East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th.281.

By William W. Abbott

Note: Requests for depublication have been filed with the California Supreme Court.  The court extended time to review these request until March 17, 2017.

Judicial deference and absence of prejudice were the continuing themes in the recent Third Appellate District decision reviewing a challenge to an EIR and a general plan consistency analysis. The project involved McKinley Village, an infill project consisting of 328 dwelling units, (http://mckinleyvillage.com/) and the project approvals were challenged based upon allegations of deficiencies in the EIR as well as arguments regarding inconsistency with the city’s general plan. The trial court ruled in favor of the city. With one exception discussed below, the appellate court affirmed.

As to the CEQA claims, a neighborhood group East Sacramento Partnerships for a Livable City (ESPLC) argued that the EIR was deficient as a result of a defective project description, improper piecemealing, failure to analyzed health risks, failure to recognize traffic impacts and failure to disclose or mitigate methane migration. First, ESPLC argued that the project description failed to include the development agreement, a rezoning request for the multifamily units, an increase in the total units from 328 to 336 as well as variances from standard driveway widths for a limited number of dwellings.

As to the development agreement, it was disclosed to the planning commission and city council public hearings and ESPLC commented on the development agreement. This satisfied the public disclosure requirements. ESPLC further argued that the development agreement was used to modify the project at the very end of the process, when the city council, in response to citizen request, considered a second vehicular access tunnel. However, the tunnel was to become a city project and may or may not be constructed in the future. As it was not part of the developer’s project, it did not have to be part of the project description. As to the rezoning, the deletion of some single family and addition of multifamily product (a net increase of 8 units) triggered a rezoning. The impacts of the additional units were evaluated in the FEIR. The appellate court characterized this as a slight change and to be expected in the CEQA process. The opponents failed to show how the analysis was defective or how meaningful decisionmaking or public comment was precluded.

The final EIR included a discussion of a variance for driveway width in one area within the project. However, the opponents failed to demonstrate prejudice from the omission or that the modification had any significant impacts. ESPLC next argued that the city had improperly piecemealed the project. Its first argument involved the potential second tunnel, but having concluded that the tunnel was not part of the developer’s project, that there was no piecemealing issue. In response to public comment, the city included a half street closure, the effect of which was to reduce traffic impacts on one street and divert traffic to a street with greater capacity. The appellate court concluded that the minor change in response to public comment did not result in piecemeling. As part of the deliberations of the half street closure, the council directed the city manager to initiate steps to eliminate a nearby connector from the city’s general plan. While the resolution was not in the administrative record, it appears that the council direction was to consider the general plan amendment at a later date. This later action would be subject to its own CEQA review and was not considered to be piecemealing.

Turning next to health risks, the appellate court followed the Supreme Court’s holding in CBIA v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, noting that the EIR was not required to assess the impacts of the existing conditions (nearby landfill, interstate and railroad tracks). While ESPLC argued that the project would exacerbate existing conditions, those issues were already addressed in the EIR or too vague and speculative to warrant further consideration.

As to traffic, the project was consistent with the region’s sustainable communities strategy and the regional MTP, and as such was not required to address certain transportation impacts. Public Resources code section 1159.28(a). The opponent also challenged the use of intersection analysis to measure traffic impacts and ignoring roadway capacity. However, the court found substantial evidence to support the city’s methodology. EPSLC was unable to show how the city’s methodology failed to adequately assess traffic impacts.

The appellate court did agree with ESPLC on one issue. The EIR discussed that there were different general plan LOS standards for downtown (accepting higher congestion) compared those to residential neighborhoods. The court faulted the city for relying upon its general plan policies and standards, and failing to explain how the same level of traffic congestion is an impact in one neighborhood but not another. This issue resulted in the appellate court compelling the EIR be set aside, although only this one issue was required to be addressed upon remand.

Turning to ESPLC’s land use contentions, the appellate court applied a very deferential standard of review, acknowledging the weighing and balancing steps that a city or county employs in evaluating a project. (Certain of ESPLC’s arguments were based upon general plan policies which had been subsequently modified or repealed. The appellate court considered those claims to be moot.) ESPLC argued inconsistency over public health, transportation and noise policies and standards. The appellate court noted that some of ESPLCs arguments were based upon vague policies or ones which were not mandatory, and applying a deferential standard of review, the court concluded that it could not be said as a certainty that the project was inconsistent. Of note was the court’s recognition of a policy which required noise mitigation “to the extent feasible”, a concept found in many general plans. As this requirement was not mandatory in each circumstance, the appellate court could not find error.

William W. Abbott is a shareholder in 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.

By William W. Abbott, Diane Kindermann, Glen Hansen, Brian Russell and Dan Cucchi

Welcome to Abbott & Kindermann’s 2016 Annual 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 C and are denoted by bold italic fonts.

A.        2015 CEQA UPDATE 

To read the 2015 cumulative CEQA review, click here: 

B.        CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 4 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Banning Ranch Conservancy v. City of Newport Beach, S227473. (G049691; 236 Cal.App.4th 1341; Orange County Superior Court; 30-2012-00593557.) Petition for review after the Court of Appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues: (1) Did the City’s approval of the project at issue comport with the directives in its general plan to "coordinate with" and "work with" the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval? (2) What standard of review should apply to a city’s interpretation of its general plan? (3) Was the city required to identify environmentally sensitive habitat areas – as defined in the California Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) – in the environmental impact report for the project? 

**The case was argued before the California Supreme Court in early January, 2017.

Cleveland National Forest Foundation v. San Diego Assn. of Governments, S223603. (D063288; 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TTCTL.) Petition for review after the court of appeal affirmed the judgment in a civil action. The court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? 

Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.) Petition for review after the court of appeal affirmed the judgments in actions for writ of administrative mandate. This case includes the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state owned rail line and/or leasing state-owned property?

Sierra Club v. County of Fresno, S219783 (F066798, 226 Cal.App.4th 704); Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)

C.        Update

1.               CEQA Significance Thresholds 

California Building Industry Association v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. 

Hearing the case on remand from the California Supreme Court, the First District Court of Appeal considered the efficacy of BAAQMD’s significance thresholds used to evaluate the significance of a project’s air quality impacts on sensitive receptors under CEQA.  In light of the California Supreme Court’s decision in California Building Industry Assn. v. BAAQMD (2015) 62 Cal.4th 369, holding that, as a general rule, CEQA does not require an effect of the existing environment on a project’s future occupants or users, the court held that BAAQMD’s receptor thresholds could not be used to evaluate effects on future users, because to do so could trigger the need to prepare an EIR solely because the emissions in the existing environment meet the thresholds as to future users.  The court did, however, hold that the receptor thresholds could be used under certain circumstances, consistent with the California Supreme Court’s ruling, such as: (1) when the effect is ‘exacerbated’ by the project; (2) when a lead agency wishes to use such information for its own evaluation purposes; and (3) for those certain projects specifically identified in CEQA that call for an analysis of impacts on future users (see airports (PRC § 21096), school construction (PRC § 21151.8) and some housing projects (PRC §§ 21159.21 (f) and (h), 21159.22 (a) and (b)(3), 21159.23(a)(2)(A), 21159.24 (a)(1), (3),  211551.(a)(4), (6), 21096,  and 21151.8.)  The court then remanded the case to the trial court for further action consistent with the California Supreme Court and appellate court decisions.

