Stopthemillenniumhollywood.com et al., v. City of Los Angeles et al. 2019 Cal.App. LEXIS 780

In Stopthemillenniumhollywood.com et al., v. City of Los Angeles et al. 2019 Cal.App. LEXIS 780, the Court of Appeal delivered a setback to mixed use proposals by invalidating an EIR lacking a specific development proposal, but which evaluated different land use mixes. The Court found that the EIR lacked a definite and stable project description. For all practical purposes, the Court elevated CEQA in importance over how a local government chooses to design its regulatory code and application process. 

The facts involved no insignificant project. The Millennium Project was the redevelopment of a four and one-half acre area surrounding the iconic Capitol Records building in Los Angeles. In 2008, the developer filed a development application describing a detailed proposed project consisting of 492 residential units, a 200-unit luxury hotel, 100,000 square feet of office space, a 35,000 square-foot sports club, more than 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage. As with many other development applications in 2008, it was not advanced by the developer.

In contrast to the 2008 application, the next application in 2011 adopted a more fluid approach. Specific buildings were not proposed, but rather a flexible mixed-use project of up to 1,052,667 square feet of space, allowing for a broad range of residential and commercial uses as allowed for under the equivalency provisions of the city development code. The EIR evaluated different scenarios (more residential/less commercial vs. more commercial/less residential square footage). Neighbors challenged the EIR on several grounds, and the trial court agreed that the EIR lacked a stable project description. While the ensuing appeal and cross-appeal involved additional CEQA claims, the only issue addressed by Appellate Court was that concerning the project description. The Court of Appeal affirmed the trial court’s judgment, concluding that the lack of meaningful detail in describing a specific project precluded effective public participation. Given that a detailed application was filed in 2008 the Court surmised that a detailed submittal was not an undue burden on an applicant.

Comment: Rather than recognizing the inherent right of cities and counties to design land use regulations to be responsive to local needs, the Appellate Court effectively concluded that CEQA was more important. Personally, I think that the Court got it wrong. The CEQA tail should not wag the land use dog. Nothing in state law compels local governments to adopt development codes requiring detailed application submittals. While local agencies have the legal authority to adopt rigorous submittal requirements, there is no statutory mandate to do so. Thus, this decision is in conflict with the long-standing authority of cities and counties to adopt development codes which provide for flexibility in the application and development process.

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

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

Sacramentans for Fair Planning v. City of Sacramento (2019) 2019 Cal.App. LEXIS  646

The City of Sacramento, a charter city, approved a fifteen-story mixed use project in its Midtown area, significantly in excess of its adopted height and FAR standards. This approval was based upon a general plan policy which stated, “The City may allow new development to exceed the maximum allowed FAR or density if it is determined that the project provides a significant community benefit.” When evaluating the project, staff identified many benefits associated with the project which “outweighs strict adherence to the General Plan’s FAR.” These benefits included a high level of design, implementation of the City’s targets for increasing households in its core, location in an infill location reducing reliance on personal vehicles, and lowered carbon emissions. The City conducted CEQA review based upon the sustainable communities environmental assessment (“SCEA”). The ensuing litigation challenged both the avoidance of the development limits of the general plan as well as the SCEA. Both the trial court and Court of Appeal upheld the City’s approval.

Appellant first argued that the City’s practice violated the requirement for zoning uniformity (Gov. code section 65852.) However, this code section did not apply to the City of Sacramento as it was a charter city. Appellant next argued that the City approval violated an obligation to maintain a uniformity by virtue of the Equal Protection and Due Process clauses of the 14th Amendment and California Constitution, along with a contract implied at law between property owners and the zoning authority. Acknowledging the very deferential standard of review when evaluating local land use approvals and the general plan policy, the Court found ample justification in support of the City’s actions. The detailed staff report served as the supporting rationale relied upon by the Appellate Court.

Appellant also argued that the approval constituted spot zoning. The Appellate Court rejected this claim, concluding that the zoning did not operate to create a limited zone surrounded by higher densities, nor did it preclude adjacent owners from achieving a similar benefit. Similarly, the Court of Appeal rejected the argument that there was an improper delegation of legislative authority to the Planning Commission. Pursuant to the City code, it was the city council which made the final determination. The community benefit standard was no less vague than the common public health, safety, and welfare standard which had upheld repeatedly against vagueness claims.

With respect to CEQA, Appellant challenged the City’s use of the SCEA, arguing that the MTP/SCS adopted by SACOG lacked sufficient detailed information such as building densities, but the Appellate Court concluded that MTP/SCS was not required. As a regional planning document, the SCS contained sufficient information upon which the City could determine its conformity. Petitioner also challenged the impact analysis. However, the City had addressed impacts and required mitigation measures through the initial study. While the City may not have looked at the cumulative effects of new high-rise projects in Midtown in its general plan EIR, the EIR for the SCS plan had addressed cumulative effects. That was sufficient and the City could rely upon the SCS EIR for that evaluation.

Commentary: A cornerstone of California land use law since the 1970s has been the standards for density and intensity required by Government Code Section 65302(a). This case concludes that these standards may not be cast in stone but have to be read and applied in conjunction with other relevant general plan policies. This interpretation introduces potentially significant flexibility into general plans facilitating consistency determinations and reducing the need for general plan amendments. 

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

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

York v. City of Los Angeles (2019) 33 Cal.App.5th 1178

The Court of Appeal for the Second Appellate District held that property owners whose request  to grade almost 80,000 cubic yards on their property was denied by a city, but who submitted no other alternative grading proposal in connection with their plans to build a house and other structures on their property, did not have inverse condemnation or civil rights claims that were “ripe” for adjudication. The court’s independent review of the city’s findings demonstrated that the city “has neither rendered a final decision nor precluded all development of the property,” contrary to the allegations in the owners’ complaint.

In York, property owners sought to grade 79,700 cubic yards on a 40-acre parcel “on a prominent ridge” in the Hollywood Hills “under the iconic Hollywood Sign which is prominent to the east of the site.”  The property is prominently visible from the “flats of Hollywood”, the Hollywood Freeway, the Central Los Angeles Basin and the walking trail around Lake Hollywood. The requested grading, which was intended to allow the construction of a 8,000 square foot house, a 1,300 square foot guest house, a driveway, swimming pool, tennis court, storage sheds, retaining walls and “wine caves,” was more than 24 times the amount that is permitted as of right. In fact, a significant portion of the grading was for a private tennis court to be built into the hillside and for a ridgeline access road up to that tennis court. The Zoning Administrator for the City of Los Angeles granted most of the building permits for the structures but denied the grading request. The Administrator permitted the maximum of 3,300 cubic yards of grading permitted as of right by the Municipal Code. The Administrator did not approve grading in between the 3,300 and 79,700 amounts because he said that “all I had before me was 79,000 cubic yards. I did not have any alternatives to this particular project. So, it was either ‘yea’ or ‘nea’ on that particular issue.”  The owners appealed the Administrator’s decision to the Area Planning Commission. While the owners made some changes to their proposal, such as eliminating the proposed tennis court, they did not reduce their grading request. The Commission denied the administrative appeal. 

