Reserve your seat for our annual conference taking place in early 2022 for our virtual program.

On March 17-18, 2022, Abbott & Kindermann, Inc. will present its 21st annual virtual 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 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

March 17, 2022  Virtual Conference (To Register for the 3/17/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 3:00 p.m. – 5:00 p.m.

March 18, 2022 Virtual Conference  (To Register for the 3/18/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 10:00 a.m. – 12:00 noon

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE and AICP CM credits are available.

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

Reserve your seat for our annual conference taking place in early 2022 for our virtual program.

On March 17-18, 2022, Abbott & Kindermann, Inc. will present its 21st annual virtual 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 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

March 17, 2022  Virtual Conference (To Register for the 3/17/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 3:00 p.m. – 5:00 p.m.

March 18, 2022 Virtual Conference  (To Register for the 3/18/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 10:00 a.m. – 12:00 noon

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE and AICP CM credits are available.

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

Reserve your seat for our annual conference taking place in early 2022 for our virtual program.

On March 17-18, 2022, Abbott & Kindermann, Inc. will present its 21st annual virtual 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 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

March 17, 2022  Virtual Conference (To Register for the 3/17/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 3:00 p.m. – 5:00 p.m.

March 18, 2022 Virtual Conference  (To Register for the 3/18/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 10:00 a.m. – 12:00 noon

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE and AICP CM credits are available.

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

Reserve your seat for our annual conference taking place in early 2022 for our virtual program.

On March 17-18, 2022, Abbott & Kindermann, Inc. will present its 21st annual virtual 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 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

March 17, 2022  Virtual Conference (To Register for the 3/17/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 3:00 p.m. – 5:00 p.m.

March 18, 2022 Virtual Conference  (To Register for the 3/18/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 10:00 a.m. – 12:00 noon

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE and AICP CM credits are available.

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

Welcome to Abbott & Kindermann’s 2022 1st Bi-Monthly cumulative Land Use and Local Government Review. This summary provides brief updates on recent land use and local government caselaw in 2022. The case names of the newest decisions start with Section 2 and are denoted by bold italic fonts.

CASES PENDING AT THE CALIFORNIA SUPREME COURT

There is 1 case pending at the California Supreme Court. The case and the Court’s summary is as follows:

Chevron U.S.A., Inc. v. County of Monterey, S271869. (H045791; 70 Cal.App.5th 153; Monterey County Superior Court; 16CV003978.) Petition for review after the Court of Appeal affirmed the judgment in a civil action. The court limited review to the following issue: Does Public Resources Code section 3106 impliedly preempt provisions LU-1.22 and LU-1.23 of Monterey County’s initiative “Measure Z”?

UPDATE

Planning, Development, and the Subdivision Map Act

Tran v. County of Los Angeles, (January 21, 2022) 2022 Cal.App. LEXIS 53.

Henry Tran (“Petitioner”), the owner of a liquor store in an unincorporated area south Los Angeles, applied for a renewal of the store’s conditional use permit (“CUP”) for the sale of alcohol. The County Department of Regional Planning (“Department”) processed the request and recommended certain limitations on the minimum size of liquor bottles, and limited the hours when alcohol sales could occur to 10:00 pm. The Regional Planning Commission (“Commission”) approved the CUP, but modified it to increase the hours of alcohol sales back to 2:00 am. Utilizing the County’s “call for review” procedures by one of the board members, the Board of Supervisors (“Board”) voted to hear the Commission’s decision and set the item for a public hearing. At the August 1, 2017, hearing, the Board heard testimony from the public and the Department and voted to approve a motion of intent to approve the CUP that added the time for alcohol sales limitation the Department recommended of 10:00 pm. On March 20, 2018, nearly eight months later, the Board formally adopted findings and conditions of approval consistent with the August 1, 2017 decision. Petitioner filed suit, arguing the delayed final decision violated County Code section 22.240.060, subdivision E.4, which requires the Board to act within 30 days of the close of the public hearing. (County Code §22.240.060(E)(4) [“Decisions on appeals or reviews shall be rendered within 30 days of the close of the public hearing” (emphasis added).].) The trial court rejected the claim, holding that the Board had rendered its decision on August 1, 2017, when it approved the motion of intent to approve the CUP with the modified hours requirements, and Petitioner appealed.

The Second District Court of Appeal reversed. The Court first focused on whether the Code’s apparent requirement was directive or mandatory—essentially determining whether the statutory provisions include a consequence for the failure to comply—the latter being required for the court to have the authority to invalidate the governmental action. Relying on the inclusion of an additional subdivision that mandates the affirmation of the lower body’s decision for the failure to timely act on the appeal, the Court held that the 30-day deadline to act was mandatory. Next, the Court considered whether the Board’s “decision” was “rendered” on August 1, 2017, with the motion of intent to approve and ultimately concluded it was not. It reasoned that because the right of judicial review and statute of limitations only flowed from the formality of adopting findings and the CUP with its final modifications of the Board’s final action on March 20, 2018, the August 1, 2017 decision did not “render” the Board’s “decision” as required by County Code section 22.240.060(E)(4). Thus, the Court ordered the trial court to issue a writ of mandate vacating the Board’s decision and deeming the Commission’s decision affirmed.

Protect Our Neighborhoods v. City of Palm Springs (2022) 73 Cal.App.5th 667.

Protect Our Neighborhoods (“Petitioners”), challenged the City of Palm Springs’ (“City”) adoption of an amended short-term rental ordinance in 2017. Specifically, petitioners challenged the City’s finding that the amended ordinance was consistent with the City’s zoning code, arguing that short-term rentals are commercial in nature and not residential. Petitioners also argued that because the ordinance defines short-term rentals as an “ancillary and secondary use,” single family homes cannot be used exclusively as short-term rentals. The trial court ruled in favor of the City, and Petitioners appealed.

The Fourth District Court of Appeal affirmed. The Court reasoned that though the language in the zoning code created a potential conflict, the City’s longstanding interpretation that “Vacation Rentals” are allowed in residential zones, and the later in time adoption of the amended ordinance reaffirming that interpretation to be applicable to short-term rentals warrants deference to the City’s interpretation of its own zoning code and held in favor of the City. The Court also rejected the claim that a single-family home could not be exclusively used for short-term rentals. It reasoned that even a “vacant” home retains its residential character, pointing to the zoning code’s definition of “dwelling” as “‘designed exclusively for residential occupancy’ [citations], not whether anyone actually resides there.”

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

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

 

Reserve your seat for our annual conference taking place in early 2022 for our virtual program.

On March 17-18, 2022, Abbott & Kindermann, Inc. will present its 21st annual virtual 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 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

March 17, 2022  Virtual Conference (To Register for the 3/17/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 3:00 p.m. – 5:00 p.m.

March 18, 2022 Virtual Conference  (To Register for the 3/18/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 10:00 a.m. – 12:00 noon

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE and AICP CM credits are available.

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

Reserve your seat for our annual conference taking place in early 2022 for our virtual program.

On March 17-18, 2022, Abbott & Kindermann, Inc. will present its 21st annual virtual 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 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

March 17, 2022  Virtual Conference (To Register for the 3/17/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 3:00 p.m. – 5:00 p.m.

March 18, 2022 Virtual Conference  (To Register for the 3/18/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 10:00 a.m. – 12:00 noon

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE and AICP CM credits are available.

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

Reserve your seat for our annual conference taking place in early 2022 for our virtual program.

On March 17-18, 2022, Abbott & Kindermann, Inc. will present its 21st annual virtual 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 2021 case law and legislative updates includes the following hot topics:

  • CALIFORNIA WATER RIGHTS AND SUPPLY
  • WATER QUALITY
  • WETLANDS
  • AIR QUALITY
  • CLIMATE CHANGE & RENEWABLE ENERGY
  • ENDANGERED SPECIES
  • HAZARDOUS MATERIALS & REMEDIATION
  • NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)
  • MINING, OIL AND GAS
  • STREAMBED ALTERATION AGREEMENTS
  • FOREST RESOURCES
  • CULTURAL RESOURCES PROTECTION
  • ENVIRONMENTAL ENFORCEMENT
  • GENERAL REAL ESTATE
  • COMMON INTEREST DEVELOPMENTS
  • REAL ESTATE CONTRACTS & TRANSACTIONS
  • EASEMENTS, ADVERSE POSSESSION, DEDICATIONS, & BOUNDARY DISPUTES
  • FEES, TAKINGS, AND EXACTIONS
  • CALIFORNIA ENVIRONMENTAL QUALITY ACT (“CEQA”)
  • PLANNING, DEVELOPMENT AND THE SUBDIVISION MAP ACT
  • LOCAL GOVERNMENT AND LOCAL GOVERNMENT ORGANIZATION

Details for each of the conference options are below.  We hope you can join us and we look forward to seeing you there.

March 17, 2022  Virtual Conference (To Register for the 3/17/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 3:00 p.m. – 5:00 p.m.

