Archives: 2018

Fourth District Upholds City’s Reliance on Class 3 Categorical Exemption for Wireless Telecommunications Project in Dedicated Park

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In Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, the Court of Appeal held that the approval of a wireless telecommunications facility (WCF) on the edge of a dedicated park did not violate the San Diego City Charter. The court also held that the city’s determination that the project qualified for the Class 3 categorical exemption was supported by substantial evidence, and the project challengers failed to meet their burden of showing that any of the potential exceptions to the use of categorical exemptions precluded the city’s reliance on the exemption here.

In 2014, Verizon Wireless filed an application with the city to build the WCF on the outskirts of Ridgewood Neighborhood Park in San Diego. The project consisted of a 35-foot-tall faux eucalyptus tree and a 220-square-foot equipment enclosure with a trellis roof and a chain link lid.

The city approved the project in 2015 after finding that it was consistent with the city’s charter and was exempt from CEQA under the Class 3 categorical exemption. A local group dubbed Don’t Cell Our Parks (DCOP) filed a lawsuit challenging the city’s decision. The trial court ruled in favor of the city and DCOP appealed.

The court first rejected DCOP’s argument that the project violated the city’s charter. Pursuant to section 55 of the charter, any changed use of a dedicated park must be approved or ratified by the voters. The court concluded this provision did not apply because there was ample evidence to support the conclusion that the project would not change the park’s use or purpose. Nor would the project would disrupt or interfere with park or recreation uses.

DCOP next argued that the project did not qualify for a Class 3 exemption because it was a new stand-alone utility that was not an intended type of urban infill development encompassed by the Class 3 exemption. The court disagreed.

Applying the plain language of CEQA Guidelines section 15303, the court held that the project consisted of the construction and location of a new small facility or structure, within the meaning of the Class 3 exemption. The project was a new small facility totaling 534 square feet, including the above-ground branch diameter of the faux tree. The court noted that while none of the project examples listed in the exemption were exactly like the proposed project, the facility was much smaller than the listed examples of a single-family residence, store, motel, office or restaurant.

DCOP argued that even if the project qualified for the Class 3 exemption, the “unusual circumstances” exception precluded the city’s reliance on the exemption. Under that exception, an agency cannot rely on a categorical exemption if there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. In order to prove the exception, project opponents generally must prove (1) that there are unusual circumstances that distinguish the project from other projects in the exempt class and (2) that there is a reasonable possibility of environmental impacts due to those unusual circumstances. DCOP could not satisfy either part of that test.

For the first part, DCOP argued that the project’s location within a dedicated park was an unusual circumstance in and of itself. The court disagreed, noting that there was substantial evidence in the record that at least at least 37 similar facilities already existed in dedicated parks elsewhere in the city. Therefore the city’s determination that the project did not present or arise under unusual circumstances was upheld by the court.

Even assuming, for argument’s sake, that the project was unusual, the court found that DCOP failed to show a reasonable possibility that the unusual circumstances (i.e., the project’s location in the park) would cause any significant environmental impacts. DCOP claimed that the project would have an adverse environmental impact on aesthetics and the park and recreational uses, but the court found that the evidence relied on by DCOP was insufficient even under the “fair argument” standard.

Finally, DCOP argued that the placement of the project in a sensitive and protected resource area— a dedicated park—precluded the use of a categorical exemption under subdivision (a) of Guidelines section 15300.2. The “location exception” is restricted to projects that “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” According to the court, DCOP presented no evidence that the park was a location “designated” as an “environmental resource of hazardous or critical concern” by any federal, state or local agency. The court explained that the lack of such a formal designation defeated the application of the exception.

City Must Place Certified Referendum on Ballot, First District Rules

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In Save Lafayette v. City of Lafayette (2018) 20 Cal.App.5th 657, the First Appellate District reversed the trial court’s ruling, finding that a certified voter referendum must be placed on the ballot, and rejecting the city’s argument that doing so would conflict with the Planning and Zoning Law.

