Tag: Exemptions

SECOND DISTRICT UPHOLDS CITY OF POMONA’S RELIANCE ON CEQA GUIDELINES SECTION 15183 EXEMPTION FOR APPROVAL OF A ZONING OVERLAY DISTRICT ALLOWING COMMERCIAL CANNABIS ACTIVITIES

General Posted by   

In Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, the Second District Court of Appeal held that the City of Pomona properly relied on the exemption provided in CEQA Guidelines section 15183 when approving a zoning overlay district allowing commercial cannabis activities on specific parcels located in certain areas within the City.

Background

In the years following the 2016 voter passage of the state’s Control, Regulate and Tax Adult Use of Marijuana Act, which legalized the cultivation, manufacturing, distribution, and sale of nonmedical cannabis and cannabis products, the City of Pomona passed several ordinances in anticipation of allowing cannabis operations within City limits—(i) an ordinance implementing a cannabis business tax; (ii) an ordinance establishing a formal application process to obtain a cannabis business license; and (iii) specifically relevant to the case, an ordinance to develop a commercial cannabis permit program overlay district within existing zoning designations in the City.

To establish this overlay district, constituting a “project” under CEQA, the City underwent a multifaceted process that included the establishment of buffers from sensitive uses such as schools, conducting research and site visits to other cities with legally operating cannabis businesses, meeting with applicable state agencies and the local police department, holding a series of community meetings, and conducting a City-wide parcel-level analysis.

Based on this process, the City determined that a total of six types of commercial cannabis activity could occur with the City—(1) store front retail, (2) manufacturing, (3) cultivation (indoor), (4) testing, (5) distribution, and (6) micro-business. The City prepared a “Determination of Significance” demonstrating that the proposed land uses “are consistent with and similar to already existing land uses” in “the Pomona Zoning Ordinance and the General Plan Update.”  The City also prepared an initial draft overlay map showing 414 parcels where cannabis businesses could be established. The initial map included a parcel owned by petitioner Lucas (which he claimed to have spent two million dollars preparing for operation of a cannabis business), however, the final draft excluded this parcel.

The City then had a third-party consultant prepare a “Findings of Consistency” document, which demonstrated that the project would not “have new or increased significant environmental effects beyond those identified in the 2014 [General Plan Update] EIR” by addressing “each of the environmental issues studied in the 2014 EIR [and] comparing the effects of the proposed project to the effects of the adopted General Plan Update.”

As a result, the City determined that the project qualified for the CEQA streamlining and exemption allowable under CEQA Guidelines section 15183.

At an October 2019 Planning Commission hearing considering the project, Lucas requested that the City reconsider including his property in the overlay district. Other parties opposed the project for different reasons—the nearby cities of La Verne and Walnut requested increased buffers from their City boundaries, as they both prohibited commercial cannabis activity and, in the case of Walnut, questioned CEQA Guidelines section 15183 applicability to the project. The Planning Commission did not recommend project approval to City Council and requested changes to the project.

After the hearing, petitioner and adjacent cities (amongst other commenters) sent correspondence to the City again expressing opposition to the project and making specific requests for changes. The project was thusly amended to create a 600-foot buffer from City boundaries and further remove more than a hundred parcels, leaving 292 parcels eligible for commercial cannabis activities.

In November 2019, the Pomona City Council approved the modified project and adopted the Determination of Significance and Findings of Consistency, and concluded that the project met the requirements in CEQA Guidelines section 15183. The City then filed a Notice of Exemption with the county recorder. The Determination of Significance states that the public has ten days to appeal. No one appealed.

Lucas filed a petition for writ of mandate alleging a CEQA violation for the City’s use of the Guidelines section 15183 exemption for the project. Three weeks before the hearing on the merits, at which the trial court found against petitioner, City voters passed Measure PO, “which adopted a cannabis permit overlay identical to the Project.” A few weeks later, the City Council adopted and ratified Measure PO. Lucas appealed the trial court’s decision, but did not file an appeal or request a court-ordered stay of Measure PO.

Court of Appeal’s Decision

The court bypassed the City’s standing and exhaustion of administrative remedies claims by assuming for sake of argument Lucas prevailed on these procedural issues, and therefore only reviewed the merits of the challenge to the City’s reliance on the CEQA Guidelines section 15183 exemption. The court reviewed this claim under the substantial evidence standard, which, per prevailing caselaw, is proper where an agency determines a project’s consistency with a prior program EIR.

