Author Archives: Veronika Morrison

Administrative Appeal Does Not Toll CEQA’s Statute of Limitations Where the Administrative Appeal Process Does Not Cover CEQA Issues

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In American Chemistry Council v. Department of Toxic Substances Control (Nov. 18, 2022) 86Cal.App.5th 146, the Department of Toxic Substances Control (DTSC) adopted a regulation listing spray polyurethane foam systems as a priority product of concern under California’s “Green Chemistry” law and the Safer Consumer Products regulations. The Fifth District Court of Appeal held that petitioners’ CEQA challenge to the listing decision was untimely. The court also held that the listing decision complied with the Administrative Procedure Act (APA) and was within the scope of DTSC’s authority.

Background

Spray foam systems are a popular type of spray-applied insulation. Since 2014, DTSC has identified spray foam systems as a potential priority product under its Safer Consumer Products program and the Green Chemical law. After preparing several technical studies, in March 2018, DTSC submitted a final regulatory package for the listing regulation to the Office of Administrative Law. At that time, DTSC also issued a notice of exemption under CEQA for the listing regulation. The Office of Administrative Law approved the listing on April 26, 2018.

On May 30, 2018, petitioner American Chemistry Council submitted an informal dispute resolution request to have the department withdraw the listing. This dispute resolution process was authorized by the Safer Consumer Products regulations. DTSC ultimately rejected the request and associated administrative appeal on February 25, 2019.

On August 9, 2019, the American Chemistry Council and General Coatings Manufacturing Corporation filed a petition for writ of mandate and complaint challenging the listing regulation under the APA and CEQA. The trial court rejected petitioners’ APA claims, but found that the department had violated CEQA. Both sides appealed.

The Court of Appeal’s Decision

DTSC argued that petitioners’ CEQA claim was time-barred under CEQA’s 180-day statute of limitations because petitioners did not file their lawsuit until more than a year after DTSC made its listing decision. Petitioners claimed that DTSC’s listing decision was not final until the informal dispute resolution and appeal process was complete, so the statute of limitations did not begin to run until that time. The Court of Appeal agreed with DTSC, holding petitioners’ CEQA claim was time-barred.

The Court of Appeal first explained that the Safer Consumer Products’ regulatory structure for administrative appeals does not cover CEQA issues. The court observed that the dispute resolution and appeal process set forth in the Safer Consumer Products regulations is limited to a subset of disputes arising out of those same regulations. Nothing in the dispute resolution regulations suggests that CEQA issues may be resolved as part of that process. Accordingly, petitioners were under no duty to exhaust their administrative remedies under CEQA through that dispute resolution process.

Petitioners argued that, even if they were not required to exhaust their administrative remedies on their CEQA claims through the Safer Consumer Product’s dispute resolution process, the statute of limitations under CEQA did not begin to run until the administrative appeal process was completed because there was no final agency action until that process was resolved. The court rejected this argument, explaining that CEQA’s limitations period begins to run on the date the project is approved by the public agency. That period is not retriggered on each subsequent date that the public agency takes some action toward implementing the project, such as DTSC’s decision to deny the administrative appeal.

Here, by the time the Office of Administrative Law approved and filed the regulatory packet on April 26, 2018, DTSC had publicly voiced its intent to list spray foam systems as a priority product, taken and responded to public comments on that decision, issued a notice of exemption under CEQA, and released a final statement of reasons for the action. At that point, DTSC had made a firm commitment to the listing. Thus, the court determined, the statute of limitations on the CEQA claim began to run no later than April 26, 2018, when the Office of Administrative Law approved the listing. Because petitioners did not file their lawsuit within 180 days of that date, the CEQA claim was time-barred.