In August 2015, the city adopted a resolution amending the general plan to re-designate the subject parcel from administrative professional office (APO) to low-density single-family residential (R-20). After the general plan amendment became effective, the city approved an ordinance codifying the zoning change. The updated zoning would allow for the development of 44 single-family homes proposed by a developer. Subsequently, appellants timely certified a referendum seeking to repeal the ordinance, or alternatively, to have the ordinance submitted to a public vote. The city refused to place it on the ballot. The city maintained that it had discretion to do so, because the referendum was de facto invalid. The city reasoned that if it passed, the referendum would result in an inconsistency between the general plan (R-20 zoning) and the municipal code (which would revert it to APO). Under the Government Code, a zoning ordinance that conflicts with the general plan is invalid. Appellants filed a petition for writ of mandate to compel the city to place the referendum on the ballot. After the trial court ruled for the city, this appeal followed.

In finding for the appellants, the court relied on the Sixth District’s recent decision under similar facts in City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34 (review granted Aug. 23, 2017). Key to the Bushey court’s decision was the difference between a referendum and an initiative. An initiative is the power of electorate to propose new laws. In contrast, a referendum grants the electorate the power to approve or reject existing laws. A referendum which vacates an ordinance, like the one at issue here, maintains the status quo. If the voters approved the referendum, then the city must adopt alternative zoning which is consistent with the general plan. If the voters reject the referendum, then no inconsistency is created.

Furthermore, the city does not have discretion to unilaterally keep a properly certified referendum off of the ballot. When presented with the certified referendum, the city’s options were to repeal the zoning ordinance, place the referendum on the ballot and suspend the ordinance, or after placing the referendum on the ballot, file a writ of mandate to have the referendum removed. When a local agency inappropriately refuses to place a referendum on the ballot, this refusal, although improper, may be retroactively validated by the court. Here, the city should have placed the referendum on the ballot, then filed a writ of mandate. Nevertheless, for reasons stated, the court did not validate the city’s decision. The remaining issue of the appellant’s attorneys’ fees was remanded to the trial court.

Eastern District of California Upholds Biological Opinion for Yuba River Dams Against Federal Endangered Species Act Challenge

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On February 22, 2018, the U.S. District Court, Eastern District of California, issued a detailed written decision in Friends of the River v. National Marine Fisheries Service (E.D.Cal. 2018) 293 F.Supp.3d 1151, upholding the 2014 Biological Opinion (BiOp) and Letter of Concurrence adopted by the National Marine Fisheries Service (NMFS) under the federal Endangered Species Act (ESA) for the U.S. Army Corps of Engineers’ (Corps’) activities at the Daguerre Point and Englebright Dams on the Yuba River. RMM attorneys Howard “Chip” Wilkins, Laura Harris, and Elizabeth Sarine represented the defendant-intervenor Yuba County Water Agency (YCWA) in the matter.

The case is part of a long-standing dispute over whether the Corps’ ongoing activities at Daguerre Point Dam and Englebright Dam jeopardize the survival and recovery of three ESA-listed species or adversely modify their critical habitat. The primary purpose of both Daguerre Point Dam and Englebright Dam is to retain hydraulic mining debris. Both dams were constructed prior to Congress’ enactment of ESA.

In 2012, the Corps prepared a biological assessment (BA) as part of its ESA consultation for the Corps activities on Daguerre Point and Englebright. The 2012 BA excluded the future effects of the dams’ presence as part of the “agency action,” and instead posited that such effects should be included in the environmental baseline. The Corps made this determination on the basis that it did not have the authority to change the existence of the dams (e.g., the Corps had not authority to remove the dams). The 2012 BiOp issued by NMFS, however, concluded that the Corps’ activities—including those over which the BA stated the Corps had no discretion, such as the existence of the dams—were likely to jeopardize the listed species.

The Corps and YCWA had “serious concerns” regarding the 2012 BiOp and the Corps sought to reinitiate consultation. In 2013, the Corps reasserted its position that the dams’ continued existence was not an agency action because it was non-discretionary. The Corps also broke up what it had previously considered one “agency action” along the Yuba River into several parts, separating actions connected with the dams, and licensing.

