Reserve your seat for one of four seminars taking place in early 2019.

In January and February 2019 Abbott & Kindermann, Inc. will present its 18th 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 2018 case law and legislative updates includes the following hot topics for 2019:

  • 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, Inc. will present its annual program at four locations: Redding, Modesto, Sacramento 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 16, 2019

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane, Redding, CA

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

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

Date: Wednesday, January 23, 2019

Location: Double Tree Hotel Modesto, 1150 Ninth Street, Modesto, CA

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: Wednesday, February 6, 2019

Location: Embassy Suites, 1075 California Boulevard, Napa, CA

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, February 8, 2019

Location: Sacramento Hilton Arden West, 2200 Harvard Street, Sacramento, CA

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

Program: 9:00 a.m. – 12:00 noon

The registration fee for the program is $95.00. 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.

Reserve your seat for one of four seminars taking place in early 2019.

In January and February 2019 Abbott & Kindermann, Inc. will present its 18th 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 2018 case law and legislative updates includes the following hot topics for 2019:

  • 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, Inc. will present its annual program at four locations: Redding, Modesto, Sacramento 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 16, 2019

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane, Redding, CA

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

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

Date: Wednesday, January 23, 2019

Location: Double Tree Hotel Modesto, 1150 Ninth Street, Modesto, CA

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: Wednesday, February 6, 2019

Location: Embassy Suites, 1075 California Boulevard, Napa, CA

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, February 8, 2019

Location: Sacramento Hilton Arden West, 2200 Harvard Street, Sacramento, CA

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

Program: 9:00 a.m. – 12:00 noon

The registration fee for the program is $95.00. 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.

Welcome to Abbott & Kindermann, Inc.’s 2018 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 are denoted by bold italic fonts.

A.  2017 CEQA Update

To read the 2017 cumulative CEQA review, click here:

B.  Cases Pending

There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Protecting Our Water & Environmental Resources v. Stanislaus County, S251709. (F073634; nonpublished opinion; Stanislaus County Superior Court; 2006153.) Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: Is the issuance of a well permit pursuant to state groundwater well-drilling standards a discretionary decision subject to review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) or a ministerial action not subject to review?

Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

C.  2018 Update

  1. Exemptions

McCorkle Eastside Neighborhood Group v. City of St. Helena, (2018) Cal.App. LEXIS 1233.

A property owner sought a demolition permit (for an existing dilapidated home) and design approval for an eight-unit multi-family building. The City treated the approval as exempt as an infill project (Class 32.)  Neighbors challenged the permit and exemption.   The trial court and appellate court (First Appellate District) affirmed the exemption.  Under the city code, no conditional use permit was required, and the scope of city review was limited to design review. The City’s code addressed fourteen considerations as part of the design review process.  As the City’s ordinance did not give the City authority to mitigate environmental impacts not otherwise associated with design features, the appellate court ruled that the exemption was appropriate, following the logic in Bowman v. City of Berkeley (2004) 122 Cal.App. 4th 572.

This case is potentially at odds with the decision in Georgetown Preservation Society v. County of El Dorado, (December 17, 2018, case no. C084872) ____ Cal. App.5th _____ from the Third Appellate District discussed in the Negative Declarations section of these materials [focuses on conflicts with historical resources]. 

Bottini v. City of San Diego (2018) 27 Cal.App.5th 281.

Petitioners sought approval from the City Council to demolish an existing dilapidated 19th century cottage on a residential lot. The Council approved of the request finding that the cottage was a public nuisance due to its unsafe condition and voted against designating the cottage a historical resource. After the cottage was demolished, Petitioners requested approval of a Coastal Development Permit (“CDP”) to construct a new single family home on the now vacant lot. Staff determined the project was exempt from environmental review. The Council reversed that determination concluding that full environmental review was necessary because demolition of the “historic” cottage must be considered as part of the project description, and that potential impacts to “historical resources” and the unusual circumstances exception precluded use of the CEQA exemption. Petitioners filed suit, seeking to compel the City to set aside the Council’s CEQA decision and for damages resulting from violations of the takings, due process and equal protection clauses of the California Constitution. As for the CEQA-related claim, the trial court granted the petition to set aside the decision and the City appealed. The appellate court affirmed.

Relying on CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, the court held that the Council’s attempt to expand the project definition and set the CEQA baseline to include the condition of the property prior to demolition of the cottage was improper, because the decision to authorize demolition was final and not a subject of the current litigation. Thus, the consideration of the CDP for a new single-family home was a separate and distinct project from the demolition because the City’s approval of the demolition permit was an intervening event that went unchallenged and reset the baseline conditions for the CDP. The court then rejected the City’s exception to the CEQA exemption claims, reasoning that the only evidence in the record supporting the claims of impacts to a historical resource and unusual circumstances were premised on the same flawed premise that the project description must include the original demolition.

California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th 666.

Petitioners challenged the County’s approval of well construction permits without complying with CEQA review requirements, arguing the County had broad discretion to address potential impacts on groundwater supply that result from the projects. The County argued the permits were ministerial. The County further argued that the only issues that could be addressed were water quality and groundwater contamination that could result from the well construction process if an applicant fails to comply with specified technical requirements. The trial court held the County did not have discretion to shape a project to address environmental concerns, and the appellate court affirmed. It reasoned that the County’s incorporation by reference of the Department of Water Resources’ “minimum standards of well construction” intended to protect water quality, coupled with language in the local ordinance stating that well permits “shall be issued” if state and County standards are met, precluded the kind of discretion necessary to require compliance with CEQA. The court further concluded that to the extent the state standards provide the County with some amount of discretion as argued by Petitioner, such discretion was limited to addressing groundwater quality and did not provide the County with the ability or authority to mitigate potential environmental impacts on water supply.

World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476.

In 2015, PG&E sought an extension of a lease from the State Lands Commission to continue operating the Diablo Canyon Nuclear Power Plant until 2025 when it is planned for decommission at the conclusion of its FERC-issued operating license term. The Commission approved the extended lease, citing to the Existing Facilities exemption (CEQA Guidelines §15301), to comply with CEQA. Petitioners filed suit, arguing that the project was not eligible for the categorical exemption due to: (1) the significant impacts on the environment that are inherent from the nuclear power plant’s operation; and (2) from the unusual circumstances of the plant’s location and operation. Petitioner also claimed that the approval violated the Public Trust Doctrine. The trial court rejected Petitioner’s claims and Petitioner appealed. The appellate court first admonished the parties for failure to lodge the full administrative record and citing only to excerpts in a jointly filed appendix of pertinent administrative records. It ultimately chose not to exercise its discretion to rule against Petitioner for that failure because the Petitioner belatedly filed the record with the court.

Moving to the substantive claims, the court first rejected Petitioner’s claim that the plant was not eligible for the existing facilities exemption due to the inherent risks associated with a nuclear power plant. Relying on CEQA Guidelines section 15301, subdivision (b), it reasoned that the plant fit squarely into the “investor and publicly-owned utilities used to provide electric power…” category contemplated by the exemption, and that the record confirmed that there would be no expansion of the plant’s operational capacity. The court then rejected Petitioner’s unusual circumstances claims. Assuming for the purposes of the analysis that the project presents unusual circumstances, the court nonetheless found that there was no substantial evidence supporting a fair argument that a significant effect on the environment would result.

Relying on the existing baseline of a fully-operational plant in accordance with North Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, the court reasoned that:

  1. Petitioner could point to no evidence in the record to identify an environmental impact that would result from the size of the plant, its location, health effects on populations near the site, or impacts on marine life in light of the existing conditions;
  2. The Commission was not obligated to follow a hyperlink in a comment letter to identify purported evidence supporting its claim that the extension would lead to an enhanced risk of reactor failure to “embrittlement” and no other evidence was in the record to support the claim;
  3. Petitioner submitted no evidence supporting its claims that the extension would: (i) increase risk of fuel rod storage which is already occurring at the site; (ii) heighten any seismic risk from its existing location near fault lines; or (iii) make the plant more likely to be a terrorist target than currently exists; and
  4. Petitioner failed to demonstrate how its claims that the plant will be the sole remaining plant in the state and that PG&E was convicted of “safety-related and agency obstruction felony counts” would have an effect on the environment.

County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377.

Petitioners challenged the City’s decision to enter into a settlement agreement with the Broad Beach Geologic Hazard Abatement District (“BBGHAD”) to address beach and sand dune erosion at Broad Beach, and the City’s determination that the agreement, and the improvements it contemplated, as a single project were statutorily exempt from CEQA as an activity “to prevent or mitigate an emergency” under Public Resources Code sections 26601 and 21080, subdivision (b)(4). Petitioners argued the actions were improper under several theories, including: (1) the City’s interpretation of the statute to find the action exempt leads to an absurd result and is inconsistent with the purpose of CEQA; (2) the approval of the agreement and the contemplated activities were discrete actions under CEQA; (3) the traffic restrictions on trucks outlined in the agreement were preempted by state law; (4) the traffic restrictions constituted an illegal attempt to regulate traffic outside city limits; and (5) BBGHAD improperly abdicated its police power when granting the City the power to dictate sand hauling routes to be used by BBGHAD contractors. The trial court rejected all of Petitioners’ claims, except for the abdication of the police power, holding that such portions of the agreement that prohibited BBGHAD from modifying hauling routes in response to changed circumstances were void. The appellate court reversed in part, affirmed in part and remanded.

The appellate court held that the agreement and the contemplated activities were not distinct actions and were exempt from CEQA, as they represented the “whole of the project” and that a plain reading of the statutes grant this exemption to the proposed actions. As for preemption, the court found that Petitioners’ citation to Vehicle Code section 21 was inapplicable, because it did not apply to contracts, only to ordinance’s or resolutions. The court also rejected the claim of extraterritorial regulation by the City, reasoning that the hauling route limitations in the agreement were voluntarily agreed to by BBGHAD and the remedies under the agreement are limited to effects only within the city limits. Regarding Petitioners’ claim that BBGHAD abdicated its police power, the appellate court agreed with the trial court that one section improperly prohibited BBGHAD from adjusting hauling routes in the future, but went further to void additional portions of the agreement that limited future route options that may be chosen by BBGHAD as a result of future changed circumstances.

Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039.

