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.

Agreement to Negotiate in Good Faith Deemed Not A Project Under CEQA

Cedar Fair, L.P. v. City of Santa Clara (Apr. 6, 2011) 194 Cal. App. 4th 1150 available at CourtWebsite

A Court of Appeal held that the City of Santa Clara’s approval of a “term sheet,” which amounted to nothing more than an agreement to negotiate in good faith, did not constitute a project under CEQA, because it did not create a commitment to a project so as to effectively preclude alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project. Therefore, an EIR was not required prior to approving the term sheet.

In the case, Cedar Fair owned and operated an amusement park in the City of Santa Clara. Part of a property that Cedar Fair used for parking and events was a subject of a “term sheet,” which set forth basic terms for a stadium that would be the home to the NFL’s San Francisco 49ers. The 49ers proposed to locate the stadium on a 17-acre parcel that was alleged to be subject to a long-term lease between the City’s Redevelopment Agency and Cedar Fair.

Cedar Fair challenged the term sheet’s approval alleging that the City had failed to prepare an EIR related to the term sheet's approval pursuant to CEQA. The court determined that the stadium term sheet, however, did not constitute a project or a project approval because the term sheet was not binding. It was merely intended to provide a general framework for subsequent negotiation of a definitive agreement. Additionally, it contained a clause that expressly stated the Stadium could not proceed without negotiation and delivery of “mutually acceptable agreements based upon information from the CEQA environmental review process and on other public review and hearing processes and subject to all applicable governmental approvals” Based on this, the lack of any binding effect of the term sheet, and the precedent established in Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116, the court concluded that preparation of an EIR was not required.

Malibu's Legacy Park EIR Upheld – Challenges re Water Impacts Found Moot, Time-Barred, and Non-Existent

Santa Monica Baykeeper v. City of Malibu (Ct. App. 2d Dist, Div. 4 April 5, 2011) No. B222776 , available at CourtWebsite

In this case, plaintiff Santa Monica Baykeeper challenged the City of Malibu’s EIR and approval of a project for Legacy Park -- a 15-acre park next to the mouth of Malibu Creek at the Pacific Ocean. An adjacent project -- the Malibu Lumbar Yard -- was approved in 2007, which included irrigation for the park from the lumber yard's treated wastewater effluent ten months of the year, while dispersing water into the Malibu Creek watershed the remainder of the year. Santa Monica Baykeeper challenged the Legacy Park EIR, arguing that it failed to adequately analyze construction impacts on water quality, the impact of using treated effluent from the Malibu Lumber Yard on the project site, and the cumulative groundwater impacts of the project’s effluent use.

First, the court held that the construction impacts argument was moot -- the project was already completed by the time of appeal, so no further construction impacts could occur. Second, regarding irrigation with treated effluent from Malibu Lumber Yard, the court held that the EIR adequately addressed wastewater use, and the creation of the wastewater dispersal field had already been subjected to prior environmental review that was never challenged -- thus arguments related to the use of wastewater on the park were time-barred. Lastly, the court found substantial evidence supporting the city’s conclusion that the Legacy Park project reduces rather than creates groundwater impacts, and therefore the project would not have a cumulative groundwater impact. Therefore, the court upheld the city’s EIR and approval of the project.

In-Fill Categorical Exemption Upheld Despite Challenge Against Density Bonus Approval

Wollmer v. City of Berkeley (Ct. App. 1st App. Dist., Div. 4, filed Mar. 11, 2011; cert. for publ. Mar. 30, 2011) No. A128121, available at CourtWebsite

A court recently certified a decision that held that the City of Berkeley properly applied a categorical exemption under CEQA during its approval of an in-fill project. This case highlights some interesting intricacies regarding the use of categorical exemptions.

In the case, a developer submitted an application for a mixed-use affordable housing project. The city determined the project was exempt from CEQA pursuant to a categorical exemption for in-fill developments (CEQA Guidelines § 15332) and approved a conditional use permit. The developer then requested -- and obtained -- a CUP modification to either proceed with the original affordable housing project or an affordable senior housing project -- which the city also found was exempt as an in-fill project. A plaintiff sued the city, arguing that by approving a density bonus for the project, the city could not have found that the project was consistent with the city’s general plan and zoning code -- a prerequisite for using the in-fill exemption. However, the court held that the city had to grant the density bonus, because the Density Bonus Law required granting it when the developer made its proper application under the city's zoning code. The city also waived certain building requirements pursuant to the Density Bonus Law; however, the court found this did not render the proposed project inconsistent with the general plan or zoning code.

