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.
Friday, April 8, 2011
Tuesday, April 5, 2011
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.
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.
Tuesday, March 29, 2011
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.
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.
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.
Wednesday, December 15, 2010
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.
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:
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.
Monday, November 29, 2010
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
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
Wednesday, November 3, 2010
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
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
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