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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Adjacent Landowners Can't Use CEQA to Avoid Potential Nuisance Claims

By Katherine J. Hart

In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 (“South Orange”), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (“EIR”) be prepared to assess the impact of the environment on a proposed project pursuant to the California Environmental Quality Act (“CEQA”). The Court of Appeal declined to order such an EIR. The Court of Appeal also addressed whether the adopted project was inconsistent with the city’s general plan and zoning ordinance, and found that the project was consistent.

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California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions

By Katherine J. Hart

The recent case of Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499, involves the issuance of an NPDES permit by the Central Coast Regional Water Quality Control Board (“Regional Board”) authorizing the Moss Landing Power Plant (then owned by Duke Energy, now owned by Dynegy) to draw cooling water from Moss Landing Harbor and Elkhorn Slough. Plaintiff Voices of the Wetlands challenged the permit raising a number of legal issues, but only the following three issues were addressed by the California Supreme Court:

(1)   Did the superior court have jurisdiction to consider the administrative mandamus petition at issue?

(2)   Did the trial court improperly order an interlocutory remand after finding insufficient evidence to support the Regional Board’s best technology available (BTA) finding?

(3)   Does section 316(b) of the Clean Water Act (CWA) permit a cost-benefit analysis in determining best technology available?

The court left unresolved the issue of whether compensatory mitigation and habitat restoration measures can be a component of BTA.

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Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation

By William W. Abbott

In CEQA and land use litigation, project opponents who prevail in court will seek attorneys’ fees as authorized by Code of Civil Procedure section 1021.5. This code section grants a trial court the discretion to award fees in appropriate situations. In circumstances in which the opponents must first exhaust administrative remedies before filing suit, can the successful party also recover fees for the administrative time? A recent appellate decision answers the question with a "yes".

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Not Every CEQA Notice Defect is Prejudicial; Not Every CEQA Violation Compels Setting Aside the Approval

By William W. Abbott

How many mitigated negative declarations are required to avoid an EIR? In the recent decision of Schenck v. County of Sonoma (August 26, 2011, SCV-244017) ___Cal.App.4th ___, the answer is five. One can speculate that after five negative declarations, an EIR perhaps would have been a quicker route (and perhaps less expensive option) to reach the finish line. While the portion of this case devoted to the “fair argument” analysis remains unpublished, the court’s published ruling that certain procedural errors are not prejudicial is helpful, as well as the appellate court’s affirmation that the trial court can fashion a tailored remedy to cure a CEQA error, and is not compelled to reverse project approval.

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Balancing CEQA's Full Disclosure Requirements with the Protection of Cultural Resources

By William W. Abbott

Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200

As the State’s public disclosure statute, CEQA directs lead agencies to disclose the likely impacts associated with agency approvals. While legal caution dictates that more disclosure is preferable to less disclosure, lead agencies have to recognize that there are two notable exceptions to this practice: resource specific information relating to cultural resources (Government Code section 6254, CEQA Guidelines section 15120(d) and trade secrets (CEQA Guidelines section 15120(d). A recent decision explores how a lead agency can properly navigate the conflicting requirements of disclosure and confidentiality.

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Coastal Commission Properly Resolved Conflicting City Development Standards; Negative Declaration Was Upheld

By William W. Abbott

Malibu Bay Company (“MDC”) owns the last undeveloped beach front parcel in Malibu, a 2.08 acre, 200 foot wide parcel. In order to accommodate its proposed division into four parcels, MDC proposed an amendment to the Local Implementation Plan of Malibu’s local coastal plan in order to create a new zoning district which would allow for lot widths of 45’, a decrease from the then existing standard of 80’. As the application advanced to the City Council, staff ultimately recommended that the required width for all parcels in same district as MDC’s property was located in, be reduced to the 45’ standard. Altogether, this would impact 733 parcels, although as staff noted, a majority of the existing parcels were already substandard to the 80 width standard. Staff further determined that only 5 parcels (including MDC’s) were capable of further division under the proposed 45’ lot width standard. Two of the five were subject to additional legal limitations precluding further re-division, leaving only two parcels in addition to MDCs. Staff concluded that with respect to the two with potential for re-division, that any further re-division would require a coastal development permit and CEQA review. Concluding that there would be negligible direct and cumulative effects on aesthetics, biological resources and land use and planning, staff recommended acceptance of a negative declaration. Due to the presence of a dune environmentally sensitive area, and based further upon a dune study submitted by the applicant’s biologist, mitigation for dune species was required. The City Council eventually approved a revised mitigated declaration, and conditionally granted the approvals, subject to Coastal Commission approval. Neighbors opposed the approval of the entitlements, and submitted a biologist study indicating potential impacts to sensitive species.

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How Long Must a Notice of Determination be Posted?

By Leslie Z. Walker

In Latinos Unidos de Napa v. City of Napa (2011) 196 Cal.App.4th 1154, the Court of Appeal for the First Appellate District held that a Notice of Determination posted over the course of 31 calendar days was not posted long enough to satisfy the CEQA requirement that it be posted for 30 days.

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Lead Agencies Are Not Always Required to Explain Why Every Proposed Mitigation Measure is Infeasible

By Leslie Z. Walker

In Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (June 30, 2011, No. B224242) __ Cal.App.4th ___, the Court of Appeal for the Second Appellate district held that an agency does not necessarily have to explain why it has not adopted each mitigation measure on the Attorney General’s list of proposed greenhouse gas mitigation measures. The City of Santa Clarita approved a Master Plan for the expansion of a hospital and medical facilities (Project) by adopting a statement of overriding considerations and certifying the final environmental impact report (EIR) for the Project, adopting a development agreement between the city and the real parties in interest, and adopting the Master Plan (Approvals). The Project would expand the amount of hospital and medical office space on the existing site from its current size of 340,071 square feet to 667,434 square feet and would add nine proposed structures over the 15-year period of the Project.

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Implicit Approval of Using AB 32 Reduction Goals to Establish GHG Thresholds

By Leslie Z. Walker

In Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (July 8, 2011, D057779) ____ Cal.App.4th ____, the Court of Appeal for the Fourth Appellate District found substantial evidence of a fair argument that the development of a Target store would have a significant environmental impact by disturbing contaminated soil, but rejected challenges based on air pollution and greenhouse gas impacts.

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Petitioners Be Forewarned: Massive Document "Dumps" May Not Suffice To Exhaust Administrative Remedies; Water Supply Assessments May Be Approved Via Certification Of An EIR.

By Katherine J. Hart

In the recent opinion of CREED v. City of San Diego (2011 Cal. App. LEXIS 720, Court of Appeal, Fourth Appellate District) petitioners are cautioned not to rely on massive, unorganized, last minute submittals of documents and data without clarifying and outlining their specific concerns in order to provide an agency with an opportunity to respond. The court of appeal also held that water supply assessments (WSAs) can be approved by a CEQA lead agency that also serves as the water supplier for the project area by including the WSA analysis in the environmental document and certifying that environmental document (e.g., no separate WSA approval is necessary).

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California Supreme Court Rejects Need for EIR and Supports Use of Common Sense

By Leslie Walker

The Supreme Court reviewed a decision by the Court of Appeal for the Second District granting an industry association’s petition for writ of mandate challenging the city of Manhattan Beach’s ban on point-of-sale plastic bag use. In Save the Plastic Bag Coalition v. City of Manhattan Beach (July 14, 2011, S180720) __Cal.4th__, the Supreme Court (“Court”) overturned the rule that corporations must make a heightened showing to demonstrate public interest standing, urged the use of common sense at all stages in the CEQA process, and held that an EIR was not required to adopt a plastic bag ordinance.

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2011 CEQA MID-YEAR UPDATE

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

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

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Building Code Compliance Mitigation for Seismic Impacts Upheld

By Cori M. Badgley

In successful challenges under the California Environmental Quality Act (“CEQA”), the petitioner generally has a second bite at the apple by challenging the return of the writ. If a petitioner is successful in its challenge to an EIR, the trial court issues a writ of mandate that requires the agency to bring the EIR into compliance with CEQA. Once the agency has complied with the writ of mandate by “fixing” the EIR, the agency files a return of the writ with the court, and if the court finds that the city has satisfied the writ of mandate, the court discharges the writ.

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No Discharge, No Cumulative Impact

By Leslie Z. Walker

In Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, Santa Monica Baykeeper (“Baykeeper”) challenged the City of Malibu’s adoption of an Environmental Impact Report (“EIR”) and approval of the Legacy Park project. Legacy Park is a clean water project located in Malibu, near Surfrider Beach. Baykeeper challenged the project alleging the EIR failed to analyze 1) construction related project impacts; 2) the impact of using treated effluent from the adjoining Malibu Lumber Yard; and 3) the cumulative groundwater impacts. The trial court denied the writ. On appeal, the City argued the case was moot because the project construction was completed during the pendency of the appeal. The Court of Appeal found the case was moot as to the first issue, construction related impacts, but not as to the second and third issues. The appellate court upheld the trial court’s denial of the writ as to the second and third issues, finding Baykeeper failed to demonstrate the City had abused its discretion.

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A Very Detailed Agreement In The Process Of Negotiating A Development Project May Not Constitute An Approval For CEQA Environmental Review Purposes

By Glen C. Hansen

In Cedar Fair, L.P. v. City of Santa Clara (2011) ___ Cal.App.4th ___, 2011 Cal.App.LEXIS 506, the Court of Appeal for the Sixth Appellate District held that, when a city and its redevelopment agency entered into a long and detailed “term sheet” for the development of a professional football stadium development project, the public agencies did not “approve” the project for purposes of environmental review under the California Environmental Quality Act, because the term sheet did not commit the public agencies to a definite course of action with respect to the development of the stadium or effectively rule out any mitigation measure or alternative.

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CEQA Remedies for CEQA Sins

By William W. Abbott

The Fifth Appellate District showed pragmatism and practicality the exit door in a recent CEQA decision involving an approval by the Board of Trustees of California State University Fresno. In Landvalue 77, LLC v. Board of Trustees of California State University 2011 Cal.App. Unpub. LEXIS 1312, the disputed project involved land owned by the University. The University in turn leased the property to an associated University foundation, who then ground leased the property to a developer for a mixed use project. In the ensuing legal challenge to the project approval by entities owning and managing a nearby commercial center, the trial court and appellate court addressed both conflict of interest issues (the effect of a trustee to hold an economic interest in a cinema sublease) as well as CEQA compliance. Only a portion of the appellate decision is published, that dealing with the appropriate actions to be taken by the trial court once it finds a violation of CEQA.

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The Normal Rules Don't Apply When it Comes to Affordable Housing Projects

By Cori Badgley

After a challenge based on the density bonus law and the California Environmental Quality Act (CEQA), a mixed-use affordable housing or senior affordable housing project (depending on what the developer chooses) in the City of Berkeley can move forward. In Wollmer v. City of Berkeley (March 30, 2011, Case No. A128121), the court held that the city properly applied density bonuses to the project and the categorical infill exemption under CEQA.

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AB 32 Scoping Plan Enjoined

By Leslie Z. Walker

San Francisco Superior Court enjoined the implementation of the Air Resources Board’s Climate Change Scoping Plan, finding the alternatives analysis and public review process violated both CEQA and the Air Resources Board’s certified regulatory program.

The Scoping Plan is the strategy for achieving the Greenhouse Gas (“GHG”) reductions mandated by the Global Warming Solutions Act of 2006 (Health & Saf. Code, 38500 et seq., “AB 32”). AB 32 directed the Air Resources Board (“ARB”) to prepare and approve a scoping plan for achieving the maximum technologically feasible and cost-effective reductions in GHG emissions by 2020. (Health & Saf. Code, § 38561.) ARB adopted the Climate Change Scoping Plan including the functional equivalent document (“FED”) on December 12, 2008. Petitioners challenged both the Scoping Plan and the FED, claiming the former violated AB 32 and the latter violated CEQA and ARB’s certified regulatory program (Cal. Code Regs., tit. 17, 60005-60007). The court found the plan violated CEQA and the certified regulatory program, but not AB 32.

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Money, Money, Money: Pacific Lumber Co. Litigation Ends in Battle over Attorney's Fees

By Cori Badgley

The long legal battle over Pacific Lumber Company’s logging of timberland in Humboldt County continues as the parties now fight over attorney’s fees. In Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2008) 44 Cal.4th 459, the Supreme Court finally resolved all of the substantive issues on the merits. In summary, the Supreme Court set aside the department’s approval of a sustained yield plan based on two of petitioner’s arguments, invalidated a portion of the incidental take permit, and upheld the department’s streambed alteration agreement and certification of the environmental impact report/environmental impact statement. Following the Supreme Court’s decision, the matter was remanded back to the appellate court, and the appellate court heard arguments on whether petitioner was entitled to attorney’s fees and in what amount. (Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2010) 190 Cal.App.4th 217.)

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2010 CEQA UPDATE

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

Abbott & Kindermann, LLP’s annual California Environmental Quality Act (“CEQA”) review summarizes important developments over the past year. Among 2010’s highlights were three decisions from the California Supreme Court: two enforcing the abbreviated statutes of limitations set forth in Public Resources Code section 21167 subdivisions (d) and (e), and one holding the baseline for air quality emissions to existing physical conditions, not existing permitted conditions. The question of what constitutes the appropriate baseline for environmental review reverberated through the appellate courts as the Court of Appeal for the Fourth Appellate District held that adjudicated water rights, rather than actual water consumption, could serve as the baseline in a master plan; and the Sixth Appellate District held that the use of 2020 traffic conditions, as opposed to existing conditions, constituted an abuse of discretion.

