By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi
Welcome to Abbott & Kindermann’s 2016 2nd Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.
1. 2015 CEQA UPDATE
To read the 2015 cumulative CEQA review, click here:
2. CASES PENDING AT THE CALIFORNIA SUPREME COURT
There are 5 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:
Banning Ranch Conservancy v. City of Newport Beach, S227473. (G049691; 236 Cal.App.4th 1341; Orange County Superior Court; 30-2012-00593557.) Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues: (1) Did the City’s approval of the project at issue comport with the directives in its general plan to "coordinate with" and "work with" the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city’s interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas – as defined in the California Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) – in the environmental impact report for the project?
Cleveland National Forest Foundation v. San Diego Assn. of Governments,
S223603. (D063288; 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TTCTL.) Petition for review after the court of appeal affirmed the judgment in a civil action. The court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?
Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.) Petition for review after the court of appeal affirmed the judgments in actions for writ of administrative mandate. This case includes the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state owned rail line and/or leasing state-owned property?
Sierra Club v. County of Fresno, S219783 (F066798, 226 Cal.App.4th 704); Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)
Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. (A135892; nonpublished opinion; San Mateo County Superior Court; CIV508656.) Petition for review after the court of appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385)? Or, is the agency’s decision subject to a threshold determination of whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?
A. General Considerations: When Is An MOU A Project?
Delaware Tetra Technologies, Inc. v. County of San Bernardino (2016) 247 Cal.App.4th 352.
Citing seminal CEQA timing cases Save Tara v. City of West Hollywood, 45 Cal.4th 116 (2008) (“Save Tara”), and RiverWatch v. Olivenhain Municipal Water Dist., 170 Cal.App.4th 1186 (2009)(“RiverWatch”), the plaintiff claimed the respondent’s approval of a Memorandum of Understanding for development of a public/private partnership groundwater pumping project in the Mojave Desert (“2012 MOU”) was a “project” under CEQA and, thus, environmental review was required before it could be approved. The court disagreed, finding that the 2012 MOU was not a “project,” because it did not commit the County “to a particular course of action that will cause an environmental impact,” affirming the trial court. It reasoned that the instant circumstances were distinguishable from those cases, because those defendant agencies were sufficiently committed to a course of action that foreclosed alternatives or mitigation measures normally considered as part of the project approval process. Instead, the 2012 MOU was akin to the “term sheet” in Cedar Fair, L.P. v. City of Santa Clara, 194 Cal.App.4th 1150 (2011), because the approval was merely “a process for completing the Plan” and the MOU explicitly stated that “the County retain[ed] full discretion to consider the Final EIR and then to approve the Project, disapprove it, or require additional mitigation measures or alternatives.”
B. Exempt From CEQA Review
People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640.
The City of Palm Springs amended its general plan to remove minimum density requirements. The City asserted that the amendment was categorically exempt from CEQA (CEQA Guidelines §15305 [Minor Alterations in Land Use Limitations]), as the action was consistent with prior city interpretation and administration of the General Plan which resulted in projects as less than the minimum stated in the various land use districts. While the trial court agreed that it was exempt, the appellate court reversed on the basis that the change undermined the city’s ability to meet its state share of housing needs when it relied upon the “anticipated densities” when developing its housing element. Consequently, given the exemption’s facial exclusion for projects that result in changes to land use density, the exemption was inapplicable.
Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265.
In 2007, the City of Upland adopted an ordinance banning both “fixed or mobile” medical marijuana dispensaries within the city limits. In reaction to the likely operation of marijuana delivery services within the city limits, the council adopted a new ordinance in 2013 that explicitly banned mobile dispensaries. The Union of Medical Marijuana Patients (“UMMP”) filed a petition for writ of mandate, arguing that adoption of the ordinance was a “project” subject to the California Environmental Quality Act and the trial court denied. The 4th appellate district court affirmed, holding that the ordinance was not a project under CEQA. It reasoned that the 2013 ordinance was nothing more than a ratification of the previous existing ordinance which banned mobile dispensaries. It then further found that even if the 2013 did not restate existing law, the potential environmental effects raised by UMMP through studies evaluating industrial-scale indoor growing operations—increases in electrical and water, waste plant material and odors, hazardous waste materials, increased traffic—were speculative and, thus, not reasonably foreseeable environmental effects. It reasoned that these concerns “rest on layers of assumptions” about the similarity of the potential acts and consequences of small-scale medical marijuana patients and those on an industrial-scale if the mobile delivery service ban is upheld.
