Author Archives: Nathan George

California Supreme Court Denies Review of Golden Door Case, Appellate Opinion Stands

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California Supreme Court Denies Review of Golden Door Case, Appellate Opinion Stands

On November 10, 2020, the California Supreme Court denied review of Golden Door Properties, LLC v. S.C. (County of San Diego) (Nov. 10, 2020, No. S264324), allowing the appellate court’s opinion to stand.  The Court of Appeal for the Fourth District held that Public Resources Code section 21167.6 requires the lead agency to retain “‘all written evidence or correspondence submitted to, or transferred from’ the public agency with respect to the project . . . .” This includes “‘all internal agency communications, including staff notes and memoranda’ related to the project.” Agencies shall not destroy such “official records” encompassed within section 21167.6, subdivision (e), even if permitted to under its own policies. (Read the in-depth summary of the Court of Appeal’s opinion here: https://www.rmmenvirolaw.com/fourth-district-holds-that-agencies-may-not-destroy-but-rather-must-retain-all-writings-required-by-ceqas-administrative-record-statute/).

Trump Administration Promulgates New NEPA Regulations

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Trump Administration Promulgates New NEPA Regulations

On July 15, 2020, the Council on Environmental Quality (CEQ) released the final rule to update its regulations of the National Environmental Policy Act (NEPA), marking the first update in over 40 years. These changes, promulgated by the Trump administration, purport to clarify existing regulations, and streamline the NEPA review process by facilitating inter-agency cooperation. In an effort to speed up agency action, the new regulations emphasize the use of categorical exemptions (CEs) and findings of no significant impact (FONSIs) wherever possible, in part by requiring agencies to amend their policies to create new CEs. These efficiency gains come at the expense of public participation in the environmental review process and the scope and depth of required environmental impact analyses. The final rule became effective September 14, 2020.

Page Limits and Timeline Requirements

The new rules set specific time frames for document completion. Environmental impact statements (EIS) must be completed, and the record of decision signed, within two years from the date of the issuance of the notice of intent. Environmental assessments (EAs) must be completed and published, or the agency must make a finding of no significant impact, within one year from the date of the agency’s decision to prepare an EA. There are also now page limits for EISs of 150-300 pages, depending on their complexity. (40 C.F.R. § 1502.7 (2020).) These limits do not include graphical information and can be waived via written authorization by a senior official of the lead agency. (§§ 1502.7, 1508.1(v).) EAs are restricted to a maximum of 75 pages, not including appendices, without written approval by a senior agency official. (§ 1501.5(f).) The new regulations also no longer require agencies to engage in new studies or research for environmental analyses, further indicating an intent to simplify the environmental review process. (§ 1502.23).

Lead agencies are now required to “develop a schedule, setting milestones for all environmental reviews and authorizations required for implementation of the action . . . .” (40 C.F.R. § 1501.7(i).) If a milestone might be missed, responsible agencies are required to report the issue to the appropriate officials for a timely resolution. (§ 1501.7(j).) CEQ has not specified any procedural requirements for implementing a “timely resolution.” These limitations are intended to simplify environmental analyses and shorten the time required to complete the NEPA review process.

“Direct and Indirect Effects” and “Cumulative Impacts” Eliminated

The new regulations eliminate the distinction between “direct” and “indirect” effects, and replace these classifications with a general definition of “effects or impacts” as “changes to the human environment    . . . that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives . . . .” (40 C.F.R. § 1508.1(g).) “Reasonably foreseeable” is defined as “sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision.” (§ 1508.1(aa).) Therefore, there must be more than “[a] ‘but for’ causal relationship . . . to make an agency responsible for a particular effect . . .” and trigger environmental review under NEPA. (§ 1508.1 (g)(2).) “Cumulative impacts” have also been eliminated from NEPA regulations, which means that analyses of project impacts in the context of other actions are no longer required. These classification changes indicate that federal agencies would not be compelled to consider global impacts of projects, such as potential effects on climate change. This sentiment is further evidenced by the requirement that agencies should consider only “the affected area (national, regional, or local) and its resources,” and, “in the case of site-specific action, significance would usually depend only upon the effects in the local area” and a change in the definition of “Human environment” to replace “people” with “Americans.” (§§ 1501.3(b)(1), 1508.1(m), italics added.)

NEPA Exemptions

Agencies are required to update their NEPA procedures to make them consistent with the new regulations, primarily by making the procedures more efficient. (40 C.F.R. § 1507.3(c).) CEQ has set a timeline for agencies to make their procedures consistent with the regulations. (§ 1507.3(b).) Updated agency procedures shall prioritize efficiency and include procedural requirements to satisfy these timelines. (§ 1507.3(c).)

To ensure the efficiency of these procedures, CEQ has codified several actions that are explicitly not subject to NEPA, including (1) actions expressly exempt under another statute; (2) where compliance with NEPA would clearly and fundamentally conflict with another statutory requirement; (3) where compliance would be inconsistent with the Congressional intent of another statute; (4) non-major federal actions; (5) non-discretionary actions, in whole or in part; and (6) where the agency has determined another statute’s requirements serve functions of agency compliance. (40 C.F.R. § 1507.3(d).) Agency procedures must be updated to identify certain exempt activities, such as the examples CEQ has provided. (§ 1507.3(d).) Agencies will also need to identify which additional actions are exempt. Where agency procedures conflict with the regulations, the regulations control. (§ 1507.3(a).)

NEPA Thresholds

CEQ has added new NEPA thresholds that direct agencies to consider reasons why NEPA review might be unnecessary for a given action. These thresholds require consideration of (1) whether the proposed action is expressly exempt from NEPA under another statute; (2) whether compliance with NEPA would clearly and fundamentally conflict with the requirements of another statute; (3) whether compliance with NEPA would be inconsistent with Congressional intent expressed in another statute; (4) whether the proposed action is a major Federal action; (5) whether the proposed action, in whole or in part, is a non-discretionary action for which the agency lacks authority to consider environmental effects as part of its decision-making process; and (6) whether the proposed action is an action for which another statue’s requirements serve the function of agency compliance with the Act. (40 C.F.R. § 1501.1(a).) Federal agencies are permitted to make determinations based on these considerations in their agency procedures or on an individual basis. (§ 1501.1(b).)

“Major Federal Action” Redefined

NEPA is triggered when a federal agency engages in a “major federal action.” The new regulations define a “major federal action” as “an activity or decision subject to federal control and responsibility,” rather than actions subject to federal control with effects that might be significant. (40 C.F.R. § 1508.1(q), italics added.) This change means that whether environmental review is required depends on the extent of an agency’s actions or role in the project, rather than the magnitude of the potential environmental impacts posed by the project. Consequently, agencies will likely be afforded greater discretion in deciding what actions are considered “major,” and whether their involvement is limited enough to avoid NEPA review.

CEQ has also included a new list of activities that are not considered major federal actions, which gives agencies broad discretion to avoid NEPA. These exemptions include (1) extraterritorial activities with effects entirely outside the United States; (2) non-discretionary actions; (3) non-final agency actions; (4) judicial or administrative civil or criminal enforcement actions; (5) general revenue sharing funding assistance with no federal agency control over the use of funds; (6) certain loans or guarantees; and (7) non-federal projects with minimal federal funding or involvement. (40 C.F.R. § 1508.1(q).) “Minimal federal funding or involvement” is to be further defined by federal agencies in their NEPA procedures, but a specific monetary limit has not been established by CEQ.

Categorical Exclusions and Findings of No Significant Impact

The new regulations emphasize the issuance of categorical exclusions (CEs) and findings of no significance (FONSIs) wherever possible to increase efficiency and reduce excessive paperwork. (§ 1500.4.) FONSIs are issued when an action that is not otherwise categorically excluded will not have a significant impact on the environment and therefore does not require the preparation of an EIS. (§ 1508.1(k)(1).) CEQ clarified that an agency must prepare a FONSI if the agency determines a proposed action will not have significant effects. (§1501.6(a).)

CEQ has also broadened the definition of categorical exclusion to encourage agencies to issue exclusions. Actions that fall within a CE do not require an EIS or EA. CEs were historically granted for actions that do not individually or cumulatively have a significant effect on the human environment. Federal agencies are now required to update their procedures to identify CEs for actions that “normally do not have a significant effect on the human environment . . . .” (40 C.F.R. §§ 1501.4(a),1508.1(d), italics added.) Even if an activity involves extraordinary circumstances that would result in a significant impact, the new regulations allow agencies to rely on a CE if the effects can be mitigated. (§ 1501.4(b)(1).)

