Archive for May, 2017


CEQA and the Guidelines’ statutory and categorical exemptions streamline the environmental review process, and can play a key role in project planning and development. The philosophical underpinning of many exemptions is that the environmental impacts for some types of projects are known to be less-than-significant and the public would benefit from having them expeditiously implemented.

Public Resources Code sections 21080.2 and 21080.20.5 typify this philosophy. Comprised of two bills, A.B. 417 and A.B. 2245 (chaptered together as Stats.2013 Chapter 613), they created exemptions for bicycle transportation plans and certain bicycle projects. However, Chapter 613 will sunset in 2018, unless the Legislature acts. Assembly Bill 1218 (2016–2017) seeks to preserve the exemptions. However, Chapter 613 has been underutilized, in favor of older, more time-tested categorical and statutory exemptions. This underutilization may influence the Legislature’s decision whether to extend the sunset provision, remove it, or allow Chapter 613 to simply expire.

Legislative History of Chapter 613: “One petitioner had the power to delay something good from happening for several years.”

The published legislative history of Chapter 613 reflects that it was passed in reaction to a lengthy and expensive CEQA suit against the City and County of San Francisco. In 2005, the San Francisco Board of Supervisors adopted a bicycle transportation plan (Plan). The Plan’s purpose was to promote bicycle transportation and create safe, interconnected routes throughout the city. It called for upgrades to bicycle infrastructure, including separated lanes, painted lanes, and bike parking. It sought to reduce risks to cyclists, pedestrians, and motorists in areas where the data reflected frequent bicycle-involved collisions. In June 2005 the San Francisco County Transportation Authority Commission adopted the Network Improvement Document (Document), a five-year plan to fund and implement the Plan. Believing that there was no possibility that the Plan could have a significant effect on the environment, the agencies proceeded under the “common sense” exemption of CEQA Guidelines, section 15061. (See generally Assem. Com. on Natural Resources, Analysis of Assem. Bill No. 417, (2013–2014 Reg. Sess.).)

A CEQA petition followed, spearheaded by an individual, Rob Anderson. The petition alleged that the Plan and Document together formed a “project” under CEQA, that there was a legitimate question that the project could have an effect on the environment, and that environmental review should be conducted. It took nearly two years for the court to rule in Anderson’s favor, and ultimately enjoin the city proceeding, pending compliance with CEQA. Subsequently, the city prepared a draft EIR in 2008. The EIR was finalized, certified, and a Notice of Determination posted in August 2009. Anderson immediately appealed, alleging deficiencies in the EIR. A year later, in August 2010, the court ruled in favor of the city, upholding the EIR. (Ibid.). In short, it took five years to travel from Plan adoption to implementation. When one considers that the Plan and Document themselves likely took years to draft, the planning and implementation horizon for implementing upgrades to urban bikes lanes spanned close to a decade – half of which was spent in CEQA litigation.

Summarizing public frustration, a legislator noted that “one petitioner had the power to delay something good from happening for several years.” (Senate Rules Comm. Analysis of A.B. 416 (2013–2014 Reg. Sess.), p. 4).

To prevent the San Francisco scenario from repeating throughout the state, the Legislature passed Chapter 613. The legislation garnered overwhelming support from both houses – passing unanimously in the Senate and with only three no votes in the Assembly.

Chapter 613’s Provisions and Underutilization

Chapter 613 seemingly strikes a careful balance between the benefits of environmental review and the public interest in promoting bicycle transportation, by exempting qualified bicycle transportation plans from CEQA (§ 21080.20), but only exempting one limited class of bicycle project (§ 21080.20.5.)

Regarding bike plans, Public Resources Code section 21080.20 states that CEQA does not apply to bicycle transportation plans, as defined. To qualify for the exemption, the plan must be prepared pursuant to the Streets and Highways Code section 891.2; be situated in an urban area; and relate to bicycle transportation. The exemption expressly includes plans that have provisions for the restriping of roadways for bike lanes, bicycle parking and storage, signal timing, and related signage.