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Project to Remedy Traffic Congestion not Exempt from Analysis of Current Baseline Conditions

By Kate J. Hart

The most recent California Environmental Quality Act (“CEQA”) case on selecting a project baseline is Sunnyvale West Neighborhood Assn., et al. v. City of Sunnyvale City Council (December 16, 2010, H035135). In this case, the City of Sunnyvale (“City”) proposed to construct the Mary Avenue Extension project, a four-lane northerly extension of Mary Avenue, including light rail transit tracks, over two freeways to Eleventh Avenue. The City’s environmental impact report (EIR) analyzed the project and its impacts based on 2020 conditions, as opposed to present day conditions. A neighborhood group sued to challenge the approval of the project. The superior court ruled in the neighbor’s favor and the City appealed. The Sixth Appellate District Court upheld the trial court’s decision holding that despite the City’s arguments the project was a traffic congestion-relief project, there is no provision of CEQA which allows a roadway infrastructure project to be evaluated differently than other projects. Further, even if the court was to assume the decision to use the projected 2020 conditions as a baseline was proper, it found the administrative record was devoid of any substantial evidence to support the decision to deviate from the norm of using current conditions as baseline for project analysis.

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County Dug Itself a Hole by Limiting its Scope of Review

By Katherine J. Hart

In Renee D. Nelson v. County of Kern (November 19, 2010, No. F059293), a mining company submitted an application to the County of Kern (“County”) to surface mine 250,000 cubic yards per year of calcite marble from a 40-acre foothill property on federal land over a period of 30 years, and for a reclamation plan to restore the land after the completion of the mining. The Bureau of Land Management conducted environmental review of the project under National Environmental Policy Act (“NEPA”), and the County conducted environmental review of only the reclamation plan under California Environmental Quality Act (“CEQA”). The County adopted a mitigated negative declaration and approved a conditional use permit for the reclamation plan. Petitioners sued the County arguing the County should have been the lead agency for the entire project – not just the reclamation plan – and that the failure to consider the entire mining project along with the reclamation plan violated CEQA. The Fifth Appellate District agreed with Petitioners and reversed the trial court’s decision.

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REMINDER! Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • 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.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • 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, February 11, 2011
  • 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

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Authority to Delay a Project Does Not Make the Project Discretionary

By Leslie Z. Walker

In Juana Briones House v. City of Palo Alto (October 27, 2010, H033275) ___ Cal.App.___the Sixth District Court of Appeal found the provision of the Palo Alto municipal code requiring a 60 day delay prior to the issuance of a demolition permit did not render the act discretionary. The City properly treated the demolition permit as ministerial and exempt from environmental review under CEQA.

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Alternative Baseline Considered a Good Egg

By William W. Abbott

The Court of Appeal, Fourth Appellate District, in a very fact-rich decision, addressed three common areas of California Environmental Quality Act (“CEQA”) litigation: water supply analysis/assessment; agricultural lands mitigation; and statements of overriding considerations. In Cherry Valley Pass Acres and Neighbors v. City of Beaumont  (Nov. 22, 2010, No. E049651) ____ Cal.App.4th ____, the facts involve a proposed specific plan considered by the City of Beaumont. Project opponents filed a CEQA challenge, and the trial court ruled for the City and the applicant. The core of the specific plan included property (“Sunny-Cal”) which had been an active egg production facility from the 1960’s to 2005. After that date, the declining economics of the egg industry resulted in the egg farm closing and the intensity of the agricultural operations declined. The Beaumont environs is a rapidly urbanizing area, and has been for a number of years, the result of which is that historic agricultural activities continue to be subject to constant pressure.

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Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2011.

In January and February 2011 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2011 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting, AB 32 
  • Water Supply Assessments
  • CEQA Litigation: Exemptions, Setting the Baseline, Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extensions
  • Interpreting Development Agreements
  • Agricultural Land Mitigation
  • New General Permit Under Clean Water Act

Abbott & Kindermann, LLP will be presenting its annual program at three California locations, Sacramento, Modesto and Redding. Details for the seminars are below. We hope you can join us and look forward to seeing you there.

Modesto Conference

  • Date: Thursday, January 20, 2011
  • 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.

Redding Conference 

  • Date: Tuesday, February 8, 2011
  • 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, February 11, 2011
  • 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

There is no charge for the programs and MCLE and AICP CM credits are available. 

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Court Upholds Agency's Reasonable Assumptions in its Urban Water Management Plan

By William W. Abbott

Land use and California Environmental Quality Act (“CEQA”) litigation frequently involves a petitioner asking the court to second guess agency decision makers by reweighing the evidence, and to expansively interpret the statutory duties imposed by a particular statute. As illustrated in a recent appellate court decision upholding an urban water management plan, neither approach is appropriate. (Sonoma County Water Coalition v. Sonoma County Water Agency (2010) 189 Cal.App.4th 33.)

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Grazing Cattle and the BLM's Violation of NEPA and ESA

By Emilio Camacho and Cori Badgley

In Western Watershed Project v. Kraayenbrink, (9th Cir. Sep. 1, 2010, No. 08-35360__F3d.__.), the Ninth Circuit Court of Appeals ruled that the Bureau of Land Management (“BLM”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”) in adopting the 2006 amendments to the BLM’s grazing regulations.

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Are 1021.5 Attorneys Fees All or Nothing?

By Cori M. Badgley

Attorneys’ fees under the private attorney general doctrine codified in Code of Civil Procedure section 1021.5 are treated as a birthright by petitioners after prevailing in a California Environmental Quality Act (CEQA) lawsuit. Two decisions in 2010 explore the limits of attorneys’ fees in CEQA cases, and the rulings illustrate both what it means to be a successful party for purposes of Section 1021.5 and the significant discretion given to the trial court in determining the amount awarded.

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CARB Adopts SB 375 Targets for GHG Reductions Despite Economic Concerns

By Leslie Z. Walker

The alliances between homebuilders and conservation groups forged during the drafting of Senate Bill 375 unraveled around the Regional Greenhouse Gas Emission Reduction Targets for Automobiles and Light Trucks (“Targets”) adopted today by the California Air Resources Board ("CARB"). Despite the suffering building industry’s claims that the Targets are too ambitious, CARB unanimously voted to adopt the Targets. The Sustainable Communities and Climate Protection Act of 2008, Senate Bill 375, requires CARB to set targets for GHG reduction for 2020 and 2035 and further requires the 18 Metropolitan Planning Organizations (“MPOs”) include Sustainable Communities Strategies (“SCS”) to achieve these Targets in their Regional Transportation Plans.

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Go Bears! Court Approves Cal Bears Athletic Facility Expansion

By William W. Abbott

Whether you attribute the expression “the best defense is a good offense” to Vince Lombardi, Bear Bryant, General Carl Von Clausewitz (On War, 1873) or Sun Tzu (Art of War, 6th Century, B.C.), the same holds true in CEQA. The Cal Bears scored a well deserved win in a recent legal challenge to a Regent approved expansion of the school’s athletic facilities, to be located near the historic Berkeley football stadium. (California Oak Foundation v. The Regents of the University of California (September 3, 2010, Case No. A122511____ Cal.App.4th ____.) Appellants’ playbook included a near endless list of California Environmental Quality Act (CEQA) offenses (e.g. project description, project objectives, impact analysis, mitigation measures, alternatives and findings) against which the blue and gold defense successfully held the line. Along the way, there were some noteworthy plays, discussed below.

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Sacramento County Climate Action Plan - Part Two

By Emilio Camacho & Leslie Walker

The County of Sacramento kicked off Phase 2 of the Climate Action Plan development at a workshop on Wednesday, August 25, 2010. Phase 2 will develop strategies to implement the Climate Action Plan (CAP), a comprehensive plan for becoming more resource efficient and reducing greenhouse gas (GHG) emissions, originally released in May 2009. 

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Land Use Litigation Traps

By William W. Abbott

While land use litigation is not overly complex, it contains two procedural rules which occasionally trip up project opponents. First, CEQA requires that the petitioner request a hearing within 90 days. Public Resources Code section 21167.4 An oral request is insufficient. Second, if the challenge is to a tentative map approval, the petitioner must also obtain and serve a summons. Government Code section 66499.37. In Torrey Hills Community Coalition v. City of San Diego (2010) ___ Cal.App.4th ____, the appellate court affirmed the action of a trial court dismissing a writ petition on both grounds. With respect to the dismissal of the CEQA claim, the court held that an oral request was insufficient as it was non compliant with the statutory obligation to serve the request on all parties. The Map Act dismissal was more intriguing. Petitioner claimed impossibility as a form of relief, based upon declarations establishing that the San Diego superior court routinely declined to issue a summons in cases involving CEQA writs, a scenario we highlighted in an earlier write up. Notwithstanding the evidence that a summons would not have been issued in the case, the appellate court concluded that the petitioner failed to establish sufficient facts to claim impossibility. The appellate court followed its earlier reasoning as set forth in Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, wherein the same court dismissed the related CEQA causes of action, based upon the non compliance with the Subdivision Map Act service rules. While the holding in Friends was published on November 24, 2008, and the 90 day period in Torrey Hills expired on December 15, 2008, there was no evidence that the petitioner had requested a summons between the publication date and end of the 90 day service period and consequently made an inadequate showing of impossibility.

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.

. . . And the Number is . . . Five to Ten Percent Reduction Target for 2020

By Leslie Z. Walker

As mandated by SB 375 (Stats 2008, Ch.728) the California Air Resources Board (CARB) is required to set passenger vehicle greenhouse gas emission (GHG) reduction targets for 2020 and 2035 for each of the 18 Metropolitan Planning Organization (MPO) regions in California. CARB must set the targets by September 30, 2010. (Gov. Code, § 65080 subd. (b)(2)(A).)

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Appellate Court Post - Save Tara: Preliminary Exploration Does Not Constitute Project Commitment for CEQA

By Leslie Z. Walker

In City of Santee v. County of San Diego (June 7, 2010, D055310) __Cal.App.4th__ the Fourth District Court of Appeal held that an agreement between the County of San Diego and the Department of Corrections under which the County identified potential locations for a state prison reentry facility in exchange for preference in the awards of state financing of county jail facilities did not constitute a commitment to a definite course of action. As such, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 did not require the County to conduct environmental review prior to entering into the agreement.

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2010 MID-YEAR CEQA UPDATE

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

True to our standard annual mid-year update format, we are providing you with condensed summaries of each of the CEQA cases issued this year. The condensed case summaries are organized based upon the major CEQA issues discussed, and linked to the full length articles published earlier this year on our blog. To print this summary with all the articles attached, click here.

Highlights for this update include the three firsts on the climate change front: (1) adoption of CEQA guidelines for the quantification and mitigation of greenhouse gas emissions (“GHG”), (2) the adoption of the first thresholds of significance for GHG, and (3) the first appellate court case finding an Environmental Impact Report’s (“EIR”) analysis of GHG inadequate. Also in the first half of this year, the California Supreme Court opined that air impacts are to be measured against existing physical conditions not existing permitted levels of emissions. Further, Notices of Determination and Notices of Exemption trigger shortened statutes of limitations, despite any underlying errors, so long as they serve public notice purposes. For more details, read below and stay posted for the second half of the year.

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Limited Discretion Related to Aesthetics did not Trigger Need for Supplemental EIR on Climate Change Impacts

By Cori M. Badgley

One of the threshold questions in any review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”) is whether the project requires discretionary action or approval by the governmental entity. If the answer is no, then CEQA does not apply and no environmental review is required. In San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) ____ Cal.App.4th ___, the Court of Appeal, Fourth Appellate District addressed this threshold question in the context of supplemental environmental review of climate change impacts under Public Resources Code section 21166. The court held that because any discretion on the part of the City of San Diego (“city”) was limited to aesthetics only, there was no discretionary action triggering supplemental environmental review of climate change impacts.

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Basin Plan Amendments Addressing Impairments for Salt, Boron and Dissolved Oxygen are Valid

By Katherine J. Hart

In San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board, et al., (2010) ____ Cal. App.4th ____, a group of public agencies, water contractors, and farmers filed a petition for writ of mandate against the State Water Resources Control Board (“State Board”) under the Clean Water Act (33 U.S.C. § 1251 et seq.) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.)

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The Long Life of CEQA Mitigation Measures

By William W. Abbott

The shelf life of mitigation measures may readily outlast the lives of the projects to which they are attached, according to the First Appellate District. While the fact pattern is specific to timber harvesting and later conversion, the holding has application in the broader world of all CEQA practice.

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Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid

By Cori M. Badgley

The California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”) provides that the purpose of an environmental impact report (“EIR”) is “to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment.” (Pub. Resources Code, § 21061.) In Center for Biological Diversity v. County of San Bernardino (2010) __ Cal.App.4th __, the court found that an EIR for a proposed open-air composting facility did not satisfy the informational purposes of an EIR in relation to air quality alternatives and water supply.

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898,000 Metric Tons of Unmitigated CO2: Prime Conditions for the First Appellate Court Decision on CEQA and Climate Change

 By Leslie Z. Walker

The City of Richmond (“City”) and Chevron Products Company (“Chevron”) gave the First District Court of Appeals the opportunity to deliver the first ever appellate court decision on an Environmental Impact Report’s (“EIR”) treatment of greenhouse gas emissions (“GHG”). On April 26, 2010, the Appellate Court found in Communities for a Better Environment v. City of Richmond, (April 26, 2010, A125618) __Cal.App.4th__ the EIR prepared for the construction of an Energy and Hydrogen Renewal Project (“Project”) inadequate in its project description and mitigation of GHG. The factors that likely influenced the appellate court’s decision included: the deal struck between the applicant and the City whereby Chevron would pay the City $61 million dollars to fund civic improvement and the City would fast track the additional permits required for the project; the fact that the project as described in its Security and Exchange Commission documentation, made under oath, contradicted the Project description in the EIR; the City’s delay in concluding the Project’s GHG emissions would create a significant impact on the environment, and the plan for mitigating this contribution would not be developed until up to one year after the issuance of the conditional use permit for the Project.

