By William W. Abbott

Jensen v. City of Santa Rosa (May 1, 2018, A144782) ___ Cal.App.5th ___.

Negative declarations are notoriously at risk as a result of the fair argument standard of review. As the recent decision in Jensen v. City of Santa Rosa (May 1, 2018, A144782) ___ Cal.App.5th ___, illustrates, the successful defense of a challenge will likely require a critical examination of the opposition evidence.

The facts in Jensen involved the approval of a rezoning, conditional use permit and design review for a young adult center which included housing, counseling, education and job training. Neighbors challenged the city’s reliance upon a negative declaration which included a noise study prepared by the applicant’s acoustic engineer. The trial court denied relief, and the neighbors appealed, focusing on potential noise impacts. The appellate court affirmed the decision of the trial court. The appellate court’s first task was to interpret the city’s noise ordinance. The court found that while the ordinance included stated noise levels in residential and non-residential districts, the noise levels were not maximum noise exposure levels; rather, the court found the ordinance reflected “standard or normally acceptable noise levels for the zones and times indicated.” These levels were not adopted as thresholds of significance. The noise ordinance also included specific limits for commercial and industrial activities. However, these levels did not apply to land uses such as the young adult center which was only subject to the ordinance’s generalized nuisance type language.

The applicant’s noise study considered the noise ordinance and included sound measurements and discussed noise impacts in terms of day/night differences and the normally acceptable tolerances. The consultant concluded, based on CEQA Guidelines Appendix G, that the noise impacts would not be significant. The appellants’ first criticism was that the noise study should have employed Leq calculations rather than Ldn, pointing to another study performed by the same consultant for a commercial project elsewhere in the same city which used Leq. The opponents went on to create calculations of maximum exposures, however, the appellate court ultimately concluded that the calculations and conclusions were “opinions by non-experts”, and did not rise to the level of substantial evidence.

Appellants also argued noise impacts associated with the Project’s parking lot. While the appellate court’s analysis reads as intuitive and not necessarily based upon the administrative record, the court ultimately concluded that there were too many differences between the 24/7 commercial use and that of the young adult center to permit reliance upon noise impact analysis generated for the commercial project. That, coupled with appellants’ speculation and conflicting interpretation of the municipal code, led the appellate court to conclude that the substantial evidence in support of the appellant’s argument was lacking.

Appellants’ final argument concerned noise from exterior activities including basketball, pottery making and gardening, all of which were evaluated in the noise study. From the appellate court’s perspective, appellant’s noise level analysis lacked credibility and was unsupported by expert opinion. Once again, substantial evidence was lacking.

One last thought – While lay members of the community are capable of providing substantial evidence on a number of matters, it is reassuring to see the courts apply a critical eye to evidence which crosses over into scientific matters.

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

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

1901 First Street Owner, LLC v. Tustin Unified School Dist. (2018) 21 Cal.App.5th 1186

The methodology for imposing local impact fees is largely left to the discretion of the local agency adopting the impact fees. (AB 1600; Gov. Code §66000, et seq.; the “Mitigation Fee Act”.) As long as there is a reasonable basis for the methodology, a reviewing court should uphold the enacting agency’s approach (e.g., gross building area v. net building area, bedrooms, or EDUs). The notable exception to this involves school impact fees wherein the Legislature set forth the methodology which uses the interior square footage with listed exceptions. Petitioner 1901 First Street Owner, LLC (“First Street”), the developer of a multi-family project, challenged how the methodology was applied to its project. First Street argued that non-inhabited areas such as an interior gym, hallways, and meeting rooms (“interior common areas”) should not be included in the calculation. Initially, the City had agreed with First Street’s opinion and calculated the fee excluding interior common areas. When challenged by the school district, however, the City reversed itself, recalculating the fee to include the interior common areas. As a result, an additional 70,000 square feet were included in the recalculation, which translated to a $238,549.86 increase in the school impact fees. First Street sued and lost at the trial court.

As the interpretation of the statute is purely a legal question, the appellate court applied its independent judgment in interpreting the statute, ultimately agreeing with the City, the school district and the trial court. It found that though detached homes do not include interior common area, this fact was not a basis for reaching a contrary conclusion to that of the City. First Street also argued that it had a vested right based upon a vesting map it processed in conjunction with its entitlements, and as such, the City could only apply its former fee calculation methodology. Citing Government Code section 66498.6, the appellate court noted that the vesting map law does not vest rights as to misinterpretation of state law.

Commentary:  In circumstances involving non-school impact fees, First Street may well have had a winning argument with respect to the effect of the vesting map. As school impact fees are based upon a state-crafted formula, the local agency did not have the discretion to misapply state law.

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

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

Building Industry Association  – Bay Area v. City of Oakland, 2018 U.S.Dist.LEXIS 18822 (Case No., 15-cv-03392, Feb. 5, 2018)

Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions are governed by the two-part test in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).  In Nollan, the Court held that a government could, without paying compensation, demand an easement as a condition for granting a development permit the government was entitled to deny as an exaction of private property, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. (483 U.S. at pp. 834, 836-837.)  In Dolan, the Court held that the dedication of private property must be “roughly proportional” both in nature and extent to the impact of the proposed development. (512 U.S. at p. 391.)  In Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013), the Court held that the Nollan/Dolan test applies to a government’s demand for a monetary exaction imposed on a land-use permit applicant on an ad hoc, adjudicative basis.  But Koontz did not address the question of whether legislatively imposed monetary exactions are also governed by the Nollan/Dolan test.  That led Supreme Court Justice Clarence Thomas to note in early 2016:  “For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. That division shows no signs of abating.” (Cal. Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928, 928 (2016) (Thomas, J., concurring in denial of cert.))  Justice Thomas added: “Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively.”  (Id. at pp. 928–929.)

