RMM is proud to announce that all five RMM partners, Jim Moose, Tiffany Wright, Sabrina Teller, Andee Leisy, and Chip Wilkins, along with Whit Manley, of counsel, have been named as Super Lawyers in 2018 by Super Lawyers Magazine. Senior Associates Chris Stiles and Laura Harris were selected as Rising Stars.
In what may be the first litigation of its kind, RMM has defeated three challenges to the City of Los Angeles’s reliance on the Sustainable Communities Project exemption. The exemption—for Transit Priority Projects that meet other environmental and efficiency standards—was adopted as part of SB 375. The exemption has not been frequently used, presumably because of its rigorous standards for access to transit and other sustainability requirements. But more cities are reexamining the exemption in light of California’s housing crisis and renewed focus on transit, infill development, energy and water efficiency, and other sustainability features. The City, with help from RMM, developed a model for evaluating such projects. The City’s approval was upheld against challenges contained in three separate lawsuits. Tiffany Wright and Elizabeth Pollock represented the applicant, CRM Properties.
RMM, representing the Santa Barbara County Association of Governments and working with attorneys for Caltrans, defeated a challenge to Caltrans’ EIR for the 101 HOV project in Santa Barbara County. The project—an 11-mile HOV lane on Highway 101 from the City of Carpenteria to the City of Santa Barbara—will provide much needed congestion relief to the region. RMM joined SBCAG’s team after previous litigation required Caltrans to revise the EIR for the project. The successful defense of the revised EIR required an in-depth knowledge of the transportation analysis to respond to highly-technical challenges to the analysis, both in response to comments and in litigation. The court’s discharge of the previous writ allows the agencies to move forward with this key piece of transportation infrastructure. Tiffany Wright and Laura Harris represented SBCAG.
The Los Angeles County Metropolitan Transportation Authority, along with Caltrans, is in the process of preparing an EIS/EIR for the 710 North Gap Project. For decades, the agencies have considered ways to connect the 710 and 210 freeways. The voters of Los Angeles County approved $780 million in sales tax revenues for the project as part of Measure R. The Draft EIS/EIR for the project considers four build alternatives to close the gap. After the public comment period on the EIS/EIR, Metro’s Board identified the Transportation Systems Management/Transportation Demand Management alternative as its preferred alternative and allocated Measure R funds for the alternative. The City of Rosemead filed suit alleging that Metro’s identification of a preferred alternative and allocation of funds constituted premature “approval” of a project prior to completing the CEQA process. The Los Angeles Superior Court rejected Rosemead’s claims. Tiffany Wright and Laura Harris represent Metro.
In 2015-2017, the California Legislature and the state’s voters approved several bills and measures legalizing the cultivation, distribution, and sale of medicinal and adult-use (recreational) cannabis. The Bureau of Cannabis Control was established to be the lead agency regulating medical and adult-use cannabis in California. The Bureau is responsible for licensing retailers, distributors, testing labs and microbusinesses. Each local land use agency in the state may adopt its own regulations and policies to govern the establishment and operation of cannabis businesses in their jurisdiction, or they may prohibit them altogether. In 2017, Sabrina Teller advised the Bureau regarding compliance with CEQA for the adoption of statewide regulations governing the cultivation, manufacturing, retail sale, transportation, storage, delivery, and testing of cannabis in California, as required by statute and voter-approved ballot initiative. Ms. Teller also represented Humboldt County and several individual cannabis growers in defending against a challenge to the County’s cannabis land use regulations brought by residents of the City of Fortuna. The Humboldt matter was settled in late 2017. Tiffany Wright has advised Calaveras County regarding the County’s establishment of land use and permitting regulations governing the cultivation of cannabis.
