Friends of Glendora v. City of Glendora, No. B215114 (2009) available at CourtWebsite
In Friends of Glendora et al. v. City of Glendora et al., the Court of Appeal recently reaffirmed that a public agency has the authority to charge a reasonable fee for filing a CEQA appeal of an agency decision. The court decision is significant because it involves an appeal of a negative declaration rather than an EIR. The court, citing the California Supreme Court case of Sea & Sage Audubon Society, Inc. v. Planning Com., found that a city is authorized to charge a reasonable fee for the appeal of a CEQA decision, including a negative declaration.
Friends of Glendora (Friends), a nonprofit organization, filed a complaint alleging that the City of Glendora violated CEQA when its planning commission approved a development project based on a negative declaration and then charged Friends $2,000 to file an appeal. The court stated that under Government Code section 66451.2 a city is authorized to “establish reasonable fees” for various procedures including the appeal of a decision by the planning commission to the city council. The court further explained that the Sea & Sage Audubon Society, Inc. decision approves fees imposed by a local entity such as a city on members of the public.
Friends sought to differentiate this case from Sea & Sage Audubon Society, Inc. by arguing that the appeal involved in this case concerned a planning commission decision based upon a negative declaration rather than an EIR. Friends argued that CEQA does not explicitly state that a fee may be imposed for the appeal of a decision approving a negative declaration.
The court, following the same logic that was used by the California Supreme Court in Sea & Sage Audubon Society, Inc., rejected Friends’ argument. The court stated the Supreme Court did not require a specific statutory authorization for a filing fee under CEQA for the appeal of an agency decision when an EIR was concerned, thus they declined to require such specific authorization for a filing fee when a negative declaration was involved.
Tuesday, March 2, 2010
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.
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)
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.
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.
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.
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.
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.
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.
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