While waiting for the Supreme Court to decide that question, courts are now having to decide whether the Koontz decision can be interpreted as applying Nollan/Dolan to generally applied and legislatively imposed exactions.  For its part, the California Supreme Court said no:  “The Koontz decision does not purport to decide whether the Nollan/Dolan test is applicable to legislatively prescribed monetary permit conditions that apply to a broad class of proposed developments.”  (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 460 & fn 11, cert. den., Cal. Bldg. Indus. Ass’n v. City of San Jose, supra, 136 S.Ct. 928 (emphasis added).)  Since Koontz does not apply, the existing rule in California is that “legislatively prescribed monetary fees that are imposed as a condition of development are not subject to the Nollan/Dolan test.”  (Ibid. See also San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 663-671; Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 966–967; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 874-885 (plur. opn. of Arabian, J.).)  The existing rule in the Ninth Circuit Court of Appeal is the same.  (See McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), cert. denied, 556 U.S. 1282 (2009).)

U.S. District Judge Chhabria of the Northern District of California recently came to the same conclusion as the California Supreme Court.  In Building Industry Association  – Bay Area v. City of Oakland, 2018 U.S.Dist.LEXIS 18822 (Case No., 15-cv-03392, Feb. 5, 2018) (“BIA”), Judge Chhabria determined:  “The Court did not hold in Koontz that generally applicable land-use regulations are subject to facial challenge under the exactions doctrine [in Nollan and Dolan].”  (Id. at *5.)  Judge Chhabria reached that conclusion by rejecting the reasoning of fellow U.S. District Judge Breyer in Levin v. City of San Francisco, 71 F.Supp.3d 1072 (N.D. Cal. 2014), appeal dismissed as moot, remanded, 2017 U.S.App.LEXIS 4384 (9th Cir., Feb. 14, 2017).

In Levin, the City and County of San Francisco enacted an ordinance that required property owners who wanted to withdraw their rent-controlled property from the rental market under California’s Ellis Act (Govt. Code §§7060 et seq.) to pay a lump sum to displaced tenants in San Francisco.  Property owners challenged the ordinance as an unconstitutional taking.  Judge Breyer applied Nollan/Dolan to the takings claim because, “[a]s in Koontz, where the monetary exaction was subject to a Nollan/Dolan analysis because the City commanded a monetary payment ‘linked to a specific, identifiable property interest such as a . . . parcel of real property,’ here the Ordinance’s requirement of a monetary payment is directly linked to a property owner’s desire to change the use of a specific, identifiable unit of property.”  (71 F.Supp.3d at p. 1083 (citing Koontz, supra, 133 S.Ct. at p. 2600).)  Judge Breyer distinguished the contrary Ninth Circuit precedent in McClung v. City of Sumner by concluding that “Koontz abrogated McClung’s holding that Nollan/Dolan does not apply to monetary exactions, which is intertwined with and underlies McClung’s assumptions about legislative conditions.” (71 F.Supp.3d at 1083 n.4.)

However, in the recent BIA case, Judge Chhabria disagreed with Judge Breyer and held that Koontz did not address the applicability of Nollan/Dolan to legislative exactions, and therefore did not overturn the Ninth Circuit precedent in McClung. In BIA, the City of Oakland enacted an ordinance that required a developer of a multifamily project with over twenty units to either (i) spend 0.5 percent of building development costs on art displays on the site of the development or a nearby right-of-way; or (ii) pay an equivalent amount to a city-operated fund for public art installations.  The Building Industry Association – Bay Area (“Association”) challenged the validity of the ordinance on the ground that it was an unlawful exaction that violates the “exactions doctrine” applied in Nollan, Dolan and Koontz.  Judge Chhabria disagreed with the Association, and granted the City’s motion to dismiss, for the three several reasons.

First, Judge Chhabria explained that the U.S. Supreme Court has only applied the “exactions doctrine” in cases “involving a particular individual property, where government officials exercised their discretion to require something of the property owner in exchange for approval of a project.”  (2018 U.S.Dist.LEXIS 18822 at *3.)  He added that “the Court has consistently spoken of the doctrine in terms suggesting it was intended to apply only to discretionary decisions regarding individual properties.  (Ibid. (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546-47, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005).

Second, Judge Chhabria pointed out that both the Ninth Circuit in McClung and the California Supreme Court in Ehrlich have “expressly stated that a development condition need only meet the requirements of Nollan and Dolan if that condition is imposed as an ‘individual, adjudicative decision.’”  (2018 U.S.Dist.LEXIS 18822 at *3.)  Therefore, “[b]roadly applicable regulations like the one at issue in this case are assessed under the Penn Central regulatory takings framework.” (Id. at *3-*4.)

