Archives: July 2018

Second District Upholds Award for Costs Incurred by Agency in Taking Over Preparation of Administrative Record from Petitioner

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In LandWatch San Luis Obispo County. v. Cambria Community Service District (2018)25 Cal.App.5th 638, the Second Appellate District ruled that the trial court acted within its discretion in awarding record-related costs to the respondent agency, even though the petitioner had elected to prepare the record, where the petitioner failed to prepare the record in a timely fashion.

In January 2014, the Cambria Community Services District approved an emergency water supply project. The district did not perform any environmental review under CEQA. LandWatch sued and elected to prepare the administrative record. LandWatch also sent the district a letter under the Public Records Act asking for the documents comprising the record. The district sent LandWatch the documents. A month later, the district informed LandWatch that additional documents had been identified, and that the district would provide them upon payment. Three months passed before LandWatch asked for the documents, at which point the district provided them, in April 2015. In August 2015, LandWatch produced a draft index to the record. The district responded by noting that the index was both over- and under-inclusive. That same date, the district produced its own index and certified the record it had prepared. LandWatch filed a motion to include additional documents post-dating the January 2014 approval date. The trial court ordered the district to certify an appendix consisting of the additional documents. Weeks passed and LandWatch did not prepare the appendix. The district wrote that it would prepare the appendix itself, after which LandWatch prepared its own competing appendix, which it lodged in February 2016, a month before the trial. The court accepted the district’s appendix, and rejected the one prepared by LandWatch. Following trial, the court denied the petition. The district filed a memorandum of costs seeking $39,000, including $4,000 for preparing the certified record, and $27,000 for preparing the appendix. LandWatch moved to tax costs. The trial court awarded the district $21,000 ($4,000 for preparing the certified record; $14,000 for preparing the appendix – half of the district’s requested amount; and $3,000 for other items). LandWatch appealed.

LandWatch argued that, because it had elected to prepare the record, the district ought not to recover any record-related costs. The court noted, however, that in electing to prepare the record, LandWatch was required to do so within 60 days. LandWatch missed this deadline. LandWatch argued the district was to blame for the delays. The court disagreed. The trial court, as trier of fact, had concluded otherwise—a determination to which the Court of Appeal must defer.

LandWatch argued the district ought not to recover costs associated with the appendix of post-approval documents because the district had resisted LandWatch’s efforts to augment the record with them. The court was unmoved. The trial court had ordered the preparation of the appendix at LandWatch’s insistence. “For LandWatch to now assert that the appendix is not part of the record to escape the costs it created is fanciful, if not perverse.” (Slip. Op. at pp. 7-8.)

The court also upheld the trial court’s awarding costs for the district’s court-call, copying and transcription costs. The court noted that the trial court had already reduced the costs as requested by LandWatch, or had ample basis for finding the costs to be reasonable.

Second District Holds that Well Construction Permit is a Ministerial Act, Exempt from CEQA

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In California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th 666, the Second Appellate District upheld the decision of the lower court, finding that issuing a permit to construct a well is a ministerial act under the county’s code and thus exempt from CEQA.

Real parties in interest are vineyards who received permits in 2016 to dig irrigation wells on their property, drawing from the underlying Arroyo Grande Basin. The county did not conduct environmental review prior to issuing the permits. Petitioner filed a writ of mandate, alleging that the decision was a discretionary action, and review under CEQA was required in order to analyze direct and cumulative impacts to groundwater supply. The county argued that the ordinance only regulates water quality issues as they relate to well construction, that depletion of groundwater supply is not covered by the code, and that the permit process is exempt as a ministerial act. The county prevailed on demurrer and this appeal followed.
The court reviewed the county’s actions de novo. Under general state water policy principles, water resources must be used reasonably and put to beneficial use, which includes domestic consumption and irrigation. Groundwater use is subject to local control, based on a permit system.

CEQA expressly applies only to projects subject to discretionary approval; it does not apply to ministerial acts. As the CEQA Guidelines state, discretionary actions are those that require the exercise of judgment or deliberation, and not situations where the agency merely determines whether there has been conformity with applicable statutes, ordinances, or regulations. A ministerial action is one involving little or no personal judgment by the public official as to the wisdom or manner of carrying out the project. The public official merely applies the law to the facts as presented, but uses no special discretion or judgment in reaching a decision. Even if an EIR would reveal environmental consequences, a ministerial approval is not subject to CEQA review because the agency lacks the legal authority to shape the project to respond to any environmental concerns raised in an EIR. The issuance of a building permit is presumed ministerial. A well-building permit is a type of building permit.

