Archives: July 2015

Fourth District Court of Appeal Denies Motion for Attorneys’ Fees Finding Petitioner Was Not the Catalyst for City’s Revocation of Land Use Entitlements

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Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa (July 6, 2015) __ Cal.App.4th __, Case No. E57589.

A petitioner group challenged the City of Yucaipa’s certification of an EIR and approval of land use entitlements for a Target shopping center project. The project was to be developed on land owned by Palmer General Corporation. The trial court denied the petition and petitioner appealed. That appeal became moot when both Target and the landowner abandoned the project due to a contract dispute, which caused the city to revoke the entitlements. The Court of Appeal directed that the order below be reversed with directions to dismiss the action with prejudice due to mootness. After the trial court dismissed the action as directed, petitioner brought a motion for attorneys’ fees under Code of Civil Procedure section 1021.5, asserting the petition was the catalyst for the city’s action to revoke the entitlements—the relief petitioner had sought at trial. The trial court denied the motion and petitioner appealed again. The Court of Appeal affirmed, finding petitioner’s action was not the catalyst for the city’s actions.

A party seeking attorneys’ fees under Code of Civil Procedure section 1021.5 must first show it is a “successful party.” It is not necessary to achieve a favorable final judgment so long as the petitioner’s actions were the “catalyst” for the defendant’s actions. More specifically, the catalyst theory permits an award of fees absent judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by, the litigation. To obtain attorneys’ fees under this theory, a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense; and (3) the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit. To satisfy the first prong, a petitioner need not show that litigation was the only cause of respondent’s acquiescence, only that it was a substantial factor.

Here, the court found that evidence supported the trial court’s finding that petitioner’s action was not a substantial factor contributing to the entitlement revocation.

First, before the land use entitlements were revoked, the trial court had denied the petition, which was a win for the city. Petitioner did not prevail, but instead appealed the judgment. Filing an appeal from the adverse judgment did not convert the unsuccessful action into a meritorious one. And the court’s direction to dismiss the action with prejudice on remand was not a favorable outcome. The court noted that none of the cases applying the catalyst theory involved situations in which an adverse judgment had already been rendered against the party seeking attorneys’ fees. Thus, having lost twice, petitioner could not show that it had prevailed by “threat of victory.”

Second, the city did not change its behavior substantially because of, and in the manner sought by,the litigation. The city had been successful in defending the CEQA action and did not revoke the entitlements for any reason related to the EIR or the CEQA violations alleged by petitioner. Rather, the city revoked the entitlements because the developer and the landowner had both abandoned the project due to a contract dispute. Petitioner could not demonstrate a nexus between the merits of its action and the city’s revocation of the entitlements. Therefore, the action was not the catalyst for the revocation and petitioner was not entitled to attorneys’ fees.

Fourth District Court of Appeal Upholds Supplemental EIR for Jail Facility Upgrade Project

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City of Irvine v. County of Orange (July 6, 2015) __ Cal.App.4th __, Case No. G049527

The court upheld a Supplemental EIR prepared by the County of Orange for a jail upgrade project over a decade after the original EIR had been certified. The court found the project was not substantially different than the project analyzed in the original EIR and that the Supplemental EIR adequately addressed the minor project changes and changed circumstances. And after a hearty dissertation on CEQA’s responses to comments requirement, the court determined that the county’s responses to comments on the Supplemental EIR were adequate.

The county prepared an EIR in the 1990s for the expansion of the James A. Musick Jail Facility. The City of Irvine challenged that EIR and lost; however, project construction was delayed indefinitely by a lack of funding. In 2012, the county decided to move forward with the project and prepared a Supplemental EIR to account for project changes and changed circumstances. Irvine filed a petition challenging the Supplemental EIR on various CEQA grounds. The trial court rejected the challenge and Irvine appealed.

On appeal, Irvine first claimed that the County was required to prepare a “Subsequent EIR” rather than a “Supplemental EIR.” Regarding the Supplemental EIR, Irvine’s contentions focused primarily on traffic impacts during construction and the loss of agricultural land. Irvine’s main argument, however, was that the county’s responses to Irvine’s comments on the Supplemental EIR were inadequate. The court rejected each of these claims in turn.

Irvine’s first claim was that the County was obligated to prepare a Subsequent EIR as opposed to a Supplemental EIR for their analysis of the impacts of the expansion. The court rejected this claim, explaining that courts should look to the substance of the EIR, not its nominal title.

