Welcome to Abbott & Kindermann’s 2019 4th 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 case pending at the California Supreme Court. The cases 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?
County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?
A. Is Inaction a Project?
The Foundation filed suit against the Department for failure to comply with CEQA, arguing that the Department’s inaction to maintain and repair the roof of a historic former hotel that it owned was an agency decision subject to CEQA. The trial court held that the Department’s failure to seek or allocate funding to maintain the hotel was a project, but denied the petition concluding that the Foundation’s claim was barred by the statute of limitations. The Foundation appealed and the appellate court affirmed the judgment though it found that the Department’s inaction was not a project subject to CEQA. Contrasting the CEQA statutes with NEPA, which has supported some instances where inaction could provide grounds for compliance with NEPA if the agency failed to act when it had a mandatory duty to do so, the court noted that no similar provisions existed under CEQA. It further reasoned that even if CEQA did require analysis of such inaction, there is no statute or regulation imposing a mandatory duty on the Department to maintain the former hotel.
The City of San Diego amended its zoning code to permit cannabis enterprises as a use within a number of zoning districts in the City. The ordinance also had the effect of capping the number of facilities. As part of the code amendment, the City concluded that the action was not a “project” for CEQA purposes, and accordingly did not prepare any formal CEQA documentation. Petitioner challenged the ordinance on CEQA grounds. The trial court denied relief and at the court of appeal, Petitioner argued that Public Resources Code §21080 provided as a matter of law that a zoning ordinance was a project. The court of appeal rejected that argument, reaching a contrary conclusion to a similar holding in Rominger v. County of Colusa (2014) 229 Cal.App.4th 690. The Supreme Court granted review to resolve the conflicting appellate decisions.
The Supreme Court first addressed the potential conflict between Public Resources code §§ 21065 and 21080. The Court ultimately concluded that zoning ordinances were not “projects” per se, notwithstanding the suggestion in § 21080 to the contrary.
The Supreme Court then addressed whether the City reached the correct conclusion when concluding that the ordinance was not a project. On this issue, the Supreme Court reversed. It held that the obligation of the lead agency in applying the commonsense exemption is to consider “the potential environmental effects of undertaking the type of activity proposed, ‘without regard to whether the activity will actually have environmental impact,’… a project is a CEQA project if, by its general nature, is capable of causing a direct or reasonably foreseeable indirect physical change in the environment.” Union of Medical Marijuana Patients, citing Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 382. With respect to indirect effects, the lead agency should evaluate two scenarios. An indirect effect is not reasonably foreseeable if “there is no casual connection between the proposed activity and the suggested environmental change or if the postulated causal mechanism connecting the activity and the effect is so attenuated as to be ‘speculative.’” Union of Medical Marijuana Patients citing City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 541-543. The Court then cited to examples: adoption of LAFCo policies permitting development outside of cities was a project (Id.) whereas the formation of a Mello-Roos district for the purposes of new school facilities was not a project as the causal connection was missing (Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464).
The Court also noted that the required inquiry was somewhat theoretical, as factual records are rarely developed in circumstances involving the application of commonsense exemptions. Applying the aforementioned criteria, the Court concluded the City’s ordinance had the potential for new uses to be established. This in turn created the potential for changed traffic patterns, a reasonably foreseeably indirect impact. Reinforcing the theoretical nature of the inquiry, the court added “the likely actual impact of an activity is not at issue in determining its status as a project.”
In 2014 IDEA Enterprise submitted an application for the demolition of two existing single-family houses on adjacent parcels, and construction of seven detached condominium units on a site in the City’s North Park. The project was to occupy 42% of the site which is located on the hillside of a canyon with a 35 to 41 degree slope. Initially, the City told IDEA that the project did not comply with the minimum density under the General Plan (requiring at least 16 residential units), but in late 2015 City staff informed IDEA that the project could be approved with only 7 units due to the site’s environmental constraints. The City then issued a determination that the Project was categorically exempt from CEQA review under the Infill Exemption (CEQA Guidelines §15332). Petitioners argued that the project was not eligible for the exemption because the project did not meet the density requirements of the City’s general plan as required by the exemption. The trial court denied Petitioners’ petition for writ of mandate because the City’s determination that the project was consistent with the general plan density requirements was supported by substantial evidence found in the General Plan itself which incorporates community plan policies which anticipated subsequent modifications for site specific conditions, coupled with implementing hillside protection regulations that limits actual developable area of a parcel. Thus, the trial court found that a general plan amendment was not necessary to approve the project.
