In Discovery Builders, Inc. v. City of Oakland (2023) 92 Cal.App.5th 799, the First District Court of Appeal held an agreement between a developer and the City of Oakland was unenforceable to the extent it prevented the city from imposing new impact fees in the future. The court reasoned such a provision constituted an impermissible contracting away of the city’s police power.

Between 2004 and 2005, the city approved a vesting tentative map and final tract maps for a 400-unit housing project. The city’s approval required that the developer satisfy various terms and mitigate various environmental impacts. In 2005, the city and developer entered into a separate agreement (“2005 Agreement”), which set the terms by which the developer would compensate the city for employee services and outside consultants required to satisfy the agreed-upon terms and mitigation requirements. Development of the project began soon thereafter.

In 2016, as development was continuing, the city enacted three new impact fees for development projects —an affordable housing impact fee, a transportation impact fee, and a capital improvements impact fee. In 2019, the developer filed for the last round of building permits for the project. The city assessed all three new fees against each of three requested building permits. The developer filed a petition for writ of mandate against the city, which the trial court granted. The trial court relied on Section 7 of the 2005 Agreement, which stated that the “City Fees and other monies paid and to be paid by Developer which are referred to in [the] Agreement satisfy all the Developer’s obligations for fees to the city for the Project.” The trial court held this provision reflected the city’s agreement to limit the fees applied to the project to only those identified in the 2005 Agreement and ordered the fees refunded.

The appellate court reversed the trial court’s decision. Relying on Avco Community Developers Inc. v. South Coast Regional Committee (1976) 178 Cal.3d 785, and its progeny, the court held the 2005 Agreement was invalid to the extent it prevented the city from imposing impact fees in the future, reasoning that municipalities may not contract away their usage of the police power in the future. Because the city rightfully exercised its police power in enacting the 2016 fees, any provision of the 2005 Agreement that sought to limit such a rightful usage of the city’s police power was impermissible.

The developer argued the city did not contract away its police power in the 2005 Agreement because the agreement did not impact the city’s ability to legislate, suggesting, in the words of the court, that “a city’s police power is concerned only with the power to enact laws, not the power to enforce laws.” The court disagreed, citing article XI section 7 of the California Constitution, which states that the city may “make and enforce” ordinances and regulations related to the police power. The developer also argued the city did not contract away its police power in the 2005 Agreement because the agreement did not interfere with the city’s ability to make and enforce future zoning laws on other developers. The court disagreed, citing precedent that invalidated agreements exempting a small subset of parties from laws and ordinances.

Commentary: What is interesting in Discovery Builders is the omission of any discussion of development agreements. California’s development agreement law allows developers to secure a customized vested right through the freedom of contract. (Gov. Code, § 65864-65869.5.) Development agreements can lock in laws, regulations, and fees in existence at the time of execution. Development agreements are only valid to the extent they satisfy numerous requirements created by statute. The development agreement law is best thought of as a rare exception to the ban on municipalities limiting their police power in the future. Here, an effective development agreement could have plausibly helped the developer avoid the end-stage fee increases present in this case. Other courts when faced with similar vesting arguments associated with an agreement have discussed statutory developments as the recognized exception to the Avco rule. While this court was not required to discuss statutory development agreements, the court’s silence should not be treated as a rejection of statutory development agreements as a tool.

William Abbott is Of Counsel and Garrett Bergthold 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.

In Durkin v. City and County of San Francisco (2023) 90 Cal.App.5th 643, San Francisco’s typical arduous land use approval process sets the foundation for an anti-SLAAP case with interesting ramifications for neighborly disputes.  A homeowner (“Appellant”) sought to remodel and expand a single-family home.  The Planning Department determined the project was categorically exempt from CEQA.  Neighbors appealed Planning’s determination to the Board of Supervisors (“Board”), which conditionally reversed the exemption determination, finding there was substantial evidence that the project may result in substantial adverse impacts to the historic significance of the neighboring property, which had not been adequately addressed by Planning.  Appellant submitted another application and Planning issued another categorical exemption, though Planning later revised itself and rescinded the categorical exemption.  Appellant appealed to the Board, which refused to hear the appeal.  

The City then prepared a preliminary mitigated negative declaration (“MND”) addressing the adjacent historic resources. The neighbor whose property had been the subject of the purported historic resource impacts (“Affected Neighbor”) appealed the preliminary MND.  The Planning Commission denied the appeal and adopted a final MND.  Affected Neighbor appealed to the Board, which reversed the Planning Commission’s adoption of the final MND.  The Board directed Planning to conduct further study on slope stability and potential impacts to the structural integrity of Affected Neighbors property and to analyze and apply appropriate mitigation measures.

Appellant Seeks Judicial Reprieve

At that point, Appellant had enough and filed a petition for writ of mandate against San Francisco.  The petition named Affected Neighbor as a real party in interest.  Affected Neighbor then filed an anti-SLAPP motion, contending the petition arose from his protected activity of appealing the final MND to the Board and Appellant lacked minimal merit because the Board’s decision was supported by substantial evidence.  The trial court granted the anti-SLAAP motion and awarded Affected Neighbor $219,269.25 in total fees.

The Dispute Did Not Arise from Affected Neighbor’s Protected Activity

Resolution of an anti-SLAAP motion requires two inquiries: (1) the moving defendant must make a prima facie showing that the challenged claim arises from the defendant’s constitutionally protected free speech or petition rights, and, given defendant meets its burden, (2) the burden shifts to the plaintiff to establish a probability of success on the claim.  (Baral v. Schnitt (2016) 1 Cal.5th 376, 381-382, 384.)   The anti-SLAAP law protects “allegations of protected activity that are asserted as grounds for relief.”  (Id. at p. 395, italics omitted.)  Thus, the relevant inquiry is whether the moving defendant’s conduct “forms the basis for the claim” at issue.  (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.) 

Here, the First Appellate District for the Court of Appeal recognized that Affected Neighbor’s relevant conduct—appealing the final MND to the Board—is petitioning activity that is generally protected under the anti-SLAAP law.  But in answering whether such conduct formed the basis of, or arose from, the causes of action at issue, the court answered no.  The court held it was various acts or omissions by the Board, not Affected Neighbor, that formed the basis of the dispute.  There were two cases of action for mandamus in the petition, which were based on the following facts:  the board failed to make factual findings in support of its decision to reverse the final mitigated negative declaration, the board’s decision was not supported by substantial evidence, and the board held more than five hearings on the project in violation of the Housing Crisis Act of 2019.  These, the court reasoned, were acts or omissions of the Board, not Affected Neighbor.  Affected Neighbor was not a defendant, he was a real party in interest, and the court held it was irrelevant that Affected Neighbor’s petitioning activity triggered the Board’s actions that formed the basis of the petition. Thus, the court held Affected Neighbor as the moving party failed to make a prima facie showing that the challenged claim arose from the defendant’s constitutionally protected free speech or petition rights and was entitled to relief under the anti-SLAAP law.