Additionally, an agency may adopt another agency’s decision to grant a CE to a proposed action if both agencies’ actions are substantially the same. (40 C.F.R. § 1506.3.) The regulations also now permit the adoption of prior EISs and EAs, rather than only EISs as previously drafted. Such adoption is permitted after a documented consultation between the agencies to ensure the use of the CE is appropriate, as well as disclosure to the public of the CE being used. (§ 1507.3 (e)(5).) These changes create more opportunities for a project to obtain a CE and consequently avoid in-depth environmental review.

Public Participation

While CEQ claims the new regulations facilitate public participation, the updated regulations diminish noticing requirements and increase substantive requirements for commenters. The new regulations eliminate the “Policy” provision that required agencies to encourage and facilitate public involvement in decisions that affect the quality of the human environment. (See 40 C.F.R. § 1500.2 (1978).) Further, CEQ has removed the provision stating that “NEPA procedures must [e]nsure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” (40 C.F.R. § 1500.1(a) (1978).) The scaling back of these requirements reflects a deemphasis on public participation in the environmental review process.

CEQ also removed the requirement that agencies give “notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor” and now permits such notice through publication in the Federal Register only. (40 C.F.R. § 1506.6 (b)(2) (2020).) While EISs, comments, and underlying documents are still available via the provisions of the Freedom of Information Act, the new regulations eliminate the requirement to make these materials publicly available without charge to the extent practicable. (§ 1506.6 (f).) CEQ also added a definition of “publish and publication,” which gives broad authority to agencies to determine which methods “efficiently and effectively make environmental documents and information available for review by interested persons   . . . .” (§ 1508.1(y).) Further, when deciding whether to hold public hearings and meetings, agencies no longer need to consider whether there is “[s]ubstantial environmental controversy concerning the proposed action or substantial interest” or requests “for a hearing by another agency with jurisdiction over the action . . . .” (40 C.F.R. § 1506.6(c) (1978).)

The time frame for making public comments has also been restricted. Under the new regulations, federal agencies may set a deadline for providing public comments on an EIS, rather than being required to allow comments for a specific number of days. Federal agencies are also not permitted to grant additional time to comment beyond the deadline. (40 C.F.R. §1503.1(b) (2020).)

Public commenters are required to “provide as much detail as necessary to meaningfully participate and fully inform the agency of the commenter’s position. Comments should explain why the issues raised are important to the consideration of potential environmental impacts and alternatives to the proposed action, as well as economic and employment impacts, and other impacts affecting the quality of the human environment. Comments should reference the corresponding section or page number of the draft environmental impact statement, propose scientific changes to those parts of the statement, where possible, and include or describe the data sources and methodologies supporting the proposed changes.” (40 C.F.R. § 1503.3(a).) Comments should also “be as specific as possible.” (§ 1503.3(b).).

Additionally, CEQ has made participation more burdensome by formalizing and arguably expanding the NEPA exhaustion requirement, including a requirement that commenters identify “any relevant information, studies, or analyses of any kind concerning impacts affecting the quality of the human environment” during the comment period. Comments, information, or objections not submitted by the comment deadline shall be forfeited as not exhausted. (40 C.F.R. § 1500.3(b)(3).) Timely comments will be included in a “summary of submitted alternatives, information, and analyses” section for the lead and cooperating agencies to consider in preparing the draft EIS, as well as published in the final EIS. (§ 1502.17.) An exhaustion requirement makes participation more burdensome, as it obligates commenters to identify all possible environmental issues at the outset of the review process or risk forfeiting those claims. These additional timing and substantive requirements will likely reduce the number of public comments received, as compliance with them requires greater expertise on the part of commenters.

Remedies

CEQ has emphasized that the new regulations do not expand a potential litigant’s options for suing an agency for NEPA violations. The new regulations “create no presumption that a violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm.” (40 C.F.R. § 1500.3(d).) Additionally, the regulations “do not create a cause of action or right of action for violation of NEPA, which contains no such cause of action or right of action.” (Ibid.) Further, “minor, nonsubstantive errors that have no effect on agency decision making shall be considered harmless and shall not invalidate an agency action.” (Ibid.) This last addition opens the door for agencies to argue that an identified error is minor because it would not have affected their decision.

Project Alternatives

The new regulations diminish consideration of project alternatives. The definition of “reasonable alternatives” no longer requires a detailed consideration of alternatives and much of the regulatory language has been softened. (40 C.F.R. §§ 1508.1(z), 1502.14.) The regulations also do not require a rigorous exploration of all reasonable alternatives to proposed actions, but instead encourage agencies to focus on a narrow range of alternatives based on the goals of the applicant and the agency’s authority. (§§ 1502.14, 1502.13.) For example, federal agencies do not need to consider reasonable alternatives outside of that agency’s jurisdiction. (§ 1502.14(c).) Finally, CEQ requires agencies to specifically limit the consideration of alternatives to a “reasonable number,” although CEQ has not set a maximum. (§ 150.2.14(f).) CEQ has therefore reduced federal agencies’ obligation to consider project alternatives that may reduce environmental impacts.

Weakened Oversight of Contractors and Applicants

CEQ has also relaxed oversight of non-agency contractors in EIS and EA preparation. Contractors no longer need to be approved or selected by a lead or cooperating agency before preparing the EIS or EA. Contractors and applicants also do not need to include privileged or confidential trade secrets or other confidential business information in their disclosure statements accompanying an EA or EIS, nor do they need to specify that they have no financial or other interest in the outcome of the project. (40 C.F.R. § 1506.5(b)(4).)

Interagency Collaboration

The new regulations promote interagency collaboration with federal, state, tribal, and local procedures, as well as joint documents to streamline the NEPA review process. In general, agencies are required “[t]o the maximum extent practicable, jointly issue environmental documents with the lead agency. (40 C.F.R. § 1501.8(b)(8).) “Engaging in interagency cooperation” while an EIS or EA is being prepared is now required, instead of just emphasized. (§ 1500.5(d).) Federal agencies are also required to coordinate “their environmental program websites, including use of shared databases or application programming interface . . . .” (§ 1507.4(b).) Federal, state, tribal, and local agencies are permitted to “jointly prepare or adopt environmental documents . . . .” (§§ 1500.4(p), 1500.5(j), 1501.7(b).) Where a proposal will require action by multiple federal agencies, the agencies must prepare a single EIS and issue a joint record of decision, or prepare a single EA and issue a joint finding of no significant impact, depending on the agencies’ determination. (§ 1501.7(g).)

General Language and Definition Changes

CEQ has included various definition changes that reflect a general relaxing of the regulations. For example, CEQ removed the definition of “significantly,” which required considerations of both context and intensity of potential environmental effects. This elimination diminishes the depth of environmental analysis required under NEPA. The new regulations also include subtle language modifications from “shall” to “should” or “may,” and “possible” to “practicable,” resulting in an overall weakening of NEPA requirements.

Additionally, CEQ has placed a greater emphasis on economic considerations in the NEPA review process. For example, the revised “[p]urpose and policy” section requires consideration of economic requirements of present and future generations. (40 C.F.R. § 1500.1.) Additionally, the environmental consequence section of an EIS must now include “economic and technical considerations, including the economic benefits of the proposed action.” (§ 1502.16.) While economic effects were always a factor in the NEPA review process, they are now a stricter and more prevalent requirement. For example, public comments are must now include an explanation of why the issues raised therein are important to economic and employment impacts. (§ 1503.3.) Economic impacts are also a required consideration for agencies when deciding whether to refer environmental objections on a matter to CEQ. (§ 1504.2(g).) Additionally, economic feasibility is mandatory for an alternative to be considered “reasonable,” where it was previously just one factor agencies could consider when comparing alternatives. (§§ 1505.2(a)(2), 1508.1(z).)

