Welcome to Abbott & Kindermann’s 2021 1st 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.
2020 CEQA UPDATE
To read the 2020 cumulative CEQA review, click here: https://blog.aklandlaw.com/2021/01/articles/ceqa/2020-ceqa-4th-quarter-review/
CASES PENDING AT THE CALIFORNIA SUPREME COURT
There is 1 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?
Environmental Impact Reports
Santa Clara Valley Water Dist. v. San Francisco Bay Reg’l Water Quality Control Bd. (2020) 59 Cal.App.5th 199.
Petitioner, Santa Clara Valley Water District (“District”), filed suit challenging the San Francisco Bay Regional Water Quality Board’s (the “Board”) addition of new mitigation requirements when issuing an order adopting Waste Discharge Requirements (“WDRs”) for the District’s flood control project. The District argued the Board’s action was unlawful, because the District had already completed CEQA review with its approval, and the Board had been an active participant as a responsible agency. As a responsible agency, the District argued CEQA Guidelines section 15096, subdivision (e), required the Board to either accept the adequacy of the EIR as-is, or take one of three actions: (i) file suit challenging the EIR, (ii) prepare a subsequent EIR, if allowed under CEQA Guidelines section 15162, or (iii) assume the lead agency role of the original EIR. The First District Court of Appeal upheld the Board’s imposition of additional mitigation requirements under the WDR. It reasoned that despite the limitations imposed on responsible agencies under CEQA Guidelines section 15096, the Savings Clause in Public Resources Code section 21174 (“No provision of this division is a limitation or restriction on the power or authority of any public agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer….”), supported its conclusion that “nothing in CEQA, including CEQA Guidelines section 15096, subdivision (e), or the statutes on which it is based, bars the Board from fulfilling its independent obligation to enforce the Porter-Cologne Act.”
Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.
In a case that hinged on the fine line between issue exhaustion and administrative exhaustion, Plaintiffs filed suit challenging the San Francisco (“City”) Historic Preservation Commission’s (“HPC”) decision to authorize the removal of an 1894 monument called “Early Days” and place it in storage, finding the removal was categorically exempt from the California Environmental Quality Act (“CEQA”). Plaintiffs challenged the decision on several grounds, including CEQA. At the trial court, the City filed for demurrer arguing the Plaintiffs had failed to exhaust their administrative remedies when they only appealed the HPC decision to the City’s Board of Appeals, which had no jurisdiction under CEQA, and not to the Board of Supervisors, which did have CEQA jurisdiction. The trial court granted the motion without leave to amend and Plaintiffs appealed.
The appellate court affirmed. Plaintiffs argued that the exhaustion requirement was excused when the HPC’s hearing notice failed to mention CEQA. Public Resources Code section 21177 requires litigants to raise CEQA issues during the administrative process before filing suit, but that requirement is waived where notice of the hearing is defective. The Court of Appeal agreed the notice was defective, finding that the City failed to provide adequate notice of the HPC hearing as to CEQA, and Plaintiffs’ obligation under section 21177 was waived. However, the Court, relying on Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, drew the distinction between exhaustion of the CEQA issues and the judicially created doctrine requiring litigants to exhaust all administrative procedural options available. Here, the Court held that Plaintiffs did not fully exhaust their administrative remedies when they failed to appeal to the Board of Supervisors. It reasoned that an appeal to the Board of Supervisors was required because: (i) Plaintiffs had actual notice of the CEQA determination and even raised it at the Board of Appeals hearing; and (ii) the Board of Supervisors was the final arbiter over CEQA determinations.
Organizacion Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783.
Petitioners challenged the City of San Jose’s (“City”) certification of an environmental impact report (“EIR”) for a project to rezone fallow farmland to allow light industrial uses. Petitioners had requested from staff to receive notice of all project activities including hearing notices and the notice of determination (“NOD”) for the EIR. During the processing of the application, the original applicant sold the property to Microsoft, which took over as the applicant. The EIR was ultimately certified, and the project was approved. The City issued an NOD and sent a copy to Petitioners, though it incorrectly identified the prior owner as the real party in interest. Five days later, a second corrected NOD was properly filed, but no copy was provided to Petitioners. Petitioners timely filed suit, naming the prior owner as the real party in interest rather than Microsoft. About two weeks after the 30-day statute of limitations had run, the original owners’ attorney notified Petitioners that Microsoft was the actual real party and a second NOD had been filed. Approximately a month later, Petitioners filed an amended petition naming Microsoft, more than 70 days after the second NOD was filed. City and Microsoft filed a demurrer arguing the claims were time-barred. The trial court granted the demurrer and dismissed the suit with prejudice. Petitioners appealed.
The appellate court affirmed. Petitioners argued that the City’s failure to provide a copy of the second NOD rendered the filing defective which would extend the statute of limitations to 180 days. The Court held that though the City had failed to comply with its obligation to provide notice to Petitioners as required under CEQA, Public Resources Code section 21167, subdivision (f), only extends the statute of limitations when an NOD is materially defective which was not the case, thus, the 30-day deadline was applicable here. Petitioners also argued that the City’s filing of the NOD did not provide actual or constructive notice when it failed to provide a copy to Petitioners as requested. The Court rejected this argument as well, noting that Petitioners had attended the hearings where Microsoft was properly identified as the real applicant and had, therefore, already received actual notice.
Petitioners next sought to apply the relation back doctrine which would allow the replacement of a doe defendant named in the petition to be replaced with Microsoft, but the Court rejected that claim as well. It reasoned that the relation back doctrine requires Petitioners to be genuinely ignorant of the identity of the defendant, which was not the case here because the second NOD, by law, provided Petitioners with notice of the defendant’s identity. Furthermore, the Court reasoned that Petitioners had actual notice from attending the hearings, and they had delayed filing the amended petition for a period of time longer than the initial limitations period after being notified of the second NOD. Finally, Petitioners argued that Court should apply equitable estoppel principles to allow for the untimely filing due to the failures of the City in providing notice to Petitioners, but the Court rejected that claim as well because the second NOD was filed properly thereby providing Petitioners with constructive notice as a matter of law.
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.