Sixth District Rules County of Santa Cruz Did Not Engage in Piecemeal Review of Zoning Ordinances and Upholds Negative Declaration
April 10th, 2017 by Elizabeth Pollock
In Aptos Council v. County of Santa Cruz (2017) ___Cal.App.5th___ (Case No. H042976), the Sixth District held that the County of Santa Cruz did not engage in piecemeal review when it separately adopted three different zoning ordinances. The court also upheld the negative declaration for an ordinance increasing the height and density of hotels.
The County planning department undertook an effort to overhaul various County code sections, including those dealing with zoning. As part of this effort, the following occurred: (1) in March 2013, the County considered an addendum to a negative declaration prior to adopting an ordinance that authorized administrative approval of minor exceptions to zoning site standards; (2) in September 2013, the planning department circulated a negative declaration finding that an ordinance increasing the height and density for hotels (the “Hotel Ordinance”) would not have a significant effect on the environment; and (3) in October 2013, the planning department prepared a notice of exemption for an amendment modifying the County’s sign ordinance (the “Sign Ordinance”). The Board adopted the Hotel Ordinance and the Sign Ordinance in 2014.
Petitioner argued that the three ordinances in question constituted a single project and the County’s actions amounted to piecemealing in violation of CEQA. The court disagreed. The court found that reforming certain zoning regulations—such as altering density requirements for hotels—was not a reasonably foreseeable consequence of the other regulatory reforms challenged. Because each ordinance operated independently and could be implemented separately, they were not considered a single project. While the ordinances all served the same stated objective of “modernizing the County code,” the court held that this was not the type of tangible objective that forms the basis of a single CEQA project.
The court also upheld the negative declaration for the Hotel Ordinance, finding that the County did not need to consider potential future development because it was too speculative to be reasonably foreseeable. Evidence in the record supported the argument that the County intended to stimulate development when it passed the ordinance, but the court found that still did not demonstrate that such development was reasonably foreseeable. Additionally, the initial study disclosed that the Hotel Ordinance would allow higher density and taller hotels but that the effects of future development were speculative until a specific development was proposed. And, the initial study explained that such development projects would be subject to their own CEQA review. Moreover, the court found that petitioner failed to meet its burden to show a fair argument that significant environmental effects may result from the ordinance.
Third District Court of Appeal Strikes Down Negative Declaration Prepared for a County’s Oak Woodland Fee Program
May 17th, 2012 by admin
Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156
The Third District Court of Appeal struck down negative declaration prepared for El Dorado County’s oak woodland fee program, rejecting the county’s attempt to tier off the program EIR prepared for its General Plan.
In 2004, El Dorado County certified a program EIR and adopted a general plan. The program EIR acknowledged that development under the new general plan would have significant impacts on oak woodland habitat. The plan included a policy to develop an integrated natural resources management plan. The plan had two options to protect woodlands: “Option A” required adherence to canopy retention standards and replacing woodland habitat at a 1:1 ratio; and “Option B” required payment of an in lieu fee into the county’s integrated plan’s conservation fund. Pending completing of the integrated plan, the county required project developers to mitigate the loss of oak woodland habitat through only Option A. In 2008, the county adopted an oak woodland management plan. The purpose of the management plan included developing the Option B fee program and creating a foundation for the oak woodland conservation portion of the integrated plan. Development of the management plan required mapping existing oak woodlands and identifying conservation priorities. Certain criteria were used to prioritize areas with the highest biological value. Valley oak woodland was designated as sensitive habitat. The plan also included oak woodland corridors for wildlife. To analyze the environmental effects of the management plan, the county prepared an initial study and negative declaration that tiered from the 2004 program EIR. The petitioners challenged this approach, arguing an EIR was required. The trial court denied the petition. The petitioners appealed.
The county argued the oak woodland management plan and Option B fee program were encompassed in the 2004 program EIR. The Court disagreed, holding that the 2004 program EIR did not encompass the oak woodland management plan and Option B fee program. The county had to make a number of judgment calls regarding the details of the fee program, and the general plan and program EIR had not considered or analyzed these details. First, the 2004 program EIR and general plan did not differentiate between oak species. The management plan, however, focused on valley oaks to the exclusion of other oak species. Second, the 2004 program EIR did not determine the measurement metric for conservation of oak woodlands to be used under Option B; yet, the choice of one metric versus another would alter the fees required under the Option B fee program. Third, the 2004 program EIR did not set the fee rate to be paid if a project applicant elected to mitigate under Option B. Although preservation programs funded by impact fees can be appropriate mitigation, the program must still, at some point, undergo CEQA review. Fourth, the county’s 2004 program EIR had not specified how fees collected under Option B should be used to preserve oak woodlands. The program EIR emphasized the importance of maintaining connectivity among preserved oak woodlands, yet the county deferred the issue of connectivity until after other elements of the integrated plan could be established. As a result, the Option B mitigation approach differed from the 2004 program report’s emphasis on the protection of connectivity between woodland habitats.
The Court concluded the record supported a fair argument that the oak woodland management plan and Option B fee program could have a potentially significant effect on the environment. While the 2004 program EIR determined impacts would remain significant even with mitigation, the negative declaration for the management plan concluded cumulative impacts would be less than significant. The county argued there would be no greater adverse environmental effect than already anticipated in the 2004 general plan and program EIR. The Court rejected this argument, noting that, prior to adoption of the management plan, oak woodlands were required to be preserved at a 1:1 ratio on-site under Option A; that was no longer true under Option B. For this reason, the county had to prepare an EIR.