Implications

As a result of these new regulations, federal agencies will be required to develop or revise proposed NEPA procedures to implement the changes within a year of the effective date. (40 C.F.R. § 1507.3(b).) These procedures should have an emphasis on “efficiency.” (§ 1507.3(c).) Agencies’ proposed procedures will be subject to review by the public and by CEQ for conformity with NEPA and the new regulations. (§ 1507.3(a)(2).) Federal agencies are prohibited from imposing additional procedures or requirements beyond those delineated in the new regulations. (Ibid.) Agencies are also barred from relying on previous guidance that conflicts with the new regulations, except for existing agency CEs, which have been deemed by CEQ to be consistent with the regulations. (§§ 1506.7, 1507.3(a).) Ongoing activities and environmental documents that began before the effective date are permitted to rely on either the old or new regulations. (§ 1506.13.)

Veronika Morrison

Fourth District Reverses Dismissal, Holds Streets and Highway Code Does Not Exempt Caltrans Project from CEQA Review, and Petition Adequately Pled Equitable Estoppel

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In Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, the Fourth District Court of Appeal overturned the San Diego County Superior Court’s judgment sustaining the California Department of Transportation’s (Caltrans) demurrer and dismissal of Citizens for a Responsible Caltrans Decision’s (CRCD) petition for writ of mandate. The petition claimed Caltrans improperly exempted a highway interchange project from CEQA review and engaged in misconduct that precluded Petitioner from timely filing the action. The Court of Appeal found that Streets and Highway Code section 103 did not exempt the project from CEQA review, and the petition sufficiently plead facts about Caltrans’ misrepresentation of the review process to establish a factual dispute about whether Caltrans was equitably estopped from asserting the 35-day statute of limitations defense.

Background

In 2005, Caltrans filed a notice of preparation (NOP) for an EIR analyzing construction of two freeway interchange ramps that would connect the I-5 and SR 56 highways in San Diego (the I-5/SR56 Project). The I-5/SR56 Project was part of the larger North Coastal Corridor (NCC) project — a multi-project effort proposed by Caltrans and the San Diego Association of Governments (SANDAG) to improve transportation in the La Jolla and Oceanside area.

Streets and Highway Code section 103 went into effect in January 2012. The section provides the California Coastal Commission with integrated regulatory review of a “public works plan” (PWP) for NCC projects, rather than traditional project-by-project review and approval. Four months later, Caltrans circulated a Draft EIR for the I-5/SR56 Project. The Draft EIR explained that “following circulation of the FEIR, if the decision is made to approve the Project, a Notice of Determination (NOD) will be published for compliance with CEQA and a Record of Decision will be published for compliance with the National Environmental Policy Act (NEPA).”

In October 2013, Caltrans issued an FEIR for a separate NCC highway-widening project. The report explained that section 103 did not eliminate project-specific CEQA or NEPA review—rather, it provided the Coastal Commission with streamlined review. In 2014, Caltrans and SANDAG issued, and the Coastal Commission approved, the PWP for the 40-year NCC project. The PWP explained that it did not supplant CEQA, NEPA, or other regulatory review schemes for individual projects proposed under the NCC.

In June 2017, Caltrans released a Final EIR for the I-5/SR56 Project. The report reiterated that, if it approves the Project, the agency will publish a NOD to comply with CEQA and a Record of Decision to comply with NEPA. However, in contradiction to the language above, the Final EIR also added that the passage of section 103, together with Public Resources Code section 21080.5, “mandate that instead of being analyzed under CEQA, the [NCC Project] and all of the projects included therein, shall be addressed under the CCC’s review per its certified regulatory program.” The FEIR reasoned that because the I-5/SR56 Project was identified in the PWP, and the Coastal Commission approved it in 2013, CEQA review was no longer required.

Though Caltrans concluded CEQA no longer applied to the I-5/SR56 Project, it maintained that public disclosure of the Project’s impacts was “still desirable.” Therefore, it released the Final EIR to satisfy CEQA’s analytical and disclosure requirements, and provided the public with a 30-day review and comment period from July 14, 2017 to August 14, 2017. However, before this period commenced, Caltrans approved a “project report” for the I-5/SR56 Project on June 30, 2017, and filed a Notice of Exemption (NOE) on July 12, 2017. The NOE concluded that the Project was exempt from CEQA and its impacts were analyzed pursuant to the Coastal Commission’s certified regulatory program.

CRCD’s counsel first became aware of the NOE on September 28, 2017. After Caltrans refused CRCD’s request to rescind the NOE or agree to a 180-day statute of limitations, CRCD filed a petition for writ of mandate and declaratory relief 35 days later on November 1, 2017. Caltrans filed a demurrer to the petition and the trial court sustained it without leave to amend. The trial court entered a judgment dismissing the petition with prejudice. CRCD appealed.

The Court of Appeal’s Decision

The Fourth District reviewed the trial court’s decision denying CRCD leave to amend and sustaining Caltrans’ demurrer de novo, and considered: (1) whether Streets and Highway Code section 103 exempts the I-5/SR56 Project from CEQA review; and (2) whether CRCD’s petition sufficiently alleged facts showing Caltrans was equitably estopped from raising the 35-day statute of limitations. The Court treated Caltrans’ demurrer as having admitted all of the properly pled material facts in the petition. The Court stated that a demurrer brought on statute of limitations grounds will be overruled if the relevant facts do not clearly establish that the action is time-barred.

Section 103 Does Not Exempt Caltrans from Conducting CEQA Review of the I-5/SR56 Project

First, the Court applied traditional rules of statutory construction to interpret section 103 as a matter of first impression. The Court held that the section did not statutorily exempt Caltrans from conducting CEQA review of the I-5/SR56 Project because it only exempted the Coastal Commission’s approval of the PWP. The Court reasoned that the Legislature intended the PWP to function as a “long range development plan” that could be approved under a certified regulatory program, pursuant to Public Resources Code sections 21080.09 and 21080.5. This certified regulatory program only provided the Coastal Commission with approval authority. Further, section 103 only authorizes the Coastal Commission to prepare substitute documents when certifying or approving the PWP; it did not exempt Caltrans from conducting project-level CEQA review and preparing an EIR for the I-5/SR56 Project.

Finally, the Court rejected Caltrans’ argument that the Coastal Commission’s approval of the PWP implicitly approved the I-5/SR56 Project. The Court explained that the PWP included numerous alternative projects for the NCC, but did not include the I-5/SR56 Project, as defined in the Final EIR. Had the Legislature intended to exempt Caltrans from preparing an EIR for the Project, or provide Caltrans with a certified regulatory program, it would have expressly done so. Because the plain language of section 103 does not provide for such exemptions, Caltrans was required to conduct individual, project-level CEQA review of the Project.

Petitioner Alleged Sufficient Facts Showing Caltrans Was Equitably Estopped from Relying on the Statute of Limitations Defense to Overcome Caltrans’ Demurrer

The Court’s independent review of the petition indicated that CRCD pled facts that sufficiently showed Caltrans was equitably estopped from relying on the 35-day statute of limitations for actions challenging notices of exemptions. A government agency may be estopped from asserting a statute of limitations defense if the petition indicates that the agency’s fraudulent or misrepresentative conduct prevented a reasonably prudent person from timely seeking legal advice or commencing litigation. Here, Caltrans informed the public in its Draft and Final EIRs that Caltrans would file a NOD if it decided to approve the I-5/SR56 Project. However, Caltrans did not inform the public, commenters, or interested parties about its decision to file a NOE instead of a NOD. Caltrans’ statements and conduct further suggested that it would not approve the Project until mid-August 2017, after the public comment and review period closed. The Court held that there was, at minimum, a disputed question of fact whether, by approving the Project in early July after repeatedly stating that project approval would follow the announced Final EIR circulation and review period, Caltrans misled CRCD about facts Caltrans intended to be acted on. CRCD’s petition adequately pled that CRCD was ignorant of the true state of facts, which precluded CRCD from commencing the instant action before the 35-day statute of limitations period expired.

For these reasons, the Court held that Caltrans’ demurrer must be overruled and the trial court’s judgment dismissing CRCD’s petition must be reversed and vacated.

Bridget K. McDonald

Second District Court of Appeal Upholds Ruling that Mitigation Measures are Inadequate and EIR is Required for Mixed-Use Development Project in Agoura Hills

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On February 24, 2020, the Second Appellate District in Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al. (2020) 46 Cal.App.5th 665 affirmed the trial court’s decision to require an EIR instead of an MND for a mixed-use development on 8.2 acres because the adopted mitigation measures deferred action, lacked performance criteria, and/or were otherwise inadequate.