In 2014, NMFS issued a “Letter of Concurrence” for the Englebright Dam, in which NMFS concurred with the Corps’ 2013 BA for that dam. NMFS agreed with the Corps that the Corps’ proposed action at Englebright was not likely to jeopardize listed species. NMFS also issued a new BiOp for Daguerre Point (2014 BiOp), also agreeing with the Corps that the Corps’ activities at Daguerre Point were not likely to jeopardize listed species.

Friends of the River (FOR) filed a lawsuit in the U.S. District Court, Eastern District, against NMFS and the Corps alleging the 2014 Letter of Concurrence and the 2012 BiOp violated Section 7 of ESA’s consultation requirements. FOR also alleged the Corps had violated Section 9 of ESA, which prohibits “take” of a listed species. YCWA moved to intervene as a defendant in the case, and the motion was granted. The court decided the case via motion and cross-motions for summary judgment.

At the heart of the dispute between FOR and the defendants was the question of whether the Corps and NMFS had properly defined the scope of the Corps’ actions on the Daguerre Point and Englebright Dams. In particular, FOR argued that the agencies violated ESA in excluding impacts arising from the existence of the dams from the agency action under consultation. The court disagreed, holding that the federal agencies’ inclusion of the effects of the existence of the dams as part of the environmental baseline, as opposed to part of the agency action, was not arbitrary and capricious.

In particular, FOR argued to the District Court that the agencies violated the ESA in excluding impacts arising from the existence of the dams from the effects of the agency action. The court disagreed, holding that the federal agencies’ inclusion of the effects of the existence of the dams as part of the environmental baseline, as opposed to part of the agency actions, was not arbitrary and capricious. The court also held: (1) NMFS consideration of voluntary conservation measures as part of the agency actions was not arbitrary or capricious; (2) the federal agencies were not required to include additional activities on the Yuba River as interrelated and interdependent actions in their evaluation of the agency actions; (3) federal defendants’ assessment of the action area was not arbitrary and capricious; (4) NMFS was under no duty to re-identify the agency actions defined by the Corps; (5) the conclusions that the Corps’ activities at the dams would not likely adversely affect listed species was not arbitrary and capricious; (6) NMFS adequately explained its change in position from the 2012 BiOp that took a different approach in defining the agency actions; (7) reinitiation of consultation was not required; and (8) the Corps could not be held liable under Section 9 for take caused by the existence of the dams because the Corps has no discretion over the dams’ existence.

The decision represents an important victory for YCWA and the federal defendants in the long-standing dispute concerning the Corps’ activities at Englebright and Daguerre Point Dams and their effects on listed species.

Fifth District Finds Report Prepared by Real Estate Broker Was Not Substantial Evidence of Urban Decay

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In Visalia Retail, LP v. City of Visalia (2018) ­­20 Cal.App.5th­­ 1, the Fifth District upheld the City of Visalia’s certification of an Environmental Impact Report (EIR) for its general plan update. Though the EIR did not analyze the potential for urban decay, the court found that the record contained no substantial evidence that a land use policy restricting the size of commercial tenants in a neighborhood commercial area would result in urban decay. The court also found that the city’s general plan was not internally inconsistent and that the city had not violated relevant Planning and Zoning Law notice provisions.

The city prepared an EIR for an update to its general plan, which included updating the land use policy at issue. Under that policy, commercial tenants in neighborhood commercial areas may not be larger than 40,000 square feet. The petitioner argued that the size restriction would cause significant physical impacts in the form of urban decay, and therefore the EIR was inadequate for failing to address those impacts. In support of this argument, the petitioner submitted a report prepared by a real estate broker, who opined that the 40,000-square-foot cap would cause grocers to refuse to locate in the neighborhood commercial centers, which would cause vacancies and would then, in turn, result in urban decay.

The court rejected this argument finding that the report did not provide the requisite basis for the petitioner’s challenge because its analysis of causation was speculative and the potential economic consequences does not mean that urban decay would result. The court distinguished Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, where it had held that the EIR in that case was fatally defective for failing to analyze the individual and cumulative potential to indirectly cause urban decay resulting from the development of two shopping centers. But there, the court emphasized, the analysis of urban decay is required when there is evidence suggesting that the economic and social effects caused by development could result in urban decay. Here, the court found no such evidence in the record.

