertaining to traffic, biological resources, air quality, and hydrology and water quality. As to traffic, the text dealt with the effect of a delay in an assumed improvement and the information indicated that service would degrade, but the significance level would not change. With respect to biological resources, the revisions reflected that the streambed impact area would increase, and that the number of special status species tested in spring surveys would also increase. None of these revisions constituted substantial new information or deprived the public of a meaningful opportunity to comment. The appellate court agreed with the Association as to air quality and hydrology. Because the appellate court had concluded that there was a lack of substantial evidence to support the conclusion of consistency with the general plan implementation measures, the appellate court concluded that there was a significant adverse impact and that the public had been denied a meaningful opportunity to comment. The revisions to the hydrology section was a significant rewrite and redesign (replacing 26 pages with 350 pages of technical reports.) The changes were sufficient in degree (and no redline of changes was included to facilitate tracking) that the court concluded the revisions denied the public a meaningful opportunity to review and comment.

Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256.

The appellate court held that the city’s EIR for a commercial retail project failed to adequately analyze energy impacts, because it failed to calculate the resulting energy impacts from increased vehicle trips resulting from the project. Furthermore, it held that the city’s reliance upon building code compliance to reduce energy use was improper, because the compliance with those standards fails to address many of the considerations required under Appendix F of the CEQA Guidelines. The court also held that the city’s adoption of an addendum to the EIR addressing these deficiencies nearly one year after its original adoption did not cure the deficiencies in the EIR, because the EIR was still inadequate at the time the decision was made to approve the project.

Center for Biological Diversity v. County of San Bernardino (2016) 247 Cal.App.4th 326.

The petitioners challenged the adequacy of the environmental impact report (“EIR”) for a proposed project to pump groundwater from an underground aquifer in the Mojave Desert, a public/private partnership between the County of San Bernardino (the “County”), the Santa Margarita Water District (“Santa Margarita”), the Fenner Valley Mutual Water Company (“Fenner Valley”), and Cadiz, Inc. (“Cadiz”)(collectively, the “Respondents”). Petitioners challenged under several theories: (1) Santa Margarita was improperly designated as the lead agency under CEQA; (2) the project description was misleading and inaccurate by (a) mischaracterizing the project’s “conservation” objectives as preventing water lost to evaporation, (b) misstating the project duration; and (c) mischaracterizing the total amount of water than will be withdrawn from the aquifer. The trial court denied the petition and the petitioners appealed. 

The appellate court affirmed on all counts. It found Santa Margarita was properly designated as the lead agency pursuant to CEQA Guidelines section 15051, because (1) it is a public agency that will carry out, in part, a public/private partnership; and (2) it will have the greatest responsibility for supervising the project as a whole. It rejected petitioners’ claim that the project does not meet its purported “conservation” purpose, finding that the purpose was broader than prevention of evaporation and included saving freshwater sources before they become non-potable due to excess salinity once they migrate into nearby dry lakes.   

The court denied petitioners claims that the project duration was indefinite, reasoning that even though the project by its terms could be extended beyond its 50-year duration in order to complete contracted-for water deliveries, the duration remained limited by the fact that any extension was limited by the maximum amount of water that may be pumped over the life of the project, and the average amount of water that can be pumped annually. It further reasoned that any extensions would require subsequent environmental review consistent with CEQA. Finally, the court rejected the claim that the quantity of water pumped was inaccurate, reasoning that the water sales agreement cited other adopted documents limiting the amount of water that may be pumped annually and that the size of the pipelines is consistent with the project design capacities. 

North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. (Unpublished to Published January 4, 2016.)

            An EIR was held to be invalid due to an inadequate range of alternatives.

The Third Appellate District found an EIR to be inadequate for lack of a particular alternative. While this suggests a potential micromanagement of the EIR process, the decision involves an unusual fact pattern. The lead agency was California Department of Food and Agriculture, proposing a seven year program to eradicate an invasive insect, the light brown apple moth (“LBAM”)[1]. Found in select northern California counties, this insect had spread rapidly notwithstanding State efforts to control the pest. The State proposed a program to eliminate the insect (as compared to managing its population) and prepared an EIR. At the end of the EIR process, the State approved a seven year program to control LBAMs based upon new information that eradication was not deemed to be attainable. “Control,” as compared to eradication, was not considered in the EIR as a reasonable alternative. Rather, the alternatives section examined seven techniques for management (five of which were approved as part of the project.) Opponents filed suit, arguing primarily project segmentation (after all, the pest was only to be controlled, not eradicated, within seven years), unstable project description and inadequate project alternatives. 

The project objective was defined as “eradication,” an objective determined by the appellate court to be too narrow. Eradication was used as a screening tool that prevented the consideration of control, which in the end is what the State approved. The fact that the State approved control in the end did not salvage the EIR as the error was deemed to be prejudicial. While late project adjustments might be allowable if insignificant, the court viewed the administrative record as lacking in supporting an insignificance conclusion because of the omission of any consideration of control in the EIR. The court also observed that the record supported the inference that impacts associated with control might be greater than eradication because of the potentially indefinite duration. 

Petitioners also argued other technical defects in specific impact analyses, but these were all rejected by the appellate court. The court considered but rejected an argument that the EIR was defective for failure to consider site specific impacts.  Finally, the court addressed a cumulative impacts argument stating that the new EIR take into consideration the long term (post seven year effects and treatment) in the evaluation of cumulative impacts.

D.        OPR VMT CEQA Guidance 

January 20, 2016 Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA.  (Item 1.)

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



[1] From Australia, which has also brought us Mad Max, Crocodile Dundee, and shrimp-on-the-barbie.

 

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City Elimination Of Minimum Densities Not Exempt From CEQA Review

People for Proper Planning v. City of Palm Springs (April 22, 2016, E062725) ____ Cal.App.4th ____. 

By William W. Abbott

In 2013, the City of Palm Springs amended its general plan to remove any mention of minimum densities in the residential land districts. The text of the general plan in some residential districts provided for a range of densities, in others an average density or one stated density. The general plan also provided that the stated densities at the upper end were maximums, but the lower end reflected “the minimum amount of development anticipated, provided that all other required conditions can be met.” The City Council’s resolution adopting the amendment provided in part that “the current and past practice of the city… is to consider only the maximum density allowed within each land category and consider and approve lower density projects.” The Council passed the resolution relying upon a categorical exemption (Class 5; “minor alterations in land use limitations in areas of average slope of less than 20%, which do not result in any changes in land use or density….”). A citizens group filed suit, challenging the amendment on CEQA grounds as well as violations of the state planning and zoning law. The trial court ruled in favor of the city and the petitioners appealed. In the published portion of the decision, the appellate court reversed the City’s use of an exemption.

Surprisingly, the appellate court did not cite the Supreme Court’s decision in Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943, on judicial review of CEQA exemptions. The appellate court’s first point was that the amendment facially conflicted with the terms of the exemption in that that it resulted in change in densities. Accepting for the sake of argument the City’s position that the amendment simply reflected actual city practices, the appellate court noted that the petitioner had presented sufficient evidence of a fair argument (without elaborating on that evidence) and that the general plan amendment was capable of significant cumulative effects to the supply of high density, low and moderate income housing. To this latter point, the court noted that the 2007 General Plan EIR discussed the role of high density housing to meet its housing needs and to avoid unnecessary conversion of surrounding desert lands. The Court then questioned the City’s ability to meet its fair share of housing as a basis to overturn the use of the CEQA exemption.

The court went on to address the City’s argument that the baseline had not changed, asserting that as the City had not interpreted its general plan in a manner which dictated minimum densities, there was therefore no change from the baseline as a result of the general plan amendment. The Court concluded that once the general plan was adopted, it became the new baseline. Since the general plan relied upon the anticipated densities to meet housing needs, the question remained as to the City’s ability to meet its fair share housing needs. Although the published decision lacks critical analysis, the inference is that this unanswered question defeated the use of the categorical exemption.

Comment: The court’s characterization of the general plan as the new baseline while in many circumstances this would be an ideal approach in reducing CEQA burdens, this court’s approach is at variance with a number other long standing CEQA decisions, and lead agencies should be cautious about uncritical reliance upon this approach. The decision is best viewed as an unusual analysis of a CEQA exemption and left at that.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

WHO NEEDS THE LEGISLATURE WHEN YOU CAN ISSUE AN EXECUTIVE ORDER?

By William W. Abbott

Well, it has been a long time since I took my high school civics class. While I have forgotten far more than I remember, the distinct responsibilities allocated between the legislative branch and the executive branch remain deeply embedded in my memory. In the recent debate concerning the State’s attempt to curb greenhouse gas emissions, legal practitioners have voiced questions concerning how far governors can go in pushing the state forward and reigning in greenhouse gas emissions. That concern was recently addressed by the Legislature’s chief lawyer who expressed the office’s opinion that Governor Brown has gone too far. (link to opinion http://cssrc.us/sites/default/files/160422_LegCounselOpinion_GGRF.pdf)  Unsurprisingly, the Air Resources Board dismissed the analysis (link http://hosted2.ap.org/CAANR/CA/Article_2016-04-21-CA--Greenhouse%20Gases-California/id-831c8307e6ea42acb7453b39d71e7312). Draw your own conclusion, but I prefer to take my legal advice from a lawyer.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

2016 CEQA 1st QUARTER REVIEW

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

Welcome to Abbott & Kindermann’s 2016 1st 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.         2015 CEQA UPDATE 

To read the 2015 cumulative CEQA review, click here: 

2.         CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 5 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

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?

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.)

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)?

3.         UPDATE

A.              Exempt From CEQA Review 

Union of Medical Marijuana Patients, Inc. v. City of Upland (March 25, 2016) 2016 Cal. App. LEXIS 223

In 2007, the City of Upland adopted an ordinance banning both “fixed or mobile” medical marijuana dispensaries within the city limits. In reaction to the likely operation of marijuana delivery services within the city limits, the council adopted a new ordinance in 2013 that explicitly banned mobile dispensaries.  The Union of Medical Marijuana Patients (“UMMP”) filed a petition for writ of mandate, arguing that adoption of the ordinance was a “project” subject to the California Environmental Quality Act and the trial court denied.  The 4th appellate district court affirmed, holding that the ordinance was not a project under CEQA.  It reasoned that the 2013 ordinance was nothing more than a ratification of the previous existing ordinance which banned mobile dispensaries. It then further found that even if the 2013 did not restate existing law, the potential environmental effects raised by UMMP through studies evaluating industrial-scale indoor growing operations—increases in electrical and water, waste plant material and odors, hazardous waste materials, increased traffic—were speculative and, thus, not reasonably foreseeable environmental effects.  It reasoned that these concerns “rest on layers of assumptions” about the similarity of the potential acts and consequences of small-scale medical marijuana patients and those on an industrial-scale if the mobile delivery service ban is upheld.  

B.              Negative Declarations 

Preserve Poway v. City of Poway (2106) 245 Cal.App.4th 560.

It is no surprise that people dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no. 

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims. 

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.” 

The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected this argument, following the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective. 

On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest. 

            C.        Environmental Impact Report

North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. (Unpublished to Published January 4, 2016.)

               EIR found to be invalid for inadequate range of alternatives.

The Third Appellate District found an EIR to be inadequate for lack of a particular alternative. While this suggests a potential micromanagement of the EIR process, the decision involves an unusual fact pattern. The lead agency was California Department of Food and Agriculture, proposing a seven year program to eradicate an invasive insect, the light brown apple moth (“LBAM”)[1]. Found in select northern California counties, this insect had spread rapidly notwithstanding State efforts to control the pest. The State proposed a program to eliminate the insect (as compared to managing its population) and prepared an EIR. At the end of the EIR process, the State approved a seven year program to control LBAMs based upon new information that eradication was not deemed to be attainable. “Control,” as compared to eradication, was not considered in the EIR as a reasonable alternative. Rather, the alternatives section examined seven techniques for management (five of which were approved as part of the project.) Opponents filed suit, arguing primarily project segmentation (after all, the pest was only to be controlled, not eradicated, within seven years), unstable project description and inadequate project alternatives. 

The project objective was defined as “eradication,” an objective determined by the appellate court to be too narrow. Eradication was used as a screening tool that prevented the consideration of control, which in the end is what the State approved. The fact that the State approved control in the end did not salvage the EIR as the error was deemed to be prejudicial. While late project adjustments might be allowable if insignificant, the court viewed the administrative record as lacking in supporting an insignificance conclusion because of the omission of any consideration of control in the EIR. The court also observed that the record supported the inference that impacts associated with control might be greater than eradication because of the potentially indefinite duration. 

Petitioners also argued other technical defects in specific impact analyses, but these were all rejected by the appellate court. The court considered but rejected an argument that the EIR was defective for failure to consider site specific impacts.  Finally, the court addressed a cumulative impacts argument stating that the new EIR take into consideration the long term (post seven year effects and treatment) in the evaluation of cumulative impacts.

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.



[1] From Australia, which has also brought us Mad Max, Crocodile Dundee, and shrimp-on-the-barbie.

 

Tags:

Community Character Is Not Within The Scope Of Required CEQA Analysis

Preserve Poway v. City of Poway (March 9, 2016, D066635) ___ Cal.App.4th ___.

By William W. Abbott

It is no surprise that people dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no.

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims.

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.”

The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected followed the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369 and rejected the argument, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective.

On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest. 

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

2015 CEQA ANNUAL REVIEW

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

Welcome to Abbott & Kindermann’s 2015 Annual 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 6 CEQA cases pending at the California Supreme Court. 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?

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.)

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)?

3.         GENERAL CONSIDERATIONS

California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369.

Is it the impact of the environmental on the project or the impact of the project on the environment? According to the California Supreme Court, the proper analysis is the impact of the project on the environment, not the other way around. The Court’s conclusion arose from a legal challenge to the adoption of CEQA thresholds of significance for toxic air contaminants. The California Building Industry Association filed for a writ of mandate, arguing that the proposed regulations were not authorized by CEQA. The trial court granted the writ, but the court of appeal reversed. The Supreme Court granted review and ultimately concluded that CEQA directs lead agencies to analyze the impact of the project on the environment, not the other way around. The Court noted that in certain circumstances, a proposed project might exacerbate or increase the effects associated with an existing physical condition. In those circumstances, the lead agency would have to acknowledge, analyze and potential mitigate for the increased effects. 