The plaintiff also argued that the location of the project and the traffic studies prepared were “unusual circumstances” that should have made the categorical exemption not apply under CEQA Guidelines section 15300.2. But, the court held these were merely lay opinions, and that contrary substantial evidence had not been shown that could invalidate the city’s determination. Also, the court found that the developer’s dedication of land for a left turn lane was merely a component of the project -- not a mitigation measure -- and thus the City did not impermissibly "mitigate" the project into a categorical exemption. The court concluded that the exemption was properly applied.

Climate Action Plans As CEQA Mitigation – Attorney General Comments

Press Release available at AG’sWebsite
Attorney General’s Comment Letter available at AG’sWebsite(pdf)

On March 17, 2011, Attorney General Kamala Harris issued comments that climate action plans could be appropriate mitigation for a project’s greenhouse gas emission impacts under CEQA -- provided that sufficient details and measures are included. The comments were provided in a letter from the AG’s office regarding Los Angeles County’s Santa Clarita Valley Area Plan’s EIR, which also interestingly shows that Harris’s office is likely to continue its predecessor’s practice of commenting on climate change impacts during the CEQA process.

The letter noted that to be adequate under CEQA, the mitigation must contain binding emission reduction targets and other performance criteria. These comments follow on the heels of last year’s CEQA Guideline greenhouse gas amendments -- which provide criteria and encouragement for developing climate action plans -- and the recent development of GHG thresholds by regional air quality management districts. As future climate action plans are developed, courts will likely additionally refine the requirements of such plans.

Complete and Adequate EIR Needed for Certification

Landvalue 77, LLC v. Board of Trustees of the California State University (filed Feb. 23, 2011; cert. for publ. Mar. 16, 2011) No. F058451, available at CourtWebsite

A recent Court of Appeals decision highlights the potentially harsh consequences of producing an incomplete EIR. In the case, an EIR for a mixed-use development project had not adequately analyzed potential impacts related to air quality, traffic and parking, and water supply. To remedy this error, the court required the approving agency to decertify the entire EIR and withdraw its approval of the project.

The court held that CEQA provides for EIR certification when the EIR is complete, and that partial certification is not compatible with this concept because an EIR is either complete or it is not. Thus, even though an EIR may only be inadequate in some areas of its analysis, courts must set aside the entirety of the EIR certification and project approval. Although some prior court decisions have not required entire decertification of partially inadequate EIRs, this decision highlights the possibility that agency review of the full EIR and approval may be required by a court – even where only portions of the EIR are found inadequate.

City's Approval of Demolition Permit Ruled "Ministerial" Act Not Subject to CEQA

Friends of the Juana Briones House v. City of Palo Alto (Oct. 27, 2010) No. H033275, available at CourtWebsite

In a decision that will impact agencies’ distinction between ministerial and discretionary actions, a court recently held that a demolition permit approval under the City of Palo Alto’s municipal code was a “ministerial” act. Importantly, CEQA does not apply to ministerial actions. Thus, the City was not required to comply with CEQA review prior to approving the demolition permit.

The case concerned the Juana Briones House -- a designated historic landmark that became subject to a Mills Act historic preservation contract in 1988. In 1989, however, the Loma Prieta earthquake struck, causing substantial damage to the property, which ultimately led the latest owners to apply for a demolition permit in 1998 –- after the 10-year preservation contract had expired.

The City initially denied the demolition permit. But, the owners sued, and won a requirement from the court that the City must hold a hearing on their permit application. At the hearing, the City determined the action was “ministerial” and not subject to CEQA. The City then issued the demolition permit.

This time, a group named the Friends of Juana Briones House sued, alleging that the action was "discretionary" -- and thus the City had violated CEQA by failing to perform CEQA review.

In ruling that the City was correct in its ministerial determination, the court made the following holdings:

1) the Palo Alto municipal code only imposed a temporary moratorium on demolition -- not directives to the City to make discretionary considerations like prior cases had involved;

2) the City could not impose conditions on the permit for alleviating environmental conditions, but it could only impose voluntary conditions for preserving certain antiques and native plants, and those conditions did not re-characterize the action as discretionary;

3) the need for a future building permit did not require CEQA review under the “whole of the action” theory, because future action on a building permit might not be “significant in that it will change the scope and nature of the initial project or its environmental consequences”;

4) the possibility that the City could take the property through eminent domain did not make the action discretionary; and

5) there were no procedural violations that justified further proceedings.Thus, the court concluded the decision on the demolition permit was ministerial, and CEQA review was not required.