Petitioners’ appealed and the appellate court affirmed. The court of appeals held that great deference must be given to a public agency’s finding of consistency with its own General Plan. The court found that the extensive findings by the City Council show that it considered the General Plan, Community Plan, and the City’s steep hillside development regulations when approving the project, and in doing so balanced the competing interests such that they did not abuse their discretion by finding the project exempt from CEQA. Additionally, the court rejected Holden’s related assertion that the General Plan must be amended before the city may allow development of a site with less density than recommended in the General Plan because the Project complied with the General Plan, Community Plan and City’s development regulations. Therefore, the density recommended by the General Plan need not be rigidly followed.
Real parties filed for approvals to construct three homes on contiguous parcels in the Berkeley hills. The City Board of Zoning Adjustment (“Board”) found that the proposed construction qualified for a CEQA Class 3 exemption, which allows for construction of new small structures of up to three single family residences in an urbanized area without environmental review. (CEQA Guidelines, § 15303.) Opponent Berkeley Hills Watershed Coalition (“Coalition”) appealed to the City Council, and the City Council upheld the Board’s decision. Thereafter, The Coalition filed suit contesting the Council’s decision adopting a categorical exemption and approving the project. At trial, opponents argued against the approval based upon: “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 Coalition’s petition for writ of mandate. The Coalition appealed, arguing applicability of the location exception to a CEQA exemption as well as its land use claim.
The appellate court first reiterated the rule from Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, for the “unusual circumstances exception.” A reviewing court applies the substantial evidence standard of review to determine if there are unusual circumstances, with deference to the determination made by the agency. If unusual circumstances are found, the court then applies the fair argument test to determine if there is a “reasonable possibility that the actions will have a significant effect on the environment” as a result of those unusual circumstances. The Court of Appeal then articulated a similar approach to application of the location exception, which provides that an activity ordinarily exempt might require environmental review because of locational considerations “where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” (CEQA Guidelines §15300.2(a).)
The Coalition argued that the mere existence of a potential landslide was sufficient evidence to make landslide areas “environmental resources of hazardous or critical concern.” The court disagreed, holding that a potential for earthquakes and landslides are “geological events…. and not resources.” The court further reasoned that the geotechnical report reflected a concern for economic loss to property and human lives, but not a sensitive resource, and as stated by the California Supreme Court in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473, “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;” not the other way around as urged by the Coalition.
As to the Coalition’s land use claim, the court upheld the trial court’s rejection of the Coalition’s claim which asserted that the project required another permit because of the addition of a fifth bedroom. It reasoned that, applying deference to the City’s interpretation of its own ordinances, 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. Further, the court held that a plain reading of the ordinance would still support the City’s approval action, as the subject ordinance implies a fifth bedroom would be in addition to a pre-existing structure, not a new one such as involved in the instant case. As such, the Court of Appeal held that the trial court correctly denied relief on the third cause of action.
C. Negative Declarations
The City of Sacramento, a charter city, approved a fifteen-story mixed use project in its Midtown area, significantly in excess of its adopted height and FAR standards. This approval was based upon a general plan policy which stated, “The City may allow new development to exceed the maximum allowed FAR or density if it is determined that the project provides a significant community benefit.” When evaluating the project, staff identified many benefits associated with the project which “outweighs strict adherence to the General Plan’s FAR.” These benefits included a high level of design, implementation of the City’s targets for increasing households in its core, location in an infill location reducing reliance on personal vehicles, and lowered carbon emissions. The City conducted CEQA review based upon the sustainable communities environmental assessment (“SCEA”). The ensuing litigation challenged both the avoidance of the development limits of the general plan as well as the SCEA. Both the trial court and Court of Appeal upheld the City’s approval.
