Author Archives: Laura Harris

The First District Court of Appeal Finds That Possible Earthquake or Landslide Zone Is Not an “Environmental Resource” Under Location Exception to Categorical Exemptions

In Berkeley Hills Watershed Coalition v. City of Berkeley (2019) ___Cal.App.5th ___, the First District Court of Appeal affirmed the trial court’s decision upholding the city’s determination that the construction of three new single-family homes in the Berkeley hills fell within the scope of the Class 3 categorical exemption.

The project is located in the Alquist-Priolo Earthquake Fault Zone (APEFZ). Petitioners contended that the project was subject to the location exception to the Class 3 categorical exemption. That exception provides that the exemption does not apply in instances “where a project may impact on an environmental resource of hazardous or critical concern,” which must be “designated, precisely mapped, and officially adopted pursuant to law” (CEQA Guidelines, § 15300.2, subd. (a).) Petitioners argued that the exception applied because the APEFZ is an environmental resource of hazardous concern. The First District disagreed.

The court held that the plain language in the location exception reflects concern with the effect of the project on the environment—not the impact of existing environmental conditions (seismic and landslide risks) on the project. The court found support for its interpretation in the plain meaning of the term “environmental resource,” as well as existing statutes. Citing the dictionary definition of “resource,” the court concluded that earthquakes and landslides are geologic events, not environmental resources, as contemplated by the location exception. Furthermore, while the APEFZ is “officially mapped” in accordance with the Seismic Hazards Mapping Act, that statute was enacted for the purpose of preventing economic loss and protecting health and safety, not to identify the locations of environmental resources. Similarly, as the California Supreme Court affirmed in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, CEQA is concerned with a project’s significant effects on the environment, not the significant effects of the environment on the project. Finally, the court rejected petitioners’ argument that the trial court’s interpretation of the location exception is inconsistent with Public Resources Code sections 21169.21, subdivisions (h)(4) and (5)—which set forth exceptions to a specific statutory exemption for housing projects located in seismic and landslide hazard areas—reasoning that it cannot extrapolate from that specific exception an intent to apply to a general exception like the location exception.

– Christina Berglund

The Fourth District Court of Appeal Rejects Challenges to Amended Lease Agreement for San Diego Amusement Park

In San Diegans for Open Government v. City of San Diego (2019) ___Cal.App.5th ___, the Fourth District Court of Appeal affirmed a judgment rejecting CEQA arguments and other challenges to an amended lease agreement between the City of San Diego and Symphony Asset Pool XVI, LLC for the historic Belmont Park amusement park.

In 1987, the City of San Diego entered into a lease and development plan to revitalize the historic amusement park in the city’s Mission Beach area. Under the agreement, Symphony’s predecessor in interest was authorized to demolish and renovate certain existing facilities, and to construct various new facilities including restaurants, shops, and other visitor-serving commercial uses. The original lease agreement was for a 50-year term, but also included a right of first refusal to enter into a new agreement on terms determined by the city.

In response to the 1987 lease, the city’s electorate passed Proposition G to restrict future commercial development in Mission Beach. Under Prop. G, future development is restricted to park and recreational uses, and the preservation of historical amusement park facilities. Prop. G also includes an exemption for projects that had obtained vested rights as of the effective date of the measure. In 1988, the city council passed an ordinance providing that the 1987 lease and development plan provided a vested right under Prop. G and the use and redevelopment of Belmont Park could continue as planned.

In 2012, Real Party in Interest Symphony took over the 1987 lease. In 2015, the city council authorized the mayor to enter into an amended and restated lease with Symphony for the use and operation of Belmont Park. The basis for the amended lease was in part to support the approximately $18 million Symphony had invested improving the property since taking over. Among other things, the lease required Symphony to pay rent for its use of the property. The lease also gave Symphony the opportunity to extend the lease beyond the original 50-year term. If Symphony completes ongoing improvements and planned improvements, makes additional capital improvements, and pays the city a lump sum payment, the amended lease may be extended up to 50 years.