The Anti-SLAAP Motion Was Not Frivolous

Appellant contended the anti-SLAAP motion was frivolous and sanctionable.  A frivolous anti-SLAAP motion can be aimed at causing unnecessary delay or harassing a party.  Frivolous in the context of an anti-SLAAP motion “means that any reasonable attorney would agree the motion was totally devoid of merit.”  (L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918, 932.)  The court recognized the Appellants provided no evidence that the anti-SLAAP motion was filed to harass and delay.  The court held the motion was not frivolous, and thus, not sanctionable.

William Abbott is Of Counsel and Garrett Bergthold 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.

The Claremont Canyon Conservancy v. Regents of the University of California (2023) 92 Cal.App.5th 474.

The Regents certified an EIR for a project aimed at reducing wildfire risk at UC Berkeley’s Hill Campus, located in the East Bay Hills.  Environmental organizations filed suit, contending, relevant here, that the EIR included an inadequate project description.  The groups generally contended that the EIR should have detailed the precise quantity of trees to be removed.  The trial court sided with the groups, concluding the project description was “uncertain and ambiguous.”  The First District Court of Appeal reversed, holding that the project description included sufficient information to allow the public to understand the project’s environmental impacts. 

CEQA Guidelines § 15124 requires that a project description include: the precise location and boundaries of the proposed project on a detailed map; a general description of the proposed project’s objectives, including the project’s underlying purpose; a general description of the project’s technical, economic, and environmental characteristics; and a brief description of the EIR’s intended uses.  The First District held the project description satisfied Guidelines § 15124 in that the EIR included: a sufficiently detailed map, a sufficient description of the project’s objectives, which stated the project’s underlying purpose as “reduc[ing] the amount and continuity of vegetation that increases wildland fire hazards, including highly flammable invasive plant species” while explaining why vegetation removal was required in the included areas; provided sufficient descriptions of the vegetation found in each project area, while listing “objective removal criteria” and a summary of “the methods used to remove vegetation;” and included a sufficient description of the EIR’s intended uses.

Moreover, regarding the groups’ displeasure with the EIR not specifying the exact number of trees that would be removed during the project, the court concluded the “princi8ples of density thing and objective criteria listed” in the EIR was sufficient.  Guidelines § 15124 states that project descriptions “should not supply extensive detail beyond that needed for evaluation and review of the environmental impact.”  Here, the appellate court concluded that the EIR included a stable project description along with a sufficient level of detail.  The EIR included a description of the iterative decision-making process to be employed in the field by arborists and professional foresters.  The site-specific evaluation would take into consideration site-specific issues such as fuel mix, density terrain, tree height, and canopy cover.  Given the potential for vegetation changes between EIR certification and project implementation, the appellate court agreed with the Regents that it was not feasible to do more at the time of EIR certification, as EIRs do not require “technical perfection,” “scientific certainty,” and “exhaustive analysis,” but rather, require only “adequacy, completeness and a good-faith effort at full disclosure.”

Also relevant is the court’s apparent endorsement of the Regents’ usage of fire models to predict fire behavior on the Hill Campus.  “The modeling considered factors including flame length, rate of spread, crown fire activity, and maximum spotting distance, along with the vegetation in a particular location—e.g., oak-bay woodland, eucalyptus forest, and coniferous forest. The EIR contains figures showing vegetation and fuel distribution in the project areas and the predicted crown fire activity under certain weather conditions.”  In its recently released guidance concerning best practices for wildfire risk mitigation under CEQA, the state Attorney General ‘s office recommended the use of fire modeling in quantifying wildfire risk, stating models should include a variety of plausible scenarios.

Bill Abbott is Of 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.

(United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074)

CEQA’s infill exemption (Guidelines section 15332) is a very useful tool in the toolbox for streamlining CEQA review.  This Guideline applies in cities and can be applied to sites up to five acres in size if substantially surrounded by urban development.  (Note to the California Legislature: if you are serious about CEQA reform, do something useful such as expanding this provision to include counties and increase the maximum acreage limitation.)  The use of this provision requires, among other provisions, consistency with “the applicable general plan designation and all applicable general plan policies as well as the applicable zoning designation and regulations.”

As noted in United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074, 1097, “all applicable general plan policies” doesn’t mean consistency with just some policies.  At issue in United Neighborhoods was a teardown of existing rent-stabilized units replaced by a hotel project.  The use of the infill exemption was approved by the City but later appealed.  Both the trial court and the Court of Appeal agreed with project opponents that the City’s consideration of “applicable” policies was too narrow, and as a consequence, substantial evidence did not support the City’s use of a CEQA exemption.

The problem faced by the City, and this would be true under many local housing elements, is that it is common to have broadly drafted goals and policies.  While broadly stated goals and policies may allow for flexibility for consistency determinations under general plan law (Sequoyah Hills Homeowners Association vs City of Oakland (1993) 23 Cal.App.4th 704), that same flexibility in balancing competing policies does not extend to CEQA.  This impacted the City’s defenses.  The City argued that the hotel project was not a “housing” project, so policies regarding affordable housing did not apply.  But the appellate court concluded that there was nothing in the general plan which carved out existing housing stock from the goals for adequate housing.  The City also argued that it could engage in balancing, but the appellate court rejected that argument based upon the reference to “all applicable” in the Guidelines.  Finally, the City argued that a reviewing court was required to give deference to the City in interpreting its own general plan goals and policies.  The appellate court agreed with this in principle, however, the same deference did not apply to the determination of what goals and policies were required to be considered.

Bill Abbott is Of 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.

(Anderson v. County of Santa Barbara (2023) 94 Cal.App.5th 554.)

It is not unusual in the non-urban parts of California for a property owner to install landscaping within a county right-of-way without ever securing an encroachment permit.  In Santa Barbara County, like many jurisdictions, installing these improvements without County approval can be treated as a misdemeanor.  Such work can also violate the Streets and Highways Code.

Following the County road commissioner’s attempts to compel removal of unpermitted landscaping to restore street parking, the affected property owners sued and obtained a preliminary injunction from the trial court against the County, preventing the County from enforcing removal pending a trial on the merits.  The issue in this reported decision was the appropriateness of that preliminary injunction.  The appellate court reversed the trial court as to the grant of the preliminary injunction.

The appellate court addressed several important issues for city and county officials facing other enforcement scenarios. As a threshold issue, the court determined that CEQA should not be used to frustrate criminal law enforcement.  This blog focuses on the intersection of CEQA with the County enforcement efforts.  The owners challenged the lack of a CEQA document, and the County argued that multiple separate CEQA exemptions applied.  The property owners countered, arguing that the efforts to increase street parking was part of a larger project, or alternatively, that the “unusual circumstances” limitation excluded the use of exemptions.