Third, Judge Chhabria rebuffed the Association’s reliance on Judge Breyer’s decision in Levin that held that held that McClung was invalidated by Koontz.  Judge Chhabria explained:

The Court did not hold in Koontz that generally applicable land-use regulations are subject to facial challenge under the exactions doctrine; it held only that the exactions doctrine applies to demands for money (not merely demands for encroachments on property). In reaching this holding, the Court went out of its way to make clear that it was not expanding the doctrine beyond that. See 133 S. Ct. at 2602 (“This case does not require us to say more.”); id. at 2600 n. 2 (“[T]his case does not implicate the question whether monetary exactions must be tied to a particular parcel of land in order to constitute a taking.”). Koontz involved an adjudication by local land-use officials regarding an individual piece of property, and throughout its decision the Court spoke of the exactions doctrine in those terms. For example, the Court stated: “The fulcrum this case turns on is the direct link between the government’s demand and a specific parcel of real property.” 133 S. Ct. at 2600 (emphasis added). “Because of that direct link,” the Court stated, “this case implicates the central concern of Nollan and Dolan: the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property.” Id. (emphasis added); see also id. at 2594 (noting that permit applicants are “especially vulnerable” to government coercion “because the government often has broad discretion to deny a permit that is worth far more than property it would like to take”). The exactions doctrine, in other words, has historically been understood as a means to protect against abuse of discretion by land-use officials with respect to an individual parcels of land, and Koontz itself spoke of it in those terms, undermining Judge Breyer’s argument that Koontz displaced the Ninth Circuit’s rule that the exactions doctrine is unavailable to a plaintiff making a facial challenge to a generally applicable land-use regulation. (Id. at *4-*6.)

Thus, Koontz did not overrule the Ninth Circuit’s legislative exactions analysis in McClung, and under the same rationale did not overrule the California Supreme Court’s holding in Ehrlich.

Judge Chhabria did not explicitly address another argument raised in Levin regarding the McClung decision.  In Levin, Judge Breyer concluded that Koontz abrogated the holding in McClung regarding legislative exactions because the monetary exactions is “intertwined with and underlies McClung’s assumptions about legislative conditions.” (71 F.Supp.3d at 1083 n.4.) In its briefing in Re:  BIA case, the Association similarly argued that “McClung’s discussion of legislative exactions is so entwined with its abrogated repudiation of monetary exactions that the two cannot be parceled out.”  (Opposition to Motion to Dismiss, at 11 fn. 5.)  Judge Chhabria did not address that issue in his order granting the City’s motion to dismiss. However, contrary to Judge Breyer’s statement in Levin, and the Association’s argument in BIA, the McClung court discussed the legislative/adjudicative distinction apart from the “monetary” nature of the particular exactions in that case.  For example:

Next, the McClungs attempt to recast the facts as involving an individualized, discretionary exaction as opposed to a general requirement imposed through legislation. The McClungs make this argument in recognition of the fact that at least some courts have drawn a distinction between adjudicatory exactions and legislative fees, which have less chance of abuse due to their general application. See San Remo Hotel, 41 P.3d at 104 (distinguishing between a fee condition applied to single property that would be subject to Nollan/Dolan review and a generally applicable development fee).  The facts do not support the McClungs falling within the former category. All new developments must have at least 12-inch storm pipe; there is no evidence on the record that the McClungs were singled out. [548 F.3d at 1228–1229.]

Judge Breyer’s decision in Levin did not discuss that analysis and case law in McClung, which is a separate ground that supported the Ninth Circuit’s holding about legislative exactions.  (Cf. United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924) [“where there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, ‘the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other’” (citation omitted)); Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 646 fn. 7 [“when a decision is based on two separate grounds, neither is dictum; rather, each ground is equally valid and constitutes an alternative holding in support of the judgment.” (Citation omitted.)])

It is important to note that Judge Chhabria did not decide in BIA whether or not the U.S. Supreme Court should extend Nollan/Dollan to legislative exactions; he merely determined that the High Court had not yet done so.  He explained:

Perhaps reasonable arguments could be made for expanding the reach of the exactions doctrine so that it can be invoked in facial challenges to a generally applicable regulations, rather than merely discretionary decisions regarding an individual property by land-use officials.  But the point, for purposes of this motion, is that it would be an expansion of the doctrine. If that occurs, it should be in the Supreme Court, not the Northern District of California.  [2018 U.S.Dist.LEXIS 18822 at *6 (citation omitted).] [1]

Thus, the District Court recognized, as Justice Thomas observed in early 2016, that the constitutional level of scrutiny for legislative exactions has not yet been decided by the U.S. Supreme Court even after Koontz.

The Association appealed the decision in BIA to the Ninth Circuit on March 5, 2018.  The briefing on that appeal is scheduled to begin on June 13, 2018.

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

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

[1] For an extensive analysis of whether Nollan/Dolan applies to legislative exactions, see Glen Hansen, Let’s Be Reasonable: Why Neither Nollan/Dolan nor Penn Central Should Govern Generally-Applied Legislative Exactions After Koontz, 34 Pace Envtl. L. Rev. 237, 242 (2017).

Course Description

Learn key provisions of the Map Act, how it is applied in planning and development processes, recent legislative changes and new legal interpretations from court decisions and attorney general opinions. Explore both local agency and sub-divider viewpoints and discuss legal and practical solutions.

