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.
In Save Tara v. City of West Hollywood (February 21, 2007) 147 Cal.App.4th 1091, the Second Appellate District ruled that early negotiations between a developer and a city improperly preceded environmental review. The facts involved a colonial style home built in 1914-1915. Over time, the 7,000+ square foot home, along with its chauffeur’s house, had been converted into five apartments. In 1994, the city designated the home as a “Local Cultural Resource”. The property had been donated to the City of West Hollywood (“City”) by its long time owner. The property was noteworthy as an oasis of lower density and lush vegetation in an area of relatively higher density development. The City entered into an option agreement in June, 2003. Chronologically, this was followed in the same month by a 700 page application to HUD for financial assistance. The HUD application contained a number of city authored documents pertaining to the site and its contemplated redevelopment. The HUD application contained detailed development plans. After HUD funding in the fall, the City scheduled follow-up actions pertaining to an extension on the original agreement, and related implementing actions and commitments, some conditioned upon CEQA compliance. At the city council proceeding, speakers appeared in support and opposition. Opponents raised issues of CEQA compliance. The May 2004 council-approved agreement was 39 single spaced pages, and contained detailed information regarding the proposed development. The various May approvals were described by the City Attorney as conceptual only. Opponents filed suit. An August 2004 revised agreement expressly acknowledged that CEQA could not be waived by the City (a waiver found in the earlier agreement). An EIR was launched in October 2004, and certified by the planning commission in August 2006. After review, the trial court concluded that the City had not violated CEQA as it had not entered into a binding agreement.
The appellate court reversed. Acknowledging that the timing of meaningful CEQA review was not always crystal clear, the appellate court concluded that as of the time of the HUD application that sufficient information existed which would have permitted meaningful CEQA review. The City was ordered to engage in EIR review, based upon the project as described in the HUD application, without reference to the May and August 2004 agreements.
In response to an intriguing set of facts involving Native American acquisition of land from a park district, the Fifth Appellate District reached the opposition conclusion: CEQA review was not required inasmuch as there was no discussion of future development for the acquired real estate interest, although such a possibility seemed logical. The facts of Friends of the Sierra Railroad v. Tuolumne Park and Recreation District (February 8, 2007) 147 Cal.App.4th 643, centered around the sale of property by the Tuolumne Park and Recreation District (“District”) to the Tuolumne Band of Me-Wuk Indians (“Band”), completed without any CEQA review. The property in question consisted of historic railroad right-of-way. The Band owned the underlying larger parcel burden by a portion of the historic right-of-way. While the Band had expressed interest in developing its property (and the merger of the easement with the underlying property would facilitate that effort), no plans had ever been prepared. Happy to dispose of the property, the District performed no environmental review. The Friends of the Sierra Railroad, supporters of the preservation of the historic railroad (one terminus is located in the Jamestown State Park) and its right-of-way, filed suit seeking to set aside the transfer on CEQA grounds. The trial court rejected the need for CEQA compliance on the basis that it would require “sheer speculation” as to the potential development as none had been proposed.
The appellate court, acknowledging that CEQA is to be interpreted in favor of public disclosure and early CEQA review, held that the general rule did not apply here in the absence of some announced development plan. Absent that information, meaningful CEQA review was not yet possible. As the Band’s only public announcement was the continued use of the right-of-way for trail and/or rail use, there was no foreseeable physical change. The court went on to hold that the Band had no obligation to disclose its plans (although the District could have insisted upon that disclosure as part of its real estate transfer negotiations). Further, the fact that the Band could eventually transfer its real estate into tribal status, thereby completely exempting itself from CEQA review, did not change the District’s legal obligation under CEQA at the time of property transfer.
Sometimes, the less you know, the better off you are. It appears that the same may hold true in some CEQA settings.
The remedy is somewhat curious as the City had, in the intervening period, certified an EIR for which there had been no legal challenge filed.
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.