The following is an overview of CEQA court decisions issued in 2008 along with links to more detailed analyses of each decision prepared by the attorneys at Abbott & Kindermann, LLP.
Is it a Project?
Save Tara v. City of West Hollywood(2008) 45 Cal.4th 116 – The City of West Hollywood entered into an agreement with Laurel Place, a non-profit corporation, for the development of low-income senior housing. The agreement provided that upon satisfaction of the conditions of the agreement, the City would convey the property to Laurel Place and provide it with a loan, and Laurel Place would construct the housing units. One of the conditions precedent was that, “all applicable requirements of CEQA… [would be] satisfied, as reasonably determined by the city manager.” Save Tara, a neighborhood group, filed a lawsuit alleging that the City violated CEQA by failing to prepare an EIR prior to approving the agreement. The Supreme Court found that the simple insertion of a subsequent CEQA compliance condition into an agreement which, viewed in light of all surrounding circumstances otherwise commits a public agency to a project, will not save the agreement from being considered a project approval, thereby triggering CEQA review in the first instance. See For CEQA, Project Commitment Is Still A Question Of Fact.
Sunset Skyranch Association v. County of Sacramento (3rd Dist. 2008) 164 Cal.App.4th 671 Without first completing an EIR, the County of Sacramento denied Sunset Skyranch Airport’s (“Airport”) request for a renewal of its Conditional Use Permit (“CUP”). The Airport appealed arguing that the State Aeronautics Act preempted the County’s denial of a CUP, and that the County was required to perform environmental review of the project under CEQA. The appellate court found that the County was not preempted from denying the CUP. However, the appellate court did find that the act of denying the CUP and the inevitable closing of the airport had the potential to change the physical environment and thus was subject to CEQA review. See Court Holds that County Has Power to Deny Conditional Use Permit Renewal, but CEQA Applies.
Committee to Save the Hollywoodland Specific Plan and Hollywood Heritage v. City of Los Angeles (2d Dist. 2008) 161 Cal.App.4th 1464 – In a dispute over a fence built by a neighbor atop one of the historic retaining walls in what has been titled “Hollywoodland,” the appellate court addressed whether there was substantial evidence to support the City’s decision to create an exception to the prohibition of fences, and whether the building of the fence fell under the categorical exemption exempting minor alterations to land from environmental review. First, the court held that the City’s decision to create an exception was supported by substantial evidence because there was not enough room to build a fence elsewhere and the condition of the property without a fence was dangerous. Second, the court held that the fence may cause significant environmental impacts and therefore the categorical exemption did not apply. See Good Fences Make Good Neighbors but Bad Fences Make Appellate Opinions.
Valley Advocates v. City of Fresno (5th Dist. 2008) 160 Cal.App.4th 94 (opinion modified 2008 Cal.App.Lexis 367) – This case concerned the demolition of two apartment buildings that some argued should be considered historic resources, and thus demolition should not be permitted. After determining that the apartments should not be listed in the historic local register, the City filed a Notice of Exemption for the demolition of the apartments without independently determining if the apartments would be considered historic resources under CEQA. The court held that the City’s determination that the apartments should not be listed in the local register was not dispositive of whether the apartments were historic resources under CEQA. Therefore, the City had to engage in an analysis under CEQA as to whether the apartments were historic resources before finding that the project was exempt. See What You Consider Ancient History Might Require a Fresh Look Under CEQA.
Negative Declaration/Mitigated Negative Declaration
Citizens for Responsible and Open Government v. City of Grand Terrace (4th Dist. 2008) 160 Cal.App.4th 1323 – Here, the City adopted a MND for a project proposing to build 120 senior housing units, a four acre park and an expansion of a pre-existing senior center. In applying the fair argument test, the court held that an EIR was required for the project because the density of the project, at 60 units per acre, exceeded the allowed amount under the general plan; the three-story residences may have a significant impact on the aesthetic environment; and the air conditioners for the residential buildings may lead to a significant noise impact. Therefore, the MND was inadequate. See Court of Appeal Applies Fair Argument Test in Appeal of Senior Housing Project.
EIR and Functionally Equivalent Documents
Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Protection (2008) 43 Cal.4th 936 – In this review of a Timber Harvest Plan, which qualifies as the functional equivalent of an EIR, the Supreme Court addressed arguments relating to the cumulative impacts of the project and the analysis of foreseeable actions. The Court upheld that cumulative impacts analysis on the grounds that the THP contained ample discussion of the cumulative impacts of the project, even if the THP failed to follow the technical addendum specified in the statute. The Court also upheld the analysis of herbicides as a potential foreseeable action because the THP fully disclosed the possibility of using herbicides and the potential effects thereof. See California Supreme Court Upholds THPs; Discusses Cumulative Impacts and Foreseeable Actions.
Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523 – The appellate court upheld a combined supplemental EIR and EIR for a large mixed use development consisting of 3,000 residential units, commercial development, open space, and institutional development. In its opinion, the court covered a wide range of CEQA issues, including timely filing of a lawsuit after a notice of determination, exhaustion of administrative remedies, project baselines and alternatives. The court held that the petitioners had not exhausted their administrative remedies on the issue of breaking up the impacts because the citations referenced in petitioner’s brief were general allegations and not specific enough to alert the City to the alleged inadequacy. Additionally, the court held that the baseline and alternatives analyses were adequate because the traffic and water quality baselines were fully discussed and not all alternatives must have substantial environmental advantages. See Appellate Court Reviews CEQA Compliance for Supplemental Environmental Impacts.
Gray v. County of Madera (5th Dist. 2008) 167 Cal.App.4th 1099 – Here, the appellate court evaluated an EIR for an aggregate mining development. In spite of finding the majority of the EIR adequate, the court invalidated the EIR based on improper deferral of mitigation measures relating to water supply and traffic and inadequate analyses of noise and cumulative impacts. The court also provided a seemingly new definition for probable future projects: “any future project where the applicant has devoted significant time and financial resources to prepare for any regulatory review should be considered as probable future projects for the purposes of cumulative impact.” See Court Discusses Improper Deferral of CEQA Mitigation and Provides Definition of Probable Future Projects.
In Re Bay Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143 – In 2000, CALFED, a consortium of federal and state water agencies, certified a programmatic EIR/EIS for a 30-year Delta water management strategy. This year, the Supreme Court reviewed an Appellate court ruling that the EIR/EIS was inadequate for failure to: 1) evaluate an alternative that provided for reduced water exports; 2) identify future potential sources of water; and 3) provide detail on the California Water Account. The Supreme Court affirmed the adequacy of the programmatic EIR/EIS, finding: 1) the CALFED was not required to analyze an alternative that did not meet the four stated project objectives; 2) CEQA does not require a first-tier program EIR to identify with certainty particular sources of water for second-tier projects; and 3) CEQA does not require more detailed information about the Environmental Water Account in a first-tier EIR. See California Supreme Court affirms the legal adequacy of the CALFED EIR; provides guidance on evaluation of alternatives and level of detail for first tier EIRs.
California Water Impact Network v. Newhall County Water District (2nd Dist. 2008) 161 Cal.App.4th 1464 – In response to an earlier court decision invalidating the project’s EIR based on its water supply analysis (“WSA”), the City of Santa Clarita prepared an updated EIR in conformance with the appellate court decision. After the Newhall County Water District (“District”) approved an updated WSA, but before the City Council certified the EIR, the California Water Impact Network (“CWIN”) sued the District to set aside the WSA. The trial court dismissed the petition. The appellate court affirmed the dismissal, finding that the District’s approval of the WSA was not a reviewable decision and the CWIN had failed to exhaust its administrative remedies. See District’s Water Supply Assessment is Not Subject to Third Party Lawsuit Except in a Legal Challenge to the EIR.
Moss v. County of Humboldt (1st Dist. 2008) 162 Cal.App.4th 1041 – The court held that a project previously studied under CEQA need not undergo supplemental CEQA review upon reapplication of the same project unless new information (supported by substantial evidence in the record) indicates there will be potential environmental impacts. Here, environmental review had occurred on a previous tentative map that had expired, and the City claimed that because the map had expired, it was a new project under CEQA. The court disagreed and held that the City had to apply the “new information” standard under the statute on supplemental review, not the standard applied to new projects. See Re-Approval of Expired Entitlements Can Track Prior CEQA Documentation, Subject to the Substantial Change Doctrine.
St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael (1st Dist. 2008) 160 Cal.App.4th 1426 – The court held a respondent can recover costs for the preparation of the record even if the petitioner elects, under Public Resources Code section 21167.6, subdivision (b)(1) to prepare the record him or herself. The court found that a prevailing party that did not prepare the record may be awarded reasonable costs associated with the preparation of the record when it is necessary to preserve the statutory purposes of cost containment and expediting CEQA litigation. Since the petitioner did not take reasonable steps to contain costs, the court awarded costs to the City. See Be Careful What You Ask For: The Costs Might be More Than You Can Bear.
SB 375 (Chapter 728) – This bill 1) requires the Air Resources Board to provide each region with greenhouse gas emission reduction targets for the automobile and light truck sector; 2) requires a regional transportation plan to include a Sustainable Communities Strategy designed to achieve the targets for greenhouse gas emission reduction; 3) requires the California Transportation Commission to maintain guidelines for travel demand models; 4) requires cities and counties, in general, to revise their housing elements every eight years in conjunction with the regional transportation plan and complete any necessary rezonings within a specific time period; and 5) relaxes CEQA requirements for housing developments that are consistent with a Sustainable Communities Strategy. See SB 375: A Subtle Shift in the State-Local Long Range Planning Paradigm.
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.