Archives: May 2022

Third District Holds EIR’s Project Objectives Were Too Narrow and Recirculation Was Required Due to Increase in Significant and Unavoidable GHG Emissions

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In We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal. App.5th 683, the Third District Court of Appeal held that Siskiyou County’s environmental analysis of a bottling plant was deficient because the project objectives were too narrow, and because the County failed to recirculate the EIR despite a discrepancy in the estimated carbon dioxide emissions from the draft EIR to the final EIR (FEIR). Though the discrepancy did not change the EIR’s ultimate conclusions, recirculation was necessary to provide the public with meaningful opportunity to review and comment on the project’s environmental impacts. In We Advocate Through Environmental Review v. City of Mount Shasta (April 12, 2022, No. C091012) ___ Cal.App.5th___ [2022 WL 1487832], petitioners challenged city’s approval of wastewater permit for the same project.

Background

Real Party in Interest, Crystal Geyser, purchased a non-operational bottling facility in Siskiyou County in 2013, seeking to revive the plant for beverage production. To initiate the project, Crystal Geyser requested permits from the County to build a caretaker’s residence, and the City of Mount Shasta for discharging wastewater into the City’s sewer system. Both permits were approved.

We Advocate Through Environmental Review and the Winnehem Wintu Tribe sued the County alleging the EIR violated CEQA because it (1) provided an inaccurate description of the project, (2) defined the project’s objectives in an impermissibly narrow manner, (3) improperly evaluated several of the project’s impacts, and (4) approved the project though it would be inconsistent with the County’s and City’s general plans.

The trial court rejected all of petitioners’ claims. This appeal followed.

The Court of Appeal’s Decision

The Court of Appeal reversed the trial court in part, holding in the published portions of the decision that the project objectives were too narrow and that recirculation was required because the FEIR estimated that the project would generate significantly more carbon dioxide emissions than disclosed in the DEIR. The fact that the DEIR concluded that this impact was significant and unavoidable did not mean the increase in greenhouse gas emissions was “insignificant” under CEQA.

Project Objectives

The Court agreed with Appellant’s contention that the EIR defined the project objectives too narrowly, because the County defined the project objectives in a manner that precluded all alternatives other than the proposed project. For example, one objective was to “site the proposed facility at the Plant . . . to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property.” Another objective aimed to “utilize the full production capacity of the existing plant based on its current size.” According to the Court, this narrow approach was unacceptable because it transformed the alternatives section of the EIR into an “empty formality,” rather than served the purpose of enabling meaningful environmental review of a project. The Court concluded the County’s error was prejudicial because it foreclosed viable alternatives.

Climate Change Impacts Analysis

Appellants challenged the EIR’s discussion and mitigation of climate change impacts, arguing (1) the County failed to recirculate the EIR to address the discrepancy in carbon dioxide emissions estimations between the DEIR and the FEIR, (2) the County failed to analyze foreseeable emissions from “preform” bottles, and (3) the EIR’s mitigation measures were not properly amended to reflect the emissions change from the DEIR to the FEIR.

The Court agreed that the County violated CEQA by failing to recirculate the EIR after changing the greenhouse gas emissions estimate from 35,486 metric tons of carbon dioxide per year in the DEIR, to 61,281 metric tons in the FEIR. The County argued recirculation was unnecessary because the impact remained above the “significant and unavoidable” threshold in both versions of the EIR. The Court held that the estimated increase of over 25,000 metric tons of carbon dioxide per year between the versions was significant enough to require recirculation, though it did not change the EIR’s ultimate conclusions. Failing to recirculate “wrongly deprived the public of a meaningful opportunity to comment on a project’s substantial environmental impacts.”

The Court rejected Appellants’ other arguments regarding climate change impacts. On the subject of “preforms,” the Court rejected Appellants’ argument because they failed to concretely show that “each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced.” Additionally, the Court held that the mitigation measures were valid and enforceable because the County revised and reevaluated mitigation measures to reflect increased emissions in the FEIR.

— Jordan Wright

First District Holds Stipulated Federal Court Judgments Do Not Preclude Independent Review Under CEQA

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In Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, the First District Court of Appeal held that Marin County properly limited the scope of its environmental review to comport with its legal obligations pursuant to two stipulated federal judgments. In the same vein, the Court rejected appellants’ claim challenging the scope of the EIR’s project description, which incorporated the constraints imposed by the judgments. The Court also rejected appellants’ claims that the County abused its discretion by rejecting a scaled down project alternative, and making several mitigation findings for impacts to traffic safety and density, a threatened species, and water supply and fire flow.

