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

It is hard to believe that after a tsunami of CEQA decisions in 2012 that there are only three published CEQA cases in the first quarter of 2013. Our advice is to rest up and enjoy the break as there are five cases pending before the California Supreme Court. These include the unusual circumstances limitation on exemptions (Berkeley Hillside Preservation v. City of Berkeley); setting the baseline (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority); application of CEQA to council enactment of measures which qualify as initiatives on local ballots (Tuolumne Jobs & Small Business Alliance v. Superior Court); and mitigation requirements (City of San Diego v. Board of Trustees, and City of Hayward v. Board of Trustees.)


Residential Project Based Upon A Previously Approved Specific Plan is Exempt From Later CEQA Review

Concerned Dublin Citizens v. City of Dublin (2013) ___ Cal.App. 4th ___. Long range, detailed planning got a boost from a recent decision by the appellate court which held that a residential project found by the City to be consistent with a 2002 specific plan was exempt from a later round of CEQA review, as provided for by Government Code section 65457. In 2002, the City of Dublin approved the Eastern Dublin Specific Plan, a plan calling for a high-density mixed use, transit and pedestrian-oriented development. Among other features, the plan allowed up to 2,000,000 square feet in office development, 70,000 square feet of retail and up to 1,500 dwelling units in higher density development. The City certified a program EIR (Guidelines section 15168) at the time of the specific plan approval. The EIR examined a full build out scenario.

Site C within the specific plan called for a maximum of 405 residential units and up to 25,000 square feet of ancillary retail. Developer Avalon Bay submitted proposals in 2007, 2010 and 2011, the final one which included 505 apartment units and eliminated the retail space due to existing unleased commercial space within the overall development. The ground floor residential units were designed to permit conversion to commercial uses at a later date. Avalon Bay’s request included a transfer of 100 residential units from elsewhere within the specific plan area. The planning commission approved the site approvals and recommended approval of a development agreement. Opponents, an unincorporated association and individual within the association and the Carpenters Local Union No. 713, filed an appeal. The city council concurred with the planning commission action, including the determination that no further CEQA required was required. The appellants filed a petition for writ of mandate. The trial court found that there was substantial evidence in the record to support the council’s determination that no further CEQA review was required. On appeal, the appellate court concurred, ruling as follows:

Standard of review: The appellate court ruled that the substantial evidence test, not the fair argument test, would apply to judicial review of a claim of exemption under section 65457.

The project qualified as a residential project: The benefits of section 65457 apply to residential projects. The evidence was that the project was all residential in character, even with the ability of the ground floor residential units to convert in the future. Pursuant to the terms and conditions, conversion later on would necessitate later approvals. Thus, the disputed approval was residential in character and satisfied the residential use test.

Consistency with specific plan: The project met the consistency requirement as well. Despite the appellant’s argument to the contrary, there was nothing that required Site C itself to be a mixed use project: the concept of mixed used applied to the specific plan as a whole, not to each specific parcel. Appellants also argued that the City could not now rely on the previously certified program EIR, and was obligated to provide an updated CEQA assessment. The appellate court rejected this argument as well, saying nothing in the program EIR requirements compelled later environmental review and stated that the requirement for later environmental review would be a function of the thoroughness of the initial program document. The program EIR at issue discharged the CEQA assessment as it applied to Site C.

No changed circumstances: A section 65457 exemption is subject to the changed circumstances limitation embodied in Public Resources Code section 21166. Appellants presented several arguments in support of a changed circumstances finding, all of which were rejected by the appellate court. First, the appellate court found that the density transfer was not a significant change in circumstances as it was allowed by the terms of the specific plan. The second claim of changed circumstances involved greenhouse gases. Appellant’s reliance upon the BAAQMD thresholds of significance adopted in 2010 was “highly questionable” given that a trial court had set them aside pending proper environmental review and that BAAQMD currently advised others not to rely upon those thresholds. However, the fact pattern before the court also fit within that of Citizens of Responsible Equitable Development v. City of San Diego (2011) 196 Cal.App.4th 515, wherein the appellate court concluded that greenhouse gases were not a new issue, and could have raised and litigated when the program EIR was certified. This court reached a similar conclusion. Greenhouse gases were known as potential environmental issues in 2002 and the sufficiency of the CEQA analysis as it applied to greenhouse gases could have been litigated at that time. Thus, this issue did not trigger additional CEQA review under the authority of Public Resources Code section 21166.


