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.
San Bernardino Associated Governments v. Superior Court (2005) 2006 Cal.App.Lexis 59, tackles the issue of CEQA compliance for initiative measures. Readers will remember that the California Supreme Court held in Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, that local ballot measures generated by a city (as compared to the public at large) must first comply with CEQA. The San Bernardino case deals with a variant on that fact pattern, involving the decision of a County, as part of a regional transportation body (“SANBAG”) and state enabling legislation, placing a transportation sales tax measure on the ballot. By state law, the sales tax measure requires a two-thirds vote. The appellate court held that in placing the measure on the ballot, the County was not exercising discretion because the Board of Supervisors did not generate the measure (it was instead initiated by SANBAG). Consequently, the initiative measure was exempt from CEQA.
Interior Modifications to a Single Family Residential Structure
Francis Martin owns one of San Francisco’s oldest homes, built in 1853. In 1893, the interior was designed by Willis Polk, later to be a famous architect. The City designated the home as a City landmark. Martin submitted plans to modify the interior and exterior of the house, but due to the interior modifications, the City maintained that the changes were not exempt from CEQA because of the home’s to historical significance. The interior changes were not visible from any public location. The City’s position was that issuance of a building permit in San Francisco was a discretionary act, thereby triggering potential CEQA application. Additionally, it was undisputed that the house was located in a historic district. The appellate court disagreed with the idea however, that unobservable modifications to the interior of a house could trigger potential impacts on the physical environment, and ruled for Martin on the specific issue of whether or not CEQA complied. The appellate decision did not limit the City’s ability to insist on code compliance as it related to the actual improvements.
Francis Martin III v. City and County of San Francisco (2005) 135 Cal.App.4th 392.
In 1972, the San Diego Redevelopment Agency adopted a redevelopment plan. That was followed by a 1992 EIR for a plan amendment and a 1999 EIR addressing a subsequent amendment. Finally, the agency approved a thirty story hotel project in 2002. This approval was based upon a new initial study which documented that the project impacts were within the scope of the prior CEQA documents and no new EIR was prepared. A citizen’s group filed suit, arguing that a project specific environmental document was required because the lead agency could not rely upon the prior programmatic level environmental review. However, redevelopment agencies rely upon Public Resources Code section 21090, which as a general rule, treats a redevelopment plan EIR as the EIR for all projects implementing that redevelopment plan. While there is an express limitation on section 21090 based upon whether a subsequent EIR is required as a result of Public Resources Code section 21166, the court applies the substantial evidence to review the lead agency’s decision not to prepare a subsequent EIR. In this case, the prior environmental document described and studied a fairly large envelope in terms of a project and potential impacts. The lead agency was able to cite to this evidence to establish that the specific hotel project was within prior the environmental analysis. By doing so, the lead agency materially lessened the risk of preparing later EIRs.
While this case involves the specific rules for redevelopment agencies, the reasoning supports a similar approach for other programmatic documents. What’s the moral of the story? When preparing programmatic documents, think big!
Citizens for Responsible Equitable Environmental Development v. City of San Diego Redevelopment Agency (2005) 134 Cal.App.4th 598.
William W. 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.