Fourth District Court of Appeal Holds That Irrigation District Can Rely on a Previous Negative Declaration and Does Not Need to Perform Subsequent Environmental Review When Making Certain Updates to Water Distribution Regulations
May 4th, 2012 by admin
James A. Abatti et al., v. Imperial Irrigation District (4th Dist. April 26, 2012) Cal.App.4th (Case No. D058329)
Factual and Procedural Background
In 2006, the Imperial Irrigation District adopted a resolution related to a plan for the distribution of water in the event of a water shortage. Concurrently with its adoption of a resolution, the District adopted a negative declaration in which it concluded that the distribution plan would not have a significant effect on the environment. In 2007, the District adopted regulations implementing the distribution plan. There were no challenges to either the resolution adopting the plan or to the initial regulations implementing the plan.
In 2008, the District adopted additional regulations that revised the 2007 regulations. Concurrently with the 2008 regulations, the District adopted an environmental compliance report that concluded the 2008 regulations did not warrant further environmental assessment under CEQA. The District relied on Public Resources Code section 211166 and CEQA Guidelines section 15162, which provide limitations on the necessity for subsequent environmental review under certain circumstances. Section 21166 provides that once an agency prepares an EIR, no EIR shall thereafter be required for the project unless certain circumstances occur, such as substantial changes to the project or to the circumstances under which the project is being undertaken. Guidelines section 15162 provides a similar limitation on subsequent environmental review following the agency’s adoption of a negative declaration.
Appellants, owners of agricultural land in Imperial County, filed a petition alleging that the District failed to comply with CEQA in adopting the 2008 regulations. The trial court denied the petition, holding there was substantial evidence to support the District’s determination that the adoption of the 2008 regulations did not require additional CEQA review. According to the trial court, the project being evaluated here (the 2008 regulations) included the 2007 regulations and there was substantial evidence to support the District’s determination that there had been no changes in the project or in the surrounding circumstances since the adoption of the 2007 regulations that warranted additional review under section 21166. The court found the 2008 regulations simply served to clarify an omission made in the 2007 regulations – that the District could limit new industrial contracts to less than the contract amount if appropriate, and notably, this was a limitation on water deliveries. The change to the regulation was not an expansion of water distribution rights as appellants had asserted. The decision was appealed and the appellate court affirmed.
The first issue addressed by the appellate court was whether it had jurisdiction over the appeal in light of the fact that appellants dismissed several causes of action without prejudice prior to the entry of judgment on the CEQA causes of action. Under the final judgment rule, an appeal cannot generally be taken from a judgment that fails to complete the disposition of all the causes of action between the parties. The court held that claims that have been dismissed, with or without prejudice, do not remain pending within the meaning of the final judgment rule unless there is a stipulation between the parties facilitating the future litigation of the dismissed claims, such as an agreement tolling the statute of limitations. Here, there was no such stipulation so the court was able to exercise jurisdiction.
The court first addressed the appellants’ argument that Guidelines section 15162 was invalid because it improperly purports to extend section 21166 to negative declarations. Section 21166 mentions only EIRs and not negative declarations. Guidelines section 15162 has been held to be a valid regulation that implements the principles of section 21166. (Benton v. Board of Supervisors (1991) Cal.App.3d 1467, 1479-1481). Appellants argued, however, that Benton was wrongly decided. The court disagreed and held that section 15162 validly implements the principles contained in section 21166. The court agreed with Benton that section 15162 is valid because it furthers the purpose of section 21166, notwithstanding that the text of section 21166 refers only to EIRs. Therefore it held that section 15162 is valid when applied to cases, such as this, in which an initial negative declaration was prepared.
Appellants also argued that, even if section 21166 applied, the District was required to prepare an EIR due to the significant changes in the 2008 regulations. The court rejected this argument as well, finding that there was substantial evidence to support the District’s determination that the adoption of the 2008 regulations did not constitute a substantial change to the Project requiring additional environmental review. After reviewing the respective regulations, the court found the 2008 regulations did not substantially increase the priority preference that industrial users of water would receive over agricultural users in times of shortage, as appellants had alleged. Its view of the 2008 regulations was that they made only a minor change to the 2007 regulations. The 2008 regulations, which allowed the apportionment of water to existing users based on “past use” and the apportionment of water to new users based on “anticipated use” is one that actually limited water delivery to future industrial users from the amounts they would have received under the 2007 regulations and was not a substantial change requiring subsequent environmental review. Therefore, the court held that no further environmental review was required and affirmed the trial court’s decision to deny the petition.
This case confirms the holding in Benton that section 21166 allows a public agency to forego subsequent environmental review under certain circumstances regardless of whether the preceding environmental review document was an EIR or a negative declaration. Unless the specific events described in Public Resources Code section 21166 or Guidelines section 15162 have occurred, an agency does not need to conduct further review when making minor changes to a project if an EIR or negative declaration has already been completed. Although the court does not expressly state what satisfies the “substantial changes” standard requiring subsequent review under CEQA and CEQA Guidelines, the case nonetheless provides useful guidance regarding the limits of the provisions and helps clarify when the need for subsequent review has been triggered.
Third District Rejects Negative Declaration for Oak Woodland Fee Program Despite County’s Attempt to Tier from Prior Program EIR
February 15th, 2012 by Laura Harris
Center for Sierra Nevada Conservation, et al., v. County of El Dorado (Jan. 20, 2012) __Cal.App.4th___ (Case No. C064875)
On January 20, 2012, the Third District Court of Appeal ruled that the County of El Dorado violated CEQA by adopting a negative declaration for an oak woodland management plan and impact fee program. The court decided the county could not “tier” its review of the fee program from an earlier program EIR prepared for the county’s 2004 general plan. Read the rest of this entry »