Irvine’s next argument concerned the Supplemental EIR’s analysis of traffic impacts during project construction. Due to delays, there were discrepancies in the county’s construction timeline. Irvine claimed that these discrepancies amounted to an unstable project description that prevented the Supplemental EIR from adequately assessing project impacts. The court disagreed, finding that the project description was distinct from the interim impacts of construction. Specifically, Irvine claimed the county had failed to provide a stable project description because it could not account for the traffic impacts caused by construction in a given year. The court found that CEQA does not require a continuous update of traffic impacts as a result of construction delays and that, regardless of the delay, the impacts would not be substantially different from those disclosed in the Supplemental EIR even if traffic data was updated, and therefore, there was no prejudice.

The third claim concerned mitigation for the loss of agricultural land that would occur as a result of the expansion. The Supplemental EIR discussed seven possible mitigation measures, but none were found to be feasible. Irvine challenged the county’s feasibility findings for three of the measures: (1) the purchase of conservation easements on existing agricultural land to prevent it from being used in the future for nonagricultural purposes, (2) a transfer of development rights program, and (3) a “right to farm” ordinance.

The court held that the county’s findings rejecting these measures as infeasible were supported by substantial evidence. Conservation easements were found infeasible because there was no additional land for agriculture in the county that would be profitable and putting a conservation easement for agricultural use on land that is already used for agriculture would do nothing to mitigate the loss of other agricultural lands. The court also noted that the county’s zoning laws did not support the feasibility of conservation easements. Transfers of development rights were found to be even less feasible because the county did not have land laying fallow for which they could transfer rights in the preservation of agricultural land use. Lastly, the court concluded that a right to farm ordinance was the least viable option of all. The Supplemental EIR recognized that the conversion of current non-agricultural land to agricultural land would itself entail significant environmental effects, including nuisance suits. Beyond that, the court noted, a right-to-farm ordinance is meaningless where no land owner wants to farm. The court held that it is a reasonable inference that no one would want to convert land that is currently non-agricultural and put it to agricultural use even if they have the ostensible legal right to do so.

Lastly, the court addressed Irvine’s claim that the county failed to adequately respond to comments. The court began with a thorough discussion of CEQA’s responses to comment requirement and a detailed assessment of the state of case law on the subject. The court noted several oft-repeated principles by which courts may evaluate the sufficiency of responses, including (1) a general comment can be adequately met with a general response; (2) responses need not be exhaustive; and (3) the sufficiency of responses should be “viewed in light of what is reasonably feasible.” From the cases, the court divined a few more basic standards for the adequacy of responses: (1) when a comment raises a “significant” environmental issue, there must be some genuine confrontation with the issue, it can’t be swept under the rug; (2) responses that leave big gaps in the analysis of environmental impacts are obviously inadequate; (3) comments that bring some new issue to the table need genuine confrontation; and (4) comments that are only objections to the merits of the project itself may be addressed with cursory responses. Based on these guiding principles, the court found that the county had adequately responded to each of Irvine’s comments that merited a response.

EPA and Corps Issue Final Rule Defining “Waters of the United States”

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On June 29, 2015, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a final rule defining the scope of “waters of the United States” protected under the Clean Water Act (80 FR 37054). The Final Rule was developed partly in response to the U.S. Supreme Court’s decisions in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States. The Final Rule retains the definitions of traditional navigable waters, interstate waters, and territorial seas as jurisdictional waters. Within the definition of jurisdictional waters, the Final Rule includes impoundments and – for the first time – tributaries and all waters adjacent to tributaries. The Final Rule also modifies the definition of a tributary as a water “characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark.” The Final Rule, however, deletes the “waters of the United States” category of “other waters” whose use, degradation, or destruction would affect or could affect interstate or foreign commerce and replaces it with a new category of waters determined to have a “significant nexus” to a traditionally navigable water, interstate water, or the territorial sea. The Final Rule also requires a case-specific “significant nexus” test for certain categories of identified waters (i.e., prairie potholes, Carolina bays and Delmarva bays, pocosins, western vernal pools, and Texas coastal prairie wetlands) and for any waters found within a 100-year floodplain or within 4,000 feet of a water of the U.S. Based on prior regulation and practices, the Final Rule also expressly excludes a number of waters and features such as artificial lakes, waste treatment ponds, detention and retention basins, and percolation ponds for wastewater recycling. By clarifying which waters are subject to Clean Water Act jurisdiction, the Final Rule is meant to reduce the instances in which permitting authorities would make jurisdictional determinations on a case-by-case basis.