By William W. Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine J. Hart and Glen Hansen

We are pleased to present our cumulative Third Quarter CEQA Review for 2012. The newest decisions issued in the 3rd quarter are bolded and preceded by asterisks (***).

In terms of new developments, the Supreme Court has taken up the Neighbors for Smart Rail case, meaning that there are now three CEQA cases pending at the California Supreme Court: Neighbors for Smart Rail, Berkeley Hillside Preservationand City of San Diego v. Board of Trustees of the California State University. One common theme in the third quarter cases was judicial deference to the decisions of the lead agency. Particularly noteworthy were decisions which recognized the integration of lead agency CEQA practice with the independent substantive regulations and laws administered by other agencies such as USFWS, CDFG, state agencies and special districts (Rialto, Maywood), as well as rejection of alternatives (Rialto, Maywood).


***Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950. The lead agency correctly applied a Class 3 CEQA exemption to applications for permits to add wireless equipment throughout the City and County of San Francisco. The cumulative impacts exemption is limited to activities in “the same place” not city wide. Completion of the exemption after the permit was issued was not reversible error. See Lead Agency Correctly Applied CEQA Categorical Exemption to Permits for Wireless Equipment to be Added to Existing Utility Poles.

NOTE: The Supreme Court granted review in the following case: Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656: A larger than average house, to be constructed on a Berkeley hillside, met the test for “unusual circumstances,” limiting the use of a CEQA categorical exemption. Based upon disputed testimony of a soils engineer, the Court found that there was substantial evidence of a fair argument, necessitating the preparation of an EIR. See Applying CEQA’s Unusual Circumstances Exception to an Otherwise Exempt Activity Results in an EIR for a Single Family Residence.

Sierra Club v. Napa County Board of Supervisors (2012) 205 Cal.App.4th 162: The processing of sequential boundary line adjustments is categorically exempt from CEQA, as long as a discretionary permit is not concurrently processed. Although the lead agency could exercise some discretion, it was sufficient in character to shape the project, and therefore compliance with CEQA would not be meaningful. See Court Upholds Processing of Sequential Boundary Line Adjustments.


Consolidated Irrigation District v. City of Selma (2012) 204 Cal.App.4th 187: To the extent that a lead agency questions the credibility of a witness in a CEQA proceeding, the agency should identify the “evidence with sufficient particularity to allow the reviewing court to determine whether there were legitimate department issues of credibility.” In the absence of this showing, the lead agency may be precluded from arguing the validity of preferred evidence.


W.M. Barr & Company, Inc. v. South Coast Air Quality Management District(2012) 207 Cal.App.4th 406: Applying the substantial evidence standard, the court upheld a challenge to the use of an environmental assessment (as a de facto negative declaration) for the adoption of new air district rules regulating manufacturer use of ozone forming volatile organic compounds. The Air District’s CEQA review was performed under CEQA’s “functionally equivalent” rules. Substantial evidence supported the District’s determination of no impact, thus no mitigation measures or discussion of alternatives was required.


***Rialto Citizens for Responsible Growth v. City of Rialto(2012) 208 Cal.App.4th 899: The lead agency’s failure to list a development agreement as an approval required as part of project did not preclude “informed decisionmaking concerning the project” and therefore was not a basis for setting aside the EIR certification.


NOTE: The California Supreme Court granted review in the following case: Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 200 Cal.App.4th 1480: The Sixth Appellate District upheld the use of a variable baseline in Neighbors for Smart. The project was a phase II rail line extension, and as to traffic and air quality, the lead agency used a future year scenario as the baseline. On appeal, the Second Appellate District sharply disagreed with the decisions in Sunnyvale West Neighborhood Association v. City of Sunnyvale (2010) 190 Cal.App.4th 1351 and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 to the extent the decisions categorically rejected any use of future baseline scenarios. See A Judicial Throwdown on CEQA’s Baseline Requirements.


Center for Sierra Nevada Conservation v. County of El Dorado(2012) 202 Cal.App.4th 1156: A county’s mitigation fee program required the preparation of an EIR prior to its adoption because the evidence in the record did not support a conclusion that payment of the fee presumptively established full mitigation. See Approval of Oak Woodland Management Plan and Mitigation Fee Program Based on a Negative Declaration is Overturned by Third District Appellate Court.