The owners then filed an action that not only included a petition for a writ of mandamus, but also included a civil rights claim (due process and equal protection) and a cause of action for inverse condemnation. The civil rights claim alleged that the City had arbitrarily and unlawfully imposed restrictions on the use of the property and treated the owners differently than other similarly situated homeowners. The takings claim alleged that the City had taken the property by depriving them of substantially all economically viable or beneficial uses of the Property. After the trial court denied the mandate petition, the City moved for judgment on the pleadings as to the takings and civil rights claims on the grounds of ripeness. The trial court entered judgment on that basis, and the Court of Appeal affirmed.

The appellate court affirmed the denial of the petition for writ of mandate because the owners failed to present any evidence (as opposed to mere argument by their attorneys) that the owners could not build a house on the property other than with the 79,000 cubic yards of cut or fill. “[A]s the applicants for the land use adjustment, plaintiffs bore the burden of demonstrating their entitlement to the adjustment.”  

The appellate court further agreed with the ripeness decision by the trial court. The Court of Appeal noted that a motion for judgment on the pleadings “is equivalent to a demurrer.”  And the California Supreme Court has held that a demurrer “may be sustained when the complaint shows on its face the claim is not ripe for adjudication.”  (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal. 3d 110, 118.)  Here, the findings by the Administrator contradicted the allegations on the face of the complaint that the City’s decision was final. 

The Court of Appeal concluded that the City “has neither rendered a final decision nor precluded all development of the property.”  While the City denied the request for 79,700 cubic yards of cut and fill grading, “it neither definitively limited plaintiffs to 3,300 cubic yards of fill nor precluded plaintiffs from submitting another, more modest, development proposal.”  Even though the procedural context was a motion for judgment on the pleadings, the Court of Appeal independently reviewed the Administrator’s findings that “reveal[ed] that the City has not made a final determination denying plaintiffs the right to build a house on their property.” The Court rejected contrary allegations in the complaint regarding the finality of the City’s decision. Thus, the City’s determination “cannot properly be characterized as ‘a final decision regarding the application of the zoning ordinance … to [the owners’] property,’ and it therefore cannot for the basis for a regulatory takings claim.”  The lack of a final agency decision similarly supported the court’s affirmance of the trial court’s granting the motion for judgment on the pleadings as to the owners’ civil rights claims for alleged violation of due process and equal protection.      

The York decision was based on state law. However, that same ripeness rule applies to constitutional claims alleged in federal court. (See National Park Hospitality Assn. v. Department of Interior, 538 U.S. 803, 807-08, (2003); Palazzolo v. Rhode Island, 533 U.S. 606, 620-621 (2001); Mehaffy v. United States, 98 Fed. Cl. 604, 612-613 (2011). See e.g., Bee’s Auto, Inc. v. City of Clermont, 927 F.Supp.2d 1318 (M.D.Fla.2013).)  The U.S. Supreme Court’s recent decision in Knick v. Township of Scott, Pennsylvania, ___ U.S. ___, 139 S.Ct. 2162, 204 L.Ed.2d 558 (2019), did not change that ripeness rule. As Chief Justice Roberts stated in Knick:

In Williamson County [Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985)], a property developer brought a takings claim under §1983 against a zoning board that had rejected the developer’s proposal for a new subdivision. Williamson County held that the developer’s Fifth Amendment claim was not “ripe” for two reasons. First, the developer still had an opportunity to seek a variance from the appeals board, so any taking was therefore not yet final. 473 U. S., at 186-194. Knick does not question the validity of this finality requirement, which is not at issue here. [___ U.S. at ___; 139 S.Ct. at 2169.]

In short, property owners generally need to pursue several development proposals before they can assert constitutional claims in court against local agency decisions involving their property.

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

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

Cleveland National Forest Foundation v. County of San Diego (2019) ____ Cal.App.5th ______. 

On July 25, 2019 the Court of Appeal for the Fourth Appellate District published its opinion in Cleveland National Forest Foundation v. County of San Diego (2019) ___ Cal. App. 5th ___, which interpreted the clause “residential development not incidental to the commercial agricultural use of the land” in Section 66474.4 of the Government Code (“Section 66474.4”). This case marks the first interpretation of a part of the Subdivision Map Act that applies to property that is subject to the California Land Conservation Act of 1965, also known as the Williamson Act. Adopting an interpretation that promoted the conservation purposes of the Williamson Act, the Court found that the County should have denied the tentative maps for property subject to a Williamson Act contract.  

In 2016 the County approved a tentative subdivision map for a 1416.5-acre property in a rural part of eastern San Diego County near the community of Julian. The vast majority of the property (1291.5 acres) was subject to a Williamson Act contract, which imposed restrictions on grading and other activities related to residential or urban use, and also limited the use of the property to agriculture and open space as allowed by the rules governing the County’s agricultural preservation program. The owner justified the project by showing that the area supported agritourism, the primary use of the property would remain in agriculture and open space, and any residential development of the property would be secondary (and therefore “incidental”) to agriculture. The owner also agreed to place an open space easement over 85% of the property and agreed that single family homes would not be constructed while the property remained subject to the Williamson Act.  

Based on the owner’s agreement to preserve open space and other restrictions, the County Board of Supervisors determined that it was not required to deny the project under Section 66474.4 of the Government Code. That statute governs tentative map applications for properties subject to the Williamson Act, and requires a county to deny such an application if the resulting parcels “would be too small to sustain their agricultural use” or if the project proposes “residential development not incidental to the commercial use of agriculture.” However, those restrictions do not apply where the owner has agreed to place the Williamson Act contract into non-renewal and the project is proposed during the three-year period before the contract expires. 

Finding that the parcels were each at least 59 acres in size, the County was persuaded that the parcels would be large enough to sustain continued agricultural use, in part because the statute allows the County to presume that a parcel of at least 40 acres (in the case of “non-prime” agricultural land) is large enough to sustain continued agricultural use. However, counties are not the primary agencies entrusted with administering the Williamson Act. That responsibility lies with the Department of Conservation, which opposed the project, and which had interpreted the phrase “residential development not incidental to the commercial agricultural use of the land” in Section 66474.4 to require the County to deny the project unless it found that the residential development was actually needed to provide housing for those engaged in commercial agriculture. The Department concluded that the Subdivision Map Act required the owner to first submit notice of non-renewal and wait until the last three years of the contract term, before seeking such a subdivision approval. 

Because the case turned on the interpretation of the term “incidental” in Section 66474.4, the Court of Appeal applied independent review, and did not defer to the County’s interpretation, which was adopted by the trial court. Reversing, the Appellate Court found that the term “incidental” should be interpreted in light of the overall purpose of the statute, which was to further the public policy goals of preserving agricultural use and limiting the availability of real property tax savings to those actually engaged in commercial agriculture. Based on that interpretation, the Court held that “incidental residential development” must be “concomitant with” or “necessary for” the commercial agricultural use.  

The record in the case established that the entire property was then used for grazing 140 head of cattle, which were tended by a few ranchers and cowhands. There was no evidence that the development proposed, which consisted of grading for roads, building pads and leach fields, was needed to sustain this commercial agricultural activity. Even though the tentative map would only allow the parcels to be made ready for the construction of homes and would delay actual home construction until after the Williamson Act contract expired, the court understood the term “residential development” to encompass these preparatory activities. The Court held that such activities “must be concomitant with and functionally necessary for commercial agricultural use.” Allowing the owner to retain the tax benefits under the Williamson Act while allowing development of house pads and roads in anticipation of home construction was inconsistent with the goals of the statute, the Court found. 