C. Negative Declarations
Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016, E062479) ___ Cal.App.4th ___.
In a challenge to the adequacy of the county’s adopted Negative Declaration, the appellate court held that petitioner failed to provide substantial evidence of a potentially significant effect from urban decay resulting from the approval of a 9,100 sq. ft. Dollar General store, because there were legitimate credibility issues regarding the opinions of the local business owner regarding the impact. The court also held that given the relatively moderate size of the business, it was reasonable for the county to conclude that the project was consistent with the county policies for the area which favor small businesses.
Preserve Poway v. City of Poway (2106) 245 Cal.App.4th 560.
It is no surprise that people, as a general rule, dislike change. California’s near constant state of evolvement is fertile ground for localized conflict between those fostering growth and those seeking to protect the status quo. While the fear or opposition to community change may well be the motivating factor in many CEQA disputes, is community change by itself an impact which must be addressed. According to Division One of the Fourth Appellate District, the answer is no.
The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims.
The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.”
The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected this argument, following the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective.
On appeal, the project opponents also argued that the trial court committed error in not requiring an EIR on other grounds. However, the opponents had failed to cross appeal these aspects of the lower court judgment, and could not now raise them in response to the appeal by the real party in interest.
C. Environmental Impact Reports
Bay Area Citizens v. Association of Bay Area Governments (June 30, 2016, A143058) ___ Cal.App.4th ___.
In a legal challenge perhaps driven primarily by philosophical considerations (higher density vs. lower density), the Court of Appeal (First Appellate District) upheld ABAG’s Sustainable Communities plan (the “Plan”), adopted under the authority of SB 375 (Steinberg). SB 375, adopted in 2008, created a framework for linking transportation investment and land use planning in a manner to move the state closer to its targeted reduction in greenhouse gas emissions by passenger vehicles and light trucks. The heavy lifting under SB 375 is by the regional planning agencies, in this case Association of Bay Area Governments (“ABAG”) in consultation with the California Air Resources Board (“CARB”) as it discharges its responsibilities developing and implementing the State Scoping Plan. The adequacy of the Plan and EIR, and in particular the shift towards higher density, was challenged by Bay Area Citizens.
Although the appellate decision is mostly dedicated to SB 375, Citizens also challenged the EIR. Its first argument challenged the project description, reintroducing the theme that Pavley I and the low carbon fuel requirements should have been factored in as part of the project description. The appellate court readily disposed of this argument, reciting that the seven identified goals for the Plan were sufficiently broad and appropriately linked to SB 375. The appellate court then turned to Citizens’ challenge to the EIR’s alternatives. Citizens first argued that the No Project alternative was required to reflect the benefits of other state programs (notably Pavley I and low carbon fuels) which largely centered upon an argument that the EIR should have included the Citizen’s alternative. Again, the appellate court disagreed noting that the targets in greenhouse gas reduction and climate change from the Plan were developed independent from and were additive to the anticipated benefits of Pavley I and low carbon fuels. The appellate court also determined that the Pavley II impacts were not known until too late in the EIR process and therefore were not required to be reflected in the EIR. Citizens also argued that the EIR was required to review its plan as an alternative, suggesting that its plan would have met basic project objectives without the secondary effects of higher density development. The court rejected this argument finding that the EIR included a reasonable range of alternatives and that Citizens had failed to demonstrate any shortcomings against that legal standard. Citizens last argument was a variation on the same theme: because the Agency failed to account for the benefits of Pavely I and low carbon fuels, the Agency failed to adequately respond to the Citizens comments as to those issues. Again noted the appellate court, the Citizens had it wrong.
Finally, as an independent ground to uphold the EIR, the Court agreed with amicus California Attorney General that the EIR was a full disclosure document. The document was clear when and where it relied upon Pavley I and low carbon fuels, and that the challengers failed to show why more analysis was required. Essentially then, Citizens challenge was to the wisdom of the Plan itself, essentially at its best that the Plan did more than the minimum to meet the law. In the end, a challenge to the wisdom of the Plan was not a CEQA challenge.
Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal. App. 4th 91
The appellate court expands (and likely overstates) the general plan consistency disclosure obligation in an EIR. Conclusions regarding project impacts on climate change are not supported due to internal inconsistencies regarding the degree of compliance with local development standards. FEIR recirculation was required due to new information regarding compliance with general plan implementation measures and a substantial rewrite of project hydrology and mitigation.
The Tamarisk shopping center project in Victorville consists of 214,596 square feet of commercial retail uses on approximately 23.72 acres of land, currently vacant and undeveloped. Among the project’s proposed commercial retail uses includes a Walmart store of approximately 184,946 square feet. The land use approvals included a general plan amendment, a zone change, a site plan, a conditional use permit, and a parcel map. The City approved the project, and the Association filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (petition) challenging the City’s decision, alleging land use and CEQA claims. The trial court granted partial relief, holding that the EIR did not adequately discuss the project’s consistency with the City’s onsite electrical generation policy or project impacts on greenhouse gas emissions. The trial court also concluded that there was insufficient evidence of consistency with the onsite electrical generation policy to support the zoning change and parcel map. Wal-Mart appealed the lower court decision contending that there is substantial evidence to support the City’s finding the project is consistent with the general plan and the project’s EIR adequately analyzed the project’s greenhouse gas emissions impacts. The Association cross-appealed, contending that the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended that the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project’s parcel map. The appellate court rejected Wal-Mart’s arguments on appeal, and granted additional relief to the Association.
The case largely turns on an implementation measure of one policy contained within the general plan. That implementation measure (IM 188.8.131.52) “requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.” The EIR discussed the feasibility of onsite generation, and noted that feasibility was determined in part by the availability of tax credits along with other information relevant to the feasibility of onsite solar generation. The EIR also noted that the roof would be “solar ready” in the event that solar installation became financially feasibility. No enough according to the appellate court. Citing Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the cornerstone case on administrative findings in California, the EIR analysis was insufficient to adequately explain the infeasibility of solar, and did not discuss any other onsite generation options. Wal-Mart also argued that a project is not required to be consistent with every goal and policy which the appellate court recognized as a general proposition, but the court applied the exception for “fundamental” policies (Families Unafraid v. County of El Dorado (1998) 62 Cal.App.4th 1332).
The court then turned to the EIR evaluation of greenhouse gases. The analysis concluded that the project would not substantially contribute to GHG emissions, resting in part upon a general plan requirement that a project exceed Title 24 standards by 15 percent. However, the EIR included information suggesting that the project would exceed the Title 24 standards by at least 10 percent and in another part of the EIR, by 14 percent. Because of this conflict, the court concluded that the record did not support the City’s determination that the project’s contribution was less than significant based upon meeting the 15 percent target over Title 24.
With respect to the Association’s cross appeal, the appellate court agreed that a city or county must address both the affirmative and negative findings of the Subdivision Map Act. Government Code section 66474. Thus, tentative map approvals, including parcel maps, must include findings relating to general plan consistency, physical suitability of the site for the type and density of development, impacts to fish, wildlife and habitat, public health problems and public access easements.
The Association’s final issue on cross appeal asserted that the City was required to recirculate the FEIR due to revisions pertaining to traffic, biological resources, air quality, and hydrology and water quality. As to traffic, the text dealt with the effect of a delay in an assumed improvement and the information indicated that service would degrade, but the significance level would not change. With respect to biological resources, the revisions reflected that the streambed impact area would increase, and that the number of special status species tested in spring surveys would also increase. None of these revisions constituted substantial new information or deprived the public of a meaningful opportunity to comment. The appellate court agreed with the Association as to air quality and hydrology. Because the appellate court had concluded that there was a lack of substantial evidence to support the conclusion of consistency with the general plan implementation measures, the appellate court concluded that there was a significant adverse impact and that the public had been denied a meaningful opportunity to comment. The revisions to the hydrology section was a significant rewrite and redesign (replacing 26 pages with 350 pages of technical reports.) The changes were sufficient in degree (and no redline of changes was included to facilitate tracking) that the court concluded the revisions denied the public a meaningful opportunity to review and comment.
Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256.
The appellate court held that the city’s EIR for a commercial retail project failed to adequately analyze energy impacts, because it failed to calculate the resulting energy impacts from increased vehicle trips resulting from the project. Furthermore, it held that the city’s reliance upon building code compliance to reduce energy use was improper, because the compliance with those standards fails to address many of the considerations required under Appendix F of the CEQA Guidelines. The court also held that the city’s adoption of an addendum to the EIR addressing these deficiencies nearly one year after its original adoption did not cure the deficiencies in the EIR, because the EIR was still inadequate at the time the decision was made to approve the project.