***Rialto Citizens for Responsible Growth v. City of Rialto(2012) 208 Cal.App.4th 899: Species mitigation measures which call for coordination with USFWS through the Section 10a process was a valid approach for mitigating species impacts. Likewise, a mitigation measure for CNPS listed species considered “rare, threatened, or endangered,” which called for further field assessment and set standards and strategies for mitigation including a monitored success ratio, was acceptable mitigation.  Finally, with respect to burrowing owls, pre-grading burrow surveys (with protocols already approved by USFWS and CDFG), and a requirement to generally follow the Western Riverside Multiple Species Habitat Conservation Plan, was sufficient.


Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296: Appellants challenged the City’s analysis of project impacts on agriculture arguing that the city failed to disclose the cumulative impacts to agriculture, and failed to support its rejection of a heightened mitigation ratio (i.e., 2:1) with substantial evidence. The court of appeal soundly rejected both contentions and upheld the City’s mitigation measure which required Wal-Mart to purchase a permanent agricultural conservation easement over 40 acres (1:1 ratio) to mitigate for the loss of the 40 acres of prime land due to the project’s development. See Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around.


NOTE: The Supreme Court granted review in the following case: City of Hayward v. Board of Trustees of the California State University (2012) 207 Cal.App.4th 446: Reviewing a master plan for a state university campus, the appellate court found that substantial evidence supported the conclusion that the construction of an additional fire station would have less than significant impacts. The lead agency was not required to mitigate for the socio-economic impacts such as station staffing. With respect to traffic impacts, the EIR was a programmatic EIR, and was not required to analyze neighborhood street impacts as that would be analyzed in conjunction with the review and approval of specific projects which would be the basis for more detailed evaluation. A mitigation requirement for a Transportation Demand Management program did not result in deferred mitigation, as the mitigation measure included a required performance standard. However, there was a lack of substantial evidence to support the conclusion that the impacts to parks would be less than significant. See Town Versus Gown Fight Continues Over State University EIR.


***City of Maywood v. Los Angeles Unified School District (2012) 208 Cal.App.4th 362: A lead agency could rely upon DTSC’s clean up requirements as a basis for concluding no impacts from hazardous wastes. An EIR is only required to include a reasonable range of alternatives. It is good CEQA practice to always recite alternatives considered but rejected early on. An EIR can rely upon growth assumptions in its traffic analysis as long as there is substantial evidence in the record to support the assumption. See Appellate Court Re-grades EIR Exam and Gives L.A.U.S.D. high marks; Assigns More Homework to Address Pedestrian Safety for High School Project.

***Rialto Citizens for Responsible Growth v. City of Rialto(2012) 208 Cal.App.4th 899: When considering a proposal for a 284,000 square foot commercial center, the lead agency properly rejected an alternative which retained the 250,000 square foot Wal-Mart, but eliminated the outparcels. The lead agency found that the smaller project alternative would not meet project objectives of providing a mix of retail and restaurant tenants, thus providing residents with additional shopping and eating options. This finding was supported by substantial evidence in the record.

Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296: The Third Appellate District rebuffed Petitioner Lodi First’s contention that an EIR must include alternatives that both satisfy most of the project objectives and reduce significant effects of the project. Focusing on subdivision (a) of CEQA Guidelines section 15126.6 and citing to Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, the court of appeal reiterated the “rule of reason” as a guide to selecting what alternatives should be analyzed in an EIR, and held that despite the fact the revised EIR did not discuss an alternative the would feasibly attain the most basic project objectives and avoid or significantly reduce project impacts to less than significant, the record contained substantial evidence to support the conclusion that a reasonable range of alternatives had been analyzed. See Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around.

Association of Irritated Residents v. California Air Resources Board (2012) 206 Cal.App.4th 1487: The Association of Irritated Residents and several other nonprofit organizations (collectively, “AIR”) filed a petition challenging the California Air Resources Board’s (“CARB”) adoption of the Climate Change Scoping Plan alleging the scoping plan fails to achieve the maximum technologically feasible and cost-effective reductions in greenhouse gas emissions, fails to require emissions reduction measures for significant sources of emissions, fails to include policies to avoid the downsides of other greenhouse gas emission trading programs, fails to address how CARB will monitor and enforce reductions in a regional market, fails to assess the likely impacts of proposed policy choices and regulatory programs, and fails to prevent increases in criteria and toxic co-pollutant emissions. AIR also alleged the related functional equivalent document did not comply with CEQA, including the failure to adequately analyze alternatives to the regional cap-and-trade program included in the scoping plan. Applying a deferential standard of review, the appellate court held there was substantial evidence in the record to uphold CARB’s approval of the Scoping Plan as in compliance with the Global Warming Solutions Act of 2006 (AB 32).