The Court’s resolution of the case provides useful guidance for interpreting proposals to subdivide properties that will remain subject to the Williamson Act. In those cases, allowing subdivision of the property must be supported by proof that the resulting residential development will be needed for the agricultural use. As explained by the court: “if residential development proposed by a tentative map has no relation to or is unnecessary for the commercial agricultural use, the law mandates that the local body deny tentative map approval.”

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

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

Perez v. County of Monterey (2019) 32 Cal.App.5th 257

The Court of Appeal for the Sixth Appellate District affirmed a trial court judgment that rejected constitutional claims, including a regulatory takings challenge, against a Monterey County ordinance that provided that no one may keep more than four roosters on a single property without a rooster keeping operation permit. In its analysis of the takings claim, the court provided a helpful clarification of the key evidentiary differences between a “facial” regulatory takings claim and an “as-applied” regulatory takings claim. 

The Monterey County ordinance included a number of permit provisions that were relevant to court’s analysis of the plaintiffs’ various constitutional claims. The permit could not be issued to anyone who has a criminal conviction for illegal cockfighting or other crime of animal cruelty.  Permitted rooster keeping operations must comply with certain minimum standards, such as maintaining structurally sound pens that protect roosters from cold and are properly cleaned and ventilated. The ordinance included four exemptions from the permit requirement: for poultry operations (defined as raising more than 200 fowl for the primary purpose of producing eggs or meat for sale); poultry hobbyists (a member of a recognized organization that promotes the breeding of poultry for show or sale); minors who keep roosters for an educational purpose; and minors who keep roosters for a Future Farmers of America project or 4-H project. There was no evidence presented at trial regarding whether the plaintiffs were eligible for such a permit, whether a permit had been granted or denied, or whether plaintiffs had even applied for a permit.

Plaintiffs alleged that the rooster keeping ordinance was a regulatory taking, one that deprives them of all beneficial use of their property. The complaint described the taking claim as an “as applied” challenge because of the way that the ordinance allegedly applied to plaintiffs’ property.  But that is not how the plaintiffs ended up arguing their case. Plaintiffs essentially changed their claim into a “facial” regulatory takings challenge at trial, since no evidence was introduced other than the text of the ordinance and some related legislative documents. In a “facial” challenge to the constitutional validity of a statute or ordinance, the court considers only the text of the measure itself, not its application to the particular circumstances of an individual, and not any other evidence. To succeed on a facial challenge, a plaintiff must show that the law in question could never be applied in a constitutional manner; it is not enough to show that the law would be unconstitutional under some circumstances.

At trial in this case, plaintiffs essentially pursued only a “facial” challenge and failed to provide the evidence necessary for the “as applied” claim that was originally alleged in the complaint.  The Court of Appeal explained:

Plaintiffs agreed to limit the scope of the issues tried to solely whether the ordinance is valid on its face (and accordingly did not present evidence of how the ordinance affected them) it was fatal to their regulatory taking challenge. That is because a regulatory taking claim—in contrast to a physical occupation or direct appropriation of property—requires evidence of how the regulation affects the property in question. As the Supreme Court has instructed, determining whether a statute constitutes a regulatory taking requires “an ‘ad hoc’ factual inquiry,” necessitating the consideration of “factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action.” [32 Cal.App.5th at p. 262 (quoting Horne v. Dept. of Agriculture, 576 U.S. ___, 135 S.Ct. 2419, 2427 (citing Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124 (1978))).]

Thus, the “as applied” regulatory taking claim that was alleged in the complaint failed at trial because there was “no evidence on which to evaluate the economic impact of the regulation or the level of its interference with reasonable investment-backed expectations.”

Accordingly, the trial court found that the ordinance did not violate the Fifth Amendment and entered judgment for the County on that claim, and the Court of Appeal affirmed.

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

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

Welcome to Abbott & Kindermann’s 2019 2nd Quarter cumulative CEQA update. This summary provides links to more in-depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

1. 2019 CEQA UPDATE

To read the 2018 cumulative CEQA review, click here: https://blog.aklandlaw.com/2019/01/articles/ceqa/2018-ceqa-annual-review/ 

2. CASES PENDING AT THE CALIFORNIA SUPREME COURT

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

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

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

3. UPDATE

  1. Exemptions

Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880

Real parties filed for approvals to construct three homes on contiguous parcels in Berkeley hills. The City Board of Zoning Adjustment found that the proposed construction qualified for a Class 3 exemption (new construction of small structures.) Appellants contested the Board’s decision granting a categorical exemption citing the following causes of action: “1) the location exception under CEQA, 2) the unusual circumstances exception under the Guidelines, and 3) the City’s violation of the zoning requirements when they failed to require additional permits for a fifth bedroom on one of the parcels.” The trial court denied the petition for writ of mandate in its entirety.

A Class 3 exemption under CEQA allows for construction of new small structures of up to three single family residences in an urbanized area without environmental review. Guidelines, § 15303. The location exception to the Class 3 exemption states that a project location in a particularly sensitive location, subject to impacting an environmental resource of hazardous or critical concern, must go through environmental review. Guidelines, §15300.2, subd. (a). 

While reviewing Plaintiffs first and second cause of action, the court applied to Supreme Court’s standard of review in Berkeley Hillside 1, 60 Cal.4th at pg. 1093, holding that the City’s actions must display an abuse of discretion where there was no ‘reasonable possibility that the activity will have a significant effect on the environment.’ Guidelines, §15300.2, subd. (c).   

The Court further bifurcated its standard of review for the location exception into two separate prongs. 1) Unusual circumstances create an exemption to CEQA exception, and 2) the location is “an environmental resource of hazardous or critical concern.” Guidelines, § 15300.2(a). As part of their review of the “unusual circumstances” argued by Plaintiffs, the Court reviewed whether the project’s location along a faultline with the potential to create an earthquake triggered landslides requiring full CEQA analysis. 

Plaintiffs allege that the mere existence of a potential landslide is sufficient evidence to make all landslide areas “environmental resources of hazardous or critical concern.” The Court disagreed with Plaintiffs premise in its entirety holding that a potential for landslide does not provide clear and convincing evidence that an unusual circumstance exists. The Court’s plain understanding of the language written in the Guidelines alleged that potential earthquakes and landslides are “geological events…. and not resources.” The Court further reasoned that the geotechnical report reflects a concern for economic loss to property and human lives, but not a sensitive resource. The Court also held that the California Supreme Court in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473. stated, “despite [CEQA’s evident concern with protecting the environment and human health, its relevant provisions are best read to focus almost entirely on how projects affect the environment.” The Court lastly held that because the Legislature did not provide an exception to Class 3 projects for landslides or earthquakes, the Court would not further extrapolate on law that does not exist. 

The Court upheld the trial court’s dismissal of Plaintiffs third cause of action alleging the project required a new permit because of the addition of a fifth bedroom. The Court agreed with the City’s reasoning that that a new use permit was already issued on the project for new construction. Requiring an additional permit for the project because of the addition of a single bedroom would be redundant. The Court examined the plain language of the mini-dorm ordinance and held that the Planning Commission crafted the ordinance to be interpreted as broadly as possible. The City interpreted their Ordinance for the addition of a single room to one of the 3 parcel properties to be applied broadly since the project conforms with pre-existing zoning and insignificant impact. The Court reasoned that greater deference should be given to the City to interpret its own ordinances. 

