Author Archives: Laura Harris

First Circuit Finds Environmental Review Under Certified Regulatory Program Inadequate

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In Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 16 Cal.App.5th 224 (republished as modified) the First Appellate District reversed the Alameda Superior Court and found that environmental documents prepared by the California Department of Pesticide Regulation, regarding amended labelling for two pesticides, inadequately analyzed potential impacts on honeybees. The court held that the Department was required to analyze the environmental baseline, alternatives, and cumulative impacts in documents promulgated under CEQA’s exemption for certified regulatory programs (CRP).

The Department of Pesticide Regulation registers all pesticides in California, after evaluating their efficiency and potential for impacts to human health and the environment. The Department has a continuing obligation to reevaluate pesticides, and may cancel a prior registration. Since 2006, there has been a documented widespread collapse of honey bee colonies in the United States. One suspected factor is exposure to pesticides such as dinotefuran, the active ingredient in pesticides sold by the real parties. For this reason, in 2009, the Department initiated the still-ongoing process of reevaluating dinotefuran’s registration. Simultaneously, in 2014, the Department issued public reports for a proposal to amend labels for pesticides containing dinotefuron. The amended labels would allow the pesticides to be used on fruit trees, and in increased quantities. The reports concluded that the use of each pesticide in a manner consistent with the new labels would have no direct or indirect significant adverse environmental impacts, and therefore the Department did not propose alternatives or mitigation measures. The Department issued a final approval of the label amendments in June 2014. Pesticide Action Network filed a petition for writ of mandate in Alameda Superior Court and after a lower court finding for the Department, this appeal followed.

The Department’s pesticide program falls under the CEQA section 21080.5 exemption for CRPs. This exemption permits a state agency to rely on abbreviated environmental review documents, which are the functional equivalent of CEQA documents. Here, the Department issued the functional equivalent of a negative declaration. The standard of review is whether there was a prejudicial abuse of discretion, which is established if the agency did not proceed in a manner required by law, or if the determination is not supported by substantial evidence.

First, the court rejected the Department’s assertion that because it operates a CRP, its functionally-equivalent environmental review documents are otherwise exempt from CEQA’s substantive requirements. The court found that section 21080.5 is a “limited” exemption, and environmental review must otherwise comply with CEQA’s policy goals, substantive requirements, content requirements stated in section 21080.5, and any other CEQA provisions, as well as the Department’s own regulations.

Second, the court found that the Department’s report was inadequate under CEQA because it failed to analyze alternatives and cumulative impacts, and did not describe the environmental baseline. With respect to alternatives, contrary to the Department’s assertion, a functionally-equivalent document prepared under a CRP must consider alternatives, as required by both CEQA and the Department’s own regulations. The Department argued that it did not need to consider alternatives because it concluded there would be no significant environmental impacts. The court explained that the standard for a CRP for determining whether an adverse impact may occur is the same as the “fair argument” standard under CEQA. Furthermore, the content requirements for environmental review under a CRP require that a state agency provide proof–either a checklist or other report–that there will not be adverse effects. The court found that the Department did not produce or consider such evidence.

The court also held that the substantive requirements and broad policy goals of CEQA require assessment of baseline conditions. The Department argued that it had acknowledged and assessed baseline conditions, but the court disagreed. The Department’s baseline discussion was based on one statement that “the uses are already present on the labels of a number of currently registered neonicotinoid containing products.” The court found that this general statement was not sufficient.

The court found that the Department also abused its discretion when it failed to consider cumulative impacts. In its report, the Department simply stated that the cumulative analysis would be put off until the reevaluation was complete. The court found that this one-sentence discussion lacked facts and failed to provide even a brief explanation about how the Department reached its conclusion.

Finally, the court found that the Department is required to recirculate its analysis. Recirculation is required when significant new information is added to an environmental review document, after notice and public comment has occurred, but before the document is certified. The court explained that, in light of the Department’s required reevaluation, its initial public reports on the amended labeling were so “inadequate and conclusory” that public comment on them was “effectively meaningless.”

Pesticide Action Network provides important guidance regarding environmental compliance under a CEQA-exempt CRP. The court emphasized that unless specifically exempt from a CEQA provision, even functionally-equivalent CRP documents must comply with CEQA’s substantive requirements and broad policy goals. Also notable was the court’s application of the “fair argument standard” to the analysis of whether an impact would be significant under the functional equivalent of a negative declaration.

Streamlined Yet Underutilized: CEQA’s Class 32 Urban Infill Exemption

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Streamlining—the promotion of organizational and systemic efficiency through the simplification of process—has been steadily incorporated into CEQA for years, largely through exemptions. The notion being: why not shorten the lengthy CEQA review where prior planning documents have nearly fully assessed potential impacts of a project? (E.g., CEQA Guidelines, § 15183.3, subd. (a).) These exemptions, categorical or statutory, are intended to save agencies, and by extension the public, time and resources.