Background

The “Cornerstone Mixed-Use Project,” proposed by Agoura and Cornell Roads, LP, and Doron Gelfand (“Appellants”), consists of 8.2 acres of development, including 35 residential apartment units, retail, a restaurant, and office space on an undeveloped hillside in the City of Agoura Hills. The project site is covered mostly by the Agoura Village Specific Plan (adopted in 2008 after its final EIR was certified) with a small portion located within a Significant Ecological Area. After Appellants submitted applications for a development permit, conditional use permit, oak tree permit, and tentative parcel map, the City prepared and finalized an MND for the project in November 2016. The Planning Commission voted to approve the project and adopt the MND. The local chapter of the California Native Plant Society (CNPS) appealed the Planning Commission’s decision, but the City Council approved the project and adopted the MND. The City Council found “no substantial evidence that the project would have a significant effect on the environment” because the project included feasible mitigation measures, reducing all effects to less than significant.

Save the Agoura Cornell Knoll filed a petition for writ of mandate followed by a first amended petition on August 10, 2017, adding CNPS as a petitioner (“Petitioners”), alleging multiple CEQA violations, a violation of planning and zoning law, and a violation of the City’s oak tree ordinance. The trial court granted the petition as to the CEQA and oak tree ordinance claims, denied the planning and zoning law claim, and issued a peremptory writ of mandate directing the City to set aside its project and permit approvals, and to set aside the MND to make way for preparation of an EIR. The project applicants appealed.

The Court of Appeal’s CEQA Decision

The Court reviewed Appellants’ claims under the “fair argument” standard, which requires finding that a lead agency abused their discretion if substantial evidence in the record supports a fair argument that that the project may have a significant effect on the environment. This standard creates a relatively low threshold for requiring an EIR pursuant to “‘legislative preference for resolving doubts in favor of environmental review.’” Three CEQA resource areas were litigated—cultural, biological, and aesthetic. Appellants asserted, repeatedly, that mitigation was adequate and an EIR was not required, and the Court repeatedly disagreed. Overall, the Court found that certain mitigation measures set forth in the MND were “not feasible,” “improperly defer[] mitigation,” or were “inadequate to mitigate the project’s potentially significant impacts.” Affected resource areas are briefly discussed below.

Cultural Resources

The project site contains an identified prehistoric archaeological site that was previously determined to be eligible for inclusion in the California Register of Historical Resources. Three mitigation measures were included in the MND to address potential impacts to the site: (1) construction monitoring, notification of finds, and preservation in place of any resources (i.e., avoidance); (2) notification if human remains are encountered; and (3) a data-recovery excavation program if the site cannot be avoided. The Court found this mitigation constituted improper deferral because, pursuant to an expert opinion on the record, the site could not be avoided as prescribed in the first measure without a project redesign and therefore the third measure would be necessary. The Court also found that the third measure delayed “formulation of several components of the data recovery plan until some future time.” For example, the third measure called for the preparation of a Mitigation Monitoring and Reporting Plan (MMRP), yet did not explain how this MMRP would actually mitigate impacts, and there was no evidence in the record that inclusion of such information was impractical or infeasible prior to project approval. Appellants challenged the “evidentiary value” of the expert opinion, but the Court noted that any “conflict in the evidence” should be resolved in an EIR and that there was no debate as to whether the project would have a significant effect on a cultural resource, just on how it might be mitigated.

Biological Resources

The project site contains three special-status plant species that could be significantly impacted by project grading, landscaping, and fuel modification activities: Agoura Hills Dudley, Lyon’s pentachaeta, and Ojai navarretia. Again, three mitigation measures were included in the MND to reduce impact significance: (1) avoidance if feasible for two of the species, but if not, preparation of a restoration plan that includes plant surveys, onsite restoration, and offsite preservation; (2) the same measure for the third species; and (3) locating and flagging of all three species within the fuel modification zone and the use of buffers, other protocols, and monitoring for protection. The Court found the first two measures inadequately mitigated impacts and were infeasible, largely because of statements on the record asserting that restoration of “‘rare plants is next to impossible’” and “‘experimental’” and because the City relied on outdated surveys conducted during the drought in adopting the measure. The measures called for updated surveys but the record provided no evidence as to why such surveys could not be conducted prior to project approval. The measures also failed to provide performance criteria for determining the feasibility of avoidance or in the alternative, maintenance plans. The third measure was found to be inadequate because it did not properly consider the full expanse of fuel modification zones nor did it account for ongoing fuel modification activities, as it applied only to construction.

The project site also contains native oak trees, 35 of which would be removed by the project. Two mitigation measures were included in the MND to reduce significant impacts: (1) replacement of oak trees either onsite or via in-lieu fees paid to the City to acquire land for new tress; and (2) submittal of an oak tree survey, report, and preservation program to the City for approval. The Court found the first measure to be inadequate because mass grading required for the project would cause a loss of subsurface water to any onsite replacement trees, which could result in failure; yet this water deficit was not addressed in the measure. Also, substantial evidence existed showing that oak woodlands are “‘impossible to recreate’” or at least “‘often unsuccessful.’” Lastly this measure was inadequate because the in-lieu fees to be paid to the City would not be not part of a program that has undergone its own CEQA review, which is required “‘to provide a lawful substitute for the “traditional” method of mitigating CEQA impacts.’” The second mitigation measure was found to potentially lack effectiveness because that same subsurface water deficit was not considered, thereby calling into question any claims of long-term survival of preserved oak trees.

Aesthetic Resources

The project site contains a “distinct” knoll of oak trees that likely would be removed for project development. The MND acknowledged the potential loss of this scenic resource but claimed mitigation reduced the impact to less than significant. This mitigation included some avoidance measures and also pointed to the oak tree measures (discussed above) for restoration and preservation. The trial court found this mitigation to be inadequate. Although Appellants claimed the Petitioners failed to properly exhaust this issue (discussed below), the Court found that evidence in the record demonstrated that the knoll may not be preserved under project design and that, even if it were, the subsurface water deficit would jeopardize its continued existence, and no in-lieu fee could “reduce the impacts on aesthetic resources” of this loss.

The Court of Appeal’s Decision on Appellants’ Other Claims

Administrative Remedies Were Exhausted

Appellants repeatedly contended that Petitioners did not exhaust their administrative remedies and therefore forfeited their claims. They also contended that Petitioners did not address the issue of exhaustion in their first opening brief, and therefore could not submit supporting evidence. Addressing the second claim first, the Court found that Petitioners did preserve the general issue of exhaustion because there is no requirement that the issue must be argued in an opening brief and, nevertheless, their opening brief cited evidence that was later used in Petitioners’ reply brief to show exhaustion. This evidence demonstrated that exhaustion was “not a new legal theory raised for the first time” on reply. The Court also found that Petitioners expressly alleged exhaustion in their petition and “lodged the complete administrative record” as part of the writ proceedings. Further, the trial court’s rejection of Appellants’ supplemental brief on this issue was warranted because in filing it they had directly violated a court order stating that “the issue of exhaustion was thoroughly argued.”
As to the first contention, appellants raised exhaustion as a defense to each of Petitioners’ CEQA claims. The Court considered “the totality of [the] record” by looking to various portions demonstrating that most of Petitioners’ claims were preserved. It looked specifically to public comments, City Council hearing transcripts, other correspondence from environmental groups and experts, and documentation from the City’s own consultants to find again and again that the City was “‘fairly apprised’” of the “underlying concerns behind Petitioners’’ claims and thereby had the “‘opportunity to decide matters [], respond to objections, and correct any errors before the courts intervene.’”

Court Rejected Standing and Statute of Limitations Defenses

Appellants asserted both that Petitioner Save the Agoura Cornell Knoll lacked standing because Petitioners failed to show that they timely objected to project approval and that Petitioner CNPS was barred from the action because they joined the suit after the statute of limitations had run. The Court declined to consider the merits of either claim. It found that Appellants had forfeited their statute of limitations argument by not properly asserting it “‘in a general demurrer or pleaded in answer’” and, therefore, without a statute of limitation violation, CNPS remained a petitioner with uncontested standing. The Court was quick to point out that Appellants claims on these points were made for the first time in their appellate reply brief “[n]otwithstanding their [own] arguments on forfeiture.”

