Sequential Lot Line Adjustments Deemed Ministerial Acts Under New Napa County Ordinance

Sierra Club v. Napa County Board of Supervisors (April 20, 2012) No. A130980, available at CourtWebsite

In this case, the Sierra Club challenged Napa County’s approval of a lot line adjustment ordinance, arguing that the ordinance violated the law because it allowed for the ministerial approval of “sequential lot line adjustments” -- meaning additional adjustments performed after an initial lot line adjustment. Sierra Club contended that such lot line adjustments were discretionary acts within the meaning of CEQA, and thus the ordinance could have potentially allowed applicants to circumvent CEQA’s environmental review process. However, the court disagreed with the Sierra Club’s arguments, and instead held that the approval of a lot line adjustment under the ordinance was a ministerial act, and thus it was not subject to CEQA.

The court noted that the State CEQA Guidelines consider a local public agency as the most appropriate entity to determine what is ministerial based on its analysis of its own laws and regulations and that those agencies should make such determinations. (CEQA Guidelines sections 15022, subd. (a)(1)(B) and 15268, subds. (a) and (c).) The court also noted that the “touchstone” for discretionary acts subject to CEQA is “whether the approval process involved allows the government to shape a project in any way which could respond to any of the concerns which might be identified in an [EIR].” It further noted that a local government is foreclosed from influencing a project if the applicant can compel approval without changes in the design that might alleviate adverse environmental consequences.

The court considered that the Subdivision Map Act exempts certain lot line adjustments from discretionary review, and in keeping with this, it found that the procedure for approving lot line adjustments under the ordinance was ministerial unless a variance or use permit was involved. More specifically, it found that the approval process only involved determining conformity with a set of rules, but provided “no ability to exercise discretion to mitigate environmental impacts.” Finding that the ordinance also would not enable development beyond what was possible through prior policies and laws, the court concluded that approval of a lot line adjustment under the ordinance was ministerial and thus was not subject to CEQA.

New Appellate Case Reins In The Sunnyvale Restrictions Against Using Future Baselines for Infrastructure Projects

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (April 17, 2012) No. B232655 available at CourtWebsite

California's 2nd Appellate District for the Courts of Appeal has just issued a decision that rejects a line of cases in the 5th and 6th Appellate Districts stemming from Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal. App. 4th 1351, 1383 -- a line of cases based on Sunnyvale's conclusion that a project's baseline that is used for analyzing the significance of impacts cannot be based on conditions existing after the anticipated time of project approval.

This new case involved a railway project that would run from downtown Los Angeles to Santa Monica, but would not begin to operate until 2015 at the earliest. The court found that using existing conditions as a baseline for analyzing the project's impacts would have been wrong for the project, because it would rest the EIR's analyses on a false hypothesis that everything would remain the same many years later when the project was actually completed. Thus, the court found that using an appropriate projected future baseline (instead of existing conditions), when supported by substantial evidence, is an appropriate means to analyze the traffic and air quality effects of a long-term infrastructure project. Thus, contrary to the Sunnyvale line of cases, the court found that using a future baseline, even after the date of project approval was reasonable -- especially for long-term infrastructure projects (e.g., large-scale railway, highway, and water supply projects, etc.) where the project will not be completed, and thus the impacts from the project will not be realized, for decades to come.

This case is groundbreaking. It brings sweeping reform to the baseline selection process pursuant to CEQA. However, it is important to note that there is now a disagreement between the courts in California, and because of the conflict between appellate courts, even further changes in the selection of appropriate baselines could come if the Supreme Court weighs in.

Bay Area Superior Court Deals Jolt to Air District's Standards of Significance for Air Quality and Greenhouse Gas Emissions

California Building Industry Association v. Bay Area Air Quality Management District (Super. Ct. Alameda Co.Mar. 5, 2012) No. RG10-548693, available at CourtWebsite

The Alameda County Superior Court recently ordered the Bay Area Air Quality Management District to set aside the standards it adopted in 2010 for determining the significance of air quality and greenhouse gas emissions, and ordered the district to take no further action to disseminate those standards before performing CEQA review related to issuing the standards. The standards have been relied upon by lead agencies since adoption, and other air districts and lead agencies around the state could be drawn into litigation regarding the necessity for conducting CEQA review prior to adopting similar thresholds.

The court found that the standards constituted a "project" under CEQA because there was a fair argument that they could cause a reasonably foreseeable indirect change in the environment. BAAQMD argued that the thresholds were only a set of policies and not mandatory on other agencies. However, the court disagreed, finding that the thresholds were not flexible and the appropriateness of their application was not determined on a case-by-case basis. The court also found the thresholds were not exempt under CEQA's common sense exemption because no notice of exemption had been filed and such an exemption argument had not been raised before.

Categorical Exemption Held Invalid Based on Reasonable Possibility of Significant Effects

Berkeley Hillside Preservation v. City of Berkeley (Cal. Ct. App. February 15, 2012) No. A131254, available at CourtWebsite

In this case, the court held that "once it is determined that there is a reasonable possibility that a specific activity may have significant effects …, application of a categorical exemption no longer is appropriate, because such a project is different from activity that generally does not have environmental effects." This ruling is certain to impact agencies' application of categorical exemptions.