***Rialto Citizens for Responsible Growth v. City of Rialto(2012) 208 Cal.App.4th 899: For purposes of analyzing cumulative traffic impacts, the lead agency could rely upon a regional transportation assessment prepared by the COG, and was not confined to using the list method for assessing cumulative effects. The lead agency could, for purposes of cumulative air quality impacts, rely upon its direct impacts as a reflection of cumulative effects in lieu of a quantification of impacts in conjunction with nearby projects. This practice conformed to the Air Maintenance District’s recommendations for CEQA cumulative assessments. The EIR’s treatment of project impacts on global warming and climate change was sufficiently thorough and the conclusion that the impact was “too speculative” to quantify was not an abuse of discretion, recognizing in part that the EIR was certified in July 2008.


Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603: A lead agency has a duty to respond to comments which raise significant environmental issues. The failure to do so can result in setting aside the certification of the EIR. See EIR Fails for Insufficient Response to One Comment Letter.


Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603: An EIR is not required to contain an economic infeasibility analysis, even when used as the basis to reject an alternative or mitigation measures. The standard for economic feasibility for a public agency is based upon a “reasonably prudent property owner” standard, not necessarily what the lead agency can afford to pay. See EIR Fails for Insufficient Response to One Comment Letter.


Center for Sierra Nevada Conservation v. County of El Dorado(2012) 202 Cal.App.4th 1156: A county’s approval of a negative declaration for an oak woodlands program and related impact fee was overturned where the program EIR did not adequately study the potential impacts of the oak woodland management plan and fee program because it did not assess how the payment of a mitigation fee would lessen the impacts of development on the county’s oak woodlands. A tiered EIR was required. See Approval of Oak Woodland Management Plan and Mitigation Fee Program Based on a Negative Declaration is Overturned by Third District Appellate Court.

Abatti v. Imperial Irrigation District (2012) 205 Cal.App.4th 650: The appellate court applied the traditional substantial evidence (not “fair argument”) to a CEQA challenge to 2008 minor amendments to a water allocation regulation. Applying CEQA Guidelines section 15162, the lead agency had concluded that no new CEQA document was required. The 2008 regulatory amendments come on the heels of the adoption of policy in 2006 (based upon a negative declaration), and the adoption of complementary regulations in 2007, which also relied upon the 2007 negative declaration. The appellate court affirmed the applicability of Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467. See Court Affirms Use of Substantial Evidence Test in CEQA Challenge to Annual Adjustment in Water Allocation Regulations.


Flanders Foundation v. City of Carmel-By-The-Sea (2012) 202 Cal.App.4th 603: It is acceptable practice for lead agencies to structure statements of overriding considerations in the alternative (as compared to drafting them in the cumulative.) This forces the opponents to argue the insufficiency of each ground, and the evidence in the record to support each finding. See EIR Fails for Insufficient Response to One Comment Letter.


No Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 573: While CEQA provides for an administrative appeal of the certification/approval of CEQA documents, (Public Resources Code section 21151; CEQA Guidelines sections 15090(b), 15356), a local board of supervisors does not have appellate review rights of a landfill permit granted by a local enforcement agency.


***Rialto Citizens for Responsible Growth v. City of Rialto(2012) 208 Cal.App.4th 899: The City of Rialto certified an EIR for and approved a 230,000 square-foot commercial retail center, including a 197,639-square-foot Walmart Supercenter, four commercial outparcels, a gas station with 16 fueling pumps, and a detention/retention basin for stormwater (the “Project”). The Project approvals also included a general plan amendment, a specific plan amendment, and a development agreement. Citizens challenged the City’s project approvals on the grounds that (1) the notice of the public hearing on the project was defective, (2) the City Council erroneously approved the development agreement without making a finding that its provisions were consistent with the general and applicable specific plan, and (3) the EIR was inadequate. The trial court ruled in favor of Citizens and Walmart appealed. On appeal, Walmart argued that Citizens lacked standing to challenge the City’s approvals. The appellate court rejected this argument, finding that the various petitioners met the public interest exception to the general rule that the petitioner(s) must be beneficially interested in the litigation.


