Courts have frequently reminded lead agencies of the obligation to examine the whole of the project, thereby expanding the scope of CEQA analysis. The recent decision of County of Ventura v. City of Moorpark also examines the issue of the whole of the project, but in reverse. If GHAD activity is exempt (Public Resources code sections 26559, 26601), does the exemption apply to the whole of the activity or just the abatement activity?
The State of California formed the Broad Beach Geologic Hazard Abatement District for the purpose of restoring a 46 acre stretch of Broad Beach in the City of Malibu. The restoration project initially called for deposits of 300,000 cubic yards (“CY”) of sand, and periodic replenishment of similar amounts. Each of the periodic replenishments required 44,000 one-way truck trips, and the likely material sources were quarries located between Fillmore and Moorpark, more than 40 miles away. The restoration project was approved for a twenty-year time period.
Concerned about the impacts of the hauling operations and following discussions with the lead agency, the City of Moorpark entered into a settlement agreement. Key terms included restrictions on trucks parking or staging in Moorpark and directions for trucks to use certain state routes. Essentially, the settlement agreement shifted the truck traffic out of Moorpark to elsewhere. The terms of the settlement agreement were incorporated into the beach restoration project, and the Coastal Commission approved a coastal development permit for the project. Two public entities affected by the change in traffic patterns, the County of Ventura and the City of Fillmore, filed suit challenging the CEQA exemption and the settlement agreement on multiple grounds.
GHADs enjoy statutory exemptions for both the formation and implementation of actions “necessary to prevent or mitigate an emergency” (Public Resources Code §§26559 and 26601), rendering those actions exempt from CEQA. (Public Resources Code §21080(b)(4).) As to the CEQA exemption, the appellate court recognized that the settlement agreement had been incorporated into the project itself, rendering it part and parcel of implementing the beach restoration project. Reviewing the geologic hazard abatement district law, the court then concluded that the settlement agreement constituted an improvement and was, thus, an action “necessary to prevent or mitigate an emergency” and therefore exempt from CEQA.
Appellants also challenged the settlement agreement as pre-empted by the Vehicle Code, arguing that the City unlawfully established a local traffic control ordinance in contravention of Vehicle Code section 21. The appellate court rejected this argument, concluding that a decision by the lead agency and its contractors as to appropriate and otherwise lawful haul routes did not violate state law and as a contract the Vehicle Code provisions were inapplicable. The appellate court also rejected the claim that the City of Moorpark was exercising its legislative powers outside of its municipal boundaries when designating haul routes for the restoration project trucks. The court concluded that Moorpark was not exercising its legislative powers but its contractual powers, and such exercise was not prohibited.
Appellants also argued that entire agreement was void, because the terms of the agreement prohibited the District from later exercising its police power. The agreement terms in question limited the discretion of the District in the future to alter haul routes, effectively transferring that power to Moorpark. On this issue, the appellate court agreed that the District had unlawfully surrendered its police power to change haul routes when there were changed circumstances warranting revision of those routes. The final issue for the court was that in light of its determination that the District had improperly surrendered its police power, was the court required to invalidate the entire agreement. On this point, the court found that the settlement agreement still retained valid purposes, and that only the offensive provisions need be struck.
William W. Abbott is a shareholder at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.