Unlike many statutory exemptions that excuse qualifying projects entirely from CEQA consideration, categorical exemptions only discharge a “class” of projects from typical CEQA evaluation via a discretionary preliminary review. (CEQA Guidelines, § 15354.) The “Class 32” exemption is one such class promoting “shovel-ready” urban infill development projects through categorical streamlining. Established in 1998, this urban infill exemption requires projects to be consistent with applicable general plans and zoning designations, located within a city’s limits on a site five acres or less, bordered by urban uses, and without significant impacts to traffic, noise, air quality, or water quality. The project site itself can be either vacant or previously developed, but must be devoid of sensitive habitat and adequately served by public utilities. (CEQA Guidelines, § 15332).

In 2011, additional streamlining provisions included in Senate Bill 226 were intended to balance the interests of the government, business, and the environment by better fast-tracking Class 32 urban infill development by specifying conditions under which these projects would be adequately supported by existing planning documents and land use designations. (Pub. Resources Code, § 21094.5.) Despite SB 226 streamlining and Class 32’s beneficial function, it still goes underutilized. So why aren’t cities using this infill categorical exemption and should that change?

Class 32 and the Balancing Act of Senate Bill 226

The Class 32 infill development exemption was included in the Guidelines as a part of a 1998 revision by the Governor’s Office of Planning and Research (OPR) to clarify project types that are categorically exempt from typical CEQA review. In an effort to promote this exemption, along with other environmental tools such as solar technology, in 2011 State Senator Joseph Simitian penned SB 226 to expand CEQA streamlining provisions for infill development projects. Sen. Simitian intended the bill to balance interests, especially with increasing legislative demands for a reduction in greenhouse gas emissions. He also purported to provide a much-needed boost to industries struggling to recover from the country’s economic recession, specifically construction. (See State Sen. Joseph Simitian, letter to Governor Jerry Brown, Sept. 5, 2011, http://www.senatorsimitian.com/images/uploads/SB_226_CEQA_Letter.pdf; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 226 (2011–2012 Reg. Sess.) as amended September 9, 2011, p. 4.) By June 2012, OPR had effectuated the final proposal, incorporated the bill’s language into CEQA Guidelines, and published its accompanying performance standards as Appendix M, at which time it became an official enhancement to Class 32 exemptions.

Exemption Usage…or Lack Thereof

While a Class 32 exemption and its streamlining provisions can help cities more predictably plan development, it has gone underutilized.

Scott Morgan, OPR Deputy Director of Administration and State Clearinghouse Director, has stated that agencies often choose to prepare negative declarations or even environmental impact reports (EIRs) for projects that meet infill exemption criteria, despite the fact that negative declarations are often litigated and held to an less deferential standard of judicial review (“fair argument” versus “substantial evidence” standard, see below). Mr. Morgan explains some of this underutilization as simple unfamiliarity—city staff often aren’t aware of or comfortable using this exemption and its streamlining possibilities. However, some larger cities like Oakland and San Francisco almost exclusively use this exemption for their smaller-scale infill projects, thereby exemplifying the principle that areas already predetermined for these exact uses by a CEQA-driven planning process need not undergo a more onerous review.

The City of Oakland has developed a Class 32 exemption process that includes a preliminary review with report-style documentation, inclusive of applicable technical analysis and informal findings. In July 2015, for example, the Oakland Bureau of Planning prepared a 54-page Class 32 exemption report for a 24-story, mixed-use project with residential, retail, and restaurants on a previously developed half-acre site at 1700 Webster Street. This report included a detailed project description, CEQA categorical exemption and streamlining criteria, a CEQA exemption checklist demonstrating how this criteria has been met, and seven technical appendices ranging from transportation impact analysis to air quality and noise studies to a wind tunnel analysis. The report led to the planning staff’s December 2015 recommendation for approval and the Planning Commission’s subsequent approval. The project broke ground in the spring of 2017.

Taking Exception: How Unusual Are Unusual Circumstances?

Procedurally, Class 32 exemptions require a fraction of the process prescribed for standard CEQA review, with no required public review period, specific CEQA documents, or mitigation. Exceptions to the exemptions, however, add back in a measure of consideration to the process. (CEQA Guidelines, § 15300.2, subds. (b), (c)–(f).) Under these exceptions, the infill exemption cannot be used if the project would cause cumulatively significant impacts, impact scenic highways or historical resources, involve hazardous waste, or are subject to “unusual circumstances.” While these four exemptions lend themselves to relatively straightforward interpretation and have been largely uncontroversial, the “unusual circumstances” exception has been the subject of much litigation.

The “unusual circumstances” exception precludes the use of any categorical exemption when there is a “reasonable possibility” that the project “will have a significant effect on the environment due to unusual circumstances.” (CEQA Guidelines, § 15300.2 (c.).) In reviewing a lead agency’s determination as to whether the exemption applies and if the effects will be significant, the Supreme Court has applied a two-prong test wherein an agency must answer: (1) are there unusual circumstances? And if so, (2) would these unusual circumstances create a potential for significant impact? Further complicating the issue is the bifurcation of the standard of review that applies the “substantial evidence” standard to the first prong of the test and the “fair argument” standard to the second. Under the more deferential first prong, an agency may base its decision on substantial evidence, including conditions in the vicinity of the project. If it determines there is an “unusual circumstance,” then the “fair argument” standard requires an EIR when it can be fairly argued based on substantial evidence that “due to” the unusual circumstances of the project, it may have a significant effect on the environment. Both standards require substantial evidence in the record. And the question of whether a project qualifies for the Class 32 exemption in the first instance is subject to the more deferential “substantial evidence” threshold. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1114).