2.               General Considerations: What Is The Definition Of A Project? 

Delaware Tetra Technologies, Inc. v. County of San Bernardino (2016) 247 Cal.App.4th 352.

Citing seminal CEQA timing cases Save Tara v. City of West Hollywood, 45 Cal.4th 116 (2008) (“Save Tara”), and RiverWatch v. Olivenhain Municipal Water Dist., 170 Cal.App.4th 1186 (2009)(“RiverWatch”), the plaintiff claimed the respondent’s approval of a Memorandum of Understanding for development of a public/private partnership groundwater pumping project in the Mojave Desert (“2012 MOU”) was a “project” under CEQA and, thus, environmental review was required before it could be approved.  The court disagreed, finding that the 2012 MOU was not a “project,” because it did not commit the County “to a particular course of action that will cause an environmental impact,” affirming the trial court.  It reasoned that the instant circumstances were distinguishable from those cases, because those defendant agencies were sufficiently committed to a course of action that foreclosed alternatives or mitigation measures normally considered as part of the project approval process.  Instead, the 2012 MOU was akin to the “term sheet” in Cedar Fair, L.P. v. City of Santa Clara, 194 Cal.App.4th 1150 (2011), because the approval was merely “a process for completing the Plan” and the 2012 MOU explicitly stated that “the County retain[ed] full discretion to consider the Final EIR and then to approve the Project, disapprove it, or require additional mitigation measures or alternatives.”

Union of Medical Marijuana Patients, Inc. v. City of Upland (2016) 245 Cal.App.4th 1265.                                                                                               

In 2007, the City of Upland adopted an ordinance banning “fixed or mobile” medical marijuana dispensaries within the city limits. In reaction to the likely operation of marijuana delivery services within the city limits, the council adopted a new ordinance in 2013 that explicitly banned mobile dispensaries.  The Union of Medical Marijuana Patients (“UMMP”) filed a petition for writ of mandate, arguing that adoption of the ordinance was a “project” subject to CEQA and the trial court denied.  The 4th appellate district court affirmed, holding that the ordinance was not a project under CEQA.  It reasoned that the 2013 ordinance was nothing more than a ratification of the previous existing ordinance which banned mobile dispensaries. It then further found that even if the 2013 did not restate existing law, the potential environmental effects raised by UMMP through studies evaluating industrial-scale indoor growing operations—increases in electrical and water, waste plant material and odors, hazardous waste materials, increased traffic—were speculative and, thus, not reasonably foreseeable environmental effects.  It reasoned that these concerns “rest on layers of assumptions” about the similarity of the potential acts and consequences of small-scale medical marijuana patients and those on an industrial-scale if the mobile delivery service ban is upheld. 

Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103.

The city adopted an ordinance regulating the establishment and regulation of medical marijuana cooperatives within the city, finding the ordinance was not a “project” under CEQA, because it will not result in a direct or reasonably foreseeable indirect change in the physical environment. (CEQA Guidelines §15060(c)(3).)  The petitioners (“UMMP”) challenged the city’s adoption of the ordinance under CEQA, arguing the ordinance was a project under CEQA, because it had the potential to cause environmental impacts as a result of traffic, air pollution, and effects from home cultivation sites around the city.  The trial court denied the petition and UMMP appealed.  The Fourth District Court of Appeal affirmed, holding that the city’s ordinance was not a “project” subject to CEQA.  It reasoned that UMMP’s concerns over potential indirect impacts were too speculative to meet the reasonably foreseeable standard.

3.               Exempt From CEQA Review 

People for Proper Planning v. City of Palm Springs (2016) 247 Cal.App.4th 640.

The City of Palm Springs amended its general plan to remove minimum density requirements.  The City asserted that the amendment was categorically exempt from CEQA (CEQA Guidelines §15305 [Minor Alterations in Land Use Limitations]), as the action was consistent with prior city interpretation and administration of the general plan which resulted in projects at less than the minimum density stated in the various land use districts.  While the trial court agreed that it was exempt, the appellate court reversed on the basis that the change undermined the city’s ability to meet its share of the state’s housing needs when it relied upon the “anticipated densities” when developing its housing element. Consequently, given the exemption’s facial exclusion for projects that result in changes to land use density, the exemption was inapplicable.

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. From 1965 to 2001, there was a car wash on the property.  The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c) for “New Construction or Conversion of Small Structures.”   

In reviewing the determination of whether a project fits within the exemption, the appellate court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence established that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years. 

On the final issue, the court held that appellants failed to provide evidence that the project will actually have a significant impact due to noise and traffic, reasoning that the car wash was conditioned to adherence to the city’s noise standards, and that, at best, appellants provided evidence that suggests that the project possibly could have a periodic impact on traffic. Therefore, the city properly determined that the car wash project was categorically exempt under the CEQA Guidelines. 

4.               Negative Declarations 

Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677. 

In a challenge to the adequacy of the county’s adopted negative declaration, the appellate court held that petitioner failed to provide substantial evidence of a potentially significant effect from urban decay resulting from the approval of a 9,100 sq. ft. Dollar General store, because there were legitimate credibility issues regarding the opinions of the local business owner regarding the impact.  The court also held that given the relatively moderate size of the business, it was reasonable for the county to conclude that the project was consistent with the county’s general plan policies for the area which favor small businesses.

Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560.

The underlying facts are neither remarkable nor unusual. The setting is the City of Poway, known as “The City in the Country.” A property owner, Harry Rogers, had operated a horse boarding facility for twenty years, located across the street from the polo/rodeo grounds of the Poway Valley Riders Association (which did not offer horse boarding.) Seeking greener pastures, Rogers proposed to close the boarding facility and subdivide his property into equestrian residential lots. The proposed subdivision conformed to the zoning and was unanimously approved by the City Council based upon a negative declaration. Horse enthusiasts filed a CEQA challenge over the conversion of use. The CEQA challenge raised a number of issues, noteworthy among which involved the loss of the facility and its potential implications to the character of the community. Equestrian activities were well thought of and helped define the community of Poway. The trial court found that most of the issues in the CEQA writ petition had not been raised administratively and could not be pursued at trial for failure to exhaust administrative remedies. Reviewing the issue of community character, the trial court concluded that a fair argument had been made and directed that the Negative Declaration and project approval be set aside. As to the remaining issues, the trial court ruled for the City. The applicant timely appealed. The petitioners did not appeal the adverse ruling on the remaining claims. 

The appellate court reversed, concluding that community character was not the type of issue that CEQA was concerned with, as the impacts of closing the facility were social in character. The residents’ concerns were expressed in terms of childhood activities, life’s lessons while learned apparently on the back of a horse, the benefits to horse owners of not having to haul their horses around, and that the community would lose its country feel. While courts have recognized land use changes may affect a community through aesthetic impacts, in this particular case the impacts were to the psyche of the residents and were not the basis for requiring an environmental impact report. From the court’s perspective, these concerns were “psychological, social, and economic—not environmental.”  The project opponents further argued that the existing rodeo/polo facility could cause impacts to the future subdivision. The appellate court rejected this argument, following the Supreme Court’s recent decision in California Building Industry Association v. Bay Ara Air Quality Management Dist. (2015) 62 Cal.4th 369, finding that CEQA’s focus was on the impacts of the project on the environment, not the other way around. As to traffic impacts, there was no “fair argument” from the court’s perspective. 

Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457. 