Court Upholds City’s Discretion to Determine Baseline for Environmental Review and Provides Guidance on Infeasible Agricultural Resources Mitigation

Cherry Valley Pass Acres and Neighbors v. City of Beaumont (Cherry Valley) (Nov 22, 2010) No. E049651, available at CourtWebsite

In a decision affirming the discretion of local agencies to determine the proper “baseline” when conducting environmental review, the Court of Appeal sided with Best Best & Krieger LLP attorneys Michelle Ouellette and Fernando Avila, and upheld the groundwater analysis in an environmental impact report (EIR) prepared for a 560-unit housing development. The decision in Cherry Valley Pass Acres and Neighbors v. City of Beaumont (Cherry Valley) also provided important guidance as to what types of circumstances support a finding that agricultural resources mitigation is infeasible, an issue that many agencies face while complying with the California Environmental Quality Act (CEQA).

In Cherry Valley, a local opposition group challenged the recirculated EIR prepared for a 560-unit housing development, which was itself a scaled-down version of an earlier proposal. Project opponents argued that the City of Beaumont’s (City’s) baseline for water usage on the site was improper because it reflected the amount of water being pumped at the time the Notice of Preparation was released (when the site was an operating egg ranch), and not the minimal amount of water usage occurring at the time the recirculated EIR was released. The court disagreed, holding that the egg ranch’s vested, adjudicated groundwater rights and its history of water usage on the site supported the City’s use of that as a baseline.

The court also noted that the record contained ample evidence supporting a finding that on- and off-site mitigation for agricultural resources impacts, as well as project alternatives that lessened those impacts, would all be infeasible. Key to this determination were the facts that the City’s General Plan explicitly did not anticipate that agriculture could continue long-term and foresaw the eventual conversion of farmland and that the City’s financial analysis determined that various project alternatives that would preserve agricultural uses on-site were not viable.

The Cherry Valley decision represents an important reaffirmation of public agencies’ discretion to conduct environmental analysis and make determinations provided only that they are supported by substantial evidence, even in hotly-debated fields such as water supply and agricultural resources.

Source: www.bbklaw.com

California Voters Reject Effort to Suspend Global Warming Law (AB 32)

California voters yesterday rejected Proposition 23, a measure that supporters argued would save jobs and prevent increased energy costs. Had it passed, Prop 23 would have suspended California’s Global Warming Solutions Act of 2006, widely known as AB 32, until unemployment in the state lowered to specified levels.

The results of the gubernatorial election also indicate that implementation of AB 32 will not be delayed. During the campaign, though she did not back Prop 23, gubernatorial candidate Meg Whitman had pledged to suspend implementation of AB 32 for at least a year. Jerry Brown, the winner in yesterday’s gubernatorial race, opposed efforts to suspend AB 32, though during the campaign he stated that he would be open to adjustments to the law.

In the short term, these election results mean that AB 32's implementation will continue. In fact, the public comment period on the Air Resources Board’s proposed Cap and Trade regulations opened on Monday. Entities that will be directly affected by AB 32 include industries, such as petroleum refineries and manufacturers, that produce large amounts of carbon dioxide and other greenhouse gases. Municipalities and public utilities may also be directly affected through regulations on energy production, solid waste disposal and wastewater treatment.

Tuesday’s election did not remove all uncertainty regarding implementation of AB 32, however, as the electorate did enact Proposition 26. That measure amended the California Constitution to treat regulatory fees more like taxes. Opponents and proponents of the measure produced conflicting predictions of exactly how Prop 26 would affect the funding source for AB 32 and other environmental laws. Future argument over the precise effect of the change is likely.

Source: www.BBKLaw.com

Requirements for Exhausting Administrative Remedies Before Challenging CEQA Exemptions May or May Not Apply

Tomlinson v. County of Alameda (Oct. 6, 2010) No. A125471, available at CourtWebsite [discussing Hines v. California Coastal Commission (June 17, 2010) 186 Cal.App.4th 830, available at CourtWebsite.]


This case was initially decided by the court on June 18, 2010 [CEQA Blog Summary]. However, at almost the same time, another court issued its decision in Hines v. California Coastal Commission (June 17, 2010) 186 Cal.App.4th 830, which dealt with similar requirements for “exhausting” administrative remedies under CEQA. Under the “exhaustion” doctrine, project challengers generally must raise their arguments to the lead agency before they can petition the court to review the agency’s decision. Due to the closeness of these cases, the court decided to rehear this portion of its decision, and – in the end – highlighted the extreme legal complexities involved with “exhausting” administrative remedies. Importantly, this revised decision does not change the court’s holding regarding what constitutes “within city limits” for purposes of exempting infill projects under CEQA Guidelines, section 15332, as was previously reported.