The local agency determines which acts are ministerial by analyzing its own laws. Its view of the scope and meaning of its own ordinances are entitled to great weight, unless that view is clearly erroneous or unauthorized. Here, under the county’s well construction ordinance, well permits “shall be issued” if they are consistent with the Department of Water Resource’s minimum, statewide well construction standards. The purpose of these standards is to protect groundwater quality when constructing, repairing, or closing wells. For example, wells must be dug by licensed engineers at specified distances from potential sources of contamination.

Petitioner cited no case law where a landowner who sought to construct a well was subject to any environmental review. Here, based on its review of the ordinance, the court found that as long as the technical standards and objective measurements are met, the county must issue a well permit to any applicant. This process leaves scant room for the public agency to impose its personal judgment and discretion.
Petitioner’s argument that DWR standards grant the county discretion were unavailing, as those standards relate to preserving groundwater quality, not depletion from overuse. By its very terms, DWR standards are not designed for conservation purposes. Petitioner did not contend that the applicants failed to satisfy the ordinance’s technical requirements, nor that the county enacted any standards in addition to those imposed by DWR.

The court also rejected petitioner’s contention that the county could impose additional conditions, such as pump limits and subsidence monitoring, because the ordinance does not authorize the county to do so. Additionally, the court determined that an instruction to applicants to include all necessary information to ensure that groundwater resources are protected did not transform the inquiry into a discretionary review. The subcontext of this provision is whether groundwater will be protected from contamination or pollution during well construction, not from depletion by overuse.

The court noted that the Sustainable Groundwater Management Act does regulate groundwater supply and seeks to prevent groundwater depletion. However, SGMA is not incorporated into the county’s well construction ordinance. The petitioner could address their environmental goals regarding groundwater depletion as the county implements SGMA.

Conclusion

In its succinct decision (not originally certified for publication) the court reiterated basic principles of CEQA jurisprudence concerning ministerial and discretionary projects. The court relied on CEQA’s express terms and key cases, including Friends of Westwood v. City of Los Angeles (1987) 191 Cal.App.3d 259. The opinion builds on this foundation, and is also consistent with the recent previous decision in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, where the First District found that issuing an erosion-control permit was a ministerial act under Sonoma County’s applicable ordinance. This line of cases certainly strengthens the presumption that building permits, if issued under carefully crafted ordinances that do not vest discretion with the agency, will be determined exempt from CEQA review.

(Sara Dudley)

Second District Court of Appeal Applies Broad Definition of “Project” and Upholds Determination that Settlement Agreement Exempt as Part of Beach Restoration Project

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The Second District Court of Appeal upheld the trial court’s determination that a beach restoration project, including incorporation of a settlement agreement entered into by the Broad Beach Geologic Hazard Abatement District (BBGHAD) and the City of Moorpark, constituted a single project that is statutorily exempt from CEQA review. The court also held that BBGHAD abdicated its police power in parts of the settlement agreement, rendering certain provisions void. (County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377)

BBGHAD was formed to restore a 46-acre stretch of beach in Malibu. The restoration project, which was determined to be statutorily exempt from CEQA, required deposits of large quantities of sand at five-year intervals. Each deposit would generate 44,000 one-way truck trips over the course of three to five months. Moorpark officials were concerned that the haul trucks would negatively impact the city’s residents. Moorpark and BBGHAD ultimately entered into a settlement agreement to resolve these concerns. The settlement agreement contained restrictions on the haul routes that BBGHAD could use for the project.

The County of Ventura challenged the project. The trial court denied Ventura’s petition for writ of mandate and request for injunctive relief, and denied in part and granted in part the request for declaratory relief. This appeal followed.

CEQA Exemption Claim

Ventura argued that the settlement agreement was distinct from the beach restoration project, and was therefore not exempt from CEQA. The court disagreed, finding that the settlement agreement was part of the whole of the action because it was one piece of a single, coordinated endeavor to address erosion. The court applied CEQA’s broad definition of “project” in the context of the statutory exemption. The court considered the test for “separate projects” from Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209: (i) both respondents were proponents of the settlement agreement; (ii) the agreement and beach restoration served a single purpose, to abate a geologic hazard; and (iii) even if the beach agreement could be completed without the agreement, the two became inextricably linked when the agreement was incorporated into the coastal development permit. Thus, the court found, the agreement was not a separate project under Banning Ranch.

