Welcome to Abbott & Kindermann’s 2020 3rd 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 2019 cumulative CEQA review, click here: https://blog.aklandlaw.com/2020/01/articles/ceqa/2019-ceqa-4th-quarter-review/ .
2. CASES PENDING AT THE CALIFORNIA SUPREME COURT
There are one CEQA case pending at the California Supreme Court. The case and the Court’s summary is as follows:
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. Ministerial v. Discretionary
The California Supreme Court struck down the County’s practice of categorically determining that the issuance of all well permits that do not require a variance is ministerial. In Protecting Our Water & Environmental Resources v. County of Stanislaus, the County established a well construction permit ordinance that relied on state well development standards promulgated by the Department of Water Resources. DWR’s standards at issue include requirements that all wells: (1) “be located an adequate horizontal distance” from sources of contamination, including suggested distances for certain common types of sources; (2) “where possible…be located up the groundwater gradient from sources of contamination”; (3) “if possible…located outside areas of flooding; and (4) “annular space” is “effectively sealed” and establishes minimum surface seal depths.
Rejecting the appellate court’s holding that all well permits were discretionary based on its reading of the “horizontal distance” requirement, the California Supreme Court took on a more nuanced view which deferred to the agency to make such determinations on a case-by-case basis. Relying on the “functional test” set forth in a line of cases distinguishing discretionary decisions from ministerial ones (e.g. Mountain Lion Foundation v. Fish & Game Commission (1997) 16 Cal.4th 105; Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135; Friends of Juana Briones House v. City of Palo Alto (2010) 190 Cal.App.4th 286), the Court considered whether “the agency is empowered to disapprove or condition approval of a project based on environmental concerns that might be uncovered by CEQA review…,” and found that at least in some circumstances the County has such discretion. For instance, the Court in evaluating the “horizontal distance” requirement noted that while the determination of the proper distance from a source of contamination involved considerable discretion, instances where there are no known sources of contamination involved would properly eliminate that discretion. Thus, it reasoned, establishing a categorical determination that all such well construction permits were ministerial was improper.
Petitioners challenged the CEQA exemption determination by Caltrans for an Interstate 5/State Route 56 interchange project in San Diego County as part of its North Coastal Corridor (“NCC”) project to improve vehicle and railroad transportation in the 27-mile La Jolla-Oceanside Corridor. After previously issuing a Draft EIR in 2012, and a Final EIR in 2017 for a 30-day review period which stated “After the [FEIR] is circulated, if Caltrans decides to approve the [p]roject, a [NOD] will be published in compliance with CEQA by Caltrans . . . ,” Caltrans filed a Notice of Exemption (“NOE”) on June 30, 2017, prior to the close of the FEIR review period. In the NOE, Caltrans asserted that the project was statutorily exempt from CEQA pursuant to Streets & Highways Code section 103 and Public Resources Code sections 21080.5(c) and 21080.9. Caltrans further relied on the position that the project’s impacts were analyzed consistent with the California Coastal Commission’s certified regulatory program.
Petitioners first became aware of the NOE on September 28, 2017 and requested Caltrans rescind the NOE or agree to a 180-day statute of limitations for challenging the decision. Caltrans refused and petitioners filed suit on November 1, 2017, alleging (i) that Caltrans improperly relied on section 103, (ii) that the department is estopped from relying on the 35-day statute of limitations period, and (iii) additional claims on the merits of the adequacy of the FEIR for the project. Caltrans demurred and the trial court sustained the demurrer without leave to amend. Petitioners appealed.
The Court of Appeal reversed and remanded the case for further proceedings. It held that Caltrans improperly relied on section 103 as a statutory exemption, because its plain language was limited to the approval of a public works plan (such as the NCC project) by the Coastal Commission, not for the approval of a specific individual project by Caltrans. The Court also held that petitioners had adequately alleged facts sufficient to support the estoppel claim. It reasoned that Caltrans public statements of its intent to issue a NOD for the project after the FEIR review period were enough to establish a disputed question of fact as to whether the elements of estoppel could be met.
C. Negative Declarations
The familiar story in this blog is that of the fair argument standard, and the difficulty faced by a lead agency when defending a negative declaration or mitigated negative declaration. The facts involve a relatively small project on 8.2 acres, and the developer’s plan was to consolidate 24 parcels into two lots, with a mixed-use project on 6.23 acres and the balance of 1.98 acres as an open space lot. Most of the site was covered by a specific plan adopted in 2008, the balance noted as a Significant Ecological Area. The City Council approved the project based upon a negative declaration following an appeal from the planning commission approval. The trial court ruled against the lead agency and developer (Gelfand) based upon CEQA claims and violation of the City’s oak tree ordinance. The Court of Appeal in a very detailed decision covering several substantive and procedural issues, affirmed the trial court’s judgment.
