Archives: June 2015

Keep Our Mountains Quiet v. County of Santa Clara

Keep Our Mountains Quiet v. County of Santa Clara

(2015) 236 Cal.App.4th 714

The County of Santa Clara adopted a mitigated negative declaration (MND) and granted a use permit allowing Real Party in Interest, the Wozniak Trust, to host a limited number of weddings and other events on property located in the Santa Cruz Mountains. Petitioner Keep Our Mountains Quiet, an unincorporated association of individuals who reside in the vicinity of the property, challenged the MND, asserting that the County should have prepared an EIR for the project. The lower court agreed and the Sixth District Court of Appeal affirmed the trial court decision requiring an EIR.

The appellate court held that the administrative record contained substantial evidence of a fair argument that the project may have significant noise impacts. Although real party’s and the county’s noise experts concluded that the project would not exceed the noise standards adopted by the county in its general plan, the court agreed with petitioner that compliance with the county’s noise standards did not necessarily mean the project would not have a significant noise impact.  The court found the neighbors’ comments about the discrepancy in noise levels between the mock event used by the noise consultants to test and assess the project’s noise impact and actual events from past unpermitted weddings held at the property prior to any CEQA review constituted substantial evidence supporting a fair argument that the project may have significant noise impacts. Relatedly, the court found that substantial evidence supported a fair argument that project-related crowd noise may have significant noise impacts on the surrounding residents.

The court also found evidence supported a reasonable inference that noise from the project may have significant impacts on wildlife at a nearby open space preserve, but no substantial evidence supported the argument that the project might have significant noise impacts on visitors to the open space preserve, which was open to the public by permit only. The court stated it “need not consider the impacts on hypothetical users of nonexistent trails.”

The court also found substantial evidence that the project may have significant traffic impacts. The testimony the court cited related facts about road conditions based upon local residents’ personal knowledge. The court found a fair argument had been made concerning increased traffic from the project and its effect on existing traffic safety conditions.

Lastly, the court upheld the trial court’s award of attorneys’ fees to the petitioner, but rejected the petitioner’s argument that the trial court improperly denied a multiplier in determining the amount of fees properly awarded to petitioner.

RMM partners James Moose and Sabrina Teller, along with senior counsel Jennifer Homan, represented Real Party in Interest, the Wozniak Trust, on appeal.

Fourth District Court of Appeal Holds Removal of Conservation Overlay on Land Is a Project and Is Not Exempt from CEQA

Paulek v. Western Riverside County (June 17, 2015) __ Cal.App.4th __, Case No. E059133

In a decision reversing the trial court, Division Two of the Fourth District held that the removal of a conservation overlay constituted a project under CEQA and that the project did not fall within the identified exemptions. The decision involves a Multiple Species Habitat Conservation Plan (HCP) to maintain open spaces in western Riverside County. The HCP identified a “criteria area” broken down into cells, each about 160 acres in size, that were to be evaluated to determine what portions of the criteria area should be included in the conservation area. Part of the criteria area included the Warm Springs Ranch owned by Anheuser-Bush; a conservation overlay had been placed upon the ranch.

In 2005, Anheuser submitted applications to develop the Ranch. The County informed Anheuser that all but 71 acres of the Ranch would be acquired for conservation under the HCP, and in 2011 the parties reached a settlement agreement whereby the Western Riverside County Regional Conservation Authority (the Agency) would purchase the Ranch from Anheuser. The property was to be purchased in 9 phases, and phase 9, which consisted of a 200-acre area, would cost $11 million. One of the purchasing conditions for the phase-9 property was that the conservation overlay would be removed.

Paulek asserted that the Agency should have considered whether removing the conservation overlay would have a significant environmental impact, and contended possible development on that area had the potential to affect wildlife by reducing habitat. The Agency contended that because, as part of the agreement with Anheuser, 1,064 acres would be acquired by the Agency and protected as open space, and because the phase-9 property was highly degraded habitat, the conservation transfer would result in more and better land being protected. Therefore, the Agency reasoned, the action was not a project under CEQA, and if even it was, it was exempt from CEQA.

The court rejected the Agency’s arguments, holding that the removal of the conservation overlay from the phase-9 property constituted a project under CEQA. Among other things, the court reasoned that removing the overlay was analogous to amending a general plan or changing a zoning ordinance, which are projects under CEQA. Removing the conservation overlay embodied a fundamental land use decision that had the potential to cause physical changes in the environment in that the land protected for conservation purposes would no longer be subject to such protections. Therefore, the Agency’s decision to remove the overlay was a project under CEQA.