Petitioners challenged the County’s approval of a distributed antenna system for wireless cellphone coverage which included 13 microcell transmitters placed on utility poles in the Day Valley area in Aptos. The microcells are two-foot by one-foot antennas mounted on an extender pole and attached to a utility pole. The applicant filed individual permits for each microcell and the County had found that the project, both individually and as a whole, was exempt from CEQA, pursuant to the small structures exemption (14 C.C.R. §15303). Petitioners argued that: (1) the County improperly segmented its analysis of the project; (2) there was a cumulative impact resulting from the whole of the project, as well as Petitioner’s assertion that AT&T was likely to file for its own distributed system in the area soon; (3) the project fell under a “location exception” for a “mapped protective designation”; and (4) that there were unusual circumstances that precluded use of the exemption. The trial court denied petitioners’ claims and petitioners appealed.

The court of appeal affirmed. The court found the County did not improperly segment the project, nor fail to consider the cumulative impacts of the project. It reasoned that despite the fact that the applicant filed for separate permits for each microcell, the record was clear that the County had always treated the microcells together as one project which was authorized under the terms of the section 15303 exemption which uses the plural when describing the number and type of structures eligible for the exemption. The court next rejected the claim that the County had an obligation to consider the potential AT&T project finding it to be speculative since it was nothing more than a rumor based upon hearsay. Next, the appellate court rejected petitioners’ “location exception” claim, finding that petitioners could cite to no evidence of an impact on an area “designated” as an “environmental resource of hazardous or critical concern.” Finally, the court found that there was nothing unusual about the use of several small structures to be used to provide utility extensions in a rural area.

Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338.

Real party in interest, Verizon Wireless, sought the approval of a wireless telecommunications facility to be constructed in a dedicated city park. Prior to the project approval process, City staff first made the determination that the project was eligible for a CEQA exemption under section 15303 (“small facilities exemption”), and consistent with the City’s administrative rules, the Petitioners filed an appeal of the CEQA determination which was ultimately rejected by the city council. Moving next to consideration of the merits of the project, the city hearing officer held a public hearing and approved the development and use permits for the project. Petitioners filed an administrative appeal of this decision, though no grounds challenging the city’s CEQA determination were raised in this appeal, and the City rejected the appeal and upheld the permit approvals. Petitioner filed suit, arguing: (1) the permit approvals violated the terms of the city charter which required voter approval; (2) the project did not fit the terms of the section 15303 exemption; (3) even if it did apply, the unusual circumstances exception and the location exception applied. The trial court rejected the claims and Petitioner appealed. The court of appeal affirmed.

As to the CEQA claims, the court first considered and rejected the City’s defense that Petitioner failed to exhaust its administrative remedies regarding CEQA when they failed to appeal the CEQA determination when Petitioner appealed the permit approvals. It reasoned that because the City never held a public hearing or provide an opportunity to make objections prior to making its staff-level CEQA determination, the exception to the exhaustion requirements under Public Resources code section 21177, subdivision (e), applied to Petitioner’s CEQA claims. On the merits of Petitioner’s CEQA claims, the court found that the project was eligible under the small facilities exemption, reasoning that the size of the project (534 sq. ft.) was smaller than “a single-family residence, store, motel, office or restaurants,” which are expressly allowed under the exemption. The court also rejected the applicability of the unusual circumstances exception, reasoning that even if petitioner’s claim that the location within a park was an unusual circumstance, the biological resources report prepared in support of the project provided substantial evidence that the project would not have a significant effect on the environment as a result. Moving to petitioner’s location exception claim, the court found no such exception applied, because petitioner presented no evidence that the park was “designated” as an “environmental resource of hazardous or critical” as required under the regulation. As for the non-CEQA claims, the appellate court found that approval of the project did not require voter approval when changing the use of a public park as required by the city charter.  It reasoned that the “faux tree” design of the project, as well as its very small footprint in relation to the size of the park was consistent with the existing park use and, thus, did not change the use or purpose of the park.

  1. Thresholds of Significance

Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th 892.

In response to an earlier writ of mandate to address deficiencies with the County’s 2012 adoption of a Climate Action Plan (“CAP”) and 2013 adoption of its Guidelines for Determining Significance for Climate Change required under the County’s general plan, the County published revised 2016 CEQA greenhouse gas (“GHG”) significance guidelines. The revised 2016 Guidelines established an efficiency metric as “the recommended method by which a project may make significance determinations,” but did not require that all projects use that threshold of significance. Both Sierra Club and Golden Door Properties, LLC, filed a petition for writ of mandate and an injunction, and the cases were consolidated. The trial court granted the writ of mandate and injunction, finding review of the 2016 adoption was ripe, and that (1) the County violated CEQA Guidelines section 15064.7, subdivision b; and (2) piecemealed environmental review, when it published the GHG significance guidelines separately from the CAP. The County appealed, arguing that: (1) the suit was not ripe; (2) the guidelines did not establish a threshold of significance; and (3) the separate action to publish the 2016 Guidelines was consistent with the earlier writ to revise the CAP and 2013 Guidelines and did not amount to piecemealing. The appellate court affirmed.

The appellate court first held the suit was ripe for review, rejecting the County’s claim that “the controversy does not apply to a specific set of facts” as required in Pacific Legal Foundation v. California Coastal Comm. (1982) 33 Cal.3d 158. It reasoned that the County’s 2016 Guidelines were analogous to the Bay Area Air Quality Management District’s CEQA Guidelines in California Building Industry Assn. v. Bay Area AQMD (2016) 2 Cal.App.5th 1067, which also did not require the use of the threshold, but recognized that the thresholds “were to be used routinely to determine environmental effects of a project.”

Moving to the substantive claims, the appellate court held that the County violated CEQA because the 2016 Guidelines established a GHG threshold of significance without following the required adoption procedures. It reasoned that even though no project is required to use the threshold, the 2016 Guidelines established a “recommended” efficiency threshold that was an identifiable and quantitative level of GHG emissions effects where “non-compliance…will normally be determined to be significant by the agency…,” consistent with the threshold of significance definition under CEQA. (CEQA Guidelines §15064(a).) The court next held that because the 2016 Guidelines established a threshold of significance, the County violated CEQA when it published the 2016 Guidelines without a public review process or formal adoption by ordinance, rule, resolution, or regulation as required under CEQA Guidelines section 15064.7, subdivision (b). It further held that the County’s action was unsupported by substantial evidence because the efficiency metric threshold relied on statewide standards for GHG emissions reductions and did not provide sufficient evidence explaining why this metric was appropriate for use by projects in the County, specifically, as required by Center for Biological Diversity v. California Dept. of Fish & Wildlife (2015) 62 Cal.4th 204. Finally, the court held that publishing the 2016 Guidelines separate from adoption of the CAP improperly piecemealed environmental review, because the prior writ had already concluded that the CAP and the 2013 Guidelines were a single project under CEQA and, thus, by taking this action separately from the CAP the County violated both the prior writ and CEQA requirements not to piecemeal review of related policies.

  1. Negative Declarations

Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137.

Petitioners challenged the City’s approval of a six-home subdivision on 11 acres in an environmentally-sensitive area on both land use and CEQA grounds claiming that an EIR was required, rather than the negative declaration that was adopted, because of the project’s inconsistency with the City’s special land use regulations for the area. Specifically, Petitioners challenged the City’s finding that the project would not have an “adverse impact on aesthetics or biological resources and would not conflict with any land use or zoning provisions that had been ‘adopted for the purpose of avoiding or mitigating an environmental effect’,” due to the project’s (1) failure to cluster lots as required; (2) excessive grading; and (3) failure to receive approval of a variance for lots less than 2 acres in size. The trial court rejected Petitioners’ claims and Petitioners appealed. The appellate court affirmed.

While the court agreed with Petitioners’ premise that a conflict with these applicable regulations designed to protect the environmentally sensitive area would constitute an environmental impact, it held that Petitioners had failed to point to any substantial evidence in the record to support the claim that there was a conflict. It reasoned that the claims amounted to speculation of conflicts that might occur in the future if certain conditions were violated at the final map stage when compliance with those conditions would be confirmed. Lastly, the court held that the variance requirements were inapplicable to projects under the special land use regulations, because despite some vagueness in its language the City’s ordinance describing the minimum lot standards is reasonably read to allow ½-acre minimum lots without a variance under its clustering provision.

Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129.

The First District Court of Appeal affirmed the lower court’s holding that the City of Fremont needs to prepare a full EIR before approving a redevelopment project to the Niles historic district. The City of Fremont adopted a mitigated negative declaration in support of its approval of a residential and retail development project. Petitioners, Protect Niles, filed a writ of mandamus demanding the court overturn the project’s approval, require preparation of an EIR. The trial court held that the record supported a finding of significant “aesthetic/land use impacts, traffic impacts, hazardous material impacts, and impacts on the Alameda Creek Regional Trail,” and vacated the City’s project approvals and directed the City to prepare an EIR before considering whether to re-approve the project.

The First District Court of Appeal affirmed the trial court’s judgment on the merits of aesthetic impacts and the traffic impacts of the projects. The Court reasoned that though public disfavor or controversy does not automatically trigger environmental review, where there is a substantial evidence of a fair argument that the project may result in significant impacts when reviewing a negative declaration, the Court resolves doubts in favor of more environmental review. Regarding potential impacts on historical resources, the court found that testimony from members of the architectural review board and documents written by the public agencies were substantial evidence of a potentially significant effect on the historic aesthetic in the Niles District. The court also held that despite the inclusion of a traffic study in the record which found the impacts would be less than significant on nearby roads and intersections when compared to the threshold of significance, testimony from residents in the area on the traffic conditions of Niles Boulevard and the Niles & Mission Boulevard intersection constituted substantial evidence in support of a fair argument of a potentially significant traffic impact warranting the preparation of an EIR. 

Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877.

The facts in Jensen involved the approval of a rezoning, conditional use permit and design review for a young adult center which included housing, counseling, education and job training. Neighbors challenged the city’s reliance upon a negative declaration which included a noise study prepared by the applicant’s acoustic engineer. The trial court denied relief, and the neighbors appealed, focusing on potential noise impacts. The appellate court affirmed the decision of the trial court. The appellate court’s first task was to interpret the city’s noise ordinance. The court found that while the ordinance included stated noise levels in residential and non-residential districts, the noise levels were not maximum noise exposure levels; rather, the court found the ordinance reflected “standard or normally acceptable noise levels for the zones and times indicated.” These levels were not adopted as thresholds of significance. The noise ordinance also included specific limits for commercial and industrial activities. However, these levels did not apply to land uses such as the young adult center which was only subject to the ordinance’s generalized nuisance type language.