Appellant first argued that the City’s practice violated the requirement for zoning uniformity (Gov. code section 65852.) However, this code section did not apply to the City of Sacramento as it was a charter city. Appellant next argued that the City approval violated an obligation to maintain a uniformity by virtue of the Equal Protection and Due Process clauses of the 14th Amendment and California Constitution, along with a contract implied at law between property owners and the zoning authority. Acknowledging the very deferential standard of review when evaluating local land use approvals and the general plan policy, the Court found ample justification in support of the City’s actions. The detailed staff report served as the supporting rationale relied upon by the court.
Appellant also argued that the approval constituted spot zoning. The court rejected this claim, concluding that the zoning did not operate to create a limited zone surrounded by higher densities, nor did it preclude adjacent owners from achieving a similar benefit. Similarly, the Court of Appeal rejected the argument that there was an improper delegation of legislative authority to the Planning Commission. Pursuant to the City code, it was the city council which made the final determination. The community benefit standard was no less vague than the common public health, safety, and welfare standard which had upheld repeatedly against vagueness claims.
With respect to CEQA, Appellant challenged the City’s use of the SCEA, arguing that the MTP/SCS adopted by SACOG lacked sufficient detailed information such as building densities, but the Appellate Court concluded that such detail was not required in the MTP/SCS. As a regional planning document, the SCS contained sufficient information upon which the City could determine its conformity. Petitioner also challenged the impact analysis. However, the City had addressed impacts and required mitigation measures through the initial study. While the City may not have looked at the cumulative effects of new high-rise projects in Midtown in its general plan EIR, the EIR for the SCS plan had addressed cumulative effects. That was sufficient and the City could rely upon the SCS EIR for that evaluation.
Plaintiff and Appellant, Maacama Watershed Alliance (“MWA”) appealed a judgment at the trial court rejecting a challenge to the County of Sonoma’s adoption of a mitigated negative declaration (“MND”). The project was located in Knights Valley in Sonoma County on an 86-acre parcel already zoned for extensive agriculture. The project contained 46 acres of vineyards and preexisting residential buildings. The superior court held that the Sonoma County Board of Supervisors’ approval of the MND was proper and denied MWA’s writ of mandate.
On appeal, MWA argued the following: 1) the MND does not sufficiently evaluate the effects of erosion and landslide issues; 2) there is substantial evidence to support a fair argument that the project will significantly affect salmonids, groundwater, and fire suppression; 3) the County ignored the significant visual impacts when approving the project; and 4) an EIR is necessary to examine the project’s potential fire impacts. The Court of Appeal denied all four arguments presented:
- First, the Court held that the record showed detailed consideration and conditions of approval to ensure slope stability at the project location. The Court held that MWA failed to cite to substantial evidence in the record to support a fair argument that the project , as mitigated, may have significant impacts, and that the County properly approved adoption of measures to reduce any expected effects to a level of insignificance, and required the winery to monitor any unanticipated conditions that could potentially impact erosion or landslide issues.
- Second, the Court held that the County properly determined the project would have a less than significant impact on groundwater supply, the salmonids populations, and fire suppression. Applying the standard of “whether there is substantial evidence to support a fair argument the project will have significant effects,” the Court held that the project MND’s analysis was sufficient. It reasoned that the project would have less water demand than that of a residence, and the impact to groundwater recharge was minimal. Further, the Court determined there was insufficient evidence cited by MWA to suggest the project would affect creek flows, thus negatively impacting the salmonid population. The Court stated that any impacts to water withdrawals from wells for fire suppression were adequately addressed in a mitigation measure requiring that the project reduce water use elsewhere on the property to meet the “performance standard of ‘no net increase.’”