Very Good Girl Sibella joined the firm in January 2018 as an eight-week old labrador/golden retriever puppy. Sibella comes to us from Canine Companions for Independence (CCI). She is completing a one-year internship in our land use and environmental practice, working with RMM Senior Associate Elizabeth Pollock. During the day, she practices chewing toys, licking faces, taking long naps, and giving lots of love. During her tenure at RMM, she will be developing her skills sitting, staying, and “doing her business” outside. After leaving RMM, Sibella will continue her work with CCI. CCI “is a non-profit organization that enhances the lives of people with disabilities by providing highly trained assistance dogs and ongoing support to ensure quality partnerships.” You may learn more about the program at http://www.cci.org.
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 college 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 of the buildings cited in the original plan. The revised plan added one more building complex to the demolition 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 lay 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 these opinions 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 refused 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.
RMM Partner Sabrina V. Teller represented the respondent college district.
In Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187, the Court of Appeal for the First Appellate District upheld the San Francisco County Superior Court’s denial of a petition for writ of mandate challenging the Judicial Council of California’s decision to certify a Final EIR and approve a new courthouse in the City of Placerville.
El Dorado County’s court facilities were divided between the Main Street Courthouse, a historic building in downtown Placerville, and the County administrative complex. The Judicial Council proposed to consolidate all court activities in a new three-story building to be built on undeveloped land adjacent to the County jail, less than two miles away from the existing Main Street Courthouse.
In October 2014, the Judicial Council published a draft EIR for the proposed new courthouse. The draft EIR acknowledged that retiring the downtown courthouse could have an impact on downtown Placerville. The EIR also recognized that the Judicial Council was required address neighborhood deterioration as a significant environmental effect under CEQA if urban decay was a reasonably foreseeable impact of the project. The draft EIR defined “urban decay” as “physical deterioration of properties or structures that is so prevalent, substantial, and lasting a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community.” The draft EIR concluded that urban decay, so defined, was not a reasonably foreseeable consequence of the new courthouse project.
Commenters voiced the concern that closing the historic Main Street Courthouse could negatively affect businesses in downtown Placerville. In response to such concerns, the Judicial Council reiterated the draft EIR’s conclusion that the project was not likely to lead to urban decay. In support of this conclusion, the Judicial Council observed that it was working with both the city and county to develop a re-use strategy for the building that would support the downtown businesses and local residences. The Judicial Council also cited evidence of the City and County’s efforts to find a new use for the historic courthouse building.
Following the Judicial Council’s certification of the final EIR, the Placerville Historic Preservation League (League) filed a petition for writ of mandate, which the trial court denied. The Court of Appeal affirmed.
The Court of Appeal’s Decision
On appeal, the League argued that the Judicial Council erred in concluding that urban decay is not a reasonably foreseeable indirect effect of relocating the courthouse activities from downtown Placerville to their new location. The court held that substantial evidence in the record supported the Judicial Council’s conclusion that the type of physical deterioration contemplated in the term “urban decay” is not reasonably foreseeable. The court explained that there is no presumption that urban decay would result from the project. To the contrary, as defined by CEQA—which focuses on the physical environment—urban decay “is a relatively extreme economic condition.” Evidence in the record, including comments submitted by the public, suggested that downtown Placerville was an economically stable area, and could withstand business closures without falling into urban decay.
The League also characterized the likelihood of the re-use of the historic courthouse building as an “‘unenforceable and illusory”’ commitment. The court explained, however, that the lack of a binding requirement for the re-use of the building does not undermine the EIR’s reasoning. Specifically, the issue before the Judicial Council was whether urban decay was a reasonably foreseeable effect of the project, not whether its occurrence was a certainty. It would be the best interest of the City of Placerville and the County of El Dorado to re-use the historic courthouse building, suggesting that the building was likely to be put to a new use. While the re-use was by no means guaranteed, it was reasonably likely. Therefore, the Judicial Council did not err in relying on the possibility of re-using the building as one basis for concluding that urban decay was not reasonably foreseeable.