The Court also acknowledged specific circumstances in which CEQA required an evaluation of existing hazardous conditions: airports (PRC 21096), school construction (PRC 21151.8) and some housing projects (PRC 21159.21 (f) and (h), 21159.22 (a) and (b)(3), 21159.23(a)(2)(A), 21159.24 (a)(1), (3),  211551.(a)(4), (6), 21096,  and 21151.8.

4.         EXEMPTIONS

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 which would defeat the use of an exemption. 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.

Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943. (“BH2”)

Following remand for the purpose of examining the remaining claims challenging the use of a CEQA exemption, the court of appeal upheld the City of Berkeley’s use of a CEQA exemption for single family home. Substantial evidence supported the use of the exemption, and ample evidence supported the City’s conclusion that no unusual circumstances existed which would defeat the use of the exemption.

Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694.

The Plaintiff sued the City of Santa Cruz over the adoption of a new Heritage Tree Preservation program designed to strengthen protections for “heritage trees” within the city, but removed protections for “heritage shrubs” and required a new process for city trees to be designated as a “heritage tree.” The city adopted a notice of exemption, citing the categorical exemptions in CEQA Guidelines sections 15307 and 15308, to find that the actions taken would assure the maintenance, restoration, or enhancement of a natural resource or the environment. The court dismissed both parties’ proposed methods for evaluating use of the exemptions, holding that the proper test is whether the city provided substantial evidence to demonstrate that the project is an action to assure maintenance, restoration, or enhancement of the environment. 

The court reasoned that the city’s claim that the project would not actually lead to additional tree removals, was irrelevant as to whether it was an action to assure the maintenance, preservation or enhancement of the environment. Second, because the project’s rules made it easier to cut down trees, the city’s assertion that the costs and administrative burdens would not result in more heritage tree removals was speculative, not substantial evidence. The court ultimately concluded that while some of the changes enhanced the protection of heritage trees within the city, other changes effectively reduced the number of trees that were benefitted by this enhanced protection.

Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn., (2015) 242 Cal.App.4th 555.

Use of a categorical exemption for approval of ongoing fair-related activities was affirmed as opponents failed to show unusual circumstances which would invalidate use of the exemption. The facts involved a county fair facility, which is operated by the 14th District Agricultural Association. The Fairground was created in 1941, and had been operated for agricultural-related activities ever since. Facilities included barns, livestock arena, horse stalls and ancillary facilities. A creek ran through a portion of the fairgrounds. 

In 2009, the Deputy Sheriff’s association proposed a multi-day rodeo. The District Fair Association approved the special event relying upon a CEQA categorical exemption, but the rodeo did not go forward. Around the same time, the Regional Water Quality Control Board expressed concern over water quality in the watershed as a result of increasing human and animal fecal coliform counts. The Regional Board adopted maximum daily load standards for fecal coliform in 2010, and the Agricultural Association began monitoring water quality entering and existing the Fairgrounds property. Sampling at the Fairground indicated that the coliform counts for water entering the fairgrounds property exceeded the coliform counts of water leaving the fairgrounds site. 

Starting in 1960, the Fairground had taken steps to manage manure produced at events.  Initially, the manure was stored onsite. Beginning the 1990s, the manure was removed daily as part of the special events. These practices were formalized in writing in 2010, resulting in a Manure Management Plan. In 2011, the Sheriff’s association proposed a new, smaller two day rodeo event. The District Fair Association approved the rodeo event based upon a Class 23 categorical exemption (“normal operations of existing facilities….). The Fair Association issued a Notice of Exemption (“NOE”) which documented the history of the fair activities and also discussed the inapplicability of any of the regulatory exceptions to the use of the exemption. Opponents filed suit challenging the use of a CEQA exemption. The trial court denied the petition for writ of mandate and the opponents appealed presenting three issues: (1) the manure management plan was a mitigation measure and, CEQA does not permit a lead agency to mitigate into an exemption, and (2) unusual circumstances defeated the use of an exemption.  The appellate court denied relief as well. 

First, as to the argument that the Manure Management Plan (“MMP”) was an added mitigation measure and that a lead agency should not consider mitigation measures when applying exemptions (Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4th 1098 [“SPAWN”]), the appellate court said that evidence reflected that the MMP was a pre-existing measure implemented to address a pre-existing problem. Unlike SPAWN, no mitigation measure was added to the proposed rodeo event, and none was listed on the NOE and, therefore, use of the exemption was proper. 

Turning next to the argument of unusual circumstances, the appellate court first discussed the nature of the Class 23 exemption (normal operations of Public Gathering Facilities) for purposes of framing the discussion of the unusual circumstances argument. The “normal operations” of the fairgrounds included the special events and the internal operations associated with putting on those events. There was no change in the level of use, nor was it necessary to make modifications to accommodate this particular rodeo event. The appellate court then applied the Supreme Court’s methodology from Berkeley Hillside ((2015) 60 Cal.4th 1086), applying the substantial evidence test to the factual question of whether or not the project presents unusual circumstances. The opponents urged the court to compare the rodeo to other public events like stadiums, convention centers, swimming pools and the like. The court rejected the invitation to compare the rodeo event to a broader list of public facilities given their significant differences. The court noted that even if the comparison was made, there was no evidence in the administrative record of the differences in activities and related impacts.   

Finally, the appellate court analyzed the alternative argument in Berkeley Hillside used to defeat an exemption. If a project will (as compared to may) have an impact on the environment, then that would be an unusual circumstance defeating the exemption. Looking again at the administrative record, the appellate court found that the evidence did not support a conclusion that the proposed activity would impact the environment.

Defend Our Waterfront v. California State Lands Commission (2015) 240 Cal.App.4th 570.

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.

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.

5.         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.

6.         ENVIRONMENTAL IMPACT REPORTS

North Coast Rivers Alliance v. Kawamura (December 2, 2015) ___ Cal.App.4th ___.

            EIR found to be invalid for inadequate range of alternatives.

The Third Appellate District found an EIR to be inadequate for lack of a particular alternative. While this suggests a potential micromanagement of the EIR process, the decision involves an unusual fact pattern. The lead agency was California Department of Food and Agriculture, proposing a seven year program to eradicate an invasive insect, the light brown apple moth (“LBAM”)[1]. Found in select northern California counties, this insect had spread rapidly notwithstanding State efforts to control the pest. The State proposed a program to eliminate the insect (as compared to managing its population) and prepared an EIR. At the end of the EIR process, the State approved a 7 year program to control LBAMs based upon new information that eradication was not deemed to be attainable. “Control”, as compared to eradication, was not considered in the EIR as a reasonable alternative. Rather, the alternatives section examined seven techniques for management (5 of which were approved as part of the project.) Opponents filed suit, arguing primarily project segmentation (after all, the pest was only to be controlled not eradicated within 7 years), unstable project description and inadequate project alternatives.

The project objective was defined as “eradication”, an objective determined by the appellate court to be too narrow. Eradication was used as a screening tool to not consideration control, which in the end is what the State approved. The fact that the State approved control in the end did not salvage the EIR as the error was deemed to be prejudicial. While late project adjustments might be allowable if insignificant, the court viewed the administrative record as lacking in supporting an insignificance conclusion because of the omission of any consideration of control in the EIR. The court also observed that it the record supported the inference that impacts associated with control might be greater that eradication because of the potentially indefinite duration. 

Petitioners also argued another of other technical defects in specific impact analyses, but these were all rejected by the appellate court. The court considered but rejected an argument that the EIR was defective for failure to consider site specific impacts.  Finally, the court addressed a cumulative impacts argument stating that the new EIR take into consideration the long term (post 7 year effects and treatment) in the evaluation of cumulative impacts.

City of Hayward v. Trustees of California State University (2015) 242 Cal. App. 4th 833.

The California State University Board of Trustees (“Trustees”) certified an EIR for its adoption of a Campus Master Plan for future expansion at California State University East Bay in the City of Hayward. The City of Hayward filed suit, arguing the Trustees: (1) failed to mitigate the projects impacts from increased demands on the city’s fire and medical emergency services; (2) adopted deferred mitigation for traffic and parking impacts under its Transportation Demand Management Plan; and (3) failed to properly analyze the project’s impacts on parkland from the additional students. The court found that the Trustees’ EIR was adequate as to emergency services, as well as traffic and parking mitigation, but that the Trustees must re-analyze the impacts to parkland. The court reasoned that no mitigation was necessary for increased demand for fire/emergency services, because those impacts were social and economic effects that did not require mitigation under CEQA. It also reasoned that the Transportation Demand Management Plan was sufficient mitigation, due to the inclusion of performance goals, policies, timelines, monitoring and an enforceable commitment to mitigate. As for parkland impacts, the court was not satisfied with the Trustees’ reliance on a finding that students’ use of the City’s neighboring parks was minimal. It reasoned that the Trustees failed to include any evidence to support that finding and, thus, must go back and meaningfully analyze the potential impacts from increased students at the campus.

Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627.

The Los Angeles County Metropolitan Transportation Authority (Metro) approved a subway system expansion that includes a new station in Century City, along with a tunnel under a high school.  The Beverly Hills Unified School District filed a writ petition alleging that Metro failed to comply with the California Environmental Quality Act (CEQA).  The City of Beverly Hills also filed a writ petition, alleging that Metro failed to comply with CEQA and failed to provide a full and fair hearing under Public Utilities Code section 30639.  The Court of Appeal for the Second Appellate District affirmed the trial court’s denial of both petitions on the grounds that, among other things: (1) substantial evidence supported Metro’s decision not to prepare and recirculate a new draft environmental impact statement/environmental impact report (EIS/EIR) for public comment due to an additional fault study regarding the station and tunnel safety study; (2) the EIS/EIR adequately discussed localized air pollution and public health impacts from construction of the project; and (3) Metro did not violate the statutory requirements in conducting a transit hearing under section 30639 and that the City received a full and fair hearing.

San Francisco Baykeeper, Inc. v. State Lands Commission (2015) 242 Cal.App.4th 202. 

The Court of Appeal for the First Appellate District held that the State Lands Commission (“SLC”) complied with CEQA in authorizing new 10-year mineral extraction leases for dredge mining of sand on sovereign land under the San Francisco Bay. Specifically, SLC applied a proper baseline based upon a five year average of prior operations. Also, CEQA was complied with because erosion and cumulative impacts were sufficiently discussed; recirculation based on new studies that altered no substantive conclusions on those issues was unnecessary; measuring impacts on mineral resources in terms of access was permissible; and although SLC violated CEQA requirements designed to ensure that it consult with affected agencies including the California Coastal Commission and the City of San Francisco, there was no evidence of prejudice from those notice and consultation violations. However, the Court of Appeal also held that SLC erred in approving the leases without considering whether the leases were a proper use of public trust property. 

Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal.4th 204.

The California Supreme Court upheld the use of the Scoping Plan as an appropriate threshold of significance for evaluating greenhouse impacts. The issue arose in the context of a project approval for Newhall Ranch, a new community to be located north of Los Angeles. The EIR concluded that the project’s impact would be less than significant given that the anticipated GHG levels would be below the Scoping Plan targets due to project design elements. The court also rejected the argument that reliance upon the Scoping Plan improperly utilized a future baseline. The court concluded that due to the unique characteristics of GHG generation that reliance on the Plan’s future year targets was appropriate. However, the court held the EIR analysis to be invalid because there was no explanation of how the Scoping Plan targets could be correlated to individual projects.  

Without endorsing any particular approach for any given situation, the court identified three pathways for a sufficient analysis.

a.                Utilizing the data behind the Scoping Plan to show how there is correlation to a specific project (note: most practitioners express serious doubts about whether this can be done.)

b.               Tiering or streamlining through a Climate Action Plan or SCS.

c.                Using an appropriate numerical threshold.  (Note, while the lead agency can use a threshold of significance, these thresholds represent the “norm” and the lead agency must still independently determine the significance.)

Crenshaw Subway Coalition v. Los Angeles County Metropolitan Transportation Authority 2015 U.S. Dist. LEXIS 143642.

The U.S. District Court considered several CEQA challenges to the adequacy of a joint EIR/EIS prepared for approval Crenshaw/LAX Transit Corridor Project (the "Project"), an 8.5-mile light-rail line that connects the Metro Green Line to the Exposition Line in Los Angeles County.  The respondent agencies, the Federal Transit Administration and the L.A. County Metropolitan Transportation Authority (“FTA/MTA”), after evaluating several design options, initially dismissed a below-grade design option at the contested location as infeasible for cost and engineering reasons. The agencies subsequently completed the CEQA/NEPA process, receiving hundreds of comments, and ultimately approving the at-grade design option for a seven block section of Crenshaw Boulevard. The petitioners filed suit, claiming several violations of CEQA, in addition to NEPA and unlawful discrimination claims, including failure to: (1) evaluate the below-grade alternative in the EIR/S; (2) adopt infeasibility findings for the below-grade alternative; (3) adequately support findings on impacts to land use, community, parking, public safety and environmental justice with substantial evidence; and (4) adopt adequate mitigation measures. 

The District Court dismissed each claim, finding that FTA/MTA properly adopted the EIR/S and granted the agencies’ Motion for Summary Judgment on all CEQA claims. The court reasoned that FTA/MTA was not required to evaluate the below-grade alternative in the EIR/S, because it had already properly rejected the option as infeasible early in the process. In addition, because of the alternative was properly rejected, nothing in CEQA required FTA/MTA to adopt specific infeasibility findings. The court then relied on numerous factual citations in the record to reject the claim that the agencies’ factual findings were unsupported, and dismissed the petitioner’s claims on the adequacy of mitigation measures, finding that they were barred for failure to raise such concerns during the administrative process.

North County Advocates v.City of Carlsbad(2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since. 

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal. 

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment. 

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline: 

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.” 

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.” 

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

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.4th 671.

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.

7.         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. 

8.         LEGISLATION

AB 117 (Chapter 16) Public Resources Budget Trailer Bill

Provides that an “Environmental Leadership” project certified by the Governor under the Environmental Leadership Act of 2011, which allows the Governor to certify projects that meet specific environmental and economic benefit standards for streamlined CEQA review, loses the certification if the lead agency does not approve the project by January 1, 2017.

AB 323 (Chapter 52) California Environmental Quality Act: exemption: roadway improvement

Extends the sunset date from January 1, 2016 to January 1, 2020, for the CEQA exemption for projects to repair, or make minor alterations to an existing roadway, as defined, if the project is carried out by a city or county with a population less than 100,000 to improve public safety.