Topics include:

  • Map Act scope, purpose and history
  • Relationship of the Map Act to planning, zoning and development laws, including CEQA
  • When the Map Act does and does not apply
  • Certificates of compliance and lot line adjustments
  • Map Act exemptions and exceptions
  • What type of map is required
  • Procedures and actions applicable to maps
  • The role of vested rights, including vesting maps, development agreements and common law vesting
  • Constitutional and statutory limitations on conditions of approval (exactions/dedications/fees)
  • Grounds for approval and denial of maps
  • Rules and procedures regarding final maps
  • Corrections and amendments to maps
  • Exclusions and reversions
  • Mergers and alternatives to mergers
  • Antiquated subdivisions (old maps) and troubled conveyances
  • Enforcement, local appeals and judicial review

Schedule:

May 2, 2018 – Wednesday, 9:00 a.m. to 4:30 p.m.

Sacramento: Sutter Square Galleria, 2901 K Street, Room 305, Sacramento

Instructors:  William Abbott

For more info, or to enroll visit: https://extensionpv.ucdavis.edu/search/publicCourseSearchDetails.do?method=load&courseId=60665

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

Welcome to Abbott & Kindermann’s 2018 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.         2017 CEQA UPDATE

To read the 2017 cumulative CEQA review, click here:

2.         CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 2 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?

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.)

3.         UPDATE

John R. Lawson Rock & Oil, Inc. v. State Air Resources Bd. (2018) 20 Cal.App.5th 77.

In 2008, the State of California adopted air quality regulations which had the effect of requiring existing trucking operators to retrofit truck fleets with expensive air quality improvements.  In 2013, the state issued a regulatory advisory which created a safe harbor for operators seeking to come into compliance. Operators were also allowed to take advantage of regulatory changes expected to be adopted in 2014. The Air Resources Board engaged in the formal rule adoption process in 2014 and was sued by a fleet operator and trucking association arguing CEQA violations and failure to comply with the economic considerations part of the state APA. The Board operates under the “functional equivalent” provisions of CEQA, and in this case, relied upon the equivalent of a negative declaration. The trial court ruled for the petitioners and the court of appeal affirmed although on narrower grounds. The issues on appeal included: (1) had the ARB improperly committed itself to a project in advance of CEQA compliance, (2) what was the appropriate baseline for evaluating impacts, (3) fair argument and (4) had the ARB correctly evaluated the economic considerations required by the state APA.

First, applying the California Supreme Court’s decision in Save Tara, the appellate court found that the Board had sufficiently committed itself to a course of action, going beyond just expressing interest in an idea, and thus violated CEQA’s timing requirements. The court of appeal agreed that invalidation was an appropriate remedy, but did not require the functional equivalent of an EIR, leaving to the agency to determine the proper environmental document in response to the court decision. Anticipating the Board would implement the regulatory changes or something similar, the court concluded that there was substantial evidence to support the Board’s established baseline as not including the continuing effect of the existing regulations. The court then rejected the Board’s evaluation of impacts. Pointing to evidence in the record that the project could result in short to medium-term impacts involving various pollutants, the appellate court agreed that for purposes of the Board’s initial evaluation, compliance with the state’s long term plan might support a no-impact conclusion. When faced with the evidence of short to mid-term impacts, however, an EIR type document was required. Lastly, the appellate court evaluated the APA claims and held that the Board violated the APA when it failed to properly respond to comments on potential intra-state competition issues in its economic analysis.

Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.

Petitioners challenged to the City of San Diego’s (“City”) approval of a small high school on previously developed, open-space designated lands adjacent to a commercial equestrian facility. The project was a one-building, three-classroom, 5,340-square foot high school on a previously developed one-acre site, with a 24-stall parking lot and associated landscaping. The project was located in the coastal zone at the end of a private access driveway shared with an adjacent equestrian facility. It included an historical farmhouse, currently used as an administrative office, along with several older outbuildings. Owners of the adjacent equestrian facility (“Petitioner”) opposed the project and the related draft Mitigated Negative Declaration (“MND”) prepared by the City, contending an EIR was required to study potentially significant historical resources, fire hazard, noise, and transportation/traffic impacts, and that the project threatened the Ranch’s economic viability as a business.

In reliance on the City’s misleading statements in the public notice, Petitioner appealed the hearing officer’s decision approving the project and associated MND to the Planning Commission, checking that box on the City’s standard appeal form and not checking the box for “Environmental Determination – Appeal to City Council.” While the appeal forms identified both CEQA and non-CEQA grounds for its appeal, City Staff advised Petitioner and the Planning Commission that Petitioner’s failure to appeal to the Council within 10 days of the hearing officer’s decision waived all CEQA and MND issues.  The Commission heard and ultimately voted 4-2 to deny the appeal and to grant the project permits. The City rejected as untimely Petitioner’s subsequent attempt to appeal the project approval and MND to the City Council. Petitioner filed suit on both CEQA and Planning and Zoning grounds. The trial court denied Petitioner’s writ petition on all asserted grounds, finding that Petitioner failed to exhaust administrative remedies on the CEQA claims by failing to properly administratively appeal the hearing officer’s environmental determination. Petitioner appealed and the appellate court affirmed.

