On September 20, 2012, San Francisco County Superior Court Judge Teri Jackson denied a petition filed by Save the Plastic Bag Coalition.  The petition challenged San Francisco’s “Checkout Bag Ordinance.” Existing law in the City bans single-use non-compostable plastic checkout bags at supermarkets and at chain pharmacies.  The new Checkout Bag Ordinance extends this ban to all retailers. In addition, the new ordinance requires retailers to charge ten cents for each single-use compostable or paper bag. Further, single-use paper bags must have 40 percent minimum recycled content. The ordinance also establishes performance standards for reusable bags and directs San Francisco’s Department of the Environment to conduct education and outreach to store owners and consumers.

 Petitioner Save the Plastic Bag Coalition asserted two grounds for challenging the Checkout Bag Ordinance. Petitioner first argued the City and County’s reliance on a Categorical Exemption under CEQA was unlawful. Petitioner also argued that California’s Retail Food Code preempts the Checkout Bag Ordinance to the extent the ordinance applies to retail food establishments.

 The trial court ruled San Francisco qualified as a “regulatory agency” eligible to invoke CEQA categorical exemptions. The court noted Petitioner failed to provide authority for its assertion that Class 7 and 8 categorical exemptions do not apply to “legislative” activity. The court concluded that, when an ordinance is enacted pursuant to the municipality’s police powers to promote the general welfare, the municipality is acting in its regulatory capacity, within the meaning of CEQA’s Class 7 and 8 categorical exemptions. The court also found the record did not contain a “fair argument” that the ordinance will cause significant environmental harm due to unusual circumstances.

 The trial court rejected Petitioner’s preemption argument, finding the California Retail Food Code is clear and precise in defining the regulatory field it reserves for the state—the field of health and sanitation standards. Therefore, the Retail Food Code preempts only local laws establishing health and sanitation standards for retail food establishments. While the Retail Food Code addresses single-use bags to ensure they are safe and clean for transporting food, it does not require retail food establishments to use or provide customers with any single-use bags. Nor does the Code require that single-use bags be made from any particular material. For these reasons, the court found the City and County’s Checkout Bag Ordinance constituted an environmental standard and not a health and safety standard which could be preempted by the Retail Food Code. (John Wheat)

The Governor’s Office of Planning and Research recently announced that it has committed to updating the General Plan Guidelines in 2013. The general plan guidelines were last updated in 2003. Each county and city in California is required to adopt a general plan which comprehensively addresses long-term planning. The seven required elements of a general plan include conservation, safety, traffic circulation, noise, land use, open space and housing. (Gov. Code Sections 65300 et seq.) The new general plan guidelines will also address new issues such as greenhouse gas emissions reductions, climate change adaptation, renewable energy, infill development, public health, and regional planning.

OPR is also evaluating ways to provide policy guidance online, and exploring the feasibility of creating templates to reduce the time and cost to local governments of updating a general plan.

Public workshops will be open to stakeholders and the general public. To sign up for general plan guideline emails, or for more information about the update process, see: http://www.opr.ca.gov/s_generalplanguidelines.php  (By Holly Roberson)

Coalition for Clean Air v. City of Visalia (2012) ___ Cal.App.4th ___ (Case No. F062983, Sept. 14, 2012)

Defendant and real party in interest VWR International proposed building a 500,000-to-750,000-square-foot distribution and supply facility on 32 acres of land located in Visalia, California. The proposed site was undeveloped land that had been farmed and was in a planned heavy industrial zone.

 On November 3, 2010, the City filed a notice of exemption (NOE) and stated that the project was exempt from CEQA review as a ministerial action. Fifty-five days later, in December 2010, plaintiffs filed a petition and complaint alleging that the City violated CEQA by failing to conduct any environmental review of the project. Plaintiffs in the litigation alleged that the NOE was filed five days prior to the approval of the project, and therefore, the 35-day statute of limitations ordinarily triggered by the filing of a NOE did not apply.

Plaintiffs argued that a letter from the City’s community development director, dated November 8, 2010, constituted the first approval of the proposed project issued by the City. The letter stated: “The revised site plan was submitted for off-agenda review by the committee on October 14, 2010. The Site plan review number 10-113 is approved as a Revise and Proceed to building permits and off-site civil improvement design drawings.”

 VWR International filed a demurrer to the petition, contending the CEQA claims were barred by the statute of limitations. The trial court concluded that the CEQA cause of action was time-barred and dismissed the petition. Plaintiffs appealed.

The appellate court held that the demurrer should have been ovverruled. The court noted that, for a demurrer based on the statute of limitations to be sustained, the untimeliness of the lawsuit must clearly and affirmatively appear on the face of the complaint and matters judicially noticed. VWR International argued that flaws in the decisionmaking process underlying a facially valid and properly filed NOE do not prevent the NOE from triggering the 35-day limitations period. Plaintiffs argued that an NOE filed prior to project approval is noncompliant with CEQA Guidelines section 15062 and cannot trigger the limitation period. The appellate court agreed with the plaintiffs and found that section 15062 “unambiguously requires notices of exemption to be filed after the project has been approved.” Subdivision (a) of section 15062 states: “The notice shall be filed, if at all, after approval of the project,” and subdivision (b) states: “The notice shall not be filed with the county clerk…until the project has been approved.”

The appellate court applied the standard of review for demurrers, and assumed Plaintiffs’ allegations regarding the timing of the project approval were true. Based on the allegations in the petition, the appellate court found the NOE was not properly filed and therefore did not comply with Guidelines section 15062. The City’s noncompliant NOE did not trigger the 35-day limitations period, and the appellate court remanded the question regarding when the approval of the project occurred back to the trial court. The appellate court noted that the issue of project approval could involve factual disputes based on the definition of “approval” in Guidelines section 15352 and the Supreme Court’s discussion of that definition in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481.

 The court also determined that Plaintiff’s allegations that no building permits could be issued for the project without a planned development permit identified a ministerial duty that may be enforced pursuant to a writ of mandate and that Plaintiffs had standing to enforce that duty.

On August 27, 2012, the California Court of Appeal for the Fourth District revisited its earlier decision to partially publish its decision in Rialto Citizens for Responsible Growth v. City of Rialto  (2012) __Cal.App.4th__ (Case No E052253).  Whereas previously, the CEQA portions of the decision had not been certified for publication, as of August 27, 2012, the entire opinion has been certified for publication.  Our prior blog post on this case focused on the Planning and Zoning Law aspects of the opinion.  This post focuses on the newly published CEQA portions of the opinion.  Continue reading →