The case centered around a 6,478 square-foot single-family residence, with an attached 3,394 square-foot 10-car garage (to address lack of street parking) in a hilly Berkeley neighborhood -- substantially larger than the average Berkeley home. The local zoning board found the project was categorically exempt from CEQA under the in-fill exemption (CEQA Guidelines section 15332) and single-family exemption (section 15303, subdivision (a)), and it did not trigger any exceptions to the exemptions (section 15300.2). A group of citizens argued that the project may have a significant impact due to its "unusual size, location, nature and scope" and two geotechnical engineers offered differing opinions as to whether the project would have significant seismic and geotechnical-related impacts. The city council approved the project.

The trial court upheld the categorical exemption, finding that although there was "substantial evidence of a fair argument that the proposed construction would cause significant environmental impacts," the possible impacts were not due to "unusual circumstances" and thus did not create an exception to the categorical exemption. However, on appeal, the court disagreed, finding that the categorical exemption did not apply because of the “unusual circumstances” exception. (Guidelines § 15300.2, subd. (c).) The court stated that "a categorical exemption does not apply where there is any reasonable possibility that proposed activity may have a significant effect on the environment " because "the fact that proposed activity may have an effect on the environment is itself an unusual circumstance, because such action would not fall 'within the class of activities that does not normally threaten the environment,' and thus should be subject to further environmental review." Thus, "the unusual circumstances exception does not apply whenever there is substantial evidence of a fair argument of a significant environmental impact…."

Reviewing whether the circumstance of the house's size was "unusual", the court found as a matter of law that the large house was "unusual" within the meaning of the exception because it differed from the general circumstances of projects covered by the single-family residence exemption--due the house's size and scope. The court also found that the conflicting geotechnical reports showed substantial evidence of a fair argument that the project would result in significant environmental impacts. Thus, the court ordered that a writ of mandate be issued directing the city to set aside its approval and that an EIR be prepared.

New Sunnyvale Case Highlights Discretion to Agencies for Selecting Baselines

Pfeiffer v. City of Sunnyvale City Council (Cal. Ct. App. 6th Dist filed Oct. 28, 2011) (cert. for publ. Nov. 22, 2011) No. H036310 available at CourtWebsite

In a case that carves away exceptions to the baseline selection holdings of Sunnyvale West Neighborhood Ass’n v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (“Sunnyvale West”), Pfeiffer v. City of Sunnyvale City Council provides important guidance and discretion to agencies for selecting baselines to analyze project impacts.

This case involved the expansion of a medical facility and the creation of a waste management and parking facility on various single-family residential lots. Neighborhood opponents sued, alleging -- among other arguments -- that the traffic analysis used an illegal “hypothetical” baseline rather than assessing impacts based on existing conditions.

Rejecting this argument, the court noted that CEQA does not require baselines only use currently existing conditions and that “predicted conditions may serve as an adequate baseline where environmental conditions vary.” The EIR’s traffic analysis outlined the following four traffic scenarios:

1. Existing conditions based on 2007 traffic counts.
2. Background conditions based on existing conditions multiplied by a growth factor based on the city’s travel demand forecasting model, plus traffic from “approved but not constructed developments in the area.”
3. Project conditions based on background conditions, plus anticipated traffic from the project (i.e., the net increase of 71,700 sf of medical office space).
4. Cumulative conditions based on existing conditions multiplied by a growth factor based on a comparison of the traffic projections for the General Plan, as well as cumulative scenarios from the city’s forecasting model and the Moffet Park Specific Plan.

The court noted that, based on the “existing conditions and the predictions for traffic conditions generated by factors other than the [project], including already-approved developments” (i.e., predicted background conditions), the EIR concluded that the project would not result in significant near-term traffic impacts. The court endorsed the use of multiple baselines -- stating that the EIR’s “traffic baselines . . . were not limited to projected traffic condition[s] in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.” The court also noted that the EIR included charts comparing the traffic data from each scenario that allowed foreseeable impacts to be understood and weighed. Finding no evidence that the analyses were inadequate, the court rejected the petitioners’ claim that the baseline selection was incorrect.

The case’s holdings are notably different from, but consistent with, Madera Oversight Coalition v. County of Madera (Sept. 13, 2011) 199 Cal. App. 4th 48, in which an EIR’s baseline selection was found inadequate for a mixed-use development project. There, the EIR only labeled one of its three traffic scenarios as a “baseline” related to predicted year 2025 conditions. However, the court could not determine if existing conditions were also used as a baseline because, although three traffic scenarios were provided (existing 2007, predicted 2025 without the project, and predicted 2025 with the project), there was no explicit statement or analysis showing that existing conditions were used as a baseline. The Madera case was similar to Sunnyvale West, which similarly only used “projected traffic conditions in the year 2020” as a baseline and did not consider traffic impacts on the existing environment.

This new Sunnyvale case is especially important, because it shows that these cases can be distinguished, and that predicted conditions, if used properly, can serve as a baseline.