Background

Real Party in Interest, the Martha Company (Martha), owns a 110-acre property on a mountaintop in Marin County that overlooks the Town of Tiburon. For several decades, Martha attempted to develop single family homes on the property, yet all proposed projects befell to forceful opposition from residents of the Town of Tiburon and the County.

The current dispute is predated by two stints in federal court that resulted in stipulated judgements.

The first federal case occurred in 1975, when the County adopted a re-zoning measure that drastically reduced the number of residences Martha could build on the property from a minimum of 300 to a maximum of 34. Martha sued the County in federal district court, alleging the re-zoning constituted a regulatory taking of property. The case resolved in 1976 by stipulated settlement that (1) Martha could develop no fewer than 43 single family homes on a minimum of half-acre lots; (2) Martha could place some homes on portions of the property named the Ridge and the Upland Greenbelt; and (3) 43 single family homes on half-acre lots is consistent with the goals of the County’s general plan while allowing owners a feasible economic use of their property.

Between federal cases, Martha submitted a project proposal to the County, which directed Martha to file an application with the Town of Tiburon for approval. The Town conducted years of environmental study without rendering a decision, and eventually Martha withdrew its application. In 2005, Martha submitted a new project proposal. The County refused to process Martha’s second application just as it refused to process the first.

The County returned to federal court, seeking relief from the 1976 stipulated settlement. It alleged that California environmental laws had changed in the 30 years since 1976, such that it would be against public policy of the state to “allow a development of this magnitude, on environmentally sensitive and constrained land to proceed without the development and density being subject to CEQA review.” The district court dismissed the County’s complaint and granted the 2007 stipulated settlement, which set a timeline and procedures for enforcing the 1976 judgement.

Martha submitted a third development application for a 43-unit residential development project (the Project). The County circulated a draft EIR for the project in 2011.

In 2017, after years of administrative proceedings, further environmental review, and litigation concerning the project, Martha submitted a modified Master Plan of the development project to comply with the County Board of Supervisors’ request for a “more specific proposal.” Additionally, Martha agreed to a phased review of its development application. The Marin County Board of Supervisors certified the EIR by a 3-2 vote.

Tiburon Open Space Committee and the Town of Tiburon (collectively, the Town) each filed petitions for a Writ of Mandate against the County, alleging the EIR was legally inadequate in numerous respects, and the County’s review process was legally deficient. The trial court denied both petitions. The Town appealed.

The Court of Appeal’s Decision

Implications of the Stipulated Judgments

The Town’s principal allegation was that the County violated CEQA by failing to exercise the full measure of its statutory discretion when it complied with the stipulated judgements. In essence, the Town claimed the County illegally “contracted away its police powers.”

The Court of Appeal rejected these claims, explaining that the Board proceeded “along lines that are in fact expressly embedded in CEQA,” and did not circumvent its obligations under the statute.

First, the Court concluded that the EIR was not a “pro forma” exercise, nor had a preordained outcome as the Town contends. The Court underscored the fact that the EIR underwent several revisions, spanned 850 pages, involved consultation with other agencies, provided meaningful opportunity for public review and comment, and cost considerable time and money. Furthermore, the County retained discretion to shape the contours of the Project during the later phases of approval. Specifically, the Court noted, the EIR proceedings were not “rushed, perfunctory, or short circuited” and were “utterly at odds with the conduct of a public entity that believed itself free to blow off CEQA.”

Second, the County appropriately limited its CEQA analysis to the scope of its discretionary authority. The Court cited Sequoyah Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 for the holding that an agency’s discretion under CEQA is limited by its own legal obligations. For example, the Court remarked that CEQA imposes a duty to mitigate environmental impacts only to the extent feasible. Applied here, the County had a legal obligation to comply with the conditions imposed by the stipulated judgements. Since the stipulated judgments limit the scope of the County’s discretion by requiring certain conditions for the project be met, they also limited the scope of its environmental review. Thus, while legally feasible alternatives and mitigation measures had to be examined by the County, alternatives or mitigation measures that contradicted its obligations under the stipulated judgements were legally infeasible and did not need to be examined. Accordingly, the Court held that the County’s approval of a project that complied with the conditions set by the stipulated settlements was proper.