The court also held that DTSC did not exceed its authority under the Green Chemistry law or violate the APA in listing spray foam systems as a priority product. Contrary to petitioners’ arguments, DTSC was not required to establish a set exposure level for the chemical in question because the Green Chemistry law focuses on potential for exposure, not the extent of exposure. Further, the record supported DTSC’s conclusion that even a miniscule exposure could harm certain individuals. Additionally, DTSC substantially complied with applicable requirements governing the listing’s economic-impact analysis. And DTSC had a rational basis for rejecting voluntary alternatives to the listing decision.

–Laura Harris

SECOND DISTRICT HOLDS 90-DAY LIMITATIONS PERIOD FOR ACTIONS TO “ATTACK, REVIEW, SET ASIDE, VOID, OR ANNUL” LAND USE DECISIONS, RATHER THAN 4-YEAR PERIOD PROVIDED BY POLITICAL REFORM ACT, APPLIED TO ACTION CHALLENGING ALLEGEDLY CORRUPT PERMITTING DECISIONS

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In AIDS Healthcare Foundation v. City of Los Angeles (2022) 86 Cal.App.5th 322, the Second District Court of Appeal held that the 90-day statute of limitations in Government Code section 65009, for actions to “attack, review, set aside, void, or annul” certain land use decisions, barred challenges to land use decisions made by City officials alleged to be involved in an extensive bribery scheme.

Background

The Los Angeles City Council planning and land use management (PLUM) committee has various roles, including reviewing and recommending proposed real estate development projects. In 2020, one former member of the PLUM committee was arrested, and another was indicted, for allegedly accepting bribes and engaging in other corrupt behaviors in relation to PLUM committee work. Both members left the PLUM committee in the fall of 2018.

In August 2020, AIDS Healthcare Foundation (AHF) filed suit against the City, alleging that an “ongoing corruption scandal regarding the approval of real estate projects” violated the Political Reform Act of 1974 (PRA or Act). AHF sought an order restraining all building permits granted by the City while the corrupt former members served on the PLUM committee, as well as an order restraining the City from supporting any of the affected projects with taxpayer money.

The City demurred to AHF’s complaint, arguing that the claims were time-barred. The superior court sustained the demurrer, concluding that the action had not been brought within the applicable 90-day statute of limitations. AHF appealed.

Court of Appeal’s Decision

Applicable Statute of Limitations

In the trial court, AHF argued that the PRA provided the applicable statute of limitations. The PRA permits suits for injunctive relief where public officials are alleged to have used their official position to influence government actions for their own personal financial interests. Relevant here, the PRA permits courts to set aside official actions tainted by violations of the Act. The PRA includes a four-year statute of limitations for civil actions brought under the Act.

On appeal, AHF argued instead that the three-year “catch-all” statute of limitations for statutorily-created liability in Code of Civil Procedure section 338, subdivision (a) applied to the action. The City consistently argued that the 90-day limitations period provided by Government Code section 65009 for actions “to attack, review, set aside, void, or annul” various land use and zoning decisions applied to the action.

The Second District agreed with the City that the 90-day statute of limitations barred the action. Citing Ching v. San Francisco Bd. of Permit Appeals (1998) 60 Cal.App.4th 888 (Ching), which addressed a similar question, the court reasoned that the plain language of section 65009 encompassed AHF’s action. The Ching court noted that section 65009 had no exceptions for actions brought under the PRA. Additionally, the Ching court explained that “specific statutes control general ones” and thus held that the more specific 90-day statute of limitations in section 65009 applied to the type of challenge at issue, rather than the general limitations period provided by the PRA. After reviewing Ching and other similar opinions, the court concluded that section 65009 provided the applicable limitations period for AHF’s action.

Gravamen of the Complaint

Seeking to avoid the 90-day limitations period, AHF argued that the gravamen of its action was a challenge to corruption by City officials, even if the ultimate relief sought was the invalidation of improperly-issued permits.

The court rejected AHF’s argument, explaining that AHF could not escape the short limitations period by characterizing its claim as “necessarily dependent on a finding of a violation of the PRA,” rather than a challenge of project approvals by the PLUM committee.