The applicant’s noise study considered the noise ordinance and included sound measurements and discussed noise impacts in terms of day/night differences and the normally acceptable tolerances. The consultant concluded, based on CEQA Guidelines Appendix G, that the noise impacts would not be significant. The appellants’ first criticism was that the noise study should have employed Leq calculations rather than Ldn, pointing to another study performed by the same consultant for a commercial project elsewhere in the same city which used Leq. 

Appellants also argued noise impacts associated with the Project’s parking lot. While the appellate court’s analysis reads as intuitive and not necessarily based upon the administrative record, the court ultimately concluded that there were too many differences between the 24/7 commercial use and that of the young adult center to permit reliance upon noise impact analysis generated for the commercial project. That, coupled with appellants’ speculation and conflicting interpretation of the municipal code, led the appellate court to conclude that the substantial evidence in support of the appellant’s argument was lacking.

Appellants’ final argument concerned noise from exterior activities including basketball, pottery making and gardening, all of which were evaluated in the noise study. From the appellate court’s perspective, appellant’s noise level analysis lacked credibility and was unsupported by expert opinion. Once again, substantial evidence was lacking.

John R. Lawson Rock & Oil, Inc. v. State Air Resources Bd. (2018) 20 Cal.App.5th 77.

In 2008, the State of California adopted air quality regulations which had the effect of requiring existing trucking operators to retrofit truck fleets with expensive air quality improvements.  In 2013, the state issued a regulatory advisory which created a safe harbor for operators seeking to come into compliance. Operators were also allowed to take advantage of regulatory changes expected to be adopted in 2014. The Air Resources Board engaged in the formal rule adoption process in 2014 and was sued by a fleet operator and trucking association arguing CEQA violations and failure to comply with the economic considerations part of the state APA. The Board operates under the “functional equivalent” provisions of CEQA, and in this case, relied upon the equivalent of a negative declaration. The trial court ruled for the petitioners and the court of appeal affirmed although on narrower grounds. The issues on appeal included: (1) had the ARB improperly committed itself to a project in advance of CEQA compliance, (2) what was the appropriate baseline for evaluating impacts, (3) fair argument and (4) had the ARB correctly evaluated the economic considerations required by the state APA.

First, applying the California Supreme Court’s decision in Save Tara, the appellate court found that the Board had sufficiently committed itself to a course of action, going beyond just expressing interest in an idea, and thus violated CEQA’s timing requirements. The court of appeal agreed that invalidation was an appropriate remedy, but did not require the functional equivalent of an EIR, leaving to the agency to determine the proper environmental document in response to the court decision. Anticipating the Board would implement the regulatory changes or something similar, the court concluded that there was substantial evidence to support the Board’s established baseline as not including the continuing effect of the existing regulations. The court then rejected the Board’s evaluation of impacts. Pointing to evidence in the record that the project could result in short to medium-term impacts involving various pollutants, the appellate court agreed that for purposes of the Board’s initial evaluation, compliance with the state’s long term plan might support a no-impact conclusion. When faced with the evidence of short to mid-term impacts, however, an EIR type document was required. Lastly, the appellate court evaluated the APA claims and held that the Board violated the APA when it failed to properly respond to comments on potential intra-state competition issues in its economic analysis.

Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712.

Petitioners challenged the City’s approval of a mixed-use, infill project with 68 residential units, approximately 8,000 square feet of retail and administrative office space, and 4,000 square feet of gallery space. The 3.4 acre site was a former car dealership and is located within one-quarter mile of a commuter rail station. The City adopted a mitigated negative declaration (“MND”) that tiered from an environmental impact report for the Town Center Specific Plan (“TCSP EIR”) which governs the area. The project as first designed had a shortfall of 84 parking spaces, but several last-minute revisions reduced the shortfall to only 19 spaces. Petitioners’ claims largely relied upon impacts purportedly caused by the shortage of parking spaces, arguing that the City: (1) improperly tiered the MND from the TCSP EIR; and (2) violated the Subdivision Map Act (“SMA”) by failing to adopt adequate findings. The trial court denied the petition, and Petitioners appealed.

The appellate court affirmed. The court first rejected the CEQA claim holding that the primary impacts associated with parking for the project were exempt from CEQA. It reasoned that despite the consideration of the impacts in the MND, the enactment of Public Resources Code section 21099 under SB 743 prior to the City’s approval of the project eliminated any need to consider such impacts under CEQA. As for the improper tiering claim, the court held that Petitioners cited to no evidence in the record to identify any deficiencies in the traffic analysis prepared for the project specific impacts that were not contemplated in the TCSP EIR. The appellate court also rejected the SMA claims that the project did not meet the parking requirements in the TCSP and was inconsistent with transportation policies in the TCSP, finding that Petitioners’ arguments amounted to speculation, rather than evidence, and that they cited to no evidence contradicting the City’s determination that the project complied with the TCSP’s multi-modal transportation policies.

Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.

Petitioners challenged to the City of San Diego’s (“City”) approval of a small high school on previously developed, open-space designated lands adjacent to a commercial equestrian facility. The project was a one-building, three-classroom, 5,340-square foot high school on a previously developed one-acre site, with a 24-stall parking lot and associated landscaping. The project was located in the coastal zone at the end of a private access driveway shared with an adjacent equestrian facility. It included an historical farmhouse, currently used as an administrative office, along with several older outbuildings. Owners of the adjacent equestrian facility (“Petitioner”) opposed the project and the related draft Mitigated Negative Declaration (“MND”) prepared by the City, contending an EIR was required to study potentially significant historical resources, fire hazard, noise, and transportation/traffic impacts, and that the project threatened the Ranch’s economic viability as a business.

In reliance on the City’s misleading statements in the public notice, Petitioner appealed the hearing officer’s decision approving the project and associated MND to the Planning Commission, checking that box on the City’s standard appeal form and not checking the box for “Environmental Determination – Appeal to City Council.” While the appeal forms identified both CEQA and non-CEQA grounds for its appeal, City Staff advised Petitioner and the Planning Commission that Petitioner’s failure to appeal to the Council within 10 days of the hearing officer’s decision waived all CEQA and MND issues.  The Commission heard and ultimately voted 4-2 to deny the appeal and to grant the project permits. The City rejected as untimely Petitioner’s subsequent attempt to appeal the project approval and MND to the City Council. Petitioner filed suit on both CEQA and Planning and Zoning grounds. The trial court denied Petitioner’s writ petition on all asserted grounds, finding that Petitioner failed to exhaust administrative remedies on the CEQA claims by failing to properly administratively appeal the hearing officer’s environmental determination. Petitioner appealed and the appellate court affirmed.

The appellate court first rejected Petitioner’s claim that the City’s bifurcated appeal procedures were not in compliance with CEQA’s appeal requirements. It reasoned that because the project was approved by an unelected decisionmaker (the hearing officer), the City’s appeal procedures correctly included an option to appeal the environmental determination to the agency’s elected decisionmaking body (the city council), which Petitioner failed to do when it appealed the project to the Planning Commission. As for Petitioner’s claim that it made the procedural error in reliance on erroneous statements made by the city in its public hearing notice, the appellate court held that Petitioner’s argument involving improper notice was inapplicable because there was no claim that the notice defect involved an inaccurate project description. Rather, it reasoned, the notice accurately provided notice of the public hearing but misstated the applicable appeal procedures. Instead, the court reasoned it was more appropriately a claim of equitable estoppel which was considered and rejected by the trial court and was not raised in its appeal. Finally, the court rejected the substantive claims of CEQA noncompliance regarding the potential fire risks resulting from development of the project in a high fire hazard severity zone, relying on the California Supreme Court’s decision in CBIA v. BAAQMD, 62 Cal.4th 369 (2015), to conclude that Petitioner’s fire safety expert improperly focused his analysis on existing environmental hazards not caused by the project, rather than the project’s impacts on the existing environment.

Georgetown Preservation Society v. County of El Dorado, (December 17, 2018, case no. C084872) ____ Cal. App.3rd _____.

Notwithstanding the subjectivity of aesthetics (or perhaps as a result of the subjectivity associated with aesthetics), and notwithstanding a project’s conformance with adopted historic design standards, a project may still trigger the need for an EIR.  The Georgetown Preservation Society case again affirms the rule that the fair argument test remains a low threshold for triggering an EIR. In Georgetown, an applicant sought approval of a Dollar General store in the historic gold rush community of Georgetown.  The County approved the project based upon a negative declaration.  In the ensuing litigation, both the trial court and court of appeal determined that an EIR was required as a result of a fair argument concern aesthetics of the proposed store.  The evidence in support of the EIR consisted of a limited number of separate comment letters by a planner, a landscape architect and an engineer criticizing both the and the design features.    In defense of the Neg Dec, the County argued that the lay testimony was insufficient.   While that argument was successful in the Dollar Tree/Joshua Tree case as it pertained to urban decay, the appellate court disagreed that lay testimony as to aesthetics could constitute the fair argument. The County also argued that the project conformed to the County’s design review requirements and that the negative testimony was not sufficient to overcome the weight of the design review approval. The appellate court noted however, based upon several prior appellate decisions, that a determination of consistency under the state land use laws was not determinative as to significance determinations required by CEQA. In further defense of the Neg Dec, the County criticized the credibility of the opposition testimony.  However, there was no findings in the administrative record to that effect and absent those findings, the assumption is that the testimony was accepted.  [This is a significant practice issue for agencies approving negative declarations over public opposition.  It may be necessary for the decision makers to discount the opposition evidence as part of the approval process. That said, the appellate court noted that as to aesthetics, lay testimony as to aesthetic impacts was sufficient to make the fair argument without any special foundation.]

This decision creates tension with a similar case out Berkeley which reached the opposite conclusion in another design review case. Bowman v. City of Berkeley, (2004) 122 Cal.App. 4th 572. Local governments have the option to create ministerial design review ordinances. Health First v. March Joint Powers Authority, (2009) 174 Cal.App. 4th 1135; San Diego Navy Broadway Complex Coalition v. City of San Diego, (2010) 185 Cal.App. 4th  924. For a similar result involving grading ordinances, see Sierra Club v. County of Sonoma, (2017) 11 Cal.App. 5th 11.