The court was unpersuaded by the Agency’s arguments concerning the protection of 1,064 acres of more environmentally pristine land in exchange for the 200-acre phase-9 property. The court explained that the decision to remove the overlay was a separate decision from the decision to put 1,064 acres of other land in conservation. But even if the removal of the overlay and addition of overlay elsewhere was considered part of the same project, the fact remained that the 200 acres of the phase-9 property would no longer be protected by the conservation overlay. The court characterized the Agency’s argument as “essentially washing over any negative changes to the phase 9-property by highlighting the positive changes to the [other] properties.” For instance, noted the court, there are two species present on the phase-9 property that are not present on the 1,064 acres, so the land swap would not protect these two species.

The court also rejected the Agency’s argument that the project fell within certain exemptions from CEQA. The court held that a Class 7 exemption, which exempts projects that consist of actions taken by regulatory agencies to assure the maintenance, restoration, or enhancement of a natural resource, did not apply because a fair argument existed that removing the overlay could adversely affect certain species. Although the phase-9 property was not “prime” habitat for those species, there was no indication that it was so superfluous to those species that removing it from conservation would not adversely affect the species.

With respect to the Class 8 exemption, which is nearly identical to a Class 7 exemption except that it applies to the “environment” rather than natural resources, the court held that because there was uncertainty as to whether there would be a significant impact on the environment, the Class 8 exemption did not apply. Evidence in the administrative record demonstrated that the loss of the conservation overlay could affect the neighboring conservation area, and the effects could be significant such that there would need to be an attempt to lessen the effects.

The court also rejected the Agency’s claim that the project fell within the common sense exemption, which applies where it is certain that there is no possibility that an activity will have a significant effect on the environment. The change in designation of the phase-9 property from protected to unprotected had the potential for causing ultimate physical environmental changes, which was sufficient to take the project outside the purview of the exemption.

In addition to rejecting the Agency’s arguments on the merits, the court rejected various procedural arguments made by the Agency, holding that Paulek had standing, that Paulek’s action was timely, and that Paulek did not fail to join an indispensable party.



Supreme Court Rules in Favor of Inclusionary Housing Zoning

In a loss for the building industry, the California Supreme Court upheld local jurisdictions’ police power to adopt inclusionary housing ordinances, which are laws that encourage or require developers to set aside a certain percentage of housing units in new projects for low- or moderate-income housing.  The court, in a unanimous decision (with concurring opinions by Justice Werdegar and Justice Chin) rejected the California Building Industry Association’s (CBIA’s) challenge to San Jose’s affordable housing law.

The City of San Jose’s ordinance requires developers creating at least 20 new homes to make 15% of those residences available for purchase by lower-income households, or else pay an in-lieu fee or dedicate land. As an apparent incentive to encourage developers to choose on-site inclusionary units, where the developer chooses one of the off-site options, the required low-income housing percentage rises to 20%. As an additional incentive to encourage developers to comply with the ordinance by providing affordable units on site, the ordinance permits a developer who provides all of the required affordable units on the same site as the market rate units to apply for and obtain a variety of economic benefits, including a density bonus, a reduction in the required-number of parking spaces, a reduction in minimum set-back requirements, and financial subsidies and assistance from the city in the sale of the affordable units.

CBIA filed a lawsuit seeking invalidation of the ordinance. The complaint alleged that the ordinance constituted a facially invalid exaction, in violation of the state or federal constitutions. The trial court agreed with CBIA’s legal position, concluding that the city had failed to show that there was evidence in the record demonstrating the constitutionally required reasonable relationships between the deleterious impacts of new residential development and the new requirements to build and dedicate the affordable housing or pay in-lieu fees.

The Court of Appeal reversed. The appellate court agreed with the City of San Jose that the ordinance’s inclusionary housing requirements must properly be evaluated under the deferential standard ordinarily applicable to general, legislatively imposed land use regulations—i.e., whether the ordinance’s requirements bear a real and substantial relation to the public welfare. CBIA petitioned for review before the California Supreme Court and the court granted the petition.

The Supreme Court affirmed the Court of Appeal’s judgment. The court held that San Jose’s ordinance does not constitute an exaction. Instead, the ordinance only regulates the uses to which property owners may put their lands. Cities and counties have broad authority, under their police powers, to regulate the development and use of real property within their jurisdictions to promote the public welfare and the courts must uphold such regulations provided the bear a reasonable relationship to the public welfare. With regard to the in-lieu fee payment component of the ordinance, the court held that as long as the ordinance provides property owners with at least one alternative means of satisfying the condition, the fee does not constitute an unconstitutional taking.