Petitioners challenged the City of San Jose’s mitigated negative declaration in support of its proposal to demolish the Willow Glen Railroad Trestle (the “Trestle”), a wooden bridge built in 1922 as part of a rail line accessing the canning districts near downtown, and replace it with a new steel pedestrian bridge.  The City found that, because the Trestle design was common and was likely largely rebuilt within the last 30-40 years, it was not a historical resource.  Thus, there was no significant impact on the environment.  Petitioners challenged that determination and filed a writ of mandate, arguing that there was a “fair argument” that the Trestle was an historical resource and an environmental impact report (“EIR”) was required. The appellate court ruled in favor of the City, reasoning that the statutory language precluded the application of the fair argument standard to the initial decision of whether it was an historical resource, because the City was specifically authorized under Public Resources Code section 21084.1 to make such determinations based upon “the preponderance of the evidence.” 

Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937.

In 2006, the San Mateo Community College District adopted a master plan, calling for over one billion dollars in investment districtwide. This master plan was based upon an environmental impact report (“EIR”). As to the College of San Mateo campus, the plan called for renovation of the Building 20 complex and demolition of others. In 2007, the District approved a negative declaration for the improvements at the San Mateo campus. In 2011, being unsuccessful in obtaining funding, the College modified its plans, planning now to demolish the Building 20 complex and associated gardens, and renovate other buildings. This decision was based upon the 2007 negative declaration coupled with an addendum. Project opponents filed suit, and the District rescinded its addendum and reissued a new addendum with a more in-depth analysis, but reaching the same conclusion. Opponents dismissed the first case and refiled a new lawsuit challenging the revised plans on CEQA grounds. At the opponents’ urging, the trial court concluded that the revisions constituted a new project, ordered the approvals set aside, and directed the District to prepare an EIR. The Court of Appeal concurred (relying primarily on Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288) to decide that as a matter of law the proposed building demolition was a new project. The California Supreme granted review and reversed. 

The Court was emphatic that a decision of whether or not a proposed activity was a new project was predominately a factual question to be made by the decision making body, not a reviewing court. “It is thus a question for the agency to answer in the first instance, drawing on its particular expertise….A court’s task on review is then to decide whether the agency’s determination is supported by substantial evidence; the court’s job’ is not to weigh conflicting evidence and determine who has the better argument.’ ” The opponents also argued that Public Resources Code Section 21166 and CEQA Guidelines Section 15162 could only be invoked following the use of an EIR and therefore had no application in this instance based upon a negative declaration. Citing the legislative history, the Court rejected this argument. Finally, the opponents argued the substantial evidence test was inappropriate in circumstances of a tiered CEQA document, pointing to the master plan as the first tier. The record did not support this characterization, as the 2007 approval was a project-level decision.

5.               Environmental Impact Reports

The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency, 2016 Cal.App. LEXIS 1154 

In 1998, the San Francisco MTA certified an EIR for the addition of a new light rail line to connect the southeastern portion of the City to the rest of San Francisco, included a portion of the project called the Initial Operating Segment (“IOS”).  Over the next decade, portions of the IOS were constructed, but the “Loop” was not fully constructed due to budget constraints.  In 2013, the City received approval of a federal TIGER grant to complete construction of the “Loop,” and City planning department staff determined that the 1998 EIR provided sufficient CEQA review of the project.  In 2014, the City entered into a contract for construction of the “Loop” and the plaintiffs filed suit arguing: (1) the 1998 EIR did not sufficiently cover construction of the “Loop,” and, thus, the court should apply the fair argument standard of review for CEQA compliance; and (2) even if it did, supplemental review of the existing 2014 conditions should have been completed.  The trial court denied the petition and plaintiffs appealed.

The First District Court of Appeal affirmed.  Citing Friends of College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937, the court found that the substantial evidence standard of review applies to review of the City’s determination that the 1998 EIR was sufficient.  Thus, based upon review of the record, the court held that substantial evidence supported the City’s decision to rely on the 1998 EIR.  In addition, it held that plaintiffs’ claim that the analysis of the “Loop” in the 1998 EIR was inadequate was time-barred pursuant to Public Resources Code section 21167.2.  As to the question of whether supplemental review was required, the court also found the plaintiffs’ arguments were meritless.  It reasoned that prior case law cited by plaintiffs that suggest support for their position involve prior program or plan EIRs, while this matter involved a project-level EIR, and found that: (1) substantial evidence in the record supported the City’s decision not complete supplemental review; and (2) the delay between the 1998 EIR and the 2014 construction was not a substantial change to the project necessary to trigger supplemental analysis.

Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966.

Reviewing a legal challenge perhaps driven primarily by philosophical considerations (higher density vs. lower density), the Court of Appeal (First Appellate District) upheld ABAG’s Sustainable Communities plan (the “Plan”), adopted under the authority of SB 375 (Steinberg).  SB 375, adopted in 2008, created a framework for linking transportation investment and land use planning in a manner to move the state closer to its targeted reduction in greenhouse gas emissions by passenger vehicles and light trucks. The heavy lifting under SB 375 is by the regional planning agencies, in this case Association of Bay Area Governments (“ABAG”) in consultation with the California Air Resources Board (“CARB”) as it discharges its responsibilities developing and implementing the State Scoping Plan. The adequacy of the Plan and EIR, and in particular the shift towards higher density, was challenged by Bay Area Citizens. 

Although the appellate decision is mostly dedicated to SB 375, Citizens also challenged the EIR. Its first argument challenged the project description, reintroducing the theme that Pavley I and the low carbon fuel requirements should have been factored in as part of the project description. The appellate court readily disposed of this argument, reciting that the seven identified goals for the Plan were sufficiently broad and appropriately linked to SB 375. The appellate court then turned to Citizens’ challenge to the EIR’s alternatives.  Citizens first argued that the No Project alternative was required to reflect the benefits of other state programs (notably Pavley I and low carbon fuels) which largely centered on an argument that the EIR should have included the Citizen’s alternative.  Again, the appellate court disagreed noting that the targets in greenhouse gas reduction and climate change from the Plan were developed independent from, and were additive to, the anticipated benefits of Pavley I and low carbon fuels. The appellate court also determined that the Pavley II impacts were not known until too late in the EIR process and therefore were not required to be reflected in the EIR.  Citizens also argued that the EIR was required to review its plan as an alternative, suggesting that its plan would have met basic project objectives without the secondary effects of higher density development.  The court rejected this argument finding that the EIR included a reasonable range of alternatives and that Citizens had failed to demonstrate any shortcomings against that legal standard. Citizens last argument was a variation on the same theme: because the Agency failed to account for the benefits of Pavely I and low carbon fuels, the Agency failed to adequately respond to the Citizens comments as to those issues. Again noted the appellate court, the Citizens had it wrong. 

Finally, as an independent ground to uphold the EIR, the Court agreed with amicus California Attorney General that the EIR was a full disclosure document. The document was clear when and where it relied upon Pavley I and low carbon fuels, and that the challengers failed to show why more analysis was required. Essentially then, Citizens challenge was to the wisdom of the Plan itself, essentially at its best that the Plan did more than the minimum to meet the law. In the end, a challenge to the wisdom of the Plan was not a CEQA challenge. 

Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal.App.4th 91.