Tribal Cultural Resources. In prior studies, a portion of the project site had been identified as a significant heritage resource, and prior consultants believed that the site met the requirements for inclusion in the California Register of Historic Resources. The negative declaration included three mitigation measures to reduce impacts to less-than-significant levels: (i) CS-CR-1 (monitoring during construction with an action plan to be developed based upon resources which are discovered), (ii) CS-CR-2 (notification steps if human remains discovered), and (iii) CS-CR-3 (excavation program if the site cannot be avoided). On appeal, the issues were (1) whether the City properly consulted with the Tribe with respect to tribal cultural resources (“TCRs”), and (2) the sufficiency of CS-CR-3. (The appellate decision does not address the consultation issue any further than to note that there had been exhaustion of administrative remedies.)
As to the merits of the mitigation measures, the appellate court faulted the City because (1) the extent of the resource site had never been established, (2) the response plan if resources were discovered was improperly deferred and was not tied to a performance standard, and (3) there was competent evidence of a fair argument by an expert that the project would destroy the cultural resource. In response to the same expert’s conclusion that the data recovery program would be expensive, the Court ventured into unchartered waters concluding that the negative declaration failed to assess the feasibility of the data recovery program required as part of Mitigation Measure CS-CR-3. (In this author’s opinion, this evaluation is not required.) All of these facts undermined the conclusion that impacts would be mitigated to a less than significant level.
Sensitive Plant Species. The negative declaration included mitigation for impacts on sensitive plant species. CS-Bio-1 required surveys for two species in advance of grading and replanting requirements. The appellate court concluded that there was substantial evidence of a fair argument of potential impacts because (1) a letter from California Department of Fish and Wildlife (“CDFW”) indicated that the studies relied upon were “outdated,” and (2) the most recent study was during a drought period, and CDFW recommended additional studies. The appellate court concluded that there was no substantial evidence that the additional studies could not have been performed. Additionally, CDFW also questioned the success of restoration planting for the two species, and a previous study noted that most of the attempts to re-establish the plants had failed. The Court also concluded that there was improper deferral as there was no standard identified to determine if avoidance was infeasible and that there was no detail about what the maintenance plan actions would entail.
As to a third plant, a special status species, the appellate court also found that the administrative record contained sufficient evidence to support a fair argument that mitigation through onsite preservation or offsite restoration may not succeed, and therefore there may be a significant impact.
CS-Bio-2 dealt with the location of the key plants in areas of firebreaks. However, the mitigation strategy was only crafted to address plant protection initially during construction, and not long term. The CDFW letter expressed concern for the disruption of the plant species (although not in very emphatic terms) and this letter was sufficient to provide the required evidence in support of a fair argument.
Oaks. The site included a number of oak trees and scrub oak habitat, and the project would require significant oak and habitat removal. The appellate court concluded that the mitigation measures were insufficient, and that there was substantial evidence of a fair argument as to potential impacts. As to the oaks retained on site, there was testimony that site grading could have an adverse effect on the subsurface water flow to the oaks, jeopardizing the trees according to the appellant’s consultant, a point also confirmed by the City’s own consultant. Additionally, there was substantial evidence of a fair argument that replanting, as one of the mitigation options, had not been demonstrated as successful in recreating oak woodlands. Finally, allowed mitigation included payment into an in-lieu fund. The Court rejected this mitigation option as the negative declaration did not specify the fees to be paid, the number of trees to be planted offsite or any analysis of the feasibility of an offsite mitigation program. (It appears that the City’s fee program had not gone through its own CEQA review.)
Exhaustion of Administrative Remedies. On appeal, the City and developer vigorously argued that the issues raised in court had not been raised during the administrative proceeding, leading to a defense of failure to exhaust administrative remedies. This is a fact intense inquiry, but for each argument, the Court of Appeal found record of sufficient objections during the project review process to satisfy the exhaustion requirement.
Standing. On appeal, the City and developer argued that there was no evidence that the petitioner, or a member of the organization had objected to the project, and that the amended pleading which added California Native Plant Society as a petitioner occurred after the expiration of the statute of limitations. Thus, argued the City/developer, the case should be dismissed. However, this defense was not raised at the trial court, but only included in the developer’s reply brief. In these circumstances, the argument was considered to be waived.