The appellate court first rejected Petitioner’s claim that the City’s bifurcated appeal procedures were not in compliance with CEQA’s appeal requirements. It reasoned that because the project was approved by an unelected decisionmaker (the hearing officer), the City’s appeal procedures correctly included an option to appeal the environmental determination to the agency’s elected decisionmaking body (the city council), which Petitioner failed to do when it appealed the project to the Planning Commission. As for Petitioner’s claim that it made the procedural error in reliance on erroneous statements made by the city in its public hearing notice, the appellate court held that Petitioner’s argument involving improper notice was inapplicable because there was no claim that the notice defect involved an inaccurate project description. Rather, it reasoned, the notice accurately provided notice of the public hearing but misstated the applicable appeal procedures. Instead, the court reasoned it was more appropriately a claim of equitable estoppel which was considered and rejected by the trial court and was not raised in its appeal. Finally, the court rejected the substantive claims of CEQA noncompliance regarding the potential fire risks resulting from development of the project in a high fire hazard severity zone, relying on the California Supreme Court’s decision in CBIA v. BAAQMD, 62 Cal.4th 369 (2015), to conclude that Petitioner’s fire safety expert improperly focused his analysis on existing environmental hazards not caused by the project, rather than the project’s impacts on the existing environment.

City of Long Beach v. City of Los Angeles (2018) 19 Cal.App.5th 465.

The City of Long Beach and the California Attorney General as intervener (“Petitioners”) challenged the City of Los Angeles’ (“City”) approval of a new near-dock intermodal rail facility that would manage the transport cargo containers coming from the port. One of the effects of the new near-dock railyard would be to substitute four-mile trips on surface streets for many existing 24-mile trips via freeway to and from other existing off-dock railyards. Petitioner challenged the CEQA analysis citing concerns about the impacts of this shift in port truck traffic and filed suit, arguing: (1) the project description did not accurately describe indirect impacts resulting from the project; and (2) the air quality analysis inadequately addressed both direct and indirect impacts of the project.

First, the court considered and rejected the City’s exhaustion defense against clams raised for the first time by the California Attorney General after the conclusion of the administrative proceedings, finding that the Attorney General is exempt from CEQA’s exhaustion requirements consistent with “the Attorney General’s unique authority to protect the environment of the State of California.” The court next held that the City’s decision to perform only a single modeling run with a 50-year analysis range the EIR was inadequate to estimate how frequently or for what length of time the level of particulate air pollution in the area surrounding the new railyard would exceed the EIR’s standard of significance. The court also concluded that the EIR’s cumulative analysis was inadequate because it did not adequately focus on the combined impacts of the proposed project and another large railyard expansion proposed by Union Pacific adjacent to the proposed project.

The court also held that crucial information regarding air quality was omitted from the EIR. It reasoned that though the EIR showed that as a result of the trip length reduction total particulate matter emissions from trucks would be reduced by the project compared to the no project alternative, the EIR did not adequately explain that in the vicinity of the proposed new railyard, air quality would be substantially worse with the railyard than without it, and that the vicinity included homes and schools. Finally, the court rejected Petitioners’ claims that the EIR was required to account for truck trips to and from the Hobart railyard that would result from its new excess capacity. It reasoned that the record supported the EIR’s conclusion that a predicted level of economic growth would occur over the decades with or without the near-dock rail project, and that the project was not necessary to enable the operator to service anticipated growth at the Hobart facility and was, thus, not an indirect impact of the project.

Don’t Cell Our Parks v. City of San Diego (March 15, 2018, D071863) ___ Cal.App.5th ___.

Real party in interest, Verizon Wireless, sought the approval of a wireless telecommunications facility to be constructed in a dedicated city park. Prior to the project approval process, City staff first made the determination that the project was eligible for a CEQA exemption under section 15303 (“small facilities exemption”), and consistent with the City’s administrative rules, the Petitioners filed an appeal of the CEQA determination which was ultimately rejected by the city council. Moving next to consideration of the merits of the project, the city hearing officer held a public hearing and approved the development and use permits for the project. Petitioners filed an administrative appeal of this decision, though no grounds challenging the city’s CEQA determination were raised in this appeal, and the City rejected the appeal and upheld the permit approvals. Petitioner filed suit, arguing: (1) the permit approvals violated the terms of the city charter which required voter approval; (2) the project did not fit the terms of the section 15303 exemption; (3) even if it did apply, the unusual circumstances exception and the location exception applied. The trial court rejected the claims and Petitioner appealed. The court of appeal affirmed.

As to the CEQA claims, the court first considered and rejected the City’s defense that Petitioner failed to exhaust its administrative remedies regarding CEQA when they failed to appeal the CEQA determination when Petitioner appealed the permit approvals. It reasoned that because the City never held a public hearing or provide an opportunity to make objections prior to making its staff-level CEQA determination, the exception to the exhaustion requirements under Public Resources code section 21177, subdivision (e), applied to Petitioner’s CEQA claims. On the merits of Petitioner’s CEQA claims, the court found that the project was eligible under the small facilities exemption, reasoning that the size of the project (534 sq. ft.) was smaller than “a single-family residence, store, motel, office or restaurants,” which are expressly allowed under the exemption. The court also rejected the applicability of the unusual circumstances exception, reasoning that even if petitioner’s claim that the location within a park was an unusual circumstance, the biological resources report prepared in support of the project provided substantial evidence that the project would not have a significant effect on the environment as a result. Moving to petitioner’s location exception claim, the court found no such exception applied, because petitioner presented no evidence that the park was “designated” as an “environmental resource of hazardous or critical” as required under the regulation. As for the non-CEQA claims, the appellate court found that approval of the project did not require voter approval when changing the use of a public park as required by the city charter.  It reasoned that the “faux tree” design of the project, as well as its very small footprint in relation to the size of the park was consistent with the existing park use and, thus, did not change the use or purpose of the park.