The Appellate Court held that the EIR prepared for a shopping center, including a new Wal-Mart, lacked substantial evidence to support a finding of consistency with the General Plan because the analysis of the project’s noncompliance with a plan policy requiring on site electricity generation did not adequately explain the infeasibility of solar or consider other onsite generation options. Analysis of greenhouse gas emissions impacts was insufficient because some documents in the record indicated energy efficiency standards would not be met. Before approving the parcel map the city was required to affirmatively address all of the factors in Government Code Section 66474. Significant changes to the air quality analysis and the hydrology and water analysis required recirculation.

Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256.

The appellate court held that the city’s EIR for a commercial retail project failed to adequately analyze energy impacts, because it failed to calculate the resulting energy impacts from increased vehicle trips resulting from the project. Furthermore, it held that the city’s reliance upon building code compliance to reduce energy use was improper, because the compliance with those standards fails to address many of the considerations required under Appendix F of the CEQA Guidelines. The court also held that the city’s adoption of an addendum to the EIR addressing these deficiencies nearly one year after its original adoption did not cure the deficiencies in the EIR, because the EIR was still inadequate at the time the decision was made to approve the project.

Center for Biological Diversity v. County of San Bernardino (2016) 247 Cal.App.4th 326.

The petitioners challenged the adequacy of the environmental impact report (“EIR”) for a proposed project to pump groundwater from an underground aquifer in the Mojave Desert, a public/private partnership between the County of San Bernardino (the “County”), the Santa Margarita Water District (“Santa Margarita”), the Fenner Valley Mutual Water Company (“Fenner Valley”), and Cadiz, Inc. (“Cadiz”)(collectively, the “Respondents”). Petitioners challenged under several theories: (1) Santa Margarita was improperly designated as the lead agency under CEQA; (2) the project description was misleading and inaccurate by (a) mischaracterizing the project’s “conservation” objectives as preventing water lost to evaporation, (b) misstating the project duration; and (c) mischaracterizing the total amount of water than will be withdrawn from the aquifer. The trial court denied the petition and the petitioners appealed. 

The appellate court affirmed on all counts. It found Santa Margarita was properly designated as the lead agency pursuant to CEQA Guidelines section 15051, because (1) it is a public agency that will carry out, in part, a public/private partnership; and (2) it will have the greatest responsibility for supervising the project as a whole. It rejected petitioners’ claim that the project does not meet its purported “conservation” purpose, finding that the purpose was broader than prevention of evaporation and included saving freshwater sources before they become non-potable due to excess salinity once they migrate into nearby dry lakes.   

The court denied petitioners claims that the project duration was indefinite, reasoning that even though the project by its terms could be extended beyond its 50-year duration in order to complete contracted-for water deliveries, the duration remained limited by the fact that any extension was limited by the maximum amount of water that may be pumped over the life of the project, and the average amount of water that can be pumped annually. It further reasoned that any extensions would require subsequent environmental review consistent with CEQA. Finally, the court rejected the claim that the quantity of water pumped was inaccurate, reasoning that the water sales agreement cited other adopted documents limiting the amount of water that may be pumped annually and that the size of the pipelines is consistent with the project design capacities. 

North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. (Unpublished to Published January 4, 2016.)

An EIR was held to be invalid due to an inadequate range of alternatives.

The Third Appellate District found an EIR to be inadequate for lack of a particular alternative. While this suggests a potential micromanagement of the EIR process, the decision involves an unusual fact pattern. The lead agency was California Department of Food and Agriculture, proposing a seven year program to eradicate an invasive insect, the light brown apple moth (“LBAM”)[1]. Found in select northern California counties, this insect had spread rapidly notwithstanding State efforts to control the pest. The State proposed a program to eliminate the insect (as compared to managing its population) and prepared an EIR. At the end of the EIR process, the State approved a seven year program to control LBAMs based upon new information that eradication was not deemed to be attainable. “Control,” as compared to eradication, was not considered in the EIR as a reasonable alternative. Rather, the alternatives section examined seven techniques for management (five of which were approved as part of the project.) Opponents filed suit, arguing primarily project segmentation (after all, the pest was only to be controlled, not eradicated, within seven years), unstable project description and inadequate project alternatives.

The project objective was defined as “eradication,” an objective determined by the appellate court to be too narrow. Eradication was used as a screening tool that prevented the consideration of control, which in the end is what the State approved. The fact that the State approved control in the end did not salvage the EIR as the error was deemed to be prejudicial. While late project adjustments might be allowable if insignificant, the court viewed the administrative record as lacking in supporting an insignificance conclusion because of the omission of any consideration of control in the EIR. The court also observed that the record supported the inference that impacts associated with control might be greater than eradication because of the potentially indefinite duration. 

Petitioners also argued other technical defects in specific impact analyses, but these were all rejected by the appellate court. The court considered but rejected an argument that the EIR was defective for failure to consider site specific impacts.  Finally, the court addressed a cumulative impacts argument stating that the new EIR take into consideration the long term (post seven year effects and treatment) in the evaluation of cumulative impacts. 

San Diegans for Open Government v. City of San Diego, 2016 Cal.App. LEXIS 1095.

The city staff reviewed a developer’s proposed changes to a previously approved project and determined that the project, as amended, was in substantial conformance with the conditions and requirements of the approved permit and no further CEQA compliance was required.  Plaintiffs, a local public interest group, appealed the determination to the Planning Commission which upheld the decision of staff.  The city then rejected the request to appeal the matter to the city council.  Plaintiffs filed suit arguing: (1) they were entitled to an administrative appeal under Public Resources Code section 21151(c), requiring agencies to accept appeals of CEQA determinations made by non-elected decision making bodies; (2) the determination was discretionary, thus entitling them to an appeal to the city council; and/or (3) the local ordinance provides for an appeal of environmental determinations.  The trial court denied the petition and plaintiffs appealed. 

The appellate court affirmed, holding that the city was not obligated to allow plaintiffs to appeal the decision.  It reasoned that: (1) nothing in the CEQA Guidelines supports the notion that section 21151(c) applies to review of a project that merely confirms a previous CEQA determination still applies; (2) the discretionary nature of a decision is not sufficient on its own to establish a right to an administrative appeal; and (3) the action was not an “environmental determination” as defined in the city code, because it did not “certify an environmental impact report, adopt a … mitigated negative declaration, or determine that a project was exempt from [CEQA].”

Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th 160.

A citizens group challenged the City and County of San Francisco’s (“City”) certification of an environmental impact report for the construction of an arena for the Golden State Warriors and adjacent facilities in the Mission Bay South redevelopment plan area.  Plaintiffs challenged several issues, including: (1) that certain environmental issues were improperly “scoped-out” and there was a fair argument of potentially significant impacts; (2) mitigation requiring the Warriors to “work with” transit agencies to address traffic impacts was legally inadequate; (3) inclusion of the Muni Transit Service Plan (“TSP”) in the project description, rather than as mitigation, prevented the consideration of other potential mitigation measures under Lotus v. DOT (2014) 223 Cal.App.4th 645; (4) the City’s use of an “ambient plus increment” noise threshold improperly disregarded noise impacts where the noise levels were already high; and (5) failure to quantify GHG emissions and rely on a qualitative standard of consistency with the City’s GHG strategy was legally deficient.  The trial court denied the petition and plaintiffs appealed. 

The appellate court affirmed.  It held that: 

(1)  the substantial evidence standard of review was proper, because the City made a determination that the project was consistent with a prior program EIR, while identifying the specific issues that warranted more detailed environmental review, consistent with CEQA Guidelines section 15168. 

