By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi
Welcome to Abbott & Kindermann’s 2018 1st 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. 2017 CEQA UPDATE
To read the 2017 cumulative CEQA review, click here:
2. CASES PENDING AT THE CALIFORNIA SUPREME COURT
There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:
Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?
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.)
In 2008, the State of California adopted air quality regulations which had the effect of requiring existing trucking operators to retrofit truck fleets with expensive air quality improvements. In 2013, the state issued a regulatory advisory which created a safe harbor for operators seeking to come into compliance. Operators were also allowed to take advantage of regulatory changes expected to be adopted in 2014. The Air Resources Board engaged in the formal rule adoption process in 2014 and was sued by a fleet operator and trucking association arguing CEQA violations and failure to comply with the economic considerations part of the state APA. The Board operates under the “functional equivalent” provisions of CEQA, and in this case, relied upon the equivalent of a negative declaration. The trial court ruled for the petitioners and the court of appeal affirmed although on narrower grounds. The issues on appeal included: (1) had the ARB improperly committed itself to a project in advance of CEQA compliance, (2) what was the appropriate baseline for evaluating impacts, (3) fair argument and (4) had the ARB correctly evaluated the economic considerations required by the state APA.
First, applying the California Supreme Court’s decision in Save Tara, the appellate court found that the Board had sufficiently committed itself to a course of action, going beyond just expressing interest in an idea, and thus violated CEQA’s timing requirements. The court of appeal agreed that invalidation was an appropriate remedy, but did not require the functional equivalent of an EIR, leaving to the agency to determine the proper environmental document in response to the court decision. Anticipating the Board would implement the regulatory changes or something similar, the court concluded that there was substantial evidence to support the Board’s established baseline as not including the continuing effect of the existing regulations. The court then rejected the Board’s evaluation of impacts. Pointing to evidence in the record that the project could result in short to medium-term impacts involving various pollutants, the appellate court agreed that for purposes of the Board’s initial evaluation, compliance with the state’s long term plan might support a no-impact conclusion. When faced with the evidence of short to mid-term impacts, however, an EIR type document was required. Lastly, the appellate court evaluated the APA claims and held that the Board violated the APA when it failed to properly respond to comments on potential intra-state competition issues in its economic analysis.
Petitioners challenged to the City of San Diego’s (“City”) approval of a small high school on previously developed, open-space designated lands adjacent to a commercial equestrian facility. The project was a one-building, three-classroom, 5,340-square foot high school on a previously developed one-acre site, with a 24-stall parking lot and associated landscaping. The project was located in the coastal zone at the end of a private access driveway shared with an adjacent equestrian facility. It included an historical farmhouse, currently used as an administrative office, along with several older outbuildings. Owners of the adjacent equestrian facility (“Petitioner”) opposed the project and the related draft Mitigated Negative Declaration (“MND”) prepared by the City, contending an EIR was required to study potentially significant historical resources, fire hazard, noise, and transportation/traffic impacts, and that the project threatened the Ranch’s economic viability as a business.
In reliance on the City’s misleading statements in the public notice, Petitioner appealed the hearing officer’s decision approving the project and associated MND to the Planning Commission, checking that box on the City’s standard appeal form and not checking the box for “Environmental Determination – Appeal to City Council.” While the appeal forms identified both CEQA and non-CEQA grounds for its appeal, City Staff advised Petitioner and the Planning Commission that Petitioner’s failure to appeal to the Council within 10 days of the hearing officer’s decision waived all CEQA and MND issues. The Commission heard and ultimately voted 4-2 to deny the appeal and to grant the project permits. The City rejected as untimely Petitioner’s subsequent attempt to appeal the project approval and MND to the City Council. Petitioner filed suit on both CEQA and Planning and Zoning grounds. The trial court denied Petitioner’s writ petition on all asserted grounds, finding that Petitioner failed to exhaust administrative remedies on the CEQA claims by failing to properly administratively appeal the hearing officer’s environmental determination. Petitioner appealed and the appellate court affirmed.
The appellate court first rejected Petitioner’s claim that the City’s bifurcated appeal procedures were not in compliance with CEQA’s appeal requirements. It reasoned that because the project was approved by an unelected decisionmaker (the hearing officer), the City’s appeal procedures correctly included an option to appeal the environmental determination to the agency’s elected decisionmaking body (the city council), which Petitioner failed to do when it appealed the project to the Planning Commission. As for Petitioner’s claim that it made the procedural error in reliance on erroneous statements made by the city in its public hearing notice, the appellate court held that Petitioner’s argument involving improper notice was inapplicable because there was no claim that the notice defect involved an inaccurate project description. Rather, it reasoned, the notice accurately provided notice of the public hearing but misstated the applicable appeal procedures. Instead, the court reasoned it was more appropriately a claim of equitable estoppel which was considered and rejected by the trial court and was not raised in its appeal. Finally, the court rejected the substantive claims of CEQA noncompliance regarding the potential fire risks resulting from development of the project in a high fire hazard severity zone, relying on the California Supreme Court’s decision in CBIA v. BAAQMD, 62 Cal.4th 369 (2015), to conclude that Petitioner’s fire safety expert improperly focused his analysis on existing environmental hazards not caused by the project, rather than the project’s impacts on the existing environment.