SB 88 (Chapter 88) Water

Enacts the following new CEQA exemptions: (1) a statutory exemption for a project carried out by a public agency to construct a recycled water pipeline for groundwater replenishment within an existing right-of-way that does not affect wetlands or sensitive habitat and fully mitigates its construction impacts consistent with applicable law – the exemption remains operative until the emergency drought declaration ends or January 1, 2017, whichever comes first; (2) a state agencies’ adoption of building standards for recycled water systems – the exemption remains operative until July 1, 2017; and (3) adoption of an ordinance by local agencies limiting the drilling of new or deeper groundwater wells, or to limit or prohibit increased water extractions from existing wells through conditions on the issuance of well permits or changes in land use intensity that increases groundwater demand – the exemption remains operative until the emergency drought declaration ends or July 1, 2017, whichever is later.

SB 348 (Chapter 143) California Environmental Quality Act: exemption: railroad crossings

Requires a lead agency that applies the CEQA exemption for a railroad grade separation project that either: (1) eliminates an existing grade crossing; or (2) reconstructs an existing grade separation, to file a Notice of Exemption with the Office of Planning and Research. In addition, local lead agencies must also file the Notice of Exemption with the county clerk of every affected county. The bill also extends the sunset date from January 1, 2016, to January 1, 2019, for the CEQA exemption for the California Public Utilities Commission’s closure of a railroad grade crossing based upon a threat to public safety.

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.



[1] From Australia, which has also brought us Mad Max, Crocodile Dundee, and shrimp-on-the-barbie.

 

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REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Despite New Study Of Seismic Risks, Republication Of EIS/EIR Is Not Required For LA Subway Expansion Because Public Had Meaningful Opportunity To Comment On The Project

By Glen Hansen

Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627

In Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627, the Los Angeles County Metropolitan Transportation Authority (“Metro”) approved the Westside Subway Extension Project (“Project”), which will extend the Metro Purple Line heavy rail transit subway system to the Westside of Los Angeles. The Project includes a new station that will be located in Century City, at Constellation Boulevard and Avenue of the Stars (the “Constellation Station”). To reach this station, the subway will travel through a tunnel to be constructed under Beverly Hills High School. During the planning and environmental review process, the Beverly Hills Unified School District (“School District”) and the City of Beverly Hills (“City”) objected to the placement of the subway tunnel under the high school and other properties located in Beverly Hills.

Following Metro’s approval of the Project, the School District filed a writ petition alleging that Metro failed to comply with the California Environmental Quality Act (“CEQA”) because, among other things, the final EIS/EIR contained significant new information that was not included in the draft EIS/EIR, and therefore Metro was required, but failed, to prepare and recirculate a supplemental draft EIS/EIR for public comment; Metro failed to conduct a comparative risk assessment of the Constellation station and two alternative locations for that station; and Metro’s addendum to the final EIS/EIR, which made changes to the air quality impact section, was improper.  The City alleged in a separate writ petition that Metro violated CEQA by, among other things, failing to recirculate the EIS/EIR; failing to analyze the potential impacts associated with the Constellation station; failing to properly describe the baseline physical conditions, analyze significant impacts, adopt feasible mitigation measures or alternatives, and support its conclusions with substantial evidence; pre-committing to project approval; failing to support its findings and statement of overriding considerations with substantial evidence; approving the transit hearing decision and findings without first analyzing the environmental impacts of that decision and findings; and violating Public Utilities Code section 30639 et seq. by, among other things, failing to present Metro’s expert witnesses at the transit hearing to allow City to cross-examine them and closing the transit hearing and then presenting Metro’s expert witnesses during the public comment period. The City further alleged that the Metro board prejudicially abused its discretion by issuing the decision not supported by the findings and by adopting findings that are not supported by the evidence presented at the transit hearing. The trial court denied both petitions in their entirety, and the School District and the City appealed. The Court of Appeal affirmed. 

Recirculation

On appeal, the School District and the City argued that Metro was required to recirculate the EIS/EIR because the new information in the final EIS/EIR—Metro’s fault investigation and tunnel safety reports—reversed the draft EIS/EIR’s analysis regarding the Century City station location, resulting in the elimination of the “base” station and leaving only the “optional” alternative - the Constellation Station). Therefore, they contend the new information was necessary and dispositive to the Metro board's selection of the Constellation station, and thus constituted “significant new information” requiring recirculation.  The court disagreed.

Contrary to the semantic argument raised by the School District ant the City, the draft EIR/EIS evaluated both station locations equally. Furthermore, the draft EIS/EIR did address environmental issues arising from tunneling under the high school. Also, the School District and City mischaracterized the draft EIS/EIR's discussions of the seismic faults in the area. The draft EIS/EIR presented two options for the Century City station, discussed the potential environmental impacts of both stations, including the impacts of tunneling under the high school, and indicated that one of the two options might not be viable due to seismic risk but that further studies were being conducted to determine whether that option is viable. The public was given an opportunity to comment on the environmental impacts of both station options, and School District and City took advantage of that opportunity. The new information in the final EIS/EIR merely confirmed that certain station locations were not viable. The new information also confirmed and expanded upon the draft EIS/EIR's analysis of the potential environmental impacts from the Constellation station. The elimination of one of the station locations as an option did nothing to change the potential environmental impacts of the Project, other than to eliminate a potential source of seismic hazard. Thus, substantial evidence supported Metro's decision not to recirculate the EIS/EIR due to the additional fault study and tunnel safety study, because the EIS/EIR was not changed in a way that deprived the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the Project or a feasible way to mitigate or avoid any such effect.

Air Pollution and Public Health Impacts

On appeal, the City contended that Metro abused its discretion by failing to recirculate the EIS/EIR because when the final EIS/EIR was released it reported significant new air quality impacts and greatly lengthened construction times. The court disagreed.  Although the final EIS/EIR reported significantly higher levels of air quality construction impacts than were reported in the draft EIS/EIR, and stated that many of those impacts could not be mitigated to levels below SCAQMD thresholds for most pollutants, those elevated impacts were due to the accelerated construction schedule that was developed to minimize the disturbances to residents and business caused by construction.  Before the Metro board recertified the final EIS/EIR, Metro issued an addendum to the final EIS/EIR that reduced the reported impacts to the same (or lower) levels as reported in the draft EIS/EIR. The addendum was based on a new analysis that showed that during construction of the entire Project, SCAQMD thresholds would be exceeded for nitrous oxides and particulate matter without implementation of mitigation.  With implementation of the recommended mitigation measures, the levels of particulate matter will be reduced to below SCAQMD thresholds, but the nitrous oxide levels, although reduced, would remain above the threshold. That was the same conclusion reached in the draft EIS/EIR.  Not only would there be no purpose that would be served by recirculating the EIS/EIR, but there is substantial evidence to support Metro's decision not to recirculate the EIS/EIR. 

Also, the City contended that the EIS/EIR was legally inadequate because it failed to analyze localized air pollution and public health impacts from construction of the project. However, the could held that an agency does not need to analyze air quality impacts against localized significance thresholds when it has analyzed the impacts against thresholds established by its local regional air quality management district. Furthermore, the EIS/EIR was not required to include an analysis showing how the actual construction emissions will specifically impact public health. And the EIS/EIR in this case was circulated with an air quality technical report that identified the potential adverse health effects of exposure to each of the identified pollutants.

Transit Hearing Under Public Utilities Code Section 30639

The court also found that Metro did not violate the statutory requirements in conducting a transit hearing under Public Utilities Code section 30639. The City contented that the transit hearing was a sham on the ground that the Metro board allegedly had prejudged the issue regarding the location of the Century City station because it had already adopted findings of fact covering the entire Project, including the Constellation station.  However, the court found that the Metro board did not adopt findings of fact for the entire project before the transit hearing. Furthermore, the City’s assertion that Metro violated City’s right to a fair hearing was wrongly premised on the assumption that Metro was acting in an adjudicatory capacity with regard to the transit hearing, when actually that was a quasi-legislative decision and the rules against prejudgment of adjudicatory facts do not apply to quasi-legislative decisions. Furthermore, the City received a full and fair hearing because the Metro Board could properly exclude cross-examination of Metro’s expert witnesses in this quasi-legislative proceeding, and could only allow documentary evidence from the City. Moreover, the documentary evidence was not used as proof of the matter asserted, but simply to show that it existed, and it therefore was not hearsay.

Glen Hansen is Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

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It's All About That Baseline: Factors to Consider When Establishing a CEQA Baseline

By Brian Russell 

North County Advocates v.City of Carlsbad (2015) 241 Cal.App.4th 94.

Westfield, the landowner and developer, (“Westfield”) proposed to renovate a 40‑year‑old shopping center located in the City of Carlsbad, California (“City”). In July 2013, the City approved Westfield’s request to renovate the former Robinsons-May store and other small portions of the shopping center (“Project”). North County Advocates (“Advocates”) challenged the City’s approval under the California Environmental Quality Act (“CEQA”), arguing that the Project’s environmental impact report (“EIR”) used an improper baseline in its traffic analysis because it treated the Robinsons-May store as fully occupied, even though it was vacated in 2006 and had been only periodically occupied since.

Advocates filed a petition for writ of mandate challenging the City’s approval of the project, and the trial court denied Advocates’ petition. Advocates appealed the trial court’s judgment to the Fourth District Court of Appeal.

Advocates contended that the EIR’s traffic baseline is “incorrect and misleading” because it did not follow the “‘normally’” applicable rule of measuring conditions as they actually existed when environmental review began. Advocates argued that the City instead “falsely inflated the existing traffic conditions” by “imputing over 5,000 daily trips” to the baseline premised on a fully occupied Robinsons-May building when, in fact, Robinsons-May vacated the space in 2006. By falsely inflating the existing traffic conditions, the baseline understates the Project’s true impact on the environment.

The EIR’s Transportation Study elaborated on the City’s determination of the traffic baseline:

“Westfield Plaza Camino Real is an existing super regional shopping center which is entitled for 1,151,092 square feet of retail commercial space. All of the currently entitled square footage is completely constructed. However, the nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates. Plaza Camino Real currently has unoccupied leasable space beyond the normal amount, mainly the 148,159 square foot Robinsons-May building. Since this space is currently vacant, traffic from this space is not included in the actual traffic counts conducted at the analyzed intersections and street segments. However, for the purposes of determining the Existing Baseline Conditions pursuant to CEQA Guidelines Section 15125, trips attributable to that currently unoccupied space are imputed. A full occupancy assumption is consistent with San Diego Association of Government’s regional traffic modeling methodology which assumes full occupancy of all entitled square footage. It is also consistent with the City of Carlsbad and City of Oceanside’s determination of existing baseline because the currently vacant space could be occupied at anytime without discretionary action. In fact, portions of that space are periodically occupied with temporary uses such as a Halloween store which leases the space in the month of October. For these reasons, full occupancy of all entitled square footage is assumed in determining the Existing Baseline Conditions.”

Using the baseline with the imputed Robinsons-May traffic, the Transportation Study concluded the “Project will not result in a significant impact at any of the analyzed intersections during either peak hour, or any of the analyzed street segments during either peak hour or daily conditions.”

The appellate court concluded that the City’s selection of a traffic baseline that assumed full occupancy of the Robinsons-May space was not merely hypothetical because it was not based solely on Westfield’s entitlement to reoccupy the Robinsons-May building “at anytime with discretionary action” but was also based on the actual historical operation of the space at full occupancy for more than 30 years up until 2006. Then, from 2007 to 2009, the Robinson-May space had a reduction in occupied square footage. The court viewed this fluctuating occupancy, “which is the nature of a shopping center,” to allow the agency to have the discretion to consider conditions over a range of time periods to account for a temporary lull or spike in operations. Further, the City’s decision to base the traffic baseline on historical occupancy rates is further supported by substantial evidence consisting of San Diego Association of Government data on such use levels. These factors together were substantial evidence which supported the City’s exercise of discretion in selecting a traffic baseline that assumed a fully occupied Robinsons‑May building.

Brian Russell is an associate attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

REGISTER TODAY! Abbott & Kindermann's 15th Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of four seminars taking place in early 2016.

In January and February 2016 Abbott & Kindermann, LLP will present its 15th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2015 case law and legislative updates includes the following hot topics for 2016:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Modesto, Sacramento and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Modesto Conference  (To Register for the Modesto Location Click Here)

  • Date: Friday, January 22, 2016
  • Location: Double Tree Hotel Modesto, 1150 Ninth Street
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

  • Date: Friday, February 5, 2016
  • Location: Sacramento Hilton Arden West, 2200 Harvard Street
  • Registration: 8:30 a.m. - 9:00 a.m. with continental breakfast
  • Program: 9:00 a.m. - 12:00 noon

Redding Conference  (To Register for the Redding Location Click Here)

  • Date: Tuesday, February 9, 2016
  • Location: Hilton Garden Inn Redding, 5050 Bechelli Lane
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

  • Date: Thursday, February 11, 2016
  • Location: Embassy Suites, 1075 California Boulevard
  • Registration: 12:30 p.m. – 1:00 p.m.
  • Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Six Years and Counting to Build A Single Family Home. Who Says We Need CEQA Reform?

Berkeley Hillside Preservation v. City of Berkeley (2015) 241 Cal.App.4th 943. 

By William W. Abbott

The history of the controversial home in the Berkeley Hills is well documented. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (The California Supreme Court Tackles CEQA's Gordian Knot: Unusual Circumstances and CEQA Exemptions [http://blog.aklandlaw.com/2015/03/articles/ceqa/the-california-supreme-court-tackles-ceqas-gordian-knot-unusual-circumstances-and-ceqa-exemptions/] Admittedly, it is no ordinary residence: a two story home of 6,478 square feet with a 3,394 square foot 10-car garage, located on a hillside. The new home construction necessitated demolition of an existing dwelling. It is at the end of the day, a single family home nonetheless. The architect filed plans with the City in 2009, and the application was approved in early 2010. In approving the plans, the City relied upon a categorical exemption. The ensuing legal challenges eventually made it to the California Supreme Court, resulting in the Court’s decision addressing the required analysis for the use of CEQA exemptions, including the limitations of the “unusual circumstances” exception. Following the Supreme Court’s decision (BH1), the matter was remanded to apply the Supreme Court’s guidance to the remaining claims.