  1. Environmental Impact Reports

Sierra Club v. County of Fresno, Friant Ranch, L.P.  real party in interest (December 24, 2018, case no. S219783) _____Cal. S.C. _______.  

The Friant decision involves the California Supreme Court review of an unpublished appellate court decision, which held invalid the air quality analysis and mitigation requirements approved by Fresno County in conjunction with the approval of a master planned community.  In its decision, the High Court addressed (1) standard of review for the legal adequacy of an EIR, (2) the sufficiency of the discussion of air quality impacts as it related to human health, and (3) sufficiency of the mitigation requirements. The Supreme Court agreed with the Appellate Court on the issue of the insufficiency of the air quality analysis but affirmed the sufficiency of the mitigation measures.

  1. Standard of Review.  In determining the sufficiency of an impact analysis, a reviewing court must determine if the relevant standard is a question of law or a question of evidence.   For questions of law, a reviewing court acts in a de novo manner.   For evidentiary questions (such as the selection of methodology), a reviewing court is more deferential to a reviewing agency. Generally, the sufficiency of an analysis (that is, how well did EIR disclose the impacts to the public is a question of law.)
  1. Correlation of air quality impacts to human health.  It is insufficient for the EIR to disclose the estimated impacts in terms of ppm or pounds per day.  The EIR must include some translation of this information into health impacts.  A conclusion in the EIR which provides that a project’s contribution to worsening air quality will lead to respiratory problems is by itself insufficient.  The court did note that a health risk assessment as defined by the Health and Safety Code section 44306 is not required for a master planned project.  “CEQA does not mandate such an in-depth risk assessment.  CEQA requires that the EIR have made a reasonable effort to discuss relevant specifics regarding the connection between two segments of information already contained within the EIR, the general health effects associated with a particular pollutant and estimated amount of that pollutant the project will likely produce.  This discussion will allow the public to make an informed decision….”  If the lead agency concludes that it is unable to provide the information connecting air quality impacts to human health, the EIR must include an explanation supporting the decision to not provide the correlating information.
  1. Sufficiency of Mitigation Measures
    1. Evidentiary support.  The EIR concluded that the described mitigation measures would substantially reduce air quality impacts but not to a level of less than significant. The EIR lacked facts or analysis which would support the conclusion that the measures would substantially reduce the impacts in a quantifiable manner.
    1. Deferral.  The mitigation measures allowed that the lead agency could at a later point in time substitute more effective mitigation measures.  The Supreme Court concluded that this did not constitute deferral of mitigation measures.
    1. Mitigation to a less than significant level.  The Court rejected the Sierra Club’s argument that impacts must always be mitigated to a less than significant level.
    1. Identification of the party responsible for mitigation.  While the conditions of approval may have been silent on the responsibility to implement particular mitigation measures, the MMP included language which provided that the County was responsible for ensuring the implementation of the mitigation measures. This was sufficient.
    1. Sufficiency of performance standards.   A mitigation measure which specified a particular piece of equipment or its equivalent did not suffer from vagueness.

Save Our Heritage Organisation v. City of San Diego (2018) 28 Cal.App.5th 656.

The City of San Diego has been engaged in protracted CEQA and land use litigation involving historic Balboa Park.  In 2015, the appellate court affirmed the City’s CEQA compliance on major improvements. (Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163.) During the pendency of the appeals, the City undertook a number of improvements within the park. In 2016, the City approved an addendum to the EIR addressing project modifications including: (1) changing and reducing the number of bridge supports; (2) redesigning and adding storm water basins to comply with current City storm water standards; (3) adding ventilation to the subterranean parking structure; (4) increasing the elevation of the Arizona Street Landfill site as a result of additional soil being added; (5) making energy efficiency upgrades; and (6) refining the project design to reduce construction costs. The addendum analyzed the potential impacts of the changes and concluded that none of conditions necessary to trigger recirculation existed.  Project opponents challenged: (a) the use of an addendum, arguing that CEQA addendum provisions (CEQA Guidelines §15164) were invalid; and (b) the lead agency’s failure to adopt findings pursuant to Public Resources code section 21081.

The appellate court recognized that once the lead agency completed the original EIR process that reopening the EIR process was required under only limited circumstances. Consistent with the significance of the initial EIR certification, the appellate court concluded that 15164 was a reasonable implementation of Public Resources code section 21166, and that public review was not mandatory. The appellate court also rejected the opponent’s 21081 findings argument, holding that “[n]ew findings under Section 21081 are not required in connection with the approval of an addendum to an EIR.” 

San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.

The City adopted an EIR in support of its approval of the City’s 2009 General Plan Housing Element in 2011. Petitioners, an association of more than a dozen neighborhood organizations, filed suit to challenge the EIR on CEQA grounds. The trial court denied the claims. Petitioners appealed arguing the City: (1) used an improper baseline for specified impact analyses; (2) failed to disclose potentially significant impacts on traffic, water supplies, land use and visual resources; (3) was required to recirculate the EIR for additional public review for an updated water supply availability assessment; (4) prepared a flawed analysis of the alternatives; and (5) improperly rejected proposed mitigation measures. The appellate court affirmed, holding that:

  1. The City’s use of a 2025 baseline when analyzing traffic and 2030 baseline when analyzing water impacts instead of the existing conditions was based on substantial evidence and not an abuse of discretion, as the EIR analyses were premised on the same growth-accommodating principle, rather than growth-inducing, which assumes the Housing Element is not the generator of new growth to evaluate the impacts of housing policies on traffic and water resources;
  2. Petitioners challenge to the land use and visual resources impacts analyses based upon the claim that the baseline of maximum allowable density and height requirements, rather than the existing conditions, fails to account for the City’s reliance on a prior Program EIR to tier the analyses for the 2009 Housing Element. Under this tiering scheme, the City was entitled to analyze only those impacts that could result from the change in the prior project to the extent they created a new or more severe impact than what was previously analyzed;
  3. The City was entitled to deference for its conclusions regarding the less than significant impacts to land use, visual resources, traffic and water supplies, because the determinations were based upon substantial evidence;
  4. The City was not required to recirculate the EIR as the result of the disclosure of an updated Water Supply Availability Study (“WSAS”) that indicated a water deficit could come much sooner than previously assumed after the release of the Final EIR, but before certification, because Petitioners disagreement with the City staff’s analysis was insufficient to disturb the conclusion that the change would trigger slightly increased rationing over that presumed in the original WSAS and did not create any new environmental impacts;
  5. The EIR fully analyzed three alternatives and rejected three others during the scoping phases. Petitioners argued that two of the three alternatives were sufficiently similar that the range amounted only to a No Project alternative and one other that “was not designed to reduce significant impacts.” The court reasoned this was insufficient for Petitioners to meet their burden to show that the EIR did not include a reasonable range of alternatives, because no set minimum number is required and Petitioners failed to demonstrate why the range precluded decisionmakers and the public from receiving the information needed to evaluate the project and its impacts; and
  6. Petitioners’ proposed mitigation measures to address impacts on transit services were properly rejected as infeasible by the City because the mitigation measures were premised on the availability of funding which is uncertain and cannot be guaranteed.

On November 20, 2018, the California Supreme Court denied Petitioner’s petition for review. 

Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561.

In response to litigation over the City’s approval of a Target Superstore which upheld the adequacy of an EIR for the project, but that several of the variances approved to allow its construction were not supported by substantial evidence, the City adopted a new zoning district for the subject parcel that eliminated the need for variances. In support of this new zone, the City prepared an addendum to the prior EIR. Petitioners filed suit, arguing that a subsequent EIR was required, rather than an addendum, because the rezone was a new project, and that the rezone constituted an illegal “spot-zone.” The trial court ruled in favor of Petitioners on the CEQA grounds, reasoning that the new “entitlements vehicle” was a changed circumstance that warranted new CEQA review, but did not reach the spot-zoning issue. Both parties filed cross-appeals. The appellate court reversed.

The appellate court first considered the question of whether the rezone constituted a separate and distinct project from the project considered in the original EIR. It concluded that consistent with the California Supreme Court holding in Friends of College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, the question is “whether an initial environmental document remains relevant despite changed plans or circumstances.” Applying this standard, the court held that subsequent review was appropriate because the prior EIR’s review of the impacts of the proposed Target Superstore was still relevant and upheld the City’s use of an addendum. It reasoned that substantial evidence supported the City’s determination that the only reasonably foreseeable impacts of the rezone were related to construction of the superstore which was already thoroughly analyzed in the prior EIR. As for the land-use claim, the court agreed that the rezone met the definition of “spot-zoning” but held that it was permissible. It reasoned that there was a reasonable basis in the record that the City’s decision “has substantial relation to the public health, safety, morals or general welfare,” and Petitioners failed to meet their burden of showing that the rezone was not in the public interest.

Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214. 

Rodeo Citizens Association filed suit against the County of Contra Costa for improperly certifying the final EIR for an oil refinery in violation of CEQA. The county certified the EIR and granted a permit to Philips 66 Corporation to modify an existing facility on the refineries property and add new facilities for butane and propane. The trial court held that the project description and analysis of GHG emissions complied with Philips’ and the County’s obligations under CEQA. The court of appeal affirmed. The Court of Appeal held that since the amount of downstream GHG emissions from the combustion of propane and butane sold to downstream users was speculative, no further analysis was necessary. The court also rejected the Association’s claim that evaluation of the risk from hazardous materials was improper. It reasoned that the Final EIR properly applied the moderate to high consequence threshold against potential hazardous materials risks from the project and determined that none of the potential impacts exceeded that threshold. As such, the court held the County’s analysis was proper under CEQA. 

Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1.

The City of Visalia amended its general plan pertaining to neighborhood commercial districts, adding a limitation that no tenant could occupy more than 40,000 square feet and set minimum separation requirements for neighborhood centers and adopted an environmental impact report in support of the decision. A shopping center owner submitted expert testimony regarding the potential for urban decay by a broker who opined that most grocers would not build less than 40,000 square feet, and that smaller stores had gone out of business. The broker also argued that substitution of less successful, lower volume tenants would eventually lead to physical decay in centers as a result of reduced investment, and complained of the reduction in commercial designation for one commercial center site. The trial court held it was insufficient to demonstrate that the limitation may have a significant environmental effect as a result of urban decay.