The City of Long Beach and the California Attorney General as intervener (“Petitioners”) challenged the City of Los Angeles’ (“City”) approval of a new near-dock intermodal rail facility that would manage the transport cargo containers coming from the port. One of the effects of the new near-dock railyard would be to substitute four-mile trips on surface streets for many existing 24-mile trips via freeway to and from other existing off-dock railyards. Petitioner challenged the CEQA analysis citing concerns about the impacts of this shift in port truck traffic and filed suit, arguing: (1) the project description did not accurately describe indirect impacts resulting from the project; and (2) the air quality analysis inadequately addressed both direct and indirect impacts of the project.
First, the court considered and rejected the City’s exhaustion defense against clams raised for the first time by the California Attorney General after the conclusion of the administrative proceedings, finding that the Attorney General is exempt from CEQA’s exhaustion requirements consistent with “the Attorney General’s unique authority to protect the environment of the State of California.” The court next held that the City’s decision to perform only a single modeling run with a 50-year analysis range the EIR was inadequate to estimate how frequently or for what length of time the level of particulate air pollution in the area surrounding the new railyard would exceed the EIR’s standard of significance. The court also concluded that the EIR’s cumulative analysis was inadequate because it did not adequately focus on the combined impacts of the proposed project and another large railyard expansion proposed by Union Pacific adjacent to the proposed project.
The court also held that crucial information regarding air quality was omitted from the EIR. It reasoned that though the EIR showed that as a result of the trip length reduction total particulate matter emissions from trucks would be reduced by the project compared to the no project alternative, the EIR did not adequately explain that in the vicinity of the proposed new railyard, air quality would be substantially worse with the railyard than without it, and that the vicinity included homes and schools. Finally, the court rejected Petitioners’ claims that the EIR was required to account for truck trips to and from the Hobart railyard that would result from its new excess capacity. It reasoned that the record supported the EIR’s conclusion that a predicted level of economic growth would occur over the decades with or without the near-dock rail project, and that the project was not necessary to enable the operator to service anticipated growth at the Hobart facility and was, thus, not an indirect impact of the project.
Real party in interest, Verizon Wireless, sought the approval of a wireless telecommunications facility to be constructed in a dedicated city park. Prior to the project approval process, City staff first made the determination that the project was eligible for a CEQA exemption under section 15303 (“small facilities exemption”), and consistent with the City’s administrative rules, the Petitioners filed an appeal of the CEQA determination which was ultimately rejected by the city council. Moving next to consideration of the merits of the project, the city hearing officer held a public hearing and approved the development and use permits for the project. Petitioners filed an administrative appeal of this decision, though no grounds challenging the city’s CEQA determination were raised in this appeal, and the City rejected the appeal and upheld the permit approvals. Petitioner filed suit, arguing: (1) the permit approvals violated the terms of the city charter which required voter approval; (2) the project did not fit the terms of the section 15303 exemption; (3) even if it did apply, the unusual circumstances exception and the location exception applied. The trial court rejected the claims and Petitioner appealed. The court of appeal affirmed.
As to the CEQA claims, the court first considered and rejected the City’s defense that Petitioner failed to exhaust its administrative remedies regarding CEQA when they failed to appeal the CEQA determination when Petitioner appealed the permit approvals. It reasoned that because the City never held a public hearing or provide an opportunity to make objections prior to making its staff-level CEQA determination, the exception to the exhaustion requirements under Public Resources code section 21177, subdivision (e), applied to Petitioner’s CEQA claims. On the merits of Petitioner’s CEQA claims, the court found that the project was eligible under the small facilities exemption, reasoning that the size of the project (534 sq. ft.) was smaller than “a single-family residence, store, motel, office or restaurants,” which are expressly allowed under the exemption. The court also rejected the applicability of the unusual circumstances exception, reasoning that even if petitioner’s claim that the location within a park was an unusual circumstance, the biological resources report prepared in support of the project provided substantial evidence that the project would not have a significant effect on the environment as a result. Moving to petitioner’s location exception claim, the court found no such exception applied, because petitioner presented no evidence that the park was “designated” as an “environmental resource of hazardous or critical” as required under the regulation. As for the non-CEQA claims, the appellate court found that approval of the project did not require voter approval when changing the use of a public park as required by the city charter. It reasoned that the “faux tree” design of the project, as well as its very small footprint in relation to the size of the park was consistent with the existing park use and, thus, did not change the use or purpose of the park.
Petitioners challenged the City’s approval of a mixed-use, infill project with 68 residential units, approximately 8,000 square feet of retail and administrative office space, and 4,000 square feet of gallery space. The 3.4 acre site was a former car dealership and is located within one-quarter mile of a commuter rail station. The City adopted a mitigated negative declaration (MND) that tiered from an environmental impact report for the Town Center Specific Plan (TCSP EIR) which governs the area. The project as first designed had a shortfall of 84 parking spaces, but several last-minute revisions reduced the shortfall to only 19 spaces. Petitioners’ claims largely relied upon impacts purportedly caused by the shortage of parking spaces, arguing that the City: (1) improperly tiered the MND from the TCSP EIR; and (2) violated the Subdivision Map Act (SMA) by failing to adopt adequate findings. The trial court denied the petition, and Petitioners appealed.