At the time the amended lease was approved, the city council also adopted a resolution finding that the amended lease agreement was categorically exempt from CEQA under the existing facilities exemption in CEQA Guidelines section 15301.

Following the adoption of the amended lease, San Diegans for Open Government (SDOG) filed a lawsuit challenging the amended lease on three grounds. First, the complaint alleged that the amended lease violated Prop. G by authorizing new uses in excess of the vested rights conferred under the 1987 lease. Second, the complaint alleged that the city violated CEQA because it improperly concluded the amended lease was exempt from environmental review. Third, the complaint alleged that the approval of the amended lease violated a provision of the city charter which required certain agreements lasting more than five years to be adopted by ordinance after a public hearing.

With regard to the first claim, SDOG argued that (1) the amended lease allows new uses that were not authorized under the 1987 lease, and (2) the 1987 lease provided a vested right only for the original 50-year term. The court rejected these arguments, holding that the amended lease did not violate Prop. G., relying primarily on the language of the 1987 lease. First, the court noted that the original lease included a long list of specifically authorized uses. According to the court, all of the uses SDOG argued were not authorized were encompassed within the original permissible uses. Next, the court held that the extension did not violate Prop. G because the 1987 lease contemplated the possibility of extension, and neither Prop. G nor the city’s ordinance finding a vested right contained any time limit on the rights vested.

The second issue was whether the city violated CEQA by incorrectly determining that the amended lease was exempt from environmental review under the existing facilities exemption. CEQA Guidelines section 15301 provides an exemption from environmental review for 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.” SDOG argued that the amended lease contemplates improvements including construction of a new restaurant and bar, food court venues, and a new arcade, and thus did not qualify as involving negligible or no expansion of the existing use.

The court rejected SDOG’s argument and found that the construction activities the appellants referenced, including the new restaurant, food court venues, and arcade, were all projects that had already been completed at the time the amended lease was entered and, accordingly, were existing facilities. The parties acknowledged in the lease that Symphony had already expended $18 million to improve and upgrade the property, and those improvements were listed in an exhibit to the agreement. The court added that while the amended lease did contemplate Symphony would invest an additional $5.9 million in the pool facility in the future, SDOG did not argue those activities were outside the scope of the exemption. Moreover, the court added, those activities involved only refurbishment of existing facilities and not new construction, thus, they fall squarely within the existing facilities exemption.

In addition to arguing that the amended lease did not qualify for the existing facilities exemption, SDOG argued that the unusual circumstances exception in CEQA Guidelines section 15003.2, subdivision (c) applied in this case. Under that section, “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” Furthermore, the court explained, “it is not alone enough that there is a reasonable possibility the project will have a significant environmental effect, instead . . . there must be a reasonable possibility that the activity will have a significant effect on the environment due to the unusual circumstances.” (Quoting Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1097-98.)

Here, SDOG argued that the existence of the voter-passed Proposition G constituted an unusual circumstance because the voters had used the initiative power to declare a distinct interest in minimizing the environmental impacts of development in Mission Beach. SDOG also argued that there is a fair argument the project will result in severe traffic and noise impacts. SDOG cited a statement by a Symphony representative that the project would generate an additional $100 million in revenue over the term of the lease, which SDOG argued could only occur with significantly more visitors and therefore more traffic and other resulting impacts. The court rejected SDOG arguments, finding its argument that impacts would occur to be based on speculation. Furthermore, SDOG failed to establish how the increased traffic or noise would be due to the unusual circumstances that it cited, i.e., the existence of Proposition G. In sum, the court held that the city properly determined the amended lease was exempt from CEQA review under the existing facilities exemption and that the unusual circumstance exception did not apply.

The final issue in the case was whether the approval of the amended lease violated a provision of the city charter. The provision at issue consisted of two sentences. The first sentence referred to the city incurring “indebtedness or liability.” The second sentence more broadly stated “no contract” lasting for a period of more than five years may be authorized except by ordinance after notice and a public hearing. The issue was whether the first sentence limited the second, or if the second sentence was independent. While the court found the language of the provision was ambiguous, rules of statutory interpretation provide that the city’s interpretation of its own charter is entitled to deference unless shown to be clearly erroneous. The city’s longstanding interpretation of the provision was that it applied solely to agreements requiring the city to expend funds. The court found this interpretation to be reasonable and consistent with the legislative history, and held that the city did not violate the charter by approving the amended lease by resolution.

