Friday, January 1, 2010

Local Government's Decision Not To Renew a CUP was Exempt From CEQA

Sunset Sky Ranch Pilots Association v. County of Sacramento (Taylor) (Dec. 28, 2009, S165861) __ Cal.4th __.

A lead agency’s decision to not renew a conditional use permit (“CUP”) was not considered a “public project” under CEQA. The act of declining to authorize activities that require obtaining permits did not constitute a public agency action taken to cease the operations of the business.

In the case, the County of Sacramento (“County”) declined to renew a CUP for a privately owned airport. Petitioner Sunset Sky Ranch Pilots Association sought a writ of mandamus that would prevent the airport from closing. The trial court denied the petition. On appeal, the appellate court reversed and held that the County’s action amounted to a “project” pursuant to CEQA.

The Supreme Court of California granted review of the case and ultimately held that the Court of Appeal erred because it had misconstrued the nature of the project. The Supreme Court held that declining to renew the permit was not a “public” project under CEQA, because the County did not “directly undertake” an action to close the airport. Instead, the County was not reauthorizing a private activity that required the issuance of a permit. The airport operation was the nature of a reviewable “project” in question in the case. However, such projects that are rejected by a public agency are specifically exempted from CEQA requirements.

Failure to Approve EIR One Year from Date that the Application is Deemed Complete Does Not Force Certification of EIR and Approval of Project

Schellinger Brothers v. City of Sebastopol (Dec. 2, 2009, A122972) __ Cal.App.4th __

The one-year period for certification of an EIR after a project’s application is deemed complete, as set forth in Public Resources Code section 21151.5, is not a mandatory jurisdictional deadline. A lead agency’s failure to act pursuant to this deadline does not result in certification of the EIR and approval of a project by operation of law.

In this case, a developer appealed a lower court's dismissal of its petition for writ of mandamus, which would have required the City of Sebastopol (“City”) to certify the EIR and approve a subdivision project for the development of 182 single-residential housing units. The developer had revised the scope of the project numerous times, and several years passed without certification of the EIR.

The Court of Appeal held that the one-year period for certification of an EIR set forth in Public Resources Code section 21151.5 was not a mandatory jurisdictional deadline. The City’s failure to act on the EIR did not result in the automatic approval of the developer’s project by operation of law. The statutory deadlines do not constitute a categorical or jurisdictional bar to preparing and certifying EIRs that take more than 365 days after a project’s application is deemed complete.

Accordingly, the court noted that a writ could not issue under either of the mandamus statutes or under Public Resources Code section 21168.9 to compel the exercise of a lead agency’s duty in a particular fashion. The court further found that the developer's action was unreasonably delayed and that the developer had essentially acquiesced to the City’s delay. Thus, the developer was thus barred by the doctrine of laches for seeking relief due to its delay.