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.

Lighthouse involves an existing state park facility, subject to a management agreement which made the City of Santa Cruz the operator. The State and the City acted to update the park general plan. The most controversial item in the update concerned existing and proposed levels of use by off-leash dogs. Official state policy requires all dogs to be on leashes in state parks, but because this was a City run park, the rules were ambiguous and off-leash dogs were the norm. As we all would expect, people are very passionate over the issue of dogs, particularly those off-leash. As described by the appellate court, dogs in Santa Cruz are guilty of constant barking, whining, yowling, crying, fighting, chasing, digging (with sand flying in all directions), begging for food, stealing food left unattended, running over people’s towels and blankets, shaking off water next to people other than their owners, and violating personal space of humans. (Bill says, “And I thought that this was stuff my border collie was supposed to do…at least herding wasn’t mentioned.” Janell says, “Those dogs still sound better-behaved than mine!”) When consulted about the leash/no-leash issue, the State passed the bone to the City and said that dog management was not a park general plan issue, but a matter of control by the local operator. The City decided that the strategy for dealing with the off-leash issue was to leave it for another day and thus the revised park general plan eliminated, at least in the short term, the existing ignored prohibition on off-leash dogs as well as all specific dog use policies. Evidence in the administrative record, including extensive public comments, showed that existing dog use was a problem, and had the potential to increase over time. Eventually, the park plan went to the City Council, which approved the negative declaration (“ND”) and approved the park plan amendment.

Dogophobes filed suit, challenging the ND and the park general plan. Although disciplined by the trial court, the challengers on appeal were eventually patted on the head (Good dog!). Their first legal challenge was to the Environmental Setting of the Initial Study, based on an argument that the IS was required to describe the extent to which the existing degraded physical conditions were due to Spot. The appellate court rejected this argument, reiterating that the initial study was only required to contain a brief discussion of the environmental setting and was sufficient as drafted.

Shifting next to the impact analysis, the appellate court agreed with the opponents that the City failed to promote informed decision-making regarding the potential effects of revisions to the dog leash policy. While unleashed dogs were part of the existing environmental baseline, there was significant public negative comment concerning unleashed dogs. The City’s IS understated the debate over the dog issue, and the potential for increased dog use given the elimination of the existing guideline requiring dogs to be on leashes. Though the City begged for the court to throw it a bone, the court said, “The fact that the City disregarded or failed to enforce the original leash guideline in the past does not change the scope of CEQA review in the present since the City is supposed to take its ongoing management direction from the [park] general plan.” Since the pre-existing general plan said dogs should be on leashes, the fact that the rule wasn’t enforced by the City did not excuse the City’s failure to address the environmental issues resulting from removing the dog policy from the plan altogether. The court said, “…the elimination of the leash requirement in the primary management document not only permitted continued off-leash dog use at existing levels of impact in the areas accessible to dogs but also left the door open to continuing increases in such off-leash dog use.” Thus, deferring resolution of the dog issue to a later point in time did not, in this case, solve the CEQA challenge.

Turning finally to the ND, the appellate court agreed with the City that the administrative record lacked substantial evidence of a “fair argument”, which would otherwise mandate preparation of an EIR. In this case, Spot’s existing errant behavior was part of the (degraded) environmental baseline. The court could not find that the proposed policies would measurably alter existing physical conditions in an adverse manner, and in fact would likely environmentally improve existing activities. However, the previously mentioned error in the IS was sufficient for the appellate court to direct setting aside of the ND. Bad dog!

William W. Abbott is a partner and Janell Bogue is a law clerk 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.