As noted by the Supreme Court, more than 170 localities in California already have some version of an inclusionary housing ordinance. The decision will make it much more difficult for developers to succeed in challenges to affordable housing requirements in that the decision makes clear that a local agency’s adoption of an inclusionary housing ordinance represents an appropriate exercise of the agency’s police powers, provided that the ordinance bears a reasonable relationship to the public welfare.

In an Unpublished Opinion, Second District Denies Challenges to Temporary Increase in NFL Games at Rose Bowl Stadium

The court held the City of Pasadena properly evaluated the environmental impacts of hosting an NFL team at the Rose Bowl Stadium, resulting in an additional 13 large-scale events (NFL games) per year, for up to five years. The court affirmed the trial court’s denial of the coalition’s petition. Coalition for Preservation of the Arroyo v. City of Pasadena (May 28, 2015) Case No. B255824.

A funding gap in the Rose Bowl Stadium’s renovation precipitated the city’s efforts to obtain funding by temporarily hosting an NFL team at the stadium, which would add 13 “displacement events” per year. An express purpose of the project was to generate revenue to fund city services and offset the costs of Bowl renovation. Pasadena adopted a statement of overriding considerations finding that the economic benefits of the project outweighed its significant and unavoidable impacts.

The coalition argued the EIR was premature and segmented because the city had not yet negotiated a lease with an NFL team. Given CEQA’s basic tenant that environmental analysis should occur as early as feasible in the planning process, however, the court found the city had performed such review at the most practical and meaningful opportunity. Had the city waited until it negotiated specific contractual terms with a team, those negotiations could have been perceived as a commitment to the project prior to environmental review, in violation of CEQA. The court also concluded the data relied on by the city within the EIR addressed the likely scope of the NFL lease, and thus the review was not segmented. The city had relied on a report for an estimate of the potential revenue that could be generated by an NFL team’s temporary use of the stadium ($5-10 million per year), which was a reasonable method given the city’s lack of any lease agreement with the NFL. The report also constituted substantial evidence supporting the city’s decision that the economic benefits of the project outweighed any environmental impacts it caused.

The court found no basis to the coalition’s argument that the city’s analysis of historical resources did not survey or fully describe the historical environmental setting and failed to address any NFL-related impacts to the immediate surroundings, stating there was no evidence that the project contemplated any physical, material change to an historic resource. The Rose Bowl was constructed specifically to accommodate football games, and an increase in the number of games each year for a temporary period would not materially impact any of the significant character-defining features of the stadium. Additionally, the city had properly and fully identified and described the historical setting of the stadium and surrounding areas; the coalition failed to identify with specificity any deficiencies in this description.

The court also found that studies relied on by the city provided substantial evidence regarding the frequency of recreational use and the number of users that would be impacted by the project. Further study was not necessary to engage in informed decisionmaking—greater exactitude regarding the number of users was not necessary to evaluate the environmental impact and identify mitigation.

The court held the feasibility of the aesthetics mitigation, related to trash cleanup, was supported by substantial evidence in the record. The EIR had determined that aesthetics would not be significantly impacted by the project, and thus mitigation measures were not required.

The coalition argued that the city failed to provide an adequate analysis of air pollution because it lacked an adequate baseline measure of pollutants. It argued the EIR did not utilize the appropriate methodology to determine baseline pollutants in the stadium area and surrounding neighborhoods, indicating the baseline measurement was not taken close enough to the stadium. The court disagreed, finding the city’s decision to use that the nearest air quality monitoring station data as the baseline was supported by the standard, accepted practices of the agencies that engage in air quality monitoring. The choice of methodology was bolstered by the reliability and breadth of data available from that station. The coalition failed to identify evidence in the record showing how the methodology was inaccurate, or explain how the baseline precluded the city from making an informed decision regarding the project.

The court similarly rejected the coalition’s argument that the city failed to accurately estimate travel distances of event visitors in evaluating air quality impacts, as the group provided no evidence that the city had erred in calculating the average trip length. No local trip length data existed for NFL games, so the city had used the pertinent air pollution control agency’s recommended model. The court found this choice of methodology reasonable and supported by substantial evidence.

