Author Archives: Elizabeth Sarine

Third District Upholds Plumas County’s General Plan EIR and Holds that a Local Government May Base Its Impact Analysis on Reasonably Foreseeable Levels of Growth and Development, as Opposed to Theoretically Possible Levels

On November 15, 2018, the Third District Court of Appeal certified for publication its decision in High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102. Rejecting arguments that Plumas County violated the Timberland Productivity Act (Timberland Act) and the California Environmental Quality Act (CEQA) when it adopted a general plan update, the appellate court affirmed the trial court’s judgment in the County’s favor. The opinion is the first precedent to explore the intersections of CEQA and the Timberland Act. It is also the first CEQA precedent clearly holding that a local government, in preparing an EIR for a general plan update, may base its impact analysis on reasonably foreseeable levels of population growth and development, as opposed to theoretically possible levels.

In 2005, the County began efforts to update its 1984 General Plan. Over the next eight years, the County engaged in a robust community engagement and education process to create the 2035 General Plan Update (GPU) that reflected the County’s planning goals and values. In December 2013, the County’s Board of Supervisors certified the Final Environmental Impact Report (EIR) and adopted the GPU. High Sierra Rural Alliance (High Sierra) filed suit, arguing that the GPU conflicted with the Timberland Act and that the EIR for the GPU did not adequately analyze impacts of potential growth outside of designated planning areas. The trial court disagreed and denied the petition and complaint in its entirety.

The Third District’s opinion begins with a brief description contrasting the County’s large size with its small population. Although the County covers approximately 2,613 square miles or over 1.67 million acres, its vast lands supported only 20,007 residents in 2010. The court also highlighted the minimal expected population growth, with the Department of Finance estimating the County’s population to remain under 21,000 until 2025, at which point the population is expected to decline.

Turning to High Sierra’s Timberland Act claims, the opinion provides an overview of the Act and the GPU policies related to timberland production zone (TPZ) lands. The opinion then settles a heretofore unresolved question under the Timberland Act–– namely, whether any residence approved on land zoned for timberland production must be “necessary for” the management of the relevant parcel as timberland. The court agreed with the County’s interpretation of Government Code section 51104, subdivision (h)(6), as providing that any “residence” on TPZ lands must be “necessary for” and “compatible with” the management of land zoned as timberland production. The court also made clear that “section 51104 suffices to supply the restrictions on residences and structures on timberland production zone parcels,” and thus the County’s GPU did not conflict with the Timberland Act simply because it failed to recite the statutory language in Section 51104 in its relevant policies.

In discussing the Timberland Act arguments, the court explained that “the finding [required by the Timberland Act] that a residence or structure is necessary for the management of a timberland production zoned parcel is not an exercise of discretion as used in the CEQA context.” The court provides local agencies and legal practitioners with important guidance on this issue by citing and quoting the discussion in the Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 272, which provides that an agency can exercise CEQA discretion only where it has “the power (that is, the discretion) to stop or modify” a project in a “way which would mitigate the environmental damage in any significant way.” Because the court concluded that “the Timberland Act affords the County no discretion to stop or request modification of the proposed residence or structure in order to mitigate environmental impacts,” the court rejected High Sierra’s argument.

Next, the court rejected High Sierra’s CEQA claims. High Sierra argued that the EIR failed to acknowledge and analyze the potential for rural sprawl. But the EIR explained that full build-out under the GPU would not occur for another three hundred years. Based on the substantial evidence in the record, the court concluded that the County could properly focus its analysis on the reasonably foreseeable growth occurring under the GPU through year 2035. The court also agreed with the County that historic land use data supported the conclusion that growth would occur almost exclusively within the planning areas. The court rejected High Sierra’s speculation that one of the GPU policies would open the floodgates to residential subdivisions on agricultural, timber, and mining lands. High Sierra’s reliance on a working paper about real estate markets in the Northern Rockies failed to persuade the court because the paper did not cite any data specific to Plumas County.

Finally, the court held that the County did not violate CEQA by failing to recirculate the EIR. The court was unconvinced by High Sierra’s argument that the inclusion in the Final EIR of building intensity standards and more accurate maps showing potential development outside of planning areas triggered recirculation.


RMM Senior Partner James G. Moose and Associate L. Elizabeth Sarine represented Plumas County.


First District Court of Appeal Allows City to Recover Costs of “Extracting” and Producing Video Recordings Requested Under the California Public Records Act

On September 28, 2018, the First District issued its decision in National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937.* Concluding that the trial court misinterpreted applicable provisions of the California Public Records Act (CPRA), the appellate court reversed the trial court’s decision to issue a writ directing the City of Hayward to refund the National Lawyers Guild for payments that the Guild made to cover the city’s costs in producing videos responsive to the Guild’s request for public records.

In January 2015, the Guild served the city with requests for public records relating to a demonstration in Berkeley protesting police violence. The city’s police department provided security for the demonstration that was held in December 2014. In response to the Guilds’ CPRA request, the city provided the Guild with over 200 public records, including six hours of police body camera videos from the Berkeley demonstration. In May 2015, the city sent the Guild an invoice for $2,939.58 to cover the costs incurred by city employees in preparing the videos for production, including editing the videos to redact exempt material. The Guild paid this first invoice under protest and submitted another request for a second set of videos. The city informed the Guild that the second set of videos could be produced for a cost of $308.89. The Guild paid the second invoice, but not before it filed a petition for writ of mandate seeking a refund of what it had paid to the city.

The trial court concluded that Government Code sections 6253 and 6253.9 do not permit the city to charge a public records requester for costs incurred in redacting material from a video that is a public record. After the trial court ruled in favor of the Guild, the city appealed.

The appellate court began with an overview of the statutory framework and public policies behind the CPRA. Then the court focused on the plain language in Section 6253 and Section 6253.9, subdivision (b)(2). The main dispute between the city and the Guild centered on the term “extract” in Section 6253.9, subdivision (b), which provides: “the requester shall bear the cost of producing a copy of the record” when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.” (Gov. Code, § 6253.9, subd. (b).)

The court decided that it must consider legislative history because it was not clear from the statutory text what the Legislature intended. Based on various documents that the court judicially noticed for purposes of the appeal, the court concluded that lawmakers drafted Section 6253.9(b) to “expand the circumstances under which a public agency could be reimbursed by a CPRA requester to include” a scenario where “the agency must incur costs to acquire and utilize special computer programming (e.g., the Windows Movie Maker software) to extract exempt material from otherwise disclosable electronic public records.” The court reversed the trial court’s judgment, allowing the city to recover the costs it incurred in providing the Guild with redacted videos.

*Review granted, December 19, 2018.