- Third, the Court was unconvinced the County ignored the visual impacts of the project on the surrounding area pursuant to the CEQA guidelines. As the Court reiterated under the Guidelines, “an agency should consider, ‘whether a proposed project would substantially degrade the existing visual character or quality of the site and its surroundings.’” The Court stated that MWA’s claims regarding “the unsightliness of the existing residence is not substantial evidence that the winery building, in an area zoned for wineries and tasting rooms, will create a significant impact.” The Court further reasoned that the conditions of approval required the project proponent to meet specific standards to address the exact visual issues MWA argued against, and as such the MND did not improperly defer mitigation since the standards were set by the County.
- Fourth, The Court dismissed MWA’s argument that the project was required to complete an adequate fire risk analysis. The Court reasoned that the record shows that the project includes fire suppression measures and meets all application fire safety codes. The Court further cited to City of Hayward v. Trustees of California State University (2015) 242 Cal.App.4th 833, when concluding that “the need for additional fire protection services is not an environmental impact that requires a project proponent to mitigate.” As the Court pointed out, MWA already convinced the Board of Supervisors to require modifications to the project securing additional fire prevention measures. As such, the Court denied MWA’s appeal, affirmed the superior court’s denial of the writ of mandate and awarded costs on appeal to the County.
The Court of Appeal affirmed the trial court’s denial of a writ of mandate demanding the City of Los Angeles (“City”) prepare an EIR for the conversion of a former rental apartment building into a hotel. The Court held that as the building had not been a part of the rental housing market for years, there was no need for an EIR to assess the loss of affordable housing.
The owner of an 18-unit apartment building in Hollywood filed an application in 2009 to convert the apartment complex into a 39-unit condo project. Between 2009-2014 all previous residents of the 18-unit complex vacated and the owner abandoned his plans to convert the property. Further, the owner withdrew the building in 2013 from the rental market as allowed by the Ellis Act rental use in 2013 and thereafter proposed a boutique hotel (“Project”). By July 2015, the owner filed applications for a CUP, variance, and rear yard adjustment with the City to convert the property. After conducting an initial study, the City determined “the Project would cause either a less-than-significant impact or no impact.” As a result, the City adopted a mitigated negative declaration (“MND”) in December 2015. An unincorporated association, Hollywoodians Encouraging Rental Opportunities (“HERO”), filed suit against the City to set aside the project approvals.
HERO alleged: 1) the record supported a fair argument of substantial environmental impacts resulting from the project, 2) the initial study failed to examine cumulative impacts and therefor the Project approvals were not proper, 3) the City improperly bifurcated the MND from the Project approvals, and 4) the City improperly handled HERO member Shain’s appeal to the Los Angeles Area Planning Commission. The trial court denied the petition concluding that the City used the proper baseline because during 2015 when the MND was approved by the City, there were no adverse impacts on population or housing due to the lack of tenants. The trial court affirmed the City’s determination that the Project was not subject to the Ellis Act because of the owner’s withdrawal of the units from residential use, as articulated by the Ellis Act. On appeal, the appellate court agreed. The appellate court found the building was uninhabited when the Project commenced in 2015. The appellate court rejected HERO’s contention that the units may be later restored as rental units as purely speculative and that the Ellis Act allows property owners to exit the residential real estate market. The record supported the City’s determination that the property was removed from the residential housing market in 2013 when residents vacated. As such, the appellate court held that the City used an appropriate baseline and HERO lacked a fair argument to prove the project may have a significant environmental impact.
HERO further alleged the City failed to analyze cumulative impacts. The court disagreed, concluding that because there was no substantial evidence to show an adverse project impact the City was not required to evaluate cumulative impacts. The appellate court acknowledged that it was aware of the shortage of affordable housing in Los Angeles. However, the appellate court determined that the building vacancy as a result of the Ellis Act effectively precluded evaluation of the loss of housing as part of a CEQA evaluation.