Tomlinson v. County of Alameda (2012) 54 Cal.4th 281: Where a county provided a noticed public hearing on a project it deemed to be exempt pursuant to CEQA, it was entitled to assert Public Resources Code section 21177 as defense to a CEQA claim that the exemption was improperly applied. See Supreme Court Says Exhaustion Requirement Applies in CEQA Exemption Suit.


Van De Kamps Coalition v. Board of Trustees of Los Angeles Community College District (2012) 206 Cal.App.4th 1036: Follow-up actions by a school district in leasing out surplus property did not constitute a new project and therefore did not trigger a new CEQA claim. A writ filed challenging the later actions was properly dismissed as duplicative and barred by the original statute of limitations triggered by the District’s prior approval of an interim use plan. See Court Says No Second Servings in CEQA Case.

***Coalition for Clean Air v. City of Visalia(September 14, 2012, F062983) ___ Cal.App.4th ____ (2012 Cal.App. LEXIS 984): The City of Visalia approved a distribution facility up to 750,000 square feet. The Coalition challenged the city’s use of a CEQA exemption (ministerial approval) as well as the City’s agreement to reimburse the developer for street improvements related to the project. The trial court granted the real party’s demurrer on the basis that the lawsuit was filed more than 35 days after the NOE was filed. However, as reflected in the pleadings, City records indicated that the project was approved on November 8, 2010, three days after the NOE was posted. The appellate court held that a notice of exemption filed before a final project approval does not trigger the 35-day statute of limitations contained in PRC section 21167(d), and thus, the demurrer should not have been granted as the facts, as alleged on the face of the petition, were that the lawsuit was filed within the 180 day CEQA default statute of limitation.


Consolidated Irrigation District v. City of Selma (2012) 204 Cal.App.4th 187: An appellate court reviews a trial court order to augment the record under the traditional appellate substantial evidence test.

Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296: The appellate court found that the trial court erred in excluding 22 emails from the administrative record based on the deliberative process privilege asserted by the city on the grounds that the city failed to make the detailed and specific showing required to establish a claim of privilege and never demonstrated that the public’s interest in nondisclosure outweighed the public’s interest in disclosure of the 22 emails. Notwithstanding, the appellate court rejected appellant’s argument that any time one document is erroneously excluded from an administrative record, reversal is required. See Revised EIR for Wal-Mart Supercenter Is Upheld On Second Go-Around.

Consolidated Irrigation District v. Superior Court of Fresno County (2012) 205 Cal.App.4th 697: Substantial evidence supported a conclusion that a City’s subconsultant files were not considered public agency files under Public Resources Code section 21167.6(e)(10). Additionally, the court held that audio recordings of public meetings were “other written materials” pursuant to Section 21167.6(e)(10) and therefore, should have been included in the administrative record. Finally, documents merely referenced in a comment letter and which were not made readily available to the public agency could not be considered “written evidence submitted” under 21167.6(e)(7), and thus, were properly excluded from the administrative record.


Consolidated Irrigation District v. City of Selma (2012) 204 Cal.App.4th 187: A water district has sufficient statutory interest to bring a CEQA lawsuit challenging assessment of impacts to groundwater basins.


Salmon Protection and Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195: It is not uncommon in CEQA cases for the opponents and the lead agency to extend the statute of limitations through a tolling agreement. The use of such agreements can help facilitate settlement by taking the press of litigation off the front burner. In a case involving the use of a tolling agreement to extend the time lines for a CEQA challenge to a general plan update, a demurrer was sustained to a complaint in intervention brought by property owners potentially affected by the CEQA lawsuit. The complaint alleged that the underlying lawsuit was barred due to the passage of the statute of limitations, and that any extension was contrary to public policy. Relying in part on the policy favoring settlement of litigation, the court of appeal upheld the dismissal of the complaint in intervention. See Tolling Agreement for CEQA Lawsuit Challenging a General Plan Update is Upheld Against Property Owner Challenge.


Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988: In awarding attorneys’ fees under the authority of Code of Civil Procedure section 1021.5, the trial court has the discretion to award fees to an attorney who is also a named petitioner.

If you have any questions about these court decisions, contact William Abbott, Diane Kindermann, Elizabeth Strahlstrom, Katherine Hart or Glen Hansen. 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.