The court also found that the size restriction was not inconsistent with the general plan’s stated goal of encouraging infill development. Finally, the court held that the city did not violate the 10-day notice requirement set forth in the Planning and Zoning Law by failing to re-notice additional meetings on the general plan amendment.

OPR Initiates Rulemaking Process for First Comprehensive Update to the CEQA Guidelines in Twenty Years, Affecting Several Areas of Analysis

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On November 27, 2017, the Governor’s Office of Planning and Research (OPR) presented the California Natural Resources Agency with proposed amendments to the CEQA Guidelines. As Director Ken Alex noted in his transmittal letter, this is the most comprehensive update to the Guidelines since the late 1990s. Among other changes, OPR’s amendments affect the analysis of energy impacts, promote the use of vehicle miles traveled (VMT) as the primary metric for transportation impacts, and clarify Guidelines section 15126.2 to specify that an agency must analyze hazards that a project may risk exacerbating.

The amendments to the CEQA Guidelines have been shaped by several years of discussion and public comment. OPR began discussions with stakeholders in 2013 and released a preliminary discussion draft of the comprehensive changes to the Guidelines in August 2015. OPR received hundreds of comments on the proposed updates and has provided a document with Thematic Responses to Comments.

One of the most highly-anticipated and impactful changes is the switch from the level of service (LOS) to VMT as the primary metric in analysis of transportation impacts. These updates were required by Senate Bill 743, which directed OPR to develop alternative methods for measuring transportation impacts. Due to the complexity of these changes, OPR has provided a Technical Advisory on Evaluating Transportation Impacts in CEQA to assist public agencies.

Some highlights from the proposed updates include:

  1. Appendix G: adds new questions related to Energy, VMT, and Wildfire;
  2. Guidelines section 15064.3 (SB 743): establishes VMT as the primary metric for analyzing transportation impacts, with agencies having a two-year opt-in period to make the transition easier;
  3. Energy impacts: includes changes to Appendix G and makes clear that analysis must include energy use for all project phases and include transportation-related energy;
  4. Guidelines section 15126.2, subdivision (a): adds the phrase “or risks exacerbating” to implement the California Supreme Court’s holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, requiring an EIR to analyze existing hazards that a project may make worse; and
  5. Guidelines section 15064.4: includes clarifications related to the analysis of greenhouse gas (GHG) emissions to reflect the Supreme Court’s decisions in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497 and Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 (“Newhall Ranch”).

On January 25, 2018 the Natural Resources Agency initiated the formal rulemaking process. From the Agency: The Natural Resources Agency’s proposed updates to the Guidelines Implementing the California Environmental Quality Act are now available.  The proposed changes to the Guidelines and related rulemaking materials are available on the Agency’s website at http://resources.ca.gov/ceqa/.  Public hearings will be held in Los Angeles on March 14, 2018 and in Sacramento on March 15, 2018.  Written comments must be submitted by 5:00pm on March 15, 2018.  Hearing locations, instructions for submitting comments and related information regarding the rulemaking process is contained in the Notice of Proposed Rulemaking.

 

 

 

Cannabis Regulation

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Cannabis Regulation

In 2015-2017, the California Legislature and the state’s voters approved several bills and measures legalizing the cultivation, distribution, and sale of medicinal and adult-use (recreational) cannabis. The Bureau of Cannabis Control was established to be the lead agency regulating medical and adult-use cannabis in California. The Bureau is responsible for licensing retailers, distributors, testing labs and microbusinesses. Each local land use agency in the state may adopt its own regulations and policies to govern the establishment and operation of cannabis businesses in their jurisdiction, or they may prohibit them altogether. In 2017, Sabrina Teller advised the Bureau regarding compliance with CEQA for the adoption of statewide regulations governing the cultivation, manufacturing, retail sale, transportation, storage, delivery, and testing of cannabis in California, as required by statute and voter-approved ballot initiative. Ms. Teller also represented Humboldt County and several individual cannabis growers in defending against a challenge to the County’s cannabis land use regulations brought by residents of the City of Fortuna. The Humboldt matter was settled in late 2017. Tiffany Wright has advised Calaveras County regarding the County’s establishment of land use and permitting regulations governing the cultivation of cannabis.