– Collin McCarthy

The First District Court of Appeal Affirmed a Judgment Holding that CEQA Review Was Not Required for a Multifamily Residential Project Subject Only to Design Review

In a decision published on January 10, 2019, the First District Court of Appeal affirmed a judgment denying two local groups’ petition for writ of mandate seeking to overturn the City of St. Helena’s approval of a multifamily residential project. McCorkle Eastside Neighborhood Group, et al. v. City of St. Helena, et al. (2019) ___Cal.App.5th ___. In this case, the city’s approval authority for the project was limited to design review under the local zoning ordinance. The court held that because the city lacked any discretion to address the project’s environmental effects, the city properly determined CEQA review was not required.

Between 2015 and 2016, the City of St. Helena amended its general plan and zoning ordinance to eliminate the requirement to obtain a conditional use permit for multifamily projects in High Density Residential (HDR) districts. Since this change, multifamily residential projects are a permitted use in HDR districts and require only design review approval. Real Party in Interest Joe McGrath applied for design review approval to construct an 8-unit residential project within an HDR district. McGrath also applied for a demolition permit to demolish an existing single family home on the site.

In October 2016, the city’s planning staff prepared a report that concluded (1) the project was exempt from CEQA under the Class 32 infill exemption (CEQA Guidelines § 15332); and (2) the project met the design review criteria. At the planning commission hearing for the project, several neighbors and community members opposed the project on various environmental grounds, including that the project site is contaminated, the street has inadequate drainage, the area lacks open space, and the project would cause cumulative impacts with another proposed development. Opponents of the project also contended that the project design was inconsistent with the design of the neighboring historical homes.

During the planning commission hearing, the city attorney advised the members of the commission that, under the city’s zoning ordinance, the commission was required to approve the project if it met the city’s design review criteria. The city attorney added that while he was confident the Class 32 infill exemption applied, CEQA also did not apply because it was a non-discretionary project. The planning commission approved the project, and adopted findings that the project was exempt from CEQA and would not cause any significant environmental effects.

At the city council appeal hearing, the city attorney similarly advised the members of the council that the project was exempt from CEQA under the Class 32 infill exemption, but at any rate their review was limited to the project design. The council voted 3-2 to deny the appeal and uphold the planning commission’s approval. The council adopted a resolution containing numerous detailed findings to support the design review approval. The council also found that the Class 32 infill exemption applied, but, even if some level of CEQA review was required, the city was limited to reviewing design-related issues and not the use-related environmental impacts the project opponents had raised.

The McCorkle Eastside Neighborhood Group and St. Helena Residents for an Equitable General Plan filed a petition for writ of mandate challenging the city council’s approval as a violation of CEQA and local zoning laws. The trial court denied the petition. The groups’ appeal followed.

The primary issue on appeal was whether the city abused its discretion by approving the project without requiring an environmental impact report (EIR). The appellants argued that the Class 32 infill exemption requires the city council to determine that the project would not result in any significant environmental effects relating to traffic, noise, air quality, and water quality. According to the appellants, the city council could not properly have done so because it reviewed only the project design.

The court disagreed and held that, irrespective of the Class 32 exemption, the city council correctly determined that the scope of its discretion was limited to design review and no CEQA review was required. As the court explained, under the city’s design review ordinance, the city council could not disapprove the project for non-design related reasons. In this case, the court found that substantial evidence supported the city council’s findings that the project met the design review criteria and would not result in any design-related impacts.

