Welcome to Abbott & Kindermann’s 2019 2nd Quarter cumulative 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. 2019 CEQA UPDATE
To read the 2018 cumulative CEQA review, click here: https://blog.aklandlaw.com/2019/01/articles/ceqa/2018-ceqa-annual-review/
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:
Protecting Our Water & Environmental Resources v. Stanislaus County, S251709. (F073634; nonpublished opinion; Stanislaus County Superior Court; 2006153.) Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: Is the issuance of a well permit pursuant to state groundwater well-drilling standards a discretionary decision subject to review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) or a ministerial action not subject to review?
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?
Real parties filed for approvals to construct three homes on contiguous parcels in Berkeley hills. The City Board of Zoning Adjustment found that the proposed construction qualified for a Class 3 exemption (new construction of small structures.) Appellants contested the Board’s decision granting a categorical exemption citing the following causes of action: “1) the location exception under CEQA, 2) the unusual circumstances exception under the Guidelines, and 3) the City’s violation of the zoning requirements when they failed to require additional permits for a fifth bedroom on one of the parcels.” The trial court denied the petition for writ of mandate in its entirety.
A Class 3 exemption under CEQA allows for construction of new small structures of up to three single family residences in an urbanized area without environmental review. Guidelines, § 15303. The location exception to the Class 3 exemption states that a project location in a particularly sensitive location, subject to impacting an environmental resource of hazardous or critical concern, must go through environmental review. Guidelines, §15300.2, subd. (a).
While reviewing Plaintiffs first and second cause of action, the court applied to Supreme Court’s standard of review in Berkeley Hillside 1, 60 Cal.4th at pg. 1093, holding that the City’s actions must display an abuse of discretion where there was no ‘reasonable possibility that the activity will have a significant effect on the environment.’ Guidelines, §15300.2, subd. (c).
The Court further bifurcated its standard of review for the location exception into two separate prongs. 1) Unusual circumstances create an exemption to CEQA exception, and 2) the location is “an environmental resource of hazardous or critical concern.” Guidelines, § 15300.2(a). As part of their review of the “unusual circumstances” argued by Plaintiffs, the Court reviewed whether the project’s location along a faultline with the potential to create an earthquake triggered landslides requiring full CEQA analysis.
Plaintiffs allege that the mere existence of a potential landslide is sufficient evidence to make all landslide areas “environmental resources of hazardous or critical concern.” The Court disagreed with Plaintiffs premise in its entirety holding that a potential for landslide does not provide clear and convincing evidence that an unusual circumstance exists. The Court’s plain understanding of the language written in the Guidelines alleged that potential earthquakes and landslides are “geological events…. and not resources.” The Court further reasoned that the geotechnical report reflects a concern for economic loss to property and human lives, but not a sensitive resource. The Court also held that the California Supreme Court in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473. stated, “despite [CEQA’s evident concern with protecting the environment and human health, its relevant provisions are best read to focus almost entirely on how projects affect the environment.” The Court lastly held that because the Legislature did not provide an exception to Class 3 projects for landslides or earthquakes, the Court would not further extrapolate on law that does not exist.
The Court upheld the trial court’s dismissal of Plaintiffs third cause of action alleging the project required a new permit because of the addition of a fifth bedroom. The Court agreed with the City’s reasoning that that a new use permit was already issued on the project for new construction. Requiring an additional permit for the project because of the addition of a single bedroom would be redundant. The Court examined the plain language of the mini-dorm ordinance and held that the Planning Commission crafted the ordinance to be interpreted as broadly as possible. The City interpreted their Ordinance for the addition of a single room to one of the 3 parcel properties to be applied broadly since the project conforms with pre-existing zoning and insignificant impact. The Court reasoned that greater deference should be given to the City to interpret its own ordinances.
Further, the Court held regardless of deference to the City’s interpretation of its ordinance, a plain read of the ordinance would still favor dismissal of the third cause of action. The plain language of the ordinance implies a fifth bedroom would be in addition to a preexisting structure. Since this project is a new building, there would be nothing to build as an addition to the property. As such, the Court of Appeal held that the trial court rightly dismissed the third cause of action.