Salmon Advocates Reel in Victory under CESA in Third District

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In Central Coast Forest Association v. Fish and Game Commission (2018) 2 Cal.5th 594 (Central Coast Association II), on remand from the Supreme Court, the Third District Court of Appeal ruled in favor of the Fish and Game Commission, upholding the Commission’s denial of a request to move the southern boundary of Central California Coast salmon habitat range, and so delist the population occurring in that range as an endangered species. The court found that the Commission acted within its discretion when it determined that the southern evolutionary significant unit (ESU) was not a separate species from the threatened northern coho salmon, that the southern coho salmon ESU was native to California, and that it should be protected wherever it is currently found. The California Endangered Species Act (CESA) promotes the protection of wildlife, and the Legislature affords the Commission substantial deference in how CESA is interpreted to achieve that goal.

Factual and Procedural Background

In 1995 the Commission listed the southern coho salmon ESU as endangered, due to habitat loss and degradation. In 2000, the Commission amended this ruling, and additional populations of coho salmon occurring north of San Francisco were listed as either endangered or threatened in different regions.

This case is the culmination of two prior appeals in the Third District, and a ruling by the California Supreme Court, in Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594 (Central Coast Association I). The petitioner is an association of timber companies that operate in areas where the southern coho migrates and spawns. Two months before the Commission’s 2004 amended listing decision, petitioner Big Creek Lumber requested that the Commission consider its petition to delist the southern ESU, alleging that new evidence had been made available since the Commission’s 1995 determination, and so the 1995 listing was improper.

Based on the Department of Fish and Wildlife’s (DFW) findings and the Commission’s independent analysis, the Commission denied the delisting request in 2005. The petitioners challenged that decision in superior court, which remanded the matter back to the Commission. The Third District again reversed the judgment on appeal. On remand, the trial court again found for the petitioners, and was once again reversed by the Third District on appeal. The Third District then held that the petitioners committed a procedural error, as a delisting petition must be directed at events that occur after the decision to list a species, and not on new evidence that the original listing decision was improper. This holding was reversed by the Supreme Court in Central Coast Forest Association I. The Supreme Court held that a delisting petition can be based on new evidence, showing that the original decision to list the species was improper. The Court then remanded the case back to the Third District, with instructions to address specific issues and resolve the case on the merits. This decision followed.

Evidentiary Standard and Standard of Review

Under CESA, the evidentiary burden is on the petitioner, and judicial review is deferential to the agency. Petitioners must present enough evidence to lead a reasonable person to conclude that there is a substantial possibility that delisting would be justified, should the agency accept the petition. The Commission evaluates a petitioner’s evidence for reliability and credibility, and weighs it against DFW’s written findings. Because these matters are technical and scientific in nature, the Commission’s findings are afforded deference, and the DFW’s findings, upon which the Commission relies, are given substantial deference. The court reviews the Commission’s determination under administrative mandamus and draws all inferences in favor of the Commission. The court can reverse the agency only if the evidence clearly weighs against the agency’s findings.

Third District’s Decision

The petitioner argued that the southern coho is not native to California under CESA based on studies of archeological sites in the area and historical records and samples. They also argued that natural conditions in the region are too harsh to support a southern coho population, and that the record of hatchery plantings in the area’s streams include hatchery fish from out-of-state stocks.

After reviewing both the petitioner’s evidence and the Commission’s findings, the court upheld the Commission’s determination that the petitioner’s evidence was speculative, incorrect, irrelevant, or at best supported a contradictory inference, from which more than one conclusion could be drawn. The court stated that it was within the Commission’s discretion to draw different conclusions.

For example, reliable museum samples demonstrated that coho salmon existed south of the San Francisco, before hatcheries. The court stated that the low number of specimens was not dispositive, and the lack of conclusive evidence of the historic presence of the southern coho in the record could not be used to prove a negative—that the salmon did not exist. Finally, the petitioner’s contention that the existing samples are “strays” from other areas was unsupported by the evidence.

