By Cori M. Badgley, William W. Abbott, Katherine J. Hart and Leslie Z. Walker
In the third quarter of 2011, the California Supreme Court issued two CEQA opinions and the California Appellate Courts issued 12 CEQA opinions. Many of the cases deal with procedural issues such as when the violation of a notice requirement is prejudicial (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949); the appropriateness of an interlocutory remedy in administrative mandamus (Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499); and the prevailing party’s recovery of attorneys fees for administrative time under Code of Civil Procedure section 1021.5 (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312). The most notable opinion issued in the third quarter was the Supreme Court’s reversal of the appellate court in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. Not only did the Supreme Court determine that an EIR was not required for an ordinance banning plastic bags, but it also overturned prior precedent requiring corporations to make a heightened showing to demonstrate public interest standing.
The following summaries of cases include all the cases issued in 2011. The cases issued in the third quarter are referenced by a double asterisk (**).
IS IT A PROJECT?
Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150: A city and its redevelopment agency entered into a “term sheet” for the development of a professional football stadium project. While the term sheet expressly bound the parties to continue negotiating in good faith, it did not commit the public agencies to a definite course of action with respect to the development of the stadium or effectively rule out any mitigation measure or alternative. Thus, under Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the public agencies did not “approve” the project for purposes of CEQA. See A Very Detailed Agreement In The Process of Negotiating A Development Project May Not Constitute an Approval for CEQA Environmental Review Purposes.
**Hillside Memorial Park and Mortuary v. Golden State Water Company(2011) 199 Cal.App.4th 658: This case involved amendment of a prior 1961 judgment imposing a "physical solution" on the West Coast Groundwater Basin. The trial court ruled that prior to amending the judgment, the "physical solution" proposed in the amendment must undergo CEQA. The appellate court held, where there is an existing court judgment in place, CEQA compliance is not required prior to going forward with a motion to amend the judgment because the amendment is not a discretionary project.
Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329: Development standards waived under density bonus laws were not applicable to a density bonus project because Government Code section 65915 requires a local agency grant waivers or reductions of development standards that “will have the effect of physically precluding the construction of a development meeting the criteria” of the density bonus statute, and the City’s code requires the City to grant density bonuses upon a proper application. Further, the project was not required to comply with the CEQA Guidelines section 15332 requirement that the project be consistent with the applicable general plan designations and policies and all applicable zoning designations and regulations…” in order for the infill exemption to apply. See The Normal Rules Don’t Apply When it Comes to Affordable Housing Projects.
**Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173: A lead agency’s preparation of an EIR does not constitute a waiver or prohibit the lead agency from asserting that the project is exempt from CEQA. In this case, the appellate court held that as pled in the complaint, the CEQA exemption found in Public Resources code section 21080.13 relating to grade separation projects that eliminate railway crossings applied, and petitioner could not challenge the project on CEQA grounds.
THRESHOLDS OF SIGNIFICANCE
Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884: The city’s significance threshold to evaluate seismic impacts did not violate CEQA for two reasons: (1) there is no requirement that a significance threshold be formally adopted; and (2) the significance threshold used substantially conformed to the significance threshold for service impacts in Appendix G of the CEQA Guidelines. See Building Code Compliance Mitigation for Seismic Impacts Upheld.
**Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949: The appellate court reminded lead agencies of the importance of following CEQA’s mandatory notice requirements, but found that a lack of notice to state agencies was not prejudicial. See Not Every CEQA Notice Defect is Prejudicial; Not Every CEQA Violation Compels Setting Aside the Approval.
ADDENDUMS/EXHAUSTION OF ADMINISTRATIVE REMEDIES
Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515: Challenge to the adoption of an addendum to an EIR prepared in 1994 was improper where petitioner failed to demonstrate that the city’s decision to approve the addendum over a supplemental EIR was not supported by substantial evidence, and where petitioner failed to exhaust its administrative remedies on the issues of drought and climate change. The court held that the letters submitted to the city clerk on the date of the CEQA hearings contained only general, unelaborated objections, which were insufficient to satisfy the exhaustion doctrine. It also held that petitioners’ last minute document dump of 4,000 documents placed on a compact disc did not fairly present issues to the city. See Petitioners Be Forewarned: Massive Document “Dumps” May Not Suffice to Exhaust Administrative Remedies; Water Supply Assessments May Be Approved Via Certification of an EIR.
CEQA EQUIVALENT PROGRAMS
**Ross v. California Coastal Commission (September 9, 2011, B225796) __ Cal.App.4th __: Many CEQA requirements for preparation of CEQA documents do not apply to the Coastal Commission when it is acting as a responsible agency and when it is acting in a manner consistent with its certified regulatory program. The court found that the Coastal Commission’s 13-day notice and distribution of the staff recommendation was reasonable under the commission’s certified regulatory program. See Coastal Commission Properly Resolved Conflicting City Development Standards; Negative Declaration Was Upheld.