Attorney’s Fees Are Recoverable and Appellants Are Jointly and Severally Liable

The trial court awarded attorneys’ fees to Petitioners and assigned joint and several liability to both the developer Agoura and Cornell Road and its representative Doron Gelfand. Appellants first argued against the award by asserting that Petitioners did not provide notice of the CEQA action to the Attorney General “in accordance with section 21167.7 [of the Public Resources Code] and Code of Civil Procedure section 388” that requires notice be served within 10 days of filing a pleading. On this point, the Court found that, although Petitioners did not serve the Attorney General notice of the first amended petition, they did properly notice their original petition, which was not materially different than the first amended, thereby giving the Attorney General “ample time to intervene.” The Court further pointed to case law emphasizing that a lack of strict compliance with the 10-day notice rule “was not an absolute bar to attorney’s fees.” It further concluded that a declaration from Petitioners’ attorney attesting to notice could stand as evidence in lieu of formal proofs of service of that notice. Appellants then argued that Gelfand could not be held personally liable because he was neither the applicant nor the property owner. But, in utilizing the test articulated in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1181, the Court found that Gelfand was a “real party who pursued a direct interest in the project that gave rise to the CEQA action and actively participated in the litigation” and, therefore, was liable. The record contained ample evidence showing that Gelfand was, at one time, “‘the owner of the property’” and had personally made several requests to the City regarding the project, and was listed “as the sole project applicant” on City resolutions approving project entitlements.

Oak Tree Ordinance Was Violated

The City’s oak tree ordinance allows the cutting of oak trees with a permit but disallows removal of more than 10 percent of a subject property’s total estimated canopy or root structure. The project would result in removal of up to 36 percent of oak trees on site in violation of this ordinance. Appellants did not argue against that fact but did assert Petitioners failed to exhaust their administrative remedies on this claim. The Court addressed both the merits of the claim and exhaustion (see above) and agreed with the trial court in finding that, in approving the oak tree permit for the project, the City violated its own “‘duly adopted law’” and therefore the permit must be vacated.

Casey Shorrock

Second District Court of Appeal upholds trial court’s denial of attorney fees after the County granted applicant’s request to vacate permit approvals for a single-family home.

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In Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, Division 4 of the Second District Court of Appeal affirmed the trial court’s denial of attorney fees following dismissal of an action challenging a negative declaration for a single-family home project on a vacant lot in Los Angeles County. After the petitioner successfully obtained an administrative stay, the applicant/Real Party in Interest, appearing in propria persona, requested that the County vacate his approvals because he could not afford to pay for the litigation. The Court of Appeal found that petitioner’s action did not enforce an important right affecting the public interest or confer a significant benefit on the general public.

Project Background

Real Party in Interest Stephen Kuhn, owned a roughly one-acre parcel on a steep hillside in Altadena, an unincorporated community in Los Angeles County. In 2014, Kuhn applied to the County for a minor use permit to build a single-family home on the hillside and an oak tree permit to remove one tree on site. In 2015, he presented the project to the Altadena Town Council, which recommended approval. The County planning department initially determined that the project was categorically exempt under Guidelines section 15303, but prepared an initial study to assess potential impacts, though not because the planning department believed there were “unusual circumstances.” The initial study found that the project was “at the edge of a disturbed woodland community” but, by complying with the County’s oak tree ordinance, the project would not have a significant impact. The County prepared a negative declaration in 2016.

After learning about the project, Kuhn’s neighbors sent a letter to the County objecting to the project, primarily because it would affect their views and because one neighbor would no longer be able to park cars on Kuhn’s property. The neighbors sent additional letters to the County objecting to the project’s potential impacts to the oak canopy, and hired an attorney who began objecting to the project for them, and then on behalf of the nonprofit they created. The neighbors also hired an arborist who opined that the single tree slated for removal on the project site actually belonged to the neighbors, and that the project would impact three additional trees. The County planning department held a hearing on the project at which the neighbors appeared and objected that it would lower the market value of their homes. Kuhn offered to redesign the home to reduce the impacts to trees, and his arborist defended the initial assessment of tree impacts. A County biologist opined that the permit conditions were adequate to address impacts to trees given the “highly disturbed” condition of the woodland. The County approved the project, and the neighbors appealed.

The County Planning Commission heard the neighbors’ appeal and, in upholding project approval, required Kuhn to replace any removed or deceased trees at a 2-1 ratio and to monitor the remaining trees for 7 years. The neighbors appealed to the Board of Supervisors (board), who held three hearings on the project and ultimately approved it. The neighbors filed a petition before the board’s final approval, but agreed to stay the action until the board approved the project.

Trial Court Proceedings

In May 2017, the trial court granted an administrative stay under Code of Civil Procedure section 1094.5, finding that the neighbors had shown a reasonable possibility of success on the merits of their claim that their expert’s opinion was substantial evidence supporting a fair argument that the project may have significant impact on the oak woodland, but cautioned that her finding was not determinative as to the merits of the writ petition itself.
In December 2017, Kuhn, who appeared in propria persona throughout the litigation and appeal, asked the County to vacate the approvals “to end the litigation.” County planning recommended vacating the approvals but stated they would keep Kuhn’s application on file, and noted that an EIR was not normally required for a single-family home on a vacant lot, and that none of the exceptions to the exemption were present. The board vacated the approvals after Kuhn stated he could not afford to continue to pay for the litigation. One supervisor stated her belief that the neighbors had abused the CEQA process.
In March 2018, after dismissing the action, the neighbors moved for attorney’s fees under Code of Civil Procedure section 1021.5 seeking $289,544.00. The County and Kuhn opposed the motion, and the trial court denied it, finding that the neighbors had failed to establish any of the required prongs under Code of Civil Procedure section 1021.5. The neighbors appealed.

The Court of Appeal Opinion

An appellate court considering a trial court’s order on attorney’s fees reviews it for abuse of discretion. Whether the statutory requirements have been met is left to the trial court’s sound discretion unless the issue turns on statutory construction, which is reviewed de novo. The burden of proof is on the party challenging the trial court’s order. Here, that party was Kuhn’s neighbors.
The neighbors argued for de novo review of whether their action enforced an important right or conveyed a significant benefit. The Court rejected their arguments, finding that the trial court was in a better position than the Court of Appeal to assess whether the neighbors had met the requirements.

Enforcement of an Important Right Affecting the Public Interest

The County and Kuhn argued that even though CEQA actions can involve important public rights, this one did not. The trial court agreed, noting that the neighbors did not obtain any additional environmental review, and that the grant of the stay was not a favorable ruling on the merits of their CEQA claim. On appeal, the neighbors challenged both of those determinations, but the Court of Appeal found both to be within the discretion of the trial court. The Court noted that the record indicated that the County believed it and Kuhn had acted properly, and there was no evidence it would require additional CEQA review should Kuhn renew his application. The neighbors argued that all they needed to do was bring a “viable CEQA claim” to show an important public right, but the Court stated they must vindicate the right through their litigation, which the trial court found the neighbors had not done.

Significant Benefit on the General Public

The neighbors argued that they had conferred a significant benefit by causing the County to reconsider the project under CEQA. The trial court rejected this argument because the administrative stay was not an adjudication of the merits and there was no evidence that the County would reconsider the CEQA review of the project. The neighbors submitted statements from area residents that they believed the County would treat their concerns about the project more seriously because of the lawsuit, but the trial court rejected these statements as speculative and unsubstantiated. The trial court also found that because of the small size of the project (a 1500-square-foot single-family home on one lot) the neighbors had not shown that their action conferred a benefit on the general public or a large class of persons. The Court of Appeal agreed, noting that the County kept Kuhn’s application on file and would allow him to revive the project if he wanted to, but made no indication that it would require additional CEQA review. The Court also noted that the neighbors had admitted that their concern was the effect of the project on their personal property and the use of Kuhn’s property as parking. Lastly, the Court rejected the neighbors’ argument that they had provided additional opportunities for public input, as Kuhn stopped pursuing the project.

