By William W. Abbott
The shelf life of mitigation measures may readily outlast the lives of the projects to which they are attached, according to the First Appellate District. While the fact pattern is specific to timber harvesting and later conversion, the holding has application in the broader world of all CEQA practice.
The facts of Katzeff v. California Department of Forestry and Fire Protection (2010) 181 Cal.App.4th 601, cover a 20 year time frame. In 1988, California Department of Forestry and Fire Protection (CDF) approved a timber harvest plan (THP) on property owned by Kuljian’s predecessor. The adjacent owner objected, and in response, CDF imposed a condition prohibiting tree removal within 200 feet of the neighbor’s home as a protective measure to avoid wind related damage. Ten years later, CDF approved another THP in the same location, and added the no-harvesting condition once again. Powers, the owner, sold the property to Kuljian, and as part of the purchase agreement, Kuljian agreed to seek a conversion exemption, allowing Powers to harvest the timber. As part of the conversion, Kuljian indicated a desire to convert the timberland to orchard. CDF approved the conversion, the effect of which was to extinguish the previously imposed 200’ no-harvesting mitigation measure.
Katzeff sued, alleging three causes of action: first, the exemption violated the Forest Practices Act and CEQA by effectively eliminating the mitigation measure; two, the conversion was inappropriate as Kuljian did not have a bonafide intent to develop an orchard, and three, a claim of private nuisance. CDF brought a motion for judgment on the pleadings and dismissed the action in its entirety, and Katzeff appealed.
Judicial review of a judgment on the pleadings invokes a more limited judicial inquiry than a trial. The court assumes that all material facts are true as pled, and examines whether or not a cause of action exists, given those facts. As to the first cause of action, CDF argued that as both timber harvest plans had expired, any mitigation measures linked to those plans also expired. As Kuljian’s request for conversion was a ministerial approval, CDF argued it had no duty to carry forward the previously imposed mitigation measure. On these facts, the appellate court characterized the conversion request as part of a larger project, and based upon the decision in Orinda Association v. Board of Supervisors (1986) 182 Cal.App.3d 1145, concluded that CDF could not segment the project and free itself from consideration of previously imposed mitigation measures. The court recognized that mitigation measures are not frozen in time forever, but once imposed, the agency must state the basis, supported by substantial evidence, when canceling or nullifying the measure later on. As there was no evidence that this analysis occurred, the appellate court concluded that dismissal of the first cause of action was in error and reversed.
As to the second cause of action, there was evidence in the record that the Kuljian did not have bonafide intent to develop an orchard. As there was a factual dispute in the record on bonafide intent, it was incumbent upon the agency to make a determination to that effect. As the record was silent on this issue, dismissal of the cause of action again was inappropriate.
The third cause of action was based in nuisance. While timber operations conducted pursuant to the FPA enjoy statutory immunity from nuisance claims, there were sufficient allegations of non compliance with the FPA that the trial court’s dismissal, based upon a motion for judgment on the pleadings, was premature. Once again, the appellate court reversed the trial court. Whether or not Katzeff can prevail on any of his three theories remains to be seen.
The CEQA aspect of this decision has broader implications then just THPs. Some permits are granted for fixed term. This case directs cities and counties to at least examine the appropriateness of those mitigation measures when acting on a subsequent permit for an unrelated use, in the same location. More intriguing, and perhaps more problematic, are circumstances in which a site may be subject to a new, significantly different re-use proposal. Typically, those applications are subject to full CEQA review. Is it even relevant to go on archaeological dig for a 25 or 30 year old CEQA document for a different use? If the current project is a new endeavor, then the lead agency should be able to proceed free of the argument that the new application is part of another project and the earlier CEQA history should be irrelevant. CEQA mitigation history will continue to be relevant on tiered environmental documents (e.g. general plan to rezoning to tract map) and this case, which involving THPs, serves as a reminder to lead agencies of the need to carry those requirements forward to current permit applications.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.