Attorney’s Fees (Code of Civil Procedure §1021.5). The trial court awarded the opponents $142,148 in fees and costs (the opponents sought nearly $340,000) and allocated one half of the liability to the City and the balance to the developer (personally) and the partnership, jointly and severally. On appeal, the appellants argued that the petitioners were not entitled to any award on the basis that a copy of the petition had not been timely served on the California Attorney General. (See Public Resources Code §21167.7.) A prior decision had reached that conclusion. (Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547.) However, this court found the facts to be distinguishable (in Schwartz, the service was not accomplished until right before the hearing on the merits. Here, the service was well in advance of the court hearing, leaving the Attorney General ample time to participate in the litigation.)
The Court of Appeal also affirmed the developer’s personal liability. The developer, Gelfand, was an officer of the corporation which served as the general partner in the limited partnership. Gelfand had been listed as the applicant in the notice of determination as did the resolutions of approval. Additionally, there was evidence that Gelfand had more of an interest in the property than just serving as a corporate officer, supporting the conclusion that Gelfand had a personal interest in the project and outcome and that he was holding himself out as “a property owner and/or project applicant.” In these circumstances, the trial court did not err in finding Gelfand and the corporation’s general partner as jointly and severally liable for one half of the award. (Obviously, applicants would do well to follow more disciplined communication practices when communicating with the City or County as part of the application process.)
D. Environmental Impact Reports
In the third round before the Fourth District Court of Appeal, the court again set aside the County of San Diego’s adoption of its Climate Action Plan and the County’s certification of a supplemental environmental impact report (“SEIR”) on both land use and CEQA grounds, largely the result of a flawed mitigation measure designed to allow for the purchase of carbon offset credits for GHG emissions for General Plan Amendment (“GPA”) projects—M-GHG-1. The Court of Appeal addressed several CEQA-related issues and found as follows:
M-GHG-1. The mitigation measure contained unenforceable performance standards and improperly deferred mitigation to the County Director of Planning & Development Services. The court noted that although the measure required carbon offsets to be purchased from CARB-approved registries, or to otherwise meet the Cap-and-Trade program’s statutory requirements, it failed to require the carbon offsets to be in compliance with CARB’s offset protocols. As a result, the failure to require compliance with the protocols meant the offsets could not be assumed to be in compliance with AB 32 and could allow the purchase of offsets anywhere in the world, including countries that do not have the same monitoring and reporting requirements as CARB requires. Regarding improper deferral to the Director, the court reasoned that the measure failed to provide objective standards upon which the Director could determine whether the proposed offsets were in compliance and, thus, left the determination up to the Director’s subjective discretion.
Cumulative Analysis. The court held that the County’s SEIR was required to consider the cumulative effects of certain projects that were under consideration by the County at the time the SEIR was being prepared. The County had argued this was not required because (i) the projects would be required to comply with M-GHG-1 which addressed GHG emissions, and (ii) the related impacts, such as air quality and VMT, were speculative because the projects were too early in their respective processing stages and subject to change. The court reasoned that these projects were sufficiently detailed, including their type, general scope, and location to make reasonable assumptions for the purpose of a cumulative analysis. Thus, it held that the County was required to account for other in-county impacts. It further noted that this obligation was only heightened by the fact that M-GHG-1 could authorize offsets to be purchased outside the County meaning some of the related local impacts (i.e. air quality, VMT, etc.) could go unmitigated by a GHG offset program.
Consistency with Regional Transportation Plan. As a result of the flaws identified in M-GHG-1, the court also held that the SEIR’s finding of consistency with the County’s Regional Transportation Plan (“RTP”) was not supported by substantial evidence because the measure’s failure to ensure the full mitigation of GHG impacts from future GPAs meant that the SEIR’s finding of consistency that relied on the net zero emissions as a result of M-GHG-1 was unsubstantiated.
Range of Alternatives. The court held that the SEIR failed to analyze a reasonable range of alternatives. It reasoned that the County’s rejection of petitioner’s proposed smart-growth alternative which was focused on reducing VMT was improper, because the SEIR’s range did not include an alternative focused on reducing VMT or transportation-related GHG emissions, which is one of the largest sources of GHG emissions impacts.
Responses to Comments. The court held that certain responses to comments on the Draft SEIR were adequate. It found that the subject responses directly addressed the question posed in the comments, relied on factual assertions, were not simply conclusory statements, and explained the disagreement when it addressed the objections in the comment. The court also reiterated that no response was necessary when a comment is nothing more than an “exhortation to comply with the law.”