Constitutional Considerations

Acknowledging that the California Constitution generally limits the Legislature’s power to amend or repeal initiative statutes, the court nevertheless rejected AHF’s argument that applying the limitations period in section 65009 to the action constituted “an unconstitutional legislative amendment to a duly-enacted voter initiative” for several reasons.

First, the court noted that the PRA contained express provisions allowing amendments to the Act by the Legislature, and that AHF failed to address these provisions in its briefing. Second, recognizing that the limitations period in section 65009 pre-dated the PRA by almost 10 years, the court remarked that the Legislature could not have intended to limit or amend the PRA in enacting section 65009. Third, the court explained that the four-year limitations period in the PRA was added by a later legislative amendment, not by voter initiative. Thus, the limitations period in the PRA was not enacted by voter initiative, as AHF claimed. Finally, even if the electorate had enacted the PRA’s four-year limitations period through an initiative, the court reasoned that the electorate did nothing to expressly abrogate other existing and potentially applicable statutes of limitations when it passed the PRA. For these reasons, the court held that the application of the pre-existing 90-day limitations period provided in section 65009 to the PRA action did not conflict with or amend the original PRA.

Policy Arguments

While AHF urged that important policy reasons justified the application of a longer limitations period to “discover and ferret out corruption,” the court declined to consider the policy goals underlying both the PRA and section 65009. The court explained that the statutory language of 65009 contained no ambiguity, and thus, it was required to apply the 90-day limitations period contained therein to AHF’s action.

— Louisa Rogers

FIRST DISTRICT UPHOLDS LESS THAN SIGNIFICANT IMPACT DETERMINATION FOR BIOLOGICAL RESOURCES BASED ON SURVEY THAT PREDATES THE NOP, AND ON PUBLIC SAFETY BASED ON CITY STAFF EXPERTISE

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In Save North Petaluma River and Wetlands v. City of Petaluma (2022), 86 Cal.App.5th 207, the First District Court of Appeal upheld an EIR’s analysis of an apartment complex’s impacts on biological resources and public safety. The court concluded that the EIR’s reliance on a special status species survey conducted several years before the NOP was issued, as well as review of more recent databases, was sufficient to support its conclusion that the Project would have a less than significant impact. It also concluded that the City’s reliance on its staff’s expertise was sufficient to support its conclusion that the Project would not have a significant impact on public safety related to emergency evacuation.

Background

In 2007, the City published a Notice of Preparation (NOP) for a 312-unit apartment complex in the City of Petaluma. In May 2008, the applicant submitted an application for a smaller 278-unit complex to comport with the City’s newly adopted 2025 General Plan. In March 2018, the City published a draft EIR for the complex, which included a 2004 consultant report on special status species in the Project area. In October 2019, the City issued a final EIR for the Project, concluding that the changes made in the reduced-scale version of the complex eliminated or reduced several of the potentially significant impacts identified in the Draft EIR. The Planning Commission recommended that the City Council certify the final EIR, but did not recommend approving the necessary zoning amendments.

In January 2020, in response to public comment and input from public agencies, the applicant submitted a second reduced version of the Project with 180 units (hereinafter, the Project), reducing the building footprint and increasing the setback from the Petaluma River, preserving two wetlands near the river and avoiding development in the River Plan Corridor, and preserving additional trees with a flood terrace design adjustment. A City staff report determined that this second revised version of the Project reduced impacts and addressed the Planning Commission’s concerns regarding the zoning amendments, and concluded that the second revised Project was within the reasonable range of alternatives addressed in the EIR and would not result in new or more substantial impacts compared to prior versions. The City certified the EIR and overturned the Planning Commission’s denial of zoning amendments. In February 2020, the City approved the zoning amendments by ordinance.

Save North Petaluma River and Wetlands and Beverly Alexander (Petitioners) field a petition for writ of mandate challenging the adequacy of the EIR on several grounds. The trial court denied the petition and Petitioners appealed.

Court of Appeal’s Decision

Special Status Species Impact Analysis

The court rejected Petitioners’ argument that the EIR’s impact analysis of special status species was deficient.