Further, the Court held regardless of deference to the City’s interpretation of its ordinance, a plain read of the ordinance would still favor dismissal of the third cause of action. The plain language of the ordinance implies a fifth bedroom would be in addition to a preexisting structure. Since this project is a new building, there would be nothing to build as an addition to the property. As such, the Court of Appeal held that the trial court rightly dismissed the third cause of action. 

The Court of Appeal affirmed the trial court’s judgment in its entirety and awarded costs to the City for the appeal.   

  1. Thresholds of Significance
  1. Negative Declarations
  1. Environmental Impact Reports

Center for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210

The question “how much is enough?” for programmatic EIRs remains an ongoing challenge for CEQA practitioners.  Programmatic EIRs are frequently prepared in conjunction with broad legislative acts where specific detail as to how the policy will be administered in the future is lacking.  This makes programmatic EIRs easy targets for project opponents who can always identify another study to be performed or another variable to be considered.  Neither the CEQA statute nor the Guidelines provide a meaningful metric to judge sufficiency.  Ultimately it is left to the reviewing courts to sort it out.  The Third Appellate District addressed this issue in a recent decision involving a statutorily mandated EIR prepared by the state Department of Conservation (“Department”) concerning fracking.  The legal setting is unusual because (a) the Legislature mandated the preparation of the EIR and (b) the Department did not approve any project.  While the threshold legal issue involved ripeness, the Court of Appeal also addressed programmatic EIRs, EIR scope (albeit in the context of a statutorily defined project), mitigation measures, and findings.

In this appeal, the court was asked to consider the sufficiency of a programmatic EIR mandated by the legislature when Senate Bill 4 (“SB 4”) passed in 2013 (Chap. 313, Stats. 2013).  SB 4 required the Department to consider the environmental effects of well stimulation (fracking) in a programmatic EIR due on or before July 1, 2015.  SB 4 also required a separate independent study (“Study”) by the Natural Resources Agency on well stimulation treatments, due on or before January 1, 2015.  The Department’s EIR was a programmatic document for statewide impacts but also included a more refined examination of the potential impacts in three particular oil and gas fields: Wilmington, Inglewood, and Sespe.   The draft EIR contained proposed mitigation measures.  However, industry representatives raised concerns that draft mitigation measures may constitute underground regulations.  In response, certain measures were converted to formal regulations and others were embodied into a “Mitigation Policy Manual”.  The Department finalized and certified the EIR resulting in the Center for Biological Diversity (“CBD”) challenging the EIR through a writ of mandate along with a claim for declaratory relief.  CBD complained as to the level of detail, the sufficiency of the document for project specific approvals, the lack of mitigation measures, and a mitigation monitoring program.  The trial court rejected all of petitioner’s claims.

Before addressing the specific issues on appeal, the court of appeal articulated three general principles applicable to judicial review of programmatic EIRs:

  1. Impacts and mitigation measures not determined at the first tier may be deferred to later tiers.
  1. The sufficiency must be reviewed in light of what is reasonably feasible, given the nature and scope of the project the “rule of reason.”
  1. Finally, the test as to the level of detail is: does the EIR entail sufficient information such that those who did not participate in its preparation to understand and meaningfully consider the issues.  The document label is not determinative, but rather the relevant question is whether the EIR provides the decision makers with sufficient analysis to intelligently consider the environmental consequences.

Demurrer to First Cause of Action.  In CBD’s first cause of action, CBD argued that the Department violated CEQA by carrying out a project of well stimulation in violation of CEQA.   The Agency argued before the trial court that the case was not ripe as the Department had not approved a project, and the Department was not directly undertaking well stimulation.  Both the trial court and Court of Appeal agreed with the Department.  This was an unusual situation in which the lead agency was not approving a project following EIR certification.

Scope of the EIR-Inclusion of the Study.  CBD also argued that the Department failed its statutory EIR obligation by not considering Volume 1 of the Study.  The Appellate Court rejected this argument, noting that the Study and EIR were codified in separate code sections. While the completion dates for both suggest that the Study would be available in time for the EIR, nothing in the legislation directly linked the two together.  The EIR made passing reference to Volume I of the Study but did not otherwise discuss it in depth.  The court concluded that the EIR included sufficient discussion and made a reasonable effort to disclose that there were no apparent conflicts.  Many of CBD’s arguments concerning conflicts between the Study and EIR involved Study Volumes II and III, which were not available at the time the EIR was certified.  While CBD also argued that the EIR should have been updated to respond to Volumes II and III, the latter Volumes were not in the record on appeal and the Appellate Court had no basis to reverse the Department’s certification.

Indirect Impacts.  CBD also argued that the EIR failed to evaluate the indirect impact of well stimulation (traffic, wastewater, and emissions.)  The Court of Appeal disagreed given the narrow scope of the project set forth in the enabling legislation.

Mitigation Measures.  CBD presents multiple challenges pertaining to the mitigation measures, all rejected by the Court of Appeal.  First, the court upheld the Mitigation Policy Manual, finding that it served as a floor to later mitigation requirements.  The Manual and the EIR certification reflected sufficient detail and commitment in implementation to overcome the claim of deferred mitigation.  The Manual (over 100 pages) included guidelines and checklists to guide proper application as individual well stimulation permits were applied for.  CBD also argued that the EIR failed to include feasible mitigation measures for indirect impacts.  The Department had deleted these mitigation measures in the final EIR on the grounds that the measures were infeasible.  The Department’s reasoning was that the indirect effects involved potentially opening new oil and gas fields.  Due in part to the objections concerning underground regulations, the Department concluded that it was inappropriate to adopt mitigation measures pertaining to new fields as conditions of approval on well stimulation permits.  The Appellate Court agreed, embracing a flexible concept of feasibility.

Findings and MMRP.  CBD also asserted CEQA violations as a result of no CEQA findings and the lack of a mitigation monitoring program.  The Department argued that findings and a monitoring program are not required until a project was approved.  Having already concluded that the Department was not approving a project, the Appellate Court rejected CBD’s argument.

Field Specific Analysis.  Finally, CBD complained that the more detailed field specific analysis was insufficient as certain discussions for the field analysis was the same as what the EIR presented for the statewide analysis.  The Appellate Court observed that the fact that the impact analysis was the same did not support the conclusion that the analysis was improper.  A challenger to an EIR bears the burden of showing the error, and there was no evidence in the record which demonstrated that the conclusions were incorrect.  The court noted that the EIR acknowledged that later environmental analysis may be required for well stimulation within those fields given the level of detail in the first tier.  This reflected the Department’s recognition that this first level EIR was not dispositive of all future CEQA review in those fields.

South of Market Community Action Network v. City & County of San Francisco, (2019) 33  Cal.App. 5th 321

In 2014, real parties Forest City California Residential Development and Hearst Communications, Inc. (collectively “real parties”) sought to redevelop the San Francisco Chronicle building and surrounding structures and parcels and create a special use district (“the ‘5M’ project”). The developer advanced two options for redevelopment with one plan utilizing a residential scheme and one plan utilizing an office scheme. The DEIR and FEIR included analysis evaluating the potential alternatives for both schemes as well as a combination of both. After the public comment period and the San Francisco Board of Supervisors (“the City”) certified the FEIR, plaintiffs sought a writ of mandate in San Francisco Superior Court including alleged violations of CEQA requesting that the trial court set aside the certification of the FEIR and approval of the project. The trial court denied the writ of mandate and the First Appellate District affirmed the trial court’s decision.