The owners asserted that there was a larger connected project (increased trail hiking) which had never been studied. But the court concluded that the County’s project was to restore parking that had previously existed, and this project had independent utility and thus could be studied on its own.  As to exemptions, the County argued that the activity was subject to three alternative exemptions: 15301, maintenance of existing facilities; 15304, minor alterations to land; and 15321, enforcement actions by regulatory agencies.  After determining that the enforcement action had independent utility and thus was not part of a larger project, the appellate court rejected the argument that there was piecemealing and the enforcement action fit within the exemptions.  The appellate court then rejected the owners’ argument that there were unusual circumstances which operated to preclude the use of exemptions. Applying Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the appellate court then concluded that the evidence of the road, along with its relationship to sensitive environmental lands, was not unusual compared to other nearby roads and habitat lands, and upon that basis, it reversed the trial court’s contrary finding.

When all factors were considered, the appellate court concluded that as a matter of law, a preliminary injunction against enforcement should not have been granted.  After trial, the lower court ruled in favor of the owners, but that is unlikely given the thoughtful analysis by the court of appeal.  

Bill Abbott is Of 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.

(Martinez v. City of Clovis (2023) 90 Cal.App.5th 193)

The California Court of Appeal, Fifth Appellate District affirmed the trial court’s ruling that City of Clovis (the “City”) did not substantially comply with the Housing Element Law (“Housing Element Law”).[1]  In order to come into compliance with the Housing Element statute, the City implemented two changes to its Municipal Code designed to accommodate greater affordable housing development.  To do so, the City amended the General Plan to allow for multi-family housing in the Public Facilities Zone (“P-F Zone”) and adopted a corresponding zoning ordinance to (a) provide for multi-family housing as a permitted use in P-F Zone and (b) add a new overlay zone district for Regional Housing Needs Allocation (“RHNA”), known as the RHN Overlay, which provided by-right approval for lower income housing in all vacant, residentially zoned property between one and 10 acres within the City limits.  Since the City had a shortfall for the current planning period—the carryover from the prior planning period—the Housing Element Law imposes a minimum density requirement to rezone sites to accommodate the shortfall of affordable housing units.  However, since the City’s overlay designation did not change the base zoning, it allowed for development to continue to occur at a density lower than the statutory minimum. Therefore, the court held the RHN Overlay sites do not comply with Housing Element Law, because it does not guarantee compliance with the mandatory statutory minimum.  In a nutshell, putting an overlay zone on the properties does not require that any of the sites be developed at the higher densities required for affordable housing units. 

City History of Housing Element Compliance

The two RHNAs that are relevant to this case are the RHNA adopted by the Fresno Council of Governments (“COG”) for the 2006 through 2013 years (the fourth revision cycle for the City’s Housing Element) and the RHNA for the January 1, 2013, to December 31, 2023, period (the fifth revision cycle).  The fifth cycle was adopted by COG on July 31, 2014, and set forth the RHNA for Clovis and all other jurisdictions in Fresno County.  Sometime in 2016, Clovis adopted the “Fresno Multijurisdictional 2015-2023 Housing Element” (2015-2023 Housing Element).  It stated that Clovis’s fifth cycle RHNA totaled 6,328 housing units, which consisted of 1,160 extremely low-income units, 1,161 very low-income units, 1,145 low-income units, 1,018 moderate income units, and 1,844 above moderate-income units.  The fifth cycle also addressed Clovis’s fourth cycle RHNA and the number of unaccommodated housing units that carried over to the fifth planning period.  The City’s fourth cycle RHNA had a total of 15,383, including 1,637 extremely low-income units, 1,638 very low-income units, and 2,354 low-income units (i.e. a total of 5,625 lower income units.  Clovis met its fourth cycle RHNA for moderate and above moderate-income units.  In contrast, Clovis failed to accommodate 4,425 units of its lower income housing RHNA of 5,629 units. 

The shortfall during the fourth cycle was caused by the City rezoning a substantial amount of land at densities that could accommodate 4,614 lower income units, but only 717 units on sites zoned R-4 met the statutory requirements for adequate sites.  For sites to satisfy the lower-income RHNA during the carryover period, they must meet the following statutory requirements:

  • Must be rezoned within the first year of the next cycle following shortfall; and
  • Must be rezoned to permit owner-occupied and rental multi-family housing by right without discretionary review of the use or density; and
  • Must be zoned with a minimum density of 20 units per acre and be large enough to accommodate at 16 units per site (Government Code § 65583.2(h)); and
  • Additionally, at least 50 percent of the low income RHNA carryover must be allowed on sites designated for exclusively residential uses. 

After going back and forth with the California Department of Housing and Community Development (“HCD”), in 2019, HCD finally deemed the City in compliance with the Housing Element Law.

Plaintiff’s Contentions

Plaintiff Martinez sought a writ of mandate for violation of the Housing Element Law challenging  (1) the adequacy of the City’s amended housing element; (2) the City’s failure to comply with the requirement to rezone to accommodate the RHNA carryover within the first year of the fifth planning period; and (3) the City’s failure to implement Program 4, the action plan the City promised HCD would cure the shortfall in lower income housing.  The trial court granted the writ of mandate for the three causes of action and directed the City to file a return within 150 days stating how it had complied with the writ.  The City appealed.  The appellate court affirmed the trial court order as to the 1st and 3rd causes of action and reversed as the 2nd cause of action because it held, unlike the trial court, that the City was not required to provide an analysis of the feasibility of development in the rezoned areas.   

Program 4 and the RHN Overlay

Program 4 in the 2015-2023 housing element stated Clovis would rezone to accommodate its fourth cycle RHNA shortfall of 4,425 lower income units by December 31, 2016.  However, the City never demonstrated implementation of the program and instead offered only an anticipated schedule for program implementation.  Clovis ultimately failed to meet its deadline in December 2016 and HCD subsequently revoked its finding that the City’s Housing Element substantially complied with state law.  In November 2018, Clovis again attempted to bring the Housing Element into compliance by adopting the RHN Overlay to provide by-right approval for multi-family housing at a density of 35 to 43 units per acre on any residentially zoned sites with a minimum of 1 acre and a maximum of 10 acres.  However, the base zoning in existence when the overlay was enacted still applied to the RHN Overlay sites. That base zoning permitted development at densities below 20 units per acre on all except one of the sites, and some densities were as low as 0.5 units per acres, far below the statutory minimum for carryover Housing Element zoning.

The Court of Appeal determined the statutory standard Clovis failed to meet was a mandatory minimum.  This means that the City is required to not only adopt zoning regulations that accommodate high-density multi-family housing, but also enforce the exclusivity of those zones for that purpose.  The City’s responsibility is not simply to refrain from housing discrimination, but rather, it is obligated to “affirmatively further fair housing.”  The Court concluded that the City could not satisfy its Housing Element duties by borrowing from existing zoned sites and merely expanding their usage; rather, it was required to rezone those sites entirely.  Consistent with this determination, the Court of Appeals also held that HCD was “clearly erroneous” when it approved the RHN Overlay as compliant with the Housing Element Law in 2019.

Feasibility Analysis

However, the court also pushed back against the plaintiff’s contentions that when designating Housing Element zones for nonvacant sites, the City is required to conduct an analysis of the feasibility of development on those sites, including publishing its methodology and including its findings in the Housing Element itself.  The court agreed with the Clovis that, although “the goal [of the Housing Element Law] is not just to identify land, but to pinpoint sites that are adequate and realistically available for residential development targets for each income level,” the City was not required to carry out an analysis that is not required by the Legislature by statute. 