D. Environmental Impact Reports
Petitioners filed a petition for writ of mandate challenging the adequacy of an environmental impact report (EIR) to accurately estimate the amount of reactive organic gas (ROG) emissions and to adopt all feasible mitigation measures for a geothermal power plant project. Petitioners challenged Petitioners also asserted that the Great Basin Unified Air Pollution Control District was not the proper lead agency to undertake preparation of the EIR. The trial court denied the petition for writ of mandate, finding the District was the proper lead agency, the permit to operate conclusively set the emissions limit, and that the District properly determined that the additional proposed mitigation measures were not feasible. Petitioners appealed and the appellate court affirmed in part and reversed in part.
Regarding the lead agency status, the court held that the District was the proper lead agency because even though a small portion of the project was located within Mono County jurisdiction, the plant itself was located on federal lands leaving the District with the greatest amount of responsibility to supervise and approve the project as a whole. As for the emissions limit, petitioners had argued that the District’s redaction of the underlying data as “proprietary information,” but included the bottom line total emissions number, failed to present substantial evidence in support of its emissions conclusions. The court rejected the claim, agreeing with the District that the total emissions figure was sufficient because it set the maximum emissions allowed by the operations, there were adequate measures in place to detect the emission amounts, and the District included sufficient means of enforcement.
The court reversed the trial court decision, however, regarding the adequacy of District’s infeasibility determination of certain mitigation measures proposed by petitioners. It reasoned that despite petitioner’s detailed technical and expert support of proposed technological measures to address potential emissions leaks, the District’s summarily dismissed the measures as applicable to refineries, not geothermal plants, and the failure to “give a good faith, reasoned analysis for not adopting” the measures supported the conclusion that there was insufficient evidence to support the infeasibility determinations.
In 2015, the City of Sacramento adopted an update to its general plan. The 2015 general plan amendment (“2015 Update”) was an update to a comprehensive 2030 plan adopted in 2009. The 2015 Update included an extension of the general plan to a 2035 horizon date and revisions to the traffic thresholds of significance. Following a recommendation of approval of the draft 2015 Update by the planning commission, the City Council notice consideration of the 2015 Update at a March council meeting. This notice referenced 13 supplemental changes to the general plan, including eight not considered by the commission. Following adoption, the petitioner (Citizens) filed a timely action arguing that the general plan was invalid as it violated the internal consistency doctrine and that the EIR failed to comply with CEQA. Both the trial court and court of appeal upheld the 2015 Update and the EIR.
The General Plan Challenge
Petitioner presented a singular challenge to the 2015 Update, arguing that the inclusion of one sentence violated the general plan internal consistency requirement (Gov. Code §65300.5.) The challenged sentence read “The City, in its sole discretion, shall determine a proposed project’s consistency with the City’s General Plan. Consistency is achieved if a project will further the overall objectives and policies of the General Plan and not obstruct their obtainment, recognizing that a proposed project may be consistent with the overall objectives of the General Plan, but not with each and every policy thereof. In all instances, the City may use its discretion to balance and harmonize policies with other countervailing policies in a manner that best achieves the City’s overall goals.”
The appellate court found no facial violation of the internal consistency requirement or conflict with the General Plan Guidelines. The opponents failed to identify any specific conflicting policies. At best, the opponents complained of what the City might do in the future. From the appellate court’s perspective, there was nothing in the challenged language which presented “a total and fatal conflict with applicable statutory prohibitions or the conduct is likely to occur in the great majority of circumstances.” The opponent’s string of hypothetical future decisions was insufficient to set aside the general plan. The court then turned to the CEQA claims.