The League also argued that the administrative record contained evidence, in the form of comments submitted by local residents and businesses, of the impact of moving the courtroom activities outside of downtown Placerville. The court held that although these letters and comments provided credible grounds to conclude that relocating the courthouse activities would constitute a hardship for some local businesses, it was not substantial evidence to support the conclusion that such economic effects would lead to substantial physical deterioration of the downtown.
The League further argued that the Judicial Council should have prepared an economic study evaluating the effects of removing the courthouse functions from downtown. The court disagreed, noting that in “any endeavor of this type, financial resources are limited, and the lead agency has the discretion to direct resources toward the most pressing concerns.” Just because a financial impact study might have been helpful does not make it necessary.
The Judicial Council was represented by RMM attorneys Andrea Leisy and Laura Harris in the trial court and on appeal.
OPR Proposes First Comprehensive Update to the CEQA Guidelines in Twenty Years, Affecting Several Areas of Analysis
On November 27, 2017, the Governor’s Office of Planning and Research (OPR) presented the California Natural Resources Agency with proposed amendments to the CEQA Guidelines (hyperlink to: http://opr.ca.gov/docs/20171127_Comprehensive_CEQA_Guidelines_Package_Nov_2017.pdf). As Director Ken Alex noted in his transmittal letter (hyperlink to: http://opr.ca.gov/docs/20171127_Transmittal_Letter_OPR_to_Resources_Nov_2017.pdf), this is the most comprehensive update to the Guidelines since the late 1990s. Among other changes, OPR’s amendments affect the analysis of energy impacts, promote the use of vehicle miles traveled (VMT) as the primary metric for transportation impacts, and clarify Guidelines section 15126.2 to specify that an agency must analyze hazards that a project may risk exacerbating.
The amendments to the CEQA Guidelines have been shaped by several years of discussion and public comment. OPR began discussions with stakeholders in 2013 and released a preliminary discussion draft of the comprehensive changes to the Guidelines in August 2015. OPR received hundreds of comments on the proposed updates and has provided a document with Thematic Responses to Comments (hyperlink to: http://opr.ca.gov/docs/20171127_OPR_Thematic_Responses_to_Comments_Nov_2017.pdf).
One of the most highly-anticipated and impactful changes is the switch from the level of service (LOS) to VMT as the primary metric in analysis of transportation impacts. These updates were required by Senate Bill 743, which directed OPR to develop alternative methods for measuring transportation impacts. Due to the complexity of these changes, OPR has provided a Technical Advisory on Evaluating Transportation Impacts in CEQA (hyperlink to: http://opr.ca.gov/docs/20171127_Transportation_Analysis_TA_Nov_2017.pdf) to assist public agencies.
Some highlights from the proposed updates include:
- Appendix G: adds new questions related to Energy, VMT, and Wildfire;
- Guidelines section 15064.3 (SB 743): establishes VMT as the primary metric for analyzing transportation impacts, with agencies having a two-year opt-in period to make the transition easier;
- Energy impacts: includes changes to Appendix G and makes clear that analysis must include energy use for all project phases and include transportation-related energy;
- Guidelines section 15126.2, subdivision (a): adds the phrase “or risks exacerbating” to implement the California Supreme Court’s holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, requiring an EIR to analyze existing hazards that a project may make worse; and
- Guidelines section 15064.4: includes clarifications related to the analysis of greenhouse gas (GHG) emissions to reflect the Supreme Court’s decisions in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497 and Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 (“Newhall Ranch”)
As of December 2017, the Natural Resources Agency has not initiated the formal administrative rulemaking process under the Administrative Procedure Act. When formal rulemaking is initiated, there will be additional opportunities for public review, with the possibility of further revisions. The Secretary for the Natural Resources Agency could then adopt OPR’s proposed changes. The Office of Administrative Law would need to approve the changes before they could go into effect.
See http://opr.ca.gov/ceqa/updates/guidelines/ for more details, including information about how to register to receive updates from OPR on the status of the rulemaking process.