Tesoro, a major operator in the fuel industry now known as Andeavor, sought approval for its Los Angeles Refinery Integration and Compliance Project (the “Project”). The controversy over the Project centered on the means of reducing the pollutant emissions of the heater unit at the Wilmington facility. Tesoro sought to revise the permit to: (1) impose a new air pollution limitation that assumed the heater would never be operated above the 252 heat rate, and (2) raise the thermal operating limit to coincide with the heater’s existing heating capability. This change would allow Tesoro to either process a heavier blend of crude or increase its throughput by 6,000 barrels per day, but not both.
After the South Coast Air Quality Management District (the “District”) certified the EIR and approved the permit, Communities for a Better Environment (“CBE”) filed suit, arguing the EIR was inadequate in four respects: (1) the EIR used the wrong baseline to evaluate the impacts of the Project; (2) the District failed to obtain sufficient information about the pre- and post-project crude oil composition to explain the implications on pollutant emissions; (3) the EIR included no explanation of how the “6,000 barrel” figure was calculated; and (4) the EIR failed to disclose the existing volume of crude oil processed at the facility, nor its unused capacity. The trial court rejected the claims and CBE appealed. The Second District Court of Appeal rejected each of the four claims raised by CBE and affirmed the trial court decision:
- The court held that the peak baseline selected by the District was proper, rejecting the assertion that the District should have used an “average-value” baseline. It reasoned that the District’s selection, which focused on the impact of peak emissions on the most vulnerable populations, was a rational choice that was supported by substantial evidence. The court pointed to the District’s consistency with the practice of the federal Environmental Protection Agency, and it noted that: (i) the federal and state regulatory purposes were in sync—to protect public health and welfare; (ii) the federal use of the peak baseline was based on data of the existing conditions on the 15 worst days in the 730-day review period; (iii) while not necessarily required, the District always has the option to rely on similar federal efforts that achieve the same goals and purposes; and (iv) CBE’s claim that use of an average is “normal” for baseline ignores the fact that there is no such thing as “normal” when it comes to averages.
- The court held that there was no need for the District to obtain detailed information on pre-project v. post-project crude oil composition, reasoning that such information was irrelevant due to the District’s reliance on the refinery’s “crude oil operating envelope” (defined as the facility’s range of acceptable blends that are within an identified range of weight and sulfur content). This was because operating with any crude that does not fit within the existing operating envelope would require substantial physical changes to other parts of the refinery equipment which were not proposed for the Project. Thus, any increased air emissions that could result from using heavier crude could only be due to the need to burn more fuel to operate the refinery’s burners, which was precisely what the EIR had analyzed.
- The court held that CBE had forfeited its claim regarding the “6,000 barrels” calculation. It reasoned that the claim was not raised during the administrative process and, thus, CBE failed to exhaust its administrative remedies. The court noted that throughout the 1,716 pages of comments provided by CBE and another law firm, the only comment identified by CBE in the record that discussed an increase of 6,000 barrels per day did not raise questions about how the 6,000 figure was calculated; rather, it broadly focused on purported inconsistencies between post-Project capacity and information submitted to the Securities and Exchange Commission on the refinery’s capacity. This, the court held, was insufficient to allow CBE to rely on a broadly applicable comment to support a much more specific claim, even though it could arguably be encompassed in that broader comment.
- Applying the abuse of discretion standard, the court held that the District did not have an obligation to disclose either the existing volume of crude oil processing or the refinery’s unused capacity. CBE had argued that the existing volume information was necessary to verify that the “actual post-project increase in capacity would not exceed the 6,000 barrels per day” assumption. But the court rejected this argument, reasoning that the “6,000 barrels” figure was adequately supported by the EIR’s analysis of the “crude oil operating envelope” which noted that any increase in overall refinery output would require other physical changes to be made to the refinery. As for the unused capacity data, the court rejected the claim as nothing more that “a variant of [CBE’s] preceding [existing volume of crude oil processing] argument.” Furthermore, the court concluded that the data was not needed, because the EIR’s analysis was already otherwise supported by substantial evidence.