Covina Residents for Responsible Development v. City of Covina (Feb. 28, 2018, B279590) ___ Cal.App.5th ___.

Petitioners challenged the City’s approval of a mixed-use, infill project with 68 residential units, approximately 8,000 square feet of retail and administrative office space, and 4,000 square feet of gallery space. The 3.4 acre site was a former car dealership and is located within one-quarter mile of a commuter rail station. The City adopted a mitigated negative declaration (MND) that tiered from an environmental impact report for the Town Center Specific Plan (TCSP EIR) which governs the area. The project as first designed had a shortfall of 84 parking spaces, but several last-minute revisions reduced the shortfall to only 19 spaces. Petitioners’ claims largely relied upon impacts purportedly caused by the shortage of parking spaces, arguing that the City: (1) improperly tiered the MND from the TCSP EIR; and (2) violated the Subdivision Map Act (SMA) by failing to adopt adequate findings. The trial court denied the petition, and Petitioners appealed.

The appellate court affirmed. The court first rejected the CEQA claim holding that the primary impacts associated with parking for the project were exempt from CEQA. It reasoned that despite the consideration of the impacts in the MND, the enactment of Public Resources Code section 21099 under SB 743 prior to the City’s approval of the project eliminated any need to consider such impacts under CEQA. As for the improper tiering claim, the court held that Petitioners cited to no evidence in the record to identify any deficiencies in the traffic analysis prepared for the project specific impacts that were not contemplated in the TCSP EIR. The appellate court also rejected the SMA claims that the project did not meet the parking requirements in the TCSP and was inconsistent with transportation policies in the TCSP, finding that Petitioners’ arguments amounted to speculation, rather than evidence, and that they cited to no evidence contradicting the City’s determination that the project complied with the TCSP’s multi-modal transportation policies.

Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1.

The City of Visalia amended its general plan pertaining to neighborhood commercial districts, adding a limitation that no tenant could occupy more than 40,000 square feet and set minimum separation requirements for neighborhood centers and adopted an environmental impact report in support of the decision. A shopping center owner submitted expert testimony regarding the potential for urban decay by a broker who opined that most grocers would not build less than 40,000 square feet, and that smaller stores had gone out of business. The broker also argued that substitution of less successful, lower volume tenants would eventually lead to physical decay in centers as a result of reduced investment, and complained of the reduction in commercial designation for one commercial center site. The trial court held it was insufficient to demonstrate that the limitation may have a significant environmental effect as a result of urban decay.

The appellate court affirmed, finding that none of the evidence offered by the property owner was substantial in character. It reasoned that the fact that some grocery stores would not build at 40,000 square feet or less was not evidence that no grocery store would be constructed. The evidence that one grocer was unsuccessful (building in the 10,000 to 20,000 foot range), did not foreclose that another grocer could build a larger store that meets the 40,000 square-foot requirement (additional evidence showed that Walmart had recently constructed a 38,000 square-foot store in Visalia). Further, the court held that there was a lack of evidence that urban decay would occur, just speculation.

Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039.

Petitioners challenged the County’s approval of a distributed antenna system for wireless cellphone coverage which included 13 microcell transmitters placed on utility poles in the Day Valley area in Aptos. The microcells are two-foot by one-foot antennas mounted on an extender pole and attached to a utility pole. The applicant filed individual permits for each microcell and the County had found that the project, both individually and as a whole, was exempt from CEQA, pursuant to the small structures exemption (14 C.C.R. §15303). Petitioners argued that: (1) the County improperly segmented its analysis of the project; (2) there was a cumulative impact resulting from the whole of the project, as well as Petitioner’s assertion that AT&T was likely to file for its own distributed system in the area soon; (3) the project fell under a “location exception” for a “mapped protective designation”; and (4) that there were unusual circumstances that precluded use of the exemption. The trial court denied petitioners’ claims and petitioners appealed.

The court of appeal affirmed. The court found the County did not improperly segment the project, nor fail to consider the cumulative impacts of the project. It reasoned that despite the fact that the applicant filed for separate permits for each microcell, the record was clear that the County had always treated the microcells together as one project which was authorized under the terms of the section 15303 exemption which uses the plural when describing the number and type of structures eligible for the exemption. The court next rejected the claim that the County had an obligation to consider the potential AT&T project finding it to be speculative since it was nothing more than a rumor based upon hearsay. Next, the appellate court rejected petitioners’ “location exception” claim, finding that petitioners could cite to no evidence of an impact on an area “designated” as an “environmental resource of hazardous or critical concern.” Finally, the court found that there was nothing unusual about the use of several small structures to be used to provide utility extensions in a rural area.

Heron Bay Homeowners Assn. v. City of San Leandro (2018) 19 Cal.App.5th 376.