Given the above, a prudent agency using a Class 32 exemption should document its determination of whether any “unusual circumstances” are present and resulting potential significant effects (or presumably, the lack thereof) with applicable land use documents (zoning maps, general plans, etc.) and if warranted, some standard preliminary technical analysis (traffic, biology, noise, etc.). With these components on the record, as in the Oakland example, in conjunction with the issuance of an NOE, the outcome of legal challenges should be more favorable for cities and developers.

Conclusion

Although litigation for Class 32 exemption projects is always a possibility for development projects, with fulfillment of applicable CEQA criteria and requirements, agencies would be wise to consider the Class 32 exemption. Based on judicial trends, this exemption may be more likely to survive a legal challenge than a negative declaration at least in some jurisdictions. If these trends continue, over time challenges to these exemptions could even quieted by case law that supports agency discretion with the use of the Class 32 CEQA infill exemption, making it an increasingly viable option for agencies to speed up the development of much needed infill housing and other urban projects.

By: Casey Shorrock Smith

Air District Board’s Tie Vote on Authority to Construct Permit Is Effectively a Decision Not to Revoke It, Which Is Reviewable for Prejudicial Abuse of Discretion

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On June 14, 2017, Division One of the First Appellate District published its decision in Grist Creek Aggregates, LLC v. The Superior Court of Mendocino County (2017) 12 Cal.App.5th­­­ 979, in which the Court of Appeal held that a county air district board’s tie vote on the petitioner’s administrative appeal of an asphalt production facility’s construction permit, effectively resulted in the appeal’s denial, rendering the denial subject to judicial review.

The appellate court’s decision is the latest in a series of environmental and administrative challenges arising from Grist Creek Aggregate’s construction and operation of an asphalt facility in Mendocino County. At issue here, in November 2015, the Mendocino County Air Quality Management District issued an authority to construct permit (ATC) to Grist Creek Aggregates to build a facility to heat and blend rubber. Friends of Outlet Creek, the petitioner in the related suits, appealed the ATC decision to the District’s five-member Hearing Board. After recusal of one of the Board’s members, the remaining four members were locked in a tie vote. Because it was unable to reach a decision, the Board determined not to hold any further hearings on the appeal. Thus, the ATC remained in place.

Friends filed suit, alleging that the Air District and the Hearing Board violated CEQA in not conducting environmental review for the ATC, and violated the District’s own regulations. The Hearing Board demurred on the ground that because the tie vote was tantamount to no action, there was no agency decision for the court to review. Grist Creek Aggregates also demurred, arguing that Friends could not sue directly under CEQA and had failed to exhaust its administrative remedies. The trial court sustained the Board’s demurrer with leave to amend and overruled Grist Creek’s demurrer, both on the basis that the tie vote was not a Board “decision,” and therefore, there was nothing for the court to review. In the interim, the Board added a fifth member. The trial court noted this, but failed to order that the new Board rehear the ATC permit appeal. Grist Creek filed a writ of mandate in the Court of Appeal seeking to require the trial court to vacate all of its demurrer rulings.

The Court of Appeal granted Grist Creek’s petition. The court first noted that the trial court’s decision was internally inconsistent. The Board was under no obligation to hold another hearing on the appeal, and in fact indicated to opposing counsel that they would not do so. Coupled with the trial court’s conclusion that the tie vote meant that Friends did not have a cause of action, it was unclear how the trial court envisioned that Friend’s writ petition could be cured by amendment.

As the purpose and meaning of a tie vote, the Court of Appeal explained there are two criteria for the Board to reach a decision: a quorum of voting members and a majority decision by those voting members. The Board had a quorum (four voting members out of five) but they failed to reach a majority decision. It does not follow from this result that there is nothing for a trial court to review, since the gravamen of Friends’ petition was a challenge to the District’s underlying approval of the ATC and the Board’s failure to revoke it.

In reaching this decision, the court emphasized that the meaning of tie votes in administrative proceedings must be viewed in context. The trial court erroneously oversimplified precedent in its finding that a tie vote of an administrative action agency always results in no action. A deeper analysis of the relevant case law demonstrates that a tie vote can mean that the petitioner is entitled to a different remedy—a return to status quo ante, a new hearing, or setting aside the agency decision—not that the agency has not acted.

Viewing the tie vote in context, the Board’s action here was the equivalent of allowing the ATC to stand, which is effectively a decision not to revoke it. That decision was ripe for judicial review under the prejudicial abuse of discretion standard of Code of Civil Procedure section 1094.5.

City’s Decision to Deny Mitigated Negative Declaration Upheld For Small San Diego Subdivision

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On May 23, 2017, the Fourth District Court of Appeal court ordered published Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034. In a succinct opinion, the court upheld the city’s decision to deny a mitigated negative declaration (MND), initially approved by the planning commission, regarding an application to subdivide two hillside lots and build three residences.