Conclusion

The key takeaway from this case is that to comply with the Housing Element Law and the affirmative duty to further fair housing, many local governments will need to designate exclusive income-based housing sites rather than layering them upon existing zones.  However, the State’s emphasis with local governments remains centered on local land use control.  Local governments are still not required to build, finance, or otherwise contribute public funds to construct lower income housing.

[1]   Further references to the “Housing Element” are to sections 65580 through 56689.11, which constitute article 10.6 of Chapter 3 of Division 1 of Title 7 of the Government Code. 

Kara Anderson 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.

Cal. Restaurant Ass’n v. City of Berkeley (2023) 65 F.4th 1045.

In the continued effort by cities to require all-electric infrastructure in new buildings, the City of Berkeley (“Berkeley”) adopted an ordinance that prohibited, with some exceptions, natural gas infrastructure in newly constructed buildings (“Ordinance”).  Congress adopted the Energy Policy and Conservation Act (“EPCA”), 42 U.S. 6297(c)), which expressly preempts state and local regulations concerning the energy use of many natural gas appliances, including those used in household and restaurant kitchens.  The Ninth Circuit Court of Appeals (“9th Circuit”) concluded that Berkeley is preempted from prohibiting natural gas piping because Berkeley is barred from banning natural gas appliances. As denying gas piping will render any natural gas appliances useless to the homeowner or commercial user, the 9th Circuit held the EPCA preempts the Ordinance.

Scope of EPCA Preemption

EPCA preempts regulations that relate to “the quality of natural gas directly consumed by certain consumer appliances at the place where those products are used.”  EPCA concerns the end-user’s ability to use installed covered products at their intended final destinations.  A regulation that prohibits consumers from using appliances impacts the “quality of energy directly consumed by the appliances at the point of use.  So, in plain language, EPCA preempts the Ordinance because the Ordinance prohibits the installation of necessary natural gas infrastructure on premises where covered natural gas appliances are used. 

The court reinforced this interpretation of the EPCA’s scope by emphasizing that a regulation need not be written directly against the products covered under the EPCA; instead, the statute protects against regulations that “concern” such products.  Therefore, given the broadness of the term “concerns,” the court explained that local governments have less authority to regulate products under the EPCA as the statute’s terms grant widespread control over those regulations to the federal government.

Berkeley’s Contentions

Berkeley contended that its Ordinance does not regulate “energy use” because it bans natural gas rather than prescribing an affirmative “quality of energy.”  While Berkeley agreed that a prohibition on natural gas infrastructure reduces energy consumption to zero, Berkeley argued that “zero” is not a “quantity.” Thus, the Ordinance is not an “energy use” regulation.  The 9th Circuit quickly dispensed with this argument, determining it is well accepted in ordinary usage that “zero” is a “quantity.”

Berkeley’s second, equally unpersuasive argument is that EPCA’s definition of energy efficiency precludes a total prohibition on natural gas piping from being an “energy use” regulation.  EPCA defines “energy efficiency” as the “ratio of the useful output of services to the energy use of the product.  (Section 6291(5).)  According to Berkeley, “zero” cannot serve as the “quantity of energy” in “energy use;” otherwise the energy efficiency ratio would have an impermissible “zero” denominator.  But in that case, both the denominator (“energy use”) and the numerator (“output”) would be zero, which yields an indeterminate result.  The 9th Circuit doubted Congress meant to hide an exemption to the plain text of EPCA’s preemption clause in a mathematical equation.  Thus, a regulation that imposes a total ban on natural gas is not exempt from EPCA because it lowers the “quantity of energy” consumed to “zero.” 

Conclusion

In sum, Berkeley cannot bypass the preemption by banning natural gas piping within buildings rather than banning natural gas products themselves.  With several cities and counties adopting and considering similar ordinances or policies in their Climate Act Plans or through their building codes, it is essential to evaluate if the prohibitions or restrictions are preempted by the EPCA or other legislation adopted by Congress or California.  It is also vital to assess prospective policies beyond their direct implications, as the court has decided that EPCA’s preemption extends past facial regulations.   Furthermore, this is consistent with the recent California Supreme Court case holding that Monterey County’s Measure Z banning the injection of oil and gas wastewater on all lands within Monterey County is preempted by Public Resources Code section 3106.  Thus, while cities and counties have broad zoning powers, the local legislation cannot conflict with federal or state law.   (Chevron U.S.A. Inc, v. County of Monterey (2023) S271869.) 

Patrick Enright is Senior Counsel and Kara Anderson 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.

Chevron U.S.A. Inc. v. County of Monterey

California’s oil and gas operations are governed by Division 3 of the Public Resources Code (§ 3000 et seq.) and its implementing regulations (Cal. Code Regs., tit. 14, § 1712 et seq.).  Division 3 addresses various aspects of oil and gas exploration and extraction, including notices of intent to drill and abandon (§§ 3203, 3229), blowout prevention (§ 3219), repairs (§3225), protection of water supplies (§§ 3222, 3228), and well spacing (§§ 3200-3609).  The implementing regulations, in turn, address the process for oil producers and well operators to obtain state approval of “drilling, reworking, injection, plugging, or plugging and abandonment operations” (Cal. Code regs., tit.14, § 1714) and provide instructions and timelines for filing well and safety records with CalGEM. (Id. at § 1724.1.)  The regulations are “statewide in application for onshore drilling, production, and injection operations,” and all onshore prospect, development, and service wells shall be drilled and operated in accordance with them.  (Id. at § 1712.)

Public Resources Code subdivisions 3106(a) and (b) provide:

“The [state oil and gas] supervisor shall so supervise the drilling, operation, maintenance, and abandonment of wells and the operation, maintenance, and removal or abandonment of tanks and facilities attendant to oil and gas prevention . . . [the supervisor] shall supervise the drilling, operation, maintenance, and abandonment of wells so as to permit the owners or operators of the wells to utilize all methods and practices known to the oil industry for the purpose of increasing the ultimate recovery of underground hydrocarbons and which, in the opinion of the supervisor, are suitable for this purpose in each proposed case. . . .   it is hereby declared as a policy of this state that the grant in an oil and gas lease or contract to a lessee or operator of the right or power, in substance, to explore for and remove all hydrocarbons form any lands in the state, in the absence of an express provision to the contrary contained in the lease or contract, is deemed to allow the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to do what a prudent operator using reasonable diligence would do . . . including, but not limited to, the injection of air, gas, water, or other fluids into the productive strata . . .  when these methods or processes employed have been approved by the supervisor, except that nothing contained in this section imposes a legal duty upon the lessee or contractor, or the lessee’s or contractor’s successors or assigns, to conduct these operations.”

Thus, the statute directs the supervisor to administer the state’s regulations in a way that serves the dual purpose of ensuring the state has adequate oil and gas resources while protecting the environment.