As the new decision notes, the Hines court held that parties challenging a project have failed to “exhaust” under Public Resources Code, section 21177, subdivision (e), if there are “public hearings that include environmental review, ample notice of such hearings is given notifying the public of the agency’s reliance on the exemption, and the public does not raise an objection to the exemption despite such an opportunity to do so.” Throughout the planning process, the Hines challengers did not raise any issue regarding purported CEQA violations at any stage, despite ample notice that staff considered the project exempt, and there was ample opportunity to raise an objection. As a result, the Hines court would have had to decide factual questions about whether wildlife would be impacted and whether the project would open the door to successive projects. This would have entailed much more than merely reviewing the agency's decision. Thus, the court indicated it was appropriate for the Hines court to hold that the challengers could not petition for review of the agency action, because they failed to exhaust their administrative remedies by not raising such CEQA challenges to the agency.

The court distinguished the Tomlinsons' argument, because the question at issue - whether the project occurred “within city limits” for applying the "infill" exemption - did not require particular agency expertise or an evidentiary determination. Thus, the court stood by its original application of Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, that “exhaustion” under section 21177, subdivision (a), would only apply if CEQA provides a public comment period or there is a public hearing before a notice of determination is issued. Finding that exemption determinations do not have these requirements, the court held that the Tomlinsons were not required to "exhaust" by raising specific objections that the project was not “within city limits” in order to seek judicial review of the applied "infill" exemption.

The court’s rehearing of this matter, and its discussion and application of Hines and Azusa, importantly highlights the complexity of "exhaustion" arguments that can be raised related to challenges against a CEQA exemption. Through these decisions, courts have required exhaustion in situations where a lack of comments rendered the court unable to discern the agencies’ factual bases for the exemption; however, courts have not required exhaustion when the exemptions' factual bases were clearly discernable for judicial review. Therefore, the ability of a challenger to seek judicial review without having raised specific arguments to the agency is likely to be impacted by the availability of evidence for the court to adequately perform a review of the exemption.

UC Regents' EIR and Approval Upheld Despite Numerous Alleged Deficiencies

California Oak Foundation v. Regents of the University of California (Sept. 3, 2010) No. A122511, available at CourtWebsite.

The California Oak Foundation and others filed petitions challenging the Regents of the University of California’s certification of an EIR and approval of a project for building athletic facilities at the Berkeley campus. The Oak Foundation alleged that the EIR was inadequate under CEQA in its (1) description of baseline conditions; (2) project description; (3) statement of objectives; (4) discussion of alternatives; and (5) discussion of biological and archaeological impacts. It also alleged improper (1) delegating of authority to certify the EIR to the Regents’ Committee on Grounds and Buildings; (2) giving approval to the project before certifying the EIR; (3) failing to recirculate the Draft EIR; and (4) making findings and a statement of overriding considerations without evidentiary support. The court rejected all of these arguments.

First, the court found that the EIR accurately described the existing baseline conditions, and the geotechnical study made available after DEIR circulation adequately matched up with that baseline. Release of the study after circulation also did not require recirculation because it did not constitute significant new information and merely confirmed information already stated. The court held that omitting discussion of the California Geological Survey and United States Geological Survey comment letters was of no consequence because they did not show that the conclusions in the geology report were erroneous.

The court found the project’s description complied with CEQA Guidelines, section 15124. Evidence supported the degree of specificity used. The methodology for presenting and analyzing project alternatives in matrix and narrative format was appropriate despite some broad wording. The significant environmental impacts and corresponding components of each of the alternatives were evaluated against the corresponding component of the project, thus demonstrating a good faith effort to provide a meaningful discussion of a range of reasonable project alternatives, which according to the court was all that CEQA requires. Finally, substantial evidence supported the Regents’ conclusions on archeological and biological resources, their findings, and the statement of overriding considerations.

The court held that the Committee on Grounds and Buildings appropriately certified the EIR based on its approval authority over the project. Further, the project was not approved before certifying the EIR because the Regents’ policy related to its earlier approval of funding did not constitute project approval until completion of the project’s design review.

Therefore, the court affirmed the denial of the California Oak Foundation’s petition for writ of mandate and upheld the EIR certification and project approval.

Petitioning Group’s Request for Hearing Should Have Been in Writing

Torrey Hills Community Coalition v. City of San Diego (July 2, 2010) 186 Cal.App.4th 429, available at CourtWebsite.