The court emphasized that the standard of review was deferential to the city, and limited to determining whether the city’s findings were supported by substantial evidence. The court interpreted this standard by stating that plaintiff could only prevail if she could demonstrate that no reasonable municipality could have reached the same decision as the city.

Under this standard of review, the court determined that the city presented substantial evidence in the record to support its finding that impacts to land use, geology, and public safety would be detrimental and inadequately mitigated. Flaws and omissions in the project’s geotechnical report cast doubt on the report’s conclusion that homes could be built safely on the steep sandstone hillside. Furthermore, the slope of the shared driveway would not permit access by firetrucks and potentially other emergency response vehicles. Proposed mitigation measures (sprinkler systems and standpipes) were inadequate to mitigate all of these risks.

Regarding the project’s consistency with the community plan, the city properly considered the opinions of neighbors, who stated that the project’s dense development with minimal setbacks was incompatible with the large lot, single-family residential character of the area. Finally, the project was properly rejected under city ordinances, which provide for deviations from the development regulations for qualified sustainable building projects, if the deviations result in a more desirable project. For similar reasons as to why the project was rejected under the community plan and CEQA, the deviations requested here (smaller setbacks, no frontage, and higher walls) would not make the project more desirable.

Use It or Lose It? CEQA’s Bicycle Transportation Exemptions and Legislative Efforts to Preserve Them

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CEQA and the Guidelines’ statutory and categorical exemptions streamline the environmental review process, and can play a key role in project planning and development. The philosophical underpinning of many exemptions is that the environmental impacts for some types of projects are known to be less-than-significant and the public would benefit from having them expeditiously implemented.

Public Resources Code sections 21080.2 and 21080.20.5 typify this philosophy. Comprised of two bills, A.B. 417 and A.B. 2245 (chaptered together as Stats.2013 Chapter 613), they created exemptions for bicycle transportation plans and certain bicycle projects. However, Chapter 613 will sunset in 2018, unless the Legislature acts. Assembly Bill 1218 (2016–2017) seeks to preserve the exemptions. However, Chapter 613 has been underutilized, in favor of older, more time-tested categorical and statutory exemptions. This underutilization may influence the Legislature’s decision whether to extend the sunset provision, remove it, or allow Chapter 613 to simply expire.

Legislative History of Chapter 613: “One petitioner had the power to delay something good from happening for several years.”

The published legislative history of Chapter 613 reflects that it was passed in reaction to a lengthy and expensive CEQA suit against the City and County of San Francisco. In 2005, the San Francisco Board of Supervisors adopted a bicycle transportation plan (Plan). The Plan’s purpose was to promote bicycle transportation and create safe, interconnected routes throughout the city. It called for upgrades to bicycle infrastructure, including separated lanes, painted lanes, and bike parking. It sought to reduce risks to cyclists, pedestrians, and motorists in areas where the data reflected frequent bicycle-involved collisions. In June 2005 the San Francisco County Transportation Authority Commission adopted the Network Improvement Document (Document), a five-year plan to fund and implement the Plan. Believing that there was no possibility that the Plan could have a significant effect on the environment, the agencies proceeded under the “common sense” exemption of CEQA Guidelines, section 15061. (See generally Assem. Com. on Natural Resources, Analysis of Assem. Bill No. 417, (2013–2014 Reg. Sess.).)

A CEQA petition followed, spearheaded by an individual, Rob Anderson. The petition alleged that the Plan and Document together formed a “project” under CEQA, that there was a legitimate question that the project could have an effect on the environment, and that environmental review should be conducted. It took nearly two years for the court to rule in Anderson’s favor, and ultimately enjoin the city proceeding, pending compliance with CEQA. Subsequently, the city prepared a draft EIR in 2008. The EIR was finalized, certified, and a Notice of Determination posted in August 2009. Anderson immediately appealed, alleging deficiencies in the EIR. A year later, in August 2010, the court ruled in favor of the city, upholding the EIR. (Ibid.). In short, it took five years to travel from Plan adoption to implementation. When one considers that the Plan and Document themselves likely took years to draft, the planning and implementation horizon for implementing upgrades to urban bikes lanes spanned close to a decade – half of which was spent in CEQA litigation.

Summarizing public frustration, a legislator noted that “one petitioner had the power to delay something good from happening for several years.” (Senate Rules Comm. Analysis of A.B. 416 (2013–2014 Reg. Sess.), p. 4).

To prevent the San Francisco scenario from repeating throughout the state, the Legislature passed Chapter 613. The legislation garnered overwhelming support from both houses – passing unanimously in the Senate and with only three no votes in the Assembly.

Chapter 613’s Provisions and Underutilization

Chapter 613 seemingly strikes a careful balance between the benefits of environmental review and the public interest in promoting bicycle transportation, by exempting qualified bicycle transportation plans from CEQA (§ 21080.20), but only exempting one limited class of bicycle project (§ 21080.20.5.)

Regarding bike plans, Public Resources Code section 21080.20 states that CEQA does not apply to bicycle transportation plans, as defined. To qualify for the exemption, the plan must be prepared pursuant to the Streets and Highways Code section 891.2; be situated in an urban area; and relate to bicycle transportation. The exemption expressly includes plans that have provisions for the restriping of roadways for bike lanes, bicycle parking and storage, signal timing, and related signage.

