Welcome to Abbott & Kindermann’s 2021 2nd Quarter cumulative CEQA update. This summary provides links to more in-depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.
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?
Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.
In the first published opinion interpreting Senate Bill 35 (“SB 35”), a statutory process to streamline review of eligible residential and mixed-use development projects, the developer filed suit challenging the City of Berkeley’s decision to deny the developer’s request to apply the SB 35 process to a mixed-use infill development on an existing parking lot. The City argued the project was ineligible for the following reasons: (1) the project violated the City’s requirements that projects meet certain performance standards for off-site impacts and not exceed certain amount and intensity of use requirements; (2) the project was located within a three-block area designated as a City Landmark for the state-listed historical resource known as the West Berkeley Shellmound (“Shellmound”), and would have, thus, violated the City’s Landmark Preservation Ordinance; and (3) applying SB 35’s requirements to the Project in light of the reasons above would violate the City’s rights as a charter city. The trial court agreed with the City and the developer appealed.
The First District Court of Appeal reversed, holding that the Project, pursuant to SB 35 was eligible for ministerial review and approval, and to do so does not violate the City’s charter authority. The court first held that applying SB 35 to the project would not violate the “home rule” doctrine regarding charter cities, reasoning that the Legislature may infringe on the City’s authority when it sufficiently articulates a statewide interest, such as was done in the adoption of SB 35 to “address the crisis level statewide lack of affordable housing by eliminating local discretion to deny approval where specified objective planning criteria are met.” As to the objective criteria under SB 35 regarding historical structures, the court held the Project was consistent because: (1) the Shellmound was not a structure as defined in SB 35 and was, thus, inapplicable; and (2) evidence in the record from a 2015 Draft EIR demonstrated that impacts on the Shellmound could be reduced to a less-than-significant level with mitigation.
Mitigated Negative Declarations
Newtown Preservation Society v. County of El Dorado, (June 16, 2021) 2021 Cal.App.LEXIS 507.
Petitioner, Newtown Preservation Society, challenged the County of El Dorado’s (the “County”) adoption of a mitigated negative declaration (“MND”) for its approval of the Newtown Road bridge replacement project in a rural, fire prone area of the County. At issue was the adequacy of the hazards analysis evaluating whether the bridge replacement project would: (i) “impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan,” or (ii) “expose people or structures, either directly or indirectly, to a significant risk of loss, injury, or death involving wildland fires.” The County found the impacts to be less-than-significant, as a result of the various temporary evacuation routes that could be employed under different scenarios and testimony from the County Sheriff’s Emergency Services Office and the County’s Fire Protection District, which had concluded that the available evacuation options, including a potential temporary emergency access easement that would bypass the bridge construction and re-connect Newtown Road, were sufficient to manage an evacuation in the event of a fire incident in the area during the construction of the new bridge. Petitioners relied primarily on testimony from community members, including several that had extensive wildfire firefighting experience and asserted that they believed the plans were insufficient to protect lives in an emergency situation. The trial court upheld the County’s adoption of the MND for the project, and petitioners appealed.
The Third District Court of Appeal affirmed. Petitioners argued that the record contained substantial evidence of a fair argument that the project would have a significant safety impact and that an EIR was required. They pointed to a litany of comments from neighbors, including experienced wildland firefighters who provided opinion testimony as to the significant impacts on resident safety and emergency evacuation caused by the project. The appellate court rejected the assertion. First, relying on California Building Industry Assn. v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the court noted that CEQA requires a focus on the projects impact on the environment, not the environment’s impact on the project to conclude that petitioners had improperly framed the fair argument test. Instead, it held that the proper question was whether there was “substantial evidence supporting a fair argument that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.” For that reason, the court found that the testimony provided by the community was focused on concerns about the existing hazards affecting their community and not on any potential impacts caused by or exacerbated by the project. Furthermore, the court reasoned that none of the commenters with wildland firefighting experience had any “experience in determining, directing, or effecting evacuation routes.” Thus, it held the testimony amounted to non-expert opinion unsupported by a factual foundation, and therefore did not constitute substantial evidence.
Environmental Impact Reports
Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444.
In a partially published decision, the First District Court of Appeal reaffirmed prior rulings regarding administrative exhaustion under CEQA, and deference to an agency’s general plan consistency determinations. As to exhaustion, the court, citing Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, held that Petitioner failed to meet its burden of showing compliance with the County’s local procedures which required Petitioners “to show it timely filed a notice of intent to appeal and timely submitted an appeal packet which specifically identified the grounds it raise[d] in this court action.” It reasoned that because Petitioners have the burden to demonstrate exhaustion, “a list of string-cites to the administrative record without explanation as to how each supports the assertions the public agency was ‘fairly appraised’ of the asserted noncompliance with CEQA, is not sufficient.” As for challenges to the County’s general plan consistency determination, the appellate court pointed to several instances in the record where County decisionmakers evaluated and considered potential project inconsistencies with the general plan and ultimately concluded that the project was consistent. Thus, it found that the Board’s decision was entitled to substantial deference.
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.”
California Coastkeeper Alliance v. State Lands Commission (2021) 64 Cal.App.5th 36.
In a case certified for partial publication, Petitioner, California Coastkeeper Alliance (“Coastkeeper”), filed suit challenging the State Lands Commission’s (the “Commission”) adoption of a Supplemental EIR as a responsible agency in support of the proposed changes to the Poseidon desalination plant located in Huntington Beach as part of Poseidon’s proposed lease modification with the Commission. Specifically, Coastkeeper argued the Commission was required to take on the lead agency status and perform the related obligations that status would impose. The trial court denied Coastkeeper’s claims and Coastkeeper appealed. The appellate court affirmed.
