By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi
Welcome to Abbott & Kindermann’s 2017 1st Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.
1. 2016 CEQA UPDATE
To read the 2016 cumulative CEQA review, click here:
2. CASES PENDING AT THE CALIFORNIA SUPREME COURT
There are 4 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:
Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?
Cleveland National Forest Foundation v. San Diego Assn. of Governments, S223603. (D063288; 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TTCTL.) Petition for review after the court of appeal affirmed the judgment in a civil action. The court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?
Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.) Petition for review after the court of appeal affirmed the judgments in actions for writ of administrative mandate. This case includes the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state owned rail line and/or leasing state-owned property?
Sierra Club v. County of Fresno, S219783. (F066798, 226 Cal.App.4th 704; Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)
Banning Ranch Conservancy v. City of Newport Beach (March 30, 2017, S227473) ___Cal.5th ___.
Petitioners sued the City of Newport Beach over the approval of a residential and commercial project on one quarter of a 400-acre, largely undeveloped coastal property. The petitioners objected to the City’s EIR, arguing it failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The Coastal Commission had not yet determined whether ESHAs were present at the site and the site was explicitly excluded from the City’s coastal land use plan. Petitioners also challenged the project on general plan consistency grounds, asserting that the County had failed to adequately “work with” the Coastal Commission to identify wetlands and habitats. The appellate court held that the City was not required to speculate as to the presence of ESHAs at the site in its EIR, because it is a legal conclusion to be made by the Coastal Commission. Instead, the City’s EIR analysis was sufficient because it included all of the necessary data and analysis regarding biological resources and habitat. The court also found the project was consistent with the City’s general plan because the City could work with the Commission post-approval when it obtains the necessary coastal development permit. Petitioners appealed and the California Supreme court granted the petition for review.
The California Supreme Court reversed. It held that CEQA’s requirement to concurrently integrate CEQA compliance with other related review procedures “required by law or by local practice” (CEQA Guidelines §15080), obligated the City to include at least some analysis of the impacts to known and potential ESHAs present on the site. It found the City’s reasoning for deferring the analysis was not persuasive, given the “ample evidence that ESHA are present on Banning Ranch.” As for the general plan consistency claim, the Court decided it need not address the issue, holding it was unnecessary as sufficient relief was already granted under CEQA.
Aptos Council v. County of Santa Cruz (March 30, 2017, H042976) ___Cal.App.5th ___.
The County of Santa Cruz, as part of its plan to overhaul its zoning ordinance, adopted three separate ordinance amendments to: (1) expand the minor exceptions to the zoning site standards; (2) alter the height, density, and parking requirements for hotels in its commercial districts; and (3) adopted an administrative approval process for some minor exceptions to the sign ordinance. The County relied on a negative declaration for each of the first two amendments and found the third amendment was exempt. In each case, the County considered them separate and distinct projects under CEQA. The Aptos Council challenged the approvals, arguing the County had improperly “piecemealed” the CEQA evaluation for the projects by failing to consider them as a single project. In addition, the Council challenged the negative declaration for the hotel amendment, arguing the CEQA analysis failed to consider the impacts of future development that would be permitted by the ordinance. Affirming the trial court, the appellate court denied the Council’s petition. It rejected the Council’s claim that the County improperly piecemealed the CEQA analyses for each amendment, because, as stated in Banning Ranch Conservancy v. City of Newport Beach, 211 Cal.App.4th 1209 (2012), each amendment could be “implemented independently.” As to the hotel amendment, the court found that the County’s analysis properly considered some potential impacts of future development, but concluded that additional impacts described by the Council were speculative and, thus, were not a reasonably foreseeable consequence of the amendment.
Residents Against Specific Plan 380 v. County of Riverside (February 14, 2017, E063292) ___ Cal.App.5th ___.
Riverside County approved a specific plan and related regulations for a mixed-use project located on 200 acres. The specific plan, as modified by the Board of Supervisors prior to its approval, included seven planning areas with different allocations of allowed land uses. The EIR analyzed a project consisting of eight planning areas with different land use allocations across the project site than the adopted specific plan. Among other commenters, the air district and a nearby city both suggested mitigation measures to reduce air quality impacts in comments on the Draft EIR. Additional noise mitigation measures were also proposed during the final hearing before the Board. The Final EIR included responses to comments, including those of the air district and nearby city, but as to those comments concluded that the proposed mitigation measures were infeasible. The petitioners filed suit and the trial court denied the claims. The petitioners appealed.
The appellate court denied the appeal, rejecting the arguments of multiple CEQA claims, finding: (1) there were no procedural errors concerning the County’s practice of passing a motion of intent to approve and the later final approval; (2) EIR recirculation was not required because the decision not to recirculate due to the changes in the project was supported by substantial evidence; (3) errors in the notice of determination were not prejudicial; (4) there was sufficient evidence in the record to support rejection of suggested mitigation measures; and (5) the County had no duty to formally respond to late comments.
If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Daniel Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc. 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.