The appellate court affirmed, finding that none of the evidence offered by the property owner was substantial in character. It reasoned that the fact that some grocery stores would not build at 40,000 square feet or less was not evidence that no grocery store would be constructed. The evidence that one grocer was unsuccessful (building in the 10,000 to 20,000 foot range), did not foreclose that another grocer could build a larger store that meets the 40,000 square-foot requirement (additional evidence showed that Walmart had recently constructed a 38,000 square-foot store in Visalia). Further, the court held that there was a lack of evidence that urban decay would occur, just speculation.

City of Long Beach v. City of Los Angeles (2018) 19 Cal.App.5th 465.

The City of Long Beach and the California Attorney General as intervener (“Petitioners”) challenged the City of Los Angeles’ (“City”) approval of a new near-dock intermodal rail facility that would manage the transport cargo containers coming from the port. One of the effects of the new near-dock railyard would be to substitute four-mile trips on surface streets for many existing 24-mile trips via freeway to and from other existing off-dock railyards. Petitioner challenged the CEQA analysis citing concerns about the impacts of this shift in port truck traffic and filed suit, arguing: (1) the project description did not accurately describe indirect impacts resulting from the project; and (2) the air quality analysis inadequately addressed both direct and indirect impacts of the project.

First, the court considered and rejected the City’s exhaustion defense against claims raised for the first time by the California Attorney General after the conclusion of the administrative proceedings, finding that the Attorney General is exempt from CEQA’s exhaustion requirements consistent with “the Attorney General’s unique authority to protect the environment of the State of California.” The court next held that the City’s decision to perform only a single modeling run with a 50-year analysis range the EIR was inadequate to estimate how frequently or for what length of time the level of particulate air pollution in the area surrounding the new railyard would exceed the EIR’s standard of significance. The court also concluded that the EIR’s cumulative analysis was inadequate because it did not adequately focus on the combined impacts of the proposed project and another large railyard expansion proposed by Union Pacific adjacent to the proposed project.

The court also held that crucial information regarding air quality was omitted from the EIR. It reasoned that though the EIR showed that as a result of the trip length reduction total particulate matter emissions from trucks would be reduced by the project compared to the no project alternative, the EIR did not adequately explain that in the vicinity of the proposed new railyard, air quality would be substantially worse with the railyard than without it, and that the vicinity included homes and schools. Finally, the court rejected Petitioners’ claims that the EIR was required to account for truck trips to and from the Hobart railyard that would result from its new excess capacity. It reasoned that the record supported the EIR’s conclusion that a predicted level of economic growth would occur over the decades with or without the near-dock rail project, and that the project was not necessary to enable the operator to service anticipated growth at the Hobart facility and was, thus, not an indirect impact of the project.

High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App. 5th 102.

While challenges facing California’s urban centers are the focus of most planning policy gatherings, the fact is that on a geographic basis, most of California is not urban.  Moreover, the economic engine which is responsible for creating  new jobs and housing largely missed the off-ramp for California’s rural areas. Rural California  has endured decades of job loss in the resource industries with no meaningful offsetting reinvestment strategy.  The scenario of flat line or negative growth poses an unusual fact pattern for how rural governments comply with CEQA when updating their respective general plans.  This CEQA case considers how this played out in Plumas County, a rural mountain county located roughly 130  miles northeast of Sacramento.

Between 2000 and 2010, Plumas County lost population according to the U. S. Census Bureau, one of a limited number of California counties to do so.  In 2005, the County initiated an update of its 1984 General Plan.   In 2011, the Board of Supervisors adopted the project description for CEQA review of the updated general plan.  At the conclusion of the public review process in December 2013, the Board certified a programmatic EIR and adopted the updated general plan.  High Sierra Rural Alliance filed suit, challenging the general plan and EIR.  The trial court denied relief and High Sierra appealed, arguing four issues.

On appeal, the issue with the broadest potential interest involved allegations that the General Plan opened up significant rural areas to development, and that the EIR failed to assess that potential.   The evidence in the administrative record told a different story.  During the General Plan/EIR process, the County had considered its loss of population over the prior decade, the documented slow rate of building permit and parcel map activity in prior years along with the future year population estimates by Department of  Finance and Caltrans  (0.7% annual population increase estimated through 2050.)  Actual and projected growth, coupled with the restrictive nature of the newly updated policies, formed the basis for the County’s conclusion that little growth was likely to occur outside of its existing communities.  Given this evidentiary foundation, CEQA did not obligate the County to consider a worst case growth scenario.  While the County recognized that second home development may occur in the future, those projects would be subject to separate CEQA reviews.   The first tier programmatic General Plan EIR was sufficient.

High Sierra also urged that the EIR be recirculated as a result of new information added to the final EIR.  However, the appellate court noted that the maps added to the EIR had been available to the public all during the planning process, and thus was not new information.  High Sierra also argued the addition of building intensity limitations after the public hearing necessitated re-circulation.   The appellate court concluded that High Sierra was mischaracterizing the effect of the add development standards.   The addition of limitations on new development had the effect of adding new restrictions, and did not have the effect of opening up areas for development.   Once again the appellate court noted that the County had a factual basis to conclude that the County expected limited rural development activity, and that the addition of additional building limitations did not create new impacts or substantially increase anticipated impacts.  The effect of the added height and building limitations did not warrant re-circulation of the EIR.

The appeal also included a challenge to the legal sufficiency of the new General Plan, arguing that policies conflicted with the California Timberland Productivity Act of 1982.  High Sierra argued that the General Plan’s determination that single family homes in TPZ were permitted uses was inconsistent with the requirements of the state Timberland statute limiting those structures as those necessary for timber management.    The administrative record reflected that the County’s amendment to the prior general plan text was to eliminate duplicative language found in the state code, and that required determinations under the state code were still operative.   There was no evidence in the record which reflected a practice of the County to act in contravention of the state Timberland statutes.

Finally, High Sierra argued that the Timberland Productivity Act compelled that the County follow discretionary CEQA review when making the required determinations, and that the General Plan, to the extent it did not allow for discretionary review violated state statute.  The appellate court disagreed, concluding that the Timberland Productivity Act did not compel that the statutory determination that the structure is necessary for the management of the timberland zoned property is an action which compels discretionary CEQA review. 

  1. Litigation Procedures

Save Lafayette Trees v. City of Lafayette (2018) 28 Cal.App.5th 622.

On March 27, 2017, the City of Lafayette approved an agreement with PG&E regarding the removal of 216 trees located within the utility’s natural gas pipeline right-of-way.

A citizen’s group (“Save Lafayette Trees” or “SLT”), filed suit challenging the City’s approval alleging violations of state land use law and CEQA.  PG&E and the City demurred on the grounds that while the petition had been timely filed, it had not been served within the 90 days specified by Government Code section 65009. The trial court agreed and dismissed all claims and the citizens appealed.  The appellate court affirmed as to the dismissal of the land use claims, but reversed as to the CEQA cause of action.  

Reviewing the City code, the appellate court determined that the tree ordinance was part of the land use code covered by section 65009, and while the statute covers permits, ordinances and variances, the court concluded that the “agreement” between the City and the utility was also within the scope of the statute. SLT also argued that the City’s own ordinance which at the time included a 180-day statute of limitations, the appellate court rejected this argument on the basis that the state law superseded the local ordinance. The court agreed with SLT as to the continuing validity of its CEQA claim. CEQA permits the petitioner in a CEQA challenge to serve the action within 10 days of filing the petition/complaint. While SLT had not filed and served within 90 days to satisfy its land use claims, the petition was timely filed in support of its CEQA cause of action. 

The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771.

Petitioners, Inland Oversight Committee (“IOC”), CREED-21 and Highland Hills Homeowners Association (“HOA”), challenged the City’s approval of what the City determined to be a minor modification to an existing project claiming violations of CEQA and the Water Code. The Fourth District Court of Appeal affirmed the trial court ruling holding that a prior lawsuit filed by the HOA on different but similar grounds barred the new claims as res judicata. It reasoned that the HOA’s new claims are barred because they arise out of the same set of facts and transaction that was resolved in the prior suit, namely the purported invalidity of the approval of a minor modification and related violations of CEQA. The court similarly rejected the claims by IOC and CREED-21 as barred, because these petitioners are in privity with the HOA, reasoning that IOC and CREED-21 failed to articulate how their stated purpose of “advocating on behalf of the public” was not aligned with the HOA’s purpose of “protecting their property values.” It further held that there was no violation of the Water Code as no water supply assessment was required when the project is not subject to CEQA.

LandWatch San Luis Obispo County v. Cambria Community Services Dist. (2018) 25 Cal.App.5th 638.

The Second District Court of Appeal affirmed the trial court award of $18,230.35 to the Cambria Community Services District for preparation of the administrative record, despite the fact that LandWatch had elected to prepare the record pursuant to Public Resources Code section 21167.6, subdivision (b)(2). It held that LandWatch had unreasonably delayed preparation of the record and forfeit its right to prepare the record, when LandWatch failed to prepare a complete administrative record within the required 60 days. The court reasoned that the District was within its right to complete preparation and certification of the record, and entitled to recover its costs, after the District: (1) warned LandWatch that its initial draft record submitted to the District was substantially inadequate; and (2) gave LandWatch a specific deadline to rectify the inadequacies or the District would take over preparation of the record, and LandWatch failed to respond until more than a week after the deadline.

Heron Bay Homeowners Assn. v. City of San Leandro (2018) 19 Cal.App.5th 376.

Petitioners successfully challenged the City’s approval of a proposed wind turbine project under the California Environmental Quality Act (“CEQA”). The trial court concluded that the City’s decision to adopt a mitigated negative declaration was in error and, instead, was required to prepare an EIR. Post-trial, the trial court awarded petitioners a partial attorney fees award under the private attorney general statute in Public Resources Code section 1021.5. The City and the real-party-in-interest (“Respondents”) filed an appeal on the fee award, arguing that the trial court erred when finding that, despite the “very close call” over whether Petitioners had a personal financial interest that was sufficient to outweigh the burden of bringing suit, a fee award could be apportioned to address the balancing of responsibilities. Respondents reasoned that the court could only consider apportionment of the fee award, after concluding that the petitioner’s interest did not disqualify it from the fee award. The appellate court rejected respondent’s claim finding that record for the trial court’s determination showed that it had impliedly found that Petitioners had a sufficient financial interests to incur some, but not all, of the costs of litigation. Thus, the trial court’s apportionment was a reflection of this implied determination that is required under the statute.

Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista (2018) 29 Cal.App.5th 424.

A citizens group (ACCORD) successfully challenged a negative declaration for a fuel station and convenience store.  Following the trial court hearing, the court issued a “Peremptory Write of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts.”  This writ required the lead agency to set aside its resolutions, reconsider the potential noise impacts, and take further action consistent with CEQA.   The City reapproved a new negative declaration and re-approved the project.  At the City’s request, the trial court then discharged the writ and entered judgment in favor of the City.  ACCORD then appealed.  In a procedurally unusual twist, the court of appeal concluded that the trial court’s early decision served de facto  as the effective judgment, and that the time to appeal ran from that decision, not from the later judgment issued by the trial court.  In other words, the label of the court’s decision was not determinative of its legal effect.  As a result, the issues on appeal would be limited to those concerning the return to the writ, not the issues addressed in the trial court’s initial order.

  1. CEQA Guidelines Updates

 On December 28, 2018, the Natural Resources Agency adopted the final text to a comprehensive update to CEQA. Significant changes to the regulations include addressing global climate change and VMT. Significant improvements include proactive analysis of impacts for wildfires, greenhouse gas emissions, and transportation impacts. Climate change benchmarks within the guidelines were crafted to coincide with the State’s climate action plans. The Office of Administrative Law completed review of the Final Text also on December 28, 2018 and sent the document to the Secretary of State’s office for final publication. Once published with the Secretary of State, the Guidelines go into full effect. All CEQA documents not finalized before January 1, 2019 are subject to the content requirements outlined in the modified text. The Procedural changes to CEQA will be required of all CEQA applicants and affected agencies 120 days after the guidelines were filed with the Secretary of State’s office. 

The most significant changes as outlined in the notice of proposed rulemaking include:

  • “Updated exemptions for residential and mixed-use developments near transit and redeveloping vacant buildings;
  • Clarified rules to make it easier to use existing environmental documents to cover letter projects;
  • New provisions to address energy efficiency and the availability of water supplies;
  • Simplified requirements for responding to comments;
  • Clarify existing CEQA exemptions, including the use of the existing facilities categorical exemption and the emergency statutory exemption;
  • Elaborate and clarify information on “tiering,” and CEQA’s more specific “streamlining” provisions;
  • Clarify baseline requirements and the limitations on the ability to use historic conditions where environmental conditions fluctuate;
  • Provide guidance on “pre-commitment” issues and the types of activities that an agency may (or may not) engage in prior to the completion of CEQA review;
  • Add new “Energy” and “Wildfire” resource categories to the Initial Study/Appendix G checklist;
  • Implement SB743 Traffic Impact Analysis changes, including requirement that VMT be used throughout the state, phased in over time, no later than 2020;
  • A Technical Advisory that sets forth recommended VMT screening thresholds, as well as several examples of potential mitigation measures and alternatives to reduce VMT; and
  • Modified provisions to reflect recent CEQA cases addressing baseline, mitigation requirements and greenhouse gas emissions.”

Further, Appendix G of the CEQA Guidelines include an updated environmental checklist often used by agencies as a guiding document for environmental review. Significant improvements are expected to hit energy, water supply, greenhouse gas emission, and transportation planning sectors. The Final Statement of Reasons often provides guidance and gap fillers for ambiguity in the regulations.

More information can be found at: http://resources.ca.gov/ceqa/ 

D. Legislation

AB 1804 (Chapter 670) California Environmental Quality Act: exemption: residential or mixed-use housing projects (Rural infill) 

Qualifying residential or predominately residential mixed-use projects located in unincorporated areas of a county would be exempt from CEQA until January 1, 2025. The maximum acreage is 5 acres and includes familiar limitations found elsewhere in CEQA (no impacts to threatened or endangered species, no cumulative impacts, no unusual circumstances.)

AB 2341 (Chapter 298) California Environmental Quality Act: aesthetic impacts

The lead agency is not required to consider aesthetic effects of projects involving certain criteria.  This legislation is aimed at converting abandoned buildings into housing. Limitations include no significant increase in height or creating new sources of substantial light or glare. The exemption cannot be used if it has significant effects on a state scenic highway or if the project would have potentially significant impacts to historical or cultural resources.

AB 2782 (Chapter 193) California Environmental Quality Act

In evaluating projects subject to CEQA, lead agencies may consider specific economic, legal, social, technological, or other benefits of and the negative impacts of denying the project. The analysis of benefits and negative impacts shall be based upon substantial evidence in the record. 

William Abbott, Diane Kindermann, and Glen Hansen are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

On December 28, 2018, the Natural Resources Agency adopted the final text to a comprehensive update to CEQA. Significant changes to the regulations include addressing global climate change and the affordable housing shortage. Significant improvements include proactive analysis of impacts for wildfires, greenhouse gas emissions, and transportation impacts. Climate change benchmarks within the guidelines were crafted to coincide with the State’s climate action plans. The Office of Administrative Law completed review of the Final Text also on December 28, 2018 and sent the document to the Secretary of State’s office for final publication. Once published with the Secretary of State, the Guidelines go into full effect. All CEQA documents not finalized before January 1, 2019 are subject to the content requirements outlined in the modified text. The Procedural changes to CEQA will be required of all CEQA applicants and affected agencies 120 days after the guidelines were filed with the Secretary of State’s office. 

The most significant changes as outlined in the notice of proposed rulemaking include:

  • “Updated exemptions for residential and mixed-use developments near transit and redeveloping vacant buildings;
  • Clarified rules to make it easier to use existing environmental documents to cover letter projects;
  • New provisions to address energy efficiency and the availability of water supplies;
  • Simplified requirements for responding to comments;
  • Clarify existing CEQA exemptions, including the use of the existing facilities categorical exemption and the emergency statutory exemption;
  • Elaborate and clarify information on “tiering,” and CEQA’s more specific “streamlining” provisions;
  • Clarify baseline requirements and the limitations on the ability to use historic conditions where environmental conditions fluctuate;
  • Provide guidance on “pre-commitment” issues and the types of activities that an agency may (or may not) engage in prior to the completion of CEQA review;
  • Add new “Energy” and “Wildfire” resource categories to the Initial Study/Appendix G checklist;
  • Implement SB743 Traffic Impact Analysis changes, including requirement that VMT be used throughout the state, phased in over time, no later than 2020;
  • A Technical Advisory that sets forth recommended VMT screening thresholds, as well as several examples of potential mitigation measures and alternatives to reduce VMT; and
  • Modified provisions to reflect recent CEQA cases addressing baseline, mitigation requirements and greenhouse gas emissions.”

Further, Appendix G of the CEQA Guidelines includes an updated environmental checklist. The Final Statement of Reasons often provides guidance and gap fillers for ambiguity in the regulations.

William Abbott, Diane Kindermann, and Glen Hansen are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Center for Community Action & Environmental Justice v. City of Moreno Valley (Aug. 23, 2018, case no. D073451) ___ Cal.App.5th ___.

The right of initiative and referendum is embedded in the California Constitution as a result of the nationwide progressive political reform movement that began at the end of the 19th century. In fact, Hiram Johnson rode this political reform issue into the winner’s circle when running for governor in 1910. As a result of its constitutional foundation, the rights of initiative and referendum are closely guarded by the courts. Over time, California courts have generally concluded that citizen voters are co-equal with locally adopted legislative bodies when acting upon legislative matters, including the field of legislative actions involving land use matters. As the most recent case demonstrates, there are state legislative limits on selected land use enactments.

In the City of Moreno Valley, a significant development project was engulfed in litigation challenging the land use approvals, including a development agreement and a CEQA document. The local voters, with the backing of the developer, then qualified an initiative measure repealing the City Council approved development agreement and approving a substantially similar development agreement. Pursuant to the elections code, the City Council faced the option of approving the development agreement as submitted or submitting the measure to the voters for approval. The City Council elected to adopt the measure.

A new round of litigation followed seeking to overturn the re-approved development agreement on several grounds, including the argument that approval of a development agreement was reserved solely to the city council or board of supervisors. This argument was predicated in part on the fact that the development agreement statute expressly allows for referendum of an ordinance approving a development agreement, but is silent with respect to use of the initiative to approve a development agreement and was based on an earlier California Supreme Court decision in Committee of Seven Thousand v. Superior Court (1988) 45 Cal.3d 491, in which the California Supreme Court concluded that implementation of special legislation concerning transportation facility funding in Orange was reserved exclusively to city councils and board of supervisors, not the voters.   

The court of appeal reached a similar conclusion with respect to development agreements. The appellate decision was influenced by the legislative recitals in the development agreement statute as to the need and benefits of stability in the planning and development process evidencing a compelling state interest. The appellate court also recognized as another argument in support of exclusive authority that the development agreement statute contemplates that a development agreement is a negotiated agreement, and that the initiative process is not conducive to negotiation. Because the power of referendum is expressly incorporated into the development agreement statute, the voters still have a protected legislative interest, just one which is less comprehensive in scope when compared to other land use matters.

William Abbott is a shareholder at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP 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.

September 19, 2018 – 11am to 1pm

Presenter: Daniel S. Cucchi, Esq., Abbott & Kindermann, Inc.

The pace of new court rulings affecting land use professionals can be difficult to keep up with. But each one could have a significant impact on a land use professional’s day-to-day activities. If you want to catch up on the latest legal news that will help you implement best practices in your office, this session is for you. Dan will review select cases from 2017 & 2018 and facilitate a discussion about their relevance on employing high-quality land use practice techniques in your office.

When: Wednesday, September 19th

Where: AECOM – Coastal Conference Room 2020 L Street Suite 400 Sacramento, CA 95811

Time: 11AM-1PM

Cost: $20 (Lunch will be provided.)

Approved for 1.5 AICP Law Credits

Deadline to register is Tuesday, September 18 at Noon.

Register now!