Monterey County’s Measure Z

In 2016, Protect Monterey County (“PMC”) sponsored, and Monterey County (“County”) votes passed Measure Z.  This ordinance bans oil and gas wastewater injection and impoundment and the drilling of new oil and gas wells throughout the unincorporated areas of the County.[1]  What is labeled as LU-1.22 of the Measure provides,

“Prohibited Land Uses:  The development, construction, installation, or use of any facility, appurtenance, or above-ground equipment, whether temporary or permanent, mobile or fixed, accessory or principal, in support of oil and gas wastewater injection or oil and gas wastewater impoundment, is prohibited on all lands within the County’s unincorporated area.” 

LU-1.23 provided:

“Prohibited Land Uses: The drilling of new oil and gas wells is prohibited on all lands within the County’s unincorporated area.”

County’s Zoning Powers; Preemption

The Supreme Court initially discussed the County’s powers under Article XI, section 7 of the California Constitution which provides that a “county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.”  If a local legislation conflicts with state law, it is preempted by the state law and is void.  (Sherwin-Williams Co. v. City of Los Angeles (1993) 4 Cal.4th 893, 897; quoting Candid Enterprises, Inc v. Grossmont Union High School Dist. (1985) 39 Cal.3d 878, 885.)  The Supreme Court has identified three ways in which a preempting conflict may arise: if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication.  (Sherwin-Wiliams, supra, 4 Cal.4th at 897.)  A contradiction occurs when a local ordinance “prohibits what [a] state enactment demands.” (Quoting City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc. (2013) 56 Cal.4th 729, 743.)

Here, the Court found Measure Z contradicted the statute under section 3106.  Whereas the state’s provision assigned the authority to regulate oil and gas production methods to the state supervisor, Measure Z reallocated that authority to the County.  The Measure, in explicitly banning certain methods of production, acted contrary to the state supervisor who has the statutory authority and obligation to regulate.  Thus, the Measure was preempted by 3106.  The Supreme Court was unconvinced by the appellant’s argument that a local regulation prohibiting an activity is not preempted by a statute that authorizes a state authority to permit, rather than demand, that activity.  The Court clarified that local prohibition of an activity for which permission is regulated by the state is necessarily preempted.  (Citing Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 293.)

However, the Court also reinforced that nothing in this opinion diminishes local governments’ authority to regulate where oil and gas may be produced within their localities.  It expressed the narrowness of this holding by explaining that local regulations requiring permits for oil drilling operations or restricting oil drilling operations to particular zoning districts remain valid.

Conclusion

In sum, Monterey County cannot assert a local ordinance under Measure Z that contradicts Public Resources Code section 3106 because the latter preempts the former.  This is consistent with the recent Ninth Circuit decision holding that the City of Berkeley is preempted from implementing a local ban on natural gas piping because, under the Energy Policy and Conservation Act, local governments cannot ban natural gas products.  (Cal. Restaurant Ass’n v. City of Berkeley (2023) 65 F.4th 1045.)  Thus, while cities and counties have broad zoning powers, local legislation cannot conflict with state or federal law.

[1]   The Measure also banned fracking, but the Court determine no petitioner was using or proposing to sue the fracking process banned in Measure Z.  Thus, the Court did not have address the fracking provisions of Measure Z. 

Patrick Enright is Senior Counsel and Kara Anderson 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.

Diane G. Kindermann (2015-2023) and William W. Abbott (2004-2023) were again selected for the Northern California Super Lawyers List in the practice areas of Land Use and Zoning law. More information is available here.

Abbott & Kindermann, Inc. has been serving private and public clients in California on land use, environmental, and real estate matters for more than 25 years.

For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Diane Kindermann, Bill Abbott, Glen Hansen or Patrick Enright at 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’s wildfire season now spans nearly the full calendar year. For California Environmental Quality Act (“CEQA”) practitioners, this means the enhanced scrutiny of wildfire and evacuation impact discussions in CEQA documents is an emerging issue that compels more robust CEQA evaluation than has traditionally been afforded to this topic. This new emphasis comes from revisions to the CEQA Guidelines (the “Guidelines”), trial court filings, and appellate court decisions. This article is devoted to identifying useful resource documents that can assist local agency planners and CEQA consultants in addressing project review and impact analysis. This blog reviews the CEQA Guidelines and recent case law evaluating wildfire impact analyses, along with additional resources for planners and CEQA practitioners.

These materials are arranged as follows:

I. Wildfire and the CEQA Guidelines

II. CEQA Caselaw and Wildfire Issues

III. Related Statutes and Regulations

IV. CEQA Guidance (California Attorney General)

V. Land Use Planning Guidance (OPR)

VI. Wildfire Resource Links

I. Wildfire and the CEQA Guidelines

The Guidelines address fire risk in two separate Appendix G analyses: Sections IX and XX:

Section IX: Hazards and Hazardous Materials, part of the Guidelines for many years, asks the following relevant questions regarding whether a proposal would:

f) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan; or

g) Expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires.

Section XX: Wildfire, added to the Guidelines in 2018, asks additional wildfire-related questions aimed at proposals located in or near state responsibility areas or lands classified as very high fire hazard severity zones. The section asks whether the project would:

a) Substantially impair an adopted emergency response plan or emergency evacuation plan;

b) Due to slope, prevailing winds, and other factors, exacerbate wildfire risks, and thereby expose project occupants to, pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire;

c) Require the installation or maintenance of associated infrastructure (such as roads, fuel breaks, emergency water sources, power lines, or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment; or

d) Expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes.

Additionally, the Guidelines indirectly address fire-related risk in the mandatory findings of significance (Guidelines § 15065(a)(4)), which provide for a mandatory finding when “[t]he environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.”

II. CEQA Caselaw and Wildfire Issues

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

Clews involved a mitigated negative declaration (“MND”) approved for the construction of a school atop a bluff in San Diego’s Carmel Valley. Clews Land and Livestock, LLC. (“Clews”) owned a horse ranch adjacent to the proposed location of Cal Coast Academy that was approved by the city (together, “Respondents”). The area is within a “very high fire hazard severity zone.” The Clews alleged an environmental impact report (“EIR”) should have been performed under CEQA because the project exacerbated fire hazards, among other concerns. Specifically, Clews argued the proposal interfered with the ability of people and animals at the ranch to evacuate in the event of a wildfire. The Fourth District Court of Appeal disagreed, reasoning that the city’s fire marshal found the project complied with city fire codes, and the project did not introduce any new fire hazards that did not already exist.

Clews’ argument was primarily based on a report prepared by its fire safety hazard expert, who posed several questions about fire safety that the consultant alleged went unanswered in the MND. Among the topics the expert addressed were the school’s evacuation plan, and first responder response times and capabilities. Clews’ expert contended the main roadway would be inadequate to support the safe evacuation of the school in addition to the animals and people at the ranch in the event of a wildfire. The appellate court, however, said the expert’s comments were “conclusory, speculative or otherwise unsupported,” and that Clews generally failed to present a fair argument that the addition of more people in the area would have caused significant environmental impacts.