The County of Sacramento approved a master planned community, a feature of which was a proposed university. Opponents filed a CEQA challenge arguing: (1) the uncertainty over whether the university would be constructed invalidated the project description and impact analyses for traffic, air quality and climate change; (2) the project was inconsistent with the local Sustainable Communities Strategy; and (3) the agency’s failure to adopt feasible mitigation measures. The trial court and Court of Appeal upheld the master plan approval, addressing several issues:
Project Description. The appellants argued that uncertainty regarding the university resulted in an improper project description. The original development application reflected a California State University as the future education facility, but the Board of Trustees withdrew. The project was approved without an educational commitment. The project was conditioned to freeze the university campus site for 30 years, and the developer was required to fund a university escrow account. The administrative proceedings included communications speaking to the need for additional educational facilities and the desirability of this location for this purpose. Based upon these facts, the Court held that it was not unreasonable for the County to include the university as part of the project description. Stated another way, it was not reasonably foreseeable that a substitute land use would occur in lieu of the university, and an EIR is only required to evaluate reasonably foreseeable activities. Thus, the opponents failed to present “credible and substantial evidence” that the university was an illusory land use.
Air Quality. The appellants made a related argument that as the university was illusory, certain impact analyses and conclusions were necessarily erroneous. Regarding air quality, the mitigation measures had been revised to achieve the same air quality mitigation levels even in the event of a change in land use for the university, thus there was no substantial increase in impact levels (and no recirculation required). Moreover, the project impact was already determined to significantly exceed the threshold of significance levels that a reduction in mitigation would not ultimately lead to a substantial increase in severity of the impact. Finally, the Court noted that in any case the resultant reduction in the level of mitigation is not equivalent to an increase in impacts for recirculation purposes.
Climate Change. As with air quality, the planning documents were amended to carry forward the metric tons per capita limit for GHG emissions, with or without the university. Thus, the environmental document remained valid even in the absence of the university component.
Traffic. Appellants also challenged the traffic analysis in the event the university was not developed. However, the Court held that this was adequately addressed in the FEIR as a response to comment which noted that non-automotive trips associated with the university had only limited effect on overall mode share and that elimination of the university would reduce daily trips by approximately 9,000.
Sustainable Community Strategies. The appellate court rejected the inconsistency argument on the basis that appellants failed to exhaust administrative remedies and nothing in SB 375 required consistency review as part of the CEQA process.
Feasible Mitigation Measures. Appellants argued that phasing the project would be a feasible mitigation measure. This was interpreted by the trial court as not building some, or all of the project until a university was built. The Board had adopted findings that suggested mitigation measures not incorporated into the project were rejected in part because the measures would interfere with attaining the economic, social and other benefits of the project which the “Board finds outweighs the unmitigated impacts of the Project.” The appellate court concluded that the appellants had failed to meet their burden of demonstration the feasibility of the phasing mitigation measure.
In a long and detailed opinion from the Fifth District Court of Appeal, the appellate court considered a multitude of CEQA claims over the County’s environmental impact report adoption in support of an ordinance establishing streamlined processing procedures for eligible oil and gas exploration and production activities in Kern County. The trial court ruled in favor of petitioners, finding deficiencies in the EIR related to agricultural impacts and impacts of road paving as mitigation for dust and air quality. Plaintiffs appealed.
The ordinance had already spawned a separate bifurcated decision on land use claims alleging the ordinance violated the equal protection and due process clauses of the California and U.S. Constitutions. The decision rejecting those challenges was issued in November 2019 in Vaquero Energy, Inc. v. County of Kern (2019) 42 Cal.App.5th 312 (See p. 44 of CEQA/Land Use Update). While only “CERTIFIED FOR PARTIAL PUBLICATION,” the published portion of the King & Gardiner Farms decision still addressed numerous topics that CEQA practitioners should consider when preparing EIRs, many of which could have broad applicability. The most noteworthy holdings addressed (1) conservation easements as agricultural mitigation; and (2) the evidence required to support the use of mitigation that requires an action to be taken “to the extent feasible.” As to the former, the Court concluded that the less than significant impact conclusion for the loss of agricultural land was unsupported, reasoning that conservation easements do not actually reduce the amount of agricultural land lost due to the project. As for the latter, the Court found that “to the extent feasible” was more of a goal statement than a commitment to mitigation and that agencies have a duty to demonstrate the mitigation will have at least some reduction of the impact to be deemed mitigation. The Court explained that the agency’s finding that the mitigation “‘could’ [reduce water supply impacts] suggests the possibility of reductions without eliminating the possibility there might not be any reductions.”
E. Subsequent Environmental Review
Petitioners challenged the County’s decision to abandon a roadway connecting two residential subdivisions, the Martis Camp project (“Martis Camp”) and the Retreat at NorthStar project (“Retreat”), near Lake Tahoe in eastern Placer County on several claims, including the California Environmental Quality Act (“CEQA”). The road was originally intended to serve as access for emergency vehicles and transit and was described as such in both EIRs for the two projects. Over time the road was frequently used by Martis Camp residents as a convenient shortcut to the NorthStar Village area through Retreat. To comply with CEQA, the County relied on an addendum to a previously certified environmental impact report for Martis Camp (“Martis Camp EIR”). The petitioners argued that the County: (1) use of an addendum to the Martis Camp EIR was improper; (2) used the wrong baseline to evaluate the impacts of the abandonment; and (3) failed to prepare a subsequent or supplemental EIR. The trial court denied the CEQA petition, and petitioners appealed.