Although the appellate court had sided with the opponents in BH1, the appellate court rigorously followed the Supreme Court’s strictures on remand. In BH2, the court noted that the opponents had conceded that there was substantial evidence in the record to support the use of an exemption, so the legal debate on remand centered on the alleged unusual circumstances. In asserting unusual circumstances, the opponents focused on two issues: size of the home and the setting. The opponents also argued that the City had improperly mitigated its way into an exemption by using a traffic mitigation plan. As to home size, the evidence in support of the City’s decision was that the proposed home was not unusual when evaluated in the context of the surrounding homes.  As to the claim based upon setting, there was no evidence of a geological fault onsite, or that the house was visible from the public right of way (and therefore would have no effect on the aesthetic values of the neighborhood.) (The appellate court also concluded that any argument based upon geotechnical issues was foreclosed in BH1.) The final issue of note was the traffic mitigation plan. The opponents relied upon Salmon Protection & Watershed Network (2004) 125 Cal.App.4th 1098, in which the appellate court concluded that a lead agency could not mitigate its way into an exemption. In BH2, the court after reviewing the record agreed with the City that the traffic mitigation plan was a standard development condition and was not intended as specific mitigation. Therefore, Salmon Protection was not controlling and the use of the exemption was proper.

The applicants still have one more potential hurdle to cross. Will the Supreme Court take this case up? After six years, what is the hurry?

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

2015 CEQA 3rd QUARTER REVIEW

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.

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Proactive Land Use Entitlement Strategies For Raw Land And Updates To Existing Entitlements

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WILL CSU EVER GRADUATE FROM CEQA SCHOOL?

By William W. Abbott

City of San Diego v. Board of Trustees of the California State University, S199557, Supreme Court of California, 2015 Cal. LEXIS 5291, August 3, 2015

The California Supreme Court cleared the air over one of its earlier CEQA decisions concerning the responsibility of CSU to consider and mitigate for offsite impacts. In 2006, the Court determined that CSU Monterey was not precluded from mitigating for offsite impacts occurring in the City of Marina. City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341. In the Marina decision, the court stated “[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.” The University system is directed by a Board of Trustees, who, in reliance upon the above quoted language in Marina, determined that the University was not authorized to engage in offsite mitigation absent a specific legislative appropriation.

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Return of Banning Ranch: The Spurned Responsible Agency

By Daniel S. Cucchi

Banning Ranch Conservancy v. City of Newport Beach
(2015) 236 Cal.App.4th 1341 (“Banning Ranch II”).

In the latest installment of the Banning Ranch saga, we are provided another great example of the importance of carefully chosen words and phrases in a jurisdiction’s general plan policies and action statements.  In Banning Ranch II (2015), the City of Newport Beach approved a residential and commercial project located on one quarter of the 400-acre, largely undeveloped coastal property known as Banning Ranch. As the city processed the application, staff engaged with the Coastal Commission (“Commission”) through: (1) notification that the city was processing the project; (2) meetings to discuss Commission staff’s concerns; and (3) responding to the Commission’s submitted comments on the DEIR. Not satisfied with the project as proposed, the Commission commented that the city was required to work with the Commission to decide the appropriate use of habitats prior to project approval. The city responded by simply making it clear in the EIR that the project would not go forward without a coastal development permit from the Commission. The City then proceeded to approve the project, as is. Banning Ranch Conservancy (“Petitioners”) filed suit, arguing that: (1) the City violated its own general plan by failing to adequately coordinate with the Commission; and (2) the city’s EIR failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The trial court found the city violated its general plan, but upheld the adequacy of its EIR. Both parties appealed.

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"Outrageous" CEQA Attorneys' Fees - Anatomy Of A 91% Haircut On Fee Recovery

By Glen Hansen

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

In 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, because petitioner (a) prevailed on only one of its numerous claims under the California Environmental Quality Act (“CEQA”) and local zoning ordinances; (b) excessively billed the case; and (c) failed to demonstrate why it was entitled to out-of-area attorney fee rates.

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2015 CEQA 2nd QUARTER REVIEW

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

Welcome to Abbott & Kindermann’s 2015 2nd 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. Highlights include the first decision (Paulek) to address exemptions following Berkeley Hillside, with this new decision succeeding in muddying CEQA legal waters. Keep Our Mountain Quiet reminds CEQA practitioners once again of the challenges when using negative declarations and will make life more difficult in the agritourism industry. And in litigation, the court of appeal affirms that a trial court decision as to an award of attorneys’ fees is rarely disturbed on appeal (Save Our Uniquely Rural Environment).

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"Happily ever after?" Not according to the neighbors of rural wedding site venue.

NEGATIVE DECLARATION FOR RURAL WEDDING SITE VENUE SET ASIDE DUE TO POTENTIAL ROAD AND NOISE IMPACTS

By William W. Abbott

Keep Our Mountains Quiet v. County of Santa Clara (May 7, 2015, H039707) ___ Cal.App.4th ___.

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 park land 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 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) 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 attorney 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.

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California Courts Are Provided Broad Discretion When Awarding "Reasonable" Legal Fees Under CEQA

By: Brian Russell

Save Our Uniquely Rural Community Environment v. County of San Bernardino (March 18, 2015, E059524) ___Cal.App.4th ___.

Plaintiff and appellant Save Our Uniquely Rural Community Environment (SOURCE) appealed an award of attorney fees in a case arising under CEQA. It contended that the trial court abused its discretion when it awarded $19,176, despite SOURCE's request for $231,098.

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First Tier Functionally Equivalent CEQA Document Upheld for Adoption of Basin Plan Amendment and TMDL Standard

By Katherine J. Hart

Charles Conway Jr v. State Water Resources Control Board (March 30, 2015, B252688) ___ Cal.App.4th ___.

Functionally equivalent CEQA documents can be tiered in a manner similar to a regular EIR. This new CEQA decision involved a basin plan amendment (BPA) establishing a total maximum daily load (TMDL) of pollutants allowed in McGrath Lake. The BPA/TMDL was adopted by the Regional Water Quality Control Board (Regional Board) and approved by the State Water Resources Control Board (State Board) and U.S. Environmental Protection Agency (EPA). Landowners who own a portion of the lake were allocated a load under the TMDL, which would make them responsible for remediation of the lake pollution. The landowners challenged the Boards’ adoption of the TMDL on two grounds: first, that the Regional Board improperly set load allocations for concentrations of pollutants contained in the lake bed sediment, and that a TMDL can only regulate the movement of pollutants in the water column; and (2) that the Regional Board failed to comply with CEQA. The trial court denied the plaintiffs’ claims and the appellate court affirmed.

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2015 CEQA 1st QUARTER REVIEW

By William W. Abbott, Diane G. Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2015 1st Quarter CEQA update. This summary provides links to more in depth case discussions located on the firm’s blog.

While there were only five published decisions in the first quarter of 2015, it was certainly noteworthy for the California Supreme Court’s decision in Berkeley Hillside, a decision which clarifies and incrementally advances the use of exemptions. As explained in our article, the battle for the heights in Berkeley is far from over. However, the appellate courts in turn wrestled with setting the baseline after an emergency project (Creed 21), tiering for functionally equivalent documents (Conway) and EIR sufficiency for Sacramento’s downtown entertainment and sports complex (Saltonstall). Finally, the court upheld the level of detail and range of alternatives in the EIR prepared by the California Department of Fish and Wildlife on its stocking, fishery and urban fishing program (CBD). 

We also include a summary of all of the CEQA cases pending at the California Supreme Court. To review our 2014 CEQA Annual Summary click here.

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Home Team Wins In Overtime CEQA Matchup

By William W. Abbott

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

The court of appeal affirms sufficiency of EIR for downtown entertainment and sports complex and concludes that the city had not pre-committed itself through eminent domain proceedings prior to EIR certification.

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Appellate Court Affirms Programmatic EIR For Fish Hatchery And Stocking Program; Holds That Mitigation Measures Applicable To Private Parties Adopted By California Fish & Wildlife Must Be Adopted As Regulations

By William W. Abbott

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

For over 100 years, the State of California has operated fish hatcheries. In the last twenty years, concerns have developed over the potential impacts of stocked fish on native and wild animals. Evidence suggested that amphibians in high altitude lakes were particularly vulnerable. Beginning in 2001, the then Department of Fish and Game begin performing surveys of high altitude lakes, completing over 16,000 surveys. The surveys formed the basis of management plans for 27 watershed areas. The Department also began working on hatchery genetic management plans, a planning tool under the Federal Endangered Species Act of 1973. (As of January 2010, none of these plans had been adopted.) In 2006, the Center for Biological Diversity (CBD) filed suit, claiming that the hatchery and stocking efforts were not exempt from CEQA review. In 2007, the court granted the writ of mandate compelling CEQA compliance, but did not suspend the hatchery and restocking program. The Department did not appeal, and proceeded with an EIR. In 2008, the Department moved to extend the deadline to complete the EIR, based in part that program funding was in part federal, and that the EIR would be combined with an EIS. In early 2010, the Department certified a program EIR, covering not only the state’s hatchery and stocking program, but Fishing in the City, Aquarium Education Project and fish stocking practices by private stocking companies working in private and public water. The EIR concluded that there were impacts to amphibians, and developed a new protocol requiring pre-stocking surveys. Based upon an evaluation by a biologist, if potential impacts could occur then no stocking could take place until the Department developed and implemented an aquatic biodiversity management plan. If no impacts were anticipated, then stocking could proceed, a decision valid for five years. The EIRs analysis was based upon a baseline of 2004-2008, which included hatchery and stocking practices. As mitigation for impacts to wild salmon and steelhead populations, the Department committed to the hatchery genetic management plans, including federal approval. Additional mitigation measures were developed and applied to private stocking permit operators.

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Appellate Court Harmonizes "Its All About That Bass" (Baseline That Is)

Court Upholds Use Of Post Emergency Construction Conditions As Baseline For Project Description

By William W. Abbott

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

As reflected in the recent decision in CREED-21 v. City of San Diego, a lead agency can validly “reset” the baseline for CEQA analysis to the post-emergency condition, even in circumstances in which the lead agency had previously considered undertaking the construction and post-construction work in non-emergency conditions.

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The California Supreme Court Tackles CEQA's Gordian Knot: Unusual Circumstances and CEQA Exemptions

By William W. Abbott

Berkeley Hillside Preservation v. City of Berkeley, S201116, SUPREME COURT OF CALIFORNIA, 2015 Cal. LEXIS 1213, March 2, 2015, Filed.

While the long wait is over, issues remain for CEQA practitioners. The California Supreme Court finally issued its decision in Berkeley Hillside Preservation v. City of Berkeley, a case which addresses the application of the “unusual circumstances” limitation on the use of certain CEQA categorical exemptions. The decision is lengthy at 64 pages. Justice Chin authored the opinion, joined by four justices, one of whom is retired (J. Baxter) and one of whom was from the Court of Appeal sitting on assignment (J. Boren). Justice Liu and Wedegar concurred in one aspect of the majority’s decision, but disagreed as to the seminal legal question. Counting heads, it was a 3-2 decision by the sitting justices, with two new justices to fill out the court’s roster. With a 3-2 decision, apparently all sides can declare victory. Consider the views of project opponents as well as property rights advocates.

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2014 CEQA ANNUAL REVIEW

By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2014 Annual CEQA update, cumulative for the year. The 4th quarter decisions are highlighted in bold font. To read the prior year cumulative CEQA review, click here: 2013

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County's Approval of 100 Year Mining Project and EIR Upheld by Fifth DCA

By Katherine J. Hart

Friends of the Kings River v. County of Fresno (2014) 232 Cal.App.4th 105.

In the most recent CEQA case out of California’s Fifth Appellate District, the court of appeal upheld an EIR certified by the County of Fresno (County) as well as the County’s approvals of a use permit, site plan and reclamation plan for a large mining project.

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Make No Grand (General) Plans

By William W. Abbott

Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.

As with many cities and counties updating their general plans, the County of San Diego committed to adopting a climate action strategy. This commitment was formulated in 2011 as part of the county’s general plan update, based upon a program EIR (PEIR). In 2012, county staff advanced a Climate Action Plan (CAP) along with suggested thresholds of significance which would apply to the processing of later projects. The county relied upon an addendum to its 2011 general plan PEIR. The Sierra Club sued. The trial court agreed that the county had violated CEQA. The county appealed and the appellate court affirmed that the county violated CEQA. Where did the county go wrong?

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Objector's Questioning Of Project Sufficient To Meet The Standing Requirement To Bring a CEQA Claim. Separating Out A Portion of the Original Project For Separate Environmental Review Did Not Result In Impermissible Project Splitting.

By William W. Abbott

Paulek v. Department of Water Resources (2014) 231 Cal.App.4th 35.

It is a subtle shade of grey which separates a generalized comment on a project from an objection sufficient to support a later CEQA lawsuit. The California Department of Water Resources crafted this distinction in a case involving a CEQA challenge to a dam remediation project at Perris Lake, located within the Lake Perris State Recreation Area. The project included the following components: remediation of structural deficiencies; replacement of the existing outlet tower; and construction of an emergency outlet extension. In response to comments on the DEIR, the lead agency separated out the emergency outlet extension for separate CEQA review. In response to the CEQA lawsuit, the state (as the lead agency) argued that petitioner Paulek had only posed questions regarding the project, but had not “objected” to the project as required by Public Resources Code section 21177 and therefore, lacked standing to pursue a CEQA claim. Reviewing the transcript and comments, the court of appeal concluded that a question could readily be understood as an objection, as would questioning of the lead agency which inquired as to whether a project would achieve its objectives. On the latter point, the appellate court held this was part of the CEQA process as CEQA requires a balancing of interests. [Comment: in practical terms, this case affirms the widely held belief that it is not difficult for a potential CEQA petitioner to satisfy the obligation to object to the project as a condition precedent to bringing a CEQA claim.]

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Court Affirms Inadequacy Of Programmatic EIR for SANDAG's Sustainable Communities Plan, rejecting Alternatives and Lack Of Meaningful Mitigation Measures

Cleveland National Forest Foundation v. San Diego Association of Governments (November 24, 2014, D063288) ___ Cal.App.4th ___.

By William W. Abbott

In the first published decision to review a metropolitan planning organization’s Sustainable Communities Strategy, the Fourth Appellate District invalidated the EIR. This is a decision with potentially significant ramifications for many other EIRs as well. 