For bike projects, Public Resources Code section 21080.20.5 only explicitly exempts highway restriping for bike lanes, done pursuant to a bicycle transportation plan. Presumably, other projects implemented under bicycle transportation plans are not exempt.

Under both sections, the lead agency must hold public hearings, solicit input from local residents, and prepare an assessment of the plan or restriping project’s and traffic and safety impacts, including mitigation measures. If the project or plan is approved, the government must file notice with the state and county clerk. Because traffic and safety impacts were the focus in the San Francisco litigation, by mandating disclosure and mitigation measures the exemption directly and proactively addresses the key concerns that a CEQA environmental review process, or lawsuit, would raise. And by only exempting restriping, projects that are more likely to negatively impact the environment are still required to complete an environmental review process.

Despite the promise of Chapter 613, according to OPR data cited by the Natural Resources Committee in its analysis, the bike plan provision it has never been used, and the bike lane project provision has only been utilized three times. (Comm. Analysis, supra., pp. 3–4.) All three times were by the City of Los Angeles, the provision’s original proponent. (It is worth noting that bill’s author statement cites a different statistic, and states that 17 bike projects have utilized the exemptions, although it is not clear if the bill’s author is referring to Chapter 613, or all of CEQA’s exemptions that have been applied to bike projects. (Id. at p. 4.) The underutilization of the exemption is significant for two reasons: 1) five years after passage, it is uncertain as to how it would be applied by local government and interpreted by the courts; and 2) given its lack of use, begs the question of whether the community considers the exemptions to be necessary or if agency staff are aware of or feel encouraged to use them.

A New Hope? A.B. 1218

Chapter 613 will sunset on January 1, 2018. There is legislative momentum in continuing the exemptions, through A.B. 1218. At issue is whether to: renew the exemptions, but strike the sunset provision; to extend the sunset provision for another term; or allow Chapter 613 to sunset, citing its underutilization.

As originally drafted, A.B. 1218 would have removed the sunset provision entirely, and allowed the law to be codified permanently. However, the current version (as of May 2017, amended in Assembly) preserves the exemptions, but only until 2021. The Assembly Natural Resources Committee addressed this issue in its March 30, 2017 Committee Analysis, citing the exemption’s potential utility, but lack of actual use, and recommending that the bill be amended to sunset in 2021.

The Committee seemed to imply that underutilization does not evince a lack of interest in bicycle plans or projects. Rather, government entities have been relying on other, more “established and frequently used categorical exemptions” in CEQA and the Guidelines. CEQA section 21080.19, passed in 1984, exempts projects that restripe streets to relieve traffic congestion. The Committee notes that the CEQA Guidelines have two applicable categorical exemptions: Guidelines section 15301(c), the Class 1 exemption, for development of existing facilities, where there is negligible expansion of an existing use, which specifically includes existing bicycle trails; and Guidelines section 15304 (h), the Class 4 exemption, for minor alternations to land that do not involve removing mature and scenic trees, and specifically includes the creation of bicycle lanes on existing roadways.

A.B. 1281 passed the Assembly in May 2017, and given its overwhelming support in the Senate in 2013, is likely to pass muster there, too.

Conclusion

Within weeks of the court upholding San Francisco’s bike transportation EIR, bike lanes began sprouting up around the city. Areas that had never had bike lanes became connected to established routes. Established routes on prominent streets, many of which were identified as high collision risks in the Plan, were widened, separated, or re-routed to increase safety. Cal. Bike, an advocacy organization, and SFMTA state that bike usage in San Francisco has increased 10% since 2013. Whether one enjoys cycling or not, this infrastructure is heavily utilized, and cycling is becoming an increasingly important segment of our urban transportation mix. Yet, despite the increase in popularity of urban cycling, the future vitality of the bicycle lane exemptions remain in doubt. Supporters of the exemptions should take heed of the Committee Analysis, and be on notice that may face challenges in the Legislature in 2021 if Chapter 613’s muscle does not start getting flexed on the local level.