The CEQA Challenge
Adios LOS. As to traffic impacts, the General Plan included LOS standards, but recognized that exceptions to the standards were permitted in certain circumstances. Notwithstanding that certain roadways would operate at LOS E and F in 2035, the City concluded that as a result of various general plan policies including an emphasis in multi-modal mobility and a shift away from just considering automobile delay and travel times, that the impact was less than significant, and no mitigation was required. Citizens challenged the LOS revisions, but the appellate court concluded that the challenge was moot as a result of Public Resources Code section 21099(b)(2) which provides that “automobile delay, as described solely by level of service or similar measure of vehicle capacity or traffic congestion shall not be considered a significant impact on the environment” except for roadway capacity projects. The court also concluded that, because the vehicle miles traveled (“VMT”) provisions of the CEQA Guidelines (§15064.3) were not yet mandatory for the City, Citizens’ alternative argument that the City failed to perform a VMT analysis also failed.
The “No Project” Alternative. The No Project alternative was based upon buildout of the 2030 General Plan. Although the estimated buildout for 2030 and 2035 were assumed to be the same, the 2035 plan included energy efficiency provisions, greenhouse gas reductions, a climate action plan and more aggressive flood protection policies. Citizens objected, and the court of appeal viewed the challenge not as a substantive failure of the No Project alternative, but as a challenge to the City’s rejection of the No Project alternative, which the City rejected because if failed to achieve objectives sought by the 2035 plan. As Citizens failed to properly cite to the record to show a lack of substantial evidence in support of the City’s rejection, its challenge to the No Project alternative failed.
EIR Recirculation Was Not Required. A lead agency’s decision not to recirculate must be supported by substantial evidence. However, a challenger must prove a “double negative” “that is, [Citizens] must demonstrate that there is no substantial evidence to support a determination that the [changes were] not significant new information” quoting from South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330. Among other arguments, Citizens asserted that the modification to the LOS standards in the plan required recirculation. The court noted that the policy changes did not trigger an impact and that there would be no changes in the physical impacts otherwise anticipated to occur. Thus, the court concluded that there was not a new impact or a substantial increase in the severity of an impact.
Remaining Issues. The appellate court rejected Citizens’ greenhouse gas arguments because (a) the change in LOS policy did not change physical impacts; and (b) Citizens failed to cite to any record evidence in support of its position. Citizens final argument was that the EIR was deficient for failure to address bicycle safety and conflict with Vehicle Code section 21760. However, Citizen’s challenge consisted of argument not based upon evidence in the appellate record and as such, did not constitute substantial evidence. “Thus, ‘project opponents must produce evidence, other than their unsubstantiated opinions, that a project will produce a particular adverse effect.’” Citizens failed to cite relevant evidence in the record in support or its assertion of significant impacts.
**PETITION FOR REVIEW GRANTED**
The California Supreme Court granted the petition for review on December 11, 2019.
Petitioners challenged the adequacy of the Draft Environmental Impact Report submitted by the Department in support of its request to extend its federal license from the Federal Energy Regulatory Commission (“FERC”) to operate the Oroville Dam and its related facilities and sought to stay the licensing proceedings. The appellate court, after consideration of the California Supreme Court holding in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, held that the Federal Power Act preempted state court review of the licensing project. It reasoned that federal law provides for an alternative licensing process (“ALP”) that incorporates all federal and state license procedures into a single process involving all affected state, federal, local and private parties under the authority of FERC, and established administrative procedures before FERC for all participating entities to resolve disputes over the required environmental studies. Under the ALP, the licensing process thus not subject to review, but new actions to implement the project, such as mitigation for habitat loss caused by the project, may be subject to CEQA review in state courts and only upon implementation, which would not occur until some length of time after the issuance of the FERC license.
Petitioners challenged the adequacy of the CEQA findings adopted in support of the certification of an EIR for a port master plan amendment that would allow an expansion of the convention center and related hotel facilities, among several other separate Coastal Act claims. Petitioners contended that the Commission failed to : (1) find that there were “no more feasible mitigation measures to reduce the expansion’s environmental impacts to a level of insignificance”; (2) provide substantial evidence in support of its finding that a proposed “4th Avenue pedestrian bridge” was not viable as a mitigation measure to enhance access to the shoreline.