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Court Of Appeal Applies Traditional Deferential Standard Of Review To Questions Of General Plan And Consistency Determinations Including Requirements Enacted By The Local Voters

By William W. Abbott

San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498

Are general plan policies adopted by the citizens through an initiative, entitled to special consideration for purposes of determining consistency of projects with the general plan? Faced with that question in the context of planning policies adopted nearly 30 years ago in San Francisco, the Court of Appeal, First Appellate District, declined to elevate the legal significance of citizen crafted measures as compared to other regulatory requirements adopted through traditional means. Approximately 30 years ago, the voters in San Francisco adopted new land use requirements. Jumping ahead three decades, the court of appeal had to resolve whether a major private redevelopment undertaking was consistent with the relevant city regulations and policies, including those adopted by the voters.

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When It Comes To CEQA, It's Good To Be The King er, I Mean The Governor

By William W. Abbott

Picayune Rancheria v. Brown (September 24, 2014, C074506) ___ Cal.App.4th ___.

Practitioners are familiar with the incredible breadth in the applicability of CEQA to numerous governmental agency actions. Agencies have been admonished by the California Supreme Court against early commitments to projects in advance of environmental review (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116) although non-binding commitments are not “projects’ necessitating CEQA review. (Cedar Fair, Inc. v City of Santa Clara (2011) 194 Cal.App.4th 1150) [link 2]  Apparently, if you are the Governor you have even less to worry about. 

This issue of the Governor’s obligation to follow CEQA was brought to a head when a tribe operating an existing casino sued the Governor on CEQA grounds when the Governor concurred in a determination by the United States Department of the Interior that a new casino would be in the best interest of the Indian tribes and would not be detrimental to the surrounding community. Immediately following the concurrence determination, the Governor entered into a gaming compact with the interested tribe sans CEQA review, resulting in the CEQA challenge by the tribal gaming competitor. No CEQA worries here according to the trial and appellate court, as the Governor is not subject to the California Environmental Quality Act. The appellate court reached this conclusion based in part on the omission of the Governor from the definition of public agency in CEQA, along with the CEQA carve out created by the Legislature for tribal gaming compacts.

Label me a cynic perhaps, but this decision invites a minor digression about the illusive Holy Grail of CEQA reform. In recent years, the Legislature has responded to the desperate cries for help for a very vulnerable group; the owners of professional sports organizations. Apparently the Legislature is convinced that these downtrodden entrepreneurs are clearly entitled to preferential treatment, but that this treatment should not be shared with the public at large. Now that it is clear that the Governor is exempt from CEQA, what motivates reform? As the saying goes, ah it’s good to be the king.

William Abbott is a partner at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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2014 CEQA 3rd QUARTER REVIEW

 By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2014 3rd Quarter CEQA update, cumulative for the year. The newer decisions are highlighted in bold font. Although the Supreme Court issued its decision on limitations and CEQA (Tuolumne Jobs & Small Business Alliance v The Superior Court), the court granted preview in another CEQA case, resetting again the number of CEQA cases pending at the court at six. Among other decisions, the appellate court concluded that the Governor was not subject to CEQA on certain tribal gaming decisions (Picayune Rancheria v. Brown), parsed another negative declaration finding only one flaw (Rominger v. County of Colusa), and addressed an important litigation question as to when the agency can recover record-related litigation costs (Coalition for Adequate Review v. City and County of San Francisco). To read the prior year cumulative CEQA review, click here: 2013

CLICK HERE TO ACCESS THE COMPLETE 2014 3RD QUARTER CEQA UPDATE.

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BLOG UPDATE: Yesterday, October 1, 2014, the California Supreme Court granted the Real Party in Interest and Respondent Friant Ranch, L.P.'s petition for review in Sierra Club v. County of Fresno

Yesterday, October 1, 2014, the California Supreme Court granted the Real Party in Interest and Respondent Friant Ranch, L.P.’s petition for review in Sierra Club v. County of Fresno regarding its master planned project approved by the County of Fresno earlier this year.  For more information on this case, go to:  http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2081570&doc_no=S219783

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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Permissible CEQA Mitigation Includes Reliance Independent Agency Regulatory Review

By William W. Abbott

A continuing reoccurring question for CEQA practitioners is: when is it appropriate to rely upon the regulatory scheme and permitting steps of independent regulatory agencies? The most ready criticism of that practice is that it involves deferred mitigation. That criticism has to be balanced against the recognition that subsequent to the enactment of CEQA, that there now exists a myriad number of local, state and federal regulatory agencies with special regulations and expertise and CEQA should integrate with existing regulatory practices where issues overlap. As the decision in Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360 illustrates, perhaps an easier case can be made for regulatory reliance when a CEQA lead agency relies upon a federal agency with exclusive regulatory authority.

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It Says It's A "Project" EIR. You Say It Should Be A "Program" EIR. Does The Label Even Matter?

By Glen Hansen

In Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, the Court of Appeal for the First Appellate District held that the environmental impact report for the comprehensive plan to redevelop Treasure Island and Yerba Buena Island in the San Francisco Bay, which was labeled a “project EIR” (a) satisfied the substantial evidence standard of review as to all of the required elements of an EIR; (b) addressed the environmental impacts of the proposed project to a degree of specificity consistent with the underlying activity being approved; and (c) properly allows for supplemental review that may be necessary in the future.

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An Appeal To The City Council Fails To Wash Away All CEQA Sins. Consideration Of Historical Resources In A Negative Declaration Falls Under The Substantial Evidence Test, Not The Fair Argument Test.

 By William W. Abbott

The courts have been clear: the decisionmaking body has to consider the CEQA document before taking action to granting a discretionary approval. A recent court decision examines a variation on that practice when the approving body approved the CEQA document, but lacked the authority under the local code to do. How does the legislative body cure that error?

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Appellate Court Clarifies Costs Recovery Rules In CEQA Litigation

By Katherine J. Hart

In Coalition for Adequate Review v. City and County of San Francisco (September 15, 2014, A135512) ___Cal.App.4th ___, the Court of Appeal, First Appellate District, reversed in part and remanded in part, a trial court’s denial of the City’s ability to recover costs for the record of proceedings where the Coalition failed to include all relevant documents in the record the Coalition elected to prepare, despite the trial court’s denial of the petition for writ of mandate.

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CEQA Case Barred: Petitioners Seeking Vindication of Same Public Interest as Prior Unsuccessful Claimant

By Glen Hansen

Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499.

On July 15, 2008, the City of Rialto approved development of a commercial retail center to be anchored by a Wal-Mart Supercenter. The notice of the initial, July 1, 2008, public hearing before the city council on the project approvals was legally defective because the notice did not indicate that the planning commission had recommended the city council adopt the project approvals. (See Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 890–893.) In August 2008, Rialto Citizens for Responsible Growth, a nonprofit mutual benefit corporation (“Rialto Citizens”), petitioned the trial court to invalidate and set aside the project approvals based in part on the defect in the notice of the July 1 city council hearing. On appeal, the court ruled against Rialto Citizens, holding that the petitioner made no attempt to show in the trial court, and the trial court did not find, that the defect in the notice was prejudicial, caused substantial injury to any of Rialto Citizens’ members, or that a different result was probable absent the defect. (See Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 916–921.)

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Third District Court of Appeal Upholds Level Of Detail In Programmatic EIR for Rail Corridor

By William W. Abbott

Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314.

Programmatic EIRs invariably invoke the uneasy question, of “how much information is enough?” This question is reminiscent of the challenge to the United States Supreme Court in defining obscenity and Justice Potter Stewart’s concurring opinion when he acknowledged the difficulty of articulating a standard, writing “I know it when I see it”, and then concluding that the movie in question was not obscene. The Third District Court of Appeal recently wrestled with CEQA’s equivalent to defining the undefinable, concluding that the level of detail on a programmatic EIR was sufficient.

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The Third DCA Turns Off The Lights and Directs A More Thorough Energy Analysis Be Prepared For Regional Shopping Center Project

By Katherine J. Hart

In California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, the Court of Appeal, Third District, held the City of Woodland’s (City) programmatic environmental impact report (EIR) was invalid on the following three grounds: (1) it failed to provide sufficient mitigation measures for urban decay impacts; (2) it failed to properly assess the feasibility of the mixed-use alternative and support the City’s rejection of the alternative; and (3) the City did not adequately study and disclose transportation, construction and operational energy impacts in the EIR. The appellate court refused to consider plaintiff’s general plan consistency arguments as they were not properly presented to the court.

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An NOD Filed On A Facilities Master Plan In 2006 Applied To A 2010 Tree-Cutting Contract Awarded In Furtherance Of The Master Plan

By William W. Abbott

Citizens for a Green San Mateo v. San Mateo County Community College District (2014) 226 Cal.App.4th 1572.

Details do matter in CEQA litigation as reflected in the recent decision involving the application of the statute of limitations to bar a CEQA claim. Citizens for a Green San Mateo v. San Mateo County Community College District (2014) 226 Cal.App.4th 1572. The facts involve a facilities master plan adopted by the San Mateo County Community College District. The chronology begins in 2001 when the District adopted a master plan. The District updated the master plan in 2006. The 2006 plan called for building demolition and reconstruction, and extensive site redevelopment including modification to existing landscaping. A mitigated negative declaration was approved in conjunction with the updated master plan. From 2008 through 2010, the District developed, approved and awarded site specific construction contracts. To differing degrees, these plans and construction contracts referenced tree removal. In late 2010, the District awarded a contract for tree removal which began on December 29, 2010, continuing on into January. Citizens raised concerns in early January, and filed a petition for writ of mandamus against the District on July 1, 2011. 

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One Hundred Years Later Hiram Johnson Dances on His Grave: California Supreme Court Upholds Initiative Rights Against CEQA Based Challenge

By William W. Abbott

First, a micro history lesson. Hiram Johnson served as California’s governor from 1911 to 1917. For purposes of this blog, one of Hiram’s important contributions was his support for the constitutional amendment which added the right of initiative and referendum to the California Constitution. At the start of the 20th century, California joined the national populist movement embracing direct citizen involvement, thereby revolutionizing state politics. In California, the push for direct citizen involvement in the legislative process was designed in part to break the political control in Sacramento which was held by Southern Pacific Railroad, and by all counts the effort accomplished that goal. The initiative power was only one of several significant reforms championed by Johnson, but more on that later. For the curious, check out Hiram’s profile by the State Librarian: http://governors.library.ca.gov/23-hjohnson.html. For more on the history and significance of initiatives, check out the Initiative and Referendum Institute.

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SUPREME COURT TAKES UP TWO CASES OF INTEREST

Center for Biological Diversity v. California Department of Fish and Game, et al. (2014) 224 Cal.App.4th 1105, review granted and depublished (July 9, 2014), 2014 Cal.LEXIS 5032.

The California Supreme Court granted review and depublished the Court of Appeal opinion. (2014 Cal.LEXIS 5032.) The court agreed to hear the following questions: (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?

Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag. Assn., S218240. (2014) 224 Cal.App.4th 1542, review granted and depublished (July 9, 2014), 2014 Cal.LEXIS 4992.

The California Supreme Court granted review and ordered briefing deferred pending decision in Berkeley Hillside Preservation v. City of Berkeley, S201116, which presents the following issue: Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the “Significant Effects Exception” set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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2014 CEQA 2nd QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2014 2nd Quarter CEQA update. Our thirst for guidance from the California Supreme Court remains unquenched as the court still has five CEQA cases under review. In terms of other interesting developments during the second quarter, two courts of appeal ground through three of highly detailed cases: California Clean Energy Committee v. City of Woodland, Center for Biological Diversity v. California Department of Fish and Game and Sierra Club v. County of Fresno. Read together, these cases cover much of CEQA’s fine parts. Thinking about impacts and mitigation is not the same as actual CEQA evaluation as the court observes in Lotus v. Department of Transportation. Finally, in terms of other developments the City of San Jose successfully defended its eighth addendum to the 1997 EIR for its airport master plan.

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When Common Sense Is Just Plain CEQA Horse Sense

By William W. Abbott  

Citizens for Environmental Responsibility v State of California (March 26, 2014, C070836) ___ Cal.App.4th ___.

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2014 CEQA 1st QUARTER REVIEW

By William Abbott, Diane Kindermann, Katherine Hart, Glen Hansen, and Brian Russell

Welcome to Abbott & Kindermann’s 2014 1st Quarter CEQA update. It has been a quiet first quarter. One decision, Lotus v. Department of Transportation includes an interesting analysis on the use of construction commitments as part of the project description or as mitigation measures.

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Appellate Court Shuts Out Trial Court in CEQA/ESA Double Header under Deferential Standard of Review

By Diane G. Kindermann

In a lengthy and unanimous reversal of the trial court on ESA and CEQA issues in Center for Biological Diversity v. California Department of Fish and Game, et al. (March 20, 2014, BS131347) ___ Cal.App.4th ___, the second appellate district, Division Five, roundly upheld the Department of Fish and Wildlife’s (“department”) certification of an environmental impact report (“EIR”) assessing the effects of a resource management plan, conservation plan, streambed alteration agreement and two incidental take permits, in tandem with approval of each plan and issuance of the associated incidental take permits. The EIR related to general planning and conservation steps resulting from Los Angeles County’s prior approval of a 12,000 acre specific plan and neighboring 1500 acre conservation area in Ventura County. In its textured opinion, the appellate court relied heavily on facts in the trial court record to perforate all arguments raised by the Plaintiffs and Respondents Center for Biological Diversity, Friends of the Santa Clara River, Santa Clarita Organization for Planning and the Environment, California Native Plant Society, and Wishtoyo Foundation/Ventura Coastkeeper.

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2013 CEQA 4th QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell

Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 4th quarter shown in bold type faceClick here to access the complete update.

To read our prior annual reviews, click here: 2012; 2011; 2010.

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2014 Court Watch

By William W. Abbott

The California Supreme Court has a number of cases on its docket for consideration in 2014 that are of interest to planners, local government officials, developers and community interest groups. These cases include both CEQA and land use considerations. Here are the summaries from the Court’s website:

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NO NEW ENVIRONMENTAL REVIEW REQUIRED TO INCREASE HOUSING DENSITIES IN CITY'S GENERAL PLAN

By Katherine J. Hart

In Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192; 2013 Cal.App. LEXIS 893 (Latinos Unidos II), the Court of Appeals, First Appellate District, upheld the City of Napa’s (City) use of its 1998 Program EIR (prepared and certified for purposes of the City’s 2020 General Plan update) for the proposed 2009 Housing Element update, and related Land Use Element and zoning code amendments. More specifically, in updating its Housing Element, the City of Napa also amended its Land Use Element to (1) increase the minimum residential densities in seven areas zoned as mixed use or community commercial from 10 to 40 residential units per acre, (2) increase the permitted density for eight multi-family sites by a total of 88 units, as well as amended its zoning ordinance to comply with state laws regarding emergency shelters and various types of low-income housing, and to permit single-family detached homes at the same densities of single-family attached homes (the Project).