On the merits, the appellate court held that the two alternate schemes were clear and provided an accurate project description. Plaintiffs argued the two schemes confused the project description; thus, the project description mislead members of the public who were unclear which project scheme would be ultimately decided upon. The appellate court disagreed. The court’s reasoning stated that the project description detailed one project with two options for different allocations of space. As such, the court found that there was more than sufficient information and clarity in the EIR and “enhanced, rather than obscured, the information available to the public.” The court further held that the project description is supposed to be treated as a fluid initial understanding of the project. Approval of the EIR need not be a blanket acceptance of the entire project description at its inception, but rather “approval of adopted characteristics of one of the proposed alternatives.” 

Plaintiffs further argued that the City incorrectly analyzed cumulative impacts by relying on projects during the recession of the last decade when San Francisco has “seen a tremendous uptick in development since the recession rendering the project list defective or misleading”. The court rejected this argument. As the court explained, it is within the agency’s discretion to select the methodologies used when evaluating cumulative impacts. Plaintiffs failed to show where the City’s methodologies were “unsupported by substantial evidence.” The court further articulated that the City re-reviewed its list of projects and methodologies prior to publication of the DEIR to verify the reasonable alternatives. 

As to the traffic impacts, plaintiffs asserted that the City failed to include key intersections in its  analysis. As to this claim, the court held that it is within an agency’s discretion which traffic resources to evaluate. Plaintiffs had yet again failed to prove that the City committed an abuse of discretion when completing its traffic and circulation studies and plaintiffs had offered no evidence to prove an abuse of discretion. Similarly, Plaintiffs had argued that the 5M Project failed to consider the concerns of the San Francisco Park Recreation and Open Space Advisory Committee about the lack of sunlight and open spaces on the project site. The court rejected this argument stating that plaintiffs failed to show the City violated CEQA or cite any legal authority to support their argument. 

Plaintiffs also asserted that the EIR’s analysis of wind impacts insufficiently examined existing conditions rather than the revised project proposal. As to this, the court held that plaintiffs failed to exhaust their administrative remedies claim with respect to the wind impacts. Nevertheless, the court did reach the merits of the claims brought by plaintiffs. The court held that plaintiffs improperly relied on the threshold established under San Francisco Planning Code Section 148 when they should have relied on CEQA Guidelines § 15126.4, subd. (a)(1)(4). Under the CEQA guidelines, a project proposal must merely identify mitigation measures for each significant impact, not redesign the project specs to encompass the “comfort threshold” requirement under San Francisco Planning Code Section 148.

Where raising concerns over the 5M Project’s shade and shadow impacts analysis, plaintiffs contended the City failed to propose proper mitigation measures for the shade and shadow impacts on the project. The court disagreed, determining that the plaintiffs failed to prove that the City abused its discretion when evaluating the shadow impacts from the project and further held that the City had the discretion to increase the shadow limits of the parks affected by the 5M Project.

Lastly, plaintiffs contended that the EIR fails to conform to existing city area plans, policies, and the City Planning Code. More specifically, plaintiffs argued that the DEIR failed to adhere to the regulations established in the Draft Central SoMa Plan. The court disagreed with plaintiffs claim holding that at the time the DEIR was in circulation the Central SoMa Plan was not adopted and therefor the City did not need to consider whether the 5M Project followed regulations outlined in a draft area plan. Further, the court rejected with plaintiffs’ argument that the City created “in essence spot zoning” to allow for approval of the 5M Project. The court summarily rejected each additional argument raised about the Project’s conformance with city policies and the City Planning Code. The court held that plaintiffs failed to provide reasoned arguments to prove the City neglected preexisting regulations and codes. The court further found that the administrative record demonstrated that the “City made a good faith effort to discuss inconsistencies with applicable policies and codes.” The court pointed out plaintiffs consistently failed to substantiate these claims with supporting evidence or legal authority.  

  1. Litigation Procedures

Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193

When the Coastal Commission accepts an appeal, it is a hearing de novo, meaning an entirely new hearing. The decision below (i.e. city council approval) no longer has any continuing legal effect. Once the commission agrees to hear the appeal, it is appropriate for the trial court to dismiss any legal action brought to challenge the city council approval.   

Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, (2019) 33 Cal.App.5th 165

CEQA authorizes a trial court, following a determination that the lead agency committed a CEQA error to direct very specific CEQA corrections in an updated CEQA document.   When that CEQA document comes back through the process the second time, can the project opponents then expand the issues to be address beyond what the trial court ordered?  The answer is no, reflecting the finality of the earlier trial court decision.

In Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, (2019) 33 Cal.App.5th 165.  project opponents filed suit over a quarry project.  The trial court rejected most of the opponents claims but agreed that the traffic analysis required correction.  The court issued a judgment and ordered the project approvals be set aside, that the EIR be fully decertified and an updated traffic analysis be circulated and certified.  The County complied.  The opponents filed a new writ challenging the updated EIR and project approval. Adding new issues beyond those in the original petition. At roughly the same time, the County filed a return to writ. Following review, the trial court determined that the lead agency had complied and then discharged the writ of mandate.

Responding to the new petition for writ of mandate, the trial court upheld the sufficiency of the traffic analysis and as to the new issues, concluded that the prior entry of judgment constituted res judicata as to all issues raised or which could have been raised.   The opponents appealed and the appellate court affirmed.

Recognizing the judgment entered in the first action and the failure of the opponents to file an appeal, the appellate court concluded that it was too late for the opponents to expand the issues in the second writ as to matters which were addressed or could have been addressed in the first lawsuit.   Opponents also argued that changes in law necessitated consideration of additional issues, however, as the opponents had not raised these issues in their opening brief on appeal, the appellate court would not consider the argument.

As to the recirculated traffic analysis, the appellate court affirmed the sufficiency of the updated traffic analysis but did not order that portion of the decision published.

Save Lafayette Trees v. City of Lafayette, (2019) 32 Cal.App.5th 148

Land use approvals often trigger two different statutes of limitation. For purposes of general plan and zoning law, a challenger must file and serve the action within 90 days of the decision. Government Code section 65009.  As to the CEQA claim, the action must be served upon the agency within 10 days of filing the action. The CEQA claim must be filed within 30 or 35 days of posting the notice of determination or exemption (as appropriate), or 180 days if no notice is filed. Public Resources code section 21167. The land use statute of limitations applies to more than just permits and can include an agreement entered into between a city and utility regarding tree removal impacting a gas line. This decision modifies and replaces the 2018 decision of the same name.

  1. CEQA Guidelines Updates

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

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

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

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

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

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

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

Boatworks, LLC v. City of Alameda (2019) 35 Cal. App. 5th 290.

In 2014, the City of Alameda adopted updated Development Impact Fees pursuant to the Mitigation Fee Act (“MFA”), including fees for park acquisition and improvement.  A property owner/developer (“Boatworks”) timely filed a facial challenge to the park fee and the trial court ruled against the City on three grounds, rejecting the balance of the petitioner’s claims.  First, the fee included the estimated cost of lands which were given to the City by the United States Navy.  Second, in its inventory of existing parks (used to create the existing LOS standard), the City included facilities that were not open to the public for park purposes.  Third, the City included in its inventory of existing parks properties which were separately considered to be open space, a distinct land use from parks in the City’s General Plan.  The trial court ordered the City to excise and vacate the portions of the ordinance pertaining to the park fee.  The trial court also awarded attorney’s fees to the petitioner.  Both sides appealed, and the Court of Appeal mostly affirmed the trial court.