The Town also raised a corollary argument that the stipulated judgements deprived the members of the County Board of Supervisors from exercising their “independent judgement.” The Court refuted this argument by highlighting its logical flaw; that is, if it can be said that federal judgements are not binding on a public official’s independent discretion, then it can equally be said that inconvenient provisions of state law, namely CEQA, are not binding on independent discretion either.

The Court therefore concluded that the EIR fulfilled the central purpose of CEQA to “disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose,” and the County’s review process appropriately limited the scope of its environmental review to match its discretionary authority.

Project Description

The Court also rejected the Town’s claim that Final EIR’s 34-page project description was “artificially narrow” because it incorporated the legal constraints imposed by the stipulated judgments. The Court explained that the project description provided more detail than CEQA requires, and this argument was a mere variation of the claim that the County “abdicated” its responsibilities under CEQA by complying with the judgments—which it already rejected.

Alternatives

The Court held that the County did not abuse its discretion by rejecting a 32-unit alternative because that alternative was legally infeasible due to the legal requirements imposed by the stipulated judgments. It emphasized that an EIR is not required to review infeasible alternatives “even when such alternatives might be imagined to be environmentally superior.”

Environmental Impacts and Mitigation Findings

The Court of Appeal held that substantial evidence supported the County’s findings that several of the Project’s impacts would be mitigated to a less than significant level.

First, the Court upheld the County’s finding that traffic safety impacts could be mitigated by measures that required the Town to implement them—including removing traffic obstacles such as trash receptacles and enforcing speed limits on narrow winding road. The Court explained that CEQA only requires a “reasonable plan” for mitigation and allows for the approval of a project with a finding that mitigation should be adopted by another entity that has exclusive jurisdiction.

The Court also concluded that substantial evidence supported the EIR’s “level of service” (LOS) methodology for calculating the Project’s traffic density impacts, noting that LOS was an established standard required in the County. Quoting the trial court, the Court of Appeal held that the traffic analyst was entitled to rely on this methodology because it “had the prerogative to resolve conflicting factual conclusions” about the traffic congestion impacts of the Project.

The Court upheld the EIR’s use of best management practices (BMPs) for the mitigation of impacts on the threatened California red-legged frog. It explained that the BMPs did not defer mitigation, but rather qualified as “revisions in the project plans” agreed to by Martha because they were accepted as conditions of approval. Further, the Court noted, the BMPs were already in existence because they were included in the Project’s Stormwater Control Plan. Accordingly, the Court determined that the BMPs were incorporated by reference in the EIR.

The Town’s claims regarding the County’s water supply and fire flow mitigation measures were barred due to its failure to exhaust the issues during the County’s administrative process. The Court nonetheless concluded that the measures requiring Martha to work with local water and fire authorities were sufficient and would not allow Martha to do “nothing” because failing to comply would result in the County not issuing the permits required to proceed with the Project. The Court also concluded that the Town’s demand for more detail in the water supply plan went beyond what CEQA requires.

Lastly, the Court concluded that substantial evidence—specifically, construction and traffic experts’ opinions—supported the County’s determination that mitigation would reduce the Project’s safety impacts resulting from a temporary on-site construction road to less than significant. The Court explained that alternative evidence does not negate the substantial evidence that the County relied on, and that it is within the agency’s discretion to evaluate the credibility of such evidence. It also emphasized that the safety risks were limited to the workers building the Project, and CEQA only requires review of safety risks posed to the public in general.

The Court’s Closing Remarks

The Court of Appeal concluded its opinion by expressing its inclination to afford the trial court’s decision great weight in counties with designated CEQA judges. The Court also generally criticized the use of CEQA lawsuits as “tool[s] of obstruction,” especially for housing developments.

— Jordan Wright & Veronika Morrison

SECOND DISTRICT FINDS LOS ANGELES’S 15 PERCENT AFFORDABLE HOUSING SET-ASIDE INOPERATIVE

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In AIDS Healthcare Foundation v. City of Los Angeles (2022) 78 Cal.App.5th 167, the Second District Court of Appeal rejected claims challenging the City of Los Angeles’s decision to approve the development of a large mixed-use apartment building in Hollywood. The court upheld the decision of the Superior Court, finding that a 15 percent low income set-aside requirement had been voided by 2011 legislation and, even if it had not, the set-aside requirement applied only to the aggregate amount of dwelling units within a planning area, not to individual projects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, the (now dissolved) Community Redevelopment Agency of the City of Los Angeles (CRA-LA) established the “Hollywood Redevelopment Plan” (HRP) in accordance with the City of Los Angeles’s (City’s) “Community Redevelopment Law” (CRL). Both the HRP and CRL included a requirement that at least 15 percent of all new and rehabilitated dwelling units within a total project area be reserved for families of “low or moderate income.” However, the local redevelopment agencies charged with preparing and executing these plans had no power to tax, and instead funded their activities using “tax increment” financing.

