Friday, February 26, 2010

City’s Agreement to Provide Services to Tribal Casino is Not a “Project” Under CEQA

Parchester Village Neighborhood Council v. City of Richmond, No. A123859 (Feb. 24, 2010) available at CourtWebsite

In the Parchester Village Neighborhood Council v. City of Richmond decision, neighborhood and environmental groups alleged that the City of Richmond (City) violated CEQA by entering into a municipal services agreement (MSA) with the Scotts Valley Band of Pomo Indians of California (Tribe) to provide police, fire and other public services for the Tribe’s proposed casino. The litigation centered on whether the MSA and casino were a “project,” for which the City should have performed environmental review under CEQA. The First District Court of Appeal sided with the City in finding that a public agency must consider whether the execution of an agreement is a “project” under CEQA in light of all the circumstances.

Following the Tribe’s proposal to build a 225,000 square foot casino on land held in trust for the Tribe, the City began negotiating the terms of a proposed MSA with the Tribe. During these negotiations, City staff determined that the casino project would have a tremendous impact on the City. Because the City would have no say over federal or state decisions concerning the casino, the City approved the MSA in order to secure funding to mitigate the casino’s impacts and to improve services.

After the MSA was executed, a lawsuit was filed contending that the casino and MSA were a “project” requiring the City to conduct environmental review under CEQA before executing the MSA. The court, however, found that the casino was not a “project” requiring environmental review by the City because the City had no legal authority over the property on which the casino was to be developed. Citing the California Supreme Court’s recent Save Tara v. City of West Hollywood decision, the court further found that the totality of the circumstances confirmed that the MSA itself was not a project. Important to the court’s holding was the fact that the City did not commit itself to making any of the physical improvements referenced in the MSA nor did the MSA require the City to issue any land use entitlements. Instead, the court found that the MSA was merely a funding mechanism for uncertain, future improvements. The court found it noteworthy that the MSA included a provision requiring that future improvements undergo environmental review under CEQA. Although not the sole basis for its ruling, the court found that this CEQA compliance provision was a “legitimate ingredient” of the MSA.

The court’s ruling is important because it reaffirms the Save Tara decision by holding that a public agency must consider whether the execution of an agreement is a “project” under CEQA – and hence whether environmental review is required prior to executing that agreement – in light of all the circumstances, such as those described above.

Wednesday, February 17, 2010

CEQA Guidelines Amendments Filed by California Office of Administrative Law

On February 16, 2010, the California Office of Administrative Law filed the finalized CEQA Guidelines amendments with the Secretary of State. The amendments were initially approved by the California Natural Resources Agency in December 2009 pursuant to Senate Bill 97, and will now become effective on March 18, 2010. The amendments provide guidance regarding the analysis of greenhouse gases in CEQA documents. They are intended to help minimize inconsistencies in the analysis of greenhouse gases and help lead agencies more effectively evaluate greenhouse gas emissions and their associated impacts.

A copy of the amendments is available from the Natural Resources Agency here: CEQA Guidelines Amendments (.pdf file)

Thursday, February 11, 2010

30-Day Statute of Limitations Applies to All CEQA Challenges to Decisions Announced in Notices of Determination

From the California Supreme Court

Committee for Green Foothills v. Santa Clara County Board of Supervisors (Board of Trustees of the Leland Stanford Junior University), No. S163680 (Feb. 11, 2010) available at CourtWebsite

Challenges to government actions under CEQA generally face unusually short statutes of limitation, most of which are triggered by the filing of a public notice, which reports an agency’s determination about the applicability of CEQA or the potential environmental impact of a project. An action challenging this determination must generally be brought within 30 days after the notice is filed.

This case involved a particular kind of challenge following a notice of determination (NOD). In the case, Santa Clara County entered into an agreement with Stanford University to dedicate easements and fund improvements for trails to satisfy certain conditions of a permit. The County found that the agreement did not require CEQA review because it contemplated that additional review and consideration was required by other jurisdictions before the improvements could be made. Therefore, the County filed an NOD that reported the agreement and indicated that the County had not approved any specific improvements for the trails. After 171 days had passed, the Committee for Green Foothills filed a CEQA challenge of the County's approval of the agreement.

After the trial court's rejection of the petition, and the Court of Appeal's reversal, the California Supreme Court granted review to confront the question of which statute of limitations should be applied when an NOD has been filed, but the underlying action alleges that no environmental review was undertaken. In such cases, it could either be the general 30-day limit on challenges following a notice or the longer 180-day period that is provided for a case alleging that no environmental determination was made. (See Public Resources Code §§ 21167, subds. (b), (c) & (e); 21167, subd. (a).)

The Supreme Court held that the filing of an NOD triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice. This interpretation is consistent with the language of section 21167 and the general approach of all notice-based statutes of limitation. The Court found that the Legislature clearly intended the 30-day statute to apply when an agency files an NOD, and this limitations period may not be extended based on the nature of the CEQA violation alleged.

Tuesday, February 2, 2010

Mitigation Measures Cannot Be Destroyed Without Review and Substantial Evidence

Katzeff v. California Department of Forestry and Fire Protection 2010 Cal. App. LEXIS 98 (Cal. App. 1st Dist. Jan. 28, 2010) available at CourtWebsite

The Court of Appeal held that even when approval of an action is ministerial, a public agency may not authorize destruction of prior required mitigation without first reviewing the continuing need for the mitigation, stating the reason for its actions, and supporting it with substantial evidence.

In this case, two prior timber harvesting plans had required, as necessary mitigation for impacts resulting from the plans, that certain trees remain in place to block excessive winds. Several years passed and the timber harvesting plans expires. In a later action, the California Department of Forestry and Fire Protection (CDF) granted a conversion exemption allowing the harvesting of less than three acres of timber without environmental review for the same area of trees. Under the Forest Practices Act of 1973 (FPA) and the Forest Practice Rules, such exemptions are allowed upon determining that they are consistent with the purposes of the FPA and meeting certain regulatory requirements.

Due to the uncertainty regarding whether the mitigation was still necessary, the court found that such an exemption from environmental review was improper under CEQA and the FPA. The court held that the authorization of the destruction or cancellation of mitigation requires a review of the continuing need for the mitigation. Such review is needed regardless of whether or not the approval resulting in said destruction is ministerial. Furthermore, an agency must include a statement of the reason for the action and substantial evidence in support of the decision before destroying such mitigation.