The appellate court reversed. The County argued the Martis Camp EIR was the most appropriate document to rely on because the effects of the abandonment would be focused on changed traffic patterns of residents at Martis Camp and would not impact the Retreat residents. The Court agreed with petitioners that the County’s reliance on the Martis Camp EIR was improper because the abandonment of the roadway was not a modification of the Martis Camp project. It noted that an addendum is only proper to consider proposed changes to a previously approved project and EIR. Applying this standard, the Court reasoned that since there were no subsequent discretionary approvals needed to modify the Martis Camp project, the subsequent review procedures in CEQA Guidelines section 15162 were not applicable to the Martis Camp EIR. The Court further noted that the roadway was actually proposed and analyzed in the Retreat EIR and held that the County failed to evaluate whether the abandonment would require major revisions to the Retreat EIR. As a result, the Court concluded that the County abused its discretion in finding that no subsequent or supplemental EIR is required because the County relied on the wrong EIR to make that finding. As for the improper baseline claim, the Court remanded the issue to allow for the County to make its own determination of whether or not the existing use of the roadway by Martis Camp residents is a “changed circumstance” from the Retreat EIR and determine the proper CEQA review process in light of the decision. For more discussion on the road abandonment claims, see the August Real Estate Action News.
In a follow up case to the Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457 (“Friends”), petitioners challenged the City’s action seeking a new Streambed Alteration Agreement (“SAA”) from the Department of Fish & Wildlife (“DFW”) after the original one had expired. Petitioners challenged the City’s determination that no further CEQA analysis was required arguing that merely seeking and accepting the SAA was itself a discretionary action, because the City always “‘retain[s] discretion to reconsider or alter’ the project.” Thus, under this theory, the decision to seek another SAA was a subsequent discretionary decision to re-approve the project. Relying on the subsequent review principles set forth by the California Supreme Court in Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, and CEQA Guidelines section 15162, the court held that the City’s action to seek a new SAA did not trigger new subsequent environmental review. It reasoned that petitioners’ argument was counter to the public policy of favoring finality and efficiency that is embodied in the CEQA Guidelines. (Id. §15162(c) [“Information appearing after an approval does not require reopening of that approval.”].) And because the original approval contemplated the need for the City to acquire an SAA in order to complete the project, the court concluded that the City’s action to seek a new SAA was nothing more than “simply implementing the project that it had already approved in 2014.” (emphasis in original.)
In 2005, the University of California Regents (“UC Regents”) adopted a comprehensive, long-range development plan to guide future development and projected enrollment for the UC Berkeley campus and the related program environmental impact report (“2005 EIR”). For over a decade beginning in 2007, the UC Regents continuously approved increasing levels of projected enrollment for the UC Berkeley campus without updating the 2005 EIR, citing Public Resources Code section 21080.09 to conclude that such enrollment increases do not require additional CEQA review, absent an amendment to the long range development plan which involve changes to the physical development and land uses it proposed. The trial court sustained the UC Regent’s demurrer. The appellate court reversed. It held that the trial court misinterpreted section 21080.09 as not triggering CEQA compliance requirements for enrollment increases without concurrent changes to the development plan. It reasoned that the role of enrollment levels is inextricably linked to the physical development of the campus, and thus, enrollment increases alone must still be evaluated under CEQA as an amendment to the log range development plan.
F. CEQA Litigation
Petitioners filed suit under CEQA and the Planning and Zoning Law challenging the County’s approval of a building permit for a new 28,240 square-foot building and associated utilities which expanded an existing self-storage facility. The storage facility was originally constructed in 1998 and was expanded two additional times in the years prior to the current dispute. Petitioners, whose suit was filed approximately four months after the permit was issued and construction was underway, sought a temporary restraining order and a preliminary injunction. The trial court denied both interim relief requests holding that because the status of project construction was well underway and substantial progress had already been made, petitioners could not establish the necessary “irreparable harm,” or that the “balance of interim harm” sufficiently favored petitioners, to issue a TRO, or an injunction, respectively. The parties then moved to the trial on the merits where the trial court held that (1) the County did not violate CEQA because the building permit was ministerial; and (2) the Planning and Zoning Law claim was time-barred. Petitioners appealed.