To use the Guideline section 15183 exemption, as noted by the court, a project must be “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified,” whereas “consistent” means “the density of the proposed project is the same or less than the standard expressed for the involved parcel in the general plan, community plan or zoning action for which an EIR has been certified, and that the project complies with the density-related standards contained in that plan or zoning.”

As to density, Lucas argued that, because the existing zoning contains no density-related standards, there was no way for the project to be deemed consistent. The court disagreed with this “literal approach” and instead concluded that the omission of the “the exact word ‘density’ or exact phrase “density-related standards’” in a zoning ordinance “does not necessarily mean that those topics were not discussed with different verbiage.” Although the court did not illuminate what verbiage in the applicable zoning ordinance might demonstrate density, it did note that the 2014 General Plan Update EIR, the project’s Determination of Similarity, and the project’s Findings of Consistency all addressed land use and/or density. And, importantly, Lucas did not file an appeal of the Determination of Similarity conclusions. Therefore, he was “foreclosed from challenging any of [its] commercial cannabis activities/land findings.”

On the need for additional environmental review, the court again rebuked Lucas’ “literal approach.” The City’s Determination of Similarity deemed the six types of proposed cannabis land uses “similar to already existing land uses, and as such…covered by the uses contemplated by the 2014 EIR and 2013 General Plan Update.” Thus, just because the 2014 General Plan Update EIR did not contain the explicit words “marijuana” or “cannabis” did not mean it did not address that land use. The court likewise denounced Lucas’ argument that the project presents “unique and peculiar impacts associated with cannabis-related business” because, as it noted, the project itself “does not guarantee anyone the automatic right to establish a cannabis-related business,” it merely “imposes an overlay use on existing zoning” that only provides an opportunity to apply for a business permit. The court again relied on the findings in the Determination of Similarity “that cannabis uses were sufficiently similar to existing uses allowed by the underlying zonig” as substantial evidence supporting the City’s determination.

Lastly, Lucas argued that the project’s impacts on “traffic, air quality, greenhouse gas emissions, land use/planning, noise, and public services” did not fall within the scope of the less-than-significant conclusions made in the 2014 General Plan Update EIR. The court addressed each impact area, ultimately concluding that substantial evidence demonstrated that the project would not generate impacts beyond those identified in the 2014 EIR, and that existing mitigation measures and uniform standards applied to the project would reduce or manage any impacts.

Notably, the court found that Lucas’ concern with cannabis cultivation odor was addressed by the City’s municipal code regulating odor control devices. It also found that cultivation-related energy use, which petitioner claimed would result in “‘extraordinary [greenhouse gas emissions] impacts,’” could be dealt with through development standards, similarly to “other uses that could be developed in the Overlay District subareas.” On noise emitted by backup generators used in cannabis operations, the court opined that “[s]urely back-up generators are also utilized by other retail stores or manufacturers in times of a power outage.” And, in response to Lucas’ claim that the project would result in a greater impact on police services than analyzed in the 2014 General Plan Update EIR, the court noted in particular that “[t]he project would not result in the need for additional police protection facilities.”

– Casey Shorrock

SECOND DISTRICT HOLDS REGIONAL WATER BOARDS ARE NOT REQUIRED TO EVALUATE UNREASONABLE USE OF WATER OR MAKE FINDINGS OF SIGNIFICANCE WHEN ISSUING WASTEWATER DISCHARGE PERMITS

General Posted by   

UPDATE:

On June 2, 2023, the Second District Court of Appeal vacated their prior opinion and issued a revised opinion in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 92 Cal.App.5th 230, following a request for modification from the State Water Resources Control Board and the Los Angeles Regional Water Quality Control Board (collectively, the Boards). The Boards sought clarification about the Regional Board’s authority to regulate the unreasonable use of water under article X section 2 of the California Constitution and Water Code sections 100 and 275, and the scope of the CEQA exemption in Water Code section 13389. The court’s revised opinion maintains the original holdings but clarifies their scope.