Regarding the cost of facilities included within the fee study, the City used a standard-based methodology, utilizing existing parks per capita and setting the fee to acquire additional park lands in proportion to new population growth.  Both the trial court and Court of Appeal concluded that the City committed error when it included within the cost of lands to be acquired lands it already owned or would acquire at no cost from the Navy.  The appellate court concluded that the City could not demonstrate the additional burden associated with new development.

The Court of Appeal also affirmed that the City committed error in its inventory of existing parks.  Two parks included in the inventory of existing facilities were not open to the public.  This had the effect of inflating the existing LOS for parks as measured against the then existing population. 

However, the appellate court reversed the trial court, where the latter had ruled against the City’s practice of including certain community open space lands (e.g. boat launch) as park lands.  While the City’s own planning documents distinguished open space from park lands, the Court found sufficient evidence to support the City’s inclusion of open space lands (with a discounted value compared to more conventional park lands).  The appellate court concluded that while a more detailed explanation in the fee study justifying the different treatment of open space lands would be desirable, there was sufficient evidence such that the City’s approval for MFA purposes was not an abuse of discretion.

In its cross-appeal, Boatworks argued that the City was precluded from using the fees to fix existing facilities.  However, the Legislature had amended the MFA to provide that fees could be used to rehabilitate existing facilities or to meet a general plan standard.  Based upon this code section, the Court of Appeal recognized that new residents could use existing facilities, and there was no statutory conflict in using fees from new development to rehabilitate existing facilities with recognized deficiencies.

Boatworks’s remaining argument complained of the City’s approach in 2014 in allocating costs for a major new sports facility differed from the allocation used by the City in 2001.  Boatworks argued that the City was required to explain why it used a different approach.  The Court of Appeal disagreed, concluding that nothing in the MFA required the City to remain wedded to the same plan for facilities as long as the City could establish a sufficient nexus between new growth and the fees when approving the updated fee.

As to the appropriate judicial remedy for an improper fee, the appellate court concluded that the trial court incorrectly ordered the City to rescind the portion of the ordinance relating to the park fee.  Procedurally, the trial court should have invalidated the fee, and not compelled the City to undertake the legislative act of rescinding its prior legislative approval as this would violate the separation of powers.

The final issue related to the trial court award of attorney’s fees to Boatworks ($558,052.50) pursuant to the private attorney general statute, Code of Civil Procedure section 1021.5.  Appellate courts allow significant deference to the trial court in considering all of the relevant factors in a fee award.  As the City partially prevailed, the City argued that the Court should remand the attorneys fee award to the trial court for a new calculation. However, the Court of Appeal found that the relief granted to the City was limited and declined to do so.  While Boatworks, as a developer, had a potential economic interest sufficient to justify the litigation, there was sufficient evidence before the trial court that the elimination of the fee would potentially benefit thousands of future homebuyers would be otherwise presumably have to absorb the cost.  Given the uncertainty that Boatworks would ever successfully develop its property (meaning it may never benefit from the voided fee), it was not an abuse of discretion for the trial court to not further reduce the award.

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

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

By William W. Abbott & Kristen Kortick

Center for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210.

The question “how much is enough?” for programmatic EIRs remains an ongoing challenge for CEQA practitioners.  Programmatic EIRs are frequently prepared in conjunction with broad legislative acts where specific detail as to how the policy will be administered in the future is lacking.  This makes programmatic EIRs easy targets for project opponents who can always identify another study to be performed or another variable to be considered.  Neither the CEQA statute nor the Guidelines provide a meaningful metric to judge sufficiency.  Ultimately it is left to the reviewing courts to sort it out.  The Third Appellate District addressed this issue in a recent decision involving a statutorily mandated EIR prepared by the state Department of Conservation (“Department”) concerning fracking.  The legal setting is unusual because (a) the Legislature mandated the preparation of the EIR and (b) the Department did not approve any project.  While the threshold legal issue involved ripeness, the Court of Appeal also addressed programmatic EIRs, EIR scope (albeit in the context of a statutorily defined project), mitigation measures, and findings.

In this appeal, the court was asked to consider the sufficiency of a programmatic EIR mandated by the legislature when Senate Bill 4 (“SB 4”) passed in 2013 (Chap. 313, Stats. 2013).  SB 4 required the Department to consider the environmental effects of well stimulation (fracking) in a programmatic EIR due on or before July 1, 2015.  SB 4 also required a separate independent study (“Study”) by the Natural Resources Agency on well stimulation treatments, due on or before January 1, 2015.  The Department’s EIR was a programmatic document for statewide impacts but also included a more refined examination of the potential impacts in three particular oil and gas fields: Wilmington, Inglewood, and Sespe.   The draft EIR contained proposed mitigation measures.  However, industry representatives raised concerns that draft mitigation measures may constitute underground regulations.  In response, certain measures were converted to formal regulations and others were embodied into a “Mitigation Policy Manual”.  The Department finalized and certified the EIR resulting in the Center for Biological Diversity (“CBD”) challenging the EIR through a writ of mandate along with a claim for declaratory relief.  CBD complained as to the level of detail, the sufficiency of the document for project specific approvals, the lack of mitigation measures, and a mitigation monitoring program.  The trial court rejected all of petitioner’s claims.

Before addressing the specific issues on appeal, the court of appeal articulated three general principles applicable to judicial review of programmatic EIRs:

  1. Impacts and mitigation measures not determined at the first tier may be deferred to later tiers.
  1. The sufficiency must be reviewed in light of what is reasonably feasible, given the nature and scope of the project the “rule of reason.”
  1. Finally, the test as to the level of detail is: does the EIR entail sufficient information such that those who did not participate in its preparation to understand and meaningfully consider the issues.  The document label is not determinative, but rather the relevant question is whether the EIR provides the decision makers with sufficient analysis to intelligently consider the environmental consequences.

Demurrer to First Cause of Action.  In CBD’s first cause of action, CBD argued that the Department violated CEQA by carrying out a project of well stimulation in violation of CEQA.   The Agency argued before the trial court that the case was not ripe as the Department had not approved a project, and the Department was not directly undertaking well stimulation.  Both the trial court and Court of Appeal agreed with the Department.  This was an unusual situation in which the lead agency was not approving a project following EIR certification.

Scope of the EIR-Inclusion of the Study.  CBD also argued that the Department failed its statutory EIR obligation by not considering Volume 1 of the Study.  The Appellate Court rejected this argument, noting that the Study and EIR were codified in separate code sections. While the completion dates for both suggest that the Study would be available in time for the EIR, nothing in the legislation directly linked the two together.  The EIR made passing reference to Volume I of the Study but did not otherwise discuss it in depth.  The court concluded that the EIR included sufficient discussion and made a reasonable effort to disclose that there were no apparent conflicts.  Many of CBD’s arguments concerning conflicts between the Study and EIR involved Study Volumes II and III, which were not available at the time the EIR was certified.  While CBD also argued that the EIR should have been updated to respond to Volumes II and III, the latter Volumes were not in the record on appeal and the Appellate Court had no basis to reverse the Department’s certification.