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City's New General Plan is not Cleared for Take-off, Returns to Base and is Grounded: Court Sets Aside Watsonville General Plan for Non Compliance with State Aeronautical Act and CEQA Requirements

By William W. Abbott

The facts in Watsonville Pilots Association v. City of Watsonville (2010) 183 Cal.App.4th 1059 involve the City of Watsonville and its airport, located on the edge of the City. The airport’s main runway accounted for a majority (82%) of airport operations, and its crosswind runway, accounted for the balance. In 2005, the City amended its airport master plan (“WAMP”), redesignating downward the crosswind, and modifying or eliminating existing land use restrictions. In October 2005, the City circulated a DEIR for its new general plan, and later in May 2006, certified the EIR, adopted a statement of overriding considerations, and adopted the new 2030 General Plan. The new general plan called for significant new growth around the airport, in an area called Buena Vista. As part of the general plan approval, the City identified three significant unmitigated impacts: increased population and housing, loss of prime farmland and the potential to impact groundwater supply.

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Regents' CEQA Document Receives a Passing Grade; Opponent Marked Down for Inadequate Participation

By William W. Abbott 

The Lawrence Berkeley National Laboratory (“LBNL”) is a federal facility, operated by the University of California Berkeley. Its primary facility is located in the hills above Berkeley, although it shares onsite campus facilities and leases offsite facilities in Berkeley, Oakland and Walnut Creek. In January, 2007, the Regents published a DEIR for a Long Range Development Plan (“LRDP”). The EIR was prepared as a program-level document, describing the likely improvements to the site through the year 2025. The LRDP called for an increase of roughly 600,000 square feet of new space, additional employees, parking, and development of a campus-like setting, “fostering interaction and informal encounters among lab staff…” The EIR addressed 5 alternatives: no project, reduced growth alternative 1, reduced growth alternative 2, preservation alternative with Non-LBNL use of Historical Resources and a partial offsite alternative. Petitioners filed a CEQA challenge, and after trial, the court ruled for the petitioners with respect an argument that the FEIR should have been recirculated due to new information raised for the first time in responses to comments, but otherwise ruled for the Regents. Both sides appealed.

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No Fooling: A Facially Valid NOE Triggers a 35-Day Statute of Limitations

By Katherine J. Hart and Leslie Z. Walker

In the second time in two months, the California Supreme Court announced that once a Notice of Exemption (“NOE”) for a project is filed, the applicable statute of limitations is 35 days – regardless of the circumstances surrounding the NOE. On April 1, 2010, the Court held that a citizens’ suit challenging a project under the California Environmental Quality Act was barred by the 35-day statute of limitations contained in Public Resources Code section 21167 subdivision (d) because the City of Stockton had filed a facially valid NOE. In Stockton Citizens for Sensible Planning v. City of Stockton (2010) _____ Cal.3d___ a citizens’ group challenged the approval of a Wal-Mart Supercenter (“Project”) found to be consistent with an approved master development plan (“MDP”) and thus exempt from further review under the California Environmental Quality Act (“CEQA”). The citizens’ group claimed that because the Community Development Director (“Director”) erred in approving the project, the statute of limitations for a challenge to the Notice of Exemption (“NOE”) was the 180-day period applicable when no NOE has been filed, not the shorter 35-day period applicable when public notice has been provided by means of an NOE. (Public Resources Code, § 21167, subd. (d); CEQA Guidelines, § 15112, subdivision (d)(2). ) Reversing the decisions of both the superior and appellate courts, the Supreme Court found that flaws in the decision-making process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day period to file a lawsuit challenging the agency’s approval of a CEQA-exempt project.

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Subsequent EIRs: It is Still a Matter of the Evidence in the Record

By William Abbott

Must a CEQA document for a supercenter always address urban decay? The answer is no according to the Fifth Appellate District, the same court which rendered the earlier ruling on a supercenter in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184. The story begins in 2006 when the City of Madera certified an EIR for a retail center, consisting of 795,000 square feet of gross floor area. The conceptual site plan showed one anchor of 125,000 square feet. Following annexation approval in February, 2007 of the site to the City, the developer submitted to the City a refined site plan which now included an anchor tenant a “Super Target” of 194,484 square feet, excluding the garden outdoor sales area.   The total square footage for the retail center remained unchanged. The City’s Community Development Department approved the refined site plan in May, and in June, the Planning Commission considered an addendum to the EIR, and recommended approval of a development agreement. In turn, the City Council considered the addendum and approved the development agreement in August. The staff report and addendum both concluded that there were no new impacts, different from those considered in the previously certified EIR. No one testified in opposition. However, a lawsuit challenging approval of the revised site plan was filed the same day as the council was considering the development agreement. The trial court denied the writ petition.

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Baseline Depends Upon Whether You Have a New or Modified Project or Existing Project Without Significant Expansion of Use

By Katherine J. Hart

In Communities for a Better Environment v. South Coast Air Quality Management District et al., the California Supreme Court determined that the air district issuing a new permit to a petroleum refinery seeking to introduce a new industrial process to its existing refinery, incorrectly determined the baseline upon which to analyze environmental impacts. Specifically, the Court concluded the baseline could not be based on the maximum permitted operating capacity of the existing equipment but rather had to be based on the physical conditions actually existing at the time of environmental analysis. The facts are as follows.

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CEQA Guidelines for Greenhouse Gas Emissions Become Law Today

By Leslie Z. Walker

Almost three years after Attorney General Edmund G. Brown, Jr. filed suit against the County of San Bernardino for failing to consider the impacts of the County’s General Plan on Global Warming, the Amendments to the CEQA Guidelines Addressing Greenhouse Gas Emissions mandated by Senate Bill 97 (Chapter 185, Statues 2007; Pub. Resources Code, § 21083.05), take effect today. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

Leslie Z. Walker 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, 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.

Yes, Local Appeal Fees Apply to CEQA Appeals

By: Katherine J. Hart

As determined by the California Supreme Court 27 years ago, local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable.

In the case at hand, the planning commission of the City of Glendora adopted an addendum to a negative declaration (“Addendum”) and approved a project on February 12, 2008. Petitioner Erica Landmann-Johnsey (“Petitioner”) wanted to appeal the CEQA decision to the city council, but in order to do so, was required to pay a $2,000 appeal fee. Petitioner filed her appeal and paid the fee under protest.

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City Gambles and Wins on Agreement with Tribe Over Casino: CEQA Does Not Apply

By: Cori Badgley

In yet another CEQA case involving whether an agreement between a tribe and a city constitutes a project, the court held that CEQA did not apply to an agreement requiring the city’s formal support of a proposed casino and the tribe to pay for future, as of yet undefined, city services and improvements.

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NODs Provide Bullet-Proof Protection 30 Days After Posting

By Kate Hart

In a decision filed on February 11, 2009, Committee for Green Foothills v. Santa Clara County Board of Supervisors, et al. (2010) __ Cal.2d ___, the California Supreme Court reversed the Sixth Appellate District Court of Appeal holding that the filing of a notice of determination (NOD) triggers a 30-day statute of limitations for all California Environmental Quality Act (CEQA) challenges to the decision announced in the notice regardless of the nature of the CEQA violation.

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30 Days Left: CEQA Guideline Amendments for Greenhouse Gas Emissions to Become Law on March 18, 2010

By Leslie Z. Walker

Today, February 16, 2010, the Office of Administrative Law filed the Amendments to the CEQA Guidelines addressing greenhouse gas emissions (“Amendments”) with the Secretary of State. The Amendments require the quantification and mitigation of greenhouse gas emissions. (For more information about the Amendments, see OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency and CEQA Guidelines on Greenhouse Gases One Step Closer to Law.) The Amendments will become effective on March 18, 2010. Lead agencies should consult Guidelines section 15007 to determine when the Amendments apply to the agency’s actions.

 

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Application Processing: The Sun Has Set on Sunset

By Katherine J. Hart

In the last quarter of 2009, three new California Environmental Quality Act (“CEQA”) cases were issued – two by the First Appellate District and one by the Second Appellate District – wherein developers claimed relief from agency inaction pursuant to Sunset Drive Corp. v. City of Redlands (1999) 73 Cal.App.4th 215 (“Sunset”). In sum, both the First and Second Appellate District Courts noted that Sunset does not stand for the proposition that an agency has a mandatory duty to complete and consider an EIR: 1) at all, and 2) not necessarily within the one year time frame provided by CEQA. A brief synopsis of each of the cases follows.

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Bay Area Air Quality Management District Defers Adoption of Greenhouse Gas Thresholds

By Leslie Z. Walker

The Bay Area Air Quality Management District (“BAAQMD”) was scheduled to be the first air district in the state to adopt quantitative as well as qualitative thresholds of significance for greenhouse gas emissions in January of 2010, but instead has delayed the decision until April of 2010. According to BAAQMD, the delay is to “provide more time for staff to meet with local governments, further develop analysis tools, and conduct trainings on applying the CEQA Guidelines.”

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Paper or Plastic? Public Right Exception Allows Plastic Bag Producers to Challenge Negative Declaration for Environmental Ordinance

By Leslie Z. Walker

The Court of Appeals for the Second Appellate District demonstrated in January, that substantial evidence of a fair argument includes any evidence in the record, even a report from the Scottish Government evaluating a plastic bag tax. In Save the Plastic Bag Coalition v. City of Manhattan Beach (January 21, 2010, B215788) ___ Cal.App.4th___,the appellate court found that substantial evidence supported a fair argument that an ordinance prohibiting the use of plastic bags in the city may require the preparation of an environmental impact report (“EIR”).

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Too Late! Challenge at the Time of Project Implementation is not Timely

By Katherine J. Hart

A state appellate court has upheld the adoption of design guidelines that are intended to implement a City of Los Angeles redevelopment plan.

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Evaluation of Individual Water Transfer Not Considered Improper Piecemealing Under CEQA

By Leslie Z. Walker

In Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, the Castaic Water Agency (“Castaic”) succeeded in extracting its agreement with Kern County Water Agency (“Kern”), if only for a moment, from the tangles of the Department of Water Resources’ (“DWR”) Monterey Agreement.

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2009's Top 10: Legislation, Regulations, & Cases

From the quick fix solutions for the Delta to CEQA analysis on mitigation deferral, impact fees and the feasibility of alternatives, to the scope of the Corps permitting authority, the following legislation, regulations, and cases from 2009 (listed first by type of document, then in chronological order) will have the most impact on water supply, water quality, and land use and entitlement practice (e.g., development) in California in the coming years. And remember, you read it here first!

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A Fair Argument and the Need to Prepare an EIR: A Timeless Tale

By William W. Abbott

In 2001, the County of Inyo adopted an updated General Plan, which included a definition of “net acreage”.  This definition excluded areas devoted to streets, roads and utilities. Over time, staff was concerned with interpretation of this provision as it related to utilities, and in 2005, the Board of Supervisors, based upon a negative declaration, amended the General Plan’s definition of net acreage, deleting the reference to utilities.  The Board then acted to approve three parcel maps, each based upon negative declarations.

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Greenhouse Gas Guidelines and Thresholds: Science Required

By Leslie Z. Walker

In the last weeks of 2009, the Natural Resources Agency adopted CEQA Guidelines Amendments for the mitigation of greenhouse gas emissions (“Amendments”), while the San Joaquin Valley Air Quality Management District (“SQAQMD”) became the first air district in the state to adopt thresholds of significance, which will likely face challenge from the California Attorney General.

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Reminder! Save the Date

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

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

Modesto Conference

  • Date: Thursday, January 21, 2010
  • 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.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • 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, February 12, 2010
  • 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

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

 

Project Denial Means Project Denial, Regardless of the Consequences

By Cori Badgley

In Sunset Sky Ranch Pilots Association v. County of Sacramento (2009) ___ Cal.4th ___  the California Supreme Court reversed the decision of the appellate court, which held that the denial of a conditional use permit renewal was a project under CEQA.  Although project denials are generally exempted from CEQA review, the appellate court reasoned that in this case the result of denying renewal of the permit constituted the whole of the action, and therefore, CEQA applied.  (See “Court Holds that County Has Power to Deny Conditional Use Permit Renewal, but CEQA Applies”.)  The California Supreme Court disagreed.

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CEQA: 2009 Year in Review

This article highlights the 2009 CEQA court decisions along with the proposed changes to the CEQA guidelines. Many of the highlights are linked to more detailed analyses prepared by the attorneys at Abbott & Kindermann, LLP.

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Measure Including Transportation Investment Plan Held Not to Be a Project Under CEQA

By Cori Badgley

The preliminary question in any inquiry under the California Environmental Quality Act is: does the action being approved by the agency constitute a project? While CEQA’s scope touches a significant array of actions, sometimes the answer to the question is “No.” In Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments (2009) 179 Cal.App.4th 113, the Court of Appeal, Second Appellate District was faced with this preliminary question in relation to a measure imposing a retail sales and use tax and establishing a Transportation Investment Plan. The court held that the measure did not constitute a project, and therefore, the agency did not have to engage in environmental review before approving the measure.

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Petitioners Fail to Demonstrate that the City Failed at the Two-Step

By Leslie Z. Walker

In California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, the Sixth District Court of Appeals upheld an Environmental Impact Report (“EIR”) for the master plan of a greenbelt, against appellant’s attack on the range of alternatives and findings of infeasibility.

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Save the Date!

Abbott & Kindermann’s Annual Land Use, Real Estate, and Environmental Law Update

Reserve your seat for one of three seminars taking place in 2010!