In this case, Torrey Hills Community Coalition did not request a hearing in writing within 90 days of filing a writ petition alleging that the City of San Diego violated CEQA. The court held that Torrey Hills’ failure to make the request for a hearing in writing was a violation of CEQA, pursuant to Public Resources Code, section 21167.4, subdivision (a).

According to Torrey Hills, section 21167.4, subdivision (a), does not refer to a written request, and thus its oral request for a hearing before the deadline should have been considered sufficient. The court, however, found that when the subdivision (a), (b), and (c) are read together, as previously explained in County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, it is clear that the request for a hearing under subdivision (a) must be in writing in order for the filing of the request -- pursuant to subdivisions (b) and (c) -- to operate.

The court also rejected Torrey Hills’ argument that it would have been futile to file a written request for a hearing. First, the court found that Torrey Hills failed to show diligence, when the deadline to file the request lapsed. Additionally, despite the court clerk having stated a preference for not immediately “setting” the hearing date, section 21167.4 merely requires the petitioner to file a request for a hearing. It does not require the petitioner to obtain a hearing date, and pursuant to subdivision (c), a hearing date could have been obtained later upon application by any party. Thus, the court affirmed that Torrey Hills violated section 21167.4, subdivision (a), by not filing a written request for a hearing.

Court Directs County to Set Aside Categorical Exemption for In-Fill Project, Clarifies the Requirement for Exempting Projects “Within City Limits”

Tomlinson v. County of Alameda, No. A125471 (June 18, 2010) available at CourtWebsite.

In a decision that clarifies the standards that public agencies should apply when relying on categorical exemptions, a California court of appeal recently held that the County of Alameda applied the wrong legal standard for exempting an in-fill subdivision.

The court noted that to rely on a categorical exemption, the administrative record must disclose substantial evidence of every element of the contended exemption. Looking at each element of the categorical exemption for in-fill developments under CEQA Guidelines section 15332, the court found that the critical hanging point in the case was the requirement that the in-fill development be “within city limits” for the exemption to apply.

In the case, the applicant’s project was located in the an unincorporated part of the county. Although the County of Alameda argued that the project site was surrounded by highly urbanized development, the court rejected such an expanded interpretation of “within city limits.” Rather, the court held that a plain reading of the exemption required that the “within city limits” element could only be satisfied if the project was located within the boundaries of a municipality.

Additionally, the court noted there was not a procedural requirement for the challenging party to exhaust its administrative remedies by making specific comments to the county regarding the improper application of the categorical exemption. The court held that the exhaustion requirement under Public Resources Code section 21177 did not apply because (1) CEQA does not provide for a public comment period before an agency makes an exemption finding, and (2) there is no "public hearing before a notice of determination is issued," as an NOD is not filed if the agency declares an exemption.

The court of appeal remanded the case to the trial court with instructions to issue a writ of mandate directing the county to set aside its decision. This case highlights the care that should be taken when applying a categorical exemption for a project by providing substantial evidence supporting each element of the exemption.

Subsequent CEQA Review Only Required If Agency Has the Discretion to Respond to the Environmental Impacts Raised

San Diego Navy Broadway Complex Coalition v. City of San Diego, No. D055699 (June 17, 2010) available at CourtWebsite.

In a significant decision for public agencies, the Fourth District Court of Appeal recently concluded that the City of San Diego was not required to prepare a subsequent or supplemental environmental impact report (EIR) regarding the potential impact of a project on climate change. The court reasoned that the City did not grant a discretionary approval that would provide it with the authority to address the project's impact on this particular environmental issue. This case reinforces the concept that the application of the California Environmental Quality Act (CEQA) to subsequent approvals is relatively narrow in scope and only requires a new EIR in certain specific circumstances.

In San Diego Navy Broadway Complex Coalition v. City of San Diego, an EIR had previously been certified in the 1990s for the development of waterfront property in downtown San Diego. Under the development agreement that had been approved at that time, later review of development plans would be necessary to ensure that aesthetic design requirements were fulfilled. In 2006 and 2007, these development plans were submitted and it was determined that no subsequent or supplemental EIR under Public Resources Code section 21166 was necessary.

However, the petitioner argued that the fact that the earlier EIR did not analyze climate change impacts did require a subsequent or supplemental EIR. Rejecting this, the Court found that the scope of discretion involved in this design review was limited and did not involve the issue that supposedly triggered the need for a subsequent or supplement EIR (namely, climate change). Thus, the Court held in its opinion issued last Thursday, that, in addition to meeting the conditions of Public Resources Code section 21166, the requirement to prepare a subsequent or supplemental EIR arises only where the agency has discretion to respond to the environmental concerns raised in such a new EIR.

Source: www.bbklaw.com