The Court of Appeal affirmed the trial court’s judgment in its entirety and awarded costs to the City for the appeal.
- Thresholds of Significance
- Negative Declarations
- Environmental Impact Reports
The question “how much is enough?” for programmatic EIRs remains an ongoing challenge for CEQA practitioners. Programmatic EIRs are frequently prepared in conjunction with broad legislative acts where specific detail as to how the policy will be administered in the future is lacking. This makes programmatic EIRs easy targets for project opponents who can always identify another study to be performed or another variable to be considered. Neither the CEQA statute nor the Guidelines provide a meaningful metric to judge sufficiency. Ultimately it is left to the reviewing courts to sort it out. The Third Appellate District addressed this issue in a recent decision involving a statutorily mandated EIR prepared by the state Department of Conservation (“Department”) concerning fracking. The legal setting is unusual because (a) the Legislature mandated the preparation of the EIR and (b) the Department did not approve any project. While the threshold legal issue involved ripeness, the Court of Appeal also addressed programmatic EIRs, EIR scope (albeit in the context of a statutorily defined project), mitigation measures, and findings.
In this appeal, the court was asked to consider the sufficiency of a programmatic EIR mandated by the legislature when Senate Bill 4 (“SB 4”) passed in 2013 (Chap. 313, Stats. 2013). SB 4 required the Department to consider the environmental effects of well stimulation (fracking) in a programmatic EIR due on or before July 1, 2015. SB 4 also required a separate independent study (“Study”) by the Natural Resources Agency on well stimulation treatments, due on or before January 1, 2015. The Department’s EIR was a programmatic document for statewide impacts but also included a more refined examination of the potential impacts in three particular oil and gas fields: Wilmington, Inglewood, and Sespe. The draft EIR contained proposed mitigation measures. However, industry representatives raised concerns that draft mitigation measures may constitute underground regulations. In response, certain measures were converted to formal regulations and others were embodied into a “Mitigation Policy Manual”. The Department finalized and certified the EIR resulting in the Center for Biological Diversity (“CBD”) challenging the EIR through a writ of mandate along with a claim for declaratory relief. CBD complained as to the level of detail, the sufficiency of the document for project specific approvals, the lack of mitigation measures, and a mitigation monitoring program. The trial court rejected all of petitioner’s claims.
Before addressing the specific issues on appeal, the court of appeal articulated three general principles applicable to judicial review of programmatic EIRs:
- Impacts and mitigation measures not determined at the first tier may be deferred to later tiers.
- The sufficiency must be reviewed in light of what is reasonably feasible, given the nature and scope of the project the “rule of reason.”
- Finally, the test as to the level of detail is: does the EIR entail sufficient information such that those who did not participate in its preparation to understand and meaningfully consider the issues. The document label is not determinative, but rather the relevant question is whether the EIR provides the decision makers with sufficient analysis to intelligently consider the environmental consequences.
Demurrer to First Cause of Action. In CBD’s first cause of action, CBD argued that the Department violated CEQA by carrying out a project of well stimulation in violation of CEQA. The Agency argued before the trial court that the case was not ripe as the Department had not approved a project, and the Department was not directly undertaking well stimulation. Both the trial court and Court of Appeal agreed with the Department. This was an unusual situation in which the lead agency was not approving a project following EIR certification.
Scope of the EIR-Inclusion of the Study. CBD also argued that the Department failed its statutory EIR obligation by not considering Volume 1 of the Study. The Appellate Court rejected this argument, noting that the Study and EIR were codified in separate code sections. While the completion dates for both suggest that the Study would be available in time for the EIR, nothing in the legislation directly linked the two together. The EIR made passing reference to Volume I of the Study but did not otherwise discuss it in depth. The court concluded that the EIR included sufficient discussion and made a reasonable effort to disclose that there were no apparent conflicts. Many of CBD’s arguments concerning conflicts between the Study and EIR involved Study Volumes II and III, which were not available at the time the EIR was certified. While CBD also argued that the EIR should have been updated to respond to Volumes II and III, the latter Volumes were not in the record on appeal and the Appellate Court had no basis to reverse the Department’s certification.
