By Katherine J. Hart
In the most recent fee mitigation case, Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156, the Third District Appellate Court held that a county was required to prepare a tiered EIR before adopting its oak woodland management plan and mitigation fee program.
In 2004, the El Dorado County (County) Board of Supervisors successfully adopted a general plan. With that plan, the County adopted a programmatic environmental impact report (Program EIR). The Program EIR indicated that the development contemplated under the County’s new general plan would have significant and unavoidable impacts on the County’s oak woodland habitat and wildlife. As mitigation, the 2004 general plan identified two policies to assist in mitigating the impacts to oak woodland habitat. The first policy contained Option A, which required that all projects impacting 10 acres or more of oak woodlands to replace lost habitat onsite at a one to one ratio. The second policy contained Option B, which required the development and implementation of an integrated natural resources management plan on or before 2009. The purpose of Option B was to provide an alternative to the 1:1 onsite mitigation required under Option A, and would allow developers to pay a conservation fee to mitigate impacts to oak woodland habitat.
The County adopted an oak woodland management plan (a portion of the integrated management plan) and Option B fee program in 2008 based on a negative declaration. The County tiered the negative declaration off its 2004 Program EIR, finding that there would be no significant environmental impacts that had not been previously analyzed in the 2004 Program EIR and that the oak woodland management plan was consistent with the County’s 2004 general plan.
Petitioner, Center for Sierra Nevada Conservation, filed a writ of mandate challenging the Board’s approval of the oak woodland management plan and mitigation fee as a violation of CEQA and the County’s 2004 general plan. The trial court denied the petition and the Center appealed.
The Third District Court of Appeal considered whether CEQA required an EIR to be prepared before the County adopted its oak woodland management plan and corresponding Option B mitigation fee program.
In reversing the trial court and granting the petition, the appellate court held that a tiered EIR was required because the 2004 Program EIR did not adequately study the potential impacts of the oak woodland management plan and fee program. Specifically, the court held that “the 2004 program EIR did not assess how any mitigation measures other than Option A could lessen the impacts of development on the County’s oak woodlands.” (Id. at p. 1175.) The court noted that “[a]lthough the 2004 program EIR called for an Option B to be developed, it provided no guidance as to the fee rate or use to be made of the fees collected.” (Id.)
The court also noted that it appears that in conceiving its oak woodlands plan, the County arbitrarily selected certain oak woodlands for protection and excluded others. For instance, the management plan focused on valley oak woodlands (3,400 acres), but not woodlands comprised of value of blue oaks (42,000 acres) or interior live oaks. However, the 2004 Program EIR did not differentiate between oak species; it merely stated that all oak woodland habitats in El Dorado County are important. Thus, adopting the oak woodland plan focusing only on valley oaks had the effect of excluding a majority of oak woodlands in the County from the mitigation measures to be funded by the Option B fee. As such, the appellate court concluded that “such discretionary action required an EIR to inform the County for the environmental consequences before it adopted the oak woodland management plan.” (Id. at p. 1177.)
Second the appellate court found the 2004 Program EIR never determined which measurement metric for the conservation of oak woodlands should be used. Would the woodlands be measured by tree canopy cover or by total area (including the space between the canopies)? The County’s selection of the canopy measurement method (identified in its initial study) would undoubtedly result in a significant difference in the amount of habitat to be preserved depending on whether the woodland being measured was open savannah or dense forest. Furthermore, the methodology would impact the amount of the fee to be paid under Option B to mitigate the loss of the oaks on their properties. In sum, the court said the measurement methodology should have been reviewed by an EIR.
Third, the appellate court discussed the Option B fee rate and usage for conservation purposes. It noted that the 2004 Program EIR never set a fee rate or ascertained the type of parcel that would be required to pay the fee prior to development. Moreover, the record reflected different scenarios for the use of Option B funds (e.g., easement acquisition, fee/easement mix, and purchase of fee title to oak woodlands for preservation), the impacts of which were never studied in the Program EIR. Additionally, while the 2004 Program EIR highlighted the importance of connectivity among preserved oak woodlands, the County deferred the issue until the other components of the integrated plan were developed. Therefore, in acknowledging that Option B funds would not be spent on connectivity corridors (e.g., Highway 50 corridor), the oak woodland management plan was inconsistent with the 2004 Program EIR and its emphasis on protecting connectivity of habitat.
Fourth, the appellate court addressed whether the County could defer environmental review of the oak woodlands management plan until such time as the entire integrated management plan is adopted. As expected the appellate court held that environment review must precede project approval. “The County’s approval of the oak woodland management plan had the effect of allowing developers to pay a mitigation fee instead of preserving a substantial population of trees onsite.”
Finally, the appellate court held that the County’s adoption of the negative declaration violated CEQA because evidence in the record supported a fair argument that significant effects will occur due to the oak woodland management plan and fee program. The 2004 Program EIR concluded that even with mitigation measures (e.g., Options A and B), impacts on oak woodlands would be significant and unavoidable. The County argued that precisely because the 2004 Program EIR contemplated impacts to oak woodlands as significant and unavoidable, the adoption of the oak woodland management plan would have no greater adverse environmental impact, and thus, no EIR was required to be prepared. In what was no doubt a déjà vu moment, the appellate court recounted its holding in Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 354 – mainly, that CEQA calls for an evaluation of a project’s impacts on the environment based on existing physical conditions, not on an existing general plan. Because the 2004 Program EIR did not discuss details of the Option B mitigation fee program (e.g., the fee rates, collection, usage, etc.), the court held that CEQA required the County to prepare a tiered EIR for its oak woodland management plan that includes a fee program prior to adoption of the plan.
Katherine J. Hart is an attorney 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, or 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.