March 18, 2022 Virtual Conference  (To Register for the 3/18/2022 Virtual Program Click Here)

Format: 100% virtual event

  • Pre-recorded sessions made available at least ten days prior to the live session and held open at least a week after the live session
    • Registrants receive an email with a link to pre-recorded sessions
  • Live session where each attorney will be part of a Q&A live panel session to answer all your questions
    • Registrants will receive an email with Zoom link prior to live session

Registration Fee: $40.00

Program: 10:00 a.m. – 12:00 noon

Please register early to reserve your spot. Select the links above to see registration details for each option, as they differ. MCLE and AICP CM credits are available.

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

Welcome to Abbott & Kindermann’s 2021 4th Quarter cumulative CEQA update. This summary provides links to more in-depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

2020 CEQA UPDATE

To read the 2020 cumulative CEQA review, click here: https://blog.aklandlaw.com/2021/01/articles/ceqa/2020-ceqa-4th-quarter-review/

CASES PENDING AT THE CALIFORNIA SUPREME COURT

There is 1 CEQA case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

UPDATE

Ministerial Review

Mission Peak Conservancy v. State Water Resources Control Bd., (December 15, 2021) 2021 Cal.App.LEXIS 1052.

Plaintiffs sued the State Water Resources Control Board (the “Board”), alleging that the board violated the California Environmental Quality Act (“CEQA”) by granting a small domestic use registration to real parties-in-interest without first conducting an environmental review. Plaintiffs contended that the registration process was discretionary, not ministerial, and was therefore not exempt from CEQA. The trial court sustained the Board’s demurrer without leave to amend, holding that the registration was exempt from CEQA as a ministerial act. (Pub. Res. Code, §21080(b)(1).) On appeal, the Court of Appeal affirmed the judgment.

CEQA applies only to “discretionary projects” proposed to be carried out or approved by public agencies. (Pub. Res. Code, §21080(a).) A project is discretionary when an agency is required to exercise judgement or deliberation in deciding whether to approve an activity. Here, the Court noted that Plaintiffs pointed to no statute that granted the board authority to place conditions on the real parties’ registration to lessen its environmental effects. In fact, the only conditions the Board may have imposed were general conditions applicable to all registrations. Furthermore, the discretion of the California Department of Fish and Wildlife (the “Department”) to impose conditions that could ameliorate the project’s environmental impacts could not be imputed to the Board. The Department performed its review before the Board’s registration process is completed. Because plaintiffs could not explain how they could amend their petition to state a viable cause of action, the trial court properly sustained the board’s demurrer without leave to amend.

Ruegg & Ellsworth v. City of Berkeley (2021) 63 Cal.App.5th 277.

In the first published opinion interpreting Senate Bill 35 (“SB 35”), a statutory process to streamline review of eligible residential and mixed-use development projects, the developer filed suit challenging the City of Berkeley’s decision to deny the developer’s request to apply the SB 35 process to a mixed-use infill development on an existing parking lot. The City argued the project was ineligible for the following reasons: (1) the project violated the City’s requirements that projects meet certain performance standards for off-site impacts and not exceed certain amount and intensity of use requirements; (2) the project was located within a three-block area designated as a City Landmark for the state-listed historical resource known as the West Berkeley Shellmound (“Shellmound”), and would have, thus, violated the City’s Landmark Preservation Ordinance; and (3) applying SB 35’s requirements to the Project in light of the reasons above would violate the City’s rights as a charter city. The trial court agreed with the City and the developer appealed.

The First District Court of Appeal reversed, holding that the Project, pursuant to SB 35 was eligible for ministerial review and approval, and to do so does not violate the City’s charter authority. The court first held that applying SB 35 to the project would not violate the “home rule” doctrine regarding charter cities, reasoning that the Legislature may infringe on the City’s authority when it sufficiently articulates a statewide interest, such as was done in the adoption of SB 35 to “address[] the crisis level statewide lack of affordable housing by eliminating local discretion to deny approval where specified objective planning criteria are met.” As to the objective criteria under SB 35 regarding historical structures, the court held the Project was consistent because: (1) the Shellmound was not a structure as defined in SB 35 and was, thus, inapplicable; and (2) evidence in the record from a 2015 Draft EIR demonstrated that impacts on the Shellmound could be reduced to a less-than-significant level with mitigation.

Exemptions

Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951.

The Costco Wholesale Corporation (“Costco”) applied to the City of Tustin (the “City”) for a conditional use permit and design review approval to build a new 32-pump gas station project next to an existing Costco warehouse. The project site was located within an existing shopping center and surrounded by commercial uses. The project consisted of two components which totaled 2.38 acres of development and included: (1) 1.74 acres for the gas station and ancillary facilities, and (2) 0.64 acres which included demolition of an existing Goodyear Tire Center and development of parking spaces. Original planning and environmental assessment documents listed the project site size as nearly 12 acres, which was the total size of the existing shopping center. The City’s planning commission determined that the project was categorically exempt from environmental review under the California Environmental Quality Act (“CEQA”) pursuant to the Class 32, Infill Development Projects exemption. (CEQA Guidelines § 15332). Appellants appealed the planning commission’s decision, and the city council adopted a resolution affirming the categorical exemption and concluded that the unusual circumstances exception does not apply to the infill exemption. The appellant filed a petition for writ of mandate and argued that the project did not qualify for the infill exemption because (1) the 12-acre project site listed in the original documents exceeded the project size criterion available under the exemption, and (2) the project fell within the scope of the unusual circumstances exception. The trial court denied the writ petition, and following appeal the Court of Appeal affirmed the trial court’s decision.

For a project to qualify for an infill exemption, five criteria must be met: (1) the project must be consistent with the applicable general plan and zoning, (2) development must occur within city limits on a project site of no more than five acres substantially surrounded by urban uses, (3) the site must not be habitat for endangered, rare, or threatened species, (4) project approval must not result in significant effects to traffic, noise, air quality, or water quality, and (5) the site must be adequately served by utilities and public services. Here, Appellants argued that the project site exceeded the five acres permitted under the infill exemption. However, the Court of Appeal found that the administrative record contained substantial evidence confirming that development for the project was limited to 2.38 acres of the total 12-acre shopping center, including language within the revised environmental assessment form, technical documents, maps, and staff reports that specified the area of work. As to application of the unusual circumstances exception, a categorical exemption cannot be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. ((CEQA Guidelines § 15300.2(c)). Here, the appellant argued that the unusual circumstances applied because of (1) potential soil contamination from the former operations of the Goodyear Service Center, (2) unusually large number of fueling pumps, and (3) the efforts required to reroute traffic. However, the Court of Appeal found that substantial evidence supported the City’s conclusion that the project was not unusual in size compared to other developments that qualified for the infill exemption nor was the project unusual as to the zoning and land use conditions within the vicinity of the project. Therefore, the Court of Appeal found that the City correctly applied the infill exemption. 

Los Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018.

Petitioner challenged the County’s use of the commonsense exemption (CEQA Guidelines §15061(b)(3)), and the existing facilities exemption (CEQA Guidelines §15301) to support its condemnation proceedings to acquire fee simple title to three sites that the County currently leases and uses for landfills and the County’s continued operation of the landfills. In its decision certified for partial publication, the Fifth District Court of Appeal affirmed the trial court decision that: (1) no exhaustion was required because the County failed to give adequate notice that CEQA exemptions would be considered at the public hearing by the board of supervisors; and (2) that “facilities” in Section 15301 does not include the operation of unlined landfills.

Regarding exhaustion, the court reasoned that because the County’s hearing notice did not provide any notice of the CEQA grounds it would used to comply with CEQA, as stated in Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, issue exhaustion under Public Resources Code section 21177, subdivision (e), does not apply to petitioner’s claims when there is inadequate notice necessary to provide an “opportunity for members of the public to raise…objections” to those claims.

Regarding the application of “facilities” to unlined landfills, the court, relying on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 [“Azusa”], which held that the existing facilities exemption “should not be construed to include a large municipal waste landfill” affirmed the trial court’s rejection of the County’s use of Section 15301 because (1) the 1998 amendments to the CEQA Guidelines did not modify Section 15301 to include landfills despite the agency’s awareness of Azusa, and (2) the finding in Public Resources Code section 40000, subdivision (b), which states that “Over 90% of California’s solid waste currently is disposed of in landfills, some of which pose a threat to groundwater, air quality, and public health,” justifies the conclusion that “some” landfills, such as unlined landfills, are not a suitable class for a categorical exemption.

Mitigated Negative Declarations

McCann v. City of San Diego (2021) 70 Cal.App.5th 51.

Since 1970, the City of San Diego (the “City”) has converted its overhead, wooden-pole utility systems to an underground system. Project construction involved installing transformers every 8 to 14 homes, which were roughly three feet cubed and placed on 4’ by 4’ concrete pads. Appellant filed a petition for writ of mandate challenging the City’s approval of two sets of underground projects: (1) projects the City determined were exempt from CEQA (the “Exempt Projects”) and (2) projects for which the City adopted a mitigated negative declaration (the “MND Projects”). Appellant asserted that the above-ground transformer boxes required for the projects significantly impacted the environment and the City was therefore required to prepare an environmental impact report (“EIR”) for both sets of projects. The trial court denied Appellant’s petition, finding Appellant failed to exhaust administrative remedies for the Exempt Projects and failed to demonstrate that substantial evidence supported a fair argument that the MND Projects may have a significant impact on the environment. Appellant appealed, and the Court of Appeal affirmed all but one of the trial court’s findings.