The appellate court affirmed. The court first rejected the CEQA claim holding that the primary impacts associated with parking for the project were exempt from CEQA. It reasoned that despite the consideration of the impacts in the MND, the enactment of Public Resources Code section 21099 under SB 743 prior to the City’s approval of the project eliminated any need to consider such impacts under CEQA. As for the improper tiering claim, the court held that Petitioners cited to no evidence in the record to identify any deficiencies in the traffic analysis prepared for the project specific impacts that were not contemplated in the TCSP EIR. The appellate court also rejected the SMA claims that the project did not meet the parking requirements in the TCSP and was inconsistent with transportation policies in the TCSP, finding that Petitioners’ arguments amounted to speculation, rather than evidence, and that they cited to no evidence contradicting the City’s determination that the project complied with the TCSP’s multi-modal transportation policies.
The City of Visalia amended its general plan pertaining to neighborhood commercial districts, adding a limitation that no tenant could occupy more than 40,000 square feet and set minimum separation requirements for neighborhood centers and adopted an environmental impact report in support of the decision. A shopping center owner submitted expert testimony regarding the potential for urban decay by a broker who opined that most grocers would not build less than 40,000 square feet, and that smaller stores had gone out of business. The broker also argued that substitution of less successful, lower volume tenants would eventually lead to physical decay in centers as a result of reduced investment, and complained of the reduction in commercial designation for one commercial center site. The trial court held it was insufficient to demonstrate that the limitation may have a significant environmental effect as a result of urban decay.
The appellate court affirmed, finding that none of the evidence offered by the property owner was substantial in character. It reasoned that the fact that some grocery stores would not build at 40,000 square feet or less was not evidence that no grocery store would be constructed. The evidence that one grocer was unsuccessful (building in the 10,000 to 20,000 foot range), did not foreclose that another grocer could build a larger store that meets the 40,000 square-foot requirement (additional evidence showed that Walmart had recently constructed a 38,000 square-foot store in Visalia). Further, the court held that there was a lack of evidence that urban decay would occur, just speculation.
Petitioners challenged the County’s approval of a distributed antenna system for wireless cellphone coverage which included 13 microcell transmitters placed on utility poles in the Day Valley area in Aptos. The microcells are two-foot by one-foot antennas mounted on an extender pole and attached to a utility pole. The applicant filed individual permits for each microcell and the County had found that the project, both individually and as a whole, was exempt from CEQA, pursuant to the small structures exemption (14 C.C.R. §15303). Petitioners argued that: (1) the County improperly segmented its analysis of the project; (2) there was a cumulative impact resulting from the whole of the project, as well as Petitioner’s assertion that AT&T was likely to file for its own distributed system in the area soon; (3) the project fell under a “location exception” for a “mapped protective designation”; and (4) that there were unusual circumstances that precluded use of the exemption. The trial court denied petitioners’ claims and petitioners appealed.
The court of appeal affirmed. The court found the County did not improperly segment the project, nor fail to consider the cumulative impacts of the project. It reasoned that despite the fact that the applicant filed for separate permits for each microcell, the record was clear that the County had always treated the microcells together as one project which was authorized under the terms of the section 15303 exemption which uses the plural when describing the number and type of structures eligible for the exemption. The court next rejected the claim that the County had an obligation to consider the potential AT&T project finding it to be speculative since it was nothing more than a rumor based upon hearsay. Next, the appellate court rejected petitioners’ “location exception” claim, finding that petitioners could cite to no evidence of an impact on an area “designated” as an “environmental resource of hazardous or critical concern.” Finally, the court found that there was nothing unusual about the use of several small structures to be used to provide utility extensions in a rural area.
Petitioners successfully challenged the City’s approval of a proposed wind turbine project under the California Environmental Quality Act (“CEQA”). The trial court concluded that the City’s decision to adopt a mitigated negative declaration was in error and, instead, was required to prepare an EIR. Post-trial, the trial court awarded petitioners a partial attorney fees award under the private attorney general statute in Public Resources Code section 1021.5. The City and the real-party-in-interest (“Respondents”) filed an appeal on the fee award, arguing that the trial court erred when finding that, despite the “very close call” over whether Petitioners had a personal financial interest that was sufficient to outweigh the burden of bringing suit, a fee award could be apportioned to address the balancing of responsibilities. Respondents reasoned that the court could only consider apportionment of the fee award, after concluding that the petitioner’s interest did not disqualify it from the fee award. The appellate court rejected respondent’s claim finding that record for the trial court’s determination showed that it had impliedly found that Petitioners had a sufficient financial interests to incur some, but not all, of the costs of litigation. Thus, the trial court’s apportionment was a reflection of this implied determination that is required under the statute.
If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Daniel Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc. 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.