Indirect Impacts. CBD also argued that the EIR failed to evaluate the indirect impact of well stimulation (traffic, wastewater, and emissions.) The Court of Appeal disagreed given the narrow scope of the project set forth in the enabling legislation.
Mitigation Measures. CBD presents multiple challenges pertaining to the mitigation measures, all rejected by the Court of Appeal. First, the court upheld the Mitigation Policy Manual, finding that it served as a floor to later mitigation requirements. The Manual and the EIR certification reflected sufficient detail and commitment in implementation to overcome the claim of deferred mitigation. The Manual (over 100 pages) included guidelines and checklists to guide proper application as individual well stimulation permits were applied for. CBD also argued that the EIR failed to include feasible mitigation measures for indirect impacts. The Department had deleted these mitigation measures in the final EIR on the grounds that the measures were infeasible. The Department’s reasoning was that the indirect effects involved potentially opening new oil and gas fields. Due in part to the objections concerning underground regulations, the Department concluded that it was inappropriate to adopt mitigation measures pertaining to new fields as conditions of approval on well stimulation permits. The Appellate Court agreed, embracing a flexible concept of feasibility.
Findings and MMRP. CBD also asserted CEQA violations as a result of no CEQA findings and the lack of a mitigation monitoring program. The Department argued that findings and a monitoring program are not required until a project was approved. Having already concluded that the Department was not approving a project, the Appellate Court rejected CBD’s argument.
Field Specific Analysis. Finally, CBD complained that the more detailed field specific analysis was insufficient as certain discussions for the field analysis was the same as what the EIR presented for the statewide analysis. The Appellate Court observed that the fact that the impact analysis was the same did not support the conclusion that the analysis was improper. A challenger to an EIR bears the burden of showing the error, and there was no evidence in the record which demonstrated that the conclusions were incorrect. The court noted that the EIR acknowledged that later environmental analysis may be required for well stimulation within those fields given the level of detail in the first tier. This reflected the Department’s recognition that this first level EIR was not dispositive of all future CEQA review in those fields.
In 2014, real parties Forest City California Residential Development and Hearst Communications, Inc. (collectively “real parties”) sought to redevelop the San Francisco Chronicle building and surrounding structures and parcels and create a special use district (“the ‘5M’ project”). The developer advanced two options for redevelopment with one plan utilizing a residential scheme and one plan utilizing an office scheme. The DEIR and FEIR included analysis evaluating the potential alternatives for both schemes as well as a combination of both. After the public comment period and the San Francisco Board of Supervisors (“the City”) certified the FEIR, plaintiffs sought a writ of mandate in San Francisco Superior Court including alleged violations of CEQA requesting that the trial court set aside the certification of the FEIR and approval of the project. The trial court denied the writ of mandate and the First Appellate District affirmed the trial court’s decision.
On the merits, the appellate court held that the two alternate schemes were clear and provided an accurate project description. Plaintiffs argued the two schemes confused the project description; thus, the project description mislead members of the public who were unclear which project scheme would be ultimately decided upon. The appellate court disagreed. The court’s reasoning stated that the project description detailed one project with two options for different allocations of space. As such, the court found that there was more than sufficient information and clarity in the EIR and “enhanced, rather than obscured, the information available to the public.” The court further held that the project description is supposed to be treated as a fluid initial understanding of the project. Approval of the EIR need not be a blanket acceptance of the entire project description at its inception, but rather “approval of adopted characteristics of one of the proposed alternatives.”