Questions, please contact Dan Cucchi at 916.456.9595 or dcucchi@aklandlaw.com

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

 

By Kristen Kortick

AB 734 (Bonta)

Since the 2003 publication of the book, Moneyball: The Art of Winning an Unfair Game, by Michael Lewis, the A’s franchise made a name for itself as a franchise utilizing creative tactics to keep fans in the stands and the players in the dugout. Enter construction of the new A’s stadium and the California Environmental Quality Act (“CEQA”) review process and that creativity is now looking rather pedestrian. When undertaking construction of a new stadium, the A’s have instead looked to other examples of utilizing CEQA exemptions for construction of new stadiums throughout California rather than forge a new path. The Los Angeles Rams (2009 [City of Industry stadium that never materialized]), Sacramento Kings (2013), Golden State Warriors (2015), and Los Angeles Clippers (2017), all received Legislature approved exemptions from the full CEQA process for construction of new stadium or arena projects, and the A’s now hope to receive the same.

In February 2018, the A’s franchise asked lawmakers to pass a similar bill shielding the organization from elongated environmental suits while streamlining the CEQA process to construct their new stadium. Under Assembly Bill 734, the new A’s stadium needs a completed and certified environmental impact report (“EIR”) or a mitigated negative declaration outlining how the finalized project poses the least harmful impacts to the environment.  The bill further outlines administrative and judicial review procedures including limiting appeals of the project to 270 days from the filing of the certified record to completed Court opinion. All contested cases for the project would bypass the superior court and move straight to appellate review. Costs to the court and lead agencies brought into court for litigation would be subsumed by the project applicant. The project requires LEED certification for all new construction and sets out express benchmarks for projects approvals, public comments, and the timeline for judicial review.

The project has yet to finalize a site, but the organization has narrowed the search to the location of the pre-existing stadium or nearby to Jack London Square in Oakland. The Ballpark is earmarked to open in 2023. Opponents to the CEQA legislation have concerns that various CEQA safeguards would be gravely overlooked by fast tracking the project. In response, the President of the A’s has alleged that the bill asks for the same exemption as its predecessors, such as the Warriors’ San Francisco arena and the Kings’ Sacramento arena and entertainment complex.

Many California residents and concerned environmental advocacy organizations throughout the state have expressed concern over CEQA exemptions for these large scale development projects. These CEQA exemptions, initially championed by Governor Schwarzenegger and continued under Governor Brown, have seen no shortage of opposition. A group of California residents have traveled throughout the state to litigate cases utilizing similar exemptions from CEQA for sports arenas. Although the provisions of past CEQA exemptions contain varied mitigation protocols, the procedures and judicial review of each project remain consistent in each of the prior versions of such legislation. For example, the Kings stadium obtained the CEQA exemption in 2013 for the construction of Golden One Center Arena. The legislative approval of the project included mitigation measures for traffic mitigation and air quality impacts differing from the bill proposed for the A’s stadium. Consistent with the A’s stadium, the Kings arena implemented a 270 day judicial appeal timeline, LEED certification, and schedule for completion of the project’s planning and construction. The Los Angeles Clippers arena in Inglewood also included similar CEQA benchmarks. However, the Clippers arena also included language to fast track needed public transportation infrastructure in furtherance of the 2028 Olympic Games set to take place in Los Angeles.

These CEQA exemptions pose a unique set of hurdles and some would argue a weakening of CEQA law. First, although these exemptions have not allowed for bare bones EIRs or CEQA review, they shorten the comment periods and judicial review of large ticket items. Many opponents to these CEQA exemptions allege the approval allows deep pocket projects to pay their way through environmental protections in the state. So far, Courts have held that past projects with these CEQA exemptions consistently met the commitments under CEQA without needing to implement additional mitigation measures. (See our link to the Court’s opinion in Saltonstall v. City of Sacramento.) Second, the CEQA exemption prioritizes challenges to exemption projects in the courts thus pushing other cases on the court’s docket lower. As one of the most litigation heavy states in the United States, California court dockets are already at full capacity averaging one-and-a-half to two years from filing to finalized opinions. While the exemption may speed up the process of judicial review for a stadium, it is at the cost of all other docketed civil cases on the jurisdictional court’s calendar. Though this has not likely had a tangible burden on the court calendar overall so far (this would be only the fifth of these CEQA exemptions in the last ten years), if this approach were to expand to cover other large-scale projects the courts could see more CEQA cases impacting the appellate court’s docket in the future.

Currently, AB 734 sits in the Senate Appropriations Committee. Voting from the Assembly Floor and Committees would suggest the project is likely to pass and proceed to the Governor’s desk for signature by end of August. Time will tell whether Governor Brown is ready to sign it.

Bill Abbott, the firm’s resident curmudgeon noted: “It is reassuring that CEQA reform exists for the financial upper crust. Perhaps the Legislature will throw a few crumbs to us commoners.

Kristen Kortick is a law clerk at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

1901 First Street Owner, LLC v. Tustin Unified School Dist. (2018) 21 Cal.App.5th 1186

The methodology for imposing local impact fees is largely left to the discretion of the local agency adopting the impact fees. (AB 1600; Gov. Code §66000, et seq.; the “Mitigation Fee Act”.) As long as there is a reasonable basis for the methodology, a reviewing court should uphold the enacting agency’s approach (e.g., gross building area v. net building area, bedrooms, or EDUs). The notable exception to this involves school impact fees wherein the Legislature set forth the methodology which uses the interior square footage with listed exceptions. Petitioner 1901 First Street Owner, LLC (“First Street”), the developer of a multi-family project, challenged how the methodology was applied to its project. First Street argued that non-inhabited areas such as an interior gym, hallways, and meeting rooms (“interior common areas”) should not be included in the calculation. Initially, the City had agreed with First Street’s opinion and calculated the fee excluding interior common areas. When challenged by the school district, however, the City reversed itself, recalculating the fee to include the interior common areas. As a result, an additional 70,000 square feet were included in the recalculation, which translated to a $238,549.86 increase in the school impact fees. First Street sued and lost at the trial court.

As the interpretation of the statute is purely a legal question, the appellate court applied its independent judgment in interpreting the statute, ultimately agreeing with the City, the school district and the trial court. It found that though detached homes do not include interior common area, this fact was not a basis for reaching a contrary conclusion to that of the City. First Street also argued that it had a vested right based upon a vesting map it processed in conjunction with its entitlements, and as such, the City could only apply its former fee calculation methodology. Citing Government Code section 66498.6, the appellate court noted that the vesting map law does not vest rights as to misinterpretation of state law.

Commentary:  In circumstances involving non-school impact fees, First Street may well have had a winning argument with respect to the effect of the vesting map. As school impact fees are based upon a state-crafted formula, the local agency did not have the discretion to misapply state law.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Building Industry Association  – Bay Area v. City of Oakland, 2018 U.S.Dist.LEXIS 18822 (Case No., 15-cv-03392, Feb. 5, 2018)

Fifth Amendment takings challenges to adjudicative land-use exactions and permit conditions are governed by the two-part test in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994).  In Nollan, the Court held that a government could, without paying compensation, demand an easement as a condition for granting a development permit the government was entitled to deny as an exaction of private property, provided that the exaction would substantially advance the same government interest that would furnish a valid ground for denial of the permit. (483 U.S. at pp. 834, 836-837.)  In Dolan, the Court held that the dedication of private property must be “roughly proportional” both in nature and extent to the impact of the proposed development. (512 U.S. at p. 391.)  In Koontz v. St. Johns River Water Management District, 133 S.Ct. 2586 (2013), the Court held that the Nollan/Dolan test applies to a government’s demand for a monetary exaction imposed on a land-use permit applicant on an ad hoc, adjudicative basis.  But Koontz did not address the question of whether legislatively imposed monetary exactions are also governed by the Nollan/Dolan test.  That led Supreme Court Justice Clarence Thomas to note in early 2016:  “For at least two decades, however, lower courts have divided over whether the Nollan/Dolan test applies in cases where the alleged taking arises from a legislatively imposed condition rather than an administrative one. That division shows no signs of abating.” (Cal. Bldg. Indus. Ass’n v. City of San Jose, 136 S. Ct. 928, 928 (2016) (Thomas, J., concurring in denial of cert.))  Justice Thomas added: “Until we decide this issue, property owners and local governments are left uncertain about what legal standard governs legislative ordinances and whether cities can legislatively impose exactions that would not pass muster if done administratively.”  (Id. at pp. 928–929.)

While waiting for the Supreme Court to decide that question, courts are now having to decide whether the Koontz decision can be interpreted as applying Nollan/Dolan to generally applied and legislatively imposed exactions.  For its part, the California Supreme Court said no:  “The Koontz decision does not purport to decide whether the Nollan/Dolan test is applicable to legislatively prescribed monetary permit conditions that apply to a broad class of proposed developments.”  (California Building Industry Assn. v. City of San Jose (2015) 61 Cal.4th 435, 460 & fn 11, cert. den., Cal. Bldg. Indus. Ass’n v. City of San Jose, supra, 136 S.Ct. 928 (emphasis added).)  Since Koontz does not apply, the existing rule in California is that “legislatively prescribed monetary fees that are imposed as a condition of development are not subject to the Nollan/Dolan test.”  (Ibid. See also San Remo Hotel v. City and County of San Francisco (2002) 27 Cal.4th 643, 663-671; Santa Monica Beach, Ltd. v. Superior Court (1999) 19 Cal.4th 952, 966–967; Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 874-885 (plur. opn. of Arabian, J.).)  The existing rule in the Ninth Circuit Court of Appeal is the same.  (See McClung v. City of Sumner, 548 F.3d 1219 (9th Cir. 2008), cert. denied, 556 U.S. 1282 (2009).)

U.S. District Judge Chhabria of the Northern District of California recently came to the same conclusion as the California Supreme Court.  In Building Industry Association  – Bay Area v. City of Oakland, 2018 U.S.Dist.LEXIS 18822 (Case No., 15-cv-03392, Feb. 5, 2018) (“BIA”), Judge Chhabria determined:  “The Court did not hold in Koontz that generally applicable land-use regulations are subject to facial challenge under the exactions doctrine [in Nollan and Dolan].”  (Id. at *5.)  Judge Chhabria reached that conclusion by rejecting the reasoning of fellow U.S. District Judge Breyer in Levin v. City of San Francisco, 71 F.Supp.3d 1072 (N.D. Cal. 2014), appeal dismissed as moot, remanded, 2017 U.S.App.LEXIS 4384 (9th Cir., Feb. 14, 2017).