Court Affirms EIR For 30 Year Mining Operation; Erroneous Impact Conclusion Did Not Invalidate The EIR

Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal. App. 4th 1059. Troesh Materials, Inc. submitted an application to the County of Santa Barbara (“County”) to operate a new mine within the dry bed of the Cuyama River. The mine would be positioned away from the active streambed, and roughly 1500 feet upstream from an existing, active mine. Potential excavation could proceed to a maximum depth of 90 feet, with an average production of 500,000 cubic yards per year. Petitioner filed a CEQA petition for writ of mandate which was denied by the trial court. The ensuing appeal involved two topical areas: hydrological and water resource (supply/quality) impacts.

Threshold of Significance. The appellate court upheld the County’s use of a threshold of significance specific to this proposed project. The County was not compelled to use CEQA’s Appendix G thresholds, nor was it obligated to explain why it elected to not use Appendix G thresholds, or to formally adopt the alternative threshold.

Impact Analysis. Addressing appellant’s challenge to the impact conclusions, the appellate court applied the substantial evidence test and concluded that ample evidence (based in part on the evidence and experience acquired from the existing mine located 1500 feet away), that there would be insignificant impacts resulting from headcutting or scouring. Appellants also criticized the EIR’s suggestion of no impacts, then the addition of a proposed mitigation measure, arguing internal inconsistency. The EIR acknowledged that there was some uncertainty in the impact analysis, thus, the appellate court found no inconsistency in the use of backstopping mitigation, but simply a conservative CEQA assessment.

The appellate court then assessed the challenge to one of the mitigation measures. The dispute centered on a mitigation measure responsive to potential hydrology impacts. Despite the EIR’s analysis that the impacts would be not be significant, the EIR also recognized the potential for uncertainty, and on that basis, included a mitigation measure, and with that measure, concluded that there would be a less than significant impact. This measure required semi-annual surveys up and downstream be submitted to the State’s Office of Mine Reclamation (“OMR”), the County’s Planning and Development Department, and the County’s Flood Control District as part of OMR’s SMARA compliance review. The purpose of this review would be to “confer with the County agencies to modify the mining pit layout, width and/or depth to avoid these impacts” should those be detected as part of the review. Although this requirement lacked the detail typically sought in performance based mitigation, the appellate court concluded that as this mitigation requirement was part of the EIR’s discussion of hydrologic impacts, the court could rely upon that analysis to establish a context for understanding the mitigation requirement. In other words, the discussion within the EIR provided the missing framework and context to shore up the mitigation requirement. Accordingly, the appellate court rejected appellant’s arguments that mitigation lacked the required performance standards to avoid a challenge of deferred mitigation.

CEQA Error Was Not Prejudicial. The final matters of concern involved water supply and water quality. Appellant claimed that it was error for the lead agency to use the same threshold of significance for both direct and cumulative water supply impact, further arguing that the cumulative effects had been ignored. The appellate court disagreed, concluding that the standard that was used satisfied the required cumulative analysis, and despite the failure to look at non-cumulative effects, the error was rectified by the more rigorous cumulative impact analysis. The appellate court did agree with the appellant that insufficient evidence supported the conclusion of no impact to groundwater, given that the EIR contained potentially conflicting data as to groundwater levels. The County had required compliance with a mitigation measure designed to protect groundwater contamination by requiring a six foot separation between depth of excavation and groundwater, the effectiveness of this strategy which was uncontested. However, in this particular situation, the appellant could not show that the EIR’s unsubstantiated conclusion regarding no impact resulted in prejudicial error. Accordingly, the petition for writ of mandate was properly denied. 