It explained that the EIR did not fail to investigate the project’s baseline conditions as of 2007 when the NOP was published because the 2004 special status species survey was based on current data at the time, and the EIR included database reviews from more recent years—as recent as 2017. The court further explained that there is no authority suggesting that CEQA is violated where an EIR’s analysis is drawn from site visits, studies, and habitat evaluations undertaken both before and after the NOP. Further, the court noted that Petitioners did not cite any evidence that the biological conditions at the Project site differed from 2004 to 2007, or in later years when updated databases were consulted.

Moreover, the court reasoned that Petitioners failed to challenge the EIR’s description of existing conditions and habitats on the undeveloped Project site, and that there is no evidence that the EIR omitted or inaccurately described the material aspects of the biological conditions on or near the Project site. The court distinguished this case from a string of cases where an EIR purported to measure impacts based on conditions that did not exist on the Project site or on conditions that were forecasted to exist at some point in the distant future. (See, e.g., Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.)

The court held that the EIR’s references to studies and site visits constitute substantial evidence supporting its special status species analysis because factual information in the EIR itself may constitute substantial evidence in the record to support the agency’s action on the project. (CEQA Guidelines, § 15121, subd. (c).) The court explained that it is appropriate to cite, but not include such documents in the EIR.

Therefore, the court held that the EIR’s analysis and information upon which it relied regarding the Project’s impacts on special status species was sufficient, and accordingly rejected Petitioners’ further contend that the EIR failed to offer recommendations that would adequately mitigate the Projects impacts on these species.

Emergency Evacuation & Public Safety Impact Analysis

The court also rejected Petitioners’ argument that the EIR was deficient because it omitted an analysis of egress and evacuation safety based on public comment documenting flooding and grass fires in the area. The court instead held that the EIR’s conclusion that the Project would not impair implementation of, or physically interfere with, an adopted emergency response plan or emergency evacuation plan was supported by substantial evidence, noting thde EIR’s adoption of the 2013 California Fire Code, consultation with the Petaluma Fire Department, and incorporation of additional recommendations and approval from the City Fire Marshal.

The court also explained that an agency may rely on the expertise of its staff to determine that a project will not have a significant impact, and that the City therefore appropriately relied on a City staff memorandum corroborating the public safety analysis in the EIR and reflecting information from the City’s Assistant Fire Chief confirming that the Fire Department does not have significant flood or fire access or egress concerns with development above the 100-year floodplain at the site. Additionally, the court rejected Petitioners’ claim that the City staff memorandum is improper post-EIR analysis, distinguishing this case from Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86.

–Veronika Morrison

FIRST DISTRICT HOLDS THAT A HIGH SCHOOL’S INSTALLATION OF FOUR 90-FOOT LIGHT TOWERS FOR ATHLETIC STADIUM IS NOT CATEGORICALLY EXEMPT FROM CEQA

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In Saint Ignatius Neighborhood Association v. City and County of San Francisco (2022) 85 Cal.App.5th 1063, the First District Court of Appeal held that the installation of four 90-foot light towers in a high school’s athletic stadium is not exempt from CEQA under the class 1 and class 3 categorical exemptions.

Background

Saint Ignatius College Preparatory High School is located in the City of San Francisco’s “Outer Sunset District.” The school has an athletic stadium with a 2,008-person capacity, situated across the from several two-story, single-family homes. In February 2018, the school applied for approval of the installation of four permanent 90-foot-tall outdoor light towers on its athletic field. In June 2020, the City’s planning department determined that the project was categorically exempt from CEQA under the class 1 exemption for existing facilities and the class 3 exemption for new construction or conversion of small structures. (See CEQA Guidelines, §§ 15301, 15303.)