The court also determined that the settlement agreement, as part of the restoration project, was exempt from CEQA as an “improvement” (Pub. Resources Code, § 26505) undertaken by a geologic hazard abatement district “necessary to prevent or mitigate an emergency” (Pub. Resources Code, § 26601). CEQA provides a statutory exemption for such actions. (Pub. Resources Code, § 21080, subd. (b)(4).) The court emphasized that statutory exemptions cannot necessarily be harmonized with CEQA’s general purpose of protecting the environment.

Preemption Claim

Ventura argued the settlement agreement was void because Vehicle Code section 21 preempts Moorpark’s ability to control project traffic. The court disagreed. The court explained that, under the state constitution, cities may only enact and enforce laws that do not conflict with state law. The court further explained that Vehicle Code section 21, subdivision (a), preempts local traffic control ordinances and resolutions. Applying the independent review standard, the court determined that the settlement agreement is an ordinance rather than a contract or resolution, and therefore Vehicle Code section 21 did not apply. Thus, the court found, there was no preemption problem with the settlement agreement.

Extraterritorial Regulation Claim

Ventura argued the settlement agreement was an unlawful attempt by Moorpark to exercise its regulatory powers outside of city limits. Again, the court disagreed. The court explained that the prohibition against extraterritorial regulation does not apply to a local authority’s contracting power. In addition, the court said, a city has authority to enter into contracts to enable it to carry out its necessary functions. Applying the independent review standard, the court explained that trucks’ use of roads can create a public nuisance, and Moorpark appropriately entered into the settlement agreement in an attempt to abate that nuisance.

Police Power Claim

Ventura argued BBGHAD abdicated its police power when it granted Moorpark the power to dictate sand hauling routes that BBGHAD’s contractors were required to use. Ventura also argued this rendered the settlement agreement void in its entirety. The court explained that BBGHAD is allowed under state law to exercise a portion of the state’s police power, but it may not contract away its right to exercise its police power in the future. The court explained that the determination of hauling routes is a police power, and therefore the portions of the settlement agreement that surrendered BBGHAD’s discretion to alter those routes in the future were void.

The court next considered whether the settlement agreement was invalid in its entirety. The court determined the settlement agreement had at least two purposes: (i) to determine permissible and prohibited sand hauling routes, and (ii) to describe the duration of and limited discretion to modify the route restrictions. Only the second purpose was unlawful, the court found, and because that could be extirpated from the agreement, the court determined the remainder of the agreement could remain in force. Thus, the court declined to find the agreement void in its entirety. (Elizabeth Pollock)

Court Upholds “Existing Facilities” Categorical Exemption for Diablo Canyon Nuclear Power Plant Lease Replacement

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World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476.

The Diablo Canyon nuclear power plant is partially situated on state-owned submerged tidal lands managed by the State Land Commission. The Nuclear Regulatory Commission issued two 49-year leases before the plant began operating in 1985. In 2015, PG&E submitted an application to the State Lands Commission to replace the leases before they expired. In approving the application, the Commission found that the lease replacement was categorically exempt from CEQA under the Class 1 “existing facilities” categorical exemption.

Two non-profit organizations filed a petition for writ of mandate challenging the Commission’s decision. They argued that the lease replacement did not qualify for the “existing facilities” exemption, and even if it did, the “unusual circumstances” exception applied. The trial court rejected these contentions and the petitioners appealed.

Upholding the trial court’s decision, the Court of Appeal first rejected the petitioners’ assertion that the nuclear power plant was not an “existing facility” within the meaning of CEQA Guidelines section 15301. The “existing facilities” exemption covers “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of use beyond that existing at the time of the lead agency’s determination.” (Guidelines, § 15301.) The court held that the lease replacement plainly fit within these terms because the nuclear power plant was an existing facility and the lease replacement would not expand its use. According to the court, the petitioner did not point to any evidence that suggested the lease replacement would expand the plant’s current operative condition.

The court also rejected the petitioners’ contention that the “unusual circumstances” exception precluded the Commission for relying on the exemption. That exception applies “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” (Guidelines, § 15300.2, subd. (c).) The court explained that the party seeking to invoke the unusual circumstances exception is typically required to make a two-part showing: (1) that the project has some feature that distinguishes it from others in the exempt class, such as its size or location, and (2) that there is a reasonable possibility of a significant effect on the environment due to that unusual circumstance. The court found it unnecessary to determine whether the lease replacement presented unusual circumstances (the first part of the test) because, even assuming their existence, the petitioners failed to establish that there was a fair argument that any environmental impacts may occur. In making this determination, the court emphasized that the project was simply a lease replacement, and the environmental impacts alleged by the petitioners were not a change from conditions as they had previously existed under the current leases.