Sara F. Dudley

May 22nd, 2017 by admin

Ms. Dudley joined the firm as an associate in 2017. Her practice focuses on land use and environmental law, handling all phases of the land use entitlement and permitting processes, including administrative approvals and litigation. Ms. Dudley’s practice includes the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), endangered species, and water quality and water rights.

Ms. Dudley received her Bachelor of Arts degree in Anthropology from Bryn Mawr College in 1997, and her Master of Library and Information Science from Simmons College in 2002. Prior to law school, Ms. Dudley enjoyed a career as a law librarian, providing research and reference services to private law firms and in the California state courts. She received her Juris Doctorate from Golden Gate University, with a specialization certificate in environmental law, earning the J. Lani Bader Award for Academic Excellence for graduating as the top-ranked student in the 2016 class. While at law school, Ms. Dudley was an Associate Editor on the law review, and published a student comment. During law school, Ms. Dudley was a law clerk with the San Francisco City Attorney’s Office, U.S. Department of Housing and Urban Development, and in Golden Gate University’s Environmental Law and Justice Clinic. Prior to joining Remy Moose Manley, LLP in 2017, Ms. Dudley was a fellow at a nonprofit organization based in Marin County, practicing land use and environmental law relating to marine habitats.

On April 21, 2017, the First District Court of Appeal in Sierra Club v. County of Sonoma (2017) __ Cal.App.5th __ (Case No. SCV-255465), affirmed the trial court and ruled that Sonoma County’s ordinance, issuing an erosion-control permit to establish a vineyard was a ministerial act, not subject to CEQA.

Sonoma County allows for the development or replanting of commercial vineyards, subject to issuance of an erosion-control permit from the County Agricultural Commissioner. In December 2013, the commissioner issued a permit to the Ohlson Ranch to establish a 108-acre vineyard. Several months later, the commissioner issued a notice of exemption indicating that issuance of the permit was ministerial and therefore did not require environmental review. The Sierra Club and Center for Biological Diversity filed suit challenging the commissioner’s determination and the trial court denied the petition.

The Court of Appeal upheld the trial court’s decision that the county’s determination was ministerial and the approval was exempt from CEQA. In determining whether granting the permit was ministerial, the court applied the “functional distinction” test from Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259. Under Friends of Westwood, an action is ministerial when the agency does not have the power to deny or condition the permit, or otherwise modify the project, in ways which can mitigate the environmental impacts identified in an EIR.

The court was unpersuaded by the petitioners’ key argument—that the ordinance’s terms were broad and vague, and therefore the entire permit process conferred discretion on the county. In reaching this decision, the court emphasized that CEQA analysis is project-specific. That discretion could conceivably be exercised in one project does not mean that the particular project at issue was discretionary. Here, many of the terms and conditions in the ordinance that may have conferred discretion to the county did not apply to the Ohlson Ranch permit application, because they were factually inapplicable; expressly excluded from consideration by the commissioner with regard to this project; or there was no evidence in the record to suggest that they played any role in issuing the permit.

Second, even where some of the applicable provisions could have conferred discretion on the commissioner, under the functional distinction test, the county could not have modified the project or denied the permit to mitigate the environmental impacts. Rather, county decision-making was guided by nearly 50 pages of technical guidance documents. A required wetland setback conferred discretion only to the extent that the distance of the setback would be determined by the biologist’s report, but did not confer discretion on the agency to modify the biologist’s recommendations. A requirement to divert storm water to the nearest “practicable” disposal location was similarly ministerial, in that the permit application provided a means of water diversion, and petitioner failed to establish that other diversion methods were even available. If other methods had been available, it may have granted discretion to the commissioner to select an option or otherwise mitigate impacts.  The petitioners’ reliance on a provision to incorporate natural drainage features “whenever possible” was flawed for the same reasons, as petitioners failed to identify the types of features present on the site and the commissioner’s ability to choose the least environmentally significant option.