Plaintiffs further argued that the City incorrectly analyzed cumulative impacts by relying on projects during the recession of the last decade when San Francisco has “seen a tremendous uptick in development since the recession rendering the project list defective or misleading”. The court rejected this argument. As the court explained, it is within the agency’s discretion to select the methodologies used when evaluating cumulative impacts. Plaintiffs failed to show where the City’s methodologies were “unsupported by substantial evidence.” The court further articulated that the City re-reviewed its list of projects and methodologies prior to publication of the DEIR to verify the reasonable alternatives.
As to the traffic impacts, plaintiffs asserted that the City failed to include key intersections in its analysis. As to this claim, the court held that it is within an agency’s discretion which traffic resources to evaluate. Plaintiffs had yet again failed to prove that the City committed an abuse of discretion when completing its traffic and circulation studies and plaintiffs had offered no evidence to prove an abuse of discretion. Similarly, Plaintiffs had argued that the 5M Project failed to consider the concerns of the San Francisco Park Recreation and Open Space Advisory Committee about the lack of sunlight and open spaces on the project site. The court rejected this argument stating that plaintiffs failed to show the City violated CEQA or cite any legal authority to support their argument.
Plaintiffs also asserted that the EIR’s analysis of wind impacts insufficiently examined existing conditions rather than the revised project proposal. As to this, the court held that plaintiffs failed to exhaust their administrative remedies claim with respect to the wind impacts. Nevertheless, the court did reach the merits of the claims brought by plaintiffs. The court held that plaintiffs improperly relied on the threshold established under San Francisco Planning Code Section 148 when they should have relied on CEQA Guidelines § 15126.4, subd. (a)(1)(4). Under the CEQA guidelines, a project proposal must merely identify mitigation measures for each significant impact, not redesign the project specs to encompass the “comfort threshold” requirement under San Francisco Planning Code Section 148.
Where raising concerns over the 5M Project’s shade and shadow impacts analysis, plaintiffs contended the City failed to propose proper mitigation measures for the shade and shadow impacts on the project. The court disagreed, determining that the plaintiffs failed to prove that the City abused its discretion when evaluating the shadow impacts from the project and further held that the City had the discretion to increase the shadow limits of the parks affected by the 5M Project.
Lastly, plaintiffs contended that the EIR fails to conform to existing city area plans, policies, and the City Planning Code. More specifically, plaintiffs argued that the DEIR failed to adhere to the regulations established in the Draft Central SoMa Plan. The court disagreed with plaintiffs claim holding that at the time the DEIR was in circulation the Central SoMa Plan was not adopted and therefor the City did not need to consider whether the 5M Project followed regulations outlined in a draft area plan. Further, the court rejected with plaintiffs’ argument that the City created “in essence spot zoning” to allow for approval of the 5M Project. The court summarily rejected each additional argument raised about the Project’s conformance with city policies and the City Planning Code. The court held that plaintiffs failed to provide reasoned arguments to prove the City neglected preexisting regulations and codes. The court further found that the administrative record demonstrated that the “City made a good faith effort to discuss inconsistencies with applicable policies and codes.” The court pointed out plaintiffs consistently failed to substantiate these claims with supporting evidence or legal authority.
- Litigation Procedures
When the Coastal Commission accepts an appeal, it is a hearing de novo, meaning an entirely new hearing. The decision below (i.e. city council approval) no longer has any continuing legal effect. Once the commission agrees to hear the appeal, it is appropriate for the trial court to dismiss any legal action brought to challenge the city council approval.
CEQA authorizes a trial court, following a determination that the lead agency committed a CEQA error to direct very specific CEQA corrections in an updated CEQA document. When that CEQA document comes back through the process the second time, can the project opponents then expand the issues to be address beyond what the trial court ordered? The answer is no, reflecting the finality of the earlier trial court decision.
In Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, (2019) 33 Cal.App.5th 165. project opponents filed suit over a quarry project. The trial court rejected most of the opponents claims but agreed that the traffic analysis required correction. The court issued a judgment and ordered the project approvals be set aside, that the EIR be fully decertified and an updated traffic analysis be circulated and certified. The County complied. The opponents filed a new writ challenging the updated EIR and project approval. Adding new issues beyond those in the original petition. At roughly the same time, the County filed a return to writ. Following review, the trial court determined that the lead agency had complied and then discharged the writ of mandate.