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ADDITIONAL STAFF GENERATED PROJECT ALTERNATIVE DID NOT COMPEL RECIRCULATION OF THE DRAFT EIR NOR WERE ADDITIONAL FINDINGS OF INFEASIBILITY REQUIRED

By William W. Abbott

South County Citizens for Smart Growth v. County of Nevada (October 8, 2013, C067764) ___ Cal.App.4th ___.

Starting in 2005, KKP submitted an application for a mixed use commercial center to be located in Nevada County on a 20 acre site. The proposal included a 60,000 square foot grocery store anchor, two retail buildings, two drive through restaurants and nearly 500 parking stalls. Four parcels would be retained by the property owner, and the proposal accommodated roughly 42,000 square feet of light industrial and office uses on the owner’s retained land. The last parcel was restricted to wetland/open space uses. The County released the DEIR in November 2007, disclosing three significant unmitigated impacts; two traffic impacts and one cumulative air impact. After an extended public review process, including additional analysis submitted by the applicant, the Planning Commission conducted a hearing on the FEIR in January 2009. The staff report for this hearing included a staff recommendation for an approval, with a variation on alternative 4 in the DEIR. The commission voted to recommend certification of the EIR and the various approvals associated with the project to the Board of Supervisors, including the staff recommended plan (which capped the amount of commercial footage and increased the open space area.) KKP then developed two alternatives responsive to the Planning Commission recommendation of the staff’s alternative. Staff evaluated KKP’s two additional alternatives, and recommended that the Planning Commission formally recommend KPP’s second alternative to the Board of Supervisors.

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2013 CEQA 3RD QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Katherine J. Hart and Glen Hansen

Welcome to Abbott & Kindermann’s 2013 CEQA update. It is cumulative for the year, with the newest cases issued in the 3rd quarter are shown in italics and bold type face.

To review our prior annual summaries, click here: 2013; 2012; 2011; 2010; 2009.

TABLE OF CONTENTS

I.       IS IT A PROJECT?

A.    California Building Industry Association v. Bay Area Air Quality Management District (2013) 218 Cal.App.4th 1171.  (Page 1)

B.     Neighbors for Fair Planning v. City and County of San Francisco (2013) 217 Cal.App.4th 540. (Page 1)

II.      EXEMPTIONS

A.    Michael May v. City of Milpitas (2013) 217 Cal.App.4th 1307. (Page 3)

B.     Golden Gate Land Holding, LLC v. East Bay Regional Park District (2013) 215 Cal.App.4th 353. (Page 3)

C.     Tuolumne Jobs & Small Business Alliance v. Superior Court 210 Cal.App.4th 1006. (Page 6)

D.    Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301. (Page 6)

III.     NEGATIVE DECLARATIONS

A.    Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal. App. 4th 209. (Page 8)

B.     Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) 215 Cal.App.4th 1013. (Page 9)

IV.     ENVIRONMENTAL IMPACT REPORTS

A.    San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1. (Page 9)

B.     Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439. (Page 12)

C.     Friends of Oroville v. City of Oroville (2013) 219 Cal.App.4th 832. (Page 14)

D.    Masonite Corporation v. County of Mendocino (2013) 218 Cal.App.4th 230. (Page15)

E.     Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503. (Page 18)

F.      North Coast Rivers Alliance et al. v. Marin Municipal Water District Board of Directors (2013) 216 Cal.App.4th 614. (Page 20)

G.    Save Cuyama Valley v. County of Santa Barbara(2013) 213 Cal.App.4th 1059. (Page 24)

V.     FUNCTIONALLY EQUIVALENT CEQA PROCEEDINGS

A.    POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th. 681. (Page 26)

VI.     LITIGATION

A.    Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889. (Page 27)

B.     San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167. (Page 29)

C.     Comunidad En Accion v. L.A. City Council (2013) ___ Cal.App.4th ___. (Page 30)

D.    Alliance for the Protection of the Auburn Community Environment v. County of Placer (2013) 215 Cal.App.4th 25. (Page 31)

Click here to access the complete update.

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Supreme Court Resolves Baseline Issue In Neighbors for Smart Rail Ruling

By Katherine J. Hart

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 (Neighbors), the California Supreme Court held that a lead agency has discretion to omit existing conditions analyses by substituting a baseline consisting of environmental conditions projected to exist solely in the future, but to do so the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value.

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California Legislature Passes Steinberg's Arena Bill (SB 743), Which Incorporates Elements Of Steinberg's Shelved CEQA Bill (SB 731); Governor Is Expected To Sign

Transcripts Not Always Required For Administrative Record

By Katherine J. Hart

In San Diego Citizenry Group v. County of San Diego (Published August 26, 2013, D059962) ___ Cal.App.4th ___, the Court of Appeal, Fourth District, upheld San Diego County’s (County) certification of an EIR and approval of a Tiered Winery Ordinance Amendment (Winery Ordinance) which permits boutique wineries in agriculturally designated and zoned land in the unincorporated area of the County by right. In ruling on a dispute regarding the cost of transcripts in the administrative record, the Fourth Appellate District reversed the trial court and held appellant was not required to reimburse the County for the costs of transcribing transcripts of the planning commission meetings pursuant to Public Resources Code section 21167.6(e)(4).

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With Friends Like This, Who Needs CEQA Enemies?

By William W. Abbott

Friends of Oroville v. Wal-Mart Stores, Inc. (August 19, 2013, C070448) ___ Cal.App.4th ___.

Wal-mart moved several steps closer to a new store as a result of the most recent appellate court decision over a new retail center proposed to be constructed in Oroville, suffering a setback however on greenhouse gas emissions. Friends of Oroville appealed a planning commission approval of a proposed supercenter, intended to replace an existing store. Following the appeal hearing, the City Council approved the new store, and the Friends of Oroville filed a petition for writ of mandate to set aside the approval. The trial court denied the petition, and Friends of Oroville appealed. On appeal, the appellate court affirmed the legal sufficiency of the EIR save one issue (greenhouse gases) and one clarification (payment of traffic fees.) The published portion of the decision pertains to greenhouse gas analysis, and the court ruled as follows.

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California Infill Builders Federation Files Request for Depublication of Citizens for Ceres Case

By Katherine J. Hart

On August 16, 2013, CEQA attorney Tina Thomas filed a depublication request with the California Supreme Court over the Fifth District Court of Appeal’s decision in Citizens for Ceres v. Ceres v. Superior Court 217 Cal.App.4th 889 (Citizens for Ceres).  For a copy of the depublication letter, click here.

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Court Puts Onus On County To Demonstrate Infeasibility Of Agricultural Conservation Easements To Mitigate Loss Of Prime Farmland

By Katherine J. Hart

In Masonite Corporation v. County of Mendocino (July 25, 2013) 215 Cal.App.4th 230, the Court of Appeal, First Appellate District, reversed a trial court’s decision denying a petition for writ of mandate, and directed Mendocino County (County) to decertify its EIR, set aside its project approvals (a conditional use permit and reclamation plan), and prepare and circulate a supplemental EIR to address concerns related to an endangered frog, mitigation of impacts to prime agricultural farmland, and mitigation measures related to cumulative traffic impacts, for an aggregate mining project.

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Appellate court upholds ordinance restricting single use plastic bags and adopting a fee for paper bags based upon a categorical exemption in CEQA.

By William W. Abbott

Save the Plastic Bag Coalition v. County of Marin (July 25, 2013, A133868) ___Cal.App.4th ___.

In January 2011, the Board of Supervisors for the County of Marin enacted an ordinance generally banning the use of single use plastic bags and adopting a fee for paper bags. The ordinance also required retailers covered by the ordinance to offer reusable bags for purchase. This ordinance came about after some period of County study. A trade group, Save the Plastic Bag Coalition, submitted comments in opposition to the proposed ordinance, including a demand for an EIR. Initially, the Board continued the hearing. At the continued hearing, the Board considered, among other items, a letter from the County Counsel’s office suggesting that the Board should complete the hearing and could act based upon a categorical exemption (classes 7 and 8; maintenance and restoration of a natural resource and maintenance, restoration, enhancement or protection of the environment, respectively.) Relying upon the two exemptions, the Board approved the use of the two exemptions and approved the ordinance. The Coalition sued. The trial court upheld the Board’s decision and the Coalition appealed.

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Fifth Appellate District Says There Is No Common Interest Privilege In California Pre-Project Approval

By Katherine J. Hart

In Citizens for Ceres v. Superior Court (July 8, 2013) ___ Cal.App.4th ___ (Citizens for Ceres), the Fifth Appellate District considered a writ 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.

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Williamson Act Contract Cancellation For Solar Project Upheld Along With Companion Environmental Impact Report

By William W. Abbott

Save Panoche Valley v. San Benito County (June 25, 2013, H037599) ___ Cal.App.4th ___.

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/). I wager that 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.

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2013 CEQA 2ND QUARTER REVIEW

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.

To review our prior annual reviews, click here: 2012; 2011; 2010; 2009; 2008.

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.)

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EIR For Desalination Plant Upheld

By Katherine J. Hart

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. North Coast Rivers Alliance Et Al. v. Marin Municipal Water District Board of Directors (May 21, 2013, A133821, A135626) ___Cal.App.4th ___.

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Court Gives Failing Grade For School Bond Expenditure For Field Lights; Returns Neg Dec. As Incomplete

By William W. Abbott

Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (April 25, 2013, D060999) ___ Cal.App.4th ___.

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.

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Steinberg's Amended CEQA Bill - SB 731-May Have A Chance

By Katherine J. Hart

Senate Bill No. 731, Introduced by Senator Darrell Steinberg in February 22, 2013, as amended on April 23, 2013.

I’m the first person to doubt all the chatter about significant CEQA reform. In fact, for reasons I’ll spare you, I’m a complete pessimist when it comes right down to it. But in reviewing Darrell Steinberg’s amended bill, and despite our Governor’s comments in China on the subject last week, I saw a glimmer of hope for some reform.

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2013 CEQA 1st QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Katherine J. Hart and Glen Hansen

It is hard to believe that after a tsunami of CEQA decisions in 2012 that there are only three published CEQA cases in the first quarter of 2013. Our advice is to rest up and enjoy the break as there are five cases pending before 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.)

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CCP 473 Does Not Provide Relief For Late Filing Of CEQA Petition

By Katherine J. Hart

In Alliance for the Protection of the Auburn Community Environment v. County of Placer (April 2, 2013, C067961) ___Cal.App.4th ___, 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.

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Court Affirms EIR for 30 Year Mining Operation; erroneous impact conclusion did not invalidate the EIR

By William W. Abbott

Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal. App. 4th 1059. 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 way 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.

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2012 CEQA 4th QUARTER REVIEW

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?

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Neither A Shared Access Road Nor The Gnatcatcher Stop Sunset Ridge Park Project Under CEQA

By Katherine J. Hart

In Banning Ranch Conservancy v. City of Newport Beach (2012) ___ Cal.App.4th ___, the Court of Appeal, Fourth Appellate District, considered whether the City of Newport Beach’s (City) proposal to develop the Sunset Ridge Park was reviewed in a piecemeal fashion (separate and apart from the adjacent proposed Banning Ranch project), and whether the environmental impacts of the park (e.g., cumulative traffic and biological resources impacts, growth-inducing impacts, habitat impacts) were sufficiently considered and mitigated by the City in its EIR. The court of appeal affirmed the trial court’s judgment and denial of the writ.

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Declaration of Water Emergency in Furtherance of a Judgment Was Exempt From CEQA

By William W. Abbott

Central Basin Municipal Water District v. Water Replenishment District Of Southern California(2012) 211 Cal.App.4th 943. Notwithstanding CEQA’s pervasive application, there are-on rare occasions-circumstances in which agency action is exempt from CEQA compliance. The most recent example involves a declaration of water emergency approved by the Water Replenishment District of Southern California (WRD) in the Central Basin in Southern California. WRD manages groundwater for approximately 4,000,000 residents and 43 cities. In 1991, a trial court entered judgment pertaining to groundwater management in the basin. The judgment authorized WRD to declare a water emergency in circumstances in which the basin resources risked degradation. The judgment also included a “physical solution”, a phrase of art in water law, describing a comprehensive program for groundwater management. A consequence of the declaration of emergency is that the time period for extractors to remove and replenish water would be extended into later years.

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As Lawsuits Begin In California Over Oil And Gas "Fracking," The State Issues "Discussion Draft" Regulations For The Process

By Glen C. Hansen

For decades, oil and gas producers in California have been engaged in the process of hydraulic fracturing, commonly called “fracking.” That process involves injecting a high pressure stream of water and chemicals deep underground to split rocks and release oil and natural gas. The technique is designed to free oil and natural gas trapped in shale rock. There is a significant amount of such rock in California. For example, the Monterey Shale, which lies under Central California and the southern San Joaquin Valley, could hold up to 15 billion barrels of oil, making it possibly the nation’s largest oil shale formation and almost half of the nation’s total shale oil resources.

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First Link In High Speed Rail Project Clears Preliminary Injunction Hurdle In CEQA Litigation.

By Glen Hansen

On June 1, 2012, the County of Madera, the Madera County and Merced County Farm Bureaus, Chowchilla Water District, and other individuals and entities (collectively, “Petitioners”) sued the California High-Speed Rail Authority (“Authority”) on the grounds that the Authority had violated CEQA and the Bagley-Keene Open Meeting Act related to the approval of the approximately 75-mile Merced to Fresno section (“Section”) of the proposed 800-mile public transit project known as the High-Speed Rail project. Petitioners allege that that a significant portion of the Section would “deviate from existing transportation corridors, resulting in the destruction of and interference with thousands of acres of farmland, wildlife habitat, hundreds of homes, may businesses, commercial properties and industrial facilities, existing roads and water delivery facilities.” Petitioners further allege that the final environmental impact report (“FEIR”) for the Section contains “myriad analytical deficiencies,” fails to disclose and analyze “the full scope and severity of impacts,” and improperly defers “impact analysis and mitigation.” Petitioners also allege that the Authority violated the Open Meeting Act by not providing “the required notice for the substantive changes to the analysis of Section impacts and the scope of mitigation measures included in the Errata to the FEIR ….” 