Nathan O. George

Fifth District Holds Kern County’s Ordinance for Streamlining Oil and Gas Well Permits Must Be Set Aside Due to Multiple CEQA Violations, Including Deferred Formulation of Mitigation Measures and Failure to Use Proper Threshold of Significance for Analyzing Noise Impacts

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In King and Gardiner Farms, LLC v. County of Kern et al. (2020) 45 Cal.App.5th 814, the Fifth District Court of Appeal held that the County of Kern must rescind its approval of a gas and oil ordinance that would streamline the County’s permitting process for new oil and gas wells. In the published portions of the decision, the court held: (1) the mitigation measures for the ordinance’s significant impacts to water supplies impermissibly deferred formulation of the measures or delayed the actual implementation of the measures and the EIR’s discussion of the effectiveness of the mitigation measures was inadequate; (2) the County’s finding that the ordinance’s conversion of agricultural land would be mitigated to a less-than-significant level was not supported by substantial evidence because, among other things, the mitigation measures allowed for conservation easements, which do not constitute actual mitigation; (3) the County inappropriately applied a single threshold for determining the significance of the project’s noise impacts; and (4) the County must rescind the ordinance and not re-approve the ordinance until the County has complied with CEQA.

Background

In November 2015, the Kern County Board of Supervisors approved an ordinance to streamline the permitting process for new oil and gas wells and certified an EIR for the ordinance. Because some of the impacts of the ordinance would be significant and unavoidable, the Board of Supervisors adopted a statement of overriding considerations, finding that the ordinance’s benefits outweighed its significant environmental impacts.

A private farm (KG Farms) and a group of environmental organizations, including Sierra Club, filed petitions for writ of mandate alleging that the County violated CEQA and the State Planning and Zoning Law in approving the ordinance. The trial court held that the EIR violated CEQA regarding impacts on rangelands and from paving as an air pollutants mitigation measure. The petitioners appealed, arguing that the County violated CEQA in additional respects. The Court of Appeal agreed with the petitioners.

Water Supply Mitigation Measures

The County’s EIR concluded that the ordinance would have a significant and unavoidable impact on water supplies because implementation of the ordinance would deplete the County’s municipal and industrial water supplies. To mitigate this impact, the EIR proposed several mitigation measures. One measure provided that, to the extent feasible, applicants for permits under the ordinance shall increase or maximize the re-use of produced water. Produced water is groundwater that naturally occurs in oil and gas reservoirs brought to the surface with the extracted oil and gas and separated from the hydrocarbons after extraction. The Court of Appeal held that the requirement for applicants to increase or maximize their use of produced water violated CEQA because it merely set forth a generalized goal, rather than establishing specific performance standards that must be met. The court opined that were it to hold such a measure satisfied CEQA, lead agencies and project proponents—aware of the court’s precedent—would have scant incentive to define mitigation measures for other projects in specific terms. Instead, planning documents or ordinances adopted by local governments could merely state that permit applicants must reduce environmental impacts to the extent feasible. Allowing such an approach, the court reasoned, would undermine CEQA purpose of “systematically identifying” feasible mitigation measures that will reduce environmental impacts. (See Pub. Resources Code, § 21002.)

Another provision of the County’s water supply mitigation required that the five biggest oil industry users of municipal and industrial water work together to develop and implement a plan identifying new measures to reduce municipal and industrial water use by 2020. The court held that this mitigation measure—which unquestionably deferred formulation of mitigation—violated CEQA because it lacked specific performance standards to include in the plan. Moreover, the measure did not commit the County to the measures ultimately included in the plan. Further, it assigned the duty to implement the measure to unidentified third parties who might not agree to participate in the task or who might not act in good faith. Yet another flaw with this mitigation measure was that the plan was not required to be developed until 2020, whereas the ordinance took effect in 2015. Thus, the measure allowed permits for oil and gas activities to be issued without being subject to the measures contained in the plan. Accordingly, the measure violated the CEQA principle against delayed implementation of mitigation measures.

Another mitigation measure adopted by the County specified that “[i]n the County’s required participation for the formulation of a Groundwater Sustainability Agency [pursuant to the Sustainable Groundwater Management Act (Senate Bill 1281)], the Applicant shall work with the County to integrate into the Groundwater Sustainability Plan for the Tulare Lake-Kern Basin, best practices from the oil and gas industry to encourage the re-use of produced water from oil and gas activities.” The mitigation measure set a re-use “goal” of 30,000 acre-feet per year. The Court of Appeal held that this mitigation measure violated CEQA because the groundwater sustainability plan mentioned in the measure must be adopted by January 31, 2020—four years after the ordinance was approved.  Therefore, the measure was improperly deferred. Furthermore, the goal of re-using 30,000 acre-feet per year of produced water was merely a goal, and not an enforceable commitment, as required by CEQA.

The Court of Appeal further held that because the water supply mitigation measures were of unknown effectiveness, in order for the County to properly adopt a statement of overriding considerations under CEQA, the EIR must “(1) describe the mitigation measures that are available (i.e., currently feasible) and (2) identify and explain the uncertainty in the effectiveness of those measures.” The court reasoned that such a requirement is mandated by the general rule that an EIR must alert the public and decisionmakers of the significant problems a project would create and must discuss currently feasible mitigation measures.

Agricultural Mitigation

The County’s EIR found that, without mitigation, the project has the potential to convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance to non-agricultural use because the ordinance would allow oil and gas activities, including new wells, to be located on agricultural lands. The EIR concluded, however, that, with mitigation, this impact would be reduced to less than significant. The mitigation measure adopted by the County for this impact allowed permit applicants to comply by adopting one or more of four options (a through d). The court held that because not all of the options constituted adequate mitigation under CEQA, the County lacked substantial evidence to support its conclusion that the ordinance would have a less-than-significant impact on agriculture.

In particular, option “a” of the agricultural mitigation measure authorized the use of agricultural conservation easements at a 1:1 ratio (one acre of agricultural land conserved for every one acre converted to non-agricultural uses). The court held that conservation easements do not constitute adequate mitigation because they do not create new agricultural land to replace the agricultural land being converted to other uses. Rather, conservation easements simply prevent the future conversion of the agricultural land. In other words, conservation easements do not actually offset a project’s impacts on agriculture. Accordingly, the inclusion of option “a” in the agricultural mitigation measure rendered the mitigation measure ineffective.

Option “b” of the agricultural mitigation measure allowed for the purchase of conservation credits from an established agricultural mitigation bank. The court agreed with the petitioners that there was no evidence in the administrative record that such banks existed. Thus, the record lacked substantial evidence to support a finding that this option would actually mitigate agricultural impacts. Therefore, it was not sufficient mitigation under CEQA.

The court also concluded that the County had failed to adequately respond to comments suggesting that the County adopt a mitigation measure requiring the clustering of wells so that fewer acres of agricultural lands would be converted under the ordinance. The County’s response to such comments noted that the County’s General Plan includes a policy requiring the clustering of wells, but the response did not specifically address the feasibility of adopting a mitigation measure requiring well clustering. Therefore, court concluded that the County’s responses to comments failed to comply with the requirements of section 15088, subdivision (b) of the CEQA Guidelines, which require a “reasoned analysis” in response to comments raising “significant environmental issues.”

Noise Thresholds of Significance

To determine whether implementation of the ordinance would cause significant noise impacts, the County used a quantitative threshold of 65 dBA DNL, meaning that the ordinance would not cause a significant noise impact if noise levels stayed below that threshold. The court held that the County’s use of a single threshold violated CEQA because the threshold did not measure the increase in noise levels over ambient levels. Comments on the EIR, as well as the County’s own noise report that was appended to the Draft EIR, suggested using an increase of 5 dBA to determine whether the increase in noise above ambient levels constituted a significant impact. For unexplained reasons, the County did not do so. Instead, the County argued that it was entitled to substantial deference in selecting the significance thresholds. Although the court agreed that the County is entitled to deference in its choice of significance thresholds, the court held that the County’s use of an absolute noise threshold for evaluating all ambient noise impacts violated CEQA because it did not provide a “complete picture” of the noise impacts that may result from implementation of the ordinance.

Remedy

The County requested the court to exercise its equitable powers, which include the power to order the status quo preserved, and allow the ordinance to remain in effect while the County corrects the deficiencies in the EIR and mitigation measures. The court declined to do so. The court reasoned that the usual remedy in a CEQA case is to order the respondent to rescind its approvals; the court saw no reason not to do so in this case. Unlike other cases that allowed an ordinance that benefited the environment to remain in place, the oil and gas permitting ordinance was not adopted for the benefit of the environment.

The court also directed that the new EIR prepared by the County should include updated baselines for the water supply and air quality analyses because conditions have changed since the County issued the notice of preparation (NOP) of the original draft EIR that warrant updating the baseline.