For bike projects, Public Resources Code section 21080.20.5 only explicitly exempts highway restriping for bike lanes, done pursuant to a bicycle transportation plan. Presumably, other projects implemented under bicycle transportation plans are not exempt.

Under both sections, the lead agency must hold public hearings, solicit input from local residents, and prepare an assessment of the plan or restriping project’s and traffic and safety impacts, including mitigation measures. If the project or plan is approved, the government must file notice with the state and county clerk. Because traffic and safety impacts were the focus in the San Francisco litigation, by mandating disclosure and mitigation measures the exemption directly and proactively addresses the key concerns that a CEQA environmental review process, or lawsuit, would raise. And by only exempting restriping, projects that are more likely to negatively impact the environment are still required to complete an environmental review process.

Despite the promise of Chapter 613, according to OPR data cited by the Natural Resources Committee in its analysis, the bike plan provision it has never been used, and the bike lane project provision has only been utilized three times. (Comm. Analysis, supra., pp. 3–4.) All three times were by the City of Los Angeles, the provision’s original proponent. (It is worth noting that bill’s author statement cites a different statistic, and states that 17 bike projects have utilized the exemptions, although it is not clear if the bill’s author is referring to Chapter 613, or all of CEQA’s exemptions that have been applied to bike projects. (Id. at p. 4.) The underutilization of the exemption is significant for two reasons: 1) five years after passage, it is uncertain as to how it would be applied by local government and interpreted by the courts; and 2) given its lack of use, begs the question of whether the community considers the exemptions to be necessary or if agency staff are aware of or feel encouraged to use them.

A New Hope? A.B. 1218

Chapter 613 will sunset on January 1, 2018. There is legislative momentum in continuing the exemptions, through A.B. 1218. At issue is whether to: renew the exemptions, but strike the sunset provision; to extend the sunset provision for another term; or allow Chapter 613 to sunset, citing its underutilization.

As originally drafted, A.B. 1218 would have removed the sunset provision entirely, and allowed the law to be codified permanently. However, the current version (as of May 2017, amended in Assembly) preserves the exemptions, but only until 2021. The Assembly Natural Resources Committee addressed this issue in its March 30, 2017 Committee Analysis, citing the exemption’s potential utility, but lack of actual use, and recommending that the bill be amended to sunset in 2021.

The Committee seemed to imply that underutilization does not evince a lack of interest in bicycle plans or projects. Rather, government entities have been relying on other, more “established and frequently used categorical exemptions” in CEQA and the Guidelines. CEQA section 21080.19, passed in 1984, exempts projects that restripe streets to relieve traffic congestion. The Committee notes that the CEQA Guidelines have two applicable categorical exemptions: Guidelines section 15301(c), the Class 1 exemption, for development of existing facilities, where there is negligible expansion of an existing use, which specifically includes existing bicycle trails; and Guidelines section 15304 (h), the Class 4 exemption, for minor alternations to land that do not involve removing mature and scenic trees, and specifically includes the creation of bicycle lanes on existing roadways.

A.B. 1281 passed the Assembly in May 2017, and given its overwhelming support in the Senate in 2013, is likely to pass muster there, too.

Conclusion

Within weeks of the court upholding San Francisco’s bike transportation EIR, bike lanes began sprouting up around the city. Areas that had never had bike lanes became connected to established routes. Established routes on prominent streets, many of which were identified as high collision risks in the Plan, were widened, separated, or re-routed to increase safety. Cal. Bike, an advocacy organization, and SFMTA state that bike usage in San Francisco has increased 10% since 2013. Whether one enjoys cycling or not, this infrastructure is heavily utilized, and cycling is becoming an increasingly important segment of our urban transportation mix. Yet, despite the increase in popularity of urban cycling, the future vitality of the bicycle lane exemptions remain in doubt. Supporters of the exemptions should take heed of the Committee Analysis, and be on notice that may face challenges in the Legislature in 2021 if Chapter 613’s muscle does not start getting flexed on the local level.

First District Applies Fair Argument Standard of Review to Addendum to Negative Declaration on Remand from Supreme Court in Friends of the College of San Mateo Gardens

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On remand from the Supreme Court’s holding in Friends of the College of San Mateo Gardens v. San Mateo County Community College (2016) 1 Cal.5th 926 (San Mateo I ), the First District interpreted the Supreme Court’s direction as requiring the application of the fair argument standard of review to claims challenging an addendum to a negative declaration in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal. App.5th 596.

The Supreme Court’s holding in San Mateo I

The San Mateo cases concern the San Mateo County Community College District’s campus renovation project, approved with a mitigated negative declaration (MND) in 2006. In 2011, the College decided to demolish an area of the campus (the Building 20 Complex) that was planned for renovation under the 2006 plan, and construct a parking lot in its place. The updated plan was analyzed in an addendum to the 2006 MND. The suit in San Mateo I followed, with the petitioner alleging that the updated plan was a “new project” under CEQA, and not a modified project subject to CEQA’s subsequent review provisions (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162.). Both the trial court and the First District held that it was a new project, and therefore, the District was not entitled to rely on an addendum.