In January and February 2010 Abbott & Kindermann, LLP will present its annual complimentary educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, real estate acquisition, easements, leasing and property acquisition, and mining.  In addition, the following hot topics for 2010 will be discussed:

  • Global Warming: CEQA Guidelines, Mandatory Reporting
  • Water Supply Legislation
  • CEQA Litigation: Alternative Analysis & Exhaustion of Administrative Remedies
  • Subdivision Map Extension
  • Interpreting Development Agreements
  • Endangered Species Act

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

Modesto Conference

  • Date: Thursday, January 21, 2010
  • 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.

Redding Conference 

  • Date: Thursday, January 28, 2010
  • 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, February 12, 2010
  • 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

There is no charge for the programs and MCLE and AICP CM credits are available.

An RSVP will be required as space is limited. To reserve a spot, call our office at (916) 456-9595. When calling, please specify which conference you will be attending.

Approval of a Sales Tax Measure and an Investment Plan by the Regional Transportation Planning Body, as Part of a Sales Tax Measure to be Submitted to the Voters, Qualifies as Exempt from CEQA

By William W. Abbott

The Santa Barbara COG is the local transportation authority for Santa Barbara County. As authorized by statute, the COG approved Measure A, which consisted of a sales tax measure for voter approval for transportation improvements and an investment plan, which served as the statutory Expenditure Plan.  The COG then approved a resolution calling for the Board of Supervisors to put Measure A on the ballot. Petitioner challenged the COG approval on the basis that no CEQA review had been completed. The trial court ruled in favor of the COG, concluding that Measure A meets the criteria for an exemption from CEQA as the funding mechanism did not commit the COG to specific projects, notwithstanding the Expenditure Plan. Three months after COG approval of Measure A, but before the election, the COG certified an EIR for the 2008 Regional Transportation Plan.

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A CEQA Issue of First Impression: Energy Conservation Impacts Analysis in EIRs

By Katherine Hart

On August 27, 2009, the Court of Appeal, Third Appellate District in California issued the first ever CEQA decision on what an energy conservation impacts analysis can entail. In Tracy First v. City of Tracy, et al., the City of Tracy (“City”) prepared and certified an EIR and approved a project which included 1) a specific plan amendment to change the designation of property from industrial to commercial, and 2) a conditional use permit (“CUP”) to build a 95,900 square foot WinCo Foods store. Petitioner Tracy First sued to challenge the certification of the EIR and the approval of the project on the grounds the City failed to look at issues of energy conservation, alternatives, and extraterritorial traffic impacts.

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Appellate Court Emphasizes CEQA's Focus on Reasonableness

By Cori Badgley

In CEQA cases, the courts evaluate whether the agency proceeded in the manner required by law and whether substantial evidence supports the agencies decision.  In other words, did the agency act reasonably in its analysis.  This is the crux of City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889, in which the City of Long Beach (“City”) challenged the adequacy of an EIR for the construction of a high school in the City.  Finding that the school district acted reasonably in its analysis of all the issues challenged by the City, the court upheld certification of the EIR.

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CEQA Does Not Apply to Project Disapproval, Even if the EIR is Underway

By Leslie Z. Walker

According to Las Lomas Land Co., LLC v. City of Los Angeles (Sept. 17, 2009, B213637) ___ Cal.App.4th ___, the long standing rule that CEQA does not apply to projects rejected or disapproved by a public agency, allows a public agency to reject a project before completing or considering the EIR.  In Las Lomas, the Court of Appeals for the Second Appellate District made clear that a city may stop environmental review mid-stream and reject a project without awaiting the completion of a final EIR.  While this holding may avoid wasting time and money on an EIR for a dead-on-arrival project, it will also make it harder for projects to stay in play until the entire environmental document is complete.

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CEQA Guidelines on Greenhouse Gases One Step Closer to Law

By Leslie Z. Walker

On July 3, 2009, the Natural Resources Agency issued a notice of proposed action (“Notice”) for the adoption of CEQA guidelines addressing the evaluation and mitigation of greenhouse gas emissions.  Public Resources Code section 21083.05 requires that the Governor’s Office of Planning and Research (“OPR”) “prepare, develop, and transmit to the Resources Agency guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions,” by July 1, 2009. OPR transmitted these in April of 2009, ahead of schedule.  See OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency. The Resources Agency has noticed its intent to adopt the guidelines, as proposed by the OPR.  The Notice commenced the rulemaking process for the guidelines.

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CEQA Statute of Limitations Still Applies in Challenge to Coastal Development Permit

By Cori Badgley

Generally, a lawsuit challenging an agency’s decision or environmental review must be brought within 30, 60 or 90 days, depending on the applicable statute of limitations.  Often, an agency’s decision involves powers granted under different statutes, which can lead to conflicting statutes of limitations.  In Strother v. California Coastal Commission (2009) 173 Cal.App.4th 873, the Court of Appeal for the Fourth Appellate District addressed such a conflict in a challenge to the granting of a coastal development permit.  The conflict arose between the statute of limitations under the California Coastal Act (Pub. Resources Code § 30801) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code § 21080.5).  The court held that as long as the challenges related to CEQA, CEQA’s statute of limitations applied.

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CEQA: 2009 Mid-Year Update

The following is an overview of CEQA court decisions issued in the first half of 2009 along with links to more detailed analysis of each decision prepared by the attorneys at Abbott & Kindermann, LLP.

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Common Interest Doctrine Applies to County's Disclosure to Real Parties in Interest

By Leslie Walker

In California Oak Foundation v. County of Tehama et al. 2009 Cal. App. LEXIS 923, the California Oak Foundation (“COF”) challenged Tehama County Board of Supervisors’ (the “County”) approval of the Sun City Tehama Specific Plan and EIR.  The Sun City Tehama Specific Plan is a 3,320 acre residential and commercial development adjacent to Interstate Highway 5 between Red Bluff and Redding. In an unpublished portion of the opinion, the Court of Appeal for the Third Appellate District addressed COF’s claims that the EIR inadequately mitigated for the project’s impacts to Blue Oak Woodlands and traffic. In the published portion of the opinion, the Court affirmed the trial court’s denial of COF’s motion to include privileged documents in the administrative record.

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Approval of Design Plan Application Deemed "Ministerial" Under CEQA

By Cori Badgley

In Health First v. March Joint Powers Authority (2009) (Case No. E045541), the Court of Appeal for the Fourth Appellate District addressed the issue of whether the approval of a Design Plan Application was discretionary, thus requiring review pursuant to CEQA.  The court held that approval of the Design Plan Application was ministerial, not discretionary, and therefore, CEQA did not apply.

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Exhaustion of Administrative Remedies; Deferral of Mitigation Measures; and General Plan Interpretation

 By Katherine J. Hart

The most recent CEQA/land use decision comes from the Court of Appeal, Third Appellate District and provides important guidance on issues of exhaustion of administrative remedies, CEQA mitigation measures, and general plan interpretation. In California Native Plant Society v. City of Rancho Cordova and Jaeger Road 530, LLC, filed March 24, 2009, the Court reviewed an Environmental Impact Report (“EIR”) for a project named The Preserve at Sunridge (“Preserve”). The Preserve involves the development of approximately 530 acres in Rancho Cordova, California ("City") as single and multi-family housing, commercial and office uses, a neighborhood park, an elementary school, detention basins, an open space and wetland preserve, bikeways and pedestrian and drainage corridors. The project lies within the Sunrise Douglas Community Plan, subject of challenge in the Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412. (See “Vineyardblog article.)

The Court of Appeal addressed the following issues presented by the California Native Plant Society (“Society”).

I.              Challenges to Offsite Mitigation Measures Not Exhausted

The Society asserted that four of its arguments pertaining to offsite mitigation were properly brought before the City for consideration. In reviewing the Society’s contentions, the Court of Appeal disagreed noting that that the Society’s arguments had not properly been exhausted and held that an agency must be “fairly apprised” of the issue being raised by opposition during the CEQA process to provide the jurisdiction with an opportunity to address the issues prior to project approval.

II.             Deferral of Mitigation for Loss of Vernal Pools and Wetlands

The Society also alleged that the City failed to describe where offsite mitigation would occur and failed to analyze or disclose the impacts of that mitigation, thereby unlawfully deferring development and adoption of mitigation measures until after project approval. Despite the fact that the City did not identify any specific proposed mitigation site for the vernal pool/wetland impacts, the Court of Appeal found that the City did not improperly defer a determination of whether the project would have a significant impact on the vernal pools and seasonal wetlands or defer identification of the measures intended to mitigate those impacts. The Court of Appeal held that “the City did not have to identify exactly where any offsite mitigation site would be located” and further that “the agency was entitled to rely on the results of a future study to fix the exact details of the implementation of the mitigation measures the agency identified in the EIR.” The Court reasoned the City identified a mitigation measure (e.g., the study) and committed to mitigating the impact (e.g., loss of vernal pools/seasonal wetlands). The Court dismissed the Society’s arguments that the holding in the Vineyard case applied to the case before it on the grounds that the Society failed to show how the principles of deferred mitigation as applied to water supply (the issue before the Court in Vineyard) related to deferral of offsite mitigation for vernal pools and wetlands (the issue before the Court in this case).

III.           Sufficiency of the Evidence Regarding Proposed Mitigation for Vernal Pools/Wetlands

The Society contended that the record did not support the City’s finding that the proposed mitigation on vernal pools and wetlands would reduce the project’s adverse environmental impacts to less than significant levels because the USFWS, CDFD, USACE, and USEPA did not believe the mitigation was sufficient to reduce the impacts to a less than significant level. The Court’s opinion reiterated the rule that the party challenging an EIR has the burden to show there is insufficient evidence. Thus, the Society was required to show there was no evidence to support the City’s finding, which it could not do. Significantly, the Court said, “Pointing to evidence of a disagreement with other agencies is not enough to carry the burden of showing a lack of substantial evidence to support the City’s finding.”

IV.          Challenge to Water Supply Analysis Not Exhausted

The Society further claimed that the project EIR relied on and incorporated the discussion and analysis of the long-term water supply impacts from the Sunrise Douglas Community Plan EIR, which was invalidated by the Supreme Court in the Vineyard case. Here, the Court first found that just because an administrative record contains a copy of a certain document which would constitute substantial evidence of a certain allegation, does not mean that the legal claim was necessarily properly exhausted at the administrative level. Next, the Court found that the project EIR did not have to be invalidated merely because it incorporated by reference material from previous EIR, which was later found to be invalid. Interestingly, while not specifically noted, although clearly implied in the Court’s opinion, is the fact that the project EIR in this case did not tier from the Community Plan EIR in any manner. 

V.            Amendment of Mitigation Measures Post-Project Approval Not Exhausted

The Preserve project involved an amendment to two mitigation measures contained in the Sunrise Douglas Community Plan relating to wetland delineations and acquisition of permits. Specifically, the amendment to the two mitigation measures would allow required actions to be triggered upon approval of any improvement plans or grading permits, as opposed to prior to approval of other earlier entitlements such as tentative subdivision maps or development plans. The Society argued such amendments violated CEQA. The Court found that the Society had failed to exhaust its administrative remedies on this issue as well as on the grounds that the USEPA and USFWS comments upon which the Society relied did not specifically identify the mitigation measures being challenged.

VI.           General Plan Consistency

The Court of Appeal examined a number of challenges to the project regarding consistency with the City’s General Plan. In particular, the Court found as follows:

  • The Society failed to meet its burden of showing that, based on all the evidence in the record, the City was unreasonable in determining the 90-acre offsite preserve was consistent with its General Plan. The Court reasoned that evidence other agencies thought mitigation was least preferable did not constitute evidence of unreasonableness.
  • The Society failed to meet its burden of showing that, based on all the evidence in the record, the City failed to consult with the USFWS. Soliciting and considering USFWS comments constituted sufficient “consultation.”
  • The Society failed to meet its burden of showing that, based on all the evidence in the Record, the City failed to properly mitigate for loss of habitat and species. Evidence that other agencies didn’t agree proposed mitigation was best didn’t constitute evidence that mitigation was inconsistent with the City’s General Plan, and further, did not show the City could not have reasonably determined the mitigation measure would prevent the project from impacting the viability of the fairy shrimp.
  • The Society did meet its burden of showing that the City failed to “coordinate” with USFWS.  Saving the real kicker for last, the Court held that “coordination” did not equate to “consultation” under the City’s General Plan. The Court reasoned that if the City had meant only coordination with federal agencies was required, its General Plan would say just that. Coordination and consultation are two separate and distinct actions.

Lessons Learned

1.         To all the cities and counties in California conducting general plan updates or considering general plan amendments: Courts grant agencies extensive deference in interpreting local plans, codes and policies most of the time, but not all of the time. In this case, the City’s general plan contained both the words “consultation” and “coordination” regarding wetlands, which have different meanings according to the Court. Special care should be taken to ensure the terms used in general plans, codes and policies are consistent, and if they are not, that the intent behind key words used is explained. As a practice tip, never use the very “coordinate” unless you really mean it.

2.         To project proponents:  Strict attention to the language contained in agency documents is required. If it appears the relevant language of an agency document requires more extensive duties or obligations, it may be interpreted that way and failure to comply could be problematic, as in the case here where the project proponent failed to “coordinate” with agencies on wetland permitting issues.

3.         To project opponents: Be forewarned, the Third District Court of Appeals has now strictly held that there must be exhaustion as to the specific issue challenged. General and unrelated citations to near-issues in the record will not suffice to exhaust the issue – it must be assertively identified and presented to the reviewing agency prior to project approval.

Update

A Petition for Review or Request for Depublication of the case was filed with the Supreme Court by the Center for Biological Diversity on May 18, 2009. In its Petition, the Center provided the following ground for supporting review or depublication: 1) to prevent the erosion of public participation process in CEQA; and 2) to retain the importance of information disclosures in the CEQA process for analysis and mitigation of significant impacts.