The appellate court concluded that Clews failed to show a fair argument existed that the project would materially affect evacuation routes in the area. It said the city was not required to prepare an EIR because the fire risk in the area, while high generally, was not increased due to the existence of the new project. In fact, the court pointed out that Respondents, by incorporating a new water line and fire hydrant line, appeared to increase fire safety in the area. It was dissuaded by Clews’ contention that the main road was inadequate to satisfy a successful evacuation of the occupants and animals at both properties. The court pointed out that an alternative fire evacuation route existed along a nearby dirt road. It also relied on the fact that the school intended to only operate part of the year and intended to close on red flag days out of an abundance of caution. Additionally, the court reasoned that the inherent difficulty in evacuating the ranch—comprising 135 horses, 15 cattle, ranch personnel, clients and trailers—existed prior to the school proposal, and thus, would not be significantly affected by the school.

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

Newtown Preservation Society involved a bridge replacement project in El Dorado County. The County of El Dorado (“County”) approved an MND stating that the project’s impacts would be less than significant. A local community group, Newtown Preservation Society (“Newtown”), sued the County, contending an EIR should have been prepared instead. Newtown alleged substantial evidence existed that pointed toward significant environmental impacts related to resident safety and emergency evacuations in the event of a wildfire.

The MND acknowledged that bridge construction would force the closure of a main road, forcing traffic to detour onto another road, which was a longer route out of the area. The MND provided mitigation measures including the creation of a temporary evacuation route downstream from the new bridge by acquiring a temporary easement over a property near the bridge. The MND concluded that the completed project, as mitigated, would not expose people or structures to new or increased significant risk of loss, injury, or death involving wildland fires.

Newtown purported to offer substantial evidence, which comprised of residents’ comments. One of the statements came from a retired Cal Fire aerial firefighter who contended that the proposal would block one of the primary escape routes from the canyon for up to two fire seasons. The Third District Court of Appeal found Newtown failed to provide any facts related to how the firefighter was an expert in ground evacuation routes. It cited Joshua Tree Downtown Business Alliance v. County of San Bernardino, 1 Cal.App.5th 677, 690-691 (2016), which concluded a lay person’s opinion based on technical information that requires expertise does not qualify as substantial evidence.

The appellate court concluded residents’ statements regarding existing threats of wildfire and individual sentiments related to experiences with past wildfire were insufficient to constitute substantial evidence needed to require an EIR under CEQA. While expert opinion substantiated by fact will normally satisfy as substantial evidence, the court concluded the residents’ comments lacked factual foundation and failed to show how the alternative evacuation plan included in the MND would fail to sufficiently mitigate impacts on safety.

Save the El Dorado Ditch v. El Dorado Irrigation Dist. (2022) 75 Cal.App.5th 239

Save the El Dorado Ditch (“Appellant”) challenged the approval of an EIR by the El Dorado Irrigation District (“EID”) for a water pipeline project. Among Appellants’ allegations was a contention that EID failed to adequately analyze the impacts of the project on firefighting water supplies, thereby increasing the risks associated with wildfire. The Third District Court of Appeal, however, concluded the EIR was sufficient, as Appellants failed to present substantial evidence to the contrary.

EID sought to replace approximately three miles of an unlined earthen ditch system with a buried water transmission pipeline proposed to be located either beneath the ditch itself or beneath a berm located alongside the ditch. However, EID instead approved an alternative to the project, which essentially abandoned EID’s use of the ditch altogether in favor of most of the pipeline being placed under a nearby roadway.

Appellants sued, alleging EID’s approval of the alternative project violated CEQA because, by abandoning the ditch, EID would also be abandoning a water source for firefighters to utilize in the event of wildfire. Appellants contended the EIR was deficient because it discussed only construction-related firefighting risks and disregarded contentions regarding the loss of the ditch water for firefighting purposes.

The draft EIR noted the alternative project would have similar impacts to wildland fire risk as the initial proposal. The analysis concluded fire hazards in the project area would be unaffected because the proposal did not create a fire hazard. The draft EIR stated that the ditch’s water supply is not part of the local Cal Fire unit’s strategic plan for fighting wildfire in the area.

Several public comments were submitted during the comment period concerning the alleged removal of a water source used as a firefighting tool. The final EIR directed at least one commenter to a wildfire protection-related master response that stated that the ditch is not a firefighting resource, and thus, there were no significant impacts to be mitigated. The appellate court concluded EID’s response to the comments in the final EIR was sufficient.

League to Save Lake Tahoe Mountain v. County of Placer (2022) 75 Cal.App.5th 63

In October 2016, the Placer County Board of Supervisors certified an EIR and approved a specific plan for a project involving lands in a “very high fire hazard severity zone,” as classified by Cal Fire. The specific plan provided for development of up 1,360 dwelling units and up to 6.6 acres of commercial use. Within this area, the County of Placer (“County”) maintained an evacuation plan, the Placer Operational Area East Side Emergency Evacuation Plan. The project opponents (“League”) filed suit, challenging the less-than-significant impact analysis conclusion in the EIR as it pertained to interference with an evacuation plan, among other issues. The trial court determined that the fire/evacuation analysis did not comply with CEQA. The developer appealed on this issue (other issues were appealed by the developer, as well as the project opponents), and the Third District Court of Appeal reversed the trial court’s decision, concluding that the hazards analysis, and the conclusion of a less-than-significant impact, complied with CEQA.

To put this appellate court decision into context, the Guidelines, as it pertains to wildfire, were amended in 2018, so the decision relied upon the prior version of the Guidelines. The EIR considered the Guidelines as they existed pre-2018, using the following threshold of significance:  the project’s impact would be significant if the project would “impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan.” The draft EIR concluded that the impact would be less than significant, based on several factors:

  • The project included emergency access;
  • The project’s incremental traffic increase would be insufficient to interfere with the use of the main highway under the County’s evacuation plan or otherwise modify any existing evacuation routes;
  • The project included an emergency preparedness and evacuation plan, coordinated with the County’s plan and the closest fire district. The plan included a requirement for later project EIRs to require the homeowner’s association (“HOA”) (prior to a specified development threshold) to construct a shelter-in-place amenity; and
  • The cumulative effects of this project and others were not cumulatively considerable.

In response to public comments on the draft, the County expanded the discussion of this issue.  The master response in the final EIR discussed the emergency plan in greater detail focusing on the implementation of existing regulations, including defensible space, fuel maintenance, structural and infrastructure requirements and building code requirements. The plan would also impose requirements on water supply and flow, emergency access, evacuation signage, public education and communication, forestry management, strategies to address onsite hazards and development restrictions. The final EIR also reviewed a study performed by a traffic consultant, evaluating how long evacuation would take assuming maximum occupancy, during the summer months, a peak time for traffic. The study concluded that project evacuation (existing plus project) would be 1.3 hours, and 1.5 hours under cumulative conditions. The final EIR noted that any project would add evacuation time, but that this did not necessarily generate a safety risk. Emergency personnel take into consideration the time necessary for evacuation when determining when and where to issue evacuation orders.