(2)  the mitigation that required the Warriors to “work with” the transit agencies was adequate, reasoning that the adopted transportation management plan specific performance standards and substantial evidence supported the conclusion that the mitigation will “actually be implemented as a condition of development”;  

(3)  Lotus was inapplicable, reasoning that unlike the Lotus environmental document, the arena EIR fully disclosed the traffic and transit impacts of the project, and analyzed both with and without the TSP under the same threshold to determine significance;

(4)  The noise analysis was not deficient, because the EIR incorporated a smaller incremental threshold for high ambient noise levels, the cumulative analysis expressly addresses the issue raised by plaintiffs, and the impact analysis fully describes the noise impacts on human health; and

(5)  the EIRs reliance on compliance with an adopted GHG reduction strategy, even without quantifying the GHG emissions, was: (a) consistent with CEQA Guidelines section 15064.4 which grants agencies discretion in determining the proper significance threshold for a given project; and (b) does not run afoul of the California Supreme Court’s holding in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 219, because it did not hold that quantification was necessary in every case, it identified “potential pathways to compliance.”

East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281.

Note: Requests for depublication have been filed with the California Supreme Court.  The court extended time to review these request until March 17, 2017. 

The court of appeal refused to set aside an EIR due to minor changes that occurred through the EIR process. These include:

·       Failure to discuss the development agreement;

·       A minor density change resulting in an increase of eight more residential units from 328 units to 336 units;

·       The discussion, but no decision of a potential secondary vehicle access (to be built if at all as an independent city project);

·       Driveway width variances for a handful of four-house residential T-court clusters;

·       A modification to over circulation resulting in traffic being diverted to another street with additional capacity;

·       The EIR was not required to analyze impacts from the existing nearby landfill on the project. 

However, the EIR failed to substantiate the use of a different level of service on downtown, as compared to suburban intersections.

Finally, with respect to general plan consistency claims, the court of applied a deferential review, finding no irreconcilable conflicts with mandatory policies.

6.               Litigation Procedures 

Highland Springs Conf. & Training Center v. City of Banning (2016) 244 Cal.App.4th 267. 

After a successful challenge to the approval of an Environmental Impact Report (“EIR”) for a 1,500-acre development project, the appellants, Highland Springs Conference & Training Center (“Highland Springs”), were awarded over $1 million in attorney fees and costs against the real party in interest, SCC/Black Bench, LLC, dba SunCal Companies (“SCC/BB”) in 2008.  Four years later, appellants sought to add SCC Acquisitions, Inc. (“SCCA”), as an additional judgment debtor, claiming that SCCA was the alter ego of SCC/BB and filed the motion shortly after they became aware that SCC/BB had dissolved back in 2010.  The trial court denied the motion to amend reasoning that while Highland Springs likely would have prevailed on the motion had they filed it earlier, it was denied because Highland Springs failed to provide sufficient evidence to support their “long delay” in filing the motion.  Highland Springs appealed.

The appellate court reversed, holding that the court erred by failing to apply the alter ego doctrine to the motion, which would have put the burden was on SCCA to provide sufficient evidence that it was prejudiced by Highland Springs delay in filing the motion under a laches defense.  The appellate court remanded the case for further proceedings consistent with the opinion. 

Center for Biological Diversity v. Cal. Dept. of Fish & Wildlife (2016) 1 Cal.App.5th 452. 

After extended litigation over a mandate petition regarding the certification of an Environmental Impact Report (“EIR”) related to several approvals for the proposed land development project called Newhall Ranch, the California Supreme Court held that issues involving greenhouse gas emissions and protected fish species required further analysis under CEQA and remanded the case back to the appellate court.  In the published portion of the decision, the appellate court considered the defendants’ argument that the appellate court had the authority under the California Supreme Court decision to retain supervision of the agency’s compliance after remand.  The Court of Appeal held that it is not empowered to retain jurisdiction to supervise the return to the writ of mandate, because Public Resources Code section 21168.9, subdivision (b) expressly vests such power in the trial court.

Communities for a Better Environment v. Bay Area Air Quality Mgmt. Dist. (2016) 1 Cal.App.5th 715. 

The petitioners, Communities for a Better Environment (“CBE”), filed a writ of mandate challenging the Bay Area Air Quality Management District’s (“BAAQMD”) approval of a modification to operations at a rail-to-truck facility to transload crude oil, instead of ethanol, as a “ministerial” approval exempt from the California Environmental Quality Act (“CEQA”).  Though CBE’s action was filed more than 180 days after both BAAQMD’s approval of the change in operations, as well as the commencement of the new operations, CBE argued the “discovery rule” should apply to toll the statute of limitations.  Because of the nature of the change in operations and BAAQMD did not file a Notice of Exemption, CBE maintained that it neither learned about the project, nor could have discovered it using reasonable diligence, until it received an email disclosing the project.  In its defense, CBE cited Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association, 42 Cal.3d 929 (1986), in which the California Supreme Court allowed a CEQA suit filed more than 180 days after construction began on an amphitheater project, because the Association made substantial changes to the project that were not made public and were not discoverable until the first concert was held at the site.  However, the trial court held the claim was time-barred, dismissed the case, and CBE appealed. 

The appellate court affirmed.  Looking to Concerned Citizens, the appellate court reasoned that the California Supreme Court did not apply the discovery rule, because to do so would be inconsistent with the Legislature’s intent in adopting the strict timelines in Public Resources Code 21167.  Instead, the court noted that the California Supreme Court allowed the suit to proceed because the changes from the original project were so substantial the plaintiffs had neither actual nor constructive notice of the changes until the first concert was held.  Thus, they had 180 days from the time they “knew or reasonably should have known that the project under way differs substantially from the one described in the EIR.”  The court then considered another case, Stockton Citizens for Sensible Planning v. City of Stockton, 48 Cal.4th 481 (2010), to conclude that the public has received constructive notice through either a formal decision to approve the project or the project’s commencement.  Thus, the court held that CBE’s suit was subject to the 180 day limitations period from the date CBE had constructive notice, which was the date of project commencement, not the date of the email giving CBE actual notice.

Citizens for Ceres v. City of Ceres (2016) 3 Cal.App.5th 237.

A citizens group unsuccessfully challenged the city’s environmental review and approval of a shopping center project.  The developer reimbursed the city for the costs to prepare the administrative record and requested the court grant an award that included those costs.  The citizens group filed a motion to tax those costs and the trial court granted it.  The developer appealed and the appellate court reversed the order to tax costs and remanded to the trial court.  It reasoned that: (1) nothing in the statute prohibits a real party in interest from submitting cost bills after it reimbursed the agency for preparing the administrative record; and (2) neither could such a prohibition imply that to do so would undermine the public policy of incentivizing agencies to reduce costs.

7.               CEQA Guidelines Updates 

a.     OPR VMT CEQA Guidance 

On January 20, 2016, the Governor’s Office of Planning and Research (“OPR”) released its Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA, which followed its “Preliminary Discussion Draft” released in 2014.  OPR accepted public comments on the revised draft through February 29, 2016.  Key proposals include: 

·       A recommendation that VMT be used throughout the state, not just in transit priority areas, phased in over time, beginning in urban areas. 

·       Establishes that under CEQA, “a project’s effect on automobile delay does not constitute a significant environmental impact.”