Responding to the new petition for writ of mandate, the trial court upheld the sufficiency of the traffic analysis and as to the new issues, concluded that the prior entry of judgment constituted res judicata as to all issues raised or which could have been raised. The opponents appealed and the appellate court affirmed.
Recognizing the judgment entered in the first action and the failure of the opponents to file an appeal, the appellate court concluded that it was too late for the opponents to expand the issues in the second writ as to matters which were addressed or could have been addressed in the first lawsuit. Opponents also argued that changes in law necessitated consideration of additional issues, however, as the opponents had not raised these issues in their opening brief on appeal, the appellate court would not consider the argument.
As to the recirculated traffic analysis, the appellate court affirmed the sufficiency of the updated traffic analysis but did not order that portion of the decision published.
Land use approvals often trigger two different statutes of limitation. For purposes of general plan and zoning law, a challenger must file and serve the action within 90 days of the decision. Government Code section 65009. As to the CEQA claim, the action must be served upon the agency within 10 days of filing the action. The CEQA claim must be filed within 30 or 35 days of posting the notice of determination or exemption (as appropriate), or 180 days if no notice is filed. Public Resources code section 21167. The land use statute of limitations applies to more than just permits and can include an agreement entered into between a city and utility regarding tree removal impacting a gas line. This decision modifies and replaces the 2018 decision of the same name.
- CEQA Guidelines Updates
On December 28, 2018, the Natural Resources Agency adopted the final text to a comprehensive update to CEQA. Significant changes to the regulations include addressing global climate change and VMTs. Significant improvements include proactive analysis of impacts for wildfires, greenhouse gas emissions, and transportation impacts. Climate change benchmarks within the guidelines were crafted to coincide with the State’s climate action plans. The Office of Administrative Law completed review of the Final Text also on December 28, 2018 and sent the document to the Secretary of State’s office for final publication. Once published with the Secretary of State, the Guidelines go into full effect. All CEQA documents not finalized before January 1, 2019 are subject to the content requirements outlined in the modified text. The Procedural changes to CEQA will be required of all CEQA applicants and affected agencies 120 days after the guidelines were filed with the Secretary of State’s office.
The most significant changes as outlined in the notice of proposed rulemaking include:
- “Updated exemptions for residential and mixed-use developments near transit and redeveloping vacant buildings;
- Clarified rules to make it easier to use existing environmental documents to cover letter projects;
- New provisions to address energy efficiency and the availability of water supplies;
- Simplified requirements for responding to comments;
- Clarify existing CEQA exemptions, including the use of the existing facilities categorical exemption and the emergency statutory exemption;
- Elaborate and clarify information on “tiering,” and CEQA’s more specific “streamlining” provisions;
- Clarify baseline requirements and the limitations on the ability to use historic conditions where environmental conditions fluctuate;
- Provide guidance on “pre-commitment” issues and the types of activities that an agency may (or may not) engage in prior to the completion of CEQA review;
- Add new “Energy” and “Wildfire” resource categories to the Initial Study/Appendix G checklist;
- Implement SB743 Traffic Impact Analysis changes, including requirement that VMT be used throughout the state, phased in over time, no later than 2020;
- A Technical Advisory that sets forth recommended VMT screening thresholds, as well as several examples of potential mitigation measures and alternatives to reduce VMT; and
- Modified provisions to reflect recent CEQA cases addressing baseline, mitigation requirements and greenhouse gas emissions.”
Further, Appendix G of the CEQA Guidelines includes an updated environmental checklist. The Final Statement of Reasons often provides guidance and gap fillers for ambiguity in the regulations.
More information can be found at: http://resources.ca.gov/ceqa/
William Abbott, Diane Kindermann, and Glen Hansen are attorneys 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.