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.
Wednesday, June 22, 2011
Tuesday, June 21, 2011
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.
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.
Friday, April 8, 2011
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 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.
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.
Subscribe to:
Posts (Atom)