·       Authorizing agencies to use significance thresholds adopted by other agencies, so long as they are supported by substantial evidence.

·       The proposal includes a Technical Advisory that sets forth recommended VMT screening thresholds, as well as several examples of potential mitigation measures and alternatives to reduce VMT. 

To date, no further steps have been taken and there is no timeline for adoption of final regulations. More information can be found at: http://www.opr.ca.gov/s_sb743.php

b.     AB 52 CEQA Guidelines Update 

California Natural Resources Agency adopts final rule to implement AB 52, Tribal Cultural Resources under CEQA on September 29, 2016. 

See Environmental Law Update, Cultural Resources Protection Section, Update, Item 1.

D.        Legislation

SB 122 (Chapter 476) California Environmental Quality Act: record of proceedings.  

This bill requires: (1) the lead agency to concurrently prepare the administrative record with the administrative process, upon the request of the applicant and the consent of the agency, at the sole cost of the applicant, and certify the record within 30 days after filing the notice of determination; and (2) directs OPR to implement an online public database of all CEQA documents and notices, and requires lead agencies to submit these documents in either hard-copy or electronic format, as determined by OPR.

SB 734 (Chapter 210) Environmental quality: Jobs and Economic Improvement Through Environmental Leadership Act of 2011.

This bill extends the sunset date until January 1, 2019, for projects to qualify for the expedited CEQA judicial review process established in the Jobs and Economic Improvement Through Environmental Leadership Act in 2011.

SB 1008 (Chapter 588) California Environmental Quality Act: Los Angeles Regional Interoperable Communications System: exemption.  

This bill exempts from CEQA the design, construction and operation of the Los Angeles Regional Interoperable Communications System, a radio and broadband communications system for emergency responders, under specified conditions.

If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Dan Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., nor 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.

 


[1] From Australia, which has also brought us Mad Max, Crocodile Dundee, and shrimp-on-the-barbie.

 

Reserve your seat for one of four seminars taking place in early 2017.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto, and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference  (To Register for the Redding Location Click Here)

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference  (To Register for the Napa Location Click Here)

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809.

By Brian Russell

Auto-Spa applied for a conditional use permit to build a car wash and coffee shop in Redondo Beach, California. The property is zoned commercial. The project consisted of a 90-foot car wash tunnel and an attached coffee shop totaling 4,080 square feet. The rest of the property would be used for drying and parking cars. Entry to the car wash was from a residential street, just off of a major street. From 1965 to 2001, there was a car wash on the property.

The Planning Commission approved the project under a categorical exemption in CEQA Guidelines section 15303(c).  That provided an exemption from CEQA review for commercial buildings not exceeding 10,000 square feet in floor area on sites zoned for such use if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available and the surrounding area is not environmentally sensitive.

After an appeal and approval by city council, Appellants filed a petition challenging the CEQA exemption. The trial court ruled in favor of the city.

On appeal, the initial issue was whether the project qualified as a commercial structure and met the square footage limitations of the CEQA exemption. In reviewing the determination of whether a project fits within an exemption, the court applied the substantial evidence test and agreed with the city that the exemption embraced a broad range of commercial projects. The appellant also urged that the use of hazardous materials was not allowed in conjunction with the exemption. However, the evidence did not support this argument, and that the argument was based upon speculation.

Appellants then argued that even if the exemption applies, it should not apply for this project because “there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”  Under the Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”), a challenger must prove both the unusual circumstances and a significant environmental effect that is due to those circumstances. If unusual circumstances are found, agencies apply the fair argument standard in determining whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances. Alternatively, under Berkeley Hillside, a challenger may establish an unusual circumstance with evidence that the project will have a significant environmental effect, applying the traditional substantial evidence test. Here, the court explained that a party can show an unusual circumstance by demonstrating that the project has some characteristic or feature that distinguishes it from others in the exempt class, such as its size or location. But the court concluded that there is nothing particularly unusual about the proposed car wash and coffee shop. The evidence establishes that there are many other car washes in the surrounding area, plus the site itself was a car wash and snack bar for nearly 40 years, which suggests that this project is not an unusual circumstance.

The court further analyzed whether the plaintiffs had established that the unusual circumstances will have a significant environmental effect. The plaintiffs argued that the operation of the car wash would violate the city’s interior and exterior noise limits at the abutting property line. However, the court rejected that argument, and found that the exceedance will not occur, because the project was conditioned upon the car wash’s adherence to the city’s noise standards. Furthermore there was an additional condition that provides that compliance with the noise requirements “shall be tested and documented prior to the final inspection and opening of the car wash operation.” Given those conditions and assurances, plaintiffs failed to meet their burden of showing that the project will actually have a significant environmental effect.

Plaintiffs then argue that the project will have a significant impact on traffic. They argued that the design of the car wash is inefficient and will cause back ups within the project property. However, the court held that plaintiffs’ argument was speculative and was contradicted by both the plaintiffs’ expert and the city’s findings that any such backup could be avoided by managing the flow of cars through the car wash. The court found that, at best, plaintiffs provided evidence that suggests that the project possibly could have a periodic impact on traffic. That was insufficient. The court held that plaintiffs failed to provide evidence that the project will actually have a significant impact on the environment by causing a substantial adverse change in the physical conditions that exist in the area.

With that holding, the court concluded that plaintiffs failed to establish the unusual circumstances exception under the Berkeley Hillside alternative analysis. Therefore, the city properly determined that the car wash project is categorically exempt under the CEQA Guidelines.

Brian Russell is an attorney at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, 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.

 

Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937.

By William W. Abbott

The California Supreme Court has solved one of CEQA’s great riddles: when a project is modified after the original CEQA documentation and initial project approval, which standard of review applies? In a decision which will boost the confidence of lead agencies, the Court applied the more deferential substantial evidence test under the authority of Public Resources Code Section 21166 and Guidelines Section 15162.

The facts begin in 2006 with the adoption of a master plan for the San Mateo Community College District, calling for over one billion dollars in investment districtwide. This master plan was based upon an Environmental Impact Report. As to the College of San Mateo campus, the plan called for renovation of the Building 20 complex and demolition of others. In 2007, the District approved a negative declaration for the improvements at the San Mateo campus. In 2011, being unsuccessful in obtaining funding, the College modified its plans, planning on demolishing the Building 20 complex and associated gardens, and renovating other buildings. This decision was based upon the 2007 negative declaration coupled with an addendum. Project opponents filed suit, and the District rescinded its addendum and reissued a new addendum with a more in-depth analysis, but reaching the same conclusion. Opponents dismissed the first case and refiled a new lawsuit challenging the revised plans on CEQA grounds. At the opponents’ urging, the trial court concluded that the revisions constituted a new project, ordered the approvals set aside, and directed the District to prepare an EIR. The Court of Appeal concurred (relying primarily on Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288) to decide that as a matter of law the proposed building demolition was a new project. The California Supreme granted review and reversed.

The Supreme Court’s decision is notable in several respects. First, the Court was emphatic that a decision of whether or not a proposed activity was a new project was predominately a factual question to be made by the decision making body, not a reviewing court. “It is thus a question for the agency to answer in the first instance, drawing on its particular expertise….A court’s task on review is then to decide whether the agency’s determination is supported by substantial evidence; the court’s job’ is not to weigh conflicting evidence and determine who has the better argument.’ ” The opponents also argued that Public Resources Code Section 21166 and Guidelines Section 15162 could only be invoked following the use of an EIR and therefore had no application in this instance based upon a negative declaration. Citing the legislative history, the Court rejected this argument. Finally, the opponents argued the substantial evidence test was inappropriate in circumstances of a tiered CEQA document, pointing to the master plan as the first tier. The record did not support this characterization, as the 2007 approval was a project-level decision.