In July 2020, the Planning Commission upheld the exemption determinations and approved a conditional use permit for the project with several conditions, including that the lights be used no more than 150 nights per year, as well as other various time and event size restrictions. The Planning Commission also required close communication with neighbors about events and the distribution of a large-event management plan and code of conduct for event attendees. The Board of Supervisors affirmed the planning department’s exemption determination and approved the conditional use authorization with additional and stricter conditions related to time restrictions, event size restrictions, required use reporting by the school, off-site parking accommodations, and the addition of trees to serve as a light screen for neighboring homes.

The Saint Ignatius Neighborhood Association filed suit, alleging that the City erred in exempting the project from CEQA, and that its approval was inconsistent with its planning code and General Plan. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

Class 1 “Existing Facilities” Exemption

The class 1 exemption applies to “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of the existing or former use.” (CEQA Guidelines, § 15301.)

While the court agreed with the City’s findings that the project will not increase the overall capacity and use of the stadium, it concluded that the project will significantly expand the nighttime use of the stadium. The court pointed to the “undisputed” fact that nighttime use, during which temporary lighting is used, will significantly expand from the current 40 to 50 nights per year, to potentially 150 nights. The court also noted petitioner’s assertion that the current use of temporary lighting is unauthorized. Accordingly, the court found that the class 1 exemption for “existing facilities” did not apply.

Class 3 “Small Structures” Exemption

The class 3 exemption applies to “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.” (CEQA Guidelines, § 15303.) To determine what constitutes a “small” structure pursuant to the class 3 exemption the court looked to the examples listed in the exemption. While acknowledging that this list is not exhaustive, the court stated that “the examples do provide an indication of the type of projects to which the exemption applies.”

The court found that “[t]he light standards are fundamentally dissimilar from all of the examples,” which primarily include residential and commercial structures below certain unit and square footage maximums, utility structures, and accessory structures such as garages and fences. The court decided that looking at only the square footage of the base of the light towers was inapposite. It explained that commercial and residential structures were subject to applicable zoning requirements that ensure their height will be consistent with the surrounding neighborhood, whereas here, the 90-foot-tall light towers will be “significantly taller than any other structure in the neighborhood,” where homes are typically 20 to 25 feet tall with a zoning limitation of 40-feet. Consequently, the court determined that “a 90-foot tall light standard does not qualify as ‘small’ within the meaning of the exemption.”

The court also distinguished the instant case from a string of cases allowing the class 3 exemption to apply to several telecommunication projects, including a cell tower (Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338) and cell transmitters on utility poles (Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039), by highlighting that the light towers, unlike a 35-foot-tall cell tower to be situated amongst tall trees or the installation of transmitter boxes on existing utility poles, will be 90-feet tall and “by far the tallest structure in the surrounding area.” Accordingly, the court held that “the light standards cannot fairly be considered small structures within the meaning of the class 3 exemption.”

Unusual Circumstances Exception & General Plan Consistency

Because the court found against the use of both exemptions based on its interpretation of exemption language and the evidence in the record, it declined to address petitioner’s alternative argument that “unusual circumstances preclude application of the exemptions” or the claim that the City violated its code and General Plan.

By Casey Shorrock

Third District Holds Bumble Bees are “fish” under the California Endangered Species Act, Can Be Listed as Endangered or Threatened Species

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In Almond Alliance of California v. Fish and Game Commission (2022) 79 Cal.App.5th 337, the Third District Court of Appeal held that bumble bees fall under the general definition of “fish,” as the term is defined in the California Fish and Game Code, because the definition includes terrestrial, as well as aquatic, invertebrates. Accordingly, bumble bees, which are terrestrial invertebrates, may receive protected status as endangered or threatened species under the California Endangered Species Act (“CESA”).

Background

In October 2018, several public interest groups petitioned the California Fish and Game Commission (“Commission”) to list four species of bumble bees as endangered. Soon after, the California Department of Fish and Wildlife (“Department”) issued a report declaring sufficient evidence for the Commission to accept the petition to list the species. The Commission acted accordingly, declaring the bee species as “candidate” species for further review by the Department.