The revised opinion makes clear that nothing in the holding was meant to limit a regional water quality control board’s authority to regulate the unreasonable use of water. According to the court, its decision expresses “no opinion as to whether the State Board may direct or authorize the regional water quality control boards to take actions related to preventing the waste or unreasonable use of water in coordination with the State Board’s efforts in this regard.” As noted by the court, this clarification is important to ensure that coordination between the regional water quality control boards and the State Board regarding issues of waste and unreasonable use of water can continue and is not undermined by language in the opinion.

The revised opinion also clarifies that, because the instant case only deals with NPDES-equivalent permits that are subject to the Water Code section 13389 CEQA exemption, the court did not decide whether the exemption applies to other types of waste discharge permits not at issue in this case.

– Alina Werth

 

In Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874, rehearing granted March 27, 2023, the Second District Court of Appeal held that the Regional Water Quality Control Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court also held that under CEQA, Regional Water Quality Control Boards are not required make findings of significance under Public Resources Code section 21002 when issuing wastewater discharge permits, which are exempt from CEQA pursuant to Water Code section 13389.

Background

The Regional Board renewed permits allowing four publicly owned treatment works (POTWs) to discharge millions of gallons of treated wastewater daily into the Los Angeles River and Pacific Ocean.

Petitioner requested review of the permits to the State Water Resources Control Board, which declined review. Petitioner then filed petitions for writs of mandate against the State Board and the Regional Board (collectively, the Boards), claiming violations of the Water Code and CEQA.

The Boards demurred to the petitions. The trial court sustained the demurrer as to the Regional Board, but overruled the demurrer as to the State Board, finding that the State Board had a constitutional and statutory duty to prevent the waste of water. The trial court also ruled that the Regional Board did not have to comply with CEQA when issuing wastewater discharge permits, pursuant to an exemption under the Water Code.

The trial court held that the State Board failed to fulfill its duty with regard to the four POTWs and accordingly issued four judgments and four writs of mandate against the State Board. The State Board appealed the four judgments. Real Party in Interest appealed the judgment against the State Board pertaining to its POTW. Petitioner appealed the trial court’s decision to sustain the demurrer in favor of the Regional Board. The appellate court consolidated the appeals.

The Court of Appeal’s Decision

California Constitution & Water Code

The Court of Appeal held that the Regional Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court determined that the Legislature did not design or empower the Regional Board to enforce the mandates of article X, section 2 when issuing wastewater discharge permits. Moreover, it explained that the Regional Board’s role in state water law is to regulate water quality by ensuring the state’s waters are sufficiently free of pollutants to be safe for their intended uses—a role which does not include regulation of wasteful or unreasonable use of water. The court stated that nothing in the Water Code delegates the Regional Board powers to adjudicate and regulate functions of the state in the field of water resources or to take all appropriate proceedings or actions to prevent waste and unreasonable use of water, as it delegates to the State Board.

The court rejected petitioner’s argument that article X, section 2 applies to all government actors, including the Regional Board. It explained that while an action could be brought against anybody for wasting water, petitioner’s claims did not allege that the Regional Board was wasting water, but rather, failed to prevent the POTWs from wasting water, and nothing in article X, section 2 or the Water Code empowers the Regional Board to prevent unreasonable use of water.

The Court of Appeal did not need to reach the issue of whether the State Board has a duty to prevent unreasonable use of water because it concluded that petitioner failed to adequately plead a cause of action against the State Board. It nonetheless explained that the provisions in the California Constitution and the Water Code requiring the State Board to prevent the waste of water are highly discretionary and do not require the State Board to prevent all waste, nor do they dictate how to prevent waste. Therefore, these provisions cannot be read to restrict the State Board’s discretion as to whether to direct its resources towards one method of conservation in its portfolio over another.

CEQA

The Court of Appeal held that Public Resources Code section 21002 does not apply to wastewater discharge permits and, accordingly, the Regional Board is not required to make findings as to whether a project has significant and unavoidable impacts, and whether there are feasible alternatives or mitigation measures that would substantially lessen those impacts.

The appellate court rejected petitioner’s argument that section 21002 imposes environmental review requirements independent of CEQA’s environmental impact report (EIR) procedures from which the wastewater discharge permits are exempt under Water Code section 13389. The court explained that section 21002 does not impose requirements separate from the EIR process; it only has force to the extent an entity is otherwise obligated to prepare an EIR. The court based its reasoning in the language of sections 21002, 21002.1, and 21082, all of which confirm that the EIR is the means by which the agency satisfies the policies articulated in 21002.