MITIGATED NEGATIVE DECLARATION/NEGATIVE DECLARATION
**Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155: The Supreme Court urged the use of common sense at all stages in the CEQA process and held that an EIR was not required to adopt a plastic bag ordinance. See California Supreme Court Rejects Need for EIR and Supports Use of Common Sense.
**Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327: The appellate court found substantial evidence of a fair argument that the development of a Target store would have a significant environmental impact by disturbing contaminated soil, but rejected challenges based on air pollution and greenhouse gas impacts. On the issue of air quality, the court found there was no substantial evidence of a fair argument that the project would have a significant impact by exposing sensitive receptors to increased air pollution and the increases were below the screening level criteria in the Air Quality Assessment. Therefore, no substantial evidence of a fair argument existed that the project would cause a significant and unavoidable cumulative contribution to air quality. On the issue of greenhouse gas impacts, the court found that the city properly exercised its discretion to use AB 32 compliance as the threshold and the Air Quality Assessment was adequate because it would reduce the project’s emissions by 29 percent. The court also found the city had the discretion not to adopt the threshold set by San Diego County’s On-Road Transportation Report. SeeImplicit Approval of Using AB 32 Reduction Goals to Establish GHG Thresholds.
**South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604: An EIR is not necessary to analyze impacts of existing conditions on the project. Therefore, the court held that an EIR was not necessary for a mixed use project proposal adjacent to an existing wastewater treatment plant since the expansion of the facility would not have any impact on the environment. See Adjacent Landowners Can’t Use CEQA to Avoid Potential Nuisance Claims.
WATER SUPPLY ASSESSMENT
**Citizens for Responsible Equitable Environmental Development v. City of San Diego(2011) 196 Cal.App.4th 515: The appellate court held that water supply assessments (WSAs) can be approved by a CEQA lead agency that also serves as the water supplier for the project area by including the WSA analysis in the environmental document and certifying that environmental document (i.e., no separate WSA approval is necessary).
**Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48: The appellate court found that a water supply assessment done in conjunction with an EIR “deprived the public of a full disclosure of the uncertainties related to the project’s water supply.” The court did not determine whether the conclusion of the assessment was faulty, only that it failed to provide adequate information to the public.
**Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48: The court affirmed the ruling in Sunnyvale West Neighborhood Association v. City of Sunnyvale (2010) 190 Cal.App.4th 1351 that the lead agency does not have authority to select a future, post-approval date for purposes of baseline.
**Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200: A lead agency can (and must) withhold sensitive information regarding cultural resources from full disclosure through the CEQA process. See Balancing CEQA’s Full Disclosure Requirements with the Protection of Cultural Resources.
**Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48: The appellate court held that a mitigation measure requiring “verification” that a site was a historical resource, where the EIR already concluded that the site was a historical resource, violates CEQA. The court also held that although “preservation in place” is not mandatory, “feasible preservation in place must be adopted to mitigate impacts to historical resources of an archaeological nature unless the lead agency determines that another form of mitigation is available and provides superior mitigation of the impacts.” The EIR should also include the justification for not adopting “preservation in place” as mitigation.
Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538: Where the project did not discharge anything into the groundwater, the city was not required to analyze the project’s contribution to cumulative groundwater impact. See No Discharge, No Cumulative Impact.
**Ross v. California Coastal Commission (September 9, 2011, Case B225796) __ Cal.App.4th __: The lead agency is not required to speculate as to what might occur on other parcels in analyzing cumulative effects.
Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884: Mitigation of seismic effects was not deferred where the EIR discussed the statutes and regulations aimed at increasing seismic safety, proposed compliance with them, and gave adequate assurances that seismic impacts would be mitigated through engineering methods known to be feasible and effective. Substantial evidence supported the City’s determination that these mitigation measures would reduce the seismic impacts to a less-than-significant level.
Chawanakee Unified School District v. County of Madera (2011) 196 Cal.App.4th 1016: This case involved the technical interpretation of the provision in the School Facilities Act limiting the “methods of considering and mitigating impacts on school facilities” to the fees provided in the School Facilities Act. (Gov. Code, § 65996(a).) The court held that the term “considering” means that an EIR is not required to “contain a description and analysis of a development’s impacts on school facilities.” However, the court also held that the phrase “on school facilities” narrowed the application of the statute to direct impacts on school facilities only. Thus, indirect impacts such as increased traffic or construction impacts caused by building a new school must be analyzed in the EIR. See The Devil is in the Details… At Least When it Comes to Interpreting the School Facilities Act.