In Levin, the City and County of San Francisco enacted an ordinance that required property owners who wanted to withdraw their rent-controlled property from the rental market under California’s Ellis Act (Govt. Code §§7060 et seq.) to pay a lump sum to displaced tenants in San Francisco.  Property owners challenged the ordinance as an unconstitutional taking.  Judge Breyer applied Nollan/Dolan to the takings claim because, “[a]s in Koontz, where the monetary exaction was subject to a Nollan/Dolan analysis because the City commanded a monetary payment ‘linked to a specific, identifiable property interest such as a . . . parcel of real property,’ here the Ordinance’s requirement of a monetary payment is directly linked to a property owner’s desire to change the use of a specific, identifiable unit of property.”  (71 F.Supp.3d at p. 1083 (citing Koontz, supra, 133 S.Ct. at p. 2600).)  Judge Breyer distinguished the contrary Ninth Circuit precedent in McClung v. City of Sumner by concluding that “Koontz abrogated McClung’s holding that Nollan/Dolan does not apply to monetary exactions, which is intertwined with and underlies McClung’s assumptions about legislative conditions.” (71 F.Supp.3d at 1083 n.4.)

However, in the recent BIA case, Judge Chhabria disagreed with Judge Breyer and held that Koontz did not address the applicability of Nollan/Dolan to legislative exactions, and therefore did not overturn the Ninth Circuit precedent in McClung. In BIA, the City of Oakland enacted an ordinance that required a developer of a multifamily project with over twenty units to either (i) spend 0.5 percent of building development costs on art displays on the site of the development or a nearby right-of-way; or (ii) pay an equivalent amount to a city-operated fund for public art installations.  The Building Industry Association – Bay Area (“Association”) challenged the validity of the ordinance on the ground that it was an unlawful exaction that violates the “exactions doctrine” applied in Nollan, Dolan and Koontz.  Judge Chhabria disagreed with the Association, and granted the City’s motion to dismiss, for the three several reasons.

First, Judge Chhabria explained that the U.S. Supreme Court has only applied the “exactions doctrine” in cases “involving a particular individual property, where government officials exercised their discretion to require something of the property owner in exchange for approval of a project.”  (2018 U.S.Dist.LEXIS 18822 at *3.)  He added that “the Court has consistently spoken of the doctrine in terms suggesting it was intended to apply only to discretionary decisions regarding individual properties.  (Ibid. (citing Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 546-47, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005).

Second, Judge Chhabria pointed out that both the Ninth Circuit in McClung and the California Supreme Court in Ehrlich have “expressly stated that a development condition need only meet the requirements of Nollan and Dolan if that condition is imposed as an ‘individual, adjudicative decision.’”  (2018 U.S.Dist.LEXIS 18822 at *3.)  Therefore, “[b]roadly applicable regulations like the one at issue in this case are assessed under the Penn Central regulatory takings framework.” (Id. at *3-*4.)

Third, Judge Chhabria rebuffed the Association’s reliance on Judge Breyer’s decision in Levin that held that held that McClung was invalidated by Koontz.  Judge Chhabria explained:

The Court did not hold in Koontz that generally applicable land-use regulations are subject to facial challenge under the exactions doctrine; it held only that the exactions doctrine applies to demands for money (not merely demands for encroachments on property). In reaching this holding, the Court went out of its way to make clear that it was not expanding the doctrine beyond that. See 133 S. Ct. at 2602 (“This case does not require us to say more.”); id. at 2600 n. 2 (“[T]his case does not implicate the question whether monetary exactions must be tied to a particular parcel of land in order to constitute a taking.”). Koontz involved an adjudication by local land-use officials regarding an individual piece of property, and throughout its decision the Court spoke of the exactions doctrine in those terms. For example, the Court stated: “The fulcrum this case turns on is the direct link between the government’s demand and a specific parcel of real property.” 133 S. Ct. at 2600 (emphasis added). “Because of that direct link,” the Court stated, “this case implicates the central concern of Nollan and Dolan: the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property.” Id. (emphasis added); see also id. at 2594 (noting that permit applicants are “especially vulnerable” to government coercion “because the government often has broad discretion to deny a permit that is worth far more than property it would like to take”). The exactions doctrine, in other words, has historically been understood as a means to protect against abuse of discretion by land-use officials with respect to an individual parcels of land, and Koontz itself spoke of it in those terms, undermining Judge Breyer’s argument that Koontz displaced the Ninth Circuit’s rule that the exactions doctrine is unavailable to a plaintiff making a facial challenge to a generally applicable land-use regulation. (Id. at *4-*6.)

Thus, Koontz did not overrule the Ninth Circuit’s legislative exactions analysis in McClung, and under the same rationale did not overrule the California Supreme Court’s holding in Ehrlich.

Judge Chhabria did not explicitly address another argument raised in Levin regarding the McClung decision.  In Levin, Judge Breyer concluded that Koontz abrogated the holding in McClung regarding legislative exactions because the monetary exactions is “intertwined with and underlies McClung’s assumptions about legislative conditions.” (71 F.Supp.3d at 1083 n.4.) In its briefing in Re:  BIA case, the Association similarly argued that “McClung’s discussion of legislative exactions is so entwined with its abrogated repudiation of monetary exactions that the two cannot be parceled out.”  (Opposition to Motion to Dismiss, at 11 fn. 5.)  Judge Chhabria did not address that issue in his order granting the City’s motion to dismiss. However, contrary to Judge Breyer’s statement in Levin, and the Association’s argument in BIA, the McClung court discussed the legislative/adjudicative distinction apart from the “monetary” nature of the particular exactions in that case.  For example:

Next, the McClungs attempt to recast the facts as involving an individualized, discretionary exaction as opposed to a general requirement imposed through legislation. The McClungs make this argument in recognition of the fact that at least some courts have drawn a distinction between adjudicatory exactions and legislative fees, which have less chance of abuse due to their general application. See San Remo Hotel, 41 P.3d at 104 (distinguishing between a fee condition applied to single property that would be subject to Nollan/Dolan review and a generally applicable development fee).  The facts do not support the McClungs falling within the former category. All new developments must have at least 12-inch storm pipe; there is no evidence on the record that the McClungs were singled out. [548 F.3d at 1228–1229.]

Judge Breyer’s decision in Levin did not discuss that analysis and case law in McClung, which is a separate ground that supported the Ninth Circuit’s holding about legislative exactions.  (Cf. United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924) [“where there are two grounds, upon either of which an appellate court may rest its decision, and it adopts both, ‘the ruling on neither is obiter, but each is the judgment of the court and of equal validity with the other’” (citation omitted)); Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 646 fn. 7 [“when a decision is based on two separate grounds, neither is dictum; rather, each ground is equally valid and constitutes an alternative holding in support of the judgment.” (Citation omitted.)])

It is important to note that Judge Chhabria did not decide in BIA whether or not the U.S. Supreme Court should extend Nollan/Dollan to legislative exactions; he merely determined that the High Court had not yet done so.  He explained:

Perhaps reasonable arguments could be made for expanding the reach of the exactions doctrine so that it can be invoked in facial challenges to a generally applicable regulations, rather than merely discretionary decisions regarding an individual property by land-use officials.  But the point, for purposes of this motion, is that it would be an expansion of the doctrine. If that occurs, it should be in the Supreme Court, not the Northern District of California.  [2018 U.S.Dist.LEXIS 18822 at *6 (citation omitted).] [1]

Thus, the District Court recognized, as Justice Thomas observed in early 2016, that the constitutional level of scrutiny for legislative exactions has not yet been decided by the U.S. Supreme Court even after Koontz.

The Association appealed the decision in BIA to the Ninth Circuit on March 5, 2018.  The briefing on that appeal is scheduled to begin on June 13, 2018.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

[1] For an extensive analysis of whether Nollan/Dolan applies to legislative exactions, see Glen Hansen, Let’s Be Reasonable: Why Neither Nollan/Dolan nor Penn Central Should Govern Generally-Applied Legislative Exactions After Koontz, 34 Pace Envtl. L. Rev. 237, 242 (2017).

Hauser v. Ventura County Board of Supervisors (2018) 20 Cal.App.5th 572

I will start with the cats. Irena Hauser applied for a conditional use permit to house up to five tigers on her property, located in a rural part of Ventura County. Ms. Hauser proposed three tiger enclosures, an area with a roof, and an eight-foot chain link fence enclosing seven acres. The animals were to be used for filming purposes. 57 residential lots with 28 existing homes were located within a one-half mile radius of the tiger enclosures, with a total of 46 existing homes within one mile. In addition, there were two children’s camps within 2-3 miles. The project site was located in “rugged topography … with dense vegetation.” Ms. Hauser proposed that one family member would always be onsite. She and another family member had attended an eight-day class on animal husbandry, safety and training (as the court noted, there was no written test, and everyone was assured a passing certificate).

As one might predict, the neighbors were opposed, presenting a petition with 11,000 signatures in opposition, news reports of animal maulings, and video of uncaged tigers on the Hauser property in Beverly Hills. The planning commission denied the use permit, as did the Board of Supervisors, the latter on a 4-1 vote. Ms. Hauser filed a writ of mandate challenging the findings adopted in support of the denial claiming a lack of substantial evidence. The appellate court largely deferred to the fact finding undertaken by the Board, noting that the Board was not compelled to believe Hauser’s uncontradicted testimony. With deference to the Board, the appellate court found that the evidence did in fact support the Board’s decision.

While the fate of five tigers is always interesting reading, more important is the court’s decision regarding the effect of communications to the Board members outside of the formal hearing process. The Board members disclosed pre-hearing contacts with both the applicant and opponents (in person and by email). The adopted county rules discouraged ex parte contacts and required disclosure, which the Board members fully complied. The appellate court noted that less formality is required for local government hearings as compared to a judicial hearing and with respect to ex parte contacts cited City of Fairfield v. Superior Court, 14 Cal.3d 768 (1975), in which the California Supreme Court noted “A councilman has not a right but an obligation to discuss issues of vital concern with his constituents.” The potential for bias is insufficient. There must be a probability of actual bias which is constitutionally intolerable. The court viewed that the pre-hearing contacts were quite typical, and no decision maker had promised to vote a certain way. All Board members disclosed the contacts as required by the local code. In the end, Ms. Hauser received a full and fair hearing.

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

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.