Petitioners successfully challenged the City’s approval of a proposed wind turbine project under the California Environmental Quality Act (“CEQA”). The trial court concluded that the City’s decision to adopt a mitigated negative declaration was in error and, instead, was required to prepare an EIR. Post-trial, the trial court awarded petitioners a partial attorney fees award under the private attorney general statute in Public Resources Code section 1021.5. The City and the real-party-in-interest (“Respondents”) filed an appeal on the fee award, arguing that the trial court erred when finding that, despite the “very close call” over whether Petitioners had a personal financial interest that was sufficient to outweigh the burden of bringing suit, a fee award could be apportioned to address the balancing of responsibilities. Respondents reasoned that the court could only consider apportionment of the fee award, after concluding that the petitioner’s interest did not disqualify it from the fee award. The appellate court rejected respondent’s claim finding that record for the trial court’s determination showed that it had impliedly found that Petitioners had a sufficient financial interests to incur some, but not all, of the costs of litigation. Thus, the trial court’s apportionment was a reflection of this implied determination that is required under the statute.

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.

Today, Silicon Valley jumped into California’s housing debate with multiple app designers racing to be the first on the street to design a new affordable housing app. According to a new article in the trade publication Tomorrow’s App, “Is Legacy Housing Finally On The Way Out?,” staff writer Jack Framer noted that these new cutting edge engineers “are disrupting the traditional housing paradigm by bringing housing reform to the people who need it the most and who have the creativity and know how to craft a solution that will make the world a better place. No longer will new software engineers drawn to Silicon Valley and the Peninsula struggle to put a roof over their head. Partnering with Amazon Prime, the customer interface will permit the app user to design their own home on their phone or tablet, and Amazon will manage the 3D printers and delivery, and your house will arrive next day. Not only that, but as a Prime member, 2-day shipping is free.”

Framer went on to note that “the designers are looking at platforms based upon the Sears Catalog Homes from the 1920s (https://en.wikipedia.org/wiki/Sears_Catalog_Home) except that the homes will come with one important improvement: a whole-home Wi-Fi Mesh network. We are now taking a deep dive into solving the last pain point – ramping up available dirt.” Lyft and Uber are rumored to be partnering with a national development company investigating self-driving recreational vehicles as a mobile housing option given the shortage of land.  Said one unnamed staffer, “in the Bay Area, we have more pavement for roads than we do for housing. It only makes sense to leverage natural nighttime sleep cycles with excess nighttime road capacity.  It won’t take a rocket scientist to write that algorithm. We are going to crush it.”

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

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

Hauser v. Ventura County Board of Supervisors (2018) 20 Cal.App.5th 572

I will start with the cats. Irena Hauser applied for a conditional use permit to house up to five tigers on her property, located in a rural part of Ventura County. Ms. Hauser proposed three tiger enclosures, an area with a roof, and an eight-foot chain link fence enclosing seven acres. The animals were to be used for filming purposes. 57 residential lots with 28 existing homes were located within a one-half mile radius of the tiger enclosures, with a total of 46 existing homes within one mile. In addition, there were two children’s camps within 2-3 miles. The project site was located in “rugged topography … with dense vegetation.” Ms. Hauser proposed that one family member would always be onsite. She and another family member had attended an eight-day class on animal husbandry, safety and training (as the court noted, there was no written test, and everyone was assured a passing certificate).

As one might predict, the neighbors were opposed, presenting a petition with 11,000 signatures in opposition, news reports of animal maulings, and video of uncaged tigers on the Hauser property in Beverly Hills. The planning commission denied the use permit, as did the Board of Supervisors, the latter on a 4-1 vote. Ms. Hauser filed a writ of mandate challenging the findings adopted in support of the denial claiming a lack of substantial evidence. The appellate court largely deferred to the fact finding undertaken by the Board, noting that the Board was not compelled to believe Hauser’s uncontradicted testimony. With deference to the Board, the appellate court found that the evidence did in fact support the Board’s decision.

While the fate of five tigers is always interesting reading, more important is the court’s decision regarding the effect of communications to the Board members outside of the formal hearing process. The Board members disclosed pre-hearing contacts with both the applicant and opponents (in person and by email). The adopted county rules discouraged ex parte contacts and required disclosure, which the Board members fully complied. The appellate court noted that less formality is required for local government hearings as compared to a judicial hearing and with respect to ex parte contacts cited City of Fairfield v. Superior Court, 14 Cal.3d 768 (1975), in which the California Supreme Court noted “A councilman has not a right but an obligation to discuss issues of vital concern with his constituents.” The potential for bias is insufficient. There must be a probability of actual bias which is constitutionally intolerable. The court viewed that the pre-hearing contacts were quite typical, and no decision maker had promised to vote a certain way. All Board members disclosed the contacts as required by the local code. In the end, Ms. Hauser received a full and fair hearing.

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

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

 

The City of Visalia amended its general plan pertaining to neighborhood commercial districts, adding a limitation that no tenant could occupy more than 40,000 square feet. A shopping center owner submitted expert testimony regarding the potential for urban decay, but the court held it was insufficient to demonstrate that the limitation may have a significant environmental effect as a result of urban decay.