The Supreme Court reversed, noting first that the proper inquiry under CEQA was not whether or not a project is new or modified, but whether or not the initial environmental document retains informational value in light of the proposed modifications, or if it had become irrelevant.  This is a factual determination to be made by the agency and reviewed for substantial evidence.

If the agency’s decision to proceed under CEQA’s subsequent review provisions is supported by substantial evidence, a court may consider the type of subsequent document prepared by the agency. The standard of review applied by the court in reviewing that decision turns on the nature of the original documents. The agency must first determine if there are substantial changes to the project that require “major revisions” in the original environmental analysis. This determination is reviewed for substantial evidence. When the project was previously reviewed in an EIR, there are no “major revisions” if the initial EIR has already adequately addressed any additional environmental effects expected to result from the proposed modifications. In contrast, when a project is initially approved with a negative declaration, a “major revision” to the negative declaration will necessarily be required if the proposed modification may produce a new or previously unstudied significant environmental effect. If there is no major revision required, the agency can issue a subsequent mitigated negative declaration, addendum, or no further documentation.

Application in San Mateo II

The court applied the two-part test of San Mateo I to the College’s decision to rely on an addendum to the 2006 MND. First, the court conceded that the agency determination—that the MND retained informational value in light of the revised campus plan—was supported by substantial evidence. It retained informational value because the revised plan considered in the addendum did not affect plans to demolish 14 buildings cited in the original plan. The revised plan added one more building complex to the demolish list, but the College had previously removed two others, deciding to renovate them instead. The mitigation measures adopted with the original plan remained in place.

Applying the second prong of the Supreme Court’s test, however, the court held that the College violated CEQA’s subsequent review provisions by preparing an addendum to the MND, because the removal of gardens in the Building 20 Complex could result in a significant aesthetic impact, under the fair argument standard of review.

Interpreting this second prong of the San Mateo I test, the San Mateo II court stated that when the initial environmental review document is an negative declaration, the court must apply the more exacting standard applicable to negative declarations—whether there is substantial evidence to support a fair argument that the proposed changes to the project might have a significant effect on the environment. The court acknowledged that aesthetic impacts are necessarily subjective, but agreed with the petitioner that substantial evidence of a fair argument could be found in the opinions based on direct observation. The impact is not determined by the size of the area, but measured in light of the context in which it occurs, and this can vary by setting.

Here, the court relied on the opinions of campus employees and students regarding the garden’s aesthetic value and quality. Although not a significant portion of the campus’ open space (less than one-third of one percent), the garden’s vegetation and landscaping were alleged by its admirers to be unique. The garden’s social value as a gathering space was also considered. Because the court determined that this lay testimony qualified as substantial evidence to support a fair argument of a potentially significant aesthetic impact, the College’s decision to rely on an addendum violated CEQA’s subsequent review provisions, as an addendum is only appropriate if there are no new or more severe significant impacts than were previously analyzed.  However, the court declined to order the preparation of an EIR, stating that the College could choose to prepare a subsequent MND if the impacts to the garden could be mitigated to a less-than-significant level.

First District Rules That Issuing Erosion-Control Permit Under Sonoma County Ordinance Was Ministerial Act Exempt From CEQA

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On April 21, 2017, the First District Court of Appeal in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, affirmed the trial court and ruled that Sonoma County’s ordinance, issuing an erosion-control permit to establish a vineyard was a ministerial act, not subject to CEQA.

Sonoma County allows for the development or replanting of commercial vineyards, subject to issuance of an erosion-control permit from the County Agricultural Commissioner. In December 2013, the commissioner issued a permit to the Ohlson Ranch to establish a 108-acre vineyard. Several months later, the commissioner issued a notice of exemption indicating that issuance of the permit was ministerial and therefore did not require environmental review. The Sierra Club and Center for Biological Diversity filed suit challenging the commissioner’s determination and the trial court denied the petition.

The Court of Appeal upheld the trial court’s decision that the county’s determination was ministerial and the approval was exempt from CEQA. In determining whether granting the permit was ministerial, the court applied the “functional distinction” test from Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259. Under Friends of Westwood, an action is ministerial when the agency does not have the power to deny or condition the permit, or otherwise modify the project, in ways which can mitigate the environmental impacts identified in an EIR.

The court was unpersuaded by the petitioners’ key argument—that the ordinance’s terms were broad and vague, and therefore the entire permit process conferred discretion on the county. In reaching this decision, the court emphasized that CEQA analysis is project-specific. That discretion could conceivably be exercised in one project does not mean that the particular project at issue was discretionary. Here, many of the terms and conditions in the ordinance that may have conferred discretion to the county did not apply to the Ohlson Ranch permit application, because they were factually inapplicable; expressly excluded from consideration by the commissioner with regard to this project; or there was no evidence in the record to suggest that they played any role in issuing the permit.