Counsel for the Real Party in Interest and the City filed an Answer to Petition outlining the reasons the Petition should be denied and requesting such action. Namely, the City and Jaeger argue that 1) the Court of Appeal’s opinion is consistent with settled law regarding exhaustion of administrative remedies; 2) incorporation by reference of portions of the Community Plan EIR was not improper and does not make the project EIR inadequate under CEQA; 3) the adopted wetland mitigation measures satisfy CEQA requirements; and 4) the City was entitled to rely upon its own experts in the environmental review process.

Katherine J. Hart is a senior 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, 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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OPR Finalizes Proposed CEQA Guidelines and Transmits Them to Resources Agency

By Leslie Z. Walker

Two months ahead of the deadline mandated by SB 97 (Chapter 185, Statutes 2007; Public Resources Code section 21083.05), the Governor’s Office of Planning and Research (“OPR”) proposed amendments to the CEQA Guidelines for the mitigation of greenhouse gas emissions (“Proposed Guidelines”) and transmitted them to the Resources Agency for rulemaking on Monday, April 13, 2009.

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Are the Days of Mitigating a Project's Significant Impacts with Impact Fees Gone?

By Katherine J. Hart

In California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, the California Native Plant Society (“Society”) filed a CEQA lawsuit against El Dorado County (“County”) after the County approved a Mitigated Negative Declaration (“MND”) and Congregate Care Project (“Project”).  The Project consists of two care units, cottages, and a clubhouse on 20 acres, and was part of a larger development area including a local medical center, a senior assisted living facility, medical office buildings and a local retail shopping center.

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District Offered Sufficient Justification to Apply CEQA Exemption to Rate Setting for Groundwater Extraction Charges

By William W. Abbott

In 2006, the Santa Clara Valley Water District (“District”) adopted higher rates for groundwater pumping. These charges were imposed on water districts and utilities which pumped their own groundwater, including the Great Oaks Water Company (“Great Oaks”). Great Oaks subsequently filed suit seeking to set aside the increases claiming that the District had failed to comply with CEQA by not specifying the factual or evidentiary basis for the rate increases and that exemptions from CEQA are invalid because the District’s budget included monies dedicated to system expansion.

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Appellate Court Directs Developer-District Recycled Water Agreement To Be Set Aside Based Upon CEQA Violation

By William W. Abbott

The Fourth Appellate District recently faced a similar CEQA timing question to that posed in Save TaraRiverwatch v. Olivenhain Municipal Water District (Gregory Canyon Ltd) (2009) 170 Cal.App.4th 1186, (reissued and ordered published January 30). The case involved a landfill operator, who applied for and received County approval to operate a landfill. This approval was preceded by an EIR, which was challenged for adequacy by Riverwatch and the City of Oceanside. The trial court agreed with Riverwatch that the water supply analysis was insufficient, and that as the EIR recognized that recycled water from the water district might be used in the event that groundwater proved to be insufficient, that the EIR had to assess the potential impacts associated with the use of the offsite recycled water. The trial court ruled in favor of the opponents and ordered the County to set aside the EIR approval.

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CEQA Notice Postings and Review Periods Affected by State Agency Furloughs

The Governors Office of Planning and Research, State Clearinghouse and Planning Unit announced that they will not be accepting CEQA documents for review or processing on the first and third Fridays of each month, now through June 30, 2010. This notice is in response to the state agency furlough ordered by the Governor which has required the State Clearinghouse to close their doors two days per month for the next year and a half.

As a result, CEQA review periods will be delayed, however the review periods that would typically end on the first and third Fridays will be extended to the following Monday. For more information, visit the State Clearinghouse website.

No Surprises in Draft CEQA Guidelines for Greenhouse Gas Emissions

By Leslie Z. Walker

Six months after releasing its Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review (see OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat), the Governor’s Office of Planning and Research issued Preliminary Draft CEQA Guideline Amendments for Greenhouse Gas Emissions on January 8, 2009.The Guideline amendments were developed in response to Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) which directs OPR to develop draft CEQA Guidelines for the mitigation of greenhouse gas emissions or the effects of greenhouse gas emissions by July 1, 2009.

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CEQA: The 2008 Year In Review

The following is an overview of CEQA court decisions issued in 2008 along with links to more detailed analyses of each decision prepared by the attorneys at Abbott & Kindermann, LLP.

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CEQA Practioners Beware: Your Petition Challenging Approval Of A Subdivision Under CEQA May Be Summarily Dismissed If You Don't Comply With The Subdivision Map Act

By Glen Hansen

In Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, the Court of Appeal, Fourth Appellate District addressed some of procedural traps that can befall unwary litigants who seek to bring CEQA challenges to local land use decisions including subdivision approval.

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Update on ARB Guidance on CEQA Thresholds: One Plan, Many Voices, Dissidents Abound

By Michelle Engel

The Air Resources Board (“ARB” or “Board”) has their hands full. A question and answer session, with more questions than answers, commenced on December 9, when the ARB Staff Project Team held their second public meeting to discuss the development of recommended approaches for setting thresholds for greenhouse gases (“GHG”) under the California Environmental Quality Act (“CEQA”).   The task assigned to ARB has been criticized as being “impossible to achieve” given the lack of experience the ARB Staff has with local government and in dealing with CEQA.

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For CEQA, Project Commitment Is Still A Question Of Fact

By Leslie Walker

On October 30, 2008, the California Supreme Court decided  Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (“Save Tara”) finding that CEQA was triggered by early agreements between a city and developer, even when the agreements were expressly conditioned upon later CEQA compliance. This case will act as an impediment to many forms of agreements in the areas of redevelopment, affordable housing, and infrastructure which frequently require long-term cooperation of private developers and public agencies.

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Court Discusses Improper Deferral of CEQA Mitigation and Provides Definition for "Probable Future Projects"

By Cori Badgley

In Gray v. County of Madera (2008) 167 Cal.App.4th 1099, the Court of Appeal, Fifth Appellate District grappled with several issues related to the California Environmental Quality Act (“CEQA”) along with the Senate Bill 610 water supply analysis, the Surface Mining and Reclamation Act, and general plan consistency. Among the court’s various holdings, the court found examples of improper deferral of mitigation under CEQA. Additionally, the court refined the definition of a “probable future project” for purposes of cumulative impacts. The project at issue involved the development of an aggregate mining operation in the unincorporated area of Madera County ("County").

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SB 375: A Subtle Shift in the State-Local Long Range Planning Paradigm

By Leslie Z. Walker and Cori M. Badgley

California’s land use planning structure has long been governed by a philosophy of home rule. Periodically, the legislature has identified specific typical areas for state intrusion: housing policy and airport land use planning are two examples. Among other provisions, SB 375 (Chapter 728, Statutes 2008) reflects a new area of state intervention, brought on by the rising concern over global warming. This time, it is through the regional transportation planning process, with the apparent thinking that once you control the purse strings, local governments will fall into line. SB 375’s major elements are:

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ARB Guidance on CEQA Thresholds: Not Every Bit Counts, and CEQA Exemptions Apply

By Leslie Z. Walker

For the two years following passage of Assembly Bill 32 (Chapter 488, Statutes 2006), practitioners have wrestled with establishing the level at which a project’s contribution to global climate change is considered to be significant for the purposes of the California Environmental Quality Act (“CEQA”).

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Wildlife Protected by the Public Trust Doctrine, but Doctrine Can Only be Enforced Against Public Agencies

By William W. Abbott and Nathan Jones

While green energy is on the rise, there are casualties of even the most well-intentioned projects. In Center for Biological Diversity v. FPL Group, Inc. (2008) 166 Cal.App.4th 1349, the Court of Appeal, First Appellate District upheld the dismissal of a public trust enforcement action against the owners and operators of wind turbines in the Altamont Pass area (the “Operators”). According to the Center for Biological Diversity (“CBD”), the turbines injure and kill raptors and other birds. Ultimately, CBD was successful in clarifying that the birds are a public trust resource of all the people of the state. However, the appellate court held that the proper party to bring an action against is the public agency with permitting authority, rather than the Operators.

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Court Holds that County Has Power to Deny Conditional Use Permit Renewal, but CEQA Applies

By Cori M. Badgley and Diane Kindermann

In Sunset Skyranch Pilots Association v. County of Sacramento (2008) 164 Cal.App.4th 671, the Court of Appeal, Third Appellate District addressed two separate issues: 1) does the State Aeronautics Act (“SAA”) preempt the County’s decision to deny renewal of Sunset Skyranch Pilots Association (“Airport”) conditional use permit (“CUP”), and 2) does the denial of the CUP renewal constitute a “project” under the California Environmental Quality Act (“CEQA”)? The appellate court held that the SAA did not preempt the County’s decision, and denial of the renewal of the CUP did constitute a project under CEQA.

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Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

By William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized areas, developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act (“CEQA”). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This article discusses several CEQA cases dealing with these questions and provides insight on how to address endangered species concerns in order to comply with CEQA.

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Unwanted, Now Unplanned: City Says "No" to Annexation and Draws the Line on City Expansion

By Cori M. Badgley

In St. Vincent’s School for Boys v. City of San Rafael (2008) 161 Cal.App.4th 989, the court addressed various issues relating to the City of San Rafael’s (“City”) approval of a new general plan. The court also addressed a claim brought by the City against St. Vincent’s School for Boys (“St. Vincent’s”) regarding obtaining reasonable costs for record preparation. (This counter-claim was published prior to the rest of the opinion and discussed in a previous article, Be Careful What You Ask For: The Costs Might Be More Than You Can Bear, on our blog.) This article focuses on St. Vincent’s claims concerning the approval of the general plan. The message consistently sent by the court was no matter how much St. Vincent’s would prefer that the general plan amendments be struck down; St. Vincent’s preferences do not matter.

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The Rest of Muzzy Ranch: ALUCs Not Required to Adopt AICUZ Standards

By Leslie Z. Walker

In Muzzy Ranch Co. v. Solano County Land Use Commission (2008) 164 Cal.App.4th 1, decided on June 19, 2008, the appellate court resolved the issues not addressed the first time it reviewed the case. (Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2005) 125 Cal.App.4th 810, reversed by Muzzy Ranch Co. v. Solano County Airport Land Use Commission, (2007) 41 Cal.4th 372.) In this case, the Court of Appeal for the First Appellate District found that the Travis Airport Land Use Compatibility Plan (“TALUP”) was not inconsistent with the Air Force Installation Compatible Use Zone (“AICUZ”) and that the Solano County Airport Land Use Commission (“Commission”) did not abuse its discretion in adopting the TALUP.

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Local Government Responsible for 1% of Statewide GHG Emission Reduction According to ARB Draft Plan

By Leslie Z. Walker

On June 26, 2008, the California Air Resources Board (“ARB”) released a draft of the scoping plan required under Assembly Bill 32 (Chapter 488, Statutes 2006), the Global Warming Solutions Act of 2006 (“AB 32”). AB 32 requires greenhouse gas (“GHG”) emissions be reduced to 1990 levels by 2020. (Health & Saf. Code, § 38550.) In order to accomplish this, ARB had to determine, by January 1, 2008, what the statewide greenhouse gas emission level was in 1990. (Id.) By January 1, 2009, ARB must prepare and adopt a scoping plan which achieves required reductions in greenhouse gas emissions by 2020. (Health & Saf. Code, § 38561.) A draft of this scoping plan was released on June 26, 2006.

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Re-Approval of Expired Entitlements Can Track Prior CEQA Documentation, Subject to the Substantial Change Doctrine

By Katherine J. Hart

In Moss v. County of Humboldt, et al (2008) 162 Cal.App.4th 1041, the Court of Appeal (1st Appellate District) held that a project previously studied under CEQA need not undergo supplemental CEQA review upon reapplication of the same project unless new information (supported by substantial evidence in the record) indicates there will be potential environmental impacts.

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California Supreme Court Upholds THPs; Discusses Cumulative Impacts and Foreseeable Actions

By Janell M. Bogue

In the case of Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection (May 22, 2008) 2008 Cal.Lexis 6207, the California Supreme Court discussed several issues important to those who deal with CEQA. The Court held that the Department of Forestry and Fire Protection (“Department”) properly approved several timber harvest plans (“THPs”) for land located in Tuolumne County. In doing so, the Court examined the requirements for cumulative impacts analysis and the analysis of foreseeable actions. 

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OPR on CEQA and Climate Change: Local Agencies Continue to Bear the Heat

By Leslie Z. Walker

CEQA practitioners have spent the last year anxiously anticipating the Governor’s Office of Planning and Research (OPR) advice to local agencies on the evaluation of greenhouse gas (GHG) emissions and their effect on climate change in the CEQA process. On June 19, 2008, OPR offered a peek at its perspective by issuing the Technical Advisory CEQA and Climate Change: Addressing Climate Change Through California Environmental Quality Act Review.

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Appellate Court Reviews CEQA Compliance for Supplemental Environmental Impact Report

By Janell M. Bogue

In the case of Sierra Club v. City of Orange (April 30, 2008) 2008 Cal.App.Lexis 814 (publication status changed from unpublished to published on May 30, 2008), the Court of Appeal, Fourth Appellate District upheld a combined supplemental environmental impact report (“SEIR”) and environmental impact report (“EIR”) for a large mixed use development. In its opinion, the court covered a wide range of CEQA issues, including timely filing of a lawsuit after a notice of determination, the exhaustion doctrine, project baselines, and alternatives. 

