By William W. Abbott

The Court of Appeal, Fourth Appellate District, in a very fact-rich decision, addressed three common areas of California Environmental Quality Act (“CEQA”) litigation: water supply analysis/assessment; agricultural lands mitigation; and statements of overriding considerations. In Cherry Valley Pass Acres and Neighbors v. City of Beaumont  (Nov. 22, 2010, No. E049651) ____ Cal.App.4th ____, the facts involve a proposed specific plan considered by the City of Beaumont. Project opponents filed a CEQA challenge, and the trial court ruled for the City and the applicant. The core of the specific plan included property (“Sunny-Cal”) which had been an active egg production facility from the 1960’s to 2005. After that date, the declining economics of the egg industry resulted in the egg farm closing and the intensity of the agricultural operations declined. The Beaumont environs is a rapidly urbanizing area, and has been for a number of years, the result of which is that historic agricultural activities continue to be subject to constant pressure.

Beaumont and the surrounding area sits over a groundwater basin known as the Beaumont basin. In 2004, as a result of litigation to adjudicate groundwater rights, the litigation involving a number of affected agencies and landowners resulted in a determination that the safe yield for the basin was 8650 acre feet per annum (“afa”), with 1784 afa allocated to Sunny-Cal. This number was based upon historic groundwater pumping by the egg farm. The water supply assessment for the specific plan recognized Sunny-Cal’s rights (the 1784 afa allocation) as part of the baseline, as compared to the amount of water used on site in its post egg farm agricultural activities (estimated at 50 afa). Although the decision also discusses other water supply planning efforts then pending by affected water agencies, the key legal question for the Fourth District was whether the most recent use (50 afa) was the appropriate baseline, or the adjudicated amount? CEQA generally directs lead agencies to use existing physical conditions when preparing CEQA documents, but as the court recognized, Guidelines section 15125 leave room for the lead agency to utilize an alternative baseline, which the appellate court determined was appropriate in light of the adjudication. Notably, in upholding the lead agency’s decision, the court ruled that appropriate judicial review was the more deferential substantial evidence test, given that the agency had the discretion to choose, and that it was not purely a question of law. Thus, although there may have been other evidence regarding groundwater issues in the basin, there was an adequate basis to support the recognition of Sunny-Cal’s rights.

The lead agency had also concluded that mitigation of the loss of agricultural lands was not feasible, a notable issue of continuing debate in courts throughout California. The EIR recognized the long term trend in agricultural land conversion and concluded that mitigation was not feasible. While the evidence in support of this conclusion is not detailed in the appellate decision, the court recites that the evidence in the record supported the conclusion that the historic and expected trends would eventually result in decreased agricultural land if for no other reason than the farmers selling their land for urban development. The appellate court cited to the decision in Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261 for a similar proposition regarding negative farm economics. The lesson to be learned here is obvious: whether it’s agricultural land or other resources, the lead agency and/or the real party in interest needs to develop an appropriate level of evidentiary support if it desires to support a determination that a mitigation measure is infeasible.

Finally, with respect the statement of overriding considerations, the lead agency had identified eight separate benefits to justify approval of the project, notwithstanding the significant unmitigated impacts. Tactically, the City’s findings took the approach that each of the eight reasons independently supported project approval, thus forcing the opponents into overturning all eight benefits, a significant undertaking. These benefits in many cases were broadly stated, and although the opponents argued that some of benefits were nothing more than stated characteristics of the project, the appellate court correctly stated that it could not substitute its judgment for that of the city council.

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.