On appeal, the County argued that petitioners’ claims were now moot, given that the expansion project building was now fully constructed. The Third District Court of Appeal agreed, holding that the court could not grant petitioners any effectual relief and dismissed the appeal. It reasoned that completion of a challenged project normally ends any actual controversy over an approving resolution or an EIR, absent indications that the real parties in interest acted “in bad faith or in an attempt to evade the requirements of CEQA or the Planning and Zoning Law.” Here, the Court noted that construction commenced and was substantially underway months before petitioners ever filed the litigation or the requests for preliminary relief, distinguishing the present case from Woodward Park Homeowners Association v. Garreks, Inc. (2000) 77 Cal.App.4th 880, where “the developer ‘proceeded with construction and completion of the project after [the homeowners association] filed its mandamus petition’ and ‘despite the trial court’s order mandating the preparation of an EIR….’”
In Golden Door Properties, LLC v. Superior Court, the Fourth Appellate District addressed several key issues involving the scope of a CEQA record of proceedings, including the question of what is the obligation of a lead agency to retain emails, and possibly even internal notes and other non-electronic documentation, which are otherwise routinely deleted or discarded pursuant to agency policy or common practice.
The litigation backdrop to this decision is equivalent to the United States involvement in Afghanistan: It is a conflict with no apparent ending in sight. The petitioner (“Golden Door”) is a resort property located in San Diego County that vigorously opposed the potential development of nearby property. This conflict generated Golden Door litigation against the water district, a Public Records Act (“PRA”) lawsuit against the County, and a separate CEQA lawsuit against the County following project approval. The combined litigation involved extensive discovery disputes in the trial court, multiple writs filed with the Court of Appeal and one to the California Supreme Court. The general plan amendment, which was part of the project approval, was the subject of a referendum and was defeated by the voters.
The heart of this most recent decision involved the consequences of the County’s policy of routinely deleting emails after 60 days. This issue presented itself in both the PRA litigation and the CEQA challenge to the project approval. Petitioner elected to prepare the record of proceedings in the CEQA challenge but was provided only a limited number of emails. The County advised the petitioners of its policy providing for automatic deletion of emails after 60 days, a practice then challenged by the petitioners. The appellate decision is lengthy at 50-plus pages and provides an extensive discussion of the various discovery disputes (involving not only the County, but the EIR consultants as well) and the litigation. The key holdings can be distilled down to the following:
1. The County’s policy of routinely deleting emails conflicted with CEQA’s definition of the record of proceedings (Public Resources Code §21167.6). Although CEQA contains no express requirement that emails be retained, the Court relied on Section 21167.6, subdivision (e)(7) (“All written evidence or correspondence submitted to, or transferred from, the respondent public agency with respect to compliance with this division or with respect to the project”), to conclude that the lead agency was obligated to retain emails as official records.
2. The trial court utilized a discovery referee who ultimately sided with the County on many of the discovery disputes. The referee erroneously considered the petitioners’ demands for documents as requests for extra record evidence and this formed a basis for the referee ruling for the County. In fact, the petitioners’ discovery efforts concerning emails and other materials was a dispute over obtaining a complete record of proceedings and should not have been viewed as extra record evidence as was considered in Western States Petroleum Association v. Superior Court (1995) 9 Cal.4th 559.
3. The County violated its own policy on record retention. In interpreting the County code, the appellate court concluded that because CEQA considers emails as documents to be retained, these emails became records required by law to be kept under the County’s own record retention rules.
4. The Civil Discovery Act applies in CEQA cases. [Note: This opens the door for petitioners to subpoena relevant documents from the lead agency, other agencies, and agency consultants. To the extent that the applicant has communicated with agencies, those communications may be relevant to the CEQA litigation and may be subject to subpoena.]
5. The cost of email retention is immaterial. The County argued that it would cost $76,000 per month to store the emails. While the appellate court noted the cost, it did not alter the court’s position as to the obligation of the agency to preserve emails. The court noted that emails not relevant to the project or with the agency’s compliance with CEQA could be deleted. [Note: This puts the lead agency in the unenviable and unworkable position of screening the content of every email before deleting, risking an accidental deletion. In these authors’ assessment, the agency would be better off to save all emails than to spend the time, money, and risk of parsing out some emails.]
6. In its efforts to create the record of proceedings, the petitioners could subpoena the business records of the consultants hired by the County in an effort to recreate the emails and documents deleted by the County.