Affirming the trial court decision, the Fourth District Court of Appeal denied the first claim, reasoning that: (1) the Commission’s findings were sufficient, because there is no requirement under CEQA to find that “no more feasible mitigation measures” existed, and that the Commission properly concluded that there were no feasible mitigation measures that “would substantially lessen any significant adverse effect”; and (2) petitioners’ argument set up a false standard as “CEQA focuses on substantial reduction, not insignificance, and contemplates that projects with significant effects can sometimes be approved.” The court also denied the second claim finding that (1) the court was obliged to defer to the Commission’s judgment to rely on its staff’s judgment as to the potential costs for construction of the bridge which could have exceeded to project’s maximum budget in the absence of substantial evidence in the record to the contrary; and (2) the Commission properly concluded that the bridge was infeasible for the additional reason that a portion of the bridge would need to be built outside its jurisdiction and petitioners provided no evidence that the other jurisdiction had agreed to the bridge construction.
The project applicant sought approval from the City Council to expand an existing Walmart Store by 64,000 square feet, add an 8-pump gas station, and create two new parcels for future commercial development (the “Project”). An EIR was prepared that identified one significant and unavoidable traffic impact that would result from the Project. The Council certified the EIR and approved the Project, including a statement of overriding considerations that found that the Project’s benefits outweighed the unavoidable traffic impact. Petitioners filed suit, challenging the Project and the adequacy of the environmental review, but the trial court rejected the claims. Petitioners appealed, arguing (1) the EIR failed to adequately evaluate the Project’s urban decay impacts, and (2) that the City’s statement of overriding considerations was legally deficient. The appellate court affirmed both claims, though only the urban decay impacts issues were certified for publication.
Regarding urban decay impacts, the petitioners argued that despite the incorporation of a 43-page analysis of urban decay supported by a 123-page economic report in the EIR, the analysis was inadequate because (1) the EIR “failed to treat the loss of ‘close and convenient’ shopping as a significant environmental impact,” and (2) the EIR’s findings were not supported by substantial evidence due to flaws in its methodology. The appellate court rejected both claims, finding that (1) the elimination of “close and convenient shopping” was not a CEQA issue because it is a psychological and social impact that petitioner’s failed to demonstrate would result in a potential physical change in the environment, and (2) the ported flaws in the methodology were “nothing more than differences of opinion about how the Project’s expected grocery sales should be estimated, how the Project’s market area should be defined, and which competitors are most susceptible to impacts from the Project.”
The Court of Appeal delivered a setback to mixed use proposals by invalidating an EIR lacking a specific development proposal, but which evaluated different land use mixes. The Court found that the EIR lacked a definite and stable project description. For all practical purposes, the Court elevated CEQA in importance over how a local government chooses to design its regulatory code and application process.
The facts involved no insignificant project. The Millennium Project was the redevelopment of a four and one-half acre area surrounding the iconic Capitol Records building in Los Angeles. In 2008, the developer filed a development application describing a detailed proposed project consisting of 492 residential units, a 200-unit luxury hotel, 100,000 square feet of office space, a 35,000 square-foot sports club, more than 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage. As with many other development applications in 2008, it was not advanced by the developer.
In contrast to the 2008 application, the next application in 2011 adopted a more fluid approach. Specific buildings were not proposed, but rather a flexible mixed-use project of up to 1,052,667 square feet of space, allowing for a broad range of residential and commercial uses as allowed for under the equivalency provisions of the city development code. The EIR evaluated different scenarios (more residential/less commercial vs. more commercial/less residential square footage). Neighbors challenged the EIR on several grounds, and the trial court agreed that the EIR lacked a stable project description. While the ensuing appeal and cross-appeal involved additional CEQA claims, the only issue addressed by Appellate Court was that concerning the project description. The Court of Appeal affirmed the trial court’s judgment, concluding that the lack of meaningful detail in describing a specific project precluded effective public participation. Given that a detailed application was filed in 2008 the Court surmised that a detailed submittal was not an undue burden on an applicant.
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.
E. CEQA Litigation
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.
F. 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, Glen Hansen, and Daniel Cucchi 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.