As is often the case, the CEQA debate over this project approval was not over with the Supreme Court’s decision. Upon remand, the courts will have to address the unresolved issues of abuse of discretion along with the use of an addendum as it involves no formal public review process.

Commentary: Given the inventory of project approvals issued during the boom years for projects that have yet to be built out (or in many cases even launched), this decision should be a confidence builder to cities, counties and developers looking to dust off and update the earlier approvals.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.

 

Mark your calendar – registration for Abbott & Kindermann’s 16th Annual Land Use, Real Estate, and Environmental Law Update will open on October 18, 2016.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference 

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference 

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference 

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference 

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.

 

Communities for a Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715

By Glen Hansen

In Communities for a Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715 (“Communities”), the Court of Appeal for the First Appellate District affirmed the dismissal of  an action under the California Environmental Quality Act (“CEQA”) that challenged an agency’s approval, made without a notice of exemption, of a permit for a rail-to-truck facility under a ministerial exemption, because the action was not filed within 180 days after the agency’s decision; and because the discovery rule did not apply in that context. 

In Communities, respondent Kinder Morgan Material Services, LLC (“Kinder Morgan”), began operating an ethanol rail-to-truck transloading facility in Richmond, California, around 2009. In February 2013, Kinder Morgan applied to the Bay Area Air Quality Management District (“BAAQMD”) for approval to alter the facility and begin transloading crude oil from the Bakken Formation in the Great Plains. According to petitioners Communities for a Better Environment, Asian Pacific Environmental Network, Sierra Club, and Natural Resources Defense Council (collectively, “CBE”), Bakken crude oil is “highly volatile and explosive” and “[t]he range of significant adverse environmental impacts of Kinder Morgan’s operation includes a high risk to public health and safety from derailment, significant increases in toxic air contaminants, potential contamination of California’s precious waterways (that support entire ecosystems), and significant increases in greenhouse gas emissions.” BAAQMD determined that the project was “ministerial” and not subject to CEQA review. BAAQMD authorized Kinder Morgan to begin transloading crude oil by issuing a permit in July 2013 called an authority to construct. BAAQMD never issued an optional notice of exemption (“NOE”) that would have publicly announced its determination that the project was exempt from CEQA review. Kinder Morgan began transloading crude oil in mid-September 2013. 

On March 27, 2014, CBE filed a petition for writ of mandate and complaint for declaratory relief on the grounds that BAAQMD’s approval of the operational change at the transloading facility was not ministerial and an environmental impact report (“EIR”) was required pursuant to CEQA because there was a fair argument that the change would have a significant impact on the environment. The trial court dismissed the petition and complaint without leave to amend, concluding that the suit was time-barred under Public Resources Code section 21167, subdivision (d). The Court of Appeal affirmed. 

The only issue on appeal was whether CBE could successfully amend its petition and complaint to allege that the action was timely by virtue of the discovery rule. CBE argued that it did not learn, and could not with reasonable diligence have learned, of the project any earlier, because BAAQMD “gave the public no notice of Kinder Morgan’s switch to … Bakken crude oil” and “Kinder Morgan’s transloading operation is entirely enclosed, making the transported commodity, and any change to it, invisible.”  In response, the court explained that an action to challenge such a determination accrues not at the time of the determination but instead on one of three alternative dates explicitly provided in section 21167(d). Those dates are: First, if the agency files an NOE under section 21152, subdivision (b), the action must be brought within 35 days of the NOE’s filing; second, if the NOE has not been filed, then the action must be brought within 180 days of the agency’s decision to carry out or approve the project; and third, if a project is undertaken without a formal decision by the agency, the action must be brought within 180 days of commencement of the project. Here, the action was not filed within 180 days after the agency’s formal approval of the project. Rejecting CBE’s argument, the court concluded that the discovery rule cannot be applied to postpone the running of those limitations periods in section 21167(d). A plaintiff is deemed to have constructive notice of a potential CEQA violation on all three alternative dates of accrual under section 21167(d). The court stated that “[t]he discovery rule has never been applied to postpone the accrual of an action beyond the date the plaintiff has constructive notice of an injury, and we decline to so apply it here.” As CBE offered no theory under which the operative events occurred less than 180 days before the lawsuit was filed, the court assumed that CBE could not amend its petition and complaint to allege that it lacked any actual or constructive notice in that timeframe. Therefore, applying the discovery rule in this case would not postpone accrual of the action. Accordingly, the court affirmed the dismissal of the action.

The ramifications of this decision were evident in the comments of BAAQMD’s district counsel: “These [permit] decisions are made hundreds or even thousands of times across all the government entities every day. … What the statute said is in those circumstances, you don’t have to give notice. … I think most agencies don’t [give notice] for very routine permits.”[1]

Glen Hansen is a Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, 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.


[1] Comments of Brian C. Bunger, quoted in Logan Noblin, “Environmental Groups Lose CEQA Appeal,” The Daily Recorder (July 21, 2016), p.2

 

Friends of the Willow Glen Trestle v. City of San Jose (2016) ___ Cal.App.5th ___.

By Daniel S. Cucchi

As part of its plan to upgrade its trail system, the City of San Jose (the “City”) proposed to demolish the Willow Glen Railroad Trestle (the “Trestle”), a wooden bridge built in 1922 as part of a rail line accessing the canning districts near downtown, and replace it with a new steel pedestrian bridge.  The City prepared a mitigated negative declaration (“MND”) in support of the project, which found that because the Trestle design was common and was likely largely rebuilt within the last 30-40 years, it was not a historical resource, and, thus, there was no significant impact on the environment.  The Friends of the Willow Glen Trestle (“Friends”) challenged that determination and filed a writ of mandate challenging the MND, arguing that there was a “fair argument” that the Trestle was an historical resource and an environmental impact report (“EIR”) was required.  The trial court agreed with Friends, asserting that the standard of review applied in Architectural Heritage Assn. v. County of Monterey, 122 Cal.App.4th 1095 (2004), was the correct standard.  The City appealed and the appellate court reversed.

The appellate court first dismissed the argument that it was required to follow the holding in Valley Advocates v. City of Fresno, 160 Cal.App.4th 1039 (2008), concluding that it could complete its own determination of the proper legal standard.  It reasoned that, while the case held that the substantial evidence review standard applied to an agency’s determination of whether a resource was historical, the California Supreme Court’s discussion of Valley Advocates in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (2015), was limited to the question of whether a bifurcated standard could apply to a multi-part agency decision and avoided the question that was now before the court. 

The court next turned to the applicable language in Public Resources Code section 21084.1, noting that local agencies have the power to determine that a “presumed” historical resource (see Pub. Res. Code §§ 5020.1(k), 5024.1(g)), is not historic when supported by the preponderance of the evidence.  Thus, it reasoned, that application of the fair argument standard to that decision would directly contradict the statutory language. 