Second, even where some of the applicable provisions could have conferred discretion on the commissioner, under the functional distinction test, the county could not have modified the project or denied the permit to mitigate the environmental impacts. Rather, county decision-making was guided by nearly 50 pages of technical guidance documents. A required wetland setback conferred discretion only to the extent that the distance of the setback would be determined by the biologist’s report, but did not confer discretion on the agency to modify the biologist’s recommendations. A requirement to divert storm water to the nearest “practicable” disposal location was similarly ministerial, in that the permit application provided a means of water diversion, and petitioner failed to establish that other diversion methods were even available. If other methods had been available, it may have granted discretion to the commissioner to select an option or otherwise mitigate impacts.  The petitioners’ reliance on a provision to incorporate natural drainage features “whenever possible” was flawed for the same reasons, as petitioners failed to identify the types of features present on the site and the commissioner’s ability to choose the least environmentally significant option.

Third, the court declined to hold that issuing a permit, an otherwise ministerial act, becomes discretionary because the applicant “offers” to mitigate potential impacts. The ordinance does not require mitigation measures and the commissioner has no authority to condition granting the permit application on them.

Similarly, the commissioner’s request for corrections and clarifications on the permit application did not demonstrate discretion, but rather was a simple request for information in order to complete an otherwise non-discretionary act. These corrections and clarifications were not significant enough to have alleviated any adverse environmental consequences.

Fifth District Rules CARB Acted in Bad Faith in Selecting Baseline for Analysis of Low Carbon Fuel Standards Regulations

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In POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (“POET II”), the Fifth District Court of Appeal held that the California Air Resources Board (CARB) failed to comply with the terms of the writ of mandate issued by the same court in POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681 (“POET I”). The court invalidated the trial court’s discharge of the writ, modified the existing writ, and ordered CARB to correct its defective CEQA Environmental Analysis (EA).

Legal and Factual Background
CARB promulgated low carbon fuel standards (LCFS) in 2009 as required by the 2006 California Global Warming Solutions Act (“AB 32”). In promulgating the LCFS, CARB adopted an EA, the regulatory equivalent to an Environmental Impact Report, pursuant to CEQA. Those original regulations and the associated EA were the subject of litigation in POET I, where the Fifth District found that the EA violated CEQA by impermissibly deferring analysis of nitrous oxide (NOx) emissions from biodiesel fuel. The appellate court took the acknowledged “unusual” step of allowing the regulations to remain in effect, pending satisfaction of a writ of mandate (“2014 writ”).

In 2015, in response to the court’s ruling in POET I, CARB produced an updated EA, updated LCFS regulations (2015 regulations), and alternative diesel fuel regulations (ADF regulations). The EA analyzed the project using a 2014 baseline and determined that the regulations would not have significant impacts related to NOx emissions. On the return to the writ, the trial court sided with CARB and discharged the 2014 writ. This appeal followed.

Court’s Analysis
The Court of Appeal applied the abuse of discretion standard to its analysis of whether the lower court’s discharge of the 2014 writ was proper. The court concluded that CARB continued to violate CEQA and the 2014 writ by selecting a 2014 project baseline. The court explained that a normal existing-conditions baseline begins when the project commences and must include all related project activities. In addition, a regulatory scheme is a “project” under CEQA and includes all enactment, implementation, and enforcement activities. Here, the original regulations, 2015 regulations, and ADF regulations were related activities because they concerned the same subject matter, had a shared objective, covered the same geographic area, and were temporally connected.

Thus, by selecting 2014 as the baseline, the court found that the EA failed to consider how the original regulations, which remained in effect during and after POET I, encouraged and increased the use of biodiesel fuel and its effect on NOx emissions. According to the court, selecting such a limited baseline was not even “objectively reasonable” from the point of view of an attorney familiar with CEQA and the Guidelines. In addition, the court found that the flawed CEQA analysis was prejudicial because it deprived the public of a meaningful opportunity to review the effect of the agency’s actions on the environment.

Remedy
On remand, the court ordered that CARB review its project baseline. While declining to require a specific baseline date, CARB was instructed to select a “normal” baseline consistent with the court’s analysis and in any event, to not select a baseline date of 2010 or after. The court implied that the baseline could even have begun in calendar year 2006, consistent with then-Governor Schwarzenegger’s 2007 mandate to the agency to review fuel emissions.

The parties agreed that the ADF regulations were both severable and independently enforceable from the 2015 regulations. The court found that the 2015 regulations were also severable from the remainder of the LCFS regulations because, though more effective in their entirety, the remaining regulations would be complete and retain utility. Ultimately though, like in POET I, the court concluded that, on balance, suspending the regulations would cause more environmental harm than allowing them to remain.

Thus, the court reversed the order discharging the writ and ordered the superior court to modify the writ to compel CARB to amend its analysis of NOx emissions and freeze the existing regulations as they relate to diesel and its substitutes. In addition, the court ordered the superior court to retain jurisdiction, and to require CARB to “proceed diligently, reasonably and in subjective good faith.” Finally, the court ordered that if CARB fails to proceed in this manner, the superior court shall immediately vacate the portion of the writ preserving the existing regulations, and may impose additional sanctions.