The appellate court also rejected petitioner’s argument that an agency can comply with section 21002 by means other than an EIR, and that the Regional Board can comply with this section by using the information and analysis it collects and performs in the normal course of permit approvals. The court explained that it will not read section 21002 to impose such requirements when the Legislature has not specified any means to carry out those requirements apart from an EIR, as there would be no way for a court to evaluate whether the Regional Board’s efforts were sufficient. The court concluded that the Legislature has opted to govern environmental review in this context through the wastewater discharging process by exempting the Regional Board from an EIR requirement.

The court accordingly did not need to reach the broader question of whether Water Code section 13389 provides a complete exemption from CEQA.

– Veronika S. Morrison

SECOND DISTRICT UPHOLDS CITY OF LOS ANGELES’ RELIANCE ON INFILL CEQA EXEMPTION FOR APPROVAL OF ELDERCARE FACILITY, REJECTS LOCAL ZONING AND COASTAL ACT CLAIMS

General Posted by   

In Pacific Palisades Residents Association, Inc. v. City of Los Angeles (2023) 88 Cal.App.5th 1338, the Second District Court of Appeal denied a neighborhood group’s challenge to a proposed eldercare facility under local zoning laws, the California Environmental Quality Act (CEQA), and the California Coastal Act.

Background

The project applicant proposed constructing an eldercare facility on a vacant one-acre lot surrounded by both residential and commercial uses in Pacific Palisades. The lot, located about two and a half miles from the coast, within the coastal zone, had been zoned for commercial use since 1978 and, at the time of the lawsuit, consisted of bare flat dirt behind a chain link fence. The proposed facility included 82 residential rooms and a public bistro housed in a building that would be one story higher than the tallest nearby structure.

The City of Los Angeles undertook an extensive review process, which consisted of multiple public hearings and opportunities for public comment. The City’s Zoning Administrator, Planning Commission, Planning and Land Use Management Committee, and City Council all concluded that the project complied with the zoning code and was exempt from CEQA pursuant to the Class 32 exemption for infill development. The City Council issued a Coastal Development Permit and approved the project.

A group of neighbors acting as the Pacific Palisades Residents Association filed a petition for writ of mandate against the City and the Coastal Commission, challenging the project approval under the City’s zoning code, the Coastal Act, and CEQA.

The trial court denied the petition. Petitioner appealed.

Court of Appeal

Los Angeles Zoning Code

The court denied Petitioner’s claims under the City’s zoning code. Petitioner argued that the facility was larger than what was permitted under the code, but the court explained that the “plain English interpretation of the zoning code” foreclosed any argument that the facility was not permitted on the lot.

Request for Judicial Notice

In its arguments arising under the zoning code, Petitioner relied, in part, on extra-record evidence that was not presented to the trial court. Petitioner sought judicial notice of the additional evidence on two grounds, both of which were rejected by the court. First, Petitioner argued that the evidence was admissible because the City had raised an “incorrect” interpretation of its zoning code at trial, requiring additional research by appellant. The court disagreed, because “the neighbors’ time to research this trial issue was before or during trial”; Petitioner could not introduce the evidence for the first time on appeal. Second, Petitioner argued that extra-record evidence was admissible to resolve a future issue to avoid the need for a separate appeal of post-judgment matters. The court, however, declined this “unprecedented invitation to attempt to moot a future appeal in the name of judicial economy.”

CEQA

With respect to CEQA, Petitioner argued that the Class 32 exemption did not apply because the proposed project was not architecturally compatible with the neighborhood and would impact views. The court explained that these “aesthetic judgments” are subjective findings that are appropriately reviewed for substantial evidence. As a result, the court was required to defer to the City’s aesthetic determinations so long as a reasonable person could have reached the same conclusions. Here, the court held, the City’s decision that the project was compatible with local plans was “eminently reasonable” because the neighborhood had been a subdivision of Los Angeles for decades and the area was not undeveloped seashores or wilderness. The court therefore upheld the City’s application of the Class 32 CEQA exemption.

Coastal Act

The City issued a Coastal Development Permit pursuant to section 30600, subdivision (b) of the Coastal Act. Petitioner filed an appeal with the Coastal Commission, which determined that the appeal did not raise a “substantial issue.” Again applying a deferential standard of review, the court explained that it is for the Commission, not the court, to weigh conflicting evidence. Petitioner offered evidence in support of its complaints about the project, but it failed to show that the Commission’s decision was unsupported by substantial evidence. Thus, the court rejected Petitioner’s challenge.