In 2010, Visalia launched a general plan update. Among other issues under consideration, one of the policy changes under review was a square foot limitation on tenants in neighborhood commercial centers. Staff prepared a white paper on this issue, outlining policy issues with the size, tenant mix, and walkability, along with the pros and cons of store size limitations. Following a city council workshop, staff amended the draft policy to limit store size and to set minimum separation requirements for neighborhood centers. The draft plan also included a map change reducing the acreage of a neighborhood center site by converting some of the property from commercial to medium density residential. The City then prepared and circulated a draft and final EIR (June 26, 2014). In October, the property owner submitted a letter thru legal counsel objecting to the changes, which included a report written by a broker who opined that most grocers would not build less than 40,000 square feet and that smaller stores had gone out of business. The broker also argued that substitution of less successful, lower volume tenants would eventually lead to physical decay in centers as a result of reduced investment. The letter also complained of the reduction in commercial designation for the one commercial center site. The owner filed suit, challenging the EIR and arguing a lack of internal consistency in the general plan. The trial court ruled for the City.

The appellate court affirmed, finding that none of the evidence offered by the property owner was substantial in character. It reasoned that the fact that some grocery stores would not build at 40,000 square feet or less was not evidence that no grocery store would be constructed. The evidence that Tesco was unsuccessful (building in the 10,000 to 20,000 foot range), did not foreclose that another grocer could build a larger store that meets the 40,000 square-foot requirement (and in fact, the evidence was that Walmart had recently constructed a 38,000 square-foot store in Visalia). Further, there was a lack of evidence that urban decay would occur, just speculation.

Regrettably, the appellate court applies the analytical tools reserved for judicial review of negative declarations, rather than an EIR, focusing instead on substantial evidence of a fair argument. While the decision does not discuss what substantial evidence supported the lead agency’s determination, the decision is useful in its close scrutiny of what constitutes substantial evidence offered by a project opponent.

Visalia Retail, LP v. City of Visalia, (January 24, 2018) 2018 Cal.App. LEXIS 84.

Call for Nominations!

 The Sacramento Environmental Commission (SEC) invites you to participate in the 2018 Environmental Awards Program. Diane Kindermann has been a Commissioner on the SEC since 2015. Abbott & Kinderman is notifying our blog readers of this opportunity.

The goal of these awards is to recognize and show appreciation to residents and businesses of Sacramento County and its cities who give back to the environment and encourage others to get involved!

ELIGIBILITY: Open to any citizen, business, or organization based within Sacramento County, or to entities with at least 10 percent of their participants being city or County residents, which have demonstrated outstanding efforts to improve the environment – either for a single project or multiple projects/programs. Recognition may be granted for voluntary initiatives and/or projects within the past calendar year (2017), or, for efforts exceeding regulatory requirements.

SCOPE OF THE AWARDS: Examples of programs and projects include, but are not limited to:

Use of integrated pest management to minimize the use of chemical pesticides and herbicides

Pollution prevention and green purchasing

Expansion of reduction of waste by using less wasteful practices, reuse and recycling efforts Implementation of projects to encourage alternative transportation

Expansion and protection of green space for natural and recreational uses

Protection and enhancement of wildlife and associated habitats

Installation of energy and water conservation measures

Tree planting and management

Invasive species management projects

Stream monitoring and restoration programs

Promoting neighborhood stewardship of local natural resources

Environmental education programs

Creation of baseline information on quality and quantity of natural resources

Promotion of green building (LEED standards) in public and private development

Proper pet waste and litter disposal

Environmental Management Systems

Greenhouse gas emissions reductions

Generation of purchase of alternative energy

Other innovative environmental enhancement ideas or projects


DEADLINE: Early submission is encouraged! The deadline is March 9TH, 2018.  

JUDGING: The SEC Awards Committee will evaluate applications based upon program effectiveness and innovation. The SEC is especially interested in learning how groups are expanding their efforts from one year to the next for multiyear projects.

AWARD PRESENTATION: Awards will be presented by the SEC at a special awards ceremony on Monday, April 16, 2018, during a televised SEC meeting held at the Sacramento County Board of Supervisors Chambers.


For additional information, please check the SEC website at http://www.emd.saccounty.net/sec/

Or contact Jill Koehn at koehnjill@saccounty.net, or call (916) 875-8584.

Form To Nominate an Organization or Individual:  2018 Sacramento Environmental Commission Awards Application

 

 

 

Reserve your seat for one of four annual seminars taking place in early 2018 in Sacramento, Napa, Redding and Modesto.

In January 2018 Abbott & Kindermann, Inc. will present its 17th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2017 case law and legislative updates includes the following hot topics for 2018:

  • Air Quality and Climate Change – Including CEQA Guidelines, Cap-And-Trade
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands – Including New State Wetlands Programs
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Water Rights and Supply
  • Cultural Resources
  • Mining, Oil and Gas
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • Real Estate Acquisition and Development
  • Subdivision Map Act

Details for each of the seminars is below.  We hope you can join us and we look forward to seeing you there.


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

Date: Friday, January 19, 2018

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

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

Date: Friday, January 26, 2018

Location: Sacramento Hilton Arden West, 2200 Harvard Street

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

Program: 9:00 a.m. – 12:00 noon

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

Date: Friday, February 2, 2018

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

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

Date: Wednesday, February 7, 2018

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

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

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