The court completed its analysis by reviewing the line of cases involving the review of agency decisions involving historical resources, concluding that the only cases specifically addressing the issue, Valley Advocates and Citizens for Restoration of L Street v. City of Fresno, 229 Cal.App.4th 340 (2014), were in alignment with the court’s reading of the applicable statutes.  It, therefore, held that the City’s determination of whether the Trestle was an historical resource must be reviewed under the substantial evidence standard and remanded the case back to the trial court to make that determination.      

Daniel S. Cucchi is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, 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.

 

No Toxic Air, Inc. v Lehigh Southwest Cement Co. ( 2016) 1 Cal.App.5th 1136

By William W. Abbott

If required due to the complexity of the matter, a prevailing party may be able to recover reasonable legal and paralegal costs incurred in preparing an administrative record required by an action in administrative mandamus.

Project opponents unsuccessfully challenged in court a vested rights determination made by Santa Clara County pertaining to a long time mining operation.  At issue was a mine begun in 1903 and had been an ongoing concern ever since, expanding in terms of physical scope and mine related activities through the years.  In 2010, the then owner sought a determination of vested rights from the County.   The County made the vested rights determination and was unsuccessfully challenged in court. The real party in interest filed a cost bill which included the attorney and paralegal costs associated with assembling the administrative record.  The unsuccessful plaintiffs moved to tax costs.  The trial court determined that the costs were reasonably incurred and appropriate for the complexity of the case, but granted the motion to tax for lack of authority to allow those costs. The real party in interest appealed. 

Code of Civil Procedure section 1094.5 provides in part “if the expense of preparing all or any part of the record has been borne by the prevailing party, the expense shall be taxable as costs.”  Looking to CEQA cases for guidance on this question, the appellate court concluded once the trial court determined the appropriateness and need for the attorney and paralegal work to prepare the record, that the motion to tax costs should have been denied and reversed.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.

 

 

Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal. App. 4th 91

By William W. Abbott

The Tamarisk shopping center project in Victorville consists of 214,596 square feet of commercial retail uses on approximately 23.72 acres of land, currently vacant and undeveloped. Among the project’s proposed commercial retail uses includes a Walmart store of approximately 184,946 square feet. The land use approvals included a general plan amendment, a zone change, a site plan, a conditional use permit, and a parcel map. The City approved the project, and the Association filed a combined petition for writ of mandate and complaint for declaratory and injunctive relief (petition) challenging the City’s decision, alleging land use and CEQA claims. The trial court granted partial relief, holding that the EIR did not adequately discuss the project’s consistency with the City’s onsite electrical generation policy or project impacts on greenhouse gas emissions. The trial court also concluded that there was insufficient evidence of consistency with the onsite electrical generation policy to support the zoning change and parcel map. Wal-Mart appealed the lower court decision contending that there is substantial evidence to support the City’s finding the project is consistent with the general plan and the project’s EIR adequately analyzed the project’s greenhouse gas emissions impacts. The Association cross-appealed, contending that the City violated CEQA by failing to recirculate the EIR after the City revised the traffic and circulation impacts analysis, air quality impacts analysis, hydrology and water quality impacts analysis, and biological resources impacts analysis. The Association also contended that the City violated the Planning and Zoning Law by failing to make all of the findings required by Government Code section 66474 before approving the project’s parcel map. The appellate court rejected Wal-Mart’s arguments on appeal, and granted additional relief to the Association.

The case largely turns on an implementation measure of one policy contained within the general plan. That implementation measure (IM 7.1.1.4) “requires all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.” The EIR discussed the feasibility of onsite generation, and noted that feasibility was determined in part by the availability of tax credits along with other information relevant to the feasibility of onsite solar generation. The EIR also noted that the roof would be “solar ready” in the event that solar installation became financially feasibility. No enough according to the appellate court. Citing Topanga Assn. For a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, the cornerstone case on administrative findings in California, the EIR analysis was insufficient to adequately explain the infeasibility of solar, and did not discuss any other onsite generation options. Wal-Mart also argued that a project is not required to be consistent with every goal and policy which the appellate court recognized as a general proposition, but the court applied the exception for “fundamental” policies (Families Unafraid v. County of El Dorado (1998) 62 Cal.App.4th 1332).

The court then turned to the EIR evaluation of greenhouse gases. The analysis concluded that the project would not substantially contribute to GHG emissions, resting in part upon a general plan requirement that a project exceed Title 24 standards by 15 percent. However, the EIR included information suggesting that the project would exceed the Title 24 standards by at least 10 percent and in another part of the EIR, by 14 percent. Because of this conflict, the court concluded that the record did not support the City’s determination that the project’s contribution was less than significant based upon meeting the 15 percent target over Title 24.

With respect to the Association’s cross appeal, the appellate court agreed that a city or county must address both the affirmative and negative findings of the Subdivision Map Act. Government Code section 66474. Thus, tentative map approvals, including parcel maps, must include findings relating to general plan consistency, physical suitability of the site for the type and density of development, impacts to fish, wildlife and habitat, public health problems and public access easements.

The Association’s final issue on cross appeal asserted that the City was required to recirculate the FEIR due to revisions pertaining to traffic, biological resources, air quality, and hydrology and water quality. As to traffic, the text dealt with the effect of a delay in an assumed improvement and the information indicated that service would degrade, but the significance level would not change. With respect to biological resources, the revisions reflected that the streambed impact area would increase, and that the number of special status species tested in spring surveys would also increase. None of these revisions constituted substantial new information or deprived the public of a meaningful opportunity to comment. The appellate court agreed with the Association as to air quality and hydrology. Because the appellate court had concluded that there was a lack of substantial evidence to support the conclusion of consistency with the general plan implementation measures, the appellate court concluded that there was a significant adverse impact and that the public had been denied a meaningful opportunity to comment. The revisions to the hydrology section was a significant rewrite and redesign (replacing 26 pages with 350 pages of technical reports.) The changes were sufficient in degree (and no redline of changes was included to facilitate tracking) that the court concluded the revisions denied the public a meaningful opportunity to review and comment.

Commentary:

  1. I think that decision potentially overstates the EIR’s obligation to discuss general plan consistency issues. The court noted that nowhere in the record was there evidence to explain consistency with the policy, leaving the door open that the requisite explanation and supporting evidence may lie elsewhere. To this practitioner, the EIR is not intended nor designed to be the resolution of broader general plan consistency issues as the CEQA Guidelines provisions on general plans are specific and narrow. See CEQA Guidelines sections 15063(d)(5) (initial study);  section 15125 (environmental setting); section 15130 (cumulative impacts); Appendix G, section N. A robust consistency analysis is best addressed through the staff report. Best practices in an EIR would include language directing the reader to the staff report for an evaluation of project consistency with the general plan.
  2. The decision draws no distinction between legislative and adjudicatory findings, although ultimately this would not have been determinative.
  3.  General plan practitioners should ponder the ramifications of the court’s use of the general plan. The case vividly illustrates the risk of over committing future action in a general plan and supports the idea of under promising when drafting general plan text. As this case also illustrates, the court should not be left to its own devices to determine which policies or implementation measures are fundamental and mandatory in every instance. Best practices suggests inclusion of language in a general plan specifically disavowing characterization of policies as “fundamental” unless specifically noted as such.
  4. The court’s decision on the SMA findings will not come as a surprise or burden to many cities and counties. The court’s conclusion begs the question as to the other denial findings found in chapter 4 of the SMA. Cities and counties may be well served to develop and apply a comprehensive list of all the approval/denial related findings to every tentative subdivision and parcel map.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor 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.