Under this financing scheme, public entities that were entitled to receive property tax revenue received such revenues from properties within the planning area based on their assessed value prior to the effective date of the applicable redevelopment plan. Any tax revenue received in excess of that amount was a “tax increment.” However, in 2011, the Legislature enacted the “Dissolution Law,” which dissolved redevelopment agencies and repealed any provisions of the CRL that depended upon tax increment financing. “Successor agencies” acquired the former redevelopment agencies’ “housing functions and assets,” but were to have no “legal authority to participate in redevelopment activities, except to complete any work related to an approved enforceable obligation.”

In January 2019, the City’s Advisory Agency approved a tentative tract map for a 26-story mixed-use building on a 0.89-acre plot within the HRP planning area (developed by 6400 Sunset, LLC, the real party in interest). The project involves approximately 200 dwelling units, of which 5 percent will be reserved for “very low income households.” Coalition to Preserve LA (CPLA) appealed the Advisory Agency’s approval to the City Planning Commission, arguing that a reservation of only 5 percent of units for affordable housing would violate the CRL/HRP requirement of 15 percent. The Planning Commission denied CPLA’s appeal in March 2019. CPLA’s appeal of that decision, to the City Council’s Planning and Land Use Management Committee, was also denied in June 2019.

In July 2019, CPLA (joined by AIDS Healthcare Foundation) filed a petition for writ of mandate. The superior court denied the petition on the grounds that the pertinent provisions of the CRL had been repealed and, even under the CRL’s language, the 15 percent requirement “need not be imposed on each individual project,” but only to buildings within the planning area “in the aggregate.” CPLA and AIDS Healthcare Foundation timely appealed.

THE COURT OF APPEAL’S DECISION

The Court of Appeal agreed with the superior court on both counts, holding that the Dissolution Law had effectively repealed the 15 percent requirement and that, even if it had not, the requirement applied to the number of dwelling units within the CRL planning area as a whole—not individual projects.

Under the Dissolution Law, “all provisions of the [CRL] that depend on the allocation of tax increment to redevelopment agencies . . . shall be inoperative.” The court agreed that because enforcement of the 15 percent requirement depended upon redevelopment agencies, and redevelopment agencies in turn depended upon the funds supplied by the tax increment, this requirement was also rendered inoperative. The appellants countered that redevelopment agencies could raise funds by issuing bonds, but the court reasoned that “bonds . . . have to be repaid, and the former agencies repaid the bonds, generally, from the same source of funds used to pay other obligations—from the tax increment.”

The appellants also argued that the 15 percent requirement was an “enforceable obligation” under the Dissolution Law, which the successor agency (here, the City) was required to perform. The court, however, found that such obligations related only to “monetary and existing contractual obligations,” not to statutory affordable housing requirements. The appellants countered that the City, as the former CRA-LA’s successor agency, is not limited to the statutory powers enumerated under the CRL and, therefore, the 15 percent requirement could be enforced under the City’s “inherent police power.” The court remained unpersuaded. Even assuming that the City is CRA-LA’s successor agency, the Dissolution Law did not grant the successor any powers that the former redevelopment agency did not have (such as general police powers).

The court also rejected appellants’ argument that, even if the Dissolution Law rendered the CRL’s 15 percent requirement inoperative, the HRP’s own 15 percent requirement remained intact. According to the court, the HRP and its powers applied only to CRA-LA (not the City), and that agency was dissolved by the Dissolution Law.

Finally, beyond the nullifying effects of the Dissolution Law, the court held that under the plain language of both the CRL and HRP, the 15 percent requirement would apply only “in the aggregate,” and “not to each individual case of rehabilitation, development, or construction of dwelling units, unless an agency determines otherwise.” Because CRA-LA never determined otherwise, individual projects were not subject to a strict 15 percent minimum.

 —Griffin Williams