7. Because of the ongoing multiple cases filed against the project, the developer and County could enter into an agreement permitting confidential document exchange through respective legal counsel. Absent that fact pattern, the appellate court concurred in the decision of Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, holding that there is no legal basis during application processing for a common interest exemption from disclosure.
8. The referee improperly upheld the non-disclosure of 1,900 documents based upon the preliminary draft exemption and the deliberative process exemption. While that might have been an appropriate basis to not disclose, the record before the referee was insufficient. The privilege log must contain “reasonably specific detail.” The County’s supporting declaration lacked sufficient information and was too broadly framed to support the non-disclosure. [Note: The court did not directly address other non-email documents such as staff notes, sticky notes, or even fax confirmations, some of which may benefit from these exemptions. It did, however, affirm a broad principle that only documents “that do not provide insight into the project or the agency’s CEQA compliance with respect to the project” can be discarded. This raises the prospect that these other types of written documents could also come under the same scrutiny and suggests it could be prudent to hold on to these documents as well, at least until the record has been agreed to by the parties and certified.]
Commentary: The practical effect of this decision is to make CEQA processing and litigation more difficult and expensive for all concerned. For major projects we can look forward to the time and expense of locating, vetting, and indexing even more documents never to be cited in any brief or legal argument, hardly a value-added exercise. Unfortunately, as the court notes in its holding, the consequences for failing to secure these records can be substantial, as the court has the power to rule in favor of petitioners and vacate project approvals for that reason alone. It is worth noting that this is not a problem caused by the courts, but the failure of the Legislature to provide meaningful bookends to CEQA litigation.
On March 3, 2017, the Director of Planning, serving as the “advisory agency” pursuant to the Subdivision Map Act, approved a negative declaration and vesting tentative map for a mixed use project consisting of a 220 room hotel, 41 story residential tower and a 70,000 square foot learning, cultural and performing arts center. The Director’s decision included notice of a 10-day appeal period. On March 15th, the City filed a Notice of Determination (“NOD”). Seven months later, the Planning Commission approved conditional use permits and other related project approvals, determining that the project had been analyzed in the previously approved negative declaration for the vesting tentative map. Tenants in an existing building on the project site filed appeals. On appeal, the City Council denied the appeals and approved general plan amendments associated with the project. Project opponents then filed a petition for writ of mandate, challenging the City’s approval of the negative declaration. The City and developer filed a demurrer asserting that the statute of limitations had expired following the filing of the Notice of Determination in March. The trial court sustained the demurrer without leave to amend, concluding the litigation. The project opponents appealed.
The Court of Appeal affirmed the dismissal. The appellate court recognized that either of two procedural errors would preclude the running of the statute of limitations and allow the case to proceed: (1) the filing of an NOD which contains erroneous information (e.g. approval date)(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 532); or (2) an NOD filed before the decisionmaking body approves the project (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 963). In this case, the appellate court determined that the March NOD “included an accurate identification and description of the Project” and detailed findings and information regarding the project. There was no debate that the NOD was filed after the approval of the tract map. Although the opponents asserted procedural errors (e.g. was the Director authorized to approve the CEQA document) with the actions of the Director, those claims were part of the CEQA approval covered by the original NOD.
A non-profit organization petitioner, established by the immediate neighbors to the project site, filed suit challenging the County’s decision approving a minor conditional use permit and an oak tree permit for development on a steep hillside and the removal of a protected coastal oak tree to allow the development of a 1,436 square foot single family home on an undeveloped 1-acre lot in Los Angeles County. After the trial court granted a stay of the permit approvals, the project proponent requested the County vacate the approvals, stating that he could not afford the litigation. The County complied, the case was dismissed, and the petitioner filed a motion for attorney fees pursuant to Code of Civil Procedure section 1021.5. The trial court denied the motion and petitioner appealed.
The appellate court affirmed. Applying the abuse of discretion standard of review, it held that petitioner failed to establish two of the prongs necessary to support an award of attorney fees, including (1) the enforcement of an important right affecting the public interest; or (2) conferring a significant benefit on the general public or a large class of persons. On the first, the Court reasoned that petitioner had not actually achieved the goal of additional environmental review as the stay was not based upon the merits of the case, and there was no evidence that the County would do anything differently if the applicant or anyone else reapplied. As for the second, it reasoned that although the enforcement of a statutory obligation always confers a benefit on the public, there was no significant benefit to the public because the project only involved a small home, there was no evidence that the county would actually change any of its practices, and there was no evidence that the lawsuit would lead to additional opportunities for public input which were lacking in the disputed approval process.
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.