Under CEQA, if a non-elected official determines a project is exempt, the agency must allow for an appeal to the agency’s elected decision-making body. (Pub. Res. Code §21151(c).) Here, the City Municipal Code provided that a person must file an application to appeal an environmental determination not made by the City Council within 10 business days of the determination. (City of San Diego Municipal Code Ch. 11 §112. 0520(b) (2000).) Appellant conceded that she did not file an administrative appeal but argued several exceptions to her failure to exhaust her administrative remedies. First, Appellant challenged compliance with due process principles after the City posted the Notice of Right to Appeal on the City’s website and only sent e-mails to City Council members and local planning groups, arguing that the process failed to reasonably notify all potentially impacted homeowners. The Appellate Court rejected this claim, noting that Constitutional rights to notice and hearing apply to land use decisions which substantially affect the property rights of owners of adjacent parcels, not agency decisions having only de minimus effect on land. (Citing, Horn v. County of Ventura (1979) 24 Cal.3d 605.) Here, the Court held that the City did not fail to comply with due process principles because: (1) a CEQA exemption decision is not a land use determination; and (2) Appellant failed to demonstrate that she was deprived of a significant property interest. Second, the Court of Appeal found that the City satisfied CEQA’s requirements by comporting with general notice requirements that the Legislature deemed sufficient for other CEQA determinations and, thus, provided adequate notice. It reasoned that because the CEQA Guidelines permit a public agency to delegate certain CEQA functions to staff, including exemption determinations (CEQA Guidelines §15022(a)(9)), the City was permitted to allow staff to make the exemption determination despite the requirement that the City Council approve the projects themselves. Thus, the Court of Appeal found that the City did not improperly bifurcate the environmental determination process.

As to the MND Projects, Appellant first alleged that the City violated CEQA by segmenting the projects rather than considering the projects as one citywide underground utility project. The Appellate Court rejected the claim, reasoning that the MND Projects are independent projects that do not rely on other undergrounding projects to operate. Second, Appellant argued that the City improperly deferred its decision on the precise locations of the transformer boxes to a later design phase of the project. However, the Court found the City need not identify the specific locations for the Projects, because the environmental impacts of the project were the same regardless of the transformers’ precise location. Third, Appellant asserted that substantial evidence supported a fair argument that the MND Projects would have significant impacts on aesthetics. The Court of Appeal rejected the claims, reasoning that Appellant’s testimony focused on asserted aesthetic impacts within her own neighborhood, which involved the Exempt Projects, not the MND Projects, and the testimony from another commenter was too vague and amounted to nothing more than an “expression of concern.” Finally, the Court of Appeal evaluated whether the City’s determination that the MND Projects would not have significant greenhouse gas (“GHG”) emissions impact was supported by substantial evidence. Here, the City prepared a checklist which among other things determined whether a project was consistent with the applicable strategies and actions of the Climate Action Plan (“CAP”). The Court noted that the consistency analysis checklist applied to projects that required a certificate of occupancy, which the MND Projects did not need. As a result, the Court held that the City erred in using the checklist to determine the MND Projects’ consistency with the CAP, because the checklist lacked a step to assess whether infrastructure projects were consistent with specific GHG reduction measures included in the CAP. Thus, the Court concluded that the City’s determination that the MND Projects’ did not have a significant impact on GHG emissions was not supported by substantial evidence.

Newtown Preservation Society v. County of El Dorado (2021) 65 Cal.App.5th 771.

Petitioner, Newtown Preservation Society, challenged the County of El Dorado’s (the “County”) adoption of a mitigated negative declaration (“MND”) for its approval of the Newtown Road bridge replacement project in a rural, fire prone area of the County. At issue was the adequacy of the hazards analysis evaluating whether the bridge replacement project would: (i) “impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan,” or (ii) “expose people or structures, either directly or indirectly, to a significant risk of loss, injury, or death involving wildland fires.” The County found the impacts to be less-than-significant, as a result of the various temporary evacuation routes that could be employed under different scenarios and testimony from the County Sheriff’s Emergency Services Office and the County’s Fire Protection District, which had concluded that the available evacuation options, including a potential temporary emergency access easement that would bypass the bridge construction and re-connect Newtown Road, were sufficient to manage an evacuation in the event of a fire incident in the area during the construction of the new bridge. Petitioners relied primarily on testimony from community members, including several that had extensive wildfire firefighting experience and asserted that they believed the plans were insufficient to protect lives in an emergency situation. The trial court upheld the County’s adoption of the MND for the project, and petitioners appealed.

The Third District Court of Appeal affirmed. Petitioners argued that the record contained substantial evidence of a fair argument that the project would have a significant safety impact and that an EIR was required. They pointed to a litany of comments from neighbors, including experienced wildland firefighters who provided opinion testimony as to the significant impacts on resident safety and emergency evacuation caused by the project. The appellate court rejected the assertion. First, relying on California Building Industry Assn. v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the court noted that CEQA requires a focus on the projects impact on the environment, not the environment’s impact on the project to conclude that petitioners had improperly framed the fair argument test. Instead, it held that the proper question was whether there was “substantial evidence supporting a fair argument that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.” For that reason, the court found that the testimony provided by the community was focused on concerns about the existing hazards affecting their community and not on any potential impacts caused by or exacerbated by the project. Furthermore, the court reasoned that none of the commenters with wildland firefighting experience had any “experience in determining, directing, or effecting evacuation routes.” Thus, it held the testimony amounted to non-expert opinion unsupported by a factual foundation, and therefore did not constitute substantial evidence.

Environmental Impact Reports

Save Civita Because Sudberry Won’t v. City of San Diego (December 16, 2021) 2021 Cal.App.LEXIS 1055.

The City of San Diego prepared an EIR for a project including a general plan amendment, community plan amendment, and a road design. Opponents sued, challenging the EIR on CEQA, Planning and Zoning law and due process grounds. The trial court ruled for the City, which was subsequently affirmed by the Court of Appeal (Fourth Appellate District.) The appellate court published the portion of the opinion dealing with recirculation as well as the due process claims.

CEQA

Originally, the City had circulated a programmatic document, not including the analysis of road construction. In response to public comments, the City then released a recirculated draft EIR which included a project level of analysis addressing road construction, thus shifting from a programmatic review to a project level CEQA analysis. The project opponents (“Civita”) argued that the lead agency failed to adequately summarize the changes in a manner consistent with CEQA Guidelines section 15088.5. In fact, the evolution of the project and CEQA analysis was addressed in the public Notice of Availability, the project description, the discussion of the history of the project, the executive summary and the responses to comments. Additionally, the City argued that the nature of the changes were so extensive that the use of a redlined document would make the document more confusing for the reader. Finally, the City argued that there was no prejudice as of the result of the City circulating the expanded CEQA analysis. The trial court and appellate court agreed. The appellate court noted: “In sum, where a recirculated EIR states that it is replacing a prior EIR and the agency makes clear the overall nature of the changes (as the City did in this case), and states that prior comments will not receive responses, the agency may be said to have complied with the Guidelines requirement that it ‘summarize the revisions made to the previously circulated draft EIR.’”

Comment: Legal credit goes to the lead agency for being forthright in describing the transformation. In circumstances in which the recirculated document does not displace the original documents (as it did in Civita), then lead agencies need to be concerned with how to summarize the changes. It is safe to predict that no matter how extensive the lead agency’s description of changes is, the opponents will argue for more. As relatively unimportant as this practice issue may seem, CEQA practitioners know that process matters when there is litigation.

Due Process

Civita also argued that it was deprived a fair hearing, based upon bias allegedly demonstrated by a city council member. The threshold legal question was: was the city council acting in a quasi-legislative or quasi-adjudicatory manner? This question is important as due process requirements are elevated when quasi-judicial decisions are at stake. It is well established in California that plan level approvals and amendments are legislative in character, as was approval of the construction of a road. As to CEQA, the CEQA document follows the characterization of the project approvals. Accordingly, the CEQA action would also be viewed as quasi-legislative in character. Accordingly, the appellate court rejected Civita’s arguments for elevated due process rights. This threshold issue then set the stage for the specific due process claim.

The underlying issue involved communications from the city councilman’s office to members of the community in support of the project. As the trial court noted, these were communications from the councilman’s staff, not the councilman (a fine line of distinction for certain). In the trial court’s view, the office was entitled to communicate with constituents (a point also noted in a footnote by the appellate court). As elevated due process requirements did not apply to the City Council action, there was no grounds to reverse the trial court decision rejecting the unfair hearing claim.

Friends v. California Coastal Commission, (November 15, 2021) 2021 Cal.App.LEXIS 1038.

