By Leslie Z. Walker, Cori Badgley, Katherine J. Hart and William W. Abbott

Abbott & Kindermann, LLP’s annual California Environmental Quality Act (“CEQA”) review summarizes important developments over the past year. Among 2010’s highlights were three decisions from the California Supreme Court: two enforcing the abbreviated statutes of limitations set forth in Public Resources Code section 21167 subdivisions (d) and (e), and one holding the baseline for air quality emissions to existing physical conditions, not existing permitted conditions. The question of what constitutes the appropriate baseline for environmental review reverberated through the appellate courts as the Court of Appeal for the Fourth Appellate District held that adjudicated water rights, rather than actual water consumption, could serve as the baseline in a master plan; and the Sixth Appellate District held that the use of 2020 traffic conditions, as opposed to existing conditions, constituted an abuse of discretion.
Continue Reading 2010 CEQA UPDATE

By Kate J. Hart

The most recent California Environmental Quality Act (“CEQA”) case on selecting a project baseline is Sunnyvale West Neighborhood Assn., et al. v. City of Sunnyvale City Council (December 16, 2010, H035135). In this case, the City of Sunnyvale (“City”) proposed to construct the Mary Avenue Extension project, a four-lane northerly extension of Mary Avenue, including light rail transit tracks, over two freeways to Eleventh Avenue. The City’s environmental impact report (EIR) analyzed the project and its impacts based on 2020 conditions, as opposed to present day conditions. A neighborhood group sued to challenge the approval of the project. The superior court ruled in the neighbor’s favor and the City appealed. The Sixth Appellate District Court upheld the trial court’s decision holding that despite the City’s arguments the project was a traffic congestion-relief project, there is no provision of CEQA which allows a roadway infrastructure project to be evaluated differently than other projects. Further, even if the court was to assume the decision to use the projected 2020 conditions as a baseline was proper, it found the administrative record was devoid of any substantial evidence to support the decision to deviate from the norm of using current conditions as baseline for project analysis.Continue Reading Project to Remedy Traffic Congestion not Exempt from Analysis of Current Baseline Conditions

By Katherine J. Hart

In Renee D. Nelson v. County of Kern (November 19, 2010, No. F059293), a mining company submitted an application to the County of Kern (“County”) to surface mine 250,000 cubic yards per year of calcite marble from a 40-acre foothill property on federal land over a period of 30 years, and for a reclamation plan to restore the land after the completion of the mining. The Bureau of Land Management conducted environmental review of the project under National Environmental Policy Act (“NEPA”), and the County conducted environmental review of only the reclamation plan under California Environmental Quality Act (“CEQA”). The County adopted a mitigated negative declaration and approved a conditional use permit for the reclamation plan. Petitioners sued the County arguing the County should have been the lead agency for the entire project – not just the reclamation plan – and that the failure to consider the entire mining project along with the reclamation plan violated CEQA. The Fifth Appellate District agreed with Petitioners and reversed the trial court’s decision.Continue Reading County Dug Itself a Hole by Limiting its Scope of Review

Just because an agency has time to think doesn’t mean it does. In Juana Briones House v. City of Palo Alto (October 27, 2010, H033275) ___ Cal.App.___ the Sixth District Court of Appeal found the provision of the Palo Alto municipal code requiring a 60 day delay prior to the issuance of a demolition permit did not render the act discretionary. The City properly treated the demolition permit as ministerial and exempt from environmental review under CEQA.
Continue Reading Authority to Delay a Project Does Not Make the Project Discretionary