Indirect Impacts.  CBD also argued that the EIR failed to evaluate the indirect impact of well stimulation (traffic, wastewater, and emissions.)  The Court of Appeal disagreed given the narrow scope of the project set forth in the enabling legislation.

Mitigation Measures.  CBD presents multiple challenges pertaining to the mitigation measures, all rejected by the Court of Appeal.  First, the court upheld the Mitigation Policy Manual, finding that it served as a floor to later mitigation requirements.  The Manual and the EIR certification reflected sufficient detail and commitment in implementation to overcome the claim of deferred mitigation.  The Manual (over 100 pages) included guidelines and checklists to guide proper application as individual well stimulation permits were applied for.  CBD also argued that the EIR failed to include feasible mitigation measures for indirect impacts.  The Department had deleted these mitigation measures in the final EIR on the grounds that the measures were infeasible.  The Department’s reasoning was that the indirect effects involved potentially opening new oil and gas fields.  Due in part to the objections concerning underground regulations, the Department concluded that it was inappropriate to adopt mitigation measures pertaining to new fields as conditions of approval on well stimulation permits.  The Appellate Court agreed, embracing a flexible concept of feasibility.

Findings and MMRP.  CBD also asserted CEQA violations as a result of no CEQA findings and the lack of a mitigation monitoring program.  The Department argued that findings and a monitoring program are not required until a project was approved.  Having already concluded that the Department was not approving a project, the Appellate Court rejected CBD’s argument.

Field Specific Analysis.  Finally, CBD complained that the more detailed field specific analysis was insufficient as certain discussions for the field analysis was the same as what the EIR presented for the statewide analysis.  The Appellate Court observed that the fact that the impact analysis was the same did not support the conclusion that the analysis was improper.  A challenger to an EIR bears the burden of showing the error, and there was no evidence in the record which demonstrated that the conclusions were incorrect.  The court noted that the EIR acknowledged that later environmental analysis may be required for well stimulation within those fields given the level of detail in the first tier.  This reflected the Department’s recognition that this first level EIR was not dispositive of all future CEQA review in those fields.

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

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

California Charter Schools Association v. City of Huntington Park 2019 Cal.App. LEXIS 444.

Cities and counties frequently rely upon Government Code section 65858 to control land uses in the face of a regulatory or policy update.  An interim ordinance can be adopted following minimum notice and hearing procedures.  The initial ordinance is effective for up to 45 days but may be extended for an additional ten months and 15 days, and thereafter may be extended for up to another twelve months.  By statute, an interim ordinance must be based upon findings of a current and immediate threat to the public health, safety, or welfare.

Huntington Park, a general law city 3.1 square miles in size, adopted a 65858 ordinance.  The City’s action was motivated by the receipt of a number of inquiries the City concerning land use requirements for charter schools.  At the time, twenty schools were located within the City, 6 were charter schools.  Many of the students came from outside the City, generating concerns over traffic, parking, and noise.  The ordinance prohibited the establishment of new charter schools.  Although the existing city code required a conditional use permit for any new school, the code lacked any specific development standards.

A charter school association filed suit, arguing that there was no immediate threat justifying the ordinance.  The trial court agreed with the City, but the court of appeal reversed.  The appellate court looked to the ordinance, the provisions of which recited that the City has received several inquiries, but there was no evidence of any pending applications.  On this basis, the appellate court concluded that there was no current and immediate threat to the public health, safety, or welfare and that the ordinance, on those findings, was improper.

William Abbott is an attorney 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’s 2019 1st 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.

1. 2019 CEQA UPDATE

To read the 2018 cumulative CEQA review, click here:

2. CASES PENDING AT THE CALIFORNIA SUPREME COURT

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

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

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

3. UPDATE

  1. Exemptions

Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880

Real parties filed for approvals to construct three homes on contiguous parcels in Berkeley hills. The City Board of Zoning Adjustment found that the proposed construction qualified for a Class 3 exemption (new construction of small structures.) Appellants contested the Board’s decision granting a categorical exemption citing the following causes of action: “1) the location exception under CEQA, 2) the unusual circumstances exception under the Guidelines, and 3) the City’s violation of the zoning requirements when they failed to require additional permits for a fifth bedroom on one of the parcels.” The trial court denied the petition for writ of mandate in its entirety.

A Class 3 exemption under CEQA allows for construction of new small structures of up to three single family residences in an urbanized area without environmental review. Guidelines, § 15303. The location exception to the Class 3 exemption states that a project location in a particularly sensitive location, subject to impacting an environmental resource of hazardous or critical concern, must go through environmental review. Guidelines, §15300.2, subd. (a). 

While reviewing Plaintiffs first and second cause of action, the court applied to Supreme Court’s standard of review in Berkeley Hillside 1, 60 Cal.4th at pg. 1093, holding that the City’s actions must display an abuse of discretion where there was no ‘reasonable possibility that the activity will have a significant effect on the environment.’ Guidelines, §15300.2, subd. (c).   

The Court further bifurcated its standard of review for the location exception into two separate prongs. 1) Unusual circumstances create an exemption to CEQA exception, and 2) the location is “an environmental resource of hazardous or critical concern.” Guidelines, § 15300.2(a). As part of their review of the “unusual circumstances” argued by Plaintiffs, the Court reviewed whether the project’s location along a faultline with the potential to create an earthquake triggered landslides requiring full CEQA analysis. 

Plaintiffs allege that the mere existence of a potential landslide is sufficient evidence to make all landslide areas “environmental resources of hazardous or critical concern.” The Court disagreed with Plaintiffs premise in its entirety holding that a potential for landslide does not provide clear and convincing evidence that an unusual circumstance exists. The Court’s plain understanding of the language written in the Guidelines alleged that potential earthquakes and landslides are “geological events…. and not resources.” The Court further reasoned that the geotechnical report reflects a concern for economic loss to property and human lives, but not a sensitive resource. The Court also held that the California Supreme Court in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473. stated, “despite [CEQA’s evident concern with protecting the environment and human health, its relevant provisions are best read to focus almost entirely on how projects affect the environment.” The Court lastly held that because the Legislature did not provide an exception to Class 3 projects for landslides or earthquakes, the Court would not further extrapolate on law that does not exist. 

The Court upheld the trial court’s dismissal of Plaintiffs third cause of action alleging the project required a new permit because of the addition of a fifth bedroom. The Court agreed with the City’s reasoning that that a new use permit was already issued on the project for new construction. Requiring an additional permit for the project because of the addition of a single bedroom would be redundant. The Court examined the plain language of the mini-dorm ordinance and held that the Planning Commission crafted the ordinance to be interpreted as broadly as possible. The City interpreted their Ordinance for the addition of a single room to one of the 3 parcel properties to be applied broadly since the project conforms with pre-existing zoning and insignificant impact. The Court reasoned that greater deference should be given to the City to interpret its own ordinances. 

Further, the Court held regardless of deference to the City’s interpretation of its ordinance, a plain read of the ordinance would still favor dismissal of the third cause of action. The plain language of the ordinance implies a fifth bedroom would be in addition to a preexisting structure. Since this project is a new building, there would be nothing to build as an addition to the property. As such, the Court of Appeal held that the trial court rightly dismissed the third cause of action. 

The Court of Appeal affirmed the trial court’s judgment in its entirety and awarded costs to the City for the appeal.   

