Author Archives: rmm_admin

RMM welcomes furry intern

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.

Friends of the College of San Mateo Gardens v. San Mateo County Community College District II

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.

Placerville Historic Preservation League v. Judicial Council of California

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.

Background

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:

  1. Appendix G: adds new questions related to Energy, VMT, and Wildfire;
  2. 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;
  3. 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;
  4. 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
  5. 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.

Elizabeth Pollock

Elizabeth Pollock

Senior Associate

Ms. Pollock joined the firm in 2015 and is a senior associate. Her practice focuses on land use and environmental law. Ms. Pollock handles all phases of the land use entitlement and permitting processes, including administrative approvals and litigation. Her practice covers the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), Section 4(f) of the Department of Transportation Act, natural resources, endangered species, air and water quality, and other land use and environmental statutes.

Ms. Pollock’s representative matters include:

  • Associate outside counsel to Tuolumne County on an update of its General Plan
  • Associate outside land use counsel to Love’s Travel Stops & Country Stores regarding its proposed travel stops in California
  • Associate outside counsel assisting the Los Angeles County Metropolitan Transportation Authority in its CEQA review of several transit and transportation projects and in litigation challenging the approval of various public transit projects
  • Associate counsel representing the developer (real party) in litigation defending Napa County’s approval and environmental review of a winery project
  • As associate counsel, successfully defended the Peninsula Corridor Joint Powers Board in litigation challenging the environmental review for the electrification and modernization project to improve the Caltrain commuter rail service on the San Francisco Peninsula
  • Associate counsel representing the developer (real party) in litigation defending the City of Los Angeles’s approval of an environmentally sustainable mixed-use housing building

As a law student at University of California, Davis (King Hall), Ms. Pollock served as Editor-in-Chief of Environs, the Environmental Law and Policy Journal. Prior to joining Remy Moose Manley, LLP, Ms. Pollock worked for six years as a Deputy Attorney III for the California Department of Transportation, and for one year as an Environmental Circuit Prosecutor for the Circuit Prosecutor Project. During her time working for Caltrans, she did a one-year rotation with the Governor’s Office of Planning and Research, where she assisted with drafting revisions to the CEQA Guidelines.

Ms. Pollock teaches land use and environmental law courses and seminars at the University of California, Davis Extension and for the Association of Environmental Professionals.

Education

  • J.D., University of California, Davis, King Hall School of Law, 2008 (Public Service Law Certificate)
  • B.S., Community and Regional Development, 2003 (with honors)

Professional Affiliations

  • State Bar of California, Environmental Law Section
  • Admitted to all California State Courts
  • U.S. District Courts, Northern, Eastern and Central Districts of California
  • U.S. Court of Appeals for the Ninth Circuit
  • Sacramento County Bar Association

Community Involvement

  • Volunteer Puppy Raiser, Canine Companions for Independence
  • Volunteer Coordinator, Theodore Judah Elementary School Kindness Campaign
  • Former Board Member, Yolo Community Care Continuum

Laura M. Harris

Laura M. Harris

Senior Counsel

Ms. Harris joined the firm in 2006 and is a senior counsel in the firm. Her practice focuses on land use and environmental law.  Ms. Harris handles all phases of the land use entitlement and permitting processes, including administrative approvals and litigation. Ms. Harris’s practice covers the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), the State Planning and Zoning Law, the federal Endangered Species Act (ESA), air quality, climate change, water quality, vehicle miles traveled, affordable housing, natural resources, endangered species, wetlands and related matters.

Ms. Harris assisted in the successful defense of appeals in several published decisions, including: Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714; Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187; Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (2015) 241 Cal.App.4th 627; Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296; and South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, as well as in the successful defense and prosecution of a cross-appeal in Planning and Conservation League et al. v. Castaic Lake Water Agency et al. (2009) 180 Cal.App.4th 210. Ms. Harris is currently actively defending several lawsuits brought under CEQA NEPA, and ESA.

Representative matters include:

  • Currently assisting the Los Angeles Metropolitan Transportation Authority in its CEQA and NEPA review of and land use litigation over various public transit projects.
  • Currently defending the City of Inglewood in its CEQA review of the Inglewood Transit Connector.
  • Currently assisting the Yuba County Water Agency in ESA litigation over the biological opinion and letter of concurrence adopted for the Daguerre Point Dam and Englebright Dam in the lower Yuba River.

Education

  • J.D., University of California, Davis, School of Law, 2006
  • B.A., Philosophy, University of California, Davis, 2002

Professional Affiliations

  • State Bar of California
    • Environmental Law Section
  • California State Courts
  • U.S. District Courts (Eastern, Central and Northern Districts)
  • Ninth Circuit Court of Appeals
  • Sacramento County Bar Association
    • Executive Committee (2010–2015); Chair (2016)
  • Former Chair, Sacramento County Bar Association, Environment Law Section Executive Committee (2016)
  • Editor, California Land Use Law and Policy Reporter (2010-2015)
  • Volunteer Editor, Continuing Education of the Bar, 2020 Municipal Law Handbook
  • Selected for inclusion in the 2020 Northern California Super Lawyers® magazine; selected for inclusion in the Rising Stars section (2010-2018)

Community Involvement

  • Strategic Fundraising Committee, Solar Cookers International

Brian J. Plant

Brian J. Plant

Of Counsel

Mr. Plant joined the firm as Of Counsel in 1996 after his tenure with the United States Department of Justice, Land Use and Natural Resources Division, and practice in the private sector.  Mr. Plant advises public agencies and private project applicants regarding the federal Clean Water Act, federal and state Endangered Species Acts, water quality matters, and the National Historic Preservation Act.  His particular experience is with project permitting and environmental regulatory compliance for infrastructure and transportation projects, master planned communities, mining projects, alternative energy projects, and business and industrial parks.