Second District Invalidates EIR’s Project Description For Failing to Provide Sufficient Detail and Certainty.

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In Stopthemillenniumhollywood.com et al. v. City of Los Angeles et al. (2019) 39 Cal.App.5th 1, the Second District Court of Appeal affirmed the trial court’s conclusion that an EIR for a mixed-use development project proposed by Millennium Hollywood, LLC (Millennium) in the City of Los Angeles (City) violated CEQA as a matter of law, because it failed to provide an accurate, stable, and finite project description.

In 2008, Millennium filed an application—which the Court of Appeal described as detailed—with the City proposing a mixed-use development project (2008 Proposal) on 4.47 acres in multiple parcels straddling two sides of Vine Street, between Yucca Street and Hollywood Boulevard, in the Hollywood Community Plan area of the City. The 2008 Proposal described a mixed-use development with 492 residential units, a 200-unit hotel, 100,000 square feet of office space, a 35,000-square-foot sports club and spa, 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage uses. In total, proposed square footage was 1,163,079. Two historic buildings on site, the Capital Records Tower and Gogerty Building, would be preserved. The development would consist of two low-rise buildings, one on each side of Vine Street, with three towers intended to “frame” the Capital Records Tower. The 2008 Proposal would have required a zone change to allow the sports club, as well as a variance to allow the proposed density. After the City informed Millennium that a variance from the General Plan Floor Area Ratio (FAR) requirement would also be necessary, the project was put on hold.

In 2011, Millennium filed a new application with a new project description for the same site (2011 Project). Millennium still proposed a mixed-use development with residential, hotel, and retail uses totaling 1,166,970 square feet and a FAR of 6:1. Though the same mix of uses were proposed, the 2011 Project was “designed to create an impact ‘envelope’ within which a range of development scenarios can occur.” Thus, the specific shape, size, location, use, and number of buildings to be constructed on the site were not described, other than that the existing historic buildings would be preserved. Instead, Millennium sought to enter into a development agreement with the City that would establish the permitted developable floor area, land uses, design guidelines, and development standards for the site. Additionally, the 2011 Project included a land use equivalency program (LUEP) allowing the transfer of floor area between parcels on the site. The EIR analyzed the maximum level of impacts that could occur under the development agreement, regardless of which of the several development scenarios was actually constructed in the future.

Commenters on the Draft EIR complained that the imprecise project description hindered meaningful public participation. Nevertheless, the City approved the development agreement, certified the EIR, adopted mitigation for the analyzed maximum level of impacts and adopted a statement of overriding considerations. Petitioners, Stopthemillenniumhollywood.com, Communities United for Reasonable Development, and George Abrahams (collectively, Petitioners) petitioned the Los Angeles Superior Court for a writ of mandate setting aside project approval and certification of the EIR. Petitioners alleged three causes of action relating to violations of CEQA. First, they alleged that the EIR failed to include an accurate, stable, and finite project description. The second cause of action asserted that the City abused its discretion by failing to study traffic impacts to the 101 freeway despite Caltran’s direction that the City do so. The third cause of action alleged that the City failed to consult with the California Geological Survey regarding potential seismic hazards on the site. The trial court granted the petition as to the first and second causes of action, but not the third.

On the first cause of action, the trial court found that the project description was not stable or finite, and that the use of the word “or” in a condition of approval allowed Millennium, or future developers, to choose any permitted use listed for the C2 zone in the LAMC for future development, not just the list of proposed uses in the development agreement. The trial court reasoned that, though there may be circumstances where a project description may disclose only the physical parameters and maximum potential environmental impacts, no such circumstances were present here. The trial court distinguished Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036 (Treasure Island), on the grounds that that case dealt with a site contaminated by hazardous materials, and it was unknown when cleanup of the site would be completed. The trial court noted that the development in Treasure Island included both fixed elements (including the street grid) and conceptual elements that would “likely” be subject to supplemental CEQA review. The trial court concluded that neither element was present here.

The trial court also found that, by including an ambiguous project description, the EIR impermissibly deferred part of the analysis of environmental impacts. Specifically, the trial court found that, because no specific “concept” was analyzed, the EIR did not explain how exceedance of the maximum impacts would be avoided when the project was actually designed and built; nor was additional CEQA review contemplated by either the EIR or the development agreement. The trial court determined that, without knowing the “bona fide subject” of the EIR, it would be impossible for the public and decisionmakers to accurately weigh the “environmental price tag” of the proposal and decide if the benefits outweigh that price.

The City and Millennium appealed the trial court’s decision as to the first and second cause of action, while Petitioners appealed the decision on the third cause of action. The Court of appeal, after ruling on the first cause of action, determined that it need not reach the other issues raised by the parties.

In affirming the trial court, the Court of Appeal looked to County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 (County of Inyo), and Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277 (Washoe Meadows). The Court cited County of Inyo for the proposition that, even where an inaccurate project description does not render invalid the analysis of environmental effects, it may nevertheless violate CEQA by interfering with “intelligent public participation.” The Court found further support for this position in Washoe Meadows, where the First District held that a failure to select or identify a specific project in the Draft EIR interfered with the public’s right to participate in CEQA review.

In the case before it, the Court found that the project description “fail[ed] to describe the siting, size, mass, or appearance of any building proposed to be built at the project site” and that the proposed development regulations imposed only vague and ambiguous limits on future construction choices. The Court held that, even if the analysis of maximum impacts were adequate—despite the project description, “CEQA’s purposes go beyond an evaluation of theoretical environmental impacts.” The Court determined that the project description violated CEQA as a matter of law.

In reaching its decision, the Court distinguished South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321 (South of Market), on two grounds. First, the Court found that the only “uncertainty” at issue in South of Market was that the project description presented a choice of either a predominately office use or a predominately residential use, but the EIR did not select one or the other. Second, the Court found that the EIR in South of Market “included ‘site plans, illustrative massing, building elevations, cross-sections and representative floor plans for both options.”’ Because the EIR before it did not include these “technical characteristics” of the project, the Court concluded that it failed to comply with CEQA’s mandates. The Court also largely agreed with basis for the trial court’s distinguishing of Treasure Island, supra, 227 Cal.App.4th 1036, finding that no unusual circumstances were present in this case, and that future planning and development of the project would not be subject to additional environmental review. Lastly, the Court found the violation to be prejudicial because it interfered with public participation.

As stated above, the Court determined that it need not address the other issues raised by the parties. The Court dismissed an argument that Public Resources Code section 21168.9 required them to rule on each issue raised in a CEQA appeal. The Court found that section applied only to the trial court’s order on remand, which is to address only those mandates from the Court of Appeal that are necessary to comply with CEQA. The Court found that the trial court’s judgment was correct on at least one ground, so it was affirmed.

Nathan George

Second District Upholds City’s Interpretation of Its Charter Allowing General Plan Amendment for Transit Oriented Development Project

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In Westsiders Opposed to Overdevelopment v. City of Los Angeles et al.(2018) 27 Cal.App.5th 1079, the Second District Court of Appeal upheld the trial court’s conclusion that the City of Los Angeles did not misinterpret its City Charter when it amended its general plan to change the land use designation of a nearly five-acre parcel for a transit-oriented development project on the west side of the city.

In 2015, Real Parties in Interest, Dana Martin, Jr., Philena Properties, L.P. and Philena Property Management, LLC (Philena) applied to develop a mixed-use, transit oriented development project on a former car dealership site of approximately five acres. The site is on the corner of Bundy Drive and West Olympic Boulevard in West Los Angeles, less than 500 feet from a new light rail station. As part of its application, Philena requested that the City change the site’s general plan land use designation from light industrial to general commercial, and several other entitlements. The City prepared an EIR for the project and in September 2016, approved the project and the general plan amendment. Appellant, Westsiders Opposed to Overdevelopment sued, challenging the amendment under City Charter section 555, subdivisions (a) and (b).