Disposing of the other arguments, the court also found no merit in challenges to the EIR’s general plan consistency discussion or traffic and construction noise impacts analyses. The court stated that the EIR was adequate and its responses to comments related to general plan conformity contained an appropriate level of detail and demonstrated a good faith analysis. The court made similar "baseline" conclusions related to traffic noise, finding the EIR properly concluded that noise increases attributable to the project would not be significant. Finally, the court concluded that the EIR presented sufficient information regarding construction noise and feasible mitigation that the foreseeable impacts of pursuing the project could be understood and weighed.

Document Dump Deemed Failure to “Exhaust”; Greenhouse Gases Considered Not “New Information” Requiring EIR; and Water Supply Assessment Held Timely

Citizens for Responsible Equitable Environmental Development v. City of San Diego (Cal. Ct. App. 4th Dist, Div. 1, May 19, 2011) (Published June 10, 2011) No. D057524 (196 Cal. App. 4th 515) available at CourtWebsite

This case has three very interesting parts to it: 1) the procedural exhaustion requirement related to the abusive CEQA litigation tactic of dumping a bunch of documents on the agency at the last-minute; 2) the ability to rely on older EIRs regarding greenhouse gas impacts for preparing an addendum rather than a supplemental or subsequent EIR; and 3) the timing for preparing a water supply assessment (“WSA”).

In the case, the city of San Diego certified an EIR in 1994 for a specific plan. For one of the final condominium projects in the plan area, the city prepared a WSA and an addendum to the EIR. Opponents (“CREED”) submitted two cursory comment letters objecting to the development, claiming that the WSA was not subjected to public review and the project would emit greenhouse gases. They also submitted a DVD containing over 4,000 pages of documents with no table of contents or any information regarding how the documents pertained to the project.

Exhaustion. The basic premise of the “exhaustion doctrine” is that a plaintiff must “exhaust” his or her administrative remedies by first raising arguments to the agency during its consideration of the project. This gives the agency the opportunity to correct the issue before there is a need to seek review by a court of law. To “exhaust administrative remedies, the objections ‘must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.’” Here, however, the court found that the document dump implemented by CREED of thousands of pages of various materials at the last minute failed to satisfy the exhaustion requirement because it failed to “fairly present information” to the city.

GHGs. The court found that a supplemental or subsequent EIR was not required because there was not new information presented about greenhouse gases. The court found “information on the effect of greenhouse gas emissions on climate was known long before the city approved the 1994 EIR” and the effect of greenhouse gas emissions on climate could have been raised in 1994 when the City considered the FEIR.” This holding bears interest because even considering the 2009 addendum, the court held that the plaintiffs should have raised their GHG claims in 1994. Some critics argue that studying impacts from emissions was not common until the California Global Warming Solutions Act of 2006 was passed. However, this case potentially shields similar projects from judicial review that involve local agencies relying on environmental documents that were certified as far back as 1994.

WSA. The court held that the timing requirements of Water Code section 10910(g) for a public water system to submit a WSA to a city or county do not apply when the water supplier and the lead agency are the same. Further, the WSA did not need to be approved before the CEQA documents could rely on it.

Seismic Regulatory Compliance and Standard Engineering Practices Considered Adequate for Mitigating Seismic Impacts

Oakland Heritage Alliance v. City of Oakland (Cal. Ct. App. 1st Dist, Div. 4, May 10, 2011) No. A126558 available at CourtWebsite

In a decision impacting reliance on regulatory schemes for reducing environmental impacts under CEQA, a court of appeal recently held that a development project did not impermissibly defer mitigation by relying on seismic building standards to protect human health and safety and that the EIR’s analyses and mitigation were supported by substantial evidence.

In the case, an alliance of citizens challenged a development project's EIR, contending it inadequately evaluated the seismic risks for the project. On each issue presented, the court sided with the city. First, the court held the revised EIR utilized proper significance criteria and adequately evaluated seismic damage to structures by requiring site-specific geotechnical evaluations and structural design requirements, while reducing seismic risks through appropriate engineering methods.

The court also found substantial evidence supporting the city’s finding that seismic impacts were mitigated to less than significant levels because the project would be required to comply with various state and local requirements designed to protect against seismic hazards, including the Seismic Hazard Mapping Act, CGS Special Publication 117, the Building Code, and local development ordinances. Although the EIR noted that a site-specific evaluation would be needed before final design to adjust the appropriate remedial measures, the court held the EIR’s geotechnical investigation adequately accounted for on-site conditions and measures that could reduce impacts. The court also found the EIR's mitigation measures contained standard and proven approaches accepted within the geotechnical engineering community that would reduce the seismic impacts to a less than significant level.

Lastly, the court held the city did not impermissibly defer mitigation of seismic impacts. The EIR discussed a range of mitigation measures, including geotechnical requirements in site-specific investigations for plans submitted to obtain construction permits. The court held it was reasonable to expect the performance criteria imposed in the plans by ordinance, code, and standards would be followed. The EIR essentially proposed compliance with a regulatory scheme designed to ensure seismic safety, and that seismic impacts would be mitigated through engineering methods known to be feasible and effective.