  1. Thresholds of Significance
  1. Negative Declarations
  1. Environmental Impact Reports

South of Market Community Action Network v. City & County of San Francisco, (2019) ___ Cal.App. 5th ____

In 2014, real parties Forest City California Residential Development and Hearst Communications, Inc. (collectively “real parties”) sought to redevelop the San Francisco Chronicle building and surrounding structures and parcels and create a special use district (“the ‘5M’ project”). The developer advanced two options for redevelopment with one plan utilizing a residential scheme and one plan utilizing an office scheme. The DEIR and FEIR included analysis evaluating the potential alternatives for both schemes as well as a combination of both. After the public comment period and the San Francisco Board of Supervisors (“the City”) certified the FEIR, plaintiffs sought a writ of mandate in San Francisco Superior Court including alleged violations of CEQA requesting that the trial court set aside the certification of the FEIR and approval of the project. The trial court denied the writ of mandate and the First Appellate District affirmed the trial court’s decision.

On the merits, the appellate court held that the two alternate schemes were clear and provided an accurate project description. Plaintiffs argued the two schemes confused the project description; thus, the project description mislead members of the public who were unclear which project scheme would be ultimately decided upon. The appellate court disagreed. The court’s reasoning stated that the project description detailed one project with two options for different allocations of space. As such, the court found that there was more than sufficient information and clarity in the EIR and “enhanced, rather than obscured, the information available to the public.” The court further held that the project description is supposed to be treated as a fluid initial understanding of the project. Approval of the EIR need not be a blanket acceptance of the entire project description at its inception, but rather “approval of adopted characteristics of one of the proposed alternatives.” 

Plaintiffs further argued that the City incorrectly analyzed cumulative impacts by relying on projects during the recession of the last decade when San Francisco has “seen a tremendous uptick in development since the recession rendering the project list defective or misleading”. The court rejected this argument. As the court explained, it is within the agency’s discretion to select the methodologies used when evaluating cumulative impacts. Plaintiffs failed to show where the City’s methodologies were “unsupported by substantial evidence.” The court further articulated that the City re-reviewed its list of projects and methodologies prior to publication of the DEIR to verify the reasonable alternatives. 

As to the traffic impacts, plaintiffs asserted that the City failed to include key intersections in its  analysis. As to this claim, the court held that it is within an agency’s discretion which traffic resources to evaluate. Plaintiffs had yet again failed to prove that the City committed an abuse of discretion when completing its traffic and circulation studies and plaintiffs had offered no evidence to prove an abuse of discretion. Similarly, Plaintiffs had argued that the 5M Project failed to consider the concerns of the San Francisco Park Recreation and Open Space Advisory Committee about the lack of sunlight and open spaces on the project site. The court rejected this argument stating that plaintiffs failed to show the City violated CEQA or cite any legal authority to support their argument. 

Plaintiffs also asserted that the EIR’s analysis of wind impacts insufficiently examined existing conditions rather than the revised project proposal. As to this, the court held that plaintiffs failed to exhaust their administrative remedies claim with respect to the wind impacts. Nevertheless, the court did reach the merits of the claims brought by plaintiffs. The court held that plaintiffs improperly relied on the threshold established under San Francisco Planning Code Section 148 when they should have relied on CEQA Guidelines § 15126.4, subd. (a)(1)(4). Under the CEQA guidelines, a project proposal must merely identify mitigation measures for each significant impact, not redesign the project specs to encompass the “comfort threshold” requirement under San Francisco Planning Code Section 148.

Where raising concerns over the 5M Project’s shade and shadow impacts analysis, plaintiffs contended the City failed to propose proper mitigation measures for the shade and shadow impacts on the project. The court disagreed, determining that the plaintiffs failed to prove that the City abused its discretion when evaluating the shadow impacts from the project and further held that the City had the discretion to increase the shadow limits of the parks affected by the 5M Project.

Lastly, plaintiffs contended that the EIR fails to conform to existing city area plans, policies, and the City Planning Code. More specifically, plaintiffs argued that the DEIR failed to adhere to the regulations established in the Draft Central SoMa Plan. The court disagreed with plaintiffs claim holding that at the time the DEIR was in circulation the Central SoMa Plan was not adopted and therefor the City did not need to consider whether the 5M Project followed regulations outlined in a draft area plan. Further, the court rejected with plaintiffs’ argument that the City created “in essence spot zoning” to allow for approval of the 5M Project. The court summarily rejected each additional argument raised about the Project’s conformance with city policies and the City Planning Code. The court held that plaintiffs failed to provide reasoned arguments to prove the City neglected preexisting regulations and codes. The court further found that the administrative record demonstrated that the “City made a good faith effort to discuss inconsistencies with applicable policies and codes.” The court pointed out plaintiffs consistently failed to substantiate these claims with supporting evidence or legal authority.  

  1. Litigation Procedures

Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193

When the Coastal Commission accepts an appeal, it is a hearing de novo, meaning an entirely new hearing. The decision below (i.e. city council approval) no longer has any continuing legal effect. Once the commission agrees to hear the appeal, it is appropriate for the trial court to dismiss any legal action brought to challenge the city council approval.   

Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, (2019) 33 Cal.App.5th 165

CEQA authorizes a trial court, following a determination that the lead agency committed a CEQA error to direct very specific CEQA corrections in an updated CEQA document.   When that CEQA document comes back through the process the second time, can the project opponents then expand the issues to be address beyond what the trial court ordered?  The answer is no, reflecting the finality of the earlier trial court decision.

In Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, (2019) 33 Cal.App.5th 165.  project opponents filed suit over a quarry project.  The trial court rejected most of the opponents claims but agreed that the traffic analysis required correction.  The court issued a judgment and ordered the project approvals be set aside, that the EIR be fully decertified and an updated traffic analysis be circulated and certified.  The County complied.  The opponents filed a new writ challenging the updated EIR and project approval. Adding new issues beyond those in the original petition. At roughly the same time, the County filed a return to writ. Following review, the trial court determined that the lead agency had complied and then discharged the writ of mandate.

Responding to the new petition for writ of mandate, the trial court upheld the sufficiency of the traffic analysis and as to the new issues, concluded that the prior entry of judgment constituted res judicata as to all issues raised or which could have been raised.   The opponents appealed and the appellate court affirmed.

Recognizing the judgment entered in the first action and the failure of the opponents to file an appeal, the appellate court concluded that it was too late for the opponents to expand the issues in the second writ as to matters which were addressed or could have been addressed in the first lawsuit.   Opponents also argued that changes in law necessitated consideration of additional issues, however, as the opponents had not raised these issues in their opening brief on appeal, the appellate court would not consider the argument.

As to the recirculated traffic analysis, the appellate court affirmed the sufficiency of the updated traffic analysis but did not order that portion of the decision published.

Save Lafayette Trees v. City of Lafayette, (2019) 32 Cal.App.5th 148 

Land use approvals often trigger two different statutes of limitation. For purposes of general plan and zoning law, a challenger must file and serve the action within 90 days of the decision. Government Code section 65009.  As to the CEQA claim, the action must be served upon the agency within 10 days of filing the action. The CEQA claim must be filed within 30 or 35 days of posting the notice of determination or exemption (as appropriate), or 180 days if no notice is filed. Public Resources code section 21167. The land use statute of limitations applies to more than just permits and can include an agreement entered into between a city and utility regarding tree removal impacting a gas line. This decision modifies and replaces the 2018 decision of the same name.

  1. CEQA Guidelines Updates

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

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

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

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

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

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

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