The master response also addressed the comment complaining of a lack of modeled traffic events during an emergency event. The final EIR noted the significant number of different hypothetical fire events influenced by humidity levels, wind direction, and fuel loading. The EIR noted that any one model would be speculative and not representative of actual conditions on the ground.  Given those constraints, an evaluation, such as the one performed, which looked at total time to exit, was a reasonable metric to apply.

The appellate court concluded that the record included substantial evidence to support the less-than-significant conclusion, noting the following:

  • Nothing in the project or cumulative conditions would prevent or interfere with the County evacuation plan;
  • The project would include two additional evacuation access routes for a total of three;
  • The project included internal access roads so that every parcel had two routes for ingress and egress;
  • In reviewing the traffic consultant’s study, the County implicitly found that 1.3 and 1.5 hours for evacuation were reasonable;
  • The project would not significantly increase response times from the nearby fire district;
  • Between impact fees and financial contributions through the development agreement (“DA”), the project would contribute to help fund two additional firefighter positions;
  • The final EIR provided a reasonable response and explanation regarding the traffic model. EIRs are not required to engage in speculation;
  • The County was not required to use its standard significance thresholds for traffic (note: this EIR evolved prior to the CEQA change to vehicle miles traveled (“VMT”) analysis), and the EIR adequately disclosed the basis for the different metric applied by the County; and
  • Although the project’s emergency plan contained many measures unrelated to evacuation, these measures (e.g., vegetation control) would reduce the risk of fire or the spread of fire which would otherwise lead to an evacuation event.

Based upon these considerations, the appellate court concluded that substantial evidence supported the conclusion that the project’s impacts related to an adopted evacuation plan were less than significant.

The Claremont Canyon Conservancy v. Regents of the University of California (2023) 92 Cal.App.5th 474

The Regents of the University of California (“Regents”) certified an EIR for a project aimed at reducing wildfire risk at UC Berkeley’s Hill Campus, located in the East Bay Hills. Environmental organizations (“Opponents”) filed suit, contending, relevant here, that the EIR included an inadequate project description. The Opponents generally argued that the EIR should have detailed the precise quantity of trees to be removed. The trial court sided with the Opponents, concluding the project description was “uncertain and ambiguous.” The First District Court of Appeal reversed, holding that the project description included sufficient information to allow the public to understand the project’s environmental impacts.

CEQA Guidelines § 15124 requires that a project description include: the precise location and boundaries of the proposed project on a detailed map; a general description of the proposed project’s objectives, including the project’s underlying purpose; a general description of the project’s technical, economic, and environmental characteristics; and a brief description of the EIR’s intended uses. The First District held the project description satisfied Guidelines § 15124 in that the EIR included: a sufficiently detailed map, a sufficient description of the project’s objectives, which stated the project’s underlying purpose as “reduc[ing] the amount and continuity of vegetation that increases wildland fire hazards, including highly flammable invasive plant species” while explaining why vegetation removal was required in the included areas; provided sufficient descriptions of the vegetation found in each project area, while listing “objective removal criteria” and a summary of “the methods used to remove vegetation;” and included a sufficient description of the EIR’s intended uses.

Moreover, regarding the Opponents’ displeasure with the EIR not specifying the exact number of trees that would be removed during the project, the court concluded the “principles of density thinning and objective criteria listed” in the EIR was sufficient. Guidelines § 15124 states that project descriptions “should not supply extensive detail beyond that needed for evaluation and review of the environmental impact.” Here, the appellate court concluded that the EIR included a stable project description along with a sufficient level of detail. The EIR included a description of the iterative decision-making process to be employed in the field by arborists and professional foresters. The site-specific evaluation would take into consideration site-specific issues such as fuel mix, density terrain, tree height, and canopy cover. Given the potential for vegetation changes between EIR certification and project implementation, the appellate court agreed with the Regents that it was not feasible to do more at the time of EIR certification, as EIRs do not require “technical perfection,” “scientific certainty,” and “exhaustive analysis,” but rather, require only “adequacy, completeness and a good-faith effort at full disclosure.”

Also relevant is the court’s apparent endorsement of the Regents’ usage of fire models to predict fire behavior on the Hill Campus. “The modeling considered factors including flame length, rate of spread, crown fire activity, and maximum spotting distance, along with the vegetation in a particular location—e.g., oak-bay woodland, eucalyptus forest, and coniferous forest. The EIR contains figures showing vegetation and fuel distribution in the project areas and the predicted crown fire activity under certain weather conditions.” In its recently released guidance concerning best practices for wildfire risk mitigation under CEQA, discussed in more detail below, the California Attorney General ‘s office recommended the use of fire modeling in quantifying wildfire risk, stating models should include a variety of plausible scenarios.

III. Related Statutes and Regulations

A. The Subdivision Map Act requires certain findings for subdivisions located in state responsibility areas or very high fire hazard severity zones. Government code 66474.02 provides as follows:

(a) Before approving a tentative map, or a parcel map for which a tentative map was not required, for an area located in a state responsibility area or a very high fire hazard severity zone, as both are defined in Section 51177, a legislative body of a county shall, except as provided in subdivision (b), make the following findings:

(1) A finding supported by substantial evidence in the record that the subdivision is consistent with regulations adopted by the State Board of Forestry and Fire Protection pursuant to Sections 4290 and 4291 of the Public Resources Code or consistent with local ordinances certified by the State Board of Forestry and Fire Protection as meeting or exceeding the state regulations.

(2) A finding supported by substantial evidence in the record that structural fire protection and suppression services will be available for the subdivision through any of the following entities:

(A) A county, city, special district, political subdivision of the state, or another entity organized solely to provide fire protection services that is monitored and funded by a county or other public entity

(B) The Department of Forestry and Fire Protection by contract entered into pursuant to Section 4133, 4142, or 4144 of the Public Resources Code.

(b) Upon approving a tentative map, or a parcel map for which a tentative map was not required, for an area located in a state responsibility area or a very high fire hazard severity zone, as both are defined in Section 51177, a legislative body of a county shall transmit a copy of the findings required in subdivision (a) and accompanying maps to the State Board of Forestry and Fire Protection.

(c) (1) Subdivision (a) does not apply to the approval of a tentative map, or a parcel map for which a tentative map was not required, that would subdivide land identified in the open space element of the general plan for the managed production of resources, including, but not limited to, forest land, rangeland, agricultural land, and areas of economic importance for the production of food or fiber, if the subdivision is consistent with the open space purpose and if, for the subdivision of land that would result in parcels that are 40 acres or smaller in size, those parcels are subject to a binding and recorded restriction prohibiting the development of a habitable, industrial, or commercial building or structure. All other structures shall comply with defensible space requirements described in Section 51182 of this code or Sections 4290 and 4291 of the Public Resources Code.

(2) Any later approval to remove a binding restriction placed as a condition of a tentative map, or a parcel map for which a tentative map was not required, that would allow the development of a building or structure for a parcel that has previously been exempted from the requirements of subdivision (a) pursuant to paragraph (1) of this subdivision shall be subject to the requirements of subdivision (a).