Los Angeles City Charter section 555 governs general plan amendments in the city. Relevant here, subdivision (a) allows the plan to be amended “by geographic areas, provided that the … area involved has significant social, economic or physical identity.” Subdivision (b) of that section states, in pertinent part, that “[t]he Council, the City Planning Commission or the Director of Planning may propose amendments to the General Plan.” Westsiders argued that both of these provisions prevented the City from approving the amendment in this case. Westsiders alleged that the general plan could not be amended for a single project or parcel because a single parcel did not qualify as a “geographic area” with “significant social, economic or physical identity” as required by section 555, subdivision (a). Petitioner also argued that, by requesting the general plan amendment, Philena had effectively “initiated” the amendment in violation of section 555, subdivision (b), which restricts the authority to start that process to the council, planning commission or planning director. The trial court denied the petition and found that the city did not exceed its authority under its charter in approving the amendment in this case. Westsiders appealed.

The court of appeal found that, because the challenge was to the city’s amendment of the general plan, Government Code section 65301.5 required that the city’s action be reviewed under Code of Civil Procedure section 1085, governing traditional mandamus. In doing so, the court rejected Westsiders’ argument that, because the general plan amendment was for a single project and parcel, review should be under Code of Civil Procedure section 1094.5, governing administrative mandamus. In discussing the appropriate standard of review, the court recognized that charter cities are presumed to have power over municipal affairs, and that any limitation or restriction on that power in the charter must be clear and explicit. The court also stated that, while construing the charter was a legal issue subject to de novo review, the city’s interpretation of its own charter is entitled to great weight unless it is clearly erroneous, and must be upheld if it has a reasonable basis.

In interpreting the charter, the court found that the plain meaning of the terms “geographic area” and “significant social, economic or physical identity” did not contain any clear and explicit limitation on the size or number of parcels involved in amending the general plan by geographic area. The court rejected Westsiders’ request for judicial notice, which contained several documents that Westsiders claimed were legislative history showing that the voters had intended to include such a limitation. The court also rejected Westsiders’ argument that, in considering whether a geographic area has “significant social, economic or physical identity” the city may not consider the proposed project and future uses of the site. The court found that the city’s determination that the site had significant economic and physical identity because it was one of the largest underutilized sites with close proximity to transit in West Los Angeles, and that the project would be the first major transit oriented development met the requirements of Charter section 555, subdivision (a). The court also pointed out that not every lot in the city would necessarily meet the requirements of the charter and qualify for a general plan amendment.

Interpreting Charter section 555, subdivision (b), the court rejected Westsiders’ argument that, by filling out a land use application requesting that the city amend the general plan, Philena had improperly “initiated” the amendment in violation of the charter. Similar to its analysis of subdivision (a), the court found that section 555, subdivision (b) did not contain a clear and explicit limitation on who could request that the city amend the charter. The court also stated that city followed the procedures required by the charter because, after Philena made its request, it was the planning director who formally initiated the amendment process.

Next, the court found that, because amending the general plan is a legislative act, the city was not required to make explicit findings to support its decision. The court rejected Westsiders’ argument that the city was required to make findings that “bridge the analytical gap between the raw evidence and ultimate decision” in this case (quoting Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515). The court found that this requirement did not apply to legislative acts, such as the amendment of the general plan. The court also rejected Westsiders’ argument that the city’s use of the word “unique” in discussing the site’s identity (as opposed to “significant”) made its “findings” inadequate. The court found that the city’s analysis showed that the site had significant economic and physical characteristics and met the requirements of section 555, subdivision (a).

Lastly, the court rejected Westsiders’ argument that the city impermissibly “spot-zoned” the project through the general plan amendment. The court found that Westsiders had failed to raise this argument in the trial court and was thus barred from raising it on appeal. The court affirmed the trial court’s judgment dismissing the petition for writ of mandate.

Fourth District Finds San Diego County’s Climate Change Guidance Document Contains Improperly Adopted Thresholds of Significance that Violate CEQA and a Previously Issued Writ of Mandate

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In Golden Door Properties, LLC v. County of San Diego (2018) _ Cal.App.5th _ (Case No. D072406—consolidated with Case No. D072433), Division One of the Fourth District Court of Appeal upheld the trial court’s determination that the County of San Diego’s “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (“2016 GHG Guidance”) was ripe for adjudication, constituted piecemeal environmental review, and contained an improper threshold of significance, in violation of CEQA and a previously-issued writ of mandate.

In 2011, the county updated its general plan. The Environmental Impact Report for the update incorporated mitigation measures to address greenhouse gas emissions from county operations. Two such measures are at issue here. First, Mitigation Measure CC-1.2 required the county to prepare a Climate Action Plan (CAP), and to adopt GHG emission targets and deadlines for achieving the targets. Second, Mitigation Measure CC-1.8 required the county to revise its guidelines for determining GHG significance based on the CAP. The county adopted a CAP, which was set aside when the court granted a petition for writ of mandate filed by the Sierra Club. While that case was on appeal, the county adopted the “2013 Guidelines for Determining Significance for Climate Change” (“2013 Guidelines”). Sierra Club challenged the 2013 Guidelines through a supplemental petition, which the parties stipulated to stay pending the appeal. In 2014, the court of appeal upheld the trial court’s decision to set aside the CAP. On remand, the trial court issued a supplemental writ directing the county to set aside both the CAP and the 2013 Guidelines and retained jurisdiction to ensure compliance.

In 2016, while in the process of developing the CAP, the county published the 2016 GHG Guidance. In one section, the county stated that it represented “one potential set of criteria and methodologies, along with supporting evidence that would be appropriate for Climate Change Analysis,” while in another section it stated that “[t]he County Efficiency Metric is the recognized and recommended method by which a project may make impact significance determinations.” Sierra Club filed a second amended petition in the trial court, and Golden Door Properties, LLC filed a separate challenge to the 2016 GHG Guidance. The cases were consolidated through a stipulation and the trial court determined that the claims were ripe, that the 2016 GHG Guidance created a threshold of significance, violated Mitigation Measures CC-1.2 and CC-1.8, was not supported by substantial evidence, and violated the previous writ of mandate because it constituted piecemeal review. The county appealed.

First, the court addressed the issue of ripeness. The county argued that the action was not ripe because it was still developing the CAP and because the controversy did not involve a specific set of facts (that is, no project using the 2016 GHG Guidance to perform Climate Change Analysis had been challenged). The court disagreed, finding that the situation here involved a threshold of significance that would “be used routinely to determine environmental effects…” and thus generally applicable. The court distinguished Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158 because that case involved a challenge to policies in a guidance document, under which the Commission might impose certain permit conditions should any of the landowner/plaintiffs apply for such a permit. The court found that, although the 2016 GHG Guidance acknowledged that other methods for determining significance may apply, the efficiency metric was stated to be “the recognized and recommended method” for determining GHG significance, making it generally applicable and thus justiciable.

The county argued that the 2016 GHG Guidance did not set a threshold of significance, but instead, provided a recommended method for evaluating GHG emissions. The court disagreed and found that, because the 2016 GHG Guidance provided one “recognized and recommended” efficiency metric to measure the significance of a project’s GHG emissions, the efficiency metric was a threshold of significance. That the county’s 2013 Guidelines were more explicit than the 2016 GHG Guidance did not make the efficiency metric any less of a threshold of significance. The court found that the metric violated CEQA because the county had failed to follow the adoption procedures for such thresholds laid out in CEQA Guidelines section 15064.7, which required formal action by the county after a public review period. The court also found that Mitigation Measure CC-1.8 required the county to adopt the CAP before updating its guidance documents because Measure CC-1.8 required the updated guidance to be based on the CAP.

The court also found that the threshold of significance was not supported by substantial evidence. Specifically, the court held that the county needed to support the efficiency metric with substantial evidence establishing a relationship between the statewide data used to establish the metric and the county’s reduction targets. The 2016 GHG Guidance stated that the efficiency metric represented the county’s “fair share” of statewide emissions mandates, but did not explain why that was so. Additionally, the efficiency metric was recommended for all projects, but the 2016 GHG Guidance did not explain why the efficiency metric (based on service population) would be appropriate across all project types.

The court also agreed with the plaintiffs that the county had “piecemealed” its environmental review because the 2016 GHG Guidance preceded the completion of the CAP. The county argued that, because the CAP was on schedule to be released in compliance with the previous writ, the 2016 GHG Guidance did not violate the writ. The court applied the law-of-the-case doctrine and stated that its previous decision held that the CAP and the updated county guidance were a single project for CEQA purposes. For that reason, the CAP and updated guidance must be publicly reviewed and adopted by the county together. Because the CAP had not been adopted when the 2016 GHG Guidance was issued by the county, the 2016 GHG Guidance violated the writ.

 

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