To address the question posed by Coastkeeper’s lead agency status claim, the court first looked to the legal adequacy of the Commission’s decision to prepare a Supplemental EIR, rather than a Subsequent EIR. Relying on Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937, the appellate court found that the Commission properly relied on substantial evidence to conclude: (1) the prior environmental documents still retained relevance in light of the proposed project changes through the lease modifications; (2) the prior documents continue to have informational value; and (3) that the minor changes to the project would necessitate “only minor additions or changes…to make the previous EIR adequately apply to the changed situation.”
Next, the court addressed Coastkeeper’s claim that CEQA required the Commission to take on lead agency status to do so. Coastkeeper relied on CEQA Guidelines section 15052, which describes the situations where a responsible agency should assume the role of lead agency, to contend that the Commission was required to assume lead agency status to adopt the Supplemental EIR. Coastkeeper argued that Public Resources Code section 21166 establishes the same test for when “no subsequent or supplemental environmental impact report” is required, and thus, whether a subsequent or supplemental EIR is ultimately prepared the element at issue in CEQA Guidelines section 15052(a)(2)(A) (“A subsequent EIR is required pursuant to Section 15162;”) has been met. The court rejected the claim and held that this requirement is only applicable to the preparation of subsequent EIRs. It reasoned that the plain language in CEQA Guidelines section 15052(a)(2)(A) (“A subsequent EIR is required pursuant to Section 15162;”) expressly distinguished between subsequent EIRs and supplemental EIRs because subsequent EIRs fall under section 15162, while supplemental EIRs fall under section 15163.
Save Lafayette Trees v. East Bay Regional Park District, (June 30, 2021) 2021 Cal.App.LEXIS 545.
On March 21, 2017, the East Bay Regional Park District (the “District”) Board of Directors (the “Board”), held a public hearing and approved the acceptance of funding from PG&E for “environmental restoration and maintenance at Briones Regional Park and Lafayette-Moraga Regional Trail.” By March 23, 2017, representatives of the District and PG&E had fully executed a Memorandum of Understanding regarding the “implementation of the Community Pipeline Safety Initiative on [District] property in Contra Costa County” with the approved funding. The District did not file a Notice of Exemption at that time, but did file one on June 27, 2017. Petitioner later entered into a tolling agreement with the District on July 31, 2017, for 60 days, but PG&E was not a party to that agreement. On September 29, 2017, Petitioner filed suit. PG&E filed a demurrer and the trial court sustained without leave to amend holding the claims were time-barred.
The First District Court of Appeal affirmed. It held that Petitioner’s lawsuit failed to meet either the 35-day or 180-day statute of limitations for filing CEQA claims. First, it reasoned that because PG&E was a “necessary party” within the meaning of Code of Civil Procedure section 389, subdivision (a), Petitioner’s tolling agreement with the District was not binding on PG&E because they were not a signatory. Second, Petitioner claimed that the statute of limitations did not run until several weeks after the Board’s action on March 21, 2017, because neither the online agenda notice nor “the accompanying description of the Board Resolution in question mentioned or even implied that any trees would be removed,” and they did not become aware of the tree removals until several weeks later. The court rejected the claim and set the statute of limitations period on March 21, 2017, reasoning that because the staff report for the hearing stated that “245 trees are located too close to the pipeline and will be removed for safety reasons,” Petitioner had constructive notice on that date. As a result, it held that the claims were filed 11 days too late.
Dunning v. Clews (2021) 64 Cal.App.5th 156.
In an unusual case involving a post-CEQA litigation malicious prosecution lawsuit, the real-party-in-interest in the successful CEQA defense (the “Academy”) sought damages against petitioners and their attorneys for their purported “meritless lawsuit” that challenged the County’s adoption of a mitigated negative declaration (“MND”) for a 75-student school proposed to be located adjacent to petitioners’ horse ranch and riding academy. The CEQA claims challenging the MND included potentially significant impacts from wildfire risks, to recreational resources, traffic, and noise, which was supported by a noise study that established that noise generated from the school was expected to be substantially less than ambient conditions and, thus, not a significant impact. (See Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.) Petitioners and their attorneys filed an anti-SLAPP motion to strike the malicious prosecution complaint, and the trial court denied the motion finding that the Academy established a probability of prevailing in its malicious prosecution claim. Petitioners and their attorney defendants appealed.
The appellate court upheld the trial court decision as to the Petitioners, but reversed as to their attorneys. As to the first prong in a malicious prosecution analysis, the court held that the Academy met its burden by establishing that Petitioners and their attorneys did not have probable cause for pursuing its claims of project noise impacts. It reasoned that Petitioners evidence concerned the potential fiscal and operational impacts on the horse ranch and riding academy and not the potential noise impacts on the environment, particularly in light of the noise study prepared by the Academy. As to the second prong requiring the establishment of malice, the court held malice was established as to the Petitioners, but not as to their attorneys. As to Petitioners, it reasoned that bad faith settlement negotiations, and a history of harassment against previous owners of the Academy property demonstrated a prima facie showing of malice. However, as to their attorneys, the court refused to infer the improper motives of their clients due to a lack of substantiating evidence supporting the theory.
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 filed to exhaust its 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. 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. It reasoned that an appeal to the Board of Supervisors was required because: (i) Plaintiffs had actual notice of the CEQA determination and 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’s 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 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, the project was approved, and 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 notice 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 was 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 a Petitioner that properly requested it. The Court rejected this argument as well, noting that Petitioners had attended the hearings where Microsoft was properly identified as the real applicant and were, therefore, provided actual notice.
Petitioners then sought to alternatively 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 again rejected that option. 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 the 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 due to the constructive notice of the properly filed second NOD.
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.