(d) This section does not supersede regulations established by the State Board of Forestry and Fire Protection or local ordinances that provide equivalent or more stringent minimum requirements than those contained within this section.

B. Cal Fire’ s authority to adopt regulations for land development and construction: Public Resources Code Section 4290, Public Resources Code Section 4291.

C. Cal Fire General Plan Safety Element Review regulations: Cal. Code Regs., tit. 14, §§ 1265.00-1265.03.

D. Cal Fire State Responsibility Area Minimum Fire Safe regulations: Cal. Code Regs., tit 14, §§ 1270.00-1276.05.

E. Wildfire Risk and the Housing Crisis Act

Preliminary Applications

The Housing Crisis Act of 2019 (“HAA”) established a Preliminary Application process that entitles developers of housing projects to lock into place city fees, policies, and ordinances prior to filing a complete application.  (Gov. Code § 65589.5, subd. (o).)

Though the provisions of the HAA generally “prevail over any conflicting provision of this title or other law regulating housing development in this state” (Gov. Code § 66300, subd. (f)(1)), an exception exists for projects proposed in areas which qualify as very high fire hazard severity zones, as defined in Government Code Section 51177. (Gov. Code § 66300, subd. (f)(4).)

Thus, applicants cannot take advantage of the HAA’s Preliminary Application process to the extent it is preempted by the plethora of state laws related to development very high fire hazard severity zones. Practitioners should be aware of that exception from the onset of a new project to avoid unnecessary expense. The HAA provides a procedural pathway for applicants to learn this of this exception early in a project’s timeline, though it may not be early enough in all circumstances. (See Gov. Code § 65589.5, subd. (a)(8)(A) [A Preliminary Application is deemed submitted when an applicant provides various information including whether the subject parcel is located in areas which qualify as very high fire hazard severity zones.].)

Limitations on Downzoning or Adopting Moratoria

The HAA limits “affected” cities or counties from downzoning (unless accompanied by concurrent upzoning) (Gov. Code § 66300, subd. (b)(1)(A)) or adopting moratoriums or other growth control measures on new housing developments (Gov. Code § 66300, subd. (b)(1)(B), (D)).  Those restrictions, however, do not apply to housing development projects located in a very high fire hazard severity zone. (See Gov. Code § 66300, subd. (f)(4).)

IV. CEQA Guidance

Best Practices for Analyzing and Mitigating Wildfire Impacts of Development Projects Under CEQA

In 2022, the California Attorney General became active in local land use issues concerning rural development and wildfire risk.  The focus was the sufficiency of the CEQA documentation for projects which were located in higher fire risk areas.  The Attorney General also took the unusual step in October 2022 to issue a CEQA “best practices” memorandum.  This Memorandum provided detailed background and recommendations for how local governments should be evaluating risk and mitigation – no small undertaking.  This Memorandum sets the bar extremely high.  It is inescapable that the Memorandum will be used as a metric for evaluating the legal sufficiency of CEQA documents.  This can only increase the cost of CEQA documentation and increase the legal risk for potential projects in areas at risk from wildfires.  This Memorandum and the expanded CEQA consciousness that comes with it addresses only a part of the problem.  CEQA does not address existing rural land use patterns, nor does it solve the serviceability of existing roadway systems or sufficiency of local fire departments and Cal-Fire resources.  These issues will need to be addressed by the Governor and the Legislature.

For more information specifically regarding CEQA, see:

The California Environmental Quality Act requires local jurisdictions considering development projects to prepare an environmental impact report or a mitigated negative declaration if the project may have a significant impact on the environment and is not otherwise exempt from CEQA.  The “environmental checklist form” in Appendix G of the CEQA Guidelines, Section XX, directs lead agencies to assess whether projects located in or near state responsibility areas of lands classified as very high fire hazard severity zones, would:

  1. Substantially impair an adopted emergency response plan emergency evacuation plan.
  2. Due to slope, prevailing winds, and other factors, exacerbate wildfire risks, and thereby expose project occupants to pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire.
  3. Require the installation or maintenance of associated infrastructure (such as roads, fuel breaks, emergency water sources, power lines or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment; or
  4. Expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes.

In addition, Section IX (g) of the checklist broadly directs lead agencies to consider whether a project will “expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires.”  Lead agencies must consider both on- and off-site impacts.

Several variables should be considered in analyzing a project’s impact on wildfire risk, including:

Project Density

Project density influences how likely a fire is to start or spread, and how likely it is that the development and its occupants will be in danger when a fire starts.  Fire spread and structure loss is more likely to occur in low-to-intermediate-density development.  This is because there are more present to ignite a fire (as compared to undeveloped land), and the development is not concentrated enough (as compared to high-density developments) to disrupt fire spread by removing or substantially fragmenting wildland vegetation.  The conflict here is that the very reason many people move to the foothills and mountains is to live in a low-density development.

Project Location in the Landscape

Project placement in the landscape relative to fire history, topography, and wind patterns.

Water Supply and Infrastructure

Analyze the adequacy of water supplies and infrastructure to address firefighting within the project site.  The analysis should consider the potential loss of water pressure during a fire, which may decrease the available water supply and the potential loss of power, which may eliminate the supply.

Lead agencies are encouraged to develop thresholds of significance that either identity an increase in wildfire risk as a significant impact or determine, based on substantial evidence, that some increase in the risk of wildfires is not considered a significant impact.

Lead agencies must consider the wildfire risks, landscape, and development for new development.  This includes the density of housing, topography, and water supply as well as evacuation routes.

V. Land Use Planning Guidance

Land Use Planning Guidance

The Governor’s Office of Planning and Research “(OPR)” periodically publishes independent planning analysis documents. On August 2022, OPR updated its Fire Hazard Technical Assistance Memorandum: Fire Hazard Planning Technical Advisory, 2022 Update, also referenced above in regards to CEQA Guidance.

This advisory discusses the regulatory and policy background along with sample planning policies. OPR’s advisories are not adopted as regulations through the California Administrative Code.

VI. Wildfire Resource Links

  • Cal Fire publishes Fire Hazard Severity Zone Maps for all regions in California.
  • The California Board of Forestry and Fire Protection has provided a variety of tools to help implement the California Vegetation Treatment Program, including a variety of examples of Project-Specific Analysis.
  • In an unpublished appellate decision, the Fourth District Court of Appeal viewed favorably a lead agency’s evacuation analysis and the corresponding EIR analysis.
  • Additionally, here are links to the evacuation analysis and EIR analysis that formed the basis for the Court of Appeal to reverse the trial court in League to Save Tahoe Mountain, discussed above.
  • The California Building Industry Association submitted a study and comments to Cal Fire for the agency’s consideration when drafting new fire risk regulations for development. This study supports the conclusion that new master plan communities face reduced risk compared to older existing developed areas due to, among other design features, updated fire codes for new construction, inclusion of secondary access, and vegetation management.

William Abbott is Of Counsel and Garrett Bergthold and Kara Anderson are Law Clerks 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.