 

Fourth District Upholds EIR for Master-Planned Community and Concludes That County Not Required to Recirculate

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On March 15, 2017 the Fourth District certified for publication its February 4, 2017 decision in Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, upholding the EIR for a master- planned community (project). A citizens group challenged the sufficiency of the EIR and the county’s approval process on six grounds. The court found for the county and real party in interest, Hanna Marital Trust (applicant), on every count.

The project proposes a master-planned community with seven planning areas containing medium-density residential housing, mixed uses, commercial retail, and dedicated open space on 200 acres of undeveloped land in Riverside County. Planning area 6, the mixed use area, was analyzed as potentially providing for the development of a Continuing Care Retirement Community (CCRC) for seniors.

On July 28, 2011, the County Planning Department released a Draft EIR (DEIR). The DEIR stated that mitigation measures would reduce the environmental impacts to a below significant level, except for air quality and noise. During the public comment period, the South Coast Air Quality Management District (SCAQMD) and the City of Temecula raised concerns about the project’s air quality impacts. The final EIR (FEIR) was released in January 2012 and included responses to SCAQMD’s and Temecula’s comments. The FEIR reflected changes in the location of some project elements, but was “in its basics identical” with the project as described in the DEIR.

The Planning Commission reviewed the FEIR in April 2012 and suggested revisions, which were subsequently presented to the Commission in October 2012. The Commission recommended approval of the FEIR and the Project to the Board of Supervisors. The Board reviewed the FEIR at its December 11, 2012 meeting, where it considered some modifications to the project and Residents Against Specific Plan 380 (petitioners) suggested additional noise mitigation measures. At its December 18, 2012 meeting, the Board tentatively approved the FEIR, contingent on finalization of the modifications. On November 5, 2013, the Board approved the finalized FEIR, general plan amendment, zone change, and Specific Plan 380. The EIR resolution included findings of fact, a mitigation monitoring and reporting plan, and a statement of overriding considerations. The same day, the county clerk posted a Notice of Determination (NOD) that erroneously used an out-of-date project description.

On November 18, 2013, petitioners filed a petition for a writ of mandate, which was denied by the trial court. This appeal followed.

First, the Fourth District concluded that the Board did not substantially modify the EIR after approving it. Because the Board only tentatively approved the project in December 2012, the final approval in November 2013 reflected the Plan’s modifications. Similarly, the court disagreed with the petitioners’ argument that the findings, statement of overriding considerations, and mitigation plan were not timely and concurrently approved.

Second, the court concluded that the NOD substantially complied with the informational requirements of CEQA, despite its project description errors. The court also noted that the petitioners could not show that the errors were prejudicial because they filed the suit well before the statute of limitations had run.

Third, the court held that the changes made by the Commission and Board were not significant enough to require recirculation of the EIR. In reaching its determination, the court relied on CEQA Guidelines § 15088.5, subd. (a), stating that a lead agency must recirculate an EIR when significant new information is added that reveals a substantially new or increased impact. The court rejected the petitioners’ argument of increased traffic impacts, holding that only traffic patterns would be affected, not intensity. The court also rejected the petitioners’ contention that increased biological impacts would result from moving the mixed-use area further north, as the open space region was already adjacent to it. Petitioners’ argument of increased noise impacts was contradicted by the county’s expert. Finally, the petitioners failed to substantiate their claim of potential land use inconsistencies. Therefore, the County had an adequate basis for not recirculating the EIR. Petitioners’ reliance on Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412 and Save our Peninsula Committee v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99 were inapposite, as the EIR did not reveal facially significant new impacts nor areas necessitating further factual development.

Fourth, the court concluded that the EIR adequately analyzed the impacts of the mixed-use area under the rubric of a proposed CCRC. Petitioners alleged that by analyzing only a CCRC, and not other potentially higher impact uses, the EIR’s analysis of the mixed-use planning area was improperly narrow in scope. The court rejected this argument because substantial evidence supported the County’s decision to limit the scope of the analysis to a CCRC. Even if the applicant did not build a CCRC, the project plan restricted the applicant to other permitted uses in the planning area, and only if they would not incur additional environmental impacts. Nor, the court stated, does CEQA require the county to analyze what are merely possible development schemes.

Finally, the court ruled that the EIR adequately considered the specific suggestions for mitigating the project’s air quality and noise impacts from SCAQMD, Temecula, and the petitioners. Regarding mitigation for air emission impacts proposed by SCAQMD and Temecula, the county could justify why the measures were not adopted, why they were infeasible given the project’s timeline and parameters, or why they were duplicative with measures already adopted. SCAQMD’s proposal to utilize lower emission vehicles did not reflect the construction equipment anticipated to be reasonably available. Temecula’s suggestion of applying the 2010 Energy Code was duplicative of the requirement to exceed the 2008 Code emission standards by 15%, and the code in force at the time of construction would control in any event. Furthermore, the county was not required to adopt the specific prescriptive emission reduction measures in the Green Building Standards Code, but could opt for performance-based standards that are less likely to incur enforcement and enforceability issues. With respect to the additional noise mitigation measures proposed by the petitioners, these were found to be untimely raised more than a year after the comment period had closed. Therefore, the county was not obligated to respond. Moreover, the county was justified in not adopting these noise mitigation measures because they require electric construction equipment that may not be available or may duplicate existing requirements.

 

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