After graduating from U.C. Berkeley with a B.S. from the School of Conservation and Resource Studies with an emphasis in lake and stream ecology and resource management, Mr. Plant received his J.D. from McGeorge School of Law in 1986.  Mr. Plant served as a Trial Attorney with the United States Department of Justice in Washington, D.C. where he litigated environmental cases throughout the United States. Mr. Plant is a past Board Member of the Sacramento Metropolitan Chamber of Commerce and a past Board Member of the American River Parkway Foundation.  He periodically teaches continuing legal education classes and seminars for Law Seminars International and Lorman.

Representative matters include:

  • California “Water Fix” project: Outside counsel to the California Department of Water Resources for regulatory permitting with respect to the “California Water Fix” project, which involves proposed new water diversion and conveyance facilities for the State Water Project in the northern Sacramento-San Joaquin Delta.  Work with the Department on all phases of permitting associated with federal Clean Water Act section 404 and Rivers and Harbors Act requirements.
  • California High-Speed Rail Authority: Outside counsel regarding state-wide project permitting issues.  Work includes federal Clean Water Act compliance, federal Rivers and Harbors Act (Section 10 and 14), and state law including Porter-Cologne Water Quality Control Act and Fish and Game Code Section 1600 (Lake and Stream Bed Alternation program).
  • Various large scale residential/business park development, Central Valley: Provide analysis under CWA Section 404(b)(1) “Alternatives Analysis” and CWA “Guidelines.”  Work with clients to develop effective permitting strategies and guide applicants through Corps permitting requirements, inclusive of Section 106 of NHPA, Section 401 of the CWA, federal ESA, and CDFG Section 1600 stream bed alteration agreements.
  • Amoruso Ranch Specific Plan, Roseville:  Represent Brookfield Land in providing analysis under CWA Section 404(b)(1) “Alternatives Analysis” and alternatives for regional infrastructure. Work with clients to develop effective permitting strategies and guide applicants through federal and state resource agency permitting requirements, inclusive of Section 106 of NHPA, Section 401 of the CWA, federal ESA, and CDFG Section 1600 stream bed alteration agreements.

Education

  • J.D., University of the Pacific, McGeorge School of Law, 1986
    B.S., Conservation and Natural Resources with emphasis on aquatic/freshwater ecology, University of California at Berkeley, 1982

Professional Affiliations

  • California Bar Association
    • Environmental Law Section
  • Nevada Bar Association
  • Admitted and practiced before the Central and Eastern Federal Districts of California
  • Admitted and practiced before the United States Claims Court
  • Admitted and practiced before the Ninth Circuit Court of Appeals, and admitted to the District of Columbia Circuit Court of Appeals
  • Practiced before the federal courts of the following Districts and Circuits: the Western District of New York, the Eastern District of Virginia, the District of Minnesota, the Western District of Oregon, and the District of Louisiana.
  • Sacramento County Bar Association, Environmental Law Section

Waste Management

Waste Management

For over 20 years RMM attorneys have advised both public and private entities, including Waste Management of California, Inc., in the permitting and expansion of numerous municipal solid waste and hazardous waste landfills, transfer stations, and material recovery facilities throughout California. We have experience assisting lead agencies and project proponents in protecting health, safety and the environment through compliance with CEQA, the Integrated Waste Management Act (AB 939), the Tanner Act and the California Beverage Container Recycling and Litter Reduction Act. Our attorneys also have been involved in bioreactor, landfill-gas-to-energy, and other projects proposed to include emerging technologies in response to the problem of climate change and the need to reduce greenhouse gas emissions. Andee Leisy is the lead attorney at RMM working on waste management issues.

Golden State Warriors “Chase” Arena – Mission Bay, San Francisco

Golden State Warriors “Chase” Arena – Mission Bay, San Francisco

The Golden State Warriors proposed to construct an 18,500-seat event center to host the Warriors’ NBA games, and to provide a state-of-the-art venue for concerts and other functions. The project also includes two 11-story office buildings and retail uses. The 11-acre site is located in the Mission Bay area of San Francisco, adjacent to the bay. The proposal met with unrelenting opposition from a small group of benefactors of UC San Francisco, who wanted to reserve the property for medical research. The City certified the EIR and approved the project in December 2015. The project qualified for a “fast-track” litigation schedule under Assembly Bill 900.

The trial court and First District Court of Appeal both ruled that the EIR was adequate. (Mission Bay Alliance v. Office of Community Investment and Infrastructure (2016) 6 Cal.App.5th 160.) Groundbreaking occurred in January 2017, on the same day the California Supreme Court denied a petition for review, ending the litigation. The EIR prepared by the City has won an award of excellence from the Association of Environmental Professionals, and co-counsel Gibson Dunn received a “California Lawyer of the Year” award for its work. Whit Manley of RMM served as lead CEQA counsel for the Warriors, and argued the case at both trial and on appeal.