**Silverado Modjeska Recreation and Park District v. County of Orange (2011) 187 Cal.App.282: Sitings of arroyo toad larvae within approximately 330 feet of the project by a zoologist with the Department of Defense, do not constitute significant new information requiring the recirculation of a supplemental EIR where the prior EIR addressed the possibility of the presence of the toad in the vicinity of the project. The observations thus constituted only an amplification of information found within the FEIR and therefore recirculation was not necessary to permit the public to make intelligent and meaningful comments.
STATUTE OF LIMITATION/NOTICE OF DETERMINATION
**Latinos Unidos de Napa v. City of Napa (2011) 196 Cal.App.4th 1154: The appellate court held that a Notice of Determination (NOD) posted over the course of 31 calendar days was not posted long enough because the NOD must be posted for a period of 30 days, starting the day after the NOD is posted, and must be posted for the entire 30th day. If these requirements are not satisfied, the 180-day statute of limitations applies. See How Long Must a Notice of Determination be Posted?
Santa Monica Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538: A legal challenge to project’s construction impacts on hydrology and water was moot because the construction had been completed. CEQA disputes with respect to other issues were not moot.
Landvalue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675: Public Resources Code section 21168.9 makes the issuance of the writ following an entry of judgment mandatory. If the trial court finds that an element of the CEQA document must be redone, the trial court may not sever one portion of the project from the portion tainted by the invalid CEQA analysis. See CEQA Remedies for CEQA Sins.
**Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155: The Supreme Court overturned the rule that corporations must make a heightened showing to demonstrate public interest standing.
**Ross v. California Coastal Commission (September 9, 2011, Case B225796) __ Cal.App.4th __: A reviewing court should defer to the agency’s interpretation of potentially conflicting regulatory requirements.
**Silverado Modjeska Recreation and Park District v. County of Orange(2011) 187 Cal.App.282: A supplemental EIR prepared in response to a writ compelling its preparation and adjudged adequate by the trial court discharging the writ, may not subsequently be challenged by parties, where both challengers act on the public’s behalf.
**Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949:The appellate court affirmed the authority of the trial court to craft a tailored remedy to correct a CEQA error.
**Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499: The Supreme Court reasoned that Code of Civil Procedure section 1094.5, subdivisions (e) and (f) do not preclude the use of prejudgment limited remand procedures such as the interlocutory remand employed in this case. Specifically, “the statute does not preclude the agency from accepting and considering additional evidence to fill the gap the court has identified.” In so holding, the court specifically disapproved two prior CEQA cases: Resources Defense Fund v. Local Agency Formation Commission (1987) 191 Cal.App.3d 886and Sierra Club v. Contra Costa County (1992)10 Cal.App.4th 1212. See California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions.
**Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312: Code of Civil Procedure section 1021.5 authorizes a prevailing party to recover its attorney fees for administrative time as well as in litigation. Such an award is discretionary with the trial court and will not be reversed on appeal absent an abuse of discretion. See Code of Civil procedure §1021.5 Authorizes a Prevailing Party to Recover its Attorney Fees for Administrative Time As Well As in Litigation.
**Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48: This case involved numerous issues relating to augmenting the administrative record and admission of extra record evidence. The appellate court clarified the difference between the two and provides procedural guidance on when and how further documents are added to the record or admitted as additional evidence.
Association of Irritated Residents, et al. v. California Air Resources Board, et al.,: San Francisco Superior Court enjoined the implementation of the Air Resources Board’s Climate Change Scoping Plan, finding the alternatives analysis and public review process violated both CEQA and the Air Resources Board’s certified regulatory program. The Air Board has appealed the decision, but has also issued a revised Functional Equivalent Document. See AB 32 Scoping Plan Enjoined.
Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515: Information about greenhouse gases was not new information requiring a supplemental EIR because information about greenhouse gas has been available since the late 1970s.
** Santa Clarita Organization for Planning the Environment v. City of Santa Clarita(2011) 197 Cal.App.4th 1042: Petitioner challenged the City of Santa Clarita’s approval of a master plan claiming the city failed to provide substantial evidence or analysis to support its conclusion that the project’s impact on climate change could not be fully mitigated. Specifically, the organization had submitted a list from the Attorney General of potential greenhouse gas mitigation measures without indicating which of the mitigation measures might be appropriate for the project. The court found it was unreasonable to impose on the city an obligation to explore each and every mitigation measure in the Attorney General’s list because Petitioner did not single out any specific suggestions from the numerous potential mitigation measures in the list, and the Petitioner’s letter stated that “the measures cited may not be appropriate for every project.” See Lead Agencies Are Not Always Required to Explain Why Every Proposed Mitigation Measure is Infeasible.
If you have any questions about these court decisions, contact William Abbott, Cori Badgley, Katherine Hart or Leslie Walker at (916) 456-9595. For inquiries on general CEQA practice, you can also contact Diane Kindermann or Elizabeth Strahlstrom. 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.