CCP 473 Does Not Provide Relief For Late Filing Of CEQA Petition

In Alliance for the Protection of the Auburn Community Environment v. County of Placer (April 2, 2013, C067961) ___Cal.App.4th ___, the Third District Appellate Court held that California Code of Civil Procedure section 473 does not provide relief from a petitioner’s mistake that resulted in the late filing of a CEQA petition. While the provisions of section 473 are to be liberally construed, the statute cannot be construed to offer relief from mandatory deadlines deemed jurisdictional in nature such as Public Resources Code section 21167.

In 2008, Bohemia Properties, LLC submitted an application to the County of Placer (County) for the development of a 155,000-square foot building. The County required that an environmental impact report (EIR) be prepared for the project. After the requisite hearings, the Planning Commission certified the EIR and approved the project in July 2010. Alliance filed an appeal to the Board of Supervisors, which was heard on September 28, 2010. The Board denied the appeal and again certified the EIR and approved the project. The County timely filed and posted a notice of determination on September 29, 2010.

Pursuant to Public Resources Code section 21167(c), an action to set aside an EIR must be filed within 30 days from the date of the filing of the notice of determination. In this case, the Alliance was required to file its CEQA petition on or before October 29, 2010. However, Alliance did not file its petition until three days later on November 1, 2010.

Bohemia filed a demurrer to the petition, alleging the petition was not timely filed. Alliance filed a motion for relief under CCP section 473, as well as an opposition to the demurrer, on the grounds that the late filing resulted from a “miscommunication with the attorney service as to the deadline for receipt of the Writ.” The trial court sustained Bohemia’s demurrer without leave to amend and denied Alliance’s motion for relief on the grounds of mistake and excusable neglect on the grounds that the 30-day statute of limitations contained in Public Resources Code section 21167 is mandatory and does not provide for an extension of time to file a petition based on a showing of good cause.

In interpreting CCP section 473, the appellate court looked to the California Supreme Court case of Maynard v. Brandon (2005) 36 Cal.4th 364 (Maynard). In Maynard, the Supreme Court considered whether relief under section 473 was available for a party who failed to comply with the 30-day statute of limitations in the Mandatory Free Arbitration Act. The Court held that it did not, noting that section 473 provides relief only for procedural errors (i.e., untimely demands for expert witness disclosures, etc.). The appellate court also looked to Kupka v. Board of Administration (1981) 122 Cal.App.3d 791, wherein the court held that section 473 could not operate to provide relief for the late filing of a petition for writ of mandate to review an administrative decision on the basis that statute of limitations are not flexible in nature, but are firmly fixed, unless the legislature expressly provides for an extension based on a showing of good cause.

The court of appeal in this case noted that while the provisions of section 473 are to be liberally construed generally, and further, that CEQA should be broadly interpreted to protect the environment, CEQA also clearly requires prompt resolution of lawsuits claiming violations of it. Alliance argued that other courts have required relief to CEQA’s 30-day statute of limitations, but the court distinguished each case Alliance offered in support of its argument and specifically noted that none of the cases proffered by Alliance related to section 21167.

Moral: If you are a petitioner and you are going to file a petition for writ of mandate to challenge an agency’s actions under CEQA – whether that challenge is procedural or substantive in nature – compliance with the statutes of limitations under Public Resources Code section 21167 are mandatory. CEQA provides three distinct statutes of limitations – a 30-day, 35-day, and 180-day statute of limitations – depending on the specifics of the CEQA challenge and whether a notice of exemption or notice of determination was properly filed and posted. Strict compliance is required as failure to timely file a petition for writ of mandate pursuant to CEQA will not be excused. 

If you have any questions about these court decisions, contact William Abbott, Diane Kindermann, 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.