In September 2019, Petitioners challenged the Commission’s decision to list the bumble bees as candidate species. They alleged the Commission violated its legal duty and abused its discretion because bumble bees are terrestrial invertebrates not included in CESA’s protections for “bird[s], mammal[s], fish, amphibian[s], reptile[s], or plant[s].” Furthermore, they asserted that section 45’s definition of “fish,” which includes invertebrates, refers only to aquatic invertebrates.

The trial court ruled for petitioners. The Commission, the Department, and several public interest groups appealed.

The Court of Appeal’s Decision

Section 45 Definition of “Fish” as Applied to Sections 2062, 2067, and 2068 of CESA

“Fish” as defined in section 45 of the California Fish and Game Code means “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”  The Commission contended that this definition applies to the provisions of CESA which define endangered, threatened, and candidate species—sections 2062, 2067 and, 2068, respectively.

The Court agreed with the Commission, citing legal precedent and CESA’s legislative history. Specifically, the Court reaffirmed the holding in California Forestry Association v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535 that section 45 defines “fish” as the term is used in sections 2062 and 2067 of CESA. Additionally, the Court identified several instances in which the Legislature used or acquiesced to the use of the section 45 definition. For example, the Court highlighted that the Legislature expressly used the section 45 definition of “fish” when it enacted CESA, though it was within the purview the Legislature to create its own definition. Relatedly, the Legislature amended section 45 after the California Forestry Association decision, but stopped short of signaling its contrary intent from the holding in that case. Based on this evidence, the Court concluded that the Legislature intended for the word “fish” in sections 2062, 2067, and 2068 of CESA to take on the meaning as defined in section 45.

“Fish” Is a Term of Art Not Limited to Aquatic Species 

Petitioners asserted that even if section 45 applies to sections 2062, 2067, and 2068, the term invertebrates in the definition of “fish” should be read as being limited to aquatic invertebrates. However, the Court espoused the more technical definition of “fish” that encompasses all terrestrial and aquatic species that fall under the categories of “mollusks, invertebrates, amphibians, and crustaceans.”

The Court described how legislative history supports this definition. It explained that at the time CESA was enacted, several bill analysis reports noted that the Commission had the authority to designate insects as endangered or threatened. Additionally, the Court highlighted that the Commission previously approved a terrestrial mollusk and invertebrate, the Trinity Bristle Snail, as an endangered species and expressly reaffirmed its status upon CESA’s enaction. The Trinity Bristle Snail’s endangered status is an explicit example of the Commission using its authority to protect terrestrial invertebrates under the section 45 definition of “fish.”

Additionally, the Court noted that previous caselaw directs it to construe laws providing for the conservation of natural resources liberally.

Construing CESA liberally, and considering the legislative intent behind CESA, the Court concluded that “a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under [CESA].”

— Jordan Wright

Third District Holds EIR’s Project Objectives Were Too Narrow and Recirculation Was Required Due to Increase in Significant and Unavoidable GHG Emissions

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In We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal. App.5th 683, the Third District Court of Appeal held that Siskiyou County’s environmental analysis of a bottling plant was deficient because the project objectives were too narrow, and because the County failed to recirculate the EIR despite a discrepancy in the estimated carbon dioxide emissions from the draft EIR to the final EIR (FEIR). Though the discrepancy did not change the EIR’s ultimate conclusions, recirculation was necessary to provide the public with meaningful opportunity to review and comment on the project’s environmental impacts. In We Advocate Through Environmental Review v. City of Mount Shasta (April 12, 2022, No. C091012) ___ Cal.App.5th___ [2022 WL 1487832], petitioners challenged city’s approval of wastewater permit for the same project.

Background

Real Party in Interest, Crystal Geyser, purchased a non-operational bottling facility in Siskiyou County in 2013, seeking to revive the plant for beverage production. To initiate the project, Crystal Geyser requested permits from the County to build a caretaker’s residence, and the City of Mount Shasta for discharging wastewater into the City’s sewer system. Both permits were approved.