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California Supreme Court affirms the legal adequacy of the CALFED EIR; provides guidance on evaluation of alternatives and level of detail for first tier EIRs

By William W. Abbott

The Delta, the confluence of the Sacramento and San Joaquin rivers, is ground zero in the debate over California water. It seems like everyone has a dog in the fight, including farmers inside and outside of the Delta, municipalities, water contractors, the sport fishing industry and environmentalists. It is a scenario in which it is improbable, if not impossible, to make everyone happy when it comes to the topic of water management. In 1994, CALFED was born as a consortium of 18 federal and state agencies. CALFED’s task was to develop a Delta water management strategy which would positively respond to the multiple competing interests and concerns. In 2000, CALFED certified a programmatic EIR/EIS. Following a timely legal challenge, the trial court in the case entitled In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2005) 133 Cal. App. 4th 154 upheld the adequacy of that environmental document. (See the Abbott & Kindermann Land Use Law Blog article on that opinion.) The Court of Appeal ruled otherwise, concluding that the EIR was inadequate because of the failure to evaluate an alternative with reduced water exports, the failure to identify future potential sources of water, and the lack of detail on the Environmental Water Account, a program within CALFED. The Supreme Court subsequently granted review and on June 5, 2008, issued an opinion. In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (June 5, 2008) 2008 Cal. LEXIS 6737. In this opinion, the Supreme Court affirmed the legal adequacy of the programmatic document.

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Notice of Determination's Thirty-Day Statute of Limitations May Not Apply to All CEQA Claims

**Review was granted by the California Supreme Court on July 23, 2008 and this opinion was depublished.**

By Katherine J. Hart

This case addresses the issue of whether or not the legal effect of a notice of determination (“NOD”) in establishing a 30-day statute of limitations is absolute as to any and all CEQA based claims. In the opinion of the Court of Appeal, 6th appellate district, claims alleging that the agency failed to conduct environmental review but should have are governed by a separate 180-day limitation period.

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Good Fences Make Good Neighbors but Bad Fences Make Appellate Opinions

By Janell M. Bogue

You wouldn’t think that a simple, wooden fence would create enough controversy to fuel an extensive administrative process, a trial court case, and an appeal to the California Court of Appeal, Second Appellate District. However, in the case of Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles (2008) 2008 Cal.App.Lexis 501, that is exactly what happened.

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District's Water Supply Assessment is Not Subject to Third Party Lawsuit Except in a Legal Challenge to the EIR

By William W. Abbott

In the opinion of the California Court of Appeal, Second Appellate District, (California Water Impact Network v. Newhall County Water Dist., (2008) Cal.App.LEXIS 554) a Water Supply Assessment ("WSA") is like a traffic impact study: by itself it is not subject to legal review except in the context of a lawsuit challenging the CEQA document. 

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Be Careful What You Ask For: The Costs Might be More Than You Can Bear

By Cori Badgley

In CEQA litigation, a petitioner may elect to create the administrative record or request that the respondent local agency assemble the record. When the local agency prepares the record, the petitioner pays for the costs of preparation. Petitioners sometimes elect to prepare the record in an effort to reduce costs. In St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 160 Cal.App.4th 1426, the appellate court struggled with the question:

does section 21167.6 [of the Public Resources Code] preclude an award of costs in favor of the prevailing [lead agency] if the plaintiff elects to prepare the record pursuant to section 21167.6, subdivision (b)(1)?
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Attorney General's Conference on Climate Change: Many Methods, No Answers

By Leslie Z. Walker

The California Attorney General and the Local Government Commission hosted the first of five statewide workshops, CEQA and Climate Change: Partnering with Local Agencies to Combat Global Warming, on Thursday, March 20, 2008. In his invitation to cities and counties across the state, the Attorney General explained that planning for Climate Change should not await the 2012 implementation of binding Greenhouse Gas (“GHG”) emission limits and emission reduction measures required by AB 32. At the workshop, the Attorney General reiterated his position that CEQA requires GHG analysis. The line-up of morning speakers, who discussed thresholds, modeling emissions and mitigation measures, suggested that since tools exist to measure and mitigate GHGs, agencies are required to do so.

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Court of Appeal Applies Fair Argument Test in Appeal of Senior Housing Project

By Janell M. Bogue

In the case of Citizens for Responsible and Open Government v. City of Grand Terrace (February 21, 2008) 2008 Cal.App.Lexis 359 the California Court of Appeal, Fourth Appellate District held that a mitigated negative declaration (“MND”) approved for a senior residential project was inadequate under CEQA. In doing so, the court discussed density calculations and the weighing of evidence under the fair argument test.

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What You Consider Ancient History Might Require a Fresh Look Under CEQA

By Cori Badgley

Under the California Environmental Quality Act (“CEQA”), the definition of “environment” includes historical resources. If a project has the potential to affect historical resources, it is subject to environmental review. In Valley Advocates v. City of Fresno (2008) No. F050952, the appellate court held that the inquiry of whether a resource should be listed in the local register cannot be relied upon for purposes of CEQA to determine whether a resource is historic. Additionally, the court held that the fair argument standard does not apply to the question of whether a resource is a discretionary historical resource under CEQA.

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Trial Court Rules CEQA Did Not Require Global Warming Analysis

By Leslie Z. Walker

On January 29, 2008, Judge Thomas Cahraman of the Riverside Superior Court ruled that CEQA did not require the Banning City Council to consider the Global Warming impacts of a project approved prior to the enactment of AB 32.

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Of Granny Flats and Land Swaps: Project Descriptions and Alternatives Analysis Under CEQA

By Janell M. Bogue

A recent opinion from the Court of Appeal, Fourth Appellate District, Division Two discusses two important CEQA topics: certainty in project descriptions and an EIR’s discussion of alternatives. Save Round Valley Alliance v. County of Inyo (December 17, 2007) 2007 Cal.App.LEXIS 2045. In this case, the developer proposed a rural large-lot subdivision located on 74 acres on the road to the trailhead to Mount Whitney in Inyo County (“County”). The lots, used for single family homes, would be a minimum of 2.5 acres in size. The proposed use of the property was consistent with the County General Plan and the zoning code. Further, the subdivision would be governed by CC&Rs restricting the use of the lots. The County determined that an EIR was necessary for the project and the EIR concluded that there would be substantial adverse effects on the scenic vistas. The Planning Commission certified the EIR, adopted a statement of overriding considerations, and approved the project. A local citizens’ group called Save Round Valley Alliance (“SRVA”) appealed the Planning Commission’s approval and following a public hearing, the Board of Supervisors denied the appeal, certified the EIR, and approved the project. SRVA petitioned for a writ of mandate, which was denied by the Inyo County Superior Court.  SRVA appealed.

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The Road Not Studied

By Joel Ellinwood, AICP

As the battle of the big boxes continues on the fields of CEQA in the California courts, the Fifth District Court of Appeals reiterated (in an unpublished portion of the opinion) that it will carefully scrutinize evidence petitioners use to support a “fair argument” that a project approved with a Mitigated Negative Declaration (MND) is inadequate without the preparation of a full Environmental Impact Report (EIR). Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (California Gold Development Corp. – Lowe’s, Inc.) 155 Cal.App.4th 1214 (filed 10/2/07, modified 10/31/07). Continue Reading...
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Invalid Approval Based on Lack of Legal Authority Leads to Invalid Notice of Exemption and Long Statute of Limitations for Challenged Wal-Mart

By Janell M. Bogue

A California appellate court recently addressed the approval of yet another Wal-Mart Superstore, this time in the City of Stockton (“City”). In Stockton Citizens for Sensible Planning v. City of Stockton (November 28, 2007) 2007 Cal.App.LEXIS 1960, the California Court of Appeal, Third Appellate District directed the trial court to set aside the approvals for a 200,000 plus square foot Wal-Mart, which would have been located in Spanos Park West (“Park”). The court held that a letter from the City’s Community Development Director (“Director”) was not an approval by a public agency. Since there was no approval by a public agency, the notice of exemption (“NOE”) was not valid and the short 35-day statute of limitations could not apply. 

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Displaced Development Not Too Speculative, Common Sense Exemption Upheld

By Leslie Z. Walker

In Muzzy Ranch v. Solano County Airport Land Use Commission, 41 Cal.4th 372, decided on June 21, 2007 and modified on September 12, 2007, the Supreme Court upheld the common sense exemption as applied to an Airport Land Use Compatibility Plan (“ALUCP”), but found that development displaced by density limits is not too speculative of an impact to require CEQA analysis.

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Paper Water Revisited: Second Appellate District Applies the Principles of Vineyard

By Janell M. Bogue

The California Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 addressed the sufficiency of future water supplies for a long-term, large scale development. (See the Vineyard blog article.) In the case of Santa Clarita Organization for Planning the Environment v. County of Los Angeles (November 26, 2007) 2007 Cal.App.LEXIS 1938 (“SCOPE”), the Second Appellate District determined that an EIR for a long-term project met the requirements discussed in the Vineyard case.
 

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SB 97 Provides CEQA Guidance

By Leslie Z. Walker

Governor Schwarzenegger signed SB 97 (Chapter 185, Statutes 2007) Senator Dutton’s CEQA and greenhouse gas emission bill, into law on August 24.  The legislation provides partial guidance on how greenhouse gases (“GHGs”) should be addressed in certain CEQA documents.

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Second Appellate District Clarifies Test for SEIR Preparation When Project is Modified

By Janell M. Bogue

In development, as in life, plans change. From a CEQA standpoint, problems emerge as projects are modified, as the triggers requiring new environmental review are less than precise. The recent case of Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385 (“Mani Brothers”) demonstrates that even the courts are unclear on the issue, as two appellate courts have come to two different conclusions. The court in Mani Brothers emphasized that the question is not whether the changes amount to a new project, but whether there is substantial evidence that the changes in the project would create new and significant environmental impacts.

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Landmark Settlement in Global Warming Case

By Leslie Z. Walker

Attorney General Jerry Brown and the County of San Bernardino have reached a landmark settlement in the state’s global warming suit against the County. 

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Multiple Sequential NODs: Weapons of mass confusion for applicants and project opponents

By Glen C. Hansen

Due to increasing regulatory complexity, development projects may require multiple approvals, issued over an extended time period. Lead and responsible agencies frequently, but not always, file separate notices of determination (“NOD”) for each approval. When that happens, interested parties are challenged as to the optimal time period to file suit. In a multiple NOD scenario, a later filed petition will be considered under a less favorable standard of judicial review, which could lead to a very different outcome in the litigation. Such a result is illustrated by the recent case of Citizens For A Megaplex-Free Alameda v. City of Alameda (“Megaplex”) (March 29, 2007) 149 Cal.App.4th 91, review denied (Cal., June 27, 2007) 2007 Cal.LEXIS 6959.

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Mine Games: CEQA documentation for mining projects with fluctuating production levels

By William W. Abbott

Unlike residential or commercial development projects with somewhat predictable levels of activity (and in turn, environmental effects), mining projects involving rock, sand and gravel can vary widely based upon local economic conditions. The recent case of San Joaquin Raptor v. County of Merced (April 10, 2007) 2007 Cal. App. LEXIS 516 examines the duty of the lead agency to also evaluate impacts associated with periodic or sustained peaks, and not just to rely upon historic averages. The decision also addresses deferred mitigation in the area of biological impacts.

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Rough Road Ahead: Whose responsibility is it to perform a nexus study for mitigation fees for local project impacts to state highways?

By William W. Abbott

One person’s misery can be someone else’s gain. This can also hold true when dealing with inter-jurisdictional disputes over impact fees. The recent case of Woodward Park Homeowners Association, Inc. v. City of Fresno (April 13, 2007) 2007 Cal.App.LEXIS 544 highlights a number of important CEQA practice issues. While these are not necessarily new concerns, the case daylights a key issue of first impression--namely, whose responsibility is it to calculate the nexus for impact fees to be set for impacts to state highway facilities? Is CalTrans responsible, or is it the responsibility of the city or county approving a development project which impacts state facilities? According to the Fifth Appellate District, the answer to the question is the lead agency.
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Too early or too late for CEQA review: Two appellate decisions bracket the fundamental question of timing

By William W. Abbott

For many discretionary actions, lead agencies struggle with the question of CEQA timing. While many court decisions have criticized cities and counties with delaying the CEQA process, there are rare occasions in which the lead agency concludes that meaningful CEQA review is too speculative and therefore premature. Two new cases provide the bookends to this discussion. Continue Reading...
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California Supreme Court Weighs In Once Again on CEQA Compliance

By William W. Abbott & Janell M. Bogue

Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (February 1, 2007, S132972) __ Cal.4th __ [2007 Cal.Lexis 748]

Few CEQA cases reach the California Supreme Court. Accordingly, it is noteworthy that the court has issued two decisions on CEQA issues in the past eight months. The most recent decision in Vineyard Area Citizens, provides added extensive guidance on the interface between water supply and CEQA. The case also provides a more limited analysis on EIR recirculation. Continue Reading...
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Recent Case Examines Cost Recovery for Record Preparation Under CEQA

By Kate J. Hart

California's Fifth Appellate District recently decided the case of Wagner Farms, Inc. v. Modesto Irrigation District (December 6, 2006) 2006 Cal.App.Lexis 1923, which involves the awarding of costs for preparation of the record of proceeding (“ROP”) arising out of a CEQA suit. Plaintiffs filed the suit against the Modesto Irrigation District (“MID”), and requested that MID prepare the ROP. MID won in both the superior court and appellate court. MID then filed a memorandum of costs totaling $34,077.95 for preparing and filing the ROP. (All but $3,680 for copying costs went to the consultants’ preparation of the ROP.) Plaintiffs filed a motion to tax costs. As argued in Hayward Area Planning Assn. v. City of Hayward (2006) 128 Cal.App.4th 176 (see previous Abbott & Kindermann Land Use Law Blog article), the plaintiffs claimed that 1) MID impermissibly delegated the preparation of the ROP to its consultants; 2) the amounts requested for the preparation of the ROP were not adequately supported by the record; and 3) the amounts spent were not necessary or reasonable. MID provided only a declaration by counsel in support of its opposition to plaintiffs’ motion. Continue Reading...
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HCPs and Hawks and Snakes...Oh My!