In response to the coalition’s argument that the city did not present sufficient evidence to support its conclusion that it had adequate police and fire services to serve the proposed project, the court pointed to the EIR’s explanation that the Pasadena Police Department already provides police protection and traffic enforcement service on a regular basis to the stadium, along with a private security company. The EIR found that there was no need to expand police services, and impacts to those services would be less than significant. The assertions regarding fire services were similarly baseless.

Fourth District Upholds Balboa Park Project Approval, Finds Substantial Evidence Supports Determinations

The court reversed the trial court’s decision in part, agreeing with the City of San Diego that substantial evidence supported the finding that denial of the project would preclude “reasonable beneficial use” of the property. The trial court, finding no such evidence, had not reached the question of whether evidence supported the finding that the project would not adversely affect the applicable land use plan. The Court of Appeal agreed with the City’s position and answered that question in the affirmative. Save Our Heritage Organisation v. City of San Diego (May 28, 2015), Case No. D063992.

The project concerned Balboa Park in San Diego, which in the past had hosted various expositions. During those events, a bridge and complex had been constructed that were later declared a national historic landmark and a national historic landmark district, respectively. The project consisted of closing certain parts of the area to vehicular traffic and restricting those spaces to pedestrian uses, and resurfacing and landscaping those areas in a style evocative of the original design. An increase in parking supply was also proposed. The EIR concluded that, though there would be some significant impacts on historical resources, the project as a whole would primarily benefit those resources, outweighing any negative impacts. Save Our Heritage Organisation (SOHO) filed suit, asserting violations of CEQA and the city’s Municipal Code, and contesting the paid parking. The court below rejected the CEQA and parking challenges, but agreed with the Municipal Code challenge.

The case presented a question of first impression: the proper interpretation of San Diego Municipal Code section 126.0504, subdivision (i)(3)’s requirement that the City only approve projects where it finds, for those projects with impacts on historical resources, that there would be no reasonable beneficial use of the property without the project. Pursuant to this ordinance, the city made several findings to satisfy the “no reasonable beneficial use” requirement, namely, that denial of the project would result in traffic congestion and conflicts between pedestrians and vehicles, and would continue to burden the users of the complex. Furthermore, project denial would prevent the city from recapturing those areas currently being claimed and used by vehicles as thoroughfares and parking lots and reclaiming those lands for parklands and pedestrian spaces.

SOHO contended that so long as it introduced evidence the property would be put to some beneficial use by the owner without the proposed project, it would succeed on the Municipal Code claim. The court disagreed. It found the word “reasonable” preceding “beneficial use” vests discretion in the decisionmaker; even if use of the property absent the project were deemed beneficial, the decisionmaker could find that it was not a reasonable use, and thus, still validly approve the project. The issue, in other words, was not whether there was evidence from which a reasonable person could have concluded that the property had some beneficial use in its unmodified condition, but rather whether substantial evidence supported the decisionmaker’s determination that the property’s use in its unmodified condition was not reasonable under all circumstances.

The court held there was substantial evidence supporting the city’s finding that, without the project, current pedestrian and vehicle conflicts, and resultant safety hazards, would continue. The fact that millions of visitors to the complex chose to visit, notwithstanding the hardships to them posed by the continued vehicular use, did not preclude the city from finding the project was appropriate, and that continued automobile use of the complex was not a reasonably beneficial use of the complex.

The court rejected SOHO’s alternative argument that there was no substantial evidence to support the additional finding ordinarily required under the municipal code when a project would make a substantial alteration of a designated historical resource: that denial of the project would make it infeasible to derive a reasonable economic return from the property. That argument was not preserved below.

SOHO also alleged there was no substantial evidence to support the city’s required findings that approval of the project would not adversely affect the city’s applicable land use plans. Essentially, SOHO asserted that, as long as a project opponent can identify a stated goal or policy within an applicable land use plan that would be adversely affected by a project, the decisionmaker is precluded from finding approval of a project would not adversely affect the applicable land use plans even if the decisionmaker found, based on substantial evidence, the proposed project would be consistent with the vast majority of the goals and policies of the applicable land use plans, as was the case here. SOHO cited no authority for that argument, and the court found none. The court noted that a project need not be in “perfect conformity” with every plan policy, but must instead harmonize with those policies on the whole. Inconsistencies will not nullify project approval so long as the project as a whole will not adversely affect the applicable land use plans.

Finally, regarding the paid parking issue, the court held that any purported limitations placed by an 1870 statute on the city’s power to manage its parklands was annulled by later legislative enactments.