– Elizabeth Pollock

Streamlined Yet Underutilized: CEQA’s Class 32 Urban Infill Exemption

General Posted by   

Streamlining—the promotion of organizational and systemic efficiency through the simplification of process—has been steadily incorporated into CEQA for years, largely through exemptions. The notion being: why not shorten the lengthy CEQA review where prior planning documents have nearly fully assessed potential impacts of a project? (E.g., CEQA Guidelines, § 15183.3, subd. (a).) These exemptions, categorical or statutory, are intended to save agencies, and by extension the public, time and resources.

Unlike many statutory exemptions that excuse qualifying projects entirely from CEQA consideration, categorical exemptions only discharge a “class” of projects from typical CEQA evaluation via a discretionary preliminary review. (CEQA Guidelines, § 15354.) The “Class 32” exemption is one such class promoting “shovel-ready” urban infill development projects through categorical streamlining. Established in 1998, this urban infill exemption requires projects to be consistent with applicable general plans and zoning designations, located within a city’s limits on a site five acres or less, bordered by urban uses, and without significant impacts to traffic, noise, air quality, or water quality. The project site itself can be either vacant or previously developed, but must be devoid of sensitive habitat and adequately served by public utilities. (CEQA Guidelines, § 15332).

In 2011, additional streamlining provisions included in Senate Bill 226 were intended to balance the interests of the government, business, and the environment by better fast-tracking Class 32 urban infill development by specifying conditions under which these projects would be adequately supported by existing planning documents and land use designations. (Pub. Resources Code, § 21094.5.) Despite SB 226 streamlining and Class 32’s beneficial function, it still goes underutilized. So why aren’t cities using this infill categorical exemption and should that change?

Class 32 and the Balancing Act of Senate Bill 226

The Class 32 infill development exemption was included in the Guidelines as a part of a 1998 revision by the Governor’s Office of Planning and Research (OPR) to clarify project types that are categorically exempt from typical CEQA review. In an effort to promote this exemption, along with other environmental tools such as solar technology, in 2011 State Senator Joseph Simitian penned SB 226 to expand CEQA streamlining provisions for infill development projects. Sen. Simitian intended the bill to balance interests, especially with increasing legislative demands for a reduction in greenhouse gas emissions. He also purported to provide a much-needed boost to industries struggling to recover from the country’s economic recession, specifically construction. (See State Sen. Joseph Simitian, letter to Governor Jerry Brown, Sept. 5, 2011, http://www.senatorsimitian.com/images/uploads/SB_226_CEQA_Letter.pdf; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 226 (2011–2012 Reg. Sess.) as amended September 9, 2011, p. 4.) By June 2012, OPR had effectuated the final proposal, incorporated the bill’s language into CEQA Guidelines, and published its accompanying performance standards as Appendix M, at which time it became an official enhancement to Class 32 exemptions.

Exemption Usage…or Lack Thereof

While a Class 32 exemption and its streamlining provisions can help cities more predictably plan development, it has gone underutilized.

Scott Morgan, OPR Deputy Director of Administration and State Clearinghouse Director, has stated that agencies often choose to prepare negative declarations or even environmental impact reports (EIRs) for projects that meet infill exemption criteria, despite the fact that negative declarations are often litigated and held to an less deferential standard of judicial review (“fair argument” versus “substantial evidence” standard, see below). Mr. Morgan explains some of this underutilization as simple unfamiliarity—city staff often aren’t aware of or comfortable using this exemption and its streamlining possibilities. However, some larger cities like Oakland and San Francisco almost exclusively use this exemption for their smaller-scale infill projects, thereby exemplifying the principle that areas already predetermined for these exact uses by a CEQA-driven planning process need not undergo a more onerous review.

The City of Oakland has developed a Class 32 exemption process that includes a preliminary review with report-style documentation, inclusive of applicable technical analysis and informal findings. In July 2015, for example, the Oakland Bureau of Planning prepared a 54-page Class 32 exemption report for a 24-story, mixed-use project with residential, retail, and restaurants on a previously developed half-acre site at 1700 Webster Street. This report included a detailed project description, CEQA categorical exemption and streamlining criteria, a CEQA exemption checklist demonstrating how this criteria has been met, and seven technical appendices ranging from transportation impact analysis to air quality and noise studies to a wind tunnel analysis. The report led to the planning staff’s December 2015 recommendation for approval and the Planning Commission’s subsequent approval. The project broke ground in the spring of 2017.