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Multiple Harmless Errors Do Not Require Project Approvals Be Overturned Unless Prejudice Is Shown

By Katherine J. Hart

In Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899 (Rialto Citizens), the City of Rialto (City) and Walmart appealed a trial court’s grant of writ of mandate invalidating the City’s approval of a 230,000-square-foot commercial shopping center to be anchored by a 24-hour Walmart Supercenter. In its decision, the Court of Appeal, Fourth Appellate District, discussed public interest standing to challenge a CEQA project, the import of defective notice of a public hearing, whether the approval of the development agreement missing a general/specific plan consistency finding was valid, and a myriad of other CEQA issues such as the adequacy of (1) the project description, (2) cumulative impact analyses on traffic and air quality, (3) the greenhouse gas analysis, and (4) mitigation measures for biological impacts, and whether the City properly rejected the reduced density alternative as infeasible.

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Appellate Court Draws Line In Sand Requiring CEQA Review Before City Council Enactment of Land Use Measure

By William W. Abbott

In case you missed the recent legal tremor, be advised that land use practitioners are looking at two appellate districts in conflict with one another over the application of CEQA to a citizen sponsored land use measure. In Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores, Inc.) (October 30, 2012, F063849) ___Cal.App.4th ___, the facts involve the efforts of Wal-Mart to seek an expansion of an existing store in the City of Sonora. An EIR was prepared by the City, and the Planning Commission recommended approval. Before the matter was considered by the City Council, an initiative was filed, the effect of which would change the land use regulations on the Wal-Mart parcel, and dispense with the need for a discretionary permit. Once the city determined that the initiative petition contained the requisite number of signatures, the City Council had two basic choices: enact the measure as its own without modification or place it on the ballot. With the belief that CEQA did not apply, the City Council chose the former option and enacted the initiative measure as its own. Litigation challenging the approval ensued, including a claim that the City Council was required to complete the CEQA process first. The City and Wal-Mart demurred to the petition/complaint, which the trial court sustained. Petitioners then filed a writ petition with the Fifth Appellate District which granted the writ as to the CEQA claim, effectively reinstating the claim at the trial court.

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Co-Gen EIR With Limited Range Of Alternatives Upheld

By William W. Abbott

Roseburg Forest Products Co. operates a wood veneer processing facility in Weed, California. In 2008, the County of Siskiyou approved a permit for the purpose of installing a biomass-fueled cogeneration power plant. The project included a steam-driven cogeneration system, turbine, cooling tower and substation (communications tower and building.) Source fuel included waste wood from the veneer plant operation, along with fuel from forest management activities. The County processed an EIR. In September 2008, the Siskiyou County Planning Commission certified an EIR and approved the use permit. Mount Shasta Bioregional Ecology Center (“MSBEC”) and others appealed the Commission’s decision. The Board upheld the permit in November of 2008. MSBEC and another organization then filed a CEQA challenge. In March, 2010, the trial court denied the writ petition.

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No Commitment, No "Project"

In Chung v. City of Monterey Park (October 23, 2012, B233859) ___Cal.App.4th ___, the City Council directed staff to prepare a ballot measure that would require the City to seek competitive bids for trash service when the current contractor’s contract was complete in 2017, and provide a new bidding opportunity every five years thereafter. Chung, a resident of the City and signatory to the ballot arguments against the measure, filed suit to remove the measure from the ballot arguing the City violated the California Environmental Quality Act (CEQA) by failing to perform environmental review and because the Council “had deemed Measure BB a voter ‘initiative,’” but failed to follow the initiative measure requirements for a petition and thus, unconstitutionally restricted the actions of future City Councils.

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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

By William W. Abbott

The City of Santee certified an EIR, a water supply assessment and entitlements for a mixed use project on 970 acres of a 2,600 acre real estate holding. The approved land uses included 1,380 single family dwellings, 230 acres of a pedestrian oriented village, and a 10 acre lake. About half the area, 1,400 acres, would be approved as an open space preserve. Opponents challenged the EIR, and the trial court found a CEQA error pertaining to fire safety. The trial court declined the opponents request to set aside all of the approvals, opting for limited relief as contemplated by Public Resources Code section 21168.9. The trial court also awarded attorneys fees to the opponents under the authority of Code of Civil Procedure 1021.5. Both sides appealed.

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Class 3 CEQA Exemption: Unusual Circumstances Exception Becoming Less Unusual?

By Katherine J. Hart

In Voices for Rural Living v. El Dorado Irrigation District, the Court of Appeal, Third Appellate District, affirmed the trial court’s determinations that (1) 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, and (2) a local water district lacked authority to disregard or deem unconstitutional annexation conditions previously imposed by the local agency formation commission (LAFCo).

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2012 CEQA 3rd QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

We are pleased to present our cumulative Third Quarter CEQA Review for 2012. The newest decisions issued in the 3rd quarter are bolded and preceded by asterisks (***).

In terms of new developments, the Supreme Court has taken up the Neighbors for Smart Rail case, meaning that there are now three CEQA cases pending at the California Supreme Court: Neighbors for Smart Rail, Berkeley Hillside Preservationand City of San Diego v. Board of Trustees of the California State University. One common theme in the third quarter cases was judicial deference to the decisions of the lead agency. Particularly noteworthy were decisions which recognized the integration of lead agency CEQA practice with the independent substantive regulations and laws administered by other agencies such as USFWS, CDFG, state agencies and special districts (Rialto, Maywood), as well as rejection of alternatives (Rialto, Maywood).

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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.

By William W. Abbott

City of Maywood v. Los Angeles Unified School District (2012) 208 Cal.App.4th 362. Los Angeles Unified School District ("LAUSD") proposed construction of a new high school in the City of Maywood. LAUSD was interested in a two block site consisting of 8.37 acres, then bisected by a major street. The original concept, called for the street to be abandoned and incorporated into the overall campus design. In response to the Notice of Preparation for the EIR, LAUSD received comments including questions concerning the infeasibility of street abandonment. The District modified the design as part of the Draft EIR, leaving the road in place but adding a pedestrian overcrossing of the existing street to provide connectivity between the two project site areas. Following certification of the EIR, the District approved the project. The City filed a CEQA challenge, and the trial court agreed that the District had committed several CEQA errors, and in response to a subsequent motion filed by the City, awarded attorneys’ fees of $670,000 to the City under the authority of California’s private attorney general statute, Code of Civil Procedure 1021.5. The District appealed. In a lengthy and painstaking decision, the Second Appellate District largely agreed with LAUSD, reversing the trial court of 4 of 5 CEQA issues and reversing and remanding the award of attorneys’ fees for further consideration. The appellate decision provides guidance as to a number of key CEQA subjects: cumulative effects, alternatives, mitigation deferral and growth assumptions.

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Lead Agency Correctly Applied CEQA Categorical Exemption To Permits For Wireless Equipment To Be Added To Existing Utility Poles

By William W. Abbott

On April 6, 2009, T-Mobile applied to the Planning Department of the City and County of San Francisco for a determination on the installation of 40 wireless telecommunications facilities on existing utility poles throughout San Francisco. On August 7, 2009, T-Mobile applied for a permit from the Department of Public Works for an installation on Randall Street, marking the application that the installation was exempt from CEQA. Prior to the Planning Department completing its CEQA review, Public Works granted the permit on August 10. Roughly a month later, the Planning Department granted a certificate of CEQA exemption. Two months later, T-Mobile completed the Randall Street installation. A neighbor, Robinson, then filed suit, claiming that the City violated CEQA and its own approval procedures. The trial court ruled for the City and T-Mobile. Robinson appealed.

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CEQA Reform - Senate Bill 317

Rewritten to address desperately needed CEQA reform, SB 317 (sponsored by Senator Rubio) proposes significant revisions to CEQA via a completely different statute – The Sustainable Environmental Protection Act. While environmentalists claim the changes are “last minute” and would completely “gut” CEQA, business interests contend the proposed changes have been in the works for at least 16 months and last years’ streamlining helped few, if any, development projects – especially those pertaining to infill and projects necessary to comply with AB 32, SB 375, and other key environmental statutes. For a fact sheet outlining the provisions of SB 317, click on the following link: http://www.calchamber.com/governmentrelations/documents/sb%20317_%20fact_sheet_08-21-12.pdf

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Only The Pecuniary Interests Of A Public Litigant May Be Considered When Awarding Attorneys' Fees To The Public Litigant Under Code of Civil Procedure §1021.5

By Glen C. Hansen

In Conservatorship of Whitley (2010) 50 Cal. 4th 1206, the California Supreme Court examined the three requirements that litigants must prove in order to recover attorneys’ fees under California’s ‘private attorney general’ fee statute in Code of Civil Procedure section 1021.5. Those factors are “(1) plaintiffs’ action ‘has resulted in the enforcement of an important right affecting the public interest,’ (2) ‘a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons’ and (3) ‘the necessity and financial burden of private enforcement are such as to make the award appropriate.’” (Id. at p. 1214 (citation omitted).)

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Town Versus Gown Fight Continues Over State University EIR

By William W. Abbott

California State University East Bay undertook a dual purpose EIR for its campus master plan and two construction projects, the latter consisting of a housing complex and a parking structure. The EIR included alternatives at both the master plan and construction project level. The City of Hayward and public interest groups filed suit challenging the sufficiency of the EIR. The trial court found the EIR to be deficient and issued an order granting the petition for writ. The University subsequently appealed.

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California Natural Resources Agency Gives Notice of Intent to Adopt Proposed Additions to the CEQA Guidelines Implementing SB 226

By Sharon Buckenmeyer

On July 27, 2012, the California Natural Resources Agency gave notice of intent to adopt CEQA Guideline section 15183.3 pursuant to SB 226 (Simitian). Section 15183.3 is intended to streamline the environmental review process for eligible infill projects and reduce the time and cost of the environmental review. To be eligible the infill project must meet specific criteria and satisfy the performance standards as defined in the proposed addition. Public comments are due September 10, 2012. For more information go to: http://ceres.ca.gov/ceqa/sb226_guideline_updates.html.

Sharon Buckenmeyer is a paralegal at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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Court Says No Second Servings in CEQA Case

By William W. Abbott

Neighborhood activists organized to defeat the proposed demolition of the Van De Kamp Bakery Building for the construction of a new commercial building. With the support of the activists, the Los Angeles Community College District acquired the site in 2001 with the idea of developing a satellite college facility. The District completed an EIR and two addenda for a reuse plan for the building, but due to budgetary constraints, the campus was not developed. In 2009, the District adopted an interim use plan, and authorized the execution of a lease with a private education service provider. The District determined that the lease did not require additional CEQA review as it served the same functionality that the site had been analyzed for under the EIR and related documents. Appellants filed a CEQA lawsuit (CEQA I) challenging the 2009 approvals. In 2010, while the CEQA I lawsuit was pending, the District took further actions to implement the 2009 resolutions. Appellants then filed a second CEQA action (CEQA II), challenging the 2010 actions on the basis that they violated CEQA. The District demurred to the CEQA II lawsuit on the basis that it was duplicative of the first lawsuit and time barred by the statute of limitations running from the 2009 resolutions. Appellants argued in part that the District did not commit itself to a particular course of action until such time as the 2010 approvals were granted. Applying the 180 day statute of limitations running from the 2009 resolutions, the trial court determined that the CEQA II claim was untimely. The court also concluded that the second lawsuit was duplicative. The court dismissed CEQA II, and in the separate CEQA action, granted the appellants partial relief.

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2012 CEQA 2nd QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

Welcome to Abbott & Kindermann’s 2012 CEQA update. It is cumulative for the year, with the newest cases issued in the 2nd quarter bolded and referenced by asterisks (***).

The most notable decisions in the second quarter involves upholding an EIR which relied upon a future baseline (Neighbors for Smart Rail), a stark contrast to the Sunnyvale West case of 2010. The battle over the record of proceedings continues as the 3rd Appellate District specifies the proper legal procedure in the event of a dispute over the scope of the record (Citizens for Open Government) and the 5th provides continued clarification/elaboration on the scope of the record of proceedings in a CEQA writ (Consolidated Irrigation District v. Superior Court of Fresno County.)

In terms of pending developments, the California Supreme Court granted review in City of San Diego v. Board of Trustees of the California State University and in Berkeley Hillside Preservation v. City of Berkeley, two troublesome cases. On the administrative side, OPR is moving forward with the proposed CEQA Guideline amendments pertaining to infill projects (SB 226). For more information, see http://www.opr.ca.gov/s_sb226.php.

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Supreme Court Says Exhaustion Requirement Applies in CEQA Exemption Suit

By Katherine J. Hart and Daniel S. Cucchi

In Tomlinson v. County of Alameda (June 14, 2012, S188161) __Cal.4th __, a developer proposed to divide two existing ‘R-1’ zoned parcels totaling 1.89 acres into 11 lots to allow for the development of single-family homes. The project was located in the community of Fairview in unincorporated Alameda County, bordering the City of Hayward. The County sent out written notices to a number of agencies, neighbors, and other interested parties, including the Appellants, indicating the County’s intent to utilize the section 15332 (Infill Development) CEQA exemption.

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Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around

By Katherine J. Hart

The Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, case involved the consolidation of three separate actions revolving around the City of Lodi’s (City) approval of a conditional use permit (CUP) for a shopping center to be anchored by a Wal-Mart Supercenter. The first action stemmed from the City’s petition to discharge the writ issued in the earlier lawsuit wherein the 2004 EIR for the Wal-Mart Supercenter was challenged and the City’s lodging of a supplemental administrative record. The second and third actions arose out of Appellants Citizens for Open Government’s (Citizens) and Lodi First’s challenge to the City’s certification of the 2008 revised EIR, and subsequent approval of the CUP and shopping center project. The trial court consolidated all three actions and issued one ruling.

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UPDATE ON BERKELEY HILLSIDE CASE

In March 2012, we posted an article reviewing the First Appellate District’s determination in Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656.

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Tolling Agreement for CEQA Lawsuit Challenging a General Plan Update is Upheld Against Property Owner Challenge

By William W. Abbott

Salmon Protection and Watershed Network v. County of Marin (April 20, 2012, A133109) ___Cal.App.4th ___.

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 puts the litigation on hold, and can help facilitate settlement by taking the pressure 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 later brought by property owners potentially affected by the CEQA lawsuit. As the settlement discussions were undertaken (ultimately unsuccessful), the property owners were left in a indeterminate state as to what to do with their property. The property owners’ complaint in intervention, following the filing of the under lying CEQA action, alleged that the underlying CEQA lawsuit was barred due to the passage of the statute of limitations, and that any extension between the petitioner and the County 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. 