Third, the court declined to hold that issuing a permit, an otherwise ministerial act, becomes discretionary because the applicant “offers” to mitigate potential impacts. The ordinance does not require mitigation measures and the commissioner has no authority to condition granting the permit application on them.

Similarly, the commissioner’s request for corrections and clarifications on the permit application did not demonstrate discretion, but rather was a simple request for information in order to complete an otherwise non-discretionary act. These corrections and clarifications were not significant enough to have alleviated any adverse environmental consequences.

On September 15, 2017, Andee Leisy will present “New Developments in CEQA Appellate Case Law” at the 13th Annual Advanced Seminar on CEQA hosted by Law Seminars International. The conference will be held at the DoubleTree Guest Suites in Santa Monica. Additional information can be found at www.lawseminars.com

On September 14, 2017, Jim Moose will be presenting on the subject of Land Use and CEQA Litigation Update at the League of California Cities 2017 Annual Conference at the Sacramento Convention Center.

Whit Manley will appear on a panel at the annual State Bar’s Environmental Law Section conference at Yosemite in October, addressing the implications of the Supreme Court’s Banning Ranch decision, the extent to which other permits or approvals must be integrated into the CEQA process, and the increasing trend for CEQA litigation to include claims arising under other environmental or land-use laws.

On December 14, 2017, Jim Moose will discuss Supplemental Environmental Review at the 13th annual CLE International Conference on CEQA: Legislation, Case Law & Practice Tips at the Marriott Marquis Hotel in San Francisco.

Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918

The California Supreme Court ruled that the Environmental Impact Report prepared for the proposed “Banning Ranch” project was inadequate because the EIR did not identify “environmentally sensitive habitat areas” (ESHA) under the Coastal Act that might be present on the property, and therefore did not consider mitigation measures and alternatives designed to reduce impacts on those areas. Although the project required a coastal development permit, and the Coastal Commission would make a determination regarding ESHA as part of that permit, the Court held the EIR had to include a prediction of where ESHA would likely be found in order to serve its information purposes under CEQA. Whit Manley argued the case for the City of Newport Beach.

Mission Bay Alliance v. Office of Community Investment and Infrastructure (2016) 6 Cal.App.5th 160

The First District Court of Appeal upheld the city’s approval of a new arena in the Mission Bay neighborhood of San Francisco. The arena will serve as the home of the Golden State Warriors’ basketball team. The Court held the environmental impact report certified by the city was adequate, finding among other things that (1) the city had properly “tiered” the EIR off an earlier program EIR covering redevelopment of Mission Bay, (2) the city could rely on the project’s consistency with the city’s adopted climate action plan, and (3) the city could rely on implementation of various transit improvements to address traffic traveling to and from the arena. Whit Manley argued the case for the Warriors.

In Save our Heritage Organisation v. City of San Diego (2017) ___Cal App.5th___ (Case No. D070006), the Fourth District Court of Appeal upheld a trial court’s denial of a Code of Civil Procedure section 1025.1 attorneys’ fee award to the prevailing real party in interest.

On the merits, the court of appeal found that the City of San Diego had not abused its discretion when it approved a revitalization project for Balboa Park. Real party then filed a motion in superior court for an award of attorney fees, which the court denied.

The Fourth District concluded that a real party’s status as a project proponent did not categorically bar it from obtaining a section 1025.1 attorney fees award where it otherwise satisfied the award’s requirements. Nevertheless, the court upheld the denial of the fee award to real party holding that petitioner was not the type of party on whom attorney fees were intended to be imposed. The court stated that attorney fees were typically only imposed on parties who had engaged in conduct that had adversely affected the public interest. The court found that the petitioner initiated litigation to correct what it perceived to be a violation by the city of state and local environmental, historic preservation, and land use laws, which did not compromise any important public rights. Rather, it was the type of enforcement action section 1021.5 was designed to promote. Thus, the court held that imposing a fee award on the petitioner would be inappropriate.