Taking Exception: How Unusual Are Unusual Circumstances?

Procedurally, Class 32 exemptions require a fraction of the process prescribed for standard CEQA review, with no required public review period, specific CEQA documents, or mitigation. Exceptions to the exemptions, however, add back in a measure of consideration to the process. (CEQA Guidelines, § 15300.2, subds. (b), (c)–(f).) Under these exceptions, the infill exemption cannot be used if the project would cause cumulatively significant impacts, impact scenic highways or historical resources, involve hazardous waste, or are subject to “unusual circumstances.” While these four exemptions lend themselves to relatively straightforward interpretation and have been largely uncontroversial, the “unusual circumstances” exception has been the subject of much litigation.

The “unusual circumstances” exception precludes the use of any categorical exemption when there is a “reasonable possibility” that the project “will have a significant effect on the environment due to unusual circumstances.” (CEQA Guidelines, § 15300.2 (c.).) In reviewing a lead agency’s determination as to whether the exemption applies and if the effects will be significant, the Supreme Court has applied a two-prong test wherein an agency must answer: (1) are there unusual circumstances? And if so, (2) would these unusual circumstances create a potential for significant impact? Further complicating the issue is the bifurcation of the standard of review that applies the “substantial evidence” standard to the first prong of the test and the “fair argument” standard to the second. Under the more deferential first prong, an agency may base its decision on substantial evidence, including conditions in the vicinity of the project. If it determines there is an “unusual circumstance,” then the “fair argument” standard requires an EIR when it can be fairly argued based on substantial evidence that “due to” the unusual circumstances of the project, it may have a significant effect on the environment. Both standards require substantial evidence in the record. And the question of whether a project qualifies for the Class 32 exemption in the first instance is subject to the more deferential “substantial evidence” threshold. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1114).

Given the above, a prudent agency using a Class 32 exemption should document its determination of whether any “unusual circumstances” are present and resulting potential significant effects (or presumably, the lack thereof) with applicable land use documents (zoning maps, general plans, etc.) and if warranted, some standard preliminary technical analysis (traffic, biology, noise, etc.). With these components on the record, as in the Oakland example, in conjunction with the issuance of an NOE, the outcome of legal challenges should be more favorable for cities and developers.

Conclusion

Although litigation for Class 32 exemption projects is always a possibility for development projects, with fulfillment of applicable CEQA criteria and requirements, agencies would be wise to consider the Class 32 exemption. Based on judicial trends, this exemption may be more likely to survive a legal challenge than a negative declaration at least in some jurisdictions. If these trends continue, over time challenges to these exemptions could even quieted by case law that supports agency discretion with the use of the Class 32 CEQA infill exemption, making it an increasingly viable option for agencies to speed up the development of much needed infill housing and other urban projects.

By: Casey Shorrock Smith

Use It or Lose It? CEQA’s Bicycle Transportation Exemptions and Legislative Efforts to Preserve Them

General Posted by   

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.

First District Rules That Issuing Erosion-Control Permit Under Sonoma County Ordinance Was Ministerial Act Exempt From CEQA

General Posted by   

On April 21, 2017, the First District Court of Appeal in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, 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.

First District Publishes Decision Upholding San Francisco’s Expansion of Plastic Bag Restrictions

General Posted by   

On January 3, 2014, the First District Court of Appeal ordered publication of Save the Plastic Bag Coalition v. City and County of San Francisco. We previously wrote about the case here.

The League of California Cities and the California State Association of Counties jointly submitted a request for publication. In support of this request, the groups pointed out that: no other published decision has applied the rules of preemption to single-use plastic bag bans; the opinion suggests that if environmentally beneficial components are an integral aspect of a project from its inception, they may be considered when determining that a categorical exemption from CEQA applies to the project; the opinion clarifies that local agencies can use the Class 7 and Class 8 categorical exemptions and operate in a regulatory capacity; and the opinion provides helpful guidance regarding what qualifies as substantial evidence under the fair argument standard. The court did not state which, if any, of these arguments influenced its decision to publish the opinion.