By Janell M. Bogue

Recently, the Third Appellate District held that the Natomas Basin Habitat Conservation Plan (“HCP”) was properly certified by the City of Sacramento and Sutter County (“City and County”) under CEQA and that the Department of Fish and Game (“DFG”) complied with the California Endangered Species Act (“CESA”) in issuing its incidental take permits. The case is Environmental Council of Sacramento v. City of Sacramento (2006) 142 Cal.App.4th 1018. Continue Reading...

Local Administrative Rules Leave Door Open for CEQA Challenge

By William W. Abbott

When it comes to administrative appeals of land use decisions, state law largely delegates to cities and counties the choice of being flexible or rigid on administrative appeals (e.g. tentative subdivision map approvals, conditional use permits, CEQA documents). Most cities and counties opt for a de novo review by the appellate body. This means that the appellate body effectively starts over on the decision, and it is empowered to make any decision it deems to be appropriate under the circumstances. As illustrated by the recent decision of Citizens for Open Government v. City of Lodi (Browman Development Co., real party in interest) 2006 Cal. App. LEXIS 1764, de novo review may permit a project opponent to challenge in court the adequacy of the CEQA document, even though the appeal to the city council was on non-CEQA grounds. Continue Reading...

Second Appellate District Modifies Opinion Regarding CEQA Analysis for NPDES Permits

By Janell M. Bogue

In a victory for the Regional Water Quality Control Boards and State Water Resources Control Board, the Second Appellate District revised its opinion in County of Los Angeles v. California State Water Resources Board (2006) 2006 Cal.App.LEXIS 1744 on November 6, 2006. Though several parties submitted petitions for rehearing, the court modified its previous October 5, 2006 opinion on its own and denied all the rehearing petitions. Click here to read about the court’s previous, unmodified opinion. Continue Reading...

Second Appellate District Holds that NPDES Permits are Subject to Focused CEQA Review

The opinion discussed in this article was modified on November 6, 2006. Please click here to read about the modified opinion.

By Janell M. Bogue

Recently, the Second Appellate District issued an opinion which may change how the nine Regional Water Quality Control Boards ("Boards" or "Regional Boards") issue National Pollution Discharge Elimination System ("NPDES") permits and comply with California Environmental Quality Act ("CEQA"). The case is County of Los Angeles v. California State Water Resources Control Board (2006) 143 Cal.App.4th 985.

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Pedigrees Are Not Just For Dogs: CEQA Documents Deserve Them As Well

By William W. Abbott

As noted in our recent article "The Importance of the Mundane: CEQA's Small Details are Important as Well", the Sixth Appellate District discussed how the lead agency thoroughly documented the genealogy of a later EIR from a series of prior CEQA documents. In Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, the Third Appellate District recently made a similar observation when evaluating a legal challenge to an addendum which followed an earlier EIR. The court held that is important at the outset for the environmental document preparer to declare and document the pedigree relationship from earlier CEQA documents.

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California Supreme Court Schools CSU on Mitigation Infeasibility

By William W. Abbott & Janell M. Bogue

Closely following on the heels of County of San Diego, the California Supreme Court decided City of Marina v. Board of Trustees of the California State University (2006) 39 Cal.4th 341, which also involved issues of the appropriateness of mitigation expenditures, this time by the California State University system. Here, the state university (CSU) assumed the legal position that it was not authorized to mitigate for offsite impacts, and on that basis, the Trustees rejected the feasibility of mitigation measures sought by a local city (Marina) and a base reuse authority (Fort Ord Reuse Authority or "FORA").

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Take Notice!

Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812
The "deemed approved" remedy for untimely processing must give heads up to neighbors -- what may be "deemed" is not what it seemed.

By Joel Ellinwood, AICP

Recognizing that the often seemingly interminable delay by local agencies in development permit processing drives up costs of providing housing and other desirable projects, the development industry succeeded in persuading the legislature to impose what at first glance appear to be strict timelines for the agency to approve or disapprove projects. The timelines are given teeth by provisions which may result in projects being "deemed approved" if the agency fails to act within the time provided. However, as the recent case of Mahon v. County of San Mateo (2006) 139 Cal.App.4th 812 (modified June 19, 2006) illustrates, the teeth don't seem to have much bite. This article will identify strategies for making the best use of what little bite is left to help manage the pace of development processing.

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The Importance of the Mundane in CEQA Litigation: It's All in the Details

By William W. Abbott

There is no middle of the road for Wal-Mart Stores. People are passionate on both sides, which includes the lawyers and consultants caught in the debate as it appears that Wal-Mart, as a single entity, generates more CEQA litigation than any other California applicant. Perhaps Wal-Mart will open up an EIR preparation service, sandwiched between the in-store optometrist and bank, as it continues its meteoric climb as the Nation's number-one retailer.

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Mitigation Infeasibility: New Thinking on an Old Issue

By William W. Abbott

Feasibility, or its Bizarro World counterpart (fn1) infeasibility, is an integral part of CEQA analysis. Feasibility is defined by the Guidelines as follows: ". . . capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors." (Guidelines, § 15364) A mitigation measure may be determined by the lead agency to be infeasible and on that basis, would not be required as a condition of project approval. Unlike other areas of CEQA practice, there has been less frequent and less critical analysis of what constitutes a valid finding of infeasibility. A recent court decision begins to shed light on what is likely to be a new chapter of CEQA challenges.

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More Infill, More Problems: The Categorical CEQA Exemption for Infill Developments

By Janell M. Bogue

As cities and developers look inward for new development opportunities, the dark cloud of CEQA is never far away. The legislature has attempted to facilitate infill opportunities by narrowing CEQA's application. This case illustrates how far this infill exemption can reach. In Banker's Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (May 8, 2006) 2006 Cal.App.Lexis 684, developers proposed an urban infill project in the City of San Diego ("City") near the northwest corner of Balboa Park. The project, a fourteen-story, fourteen-unit multi-family residential building, was approved by the City and found to be exempt from CEQA pursuant to Guidelines section 15332. A neighborhood preservation group filed for a writ of mandate and after losing at the trial court level, the neighborhood group appealed, claiming that the project was not exempt from CEQA and that the City reviewed the project in a piecemeal fashion.

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Will Turlock Ever Get Rollback Prices?

Wal-Mart Stores, Inc. v. City of Turlock
(2006) 138 Cal. App. 4th 273
Filed April 4, 2006.

By Joel Ellinwood, AICP and Kate Hart

For those awaiting a court's interpretation of the standards of review and to see a court analysis of Section 21083.3 (Guidelines Section 15183) providing for a conditional exemption from CEQA for projects that are consistent with an approved general plan, the time has come. For those hoping to take advantage of the rollback prices at a new Wal-Mart Superstore in Turlock, the chance is sprung.

Wal-Mart wanted to build a new store in the City of Turlock ("City"). In early 2003, Wal-Mart representatives inquired with City staff about developing a Wal-Mart Supercenter, which would include a full-service grocery department. The City staff provided Wal-Mart with entitlement and fee information as requested.

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Analyzing and Mitigating Biological Resources and Endangered Species Impacts Under CEQA: An Update

by William W. Abbott and Janell M. Bogue

As development continues to occur in areas outside of urbanized metropolitan areas developers are encountering more threatened or endangered species issues in their environmental review process under the California Environmental Quality Act ("CEQA"). A fundamental question which must be addressed is whether there are threatened or endangered species present in the project area and whether the project will affect those species. This is not always a simple question to answer, as it is not clear what studies are necessary in order to adequately analyze biological resources under CEQA. What standards are appropriate to measure the significance of the effects on endangered species? Furthermore, once threatened or endangered species are determined to be affected by the project and potentially significant impacts to biological resources are identified, how does one provide for adequate mitigation in order to mitigate those impacts to a less than significant level? This paper discusses recent CEQA cases dealing with these questions and provide insight on how to address endangered species concerns in order to comply with CEQA.

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Impact Fee Programs as Effective Tools for CEQA Mitigation: An Update

by William W. Abbott and Janell M. Bogue

Properly administered impact fee programs can operate to streamline CEQA review of later development projects. At the same time, impact fee programs which are not implemented in accordance with the original expectations or which are founded upon unrealistic assumptions may offer the lead agency and affected applicant little or no real relief. Significant cases decided over the last five years illustrate how this can play out.

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Quit While You're Ahead

by Joel Ellinwood, AICP

A recently published case illustrates that there is danger in investing too much in a sense of righteous indignation about the perceived abuse of CEQA in delaying public projects. Ramona Unified School District v. Tsinkas (2005) 135 Cal.App.4th 510.

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California Supreme Court Reviews Two Important CEQA Cases

The California Supreme Court has granted review in two important cases dealing with water supply and planning under CEQA. The first, Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (Case No. S132972) was covered in a June 2005 Abbott & Kindermann article. The second is In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (Case No. S138975) and was discussed in a November 2005 Abbott & Kindermann article. The Supreme Court's opinions in these cases will likely affect all participants in the EIR process and we will update you when they are issued.

For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.

CEQA Justice Grinds On

by William W. Abbott

CEQA justice grinds on, even between the Thanksgiving and the new year. The following are summaries of the most recent decisions.

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City Holds Administrative Record for Ransom?

by Elias E. Guzman

In a San Diego court, a petitioner recently argued that it failed to file its opening brief because the City held the administrative record for "ransom." Yes, ransom. Well, in the world of administrative writ actions, there are two absolutes regarding the preparation of the administrative record. Someone has to prepare it and someone has to pay for it.

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Paper Water and Project Approval

by William W. Abbott

Although never verified as the source, Mark Twain is considered the originator of the quote "whiskey is for drinking and water is for fighting." Had he lived until the enactment of CEQA, perhaps he would have added something to his saying. As land use practitioners know, the water supply/CEQA/Subdivision Map Act interface has raised the bar in terms of what it takes for large development projects to move forward. A repeated challenge in this area is the dichotomy between theoretical water deliveries by the state and federal water contractors and actual deliveries, the difference commonly referred to as "paper water." As readers of this newsletter may remember, a development project EIR analysis of water supply which concludes that adequate water exists based upon paper water is likely to be set aside by a reviewing court (see the March 2003 Abbott & Kindermann article on Santa Clarita Organization for Planning the Environment v. County of Los Angeles). This has been the trend in a number of court decisions going back to at least the year 2000. Jump forward to 2005, and the water supply challenge is neither fixed nor improving, and EIRs are still being successfully challenged.

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Programmatic EIRs Still Require Details and Analysis to be Found Sufficient

The Supreme Court granted review in this case on January 25, 2006, and the opinion below is no longer citable. See Abbott & Kindermann Land Use Law Blog article for a discussion of the Supreme Court opinion.

by Elias E. Guzman and Janell M. Bogue

CALFED is an unprecedented collaboration among 18 state and federal agencies and the state's leading urban, agricultural, and environmental interests. The ultimate goal is to develop a long-term, comprehensive plan that will restore ecological health and improve water management for beneficial uses of the Bay-Delta system, the intricate waterways created at the junction of the San Francisco Bay and the Sacramento and San Joaquin rivers and the watersheds that feed them. After many years of study and analysis, CALFED adopted a program to be administered over the next 30 years. The program includes measures designed to improve the Bay-Delta ecosystem, water quality and quantity, and Delta levee stability. On August 28, 2000, the final Programmatic Environmental Impact Statement/Environmental Impact Report (PEIS/R) was certified and CALFED adopted the Record of Decision (ROD) for the Program in accordance with NEPA and CEQA.

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MOU Between City and Tribe Exempt from CEQA

On the bright side, we have learned that there is one more local agency action exempt from CEQA. In Citizens to Enforce CEQA v. City of Rohnert Park (2005) 131 Cal.App.4th 1594, an MOU entered into between the City of Rohnert Park and a local tribe, the subject of which was a funding agreement to mitigate impacts on a gaming facility to be located in the County, was not subject to CEQA. The MOU did not commit the City to any course of action, and recognized that later City actions taken in response to the gaming facility impacts would be subject to environmental review. The court relied upon the exclusion from the definition of a project "the creation of government funding mechanisms or other government fiscal activities, which do not involve a commitment to any specific project which may result in a potentially significant physical impact on the environment." Guidelines section 15378. See also Kaufman & Broad-South Bay Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464.

For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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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General Plan Consistency and EIR Sufficiency

by Elias E. Guzman

In Endangered Habitats League v. County of Orange (2005) 131 Cal.App.4th 777, an appellate court determined that project approvals and findings must be consistent with a county's general plan. The court also found that an environmental impact report ("EIR") must provide sufficient information to the lead agency in order to make an informed decision.

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See Spot Write an Expanded Initial Study

by William W. Abbott and Janell M. Bogue

It can safely be said that CEQA has gone to the dogs. In Lighthouse Field Beach Rescue v. City of Santa Cruz (2005) 131 Cal.App.4th 1170, we learn that failure to document the possibilities for changes in what most of us understand to be normal canine behavior may be the basis to invalidate an initial study, and in turn, a negative declaration.

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Negative Declarations: Fair Argument, Qualitative and Quantitative Analysis

by William W. Abbott

Most readers of this newsletter are already aware that the evidentiary threshold necessary to push a ND into an EIR is relatively low. In a June 2005 Abbott & Kindermann article, we discussed the decision of Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, a Third Appellate District decision. On the heels of Pocket Protectors now comes Mejia vs. City of Los Angeles (2005) 130 Cal.App.4th 322, another court of appeal decision, now from the Second Appellate District. Maria Mejia, a non-lawyer, beat both the City Attorney's office and developer's legal counsel twice, winning multiple arguments along the way. The project history, and her winning arguments, are as follows:

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Anderson First: Evaluation of Blight and Effective Mitigation

by William W. Abbott and Janell M. Bogue

A proposed Wal-Mart Supercenter was cause for controversy in Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173. In this case, the City of Anderson ("City") approved a new shopping center fronted by I-5 and anchored by a Wal-Mart Supercenter. The City prepared and certified an EIR but citizens formed Anderson First Coalition ("Coalition") to protest the project, asserting that it would cause urban decay, was inconsistent with the general plan and the zoning of the area, and did not provide proper traffic mitigation. At the trial court level, the EIR was found to be sufficient except for the project's gas station. The trial court severed the gas station and allowed the rest of the project to proceed. The Coalition appealed and the appellate court reviewed both the adequacy of the EIR and the trial court's decision to sever the gas station.