The California Coastal Commission considered an appeal of Monterey County’s approval of a coastal development permit (“CDP”) for a mixed-use project on approximately 34 acres that included 80 residential units, a small commercial component, and nearly 10 acres of common area for recreation, two mini-parks, and a small parking lot. The County supported its decision by the certification of an environmental impact report (“EIR”). Commission staff’s review of the project led to the elimination of the commercial component and reduced the total residential units to 54. Despite the project reductions, Commission staff concluded that the project failed to comply with the Local Coastal Plan (“LCP”) policies regarding water supply and environmental sensitive habitat areas (“ESHA”) and brought the project to the Commission with a recommendation for denial of the project. In the November 2017 staff report for the disapproval recommendation, staff described its interpretation of the project’s inconsistencies with LCP policies and noted that even if the project was consistent with those LCP policies, additional CEQA analysis would be required to approve the project. Despite the recommendation for denial, the Commission voted 7-5 to approve the CDP, and Commission staff prepared an updated staff report, with the necessary findings and CEQA analysis to support the decision. The updated staff report was released in August 2018, and a public hearing to consider the revised CEQA analysis and project findings was held in September 2018. The Commission adopted the revised findings stating the findings “reflected [their] thought process” when the CDP was approved in late 2017.

Friends, Artists and Neighbors of Elkhorn Slough (“Friends”) subsequently filed suit, challenging the Commission’s approval of the CDP arguing the decision violated the Coastal Act, CEQA and the Planning and Zoning laws. Friends argued that the Commission violated CEQA by approving the project prior to completing the environmental review and improperly adopting post-hoc rationalizations in its 2018 approval findings. The trial court rejected the claims, reasoning that the Commission’s decision was adequately supported in the 2017 staff report, and that the 2018 adoption was not based on new evidence; rather, a different view of how the LCP policies applied to the project. Friends appealed and the Court of Appeal reversed.

The Court of Appeal focused on Title 14, section 13096, subsection (b), of the California Code of Regulations, which requires the approving Commissioners to “state the basis for their action in sufficient detail to allow staff to prepare a revised staff report with proposed revised findings that reflect the action of the commission.” Subsection (c) further requires the subsequent public hearing to “solely address whether the proposed revised findings reflect the action of the commission.” Applying these requirements, the Court of Appeal held that because “none of the commissioners at the de novo hearing expressed a view regarding alternatives, mitigation measures, or conditions that might be necessary to address significant adverse effects the project may have on the environment,” the Commission failed to comply with CEQA. It reasoned that it wasn’t until the August 2018 staff report that the required analysis was completed which was after the Commission had already made its decision in late 2017.

Central Delta Water Agency v. Dept. of Water Resources (2021) 69 Cal.App.5th 170.

In the latest of a nearly three decades long dispute over water through the State Water Project and the Monterey Agreements, the Third District Court of Appeal consolidated three appeals involving the Monterey Agreement, the Monterey Amendment, and the Monterey Plus EIR between the Department of Water Resources and petitioners Central Delta Water Agency (“CDWA”), Center for Biological Diversity (“CBD”), and Center for Food Safety (“CFS”), respectively. Each petitioner appealed the trial court’s decision as follows: (1) CDWA appealed the court’s denial of its claim that DWR improperly assumed the Agreement and the Amendment remained in place as part of its project description and that the EIR failed to consider a “no project” alternative that assumed the Amendment was not operative; (2) CBD appealed the court’s denial of its motion for attorneys fees for the failure to file within the 30-day statute of limitations under validation causes of action; and (3) CFS appealed the court’s denial of its claim regarding the inadequacy of the EIR’s analysis of water supply impacts resulting from crop conversions from annual crops to permanent crops. The Appellate Court affirmed each of the trial court’s decisions:

  • As to CDWA, the Court reasoned that under Public Resources Code section 21168.9 the trial court had the discretion to leave the contracts in place while CEQA review was undertaken. Thus, it concluded that the trial court’s reasoning that the unusual nature of a previous Settlement Agreement and its express intent to allow DWR to “study and consider the impacts of the changes in SWP operations resulting from implementation of the Amendment” provided sufficient support for leaving the contracts in place. As a result, the Court also reasoned that the “no project” alternative sought by CDWA was properly rejected because it failed to meet the project’s primary objective which was the negotiated compromise of claims relating to the prior operation of the SWP.
  • As to CBD, the Court held that the trial court properly rejected the motion for attorneys fees despite its success on the merits under CEQA because it was untimely. It reasoned that because the claims involved both CEQA claims, which allow for a 60-day deadline for motions for attorneys fees, and a reverse validation claim, which allows for a 30-day deadline for motions for attorneys fees, the shorter validation claim deadline applies as a result of the final judgment rule.
  • As to CFS, the Court held that the EIR’s analysis of crop conversion and findings that such conversions were not caused by the project was sufficiently supported by substantial evidence. It reasoned that the EIR analyzed crop conversion trends both inside the project boundary and outside the area and found the trends were not unique to the project area and were most likely the result of higher commodity prices, not water supply reliability.

Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86.

In a partially published opinion, the Third District Court of Appeal reversed the trial court’s decision rejecting petitioner Sierra Watch’s claims challenging the County of Placer’s EIR in support of the development of a resort project on about 94 acres in Olympic Valley, the site of the 1960 Winter Olympics. The project would include an 85-acre parcel for up to 850 lodging units, nearly 300,000 square feet of commercial space, and over 3,000 parking spaces called the Village, and an 8.8-acre parcel to house up to 300 employees called the East Parcel. The trial court rejected all of petitioner’s claims, and petitioner appealed. In the published portion of the decision, the appellate court considered the adequacy of the description of the environmental setting, and the adequacy of the analysis as to construction noise impacts.

Regarding the environmental setting, the court held that the description failed to meaningfully acknowledge the project’s location and potential effects on Lake Tahoe, particularly as to water quality and air quality impacts. As for water quality, the court reasoned that the failure to sufficiently acknowledge the project’s regional relationship with Lake Tahoe led to the failure to adequately consider the regional VMT effects on lake clarity due to tailpipe emissions and crushed abrasives which were only acknowledged after the FEIR was released and six days prior to the County’s approval of the project. Similarly, the court held that the EIR was defective because it failed to adequately disclose its analytic route to its air quality impact conclusions. It reasoned that the County’s discussion of Lake Tahoe Basin air quality impacts from VMT was confusing because it both considered various Tahoe Regional Planning Agency thresholds used in prior EIRs, concluding that the project would exceed the project-level threshold, but not the cumulative threshold for the Basin, then “simply declared that TRPA’s thresholds were inapplicable because the project is not located in the basin.” It further explained that despite this conclusion, the EIR never explained what standard did apply, nor provided any clear conclusion as to the significance of the impact from project traffic on Lake Tahoe and the basin, and it only belatedly acknowledged its underestimation of cumulative VMT in the basin that failed to account for additional VMT from other anticipated projects in the same acknowledgement six days prior to project approval.

Regarding construction noise, the court rejected petitioner’s claims regarding the County’s failure to disclose the duration of construction of the Village, reasoning that the EIR adequately explained the reasons why specific details were not possible because the Village construction was expected to occur over 25 years, there was no specific plan as to where buildings would be located, and that construction was likely to be sporadic, to conclude that an EIR need not speculate as to project impacts, citing CEQA Guidelines section 15145. The court did, however, agree with petitioner’s claim that the EIR erroneously limited its impact analysis on nearby sensitive receptors located within 50 feet of expected construction activity. It reasoned that though the EIR thoroughly evaluated those impacts at 50 feet, the failure to consider any sensitive receptors located further than 50 feet was arbitrary and unsupported. Finally, the court also agreed with petitioner’s claim that certain noise mitigation measures was inadequate because it failed to include adequate performance standards. It reasoned that a requirement that “operations and techniques shall be replaced with quieter procedures…where feasible” was nothing more than “tell[ing] contractors to be quieter than normal, when they can” leaving the determination of which procedures can be changed and they can be made quieter to a later time without any standards or instructions.

Save Our Access v. Watershed Conservation Authority (2021) 68 Cal.App.5th 8.

Petitioner filed suit challenging the adequacy of an EIR prepared by the defendant Watershed Conservation Authority (“Authority”) to “expand recreational access, increase investments in restoring landscapes, and protect resources important to the history and heritage of the United States” within a 198-acre portion of the San Gabriel Mountains National Monument near the East Fork of the San Gabriel River. More specifically at issue in the litigation, the project proposed to make parking improvements, including expanding the paved parking areas numbering 48 spaces in total to be able to accommodate a total of 270 cars and three buses, and eliminate undesignated parking areas along the shoulders and other wide spots along the side of the roads. Defendant estimated this would represent a reduction in total parking spaces from an estimated 417 available parking spaces to 273. Petitioner claimed the baseline number was 473. Despite the difference in spaces, the Authority had argued that the impacts of reduced parking were minimal because visitors would likely seek out one of the other eight recreational facilities available within 25 miles of the project site. The trial found the EIR failed to support its parking baseline determination with substantial evidence, thus undermining its conclusion that the direct or secondary impacts due to the reduction in parking were insignificant, but rejected all of petitioner’s other claims. Both parties cross-appealed. The appellate court reversed as to the parking-related claims.

