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.