With regard to the Appellants’ design-related concerns, the court rejected the notion that CEQA review was required for those concerns alone, at least for the project at issue. Quoting from the First District’s decision in Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 592 (Bowman), the court stated, “[W]e do not believe that our Legislature in enacting CEQA . . . intended to require an EIR where the sole environmental impact is aesthetic merit of a building in a highly developed area.” Furthermore, the court added, “[w]hile local laws do not preempt CEQA, ‘aesthetic issues like the one raised here are ordinarily the province of local design review, not CEQA.’ ‘Where a project must undergo design review under local law, that process itself can be found to mitigate purely aesthetic impacts to insignificance . . . .’” (Quoting Bowman at p. 594.) While the court recognized that St. Helena is not as urban as Berkeley, the location of the Bowman project, it nonetheless found that “the principles of that case apply to the design review in this case, which cannot be used to impose environmental conditions.”

The court next rejected the appellants’ argument that the mere fact the city had some discretionary authority in the design review process made the project subject to CEQA. According to the court, the rule that a project will be deemed discretionary for purposes of CEQA if it requires both discretionary and ministerial approvals “applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts.”
Finally, the court found that it was unnecessary for the city to rely on the Class 32 infill exemption because the city lacked any discretion to address the project’s non-design related environmental effects. The court also found it was unnecessary to address the appellants’ argument that the Class 32 exemption did not apply based on the “unusual circumstances” exception. According to the court, “[b]ecause CEQA was limited in scope to design review whether or not the Class 32 exemption applied, any exception to the exemption was irrelevant.”

-Collin McCarthy

First District Finds CEQA Claim Timely Filed in Case Challenging Approval of Tree Removal

In Save Lafayette Trees v. City of Lafayette (Oct. 23, 2018, A154168)* ___ Cal.App.5th___, the First District Court of Appeal held that the 90-day statute of limitations period set forth in the Planning and Zoning Law did not apply to petitioners’ CEQA cause of action. Therefore, although the trial court correctly granted the demurrer to petitioners’ Planning and Zoning Law claim, the trial court erred in dismissing petitioners’ CEQA claim.

The case involves the City of Lafayette’s approval of an agreement with Pacific Gas and Electric Company (PG&E) authorizing the removal of up to 272 trees within PG&E’s natural gas pipeline rights-of-way. City staff and PG&E disagreed as to whether PG&E was required to comply with the city’s tree protection ordinance. Rather than requiring PG&E to comply with the city’s tree protection ordinance, however, the city agreed to allow PG&E to remove the trees under a provision of the Lafayette Municipal Code allowing removal of protected trees “to protect the health, safety, and general welfare of the community.”

Petitioners filed a lawsuit challenging the city’s approval of the tree-removal agreement. The petition alleged that the city failed to comply with the Planning and Zoning Law and CEQA in approving the agreement. It also alleged that the city violated the petitioners’ due process rights by failing to give sufficient notice of the hearing at which the agreement was approved.

PG&E filed a demurrer, in which the city joined, asserting that the petition was barred by Government Code section 65009, subdivision (c)(1)(E), which requires that an action challenging a zoning permit be filed and served within 90 days of the decision. The trial court sustained the demurrer without leave to amend, finding that the petition had not been served within the 90-day filing and service period. Based on this, the trial court dismissed the petition in full.

The Court of Appeal agreed with the trial court that petitioners’ Planning and Zoning Law claim was time-barred because petitioners had not served the petition within 90 days, as required by Government Code section 65009, subdivision (c)(1)(E). Government Code section 65009 applies to “any decision” by a legislative body regarding a permit. Although the approval of the agreement was not labeled a “permit,” it was, in effect, a permit authorizing the removal of trees, so section 65009, subdivision (c)(1)(E) applied. Although section 65009’s legislative findings discuss the need for a short limitations period to provide certainty to housing developers, nothing in section 65009 restricts its application to decisions involving houses. The longer statute of limitations found in the city’s Municipal Code did not apply because the shorter limitations period of the Government Code preempted that of the city’s code. Because the due process cause of action derived from the Planning and Zoning Law, the 90-day statute of limitations under the Planning and Zoning Law also barred petitioners’ due process claim.