Notably, the court agreed with the Commission’s contention that “hatchery-influenced” fish are still considered native. While there is some evidence that out-state-stock was used in California hatcheries, there is no evidence to support a conclusion that current population consists entirely of non-native fish. Further, the inability to survive without hatchery support is not evidence for delisting a species.

In making these determinations, the Court agreed with the Commission that “native” means that the species as a whole is native to California and rejected the petitioner’s argument, as a matter of law, that once the focus of the term “species” is narrowed to a particular geographic area, “nativeness” is only viewed relative to that region. CESA emphasizes that the protection of species is of statewide concern.  Similarly, the “range” of a species is not determined by its historic range, which may be influenced by human activity, but it is protected wherever found.

Additionally, the court disagreed with the petitioner’s interpretation of the federal Endangered Species Act, and found that an endangerment listing does not require that an individual population must be an important component in the evolutionary legacy of the species.

Federal policy provides that a population of pacific salmonids can only be considered an ESU if it is substantially reproductively isolated from other nonspecific populations and represents an important component in the evolutionary legacy of the species. Based on a brief reference in a 2002 report stating that the southern ESU may be evolutionarily distinct, the petitioner argued that the Commission must find that the southern coho is evolutionarily distinct and important to the species in order to qualify as an ESU. The court held that the Commission correctly interpreted the federal guidance as protecting the southern coho, as a population of the California Central Coast ESU. The federal policy definition of ESU applies to the entire ESU, not just each individual population.

The court also addressed specific issues raised by the Supreme Court to be resolved on remand, reiterating that range means “current range” and not the historic area once occupied by a population. Additionally, a portion of an endangered species may be delisted only if it can be defined as a separate species, subspecies, or ESU that is not endangered. Because the southern coho is at risk for extinction, it is not eligible to be “carved out” from the California Central Coast ESU and delisted.

Sara Dudley

Fourth District Court of Appeal Upholds Reliance on Mitigated Negative Declaration and Approval of Construction of School

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The Fourth District Court of Appeal upheld the trial court’s decision denying a challenge to the City of San Diego’s approval of construction of a secondary school and associated adoption of a mitigated negative declaration. (Clews Land and Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161.)

The City of San Diego adopted an MND and approved a project to build the 5,340-square-foot Cal Coast Academy, a for-profit secondary school, on property adjacent to the plaintiffs’ (Clews Land and Livestock, LLC, et al. [“CLL”]) commercial horse ranch and equestrian facility. CLL filed a petition for writ of mandate and complaint alleging the project would cause significant environmental impacts relating to fire hazards, traffic and transportation, noise, recreation, and historical resources. CLL also argued that CEQA required recirculation of the MND, that the project was inconsistent with the applicable community land use plan, and that the City did not follow historical resource provisions of the San Diego Municipal Code. The trial court determined that CLL had failed to exhaust its administrative remedies, and ruled in favor of the City on the merits. CLL appealed and the Court of Appeal upheld the trial court’s determinations.

Exhaustion of Administrative Remedies

The court first held that CLL failed to exhaust its administrative remedies. The San Diego Municipal Code appeal process provides for two separate procedures—one for appeal of a hearing officer’s decision to the Planning Commission, and one for appeal of an environmental determination to the City Council. Because CLL filed only an appeal of the hearing officer’s decision, the court determined that CLL failed to exhaust its administrative remedies with respect to adoption of the MND. CLL argued that the City’s bifurcated appeal process violated CEQA, but the court found the process was valid. CLL also argued that the City had not provided proper notice of the appeal procedures under Public Resources Code section 21177, subdivision (a), thereby excusing CLL’s failure to appeal the environmental determination. The court explained, however, that section 21177 did not apply because CLL’s failure to appeal was not a failure to raise a noncompliance issue under that section. Where, like here, a public agency has accurately provided notice of a public hearing, but it misstates the applicable procedures to appeal the decision made at that hearing, the only available remedy is to prevent the public agency from invoking an administrative exhaustion defense through equitable estoppel. CLL had pursued a claim for equitable estoppel in the trial court and was unsuccessful, and CLL did not challenge that determination with the Court of Appeal. Therefore, the court found, CLL’s failure to exhaust could not be excused on an equitable estoppel basis.