Citing San Franciscans Upholding the Downtown Plan v. City & County of San Francisco (2002) 102 Cal.App.4th 656, the appellate court held that inadequate parking is primarily a social impact and that petitioner failed to adequately identify substantial evidence of any potential secondary effects on the environment resulting from defendant’s failure to adequately disclose “baseline parking conditions.” It reasoned that though both parties failed to support their baseline figures with substantial evidence, the minimal difference between 417 spaces and 473 spaces as compared to the large number of major recreational facilities available in the area made it “irrational to conclude there would be any significant deterioration of the other recreation facilities.”

The court also rejected petitioner’s claim that the EIR violated CEQA when it only considered the “no project” alternative. It reasoned that the alternatives proposed by the public were properly rejected because they would not feasibly accomplish most of the basic project objectives, and that the analysis of only a “no project” is permissible under the facts of this case as stated in San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.

Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444.

In a partially published decision, the First District Court of Appeal reaffirmed prior rulings regarding administrative exhaustion under CEQA, and deference to an agency’s general plan consistency determinations. As to exhaustion, the court, citing Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, held that Petitioner failed to meet its burden of showing compliance with the County’s local procedures which required Petitioners “to show it timely filed a notice of intent to appeal and timely submitted an appeal packet which specifically identified the grounds it raise[d] in this court action.” It reasoned that because Petitioners have the burden to demonstrate exhaustion, “a list of string-cites to the administrative record without explanation as to how each supports the assertions the public agency was ‘fairly appraised’ of the asserted noncompliance with CEQA, is not sufficient.” As for challenges to the County’s general plan consistency determination, the appellate court pointed to several instances in the record where County decisionmakers evaluated and considered potential project inconsistencies with the general plan and ultimately concluded that the project was consistent. Thus, it found that the Board’s decision was entitled to substantial deference.

Santa Clara Valley Water Dist. v. San Francisco Bay Reg’l Water Quality Control Bd. (2020) 59 Cal.App.5th 199.

Petitioner, Santa Clara Valley Water District (“District”), filed suit challenging the San Francisco Bay Regional Water Quality Board’s (the “Board”) addition of new mitigation requirements when issuing an order adopting Waste Discharge Requirements (“WDRs”) for the District’s flood control project. The District argued the Board’s action was unlawful, because the District had already completed CEQA review with its approval, and the Board had been an active participant as a responsible agency. As a responsible agency, the District argued CEQA Guidelines section 15096, subdivision (e), required the Board to either accept the adequacy of the EIR as-is, or take one of three actions: (i) file suit challenging the EIR, (ii) prepare a subsequent EIR, if allowed under CEQA Guidelines section 15162, or (iii) assume the lead agency role of the original EIR. The First District Court of Appeal upheld the Board’s imposition of additional mitigation requirements under the WDR. It reasoned that despite the limitations imposed on responsible agencies under CEQA Guidelines section 15096, the Savings Clause in Public Resources Code section 21174 (“No provision of this division is a limitation or restriction on the power or authority of any public agency in the enforcement or administration of any provision of law which it is specifically permitted or required to enforce or administer….”), supported its conclusion that “nothing in CEQA, including CEQA Guidelines section 15096, subdivision (e), or the statutes on which it is based, bars the Board from fulfilling its independent obligation to enforce the Porter-Cologne Act.”

Subsequent Review

California Coastkeeper Alliance v. State Lands Commission (2021) 64 Cal.App.5th 36.

In a case certified for partial publication, Petitioner, California Coastkeeper Alliance (“Coastkeeper”), filed suit challenging the State Lands Commission’s (the “Commission”) adoption of a Supplemental EIR as a responsible agency in support of the proposed changes to the Poseidon desalination plant located in Huntington Beach as part of Poseidon’s proposed lease modification with the Commission. Specifically, Coastkeeper argued the Commission was required to take on the lead agency status and perform the related obligations that status would impose. The trial court denied Coastkeeper’s claims and Coastkeeper appealed. The appellate court affirmed.

To address the question posed by Coastkeeper’s lead agency status claim, the court first looked to the legal adequacy of the Commission’s decision to prepare a Supplemental EIR, rather than a Subsequent EIR. Relying on Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937, the appellate court found that the Commission properly relied on substantial evidence to conclude: (1) the prior environmental documents still retained relevance in light of the proposed project changes through the lease modifications; (2) the prior documents continue to have informational value; and (3) that the minor changes to the project would necessitate “only minor additions or changes…to make the previous EIR adequately apply to the changed situation.”

Next, the court addressed Coastkeeper’s claim that CEQA required the Commission to take on lead agency status to do so. Coastkeeper relied on CEQA Guidelines section 15052, which describes the situations where a responsible agency should assume the role of lead agency, to contend that the Commission was required to assume lead agency status to adopt the Supplemental EIR. Coastkeeper argued that Public Resources Code section 21166 establishes the same test for when “no subsequent or supplemental environmental impact report” is required, and thus, whether a subsequent or supplemental EIR is ultimately prepared the element at issue in CEQA Guidelines section 15052(a)(2)(A) (“A subsequent EIR is required pursuant to Section 15162;”) has been met. The court rejected the claim and held that this requirement is only applicable to the preparation of subsequent EIRs. It reasoned that the plain language in CEQA Guidelines section 15052(a)(2)(A) (“A subsequent EIR is required pursuant to Section 15162;”) expressly distinguished between subsequent EIRs and supplemental EIRs because subsequent EIRs fall under section 15162, while supplemental EIRs fall under section 15163.

CEQA Litigation

South Coast Air Quality Management Dist. v. City of Los Angeles (2021) 71 Cal.App.5th 314.

In 2001, Defendants issued a permit to China Shipping Holding Co., LTD. (“China Shipping”) to build a shipping container terminal within the Port of Los Angeles. In 2008, Defendants completed an environmental impact report (“EIR”) for the terminal project and adopted over 50 mitigation measures to reduce the environmental impacts. The 2008 EIR specified that the lease with China Shipping would be amended to incorporate the mitigation measures, however the amendment did not occur. In 2020, the City Council approved a revised environmental analysis for the terminal that eliminated and modified some of the 2008 mitigation measures and recognized that the terminal emissions would have significant and increased impact on air quality. China Shipping refused to implement the mitigation measures and the South Coast Air Quality Management District (the “Air District”) filed a petition for writ of mandate challenging the decision to certify the 2020 supplemental report and requesting to set aside the approvals for the terminal project and the permit, pending compliance with CEQA. Subsequently, a labor union filed a motion seeking permissive intervention claiming that up its members stood to lose their jobs should the Air District obtain relief. The trial court denied the Union’s motion and the Union subsequently appealed.

The court has discretion to permit nonparties to intervene in a lawsuit provided the following four factors are met: (1) the nonparty follows proper procedures; (2) the nonparty has direct and immediate interest in the action; (3) intervention will not enlarge the issues; and (4) the reasons for intervention outweigh any opposition by the existing parties. (Code of Civil Procedure § 387, subd. (d)(2).) The Court of Appeal focused on the fourth factor and found that the Union’s participation would be largely cumulative and would unduly complicate the case. First, the Union’s position on the merits was duplicative with the Defendants, who also sought to advocate for a remedy that maintained operations of the terminal and thus ensured job security. Additionally, the Union stated that the terminal provided almost 3,075 direct jobs and nearly 80,000 indirect jobs in the Los Angeles region. Thus, permitting the Union intervention would spur representatives of the other tens of thousands of jobs connected to the terminal, which would make the case unmanageable. For these reasons the Court of Appeal affirmed the trial court’s decision to deny the Union permissive intervention.

Farmland Protection Alliance et al. v. County of Yolo (2021) 71 Cal.App.5th 300.

Yolo County and its board of supervisors (the “County”) adopted a revised mitigated negative declaration and issued a conditional use permit to real parties in interest to operate a breakfast and commercial event facility on agriculturally zoned property. A suit followed and the trial court found that substantial evidence supported a fair argument under the California Environmental Quality Act (“CEQA”) that the project may have significant impact on three species. The trial court ordered the County to prepare an environmental impact report (“EIR”) limited in addressing only the project’s impacts on the three species and permitted the project to continue to operate pending further environmental review. Plaintiffs appealed and the real parties in interest cross appealed. In the published portion of the opinion, the Court of Appeal only addressed the Plaintiffs contention that the trial court violated CEQA by ordering the preparation of a limited EIR rather than preparing an EIR for the proposed project. (Pub. Res. Code §§ 21061, 21168.9.)