The 180-day statute of limitations found in Public Resources Code section section 21167.6, subdivision (a), applied to the CEQA cause of action. Because the petition had been filed and served within that time, the trial court erred in dismissing the CEQA claim. Because the CEQA limitations period was twice as long as that of the Government Code, the two statutes of limitations could not be reconciled. Therefore, the statute of limitations under the Planning and Zoning Law did not control the CEQA cause of action.

*Previously published at: 28 Cal.App.5th 622, Rehearing Granted, Opinion Not Citeable November 26, 2018.

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

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

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.


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

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)

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

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.

Second District Finds for Respondents on All Counts, Upholding EIR for “Iconic Gateway” Project in West Hollywood

In Los Angeles Conservancy v. City of West Hollywood (2017) ­18 Cal.App.5th 1031, the Second Appellate District upheld the trial court’s denial of a petition for writ of mandate, finding that the EIR’s treatment of alternatives was sufficient and that the city adequately responded to comments.

In 2014, the city certified an EIR for a mixed–use development in the Melrose Triangle section of West Hollywood. The project was the product of city incentives to redevelop the area in order to create a unified site design with open space, pedestrian access, and an iconic “gateway” building to welcome visitors and promote economic development. The EIR concluded that a significant and unavoidable impact would result from the demolition of a building eligible for listing as a California historic resource.

One alternative would have preserved the building in its entirety, by reducing and redesigning the project. The preservation alternative was ultimately rejected as infeasible because it was inconsistent with project objectives, and would eliminate or disrupt the project’s critical design elements.

After circulating the draft EIR, the project’s architects developed a site design which incorporated the building’s façade and mandated this design as a condition of approval. Furthermore, a subsequent fire destroyed 25 percent of the building, but left the façade intact. The final EIR and conditions were approved in 2014. Petitioners immediately filed suit.

In the court below, petitioner argued that the EIR’s analysis of the preservation alternative was inadequate, the city did not respond to public comments, and that the city’s finding that the alternative was infeasible was not supported by substantial evidence. The respondents prevailed on all claims and petitioner appealed.

Finding for respondents, the court reiterated the Laurel Heights standard that an analysis of alternatives does not require perfection, only that the EIR provide sufficient information to support a reasonable range of alternatives. The court rejected petitioner’s contention that the EIR was required to include a conceptual drawing of the preservation alternative. Furthermore, the EIR’s statement that preservation of the building would preclude construction of other parts of the project was self-explanatory and did not require additional analysis. The EIR’s use of estimates to calculate how the preservation alternative would reduce the project’s footprint did not create ambiguities that would confuse the public. Such imprecision is simply inherent in the use of estimates.

The court also found that the city’s responses to the three comments cited by the petitioner were made in good faith and demonstrated reasoned analysis.  The court reiterated that a response is not insufficient when it cross-references relevant sections of the draft EIR, and that the level of detail required in a response can vary. Here, the West Hollywood Preservation Alliance and the President of the Art Deco Society of Los Angeles opined in comments that the building could be preserved while achieving the project’s objectives. The city adequately responded to these comments by referencing, and expanding upon, the EIR’s analysis of the preservation alternative, where this option was considered. The last comment was of a general nature, so the city’s brief, general response was appropriate.

Finally, the court found sufficient evidence to support the city’s finding that the preservation alternative was infeasible. An alternative is infeasible when it cannot meet project objectives or when policy considerations render it impractical or undesirable. An agency’s determination of infeasibility is presumed correct and entitled to deference, if supported by substantial evidence in the record. The court found that the city’s conclusion that the alternative is infeasible was supported by substantial evidence in the record. Development plans, photographs, and testimony from senior planning staff support the city’s conclusion that retaining the building and reducing the project would not fulfill the project objectives of creating a unified site design, promoting pedestrian uses, and encouraging regional economic development.  That another conclusion could have be reached did not render the city’s decision flawed.

A consistent theme underlying the court’s decision was the city’s clear goal of revitalizing the entire site, in order to create a functional and attractive gateway for West Hollywood. Critical to the project’s success was removing the specific building that the petitioner sought to preserve. The court appeared reluctant to overcome such a strong mandate by flyspecking the EIR’s analysis of this acknowledged significant impact.