Adoption of the MND

Notwithstanding its determination that CLL failed to exhaust its administrative remedies, the court also considered the merits of CLL’s claims. The court determined that CLL did not make a showing that substantial evidence supported a fair argument that the project may have a significant effect on the environment. In making its determination, the court emphasized that the project is “relatively modest” and located on already-developed land.

CLL argued that the City was required to prepare an EIR due to potentially significant impacts on fire hazards, traffic and transportation, noise, recreation, and historical resources. The court rejected each of CLL’s arguments. In part, the court was unpersuaded by CLL’s expert’s comments because they were “general” and did not have a specific nexus with the project, they focused on the effects of the environment on the students and faculty at the school rather than on the effects of the school on the environment, and they were conclusory and speculative. In addition, quoting Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 684, the court noted that “dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence.” The court also found that a possibility that noise from the project would impact the adjacent business’s operations was insufficient to require an EIR under CEQA. The court explained that the question is not whether the project would affect particular persons, but whether the project would affect the environment in general. In addition, the court explained that the fact that a project may affect another business’s economic viability is not an effect that must be analyzed under CEQA unless the project may result in a change in the physical environment, such as by causing urban decay.

Recirculation of MND

CLL argued that by adding a shuttle bus plan and describing the school’s intent to close on red flag fire warning days after circulation of the MND, the City substantially revised the MND and was required to recirculate the draft prior to certification. The court rejected these contentions, explaining that the added plans were purely voluntary, and thus could not constitute mitigation measures. In addition, the court explained, CLL did not show that the plans were added to the project to reduce significant effects on the environment. According to the court, all revisions to the MND were clarifying and amplifying in nature and did not make substantial revisions to the project, and therefore, did not warrant recirculation.

Historical Resource Regulations

CLL argued that City did not follow its historical resource regulations and guidelines. The court explained that the City relied on an exemption contained within the regulations, but CLL did not address the substance of that exemption, nor did CLL show that the City was actually required to apply the specific procedures contained in the regulations. Instead, CLL simply critiqued the City’s reliance on the exemption as a post hoc rationalization; the court found this was not enough to meet CLL’s burden to show failure on the part of the City.

Consistency with Neighborhood Plan

CLL argued that the project conflicted with the Carmel Valley Neighborhood 8 Precise Plan because the plan designates the site as open space. CLL’s argument was two-fold. First, CLL argued the site could not be developed because of the plan’s open space designation. Second, CLL argued the plan’s designation was in conflict with the multifamily residential zoning at the project site.

With respect to the plan’s open space designation, the court held that CLL failed to meet its burden to show that the City’s consistency finding was an abuse of discretion. The court explained that the standard is whether no reasonable person could have reached the conclusion made by the City. In making its determination, the City relied on the fact that the property was already developed—the school would be sited at the location of a previously-capped swimming pool, and the project would not impact or be developed on undisturbed open space. The court found that the City’s determination was reasonable, and that CLL did not address the City’s reasoning or explain how the City abused its discretion. With respect to the site’s zoning, the court explained that consistency of the zoning ordinance with the plan was not at issue—instead, the issue was whether the project is consistent with the Precise Plan’s open space designation.

The court affirmed the judgment of the lower court and upheld the City’s determinations regarding the project and the associated MND.

Elizabeth Pollock

RMM welcomes furry intern

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Very Good Girl Sibella joined the firm in January 2018 as an eight-week old labrador/golden retriever puppy. Sibella comes to  us from Canine Companions for Independence (CCI). She is completing a one-year internship in our land use and environmental practice, working with RMM Senior Associate Elizabeth Pollock. During the day, she practices chewing toys, licking faces, taking long naps, and giving lots of love. During her tenure at RMM, she will be developing her skills sitting, staying, and “doing her business” outside. After leaving RMM, Sibella will continue her work with CCI. CCI “is a non-profit organization that enhances the lives of people with disabilities by providing highly trained assistance dogs and ongoing support to ensure quality partnerships.” You may learn more about the program at http://www.cci.org.

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