If an initial study of a project uncovered substantial evidence that any aspect of the project, either individually or cumulatively, may cause a significant effect on the environment, the agency must prepare a full EIR. (Citing, Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123.) The County argued that the trial court had discretionary authority to craft a proper remedy after finding certain parts of a finding did not comply with CEQA and nothing precluded the court from imposing appropriate lesser remedies to an EIR. (Pub. Res. Code § 21168.9.) However, the Court of Appeal clarified that nowhere in CEQA or common law suggests that a project’s impact analysis may be divided such that some impacts are analyzed in a mitigated negatived declaration and others are analyzed in an EIR. Thus, the Court of Appeal found that section 21168.9 was enacted to provide the trial court with flexibility in fashioning remedies to ensure compliance with CEQA and did not override other mandatory provisions of CEQA. Here, given that the trial court found that the fair argument test had been met as to the three species, the only available remedy was to set aside the County’s decision to adopt the revised mitigated negative declaration as an abuse of discretion in failing to proceed in a manner required by law. 

Save Berkeley’s Neighborhoods v. The Regents of the University of California (2021) 70 Cal.App.5th 705.

Plaintiff filed a petition for writ of mandate pursuant to the California Environmental Quality Act (“CEQA”) challenging a proposed project to develop academic residential, and parking buildings on Berkeley’s campus. (Pub. Res. Code, § 21000 et seq.) The developer and ground lessee (collectively “Appellants”) were listed as the parties undertaking the project in the Notice of Determination (“NOD”). Plaintiff filed an amended petition for writ of mandate seeking to add Appellants as real parties in interest. In response, Appellants filed demurrers asserting Plaintiff failed to name them as parties within the applicable statute of limitations. (Pub. Res. Code § 21167.6.5(a).) The trial court sustained their demurrer without leave to amend but declined to dismiss the petition because it concluded Appellants were not indispensable parties after applying Code of Civil Procedure section 389(b) balancing factors. Appellants appealed arguing that they were presumptively indispensable parties because they were identified as entities undertaking the project in the NOD, thus supplanting the equitable balancing test in CPP section 389(b). Plaintiff cross-appealed arguing the trial court erred in concluding it failed to name and serve Appellants within the applicable statute of limitations. The Court of Appeal affirmed.

Appellants argued that the Legislature replaced the CCP section 389(b) balancing test with a presumption of indispensability when it enacted Assembly Bill No. 320 (2011-2012 Reg. Sess.) (“AB 320”). AB 320 amended in relevant part sections 21108 and 21167.6.5 of the Public Resources Code to clarify which people must be named as real parties in interest. Appellants asserted that the Legislature intended dismissal as the sanction for failure to comply with section 21167.6.5. However, the Court of Appeal found that the legislative history demonstrated that AB 320 only clarified who constituted a real party in interest but did not alter evaluating whether the real party in interest was indispensable to the action. Thus, the Court of Appeal found that the trial court did not err in applying CCP section 389(b). In applying the CCP section 389 balancing factors the trial court found that the Regents and Appellants had a strong unity of interest because both parties benefitted in having the project proceed in a timely manner and the Plaintiff would not have an adequate remedy if the action was dismissed as the statute of limitations had run. Thus, the Court of Appeal found that the trial court did not abuse its discretion in concluding that Appellants were not indispensable parties to the litigation. Additionally, Plaintiff argued that the NOD failed to adequately describe the project and thus did not trigger the statute of limitations period. An action challenging the adequacy of an EIR must be commenced within 30 days after the county clerk posts the NOD. The limitations period does not begin to run if the NOD is substantively defective in failing to properly describe the lead agency’s actions. Plaintiff argued that the project description failed because it failed to mention the environmental impacts of student enrollment increases that the SEIR analyzed. The Court of Appeal found that omitting this portion of the SEIR was not a substantial defect in the NOD because the purpose of the project was not to promote future growth in the student body but rather to respond to a lack of resources for the current community. Thus, the 30-day statute of limitations applied to Plaintiff’s petition.

Pacific Merchant Shipping Assn. v. Newsom (2021) 67 Cal.App.5th 711.

In 2018, the Legislature adopted Assembly Bill 734 (“AB 734”), a special statute similar in nature to Assembly Bill 900 (“AB 900”) adopted in 2011 for expedited judicial review of “Environmental Leadership Development Projects” under CEQA. AB 900 has been used over the years to benefit certain very large, environmentally beneficial, jobs producing projects, including mixed-use developments with a major sports venue component. Under AB 900, the Governor was required to certify the project’s compliance with a laundry list of requirements by January 1, 2020, and was set to fully expire on January 1, 2021. AB 734 was designed to assist the development of a new Oakland A’s stadium, along with mixed-use, including residential, retail, and commercial uses at Howard Terminal (“Howard Terminal Project”). AB 734 expressly relied on the Governor’s AB 900 guidelines for the “implementation” of AB 734 “to the extent the guidelines are applicable and do not conflict with specific requirements” of AB 734. Pursuant to the statute’s requirements, the A’s submitted an application for certification in March 2019, In August 2020, the California Air Resources Board made its required finding that the project would meet strict greenhouse gas emission reduction targets identified in AB 734, and Governor Newsom certified the Howard Terminal project in February 2021. Petitioners filed suit alleging that the Governor’s certification was invalid because under AB 734 his authority to certify expired along with AB 900 on January 1, 2020. The trial court rejected petitioners’ claims and petitioners appealed.

The appellate court affirmed. The court first found that whether AB 734 incorporated AB 900’s deadlines was ambiguous, thus requiring the court to consider the legislative history to determine the Legislature’s intent. The Court noted the early records which indicated that AB 734’s author specifically chose a standalone bill because the Project would be unable to meet the AB 900 deadlines, and the Legislature, thus, had to consider whether to extend AB 900’s deadlines or leave AB 734 as a standalone bill. Having reviewed the legislative record, it reasoned that leaving the statute as a standalone bill meant the Legislature did not intend to incorporate AB 900’s deadlines. It further reasoned that the lack of deadlines in AB 734 provided additional support for this conclusion, and that incorporating AB 900’s deadlines would undermine the purpose of AB 734, given the known the project was unlikely to meet those deadlines.

Save Lafayette Trees v. East Bay Regional Park District (2021) 66 Cal.App.5th 21.

On March 21, 2017, the East Bay Regional Park District (the “District”) Board of Directors (the “Board”), held a public hearing and approved the acceptance of funding from PG&E for “environmental restoration and maintenance at Briones Regional Park and Lafayette-Moraga Regional Trail.” By March 23, 2017, representatives of the District and PG&E had fully executed a Memorandum of Understanding regarding the “implementation of the Community Pipeline Safety Initiative on [District] property in Contra Costa County” with the approved funding. The District did not file a Notice of Exemption at that time, but did file one on June 27, 2017. Petitioner later entered into a tolling agreement with the District on July 31, 2017, for 60 days, but PG&E was not a party to that agreement. On September 29, 2017, Petitioner filed suit. PG&E filed a demurrer and the trial court sustained without leave to amend holding the claims were time-barred.

The First District Court of Appeal affirmed. It held that Petitioner’s lawsuit failed to meet either the 35-day or 180-day statute of limitations for filing CEQA claims. First, it reasoned that because PG&E was a “necessary party” within the meaning of Code of Civil Procedure section 389, subdivision (a), Petitioner’s tolling agreement with the District was not binding on PG&E because they were not a signatory. Second, Petitioner claimed that the statute of limitations did not run until several weeks after the Board’s action on March 21, 2017, because neither the online agenda notice nor “the accompanying description of the Board Resolution in question mentioned or even implied that any trees would be removed,” and they did not become aware of the tree removals until several weeks later. The court rejected the claim and set the statute of limitations period on March 21, 2017, reasoning that because the staff report for the hearing stated that “245 trees are located too close to the pipeline and will be removed for safety reasons,” Petitioner had constructive notice on that date. As a result, it held that the claims were filed 11 days too late.

Dunning v. Clews (2021) 64 Cal.App.5th 156.

In an unusual case involving a post-CEQA litigation malicious prosecution lawsuit, the real-party-in-interest in the successful CEQA defense (the “Academy”) sought damages against petitioners and their attorneys for their purported “meritless lawsuit” that challenged the County’s adoption of a mitigated negative declaration (“MND”) for a 75-student school proposed to be located adjacent to petitioners’ horse ranch and riding academy. The CEQA claims challenging the MND included potentially significant impacts from wildfire risks, to recreational resources, traffic, and noise, which was supported by a noise study that established that noise generated from the school was expected to be substantially less than ambient conditions and, thus, not a significant impact. (See Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.) Petitioners and their attorneys filed an anti-SLAPP motion to strike the malicious prosecution complaint, and the trial court denied the motion finding that the Academy established a probability of prevailing in its malicious prosecution claim. Petitioners and their attorney defendants appealed.

The appellate court upheld the trial court decision as to the Petitioners, but reversed as to their attorneys. As to the first prong in a malicious prosecution analysis, the court held that the Academy met its burden by establishing that Petitioners and their attorneys did not have probable cause for pursuing its claims of project noise impacts. It reasoned that Petitioners evidence concerned the potential fiscal and operational impacts on the horse ranch and riding academy and not the potential noise impacts on the environment, particularly in light of the noise study prepared by the Academy. As to the second prong requiring the establishment of malice, the court held malice was established as to the Petitioners, but not as to their attorneys. As to Petitioners, it reasoned that bad faith settlement negotiations, and a history of harassment against previous owners of the Academy property demonstrated a prima facie showing of malice. However, as to their attorneys, the court refused to infer the improper motives of their clients due to a lack of substantiating evidence supporting the theory.

Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.

In a case that hinged on the fine line between issue exhaustion and administrative exhaustion, Plaintiffs filed suit challenging the San Francisco (“City”) Historic Preservation Commission’s (“HPC”) decision to authorize the removal of an 1894 monument called “Early Days” and place it in storage, finding the removal was categorically exempt from the California Environmental Quality Act (“CEQA”). Plaintiffs challenged the decision on several grounds, including CEQA. At the trial court, the City filed for demurrer arguing the Plaintiffs had failed to exhaust its administrative remedies when they only appealed the HPC decision to the City’s Board of Appeals, which had no jurisdiction under CEQA, and not to the Board of Supervisors. The trial court granted the motion without leave to amend and Plaintiffs appealed.

The appellate court affirmed. Plaintiffs argued that the exhaustion requirement was excused when the HPC’s hearing notice failed to mention CEQA. Public Resources Code section 21177 requires litigants to raise CEQA issues during the administrative process before filing suit, but that requirement is waived where notice of the hearing is defective. The Court of Appeal agreed the notice was defective, finding that the City failed to provide adequate notice of the HPC hearing as to CEQA, and Plaintiffs’ obligation under section 21177 was waived. However, the Court, relying on Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, drew the distinction between exhaustion of the CEQA issues and the judicially created doctrine requiring litigants to exhaust all administrative procedural options available. Here, the Court held that Plaintiffs’ did not fully exhaust their administrative remedies. It reasoned that an appeal to the Board of Supervisors was required because: (i) Plaintiffs had actual notice of the CEQA determination and raised it at the Board of Appeals hearing; and (ii) the Board of Supervisors was the final arbiter over CEQA determinations.

Organizacion Comunidad de Alviso v. City of San Jose (2021) 60 Cal.App.5th 783.

Petitioners challenged the city’s certification of an environmental impact report (“EIR”) for a project to rezone fallow farmland to allow light industrial uses. Petitioners had requested from staff to receive notice of all project including hearing notices and the notice of determination (“NOD”) for the EIR. During the processing of the application, the original applicant sold the property to Microsoft, which took over as the applicant. The EIR was ultimately certified, the project was approved, and the city issued an NOD and sent a copy to Petitioners, though it incorrectly identified the prior owner as the real party in interest. Five days later, a second corrected NOD was properly filed, but no copy was provided to petitioners. Petitioners timely filed suit, naming the prior owner as the real party in interest rather than Microsoft. About two weeks after the 30-day statute of limitations had run, the original owners attorney notified Petitioners that Microsoft was the actual real party and a second NOD had been filed. Approximately a month later, Petitioners filed an amended petition naming Microsoft, more than 70 days after the second NOD was filed. City and Microsoft filed a demurrer arguing the claims were time-barred. The trial court granted the demurrer and dismissed the suit with prejudice. Petitioners appealed.

The appellate court affirmed. Petitioners argued that the city’s failure to provide a copy of the second notice rendered the filing defective which would extend the statute of limitations to 180 days. The Court held that though the city had failed to comply with its obligation to provide notice to Petitioners as required under CEQA, Public Resources Code section 21167, subdivision (f), only extends the statute of limitations when an NOD was materially defective which was not the case, thus, the 30-day deadline was applicable here. Petitioners also argued that the City’s filing of the NOD did not provide actual or constructive notice when it failed to provide a copy to a Petitioner that properly requested it. The Court rejected this argument as well, noting that Petitioners had attended the hearings where Microsoft was properly identified as the real applicant and were, therefore, provided actual notice.

Petitioners then sought to alternatively apply the relation back doctrine which would allow the replacement of a Doe defendant named in the petition to be replaced with Microsoft, but the Court again rejected that option. It reasoned that the relation back doctrine requires Petitioners to be genuinely ignorant of the identity of the defendant, which was not the case here because the second NOD, by law, provided Petitioners with notice of the defendant’s identity. Furthermore, the Court reasoned that Petitioners had actual notice from attending the hearings, and the had delayed filing the amended petition for a period of time longer than the initial limitations period after being notified of the second NOD. Finally, Petitioners argued that Court should apply equitable estoppel principles to allow for the untimely filing due to the failures of the City in providing notice to Petitioners, but the Court rejected that claim as well due to the constructive notice of the properly filed second NOD.

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

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

Welcome to Abbott & Kindermann, Inc.’s December Environmental Action News. This summary provides brief updates on recent environmental cases, legislation, and administrative actions in 2021.

  1. PREVIOUS MONTH’S UPDATE

To read the November 2021 Environmental Action News post, click here:

https://blog.aklandlaw.com/2021/11/articles/ak-news/november-environmental-action-news-2/

  1. SUPREME COURT

There is one case pending at the California Supreme Court. The case and the Court’s summary is as follows:

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate.  This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project?  (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

  1. UPDATE

A. WATER RIGHTS AND SUPPLY

  1. Mississippi v. Tennessee,595 U.S. ___ (2021) – Supreme Court Unanimously Denied Mississippi’s Claim Against Tennessee Over Alleged Water Theft And Extends Equitable Apportionment Doctrine To Interstate Aquifers.

The U.S. Supreme Court unanimously rejected Mississippi’s claim that Tennessee was illegally stealing its water. Mississippi’s $615 million lawsuit alleged that Memphis, Tennessee, illegally “siphoned” groundwater from the Middle Claiborne Aquifer that was subject to Mississippi’s sovereign ownership. While Memphis’s pumps were within the state of Tennessee, Mississippi alleged that more than 400 billion gallons of groundwater were pulled into Tennessee due to the pumps. The Supreme Court rejected this argument and held that water from the Middle Claiborne Aquifer is subject to the equitable apportionment doctrine that has previously applied only to shared surface waters. Equitable-apportionment law seeks to balance the states’ sovereign interests in water by delineating exactly how the two states will share an interstate waterway. Writing for the majority, Chief Justice Roberts characterized the aquifer as naturally “flowing interstate waters” where “actions taken in Tennessee to pump water from the aquifer clearly have effects on the portion of the aquifer that underlies Mississippi.” The Court reasoned that “[s]uch interstate effects are a hallmark of the Court’s equitable apportionment cases” and thereby rejected Mississippi’s ownership theory. The Court dismissed the case with leave to amend as Mississippi did not argue the merits of an equitable apportionment case. It is unclear whether Mississippi will be entitled to equitable apportionment as the complaining state has a heavy burden of demonstrating that the other state’s water use is causing the complaining state significant injury.

For more information see:

https://www.supremecourt.gov/opinions/21pdf/143orig_1qm1.pdf

https://www.scotusblog.com/2021/11/court-unanimously-favors-tennessee-in-groundwater-dispute-with-mississippi/

B. WATER QUALITY

  1. City of Duarte v. State of Water Resources Control Board (2021) 60 Cal.App.5th 258.

The Court of Appeal reversed and remanded the trial court’s ruling by holding that water quality control boards could consider economic factors in satisfaction of Water Code section 13241 for a NPDES permit. The Court further stated that the water control boards gave well supported reasoning to comply with the statutory requirements. The appeal arose when a permit issued by state and local water boards required 86 Southern California municipalities to reduce effluent discharge pollutants in stormwater sewage systems. The trial court ruled that the water boards and state did not sufficiently consider factors outlined in Section 13241 of the Water Code before issuing a permit, and this failure invalidated portions of the permits that were issued. The Court of Appeal disagreed. It held that the numeric effluent limitations in the Permit issued was no more stringent than the requirements outlined in the CWA. The Court reviewed the factual findings under the substantial evidence standards and held that the Water control boards had sufficiently considered the necessary factors under Water Code Section 13241, including the need to consider “economic considerations” under subsection (d).

The Court held that the water boards had significant discretion when considering the factors, so long as they are supported by evidence in the record and factual findings. As for the “economic considerations” factor at issue, the Court reasoned that this discretion should be left with the water boards because in exceptional financial downturns like those resulting from the COVID-19 pandemic, the water boards must retain control so that they can account for this economic context when determining compliance with the permit requirements. The reversed judgment was remanded with instructions to the trial court.