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Paying the Piper in Land Use Litigation

by William W. Abbott

In land use litigation, particularly CEQA cases, a successful petitioner can file a motion with the court seeking an award of attorneys fees. The award of fees is highly discretionary with the trial court, and occasionally, the trial court decisions are reversed by the appellate court. In a recent court decision, Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488, the appellate court reversed a trial court's decision refusing to award fees to a petitioner. In reversing the trial court decision, the appellate court established the threshold for what constitutes a "prevailing party" as a fairly low barrier.

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Pocket Protectors Protest Proposed Project; Prevail

by William W. Abbott and Janell M. Bogue

Lately, infill projects have become a hot-topic development strategy, especially in established neighborhoods. In Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, the developer proposed an infill project on a long, narrow strip of vacant land subject to a PUD zoning designation. The PUD called for the construction of townhouses in the project area, but the developer instead wanted to build a double row of single-family homes along a private street. Initially, the City was supportive. But even before preparation of the draft Mitigated Negative Declaration (MND), neighbors began to complain. They organized a group called "Pocket Protectors" and gathered signatures for a petition in opposition of the new project. Their complaints centered on the project's inconsistencies with the PUD and city land use policies, which many of them had allegedly relied upon to control growth and development in the area. Pocket Protectors also complained about the aesthetic impacts of the project because it provided minimal setbacks from adjacent landowners, only planned nominal landscaping, and created a "canyon" effect due to the lining of the narrow street with closely placed homes of similar sizes. Subsequently, the Planning Commission denied approval citing many of the same complaints of the Pocket Protectors.

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Cost Recovery for Record Preparation in CEQA Litigation

by William W. Abbott and Janell M. Bogue

The recent case of Hayward Area Planning Association v. City of Hayward (2005) Cal.App.4th 176 illustrates the importance of proper trial court record preparation in CEQA cases. Plaintiffs, community groups opposed to a proposed project, filed suit against the City of Hayward (City) and alleged that the City had not complied with CEQA. The developer, Hayward 1900, was identified as the real party in interest.

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New CEQA Guidance on Water Supply

by Robert T. Yamachika

The Third District Court of Appeal recently decided a case addressing the interplay of water supply analysis and land use planning. As many readers of aklandlaw working papers already know, the California Legislature adopted Senate Bill 610 (Chapter 643, Statutes of 2001) and Senate Bill 221 (Chapter 642, Statutes of 2001) in 2002 to improve the link between information on water supply availability and certain land use decisions made by cities and counties. SB 610 and SB 221 are companion measures which seek to promote more collaborative planning between local water suppliers and cities and counties. Both statutes require detailed information regarding water availability to be provided to the city and county decision-makers prior to approval of specified large development projects. Both statutes also require this detailed information be included in the administrative record that serves as the evidentiary basis for an approval action by the city or county on such projects. For more on SB 610/221, see Abbott & Kindermann's November 2004 article on the legislation.

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Design Review and CEQA Analysis: New Guidance

by William W. Abbott

One person's innovative, edgy infill development is another person's significant impact. Or is it? This is the issue recently addressed in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572. The developer in Bowman proposed an infill project in the City of Berkeley. The project involved an existing, single story vacant building of no architectural significance. The developer proposed to demolish the existing building and construct a four floor retail and a senior residential project of 40 units. The project went through multiple design changes as it proceeded with City review. In response to City and public review, the developer modified the building height where the site shared a property line with residential properties. City staff supported the project and recommended a negative declaration.

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Men are from Mars, Women are from Venus, and Wal-Mart is from Pluto

by William W. Abbott

A new court decision affirms the adequacy of an EIR prepare in response to an application by Pluto Development, Inc, the development arm of Wal-Mart. Pluto submitted an application to the Town of Apple Valley (long time home of Roy Rogers, Dale Evans and Trigger, Roy's trusty horse, for those of you under the age of 50). After preparation of an EIR, the Town Council approved the project, based upon a statement of overriding considerations. The project approval was subsequently challenged in court by a desert environmental group and the California Attorney General. The appellate court decision wrestled with several common EIR problems, and resolved all of them in favor of the lead agency.

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Court of Appeal Affirms Dismissal of CEQA Challenge Alleging Inadequate Alternatives, Inadequate Consideration of View Impacts to Neighbors and Insufficient Evaluation of Mitigation to Coastal Sage Scrub

by William W. Abbott

Despite what project critics may say, lead agencies do get it right every now and then. The recent decision of Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477 is such an illustration. As one would suspect, existing residents in coastal communities prize their views of the ocean, and can be counted on to be large in their criticism of any project which potentially interferes with what they rightfully see as their right to a view of the ocean.

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California Courts Reaffirm the Broad Discretion Held by Cities and Counties in Enacting Land Use Regulations and Setting Policy

by William W. Abbott and Heather Gerken

Land use applicants frequently fail to appreciate the deference that a reviewing court must give a city council or board of supervisors. Disgruntled with an adverse decision, an adversely affected applicant often believes that they are entitled to re-argue the merits of their position. As the following cases illustrate, judicial review of controversial land use regulations does not start with a blank canvas.

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CEQA's Thresholds of Significance v. Thresholds of Pain: Sometimes It's Hard to Tell the Difference

by William W. Abbott

Readers of this firm's publications likely remember the efforts of the Wilson administration to create an impetus in the 1998 CEQA Guidelines amendments for the use of thresholds of significance as a means of reducing EIRs. While well intentioned, this effort was tanked by the superior court, whose invalidation of a selection 1998 amendments was then largely affirmed by the Third District Court of Appeal in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98. In the recent decision of Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099 (March 12, 2004, modified April 9, 2004), the same appellate court had another opportunity to weigh in on the use of thresholds of significance, this time focusing on Appendix G of the Guidelines.

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Combined Programmatic and Project EIR Supports Subsequent Negative Declaration for Expansion and Modification of Water Recycling Project

Admissibility of Extra Record Evidence and Two Edges of the Exhaustion of Administrative Remedies Doctrine Also Examined.

by William W. Abbott and Joel Ellinwood, AICP

Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, illustrates effective application of a tiering strategy off of a combined programmatic/project EIR.

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The View From Here

Ocean View Estates Homeowners Association, Inc. v. Montecito Water District (2004) 116 Cal.App.4th 396.

Failure to adequately address potential impacts of mitigation measures invalidates mitigated negative declaration.

Failure to address impacts on private and public views of four-acre, 15-foot tall reservoir cover invalidates mitigated negative declaration.

by Joel Ellinwood, AICP

It took only two swings for the Montecito Water District to strike out in its attempt to go to bat* for its adoption of a mitigated negative declaration (MND) as CEQA compliance for its plan to build a four-acre aluminum cover for the Ortega Reservoir in Summerland, Santa Barbara County. Perhaps it is understandable that one of the CEQA curve balls that flummoxed the District in a community that is locally known for its unofficial clothing-optional beach was failure to adequately address visual impacts. One might expect that concern over visual pollution and blocking of scenic vistas would be particularly acute there.

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Making (and Breaking) the Record

by William W. Abbott and Robert T. Yamachika

In a previous article, we noted that a disorganized administrative record could be fatal to project approval if the land use decision is challenged in court. As noted in Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, a court could set aside a project approval simply because the administrative record was poorly organized. In these circumstances, the developer and the lead agency share a mutual interest in investing in timely review and organizational efforts in the administrative record long before a CEQA challenge is filed. Once the parties recognize that record organization is critical, they then face the question of what should the preparers focus in on? You may not like the answer.

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Got EIR? EIR Upheld For Major Dairy Facility; Local Agency Not Required To Follow Informal State Species Study Requirements

by William W. Abbott

An unheralded side effect of urbanization in California has been its effect on the dairy industry. Over the years, established dairies have been forced to relocate to new pastures in order to avoid the conflict between farm and urban uses. In flight from southern California's Inland Empire and the pricey Bay Area, the new operations are settling into the Central Valley. As these operations relocate and expand in size, many face CEQA challenges. These challenges primarily focus on the side effects of air and water quality, along with odor and waste disposal. In Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, the Court of Appeal for the Fifth Appellate District recently affirmed the certification of an EIR for one of these new dairies.

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EIRs cannot routinely rely upon full state and federal water contract deliveries in evaluating adequacy of water supplies

by William W. Abbott

On February 27, 2003, the Second District Court of Appeals issued another reminder that "paper water," a phrase used to describe theoretical supplies of contracted water from the state and federal water projects, cannot be assumed to be the same as real water. Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715. The facts involved the continued efforts of the Newhall Land Company to develop a portion of its vast holdings northwest of Los Angeles. The project, West Creek, involved 2,545 housing units, 180,000 square feet of commercial retail space, and 46 acres of community facilities. At issue was the EIR's assessment of water service impacts. Water for West Creek would come from different suppliers.

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Essential Steps in the Preparation of Negative Declarations

by William W. Abbott

1. Describe and consider all project components, including offsite improvements (road work, utilities).

- Failure to look at offsite improvements invalidates negative declaration Santiago Water District v. County of Orange (1981) 118 Cal.App.3d 818. San Joaquin Raptor v. County of Stanislaus (SJR1) (1994) 27 Cal.App.4th 713.

- Description of related water diversion facilities held to be sufficient, although not designed or engineered. Dry Creek Citizens v. Tulare County (1999) 70 Cal.App.4th 20.

2. Use of the "naked checklist" for the initial study (e.g., conclusions without the supporting analysis) puts a negative declaration at risk.

- Appendix G (CEQA Guidelines)

- Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151.

3. When referring to independent documents, be specific in the references (e.g., page, section or code reference). Guidelines § 15063. The initial study (IS) should recite where these documents can be viewed by the public (preferably in the office of the preparer of the IS).

4. When referring to information received from other departments, it is highly preferable that this information be in writing.

5. Maintain written documentation of consultation with responsible agencies and trustee agencies responsible for resources affected by the project. For projects of statewide, regional or areawide significance, this includes transportation planning agencies. Guidelines § 15063(g).

6. Do not rely on vague standards as mitigation or failure to explain how existing regulations operate as mitigation. The use of performance standards is acceptable. Guidelines § 15064, Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.

7. Do not bank on future studies to provide the critical environmental analysis and mitigation. Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296.

8. The de minimis finding (Guidelines § 15064(i)(4)) to avoid an EIR based upon cumulative impacts is invalid. Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.

9. Inadequate tiering off of an earlier environmental document. The correct approach to tiering requires recognition and disclosure of the reliance upon the earlier environmental document at the front end of the process, not as an after-the-fact thought. Gentry v. City of Murietta (1995) 36 Cal.App.4th 1359. Cumulative strategies include: § 15167 (staged EIR), § 15168 (program), § 15175 (Master EIR), § 15179.5 (residential less than 100 units, commercial less than 100K square feet, based upon prior EIR less than 5 years old), § 15180 (redevelopment), § 15181 (housing, neighborhood commercial in urbanized areas), § 15182 (residential projects pursuant to a specific plan), § 15183 (projects consistent with general plans, community plans or zoning); § 15332 (infill less than 5 acres); Gov. Code, § 66457 (residential projects consistent with specific plan). The ability to tier to a negative declaration is now limited by Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98.

10. Obtain the applicant's sign off on agency added mitigation measures before the document is sent out for public review. Guidelines § 15070 (b)(1).

11. Notify (the Notice of Intent ("NOI") with a copy of negative declaration) all trustee and responsible agencies of the intent to adopt a negative declaration. §§ 15072 and 15073. Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482. Maintain written records of distribution of NOI and proposed negative declaration (county clerk, agencies, individuals, organizations who request copies).

12. The NOI must include a brief description of the project including its location, the review period, the date, time and, place of any scheduled public meetings or hearings (when known), the address where the Negative Declaration can be reviewed, including all documents referenced in the negative declaration, and the presence, on site of hazardous materials. Guidelines § 15072(f)(2).Proof of posting of the NOI is critical. Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133.

13. When adopting a negative declaration, specify the location and custodian of the documents which constitute the record of proceedings. Guidelines § 15074(c).

14. Make a de minimis finding, or require payment of Fish and Game fees. Fish and Game Code, § 711.4.

15. File and post the NOD locally and with the state as appropriate. Remember, an NOD which does not "substantially comply" is an invalid NOD.

Bill Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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 Rejects Key 1998 CEQA Guidelines Amendments

by William W. Abbott and Robert T. Yamachika

In 1998, the Wilson Administration adopted far reaching amendments to the CEQA Guidelines which narrowed environmental review and encouraged the use of negative declarations. In Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, environmental groups filed a writ of mandate to overturn these amendments as being inconsistent with state statute and case law. The trial court in large part agreed with the plaintiffs and granted the relief sought, that being a judicial determination that specified elements of the 1998 amendments were invalid. On October 28, 2002, the Third District Court of Appeal essentially agreed with the trial court. This article highlights the Court of Appeal decision and summarizes the remaining "safe harbor" CEQA provisions governing environmental streamlining.

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New Thresholds Are Established For Specific Plans; Late Comments Can Still Derail An EIR

by William W. Abbott and Robert T. Yamachika

The 1st Appellate District recently decided a specific plan/CEQA case, Napa Citizens for Honest Government v. Napa County Board of Supervisors (2001) 91 Cal.App.4th 342. While it involves a general law county and not a charter city, the legal principles as they relate to the specific plans provide good guidance for a city, and the CEQA holdings unquestionably apply.

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