Center for Biological Diversity v. County of San Bernardino (2016) 247 Cal.App.4th 326.
The petitioners challenged the adequacy of the environmental impact report (“EIR”) for a proposed project to pump groundwater from an underground aquifer in the Mojave Desert, a public/private partnership between the County of San Bernardino (the “County”), the Santa Margarita Water District (“Santa Margarita”), the Fenner Valley Mutual Water Company (“Fenner Valley”), and Cadiz, Inc. (“Cadiz”)(collectively, the “Respondents”). Petitioners challenged under several theories: (1) Santa Margarita was improperly designated as the lead agency under CEQA; (2) the project description was misleading and inaccurate by (a) mischaracterizing the project’s “conservation” objectives as preventing water lost to evaporation, (b) misstating the project duration; and (c) mischaracterizing the total amount of water than will be withdrawn from the aquifer. The trial court denied the petition and the petitioners appealed.
The appellate court affirmed on all counts. It found Santa Margarita was properly designated as the lead agency pursuant to CEQA Guidelines section 15051, because (1) it is a public agency that will carry out, in part, a public/private partnership; and (2) it will have the greatest responsibility for supervising the project as a whole. It rejected petitioners’ claim that the project does not meet its purported “conservation” purpose, finding that the purpose was broader than prevention of evaporation and included saving freshwater sources before they become non-potable due to excess salinity once they migrate into nearby dry lakes.
The court denied petitioners claims that the project duration was indefinite, reasoning that even though the project by its terms could be extended beyond its 50-year duration in order to complete contracted-for water deliveries, the duration remained limited by the fact that any extension was limited by the maximum amount of water that may be pumped over the life of the project, and the average amount of water that can be pumped annually. It further reasoned that any extensions would require subsequent environmental review consistent with CEQA. Finally, the court rejected the claim that the quantity of water pumped was inaccurate, reasoning that the water sales agreement cited other adopted documents limiting the amount of water that may be pumped annually and that the size of the pipelines is consistent with the project design capacities.
North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. (Unpublished to Published January 4, 2016.)
An EIR was held to be invalid due to an inadequate range of alternatives.
The Third Appellate District found an EIR to be inadequate for lack of a particular alternative. While this suggests a potential micromanagement of the EIR process, the decision involves an unusual fact pattern. The lead agency was California Department of Food and Agriculture, proposing a seven year program to eradicate an invasive insect, the light brown apple moth (“LBAM”). Found in select northern California counties, this insect had spread rapidly notwithstanding State efforts to control the pest. The State proposed a program to eliminate the insect (as compared to managing its population) and prepared an EIR. At the end of the EIR process, the State approved a seven year program to control LBAMs based upon new information that eradication was not deemed to be attainable. “Control,” as compared to eradication, was not considered in the EIR as a reasonable alternative. Rather, the alternatives section examined seven techniques for management (five of which were approved as part of the project.) Opponents filed suit, arguing primarily project segmentation (after all, the pest was only to be controlled, not eradicated, within seven years), unstable project description and inadequate project alternatives.
The project objective was defined as “eradication,” an objective determined by the appellate court to be too narrow. Eradication was used as a screening tool that prevented the consideration of control, which in the end is what the State approved. The fact that the State approved control in the end did not salvage the EIR as the error was deemed to be prejudicial. While late project adjustments might be allowable if insignificant, the court viewed the administrative record as lacking in supporting an insignificance conclusion because of the omission of any consideration of control in the EIR. The court also observed that the record supported the inference that impacts associated with control might be greater than eradication because of the potentially indefinite duration.
Petitioners also argued other technical defects in specific impact analyses, but these were all rejected by the appellate court. The court considered but rejected an argument that the EIR was defective for failure to consider site specific impacts. Finally, the court addressed a cumulative impacts argument stating that the new EIR take into consideration the long term (post seven year effects and treatment) in the evaluation of cumulative impacts.
D. OPR VMT CEQA Guidance
January 20, 2016 Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA. (Item 1.)
If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Dan Cucchi. 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.
 From Australia, which has also brought us Mad Max, Crocodile Dundee, and shrimp-on-the-barbie.