C. RENEWABLE ENERGY

  1. California Public Utilities Commission Announced Proposed Reductions To Rooftop Solar Incentives.

The California Public Utilities Commission (“CPUC”) proposed sharp reductions in current subsidies and the addition of new fees related to rooftop solar use. The reduction in subsidies means that residential solar customers would get a lower credit for their excess electricity sent to the grid based on the value of the energy costs avoided by utilities. Rooftop solar users would also have to pay a new grid-connection fee that would average $40 a month. The stated goal for these changes is incentivizing customers to install batteries that can store electricity during shortages and reforming a system that currently “subsidizes” richer households that can afford rooftop solar at the expense of lower-income households that cannot. CPUC Commissioner Martha Guzman Aceves said “[t]he reform is about incentivizing the right thing we need today for the grid for the benefit of all ratepayers.” The Utility Reform Network praised the proposal as “a step in the right direction” that prioritizes low-income households “who have been left behind under the current program.” Southern California Edison offered similar praise, calling the decision “a meaningful step toward modernizing California’s rooftop solar program” that will “reduce the financial burden on non-solar customers who have subsidized net energy metering.” The solar industry, a $13 billion industry that relies heavily on solar subsidies, strongly opposes the proposed change. The industry states that the proposal would gut the subsidy plan, impose the highest solar fees in the U.S., threaten thousands of jobs and tarnish California’s clean energy legacy. They also emphasize that the changes will deter many from installing rooftop solar and storage and slow clean energy development in the state.

For more information see:

https://www.latimes.com/business/story/2021-12-13/california-proposes-big-changes-to-rooftop-solar-incentives

https://www.bloomberg.com/news/articles/2021-12-13/california-proposes-deep-cut-to-rooftop-solar-incentives

  1. President Biden Signs Executive Order Catalyzing America’s Clean Energy Economy Through Federal Sustainability.

On December 8, 2021, President Biden signed an executive order that set out a whole-of-government strategy to address climate change. The Biden Administration expects this action will catalyze the development of at least 10 gigawatts of new clean electricity production by 2030 and accelerate America’s capacity to supply zero-emission vehicles and electric vehicle batteries, spurring the creation of new jobs in manufacturing, engineering, and skilled-trades. The executive order is accompanied by a Federal Sustainability Plan that details the specifics. The executive order and Federal Sustainability Plan focus on achieving five primary goals:

  • 100% carbon pollution-free electricity by 2030, at least half of which will be locally supplied clean energy to meet 24/7 demand;
  • 100% zero-emission vehicle acquisitions by 2035, including 100% zero-emission light-duty vehicle acquisitions by 2027;
  • Net-zero emissions from federal procurement no later than 2050, including a Buy Clean policy to promote use of construction materials with lower embodied emissions;
  • A net-zero emissions building portfolio by 2045, including a 50%emissions reduction by 2032; and
  • Net-zero emissions from overall federal operations by 2050, including a 65% emissions reduction by 2030.

For more information see:

https://www.energy.gov/articles/statement-secretary-granholm-presidents-executive-order-catalyzing-americas-clean-energy

https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/08/fact-sheet-president-biden-signs-executive-order-catalyzing-americas-clean-energy-economy-through-federal-sustainability/

https://www.sustainability.gov/pdfs/federal-sustainability-plan.pdf

D. HAZARDOUS MATERIALS AND REMEDIATION

  1. Bipartisan Infrastructure Deal Reinstates CERCLA Chemical Excise Tax And Invests $3.5 Billion In Superfund Site Cleanup.

In November 2021, Congress passed the Bipartisan Infrastructure Deal, also known as the Infrastructure Investment and Jobs Act, which increased monetary support for Superfund site cleanups by reinstating the chemical excise tax and designating $3.5 billion for cleanup. “Superfund” is the informal name for the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) that was passed in 1980. CERCLA gave the EPA the authority and funds to hold polluters accountable for cleaning up the most contaminated sites across the country. When no viable responsible party is found or if the responsible party cannot afford the cleanup, funds appropriated by Congress are used. Until 1995, a tax on chemical and petroleum industries provided funds to the Superfund Trust fund for Superfund cleanups. The Bipartisan Infrastructure Bill reinstates the chemical excise taxes, with some modifications to the historical tax. The chemical tax is still imposed on the sale or use of 42 identified chemicals, as well as certain substances manufactured or produced from such chemicals, however, the threshold for a taxable substance has been reduced–previously a taxable substance was one comprised of more than 50 percent of the weight (or more than 50 percent of the value) of a taxable chemical. Under the new tax that percent is lowered to 20 percent. The tax rate per ton on taxable chemicals is doubled. The law also gives deference to the list of taxable substances contained in existing law, as modified over time by the IRS through guidance, but requires IRS to issue the initial list by Jan. 1, 2022. As revived, the chemical tax would be effective for almost 10 years, beginning in July 2022. In December of 2021, the U.S. Environmental Protection Agency (“EPA”) announced the first $1 billion in funding for 49 Superfund sites across the nation while emphasizing that 60% of the sites selected are in traditionally underserved communities.

For more information see:

https://www.epa.gov/superfund/superfund-sites-new-construction-projects-receive-bipartisan-infrastructure-law-funding

https://www2.deloitte.com/content/dam/Deloitte/us/Documents/Tax/us-multistate-tax-alert-us-infrastructure-bill-reinstates-superfund-excise-taxes.pdf

E. NATIONAL ENVIRONMENTAL POLICY ACT (“NEPA”)

  1. Native Village of Nuiqsut v. BLM (9th Cir. 2021) 9 F.4th 1201.

The Bureau of Land Management (“BLM”) approved a winter drilling exploration program for Conoco Alaska, Inc. (referred to as “Project Proponents”) in the National Petroleum Reserve-Alaska. In connection with its approval of the exploration program, in 2018 the BLM published an environmental assessment (“EA”) that incorporated a 2012 Integrated Action Plan/Environmental Impact Statement (“IAP/EIS”), a document that analyzed environmental impacts in the Petroleum Reserve, and two supplemental EISs for separate drill pad projects. Plaintiffs sued the BLM alleging violations of the Administrative Procedure Act, National Environmental Policy Act, and the Alaska National Interest Lands Conservation Act. The BLM argued that the case was moot because the Project Proponents fully completed the exploration program. The District Court concluded the action was not moot and granted the BLM’s motion for summary judgement on each of the substantive claims. Plaintiffs appealed and the United States Court of Appeal vacated and remanded with instructions to dismiss the case as moot.

Plaintiffs contended that the “capable of repetition yet evading review” exception to mootness applied. This exception requires a showing that: (1) the duration of the challenged action was too short to allow full litigation before it ceased or expired, and (2) there was a reasonable expectation that the Plaintiffs would be subjected to the challenged action again. Here, the 2018 EA met the duration requirement because the winter exploration program lasted only five months. As to the capable of repetition requirement, generally a case would not be moot if the environmental report would be used by the agency in approving a future project. Here, although the 2018 EA was confined to the winter exploration program, the BLM could potentially rely on the 2012 IAP/EIS and the two supplemental EISs in future EAs. However, a multitude of new circumstances when taken together showed that the mootness exception did not apply. First, there was no reasonable expectation that Plaintiffs would be subjected to the challenged action again because in 2020 the Council on Environmental Quality revised the regulations implementing NEPA which rendered the case moot. Second, the BLM issued a new IAP/EIS for the Petroleum Reserve in 2020 and there was no showing that Plaintiffs would be subjected to tiering to the 2012 IAP/EIS. Third, the Court of Appeal held that the BLM could not tier from the two supplemental EISs for a document similar to the 2018 EA because the EISs pertained to specific projects in another part of the Petroleum Reserve and did not address exploration activities. Finally, the Project Proponents contended that they did not plan to conduct additional winter exploration. Thus, the Court of Appeal found that the case was not capable of repetition and was therefore moot.

F. ENVIRONMENTAL ENFORCEMENT

  1. U.S. Department Of Justice Announces Increased Civil And Criminal Environmental Enforcement.

Remarks given at the American Bar Association’s National Environmental Enforcement Conference by senior U.S. Department of Justice (“DOJ”) Environment and Natural Resource Division (“ENRD”) officials preview increased civil and criminal environmental enforcement.

Announcing a shift in tactics, the Chief of DOJ’s environmental crimes section said the DOJ is “going to head more to vigorous enforcement as opposed to just aiming for compliance.” Assistant Attorney General Todd Kim pointed to the importance of criminal enforcement as “an indispensable and powerful deterrent to illegal behavior,” more so than “the threat of civil enforcement alone.” He warned that “to the extent a corporate actor violates either civil or criminal law in a manner that implicates environmental justice or the climate crisis, corporations should be aware that [ENRD] is paying particular attention to these issues.” Kim also emphasized “the need for a corporation to exercise due care throughout its supply chain.” A company’s failure to fulfill its “due care” obligation, which means to take responsibility for their products and fully know their supply chain, could carry significant consequences: “the prospect of criminal sanction; the potential seizure and forfeiture of illegally-sourced [] goods, vessels and other equipment; and the unavailability of an innocent owner defense.” While the full impact of the shift towards enforcement is not yet clear, companies should place a renewed focus on compliance with environmental laws.

For more information see:

https://www.justice.gov/opa/speech/assistant-attorney-general-todd-kim-delivers-remarks-american-bar-association-s-national

https://www.natlawreview.com/article/doj-environment-officials-emphasize-enforcement-environmental-and-white-collar

https://www.law360.com/environmental/articles/1448968/doj-enviro-crimes-section-leader-says-enforcement-coming?nl_pk=882d9226-7a00-4b3a-acfb-659fca057be9&utm_source=newsletter&utm_medium=email&utm_campaign=environmental&read_more=1

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

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