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Court Affirms Use of Substantial Evidence Test in CEQA Challenge to Annual Adjustment in Water Allocation Regulations

By William W. Abbott

James Abatti v. Imperial Irrigation District (April 26, 2012, D058329) ___ Cal.App.4th ___.

In November 2006, the Imperial Irrigation District, based upon a negative declaration, adopted an Equitable Distribution Plan (“EDP”). The plan was designed to provide for the equitable apportionment of water in the event of a supply/demand imbalance. The governing board approved the plan which provided for a straight-line method of allocation among agricultural users during shortfall periods. Agricultural users were the largest users within the district, with industrial users making up a small percentage of the remainder. In 2007, the District adopted regulations implementing the EDP which provided more detail on allocations to non-residential users, including industrial. In adopting these regulations, the District relied upon the 2006 Negative Declaration. In 2008, the District adopted amended regulations, further refining the regulations. Language was added pertaining to new industrial water contracts. The District again relied upon the prior negative declaration, and relying in part on CEQA Guidelines 15162, concluded that no new environmental review was required. The petitioners then filed a CEQA challenge. The trial court denied the petition, determining that Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 was controlling, and under the traditional substantial evidence test (as compared to the fair argument test), ample evidence supported the District’s decision to rely upon the prior CEQA document. Petitioners dismissed their other claims without prejudice, then appealed.

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Approval of Oak Woodland Management Plan and Mitigation Fee Program Based on a Negative Declaration is Overturned by Third District Appellate

By Katherine J. Hart

In the most recent fee mitigation case, Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, the Third District Appellate Court held that a county was required to prepare a tiered EIR before adopting its oak woodland management plan and mitigation fee program.

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SB 226 draft CEQA Guidelines now available for review.

Yesterday, OPR announced the new draft CEQA Guidelines on SB 226’s infill provisions. As always, the devil is in the details, and OPR does an admirable job explaining the basis for its intended direction. Notably, OPR stakes out the position that the traditional substantial evidence test applies, not the less deferential fair argument standard. It is hard to believe that this position will go unchallenged (think back to Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.) Check out the draft Guidelines at http://opr.ca.gov/s_sb226.php.

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Court Upholds Processing of Sequential Boundary Line Adjustments

By William W. Abbott

Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162.

In 1991, the California Legislature amended the Subdivision Map Act to restrict the use of boundary line adjustments by limiting their use to four or fewer adjacent parcels. Government Code Section 66412(d). While intended to deal with the reconfiguration of large ranches without going through the subdivision process, the 1991 amendment made the process of making minor technical adjustments between contiguous parcels unnecessarily more cumbersome then what was really necessary. (Essentially, the use of a nail gun to put in a thumbtack.) Local governments and engineers developed different strategies for working around the amendments. One of those was processing multiple sequential adjustments. 

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Update on Ballona Wetlands Land Trust v. City of Los Angeles

In December 2011, we posted an article reviewing the Second Appellate District’s determination in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455.

The petitioner, Ballona Wetlands Land Trust filed a petition for review on January 12, 2012. On February 2, 2012, the Natural Resources Defense Council filed a request for depublication. On March 21, 2012, the California Supreme Court denied both the petition for review and depublication requests [2012 Cal. LEXIS 3142.] resulting in a decisive conflict between the reported cases on Guidelines section 15126.2, subdivision (a) and the text of Section 15126.2, subdivision (a) itself.

For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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A Judicial Throwdown on CEQA's Baseline Requirements

By William W. Abbott

It is refreshing when a court lays it on the line. And, that is exactly what Division Eight of the Second Appellate District did in addressing CEQA’s requirements for baseline selection for projects with future implementation dates. The case, Neighbors for Smart Rail v. Exposition Metro Line Construction (April 17, 2012, B232655) __Cal.App.4th __ (“Neighbors”) provides a counterweight to recent decisions from the Fifth and Sixth Appellate Districts, setting a possible stage for California Supreme Court review.

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A Run on the Banks? (Mitigation banks that is.)

By William W. Abbott

On March 15, 2012, California Department of Fish and Game announced it was suspending work on new proposals for mitigation banks, due to state budgetary constraints. http://www.dfg.ca.gov/habcon/conplan/mitbank/

Despite the state’s own recognition of the benefits of mitigation or conservation banks, that recognition only goes so far. This poses a challenge to agencies and developers operating in areas in which the banks are limited or closing. It may be that acquiring remaining credits will take on a new priority while projects are being re-positioned during the market slump. Another implication is that it may become imperative to challenge a CEQA characterization of habitat loss or impairment given that options for satisfying compensation may be more limited in the future. Here is the state’s list of approved banks as of January, 2012. http://www.dfg.ca.gov/habcon/conplan/mitbank/catalogue/catalogue.html

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2012 CEQA 1st QUARTER REVIEW

By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

The first quarter cases largely hone or refine established CEQA concepts. Not surprisingly, two decisions reaffirm that the fair argument test (whether for exemptions or negative declarations) remains a relatively low threshold for an opponent to cross (Berkeley Hillside and Consolidated Irrigation.) The Flanders court clarified that feasibility is based upon a “reasonably prudent” test, not what the applicant can afford. The Fifth Appellate District applied the traditional appellate substantial evidence test to a trial court order augmenting a CEQA record (Consolidated Irrigation District.) Finally, the most interesting case comes from El Dorado which discusses the CEQA transition from a general plan EIR to an implementing action (Center for Sierra Nevada Conservation). Enjoy!

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Applying CEQA's Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence

By William W. Abbott

Property owners in Berkeley applied for use permits to demolish an existing home on a 29,714 square foot lot and to construct a 6,478 square foot home along with an attached 3,394 square foot, 10 car garage. The lot is a hillside lot with an approximately 50% grade. Based upon CEQA exemptions for infill and for construction of new small structures, the Board of Zoning Adjustment approved the permits. The proposed construction was supported by neighbors, but other interested parties appealed the approvals to the city council. A geotechnical engineer, Karp, submitted a letter indicating that he had reviewed the building plans, and that he was familiar with the site based upon his work on other building sites in Berkeley. The letter reflected his belief that additional benching would be required, that this was not reflected on the plans, and that the site potentially had some exposure to seismic risk. Karp also indicated that additional vegetation removal was required that was not otherwise reflected on the plans. Karp concluded by indicating his opinion that the project would likely have significant impacts during construction and operationally due to seismic risk. Two engineers submitted letters on behalf of the applicants' (at least one was a geotechnical engineer) submitted responses to Karp’s comments, which argued in part that Karp misread the plans, and that the project was otherwise appropriate for the site. The council was presented with conflicting evidence as to relative size of the proposed structure to other homes in Berkeley. The city council denied the appeal, and the opponents filed suit. The trial court ruled for the city and applicant, and the neighbors appealed.

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EIR Fails For Insufficient Response To One Comment Letter

By William W. Abbott

Flanders v. City of Carmel-By-The-Sea (January 4, 2012, H035818) ___Cal.App.4th ___

The most recent CEQA appellate decision brings to mind the well quoted line from Shakespeare: “my kingdom for a horse” to describe a trial court and appellate court ruling concluding that the lead agency’s failure to respond to one comment on a DEIR was a basis for invalidating the EIR certification. The Bard remains alive writing CEQA tragedies as apparently there is no shortage of material to choose from.

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CEQA Thresholds Require CEQA Review

By Leslie Z. Walker

On January 9, 2012, the Alameda Superior Court heard and issued a ruling in a lawsuit filed by the California Building Industry Association (CBIA) challenging the Bay Area Air Quality Management District’s (“Air District”) CEQA thresholds of significance. (California Building Industry Association v. Bay Area Air Quality Management District, Alameda County Superior Court Case No. RG10548693.) The Air District adopted the first (and only) numeric greenhouse gas numeric thresholds in the State in June of 2010. The CBIA challenged those thresholds, claiming that the Air District violated CEQA by failing to treat the thresholds as a project under CEQA and to conduct the requisite environmental review for the project. The court ruled that the adoption of the thresholds was a project under CEQA and made no further findings or rulings.

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The Lead Agency Correctly Utilized Existing Conditions As The Baseline For Environmental Assessment When Acting Upon A Lease Extension Request

By William W. Abbott

There is always a certain level of satisfaction at the end of the holidays when you find the last present, and for CEQA practitioners, the same holds true. On December 30, 2011, the First Appellate District issued a solid decision on baseline: Citizens for East Shore Parks v. California State Lands Commission (December 30, 2011, A129896) ___Cal.App.4th ___. The facts involve a lease extension between Chevron and the State Lands Commission for a marine terminal. Originally built in 1902, the terminal had been periodically upgraded. In 1947, the Lands Commission entered into a 50 year lease with Chevron’s predecessor. Starting in 1998 with the NOP, the Commission eventually certified the EIR for the lease extension, nine years later. The CEQA litigation followed.

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Lack of Appropriation of Funds by the Legislature for Mitigation of Offsite Traffic Impacts Did Not Discharge the State University from Considering Other Feasible Strategies for Mitigation

By William W. Abbott

There are times during which CEQA practitioners feel a close kinship with Sisyphus, the Greek king of legend condemned to push a large boulder up a hill and upon nearly reaching the top, lose his grasp on the rock to have it roll to the bottom where he is compelled to repeat the exercise endlessly. This is today’s metaphor for where we find ourselves in the CEQA process, wherein at the moment in time at which we believe we have reached the summit, we in fact discover ourselves at the bottom of the hill, only to repeat our past efforts. A recent decision involving a determination of infeasibility by the state university at San Diego (“CSU”), which after the Supreme Court issued its decision in City of Marina v. Board of Trustees of California State (2006) 39 Cal.4th 341, was directed to set aside an earlier EIR and to revise it consistent with Marina. The second time around, the University rejected offsite traffic mitigation on the basis that the Legislature refused to appropriate money for that purpose. On the basis that the University was required to adopt all feasible mitigation measures, CSU’s rejection for lack of appropriation was held to be insufficient, thus sending CSU back to lift the rock another time and climb the CEQA hill.

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Sunnyvale West Baseline Issue Revisited? Not Exactly.

By Katherine J. Hart

Summary: In Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, the Court of Appeal, Sixth Appellate District, upheld the city’s certification of an EIR and approval of an expansion of the Palo Alto Medical Foundation’s medical campus finding that the city properly deemed the project consistent with its general plan; used the correct baseline for the traffic analysis in the EIR; used the correct baseline for the traffic noise analysis in the EIR; and contained a sufficient discussion of traffic noise impacts in the EIR.

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2011 CEQA ANNUAL UPDATE

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

All in all, 2011 reflected a significant year in terms of the sheer number of published appellate decisions. While many decisions followed the parameters of past precedent, a handful of cases may be read as slightly pushing the law in a manner which adds additional steps, time and cost to successful completion of CEQA review. Notable decisions which supported the lead agency’s interpretation of CEQA practice included treating a “term sheet” for negotiations as not a project subject to CEQA review (Cedar Fair, L.P. v. City of Santa Clara); application of the density bonus statute (Wollmer v. City of Berkeley); reliance upon seismic safety codes as mitigation (Oakland Heritage Alliance v. City of Oakland); and the Supreme Court’s recognition of common sense as a tool in CEQA administration (Save the Plastic Bag Coalition v. City of Manhattan Beach). Continuing debate surrounds the following riddles: 1) is it the impact of the project on the environment or the environment on the project (South Orange County Wastewater Authority v. City of Dana Point) and 2) what is the baseline (Pfeiffer v. City of Sunnyvale City Council, Madera Oversight Coalition, Inc. v. County of Madera and Citizens for East Shore Parks v. California State Lands Commission)? Two cases tackled cultural resource analysis (Clover Valley Foundation v. City of Rocklin and Madera Oversight Coalition, Inc. v. County of Madera) while a number of cases dealt with the intricacies of litigation including: posting the notice of determination for the required time period (Latinos Unidos de Napa v. City of Napa); standing (Save the Plastic Bag Coalition v. City of Manhattan Beach); augmentation of the record and requests for judicial notice (Madera Oversight Coalition, Inc. v. County of Madera); and appropriate remedies in circumstances in which the court finds CEQA error (Land Value 77, LLC v. Board of Trustees of California State University). Finally, 2011 began the unveiling of published appellate decisions dealing with the interface of global warming and CEQA analysis (Citizens for Responsible Equitable Environmental Development v. City of San Diego, Citizens for Responsible Equitable Environmental Development v. City of Chula Vista and Santa Clarita Organization for Planning the Environment v. City of Santa Clarita), with more decisions predictably to follow in 2012.

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2nd Appellate District Again Holds That For The Purposes Of CEQA, It Is The Impact Of The Project On The Environment, Not The Other Way Around

By William W. Abbott

The Second Appellate District tackled several technical, but important legal considerations in a newly published decision, including whether the lead agency must analyze the impact of the environment on the project. (Ballona Wetlands Land Trust v. City of Los Angeles (December 2, 2011, B231965) ___ Cal.App.4th ___) This case involves the aftermath to an earlier court decision finding the EIR for the Playa Vista project to be deficient, and directing the City of vacate the approvals and correct certain EIR deficiencies. Consistent with the court’s earlier ruling, the City and developer went back to work on a revised EIR, and as a result of amendments to the CEQA Guidelines, included an analysis of greenhouse gas emissions, and re-approved the project, with mitigation measures. Opponents filed an opposition to the return to the writ, as well as a new petition. The trial court consolidated the two actions, denied the petition, then discharged the writ, following which the opponents appealed. The issues on appeal included sufficiency of analysis and disclosure of archaeological resources and mitigation, sufficiency of analysis of GHG as it related to coastal flooding; and whether the opponents could renew a challenge to the project description.

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2011 CEQA THIRD QUARTER UPDATE

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

In the third quarter of 2011, the California Supreme Court issued two CEQA opinions and the California Appellate Courts issued 12 CEQA opinions. Many of the cases deal with procedural issues such as when the violation of a notice requirement is prejudicial (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949); the appropriateness of an interlocutory remedy in administrative mandamus (Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499); and the prevailing party’s recovery of attorneys fees for administrative time under Code of Civil Procedure section 1021.5 (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312). The most notable opinion issued in the third quarter was the Supreme Court’s reversal of the appellate court in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. Not only did the Supreme Court determine that an EIR was not required for an ordinance banning plastic bags, but it also overturned prior precedent requiring corporations to make a heightened showing to demonstrate public interest standing.

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