We Advocate Through Environmental Review and the Winnehem Wintu Tribe sued the County alleging the EIR violated CEQA because it (1) provided an inaccurate description of the project, (2) defined the project’s objectives in an impermissibly narrow manner, (3) improperly evaluated several of the project’s impacts, and (4) approved the project though it would be inconsistent with the County’s and City’s general plans.

The trial court rejected all of petitioners’ claims. This appeal followed.

The Court of Appeal’s Decision

The Court of Appeal reversed the trial court in part, holding in the published portions of the decision that the project objectives were too narrow and that recirculation was required because the FEIR estimated that the project would generate significantly more carbon dioxide emissions than disclosed in the DEIR. The fact that the DEIR concluded that this impact was significant and unavoidable did not mean the increase in greenhouse gas emissions was “insignificant” under CEQA.

Project Objectives

The Court agreed with Appellant’s contention that the EIR defined the project objectives too narrowly, because the County defined the project objectives in a manner that precluded all alternatives other than the proposed project. For example, one objective was to “site the proposed facility at the Plant . . . to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property.” Another objective aimed to “utilize the full production capacity of the existing plant based on its current size.” According to the Court, this narrow approach was unacceptable because it transformed the alternatives section of the EIR into an “empty formality,” rather than served the purpose of enabling meaningful environmental review of a project. The Court concluded the County’s error was prejudicial because it foreclosed viable alternatives.

Climate Change Impacts Analysis

Appellants challenged the EIR’s discussion and mitigation of climate change impacts, arguing (1) the County failed to recirculate the EIR to address the discrepancy in carbon dioxide emissions estimations between the DEIR and the FEIR, (2) the County failed to analyze foreseeable emissions from “preform” bottles, and (3) the EIR’s mitigation measures were not properly amended to reflect the emissions change from the DEIR to the FEIR.

The Court agreed that the County violated CEQA by failing to recirculate the EIR after changing the greenhouse gas emissions estimate from 35,486 metric tons of carbon dioxide per year in the DEIR, to 61,281 metric tons in the FEIR. The County argued recirculation was unnecessary because the impact remained above the “significant and unavoidable” threshold in both versions of the EIR. The Court held that the estimated increase of over 25,000 metric tons of carbon dioxide per year between the versions was significant enough to require recirculation, though it did not change the EIR’s ultimate conclusions. Failing to recirculate “wrongly deprived the public of a meaningful opportunity to comment on a project’s substantial environmental impacts.”

The Court rejected Appellants’ other arguments regarding climate change impacts. On the subject of “preforms,” the Court rejected Appellants’ argument because they failed to concretely show that “each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced.” Additionally, the Court held that the mitigation measures were valid and enforceable because the County revised and reevaluated mitigation measures to reflect increased emissions in the FEIR.

— Jordan Wright

First District Holds Stipulated Federal Court Judgments Do Not Preclude Independent Review Under CEQA

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In Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, the First District Court of Appeal held that Marin County properly limited the scope of its environmental review to comport with its legal obligations pursuant to two stipulated federal judgments. In the same vein, the Court rejected appellants’ claim challenging the scope of the EIR’s project description, which incorporated the constraints imposed by the judgments. The Court also rejected appellants’ claims that the County abused its discretion by rejecting a scaled down project alternative, and making several mitigation findings for impacts to traffic safety and density, a threatened species, and water supply and fire flow.

Background

Real Party in Interest, the Martha Company (Martha), owns a 110-acre property on a mountaintop in Marin County that overlooks the Town of Tiburon. For several decades, Martha attempted to develop single family homes on the property, yet all proposed projects befell to forceful opposition from residents of the Town of Tiburon and the County.

The current dispute is predated by two stints in federal court that resulted in stipulated judgements.

The first federal case occurred in 1975, when the County adopted a re-zoning measure that drastically reduced the number of residences Martha could build on the property from a minimum of 300 to a maximum of 34. Martha sued the County in federal district court, alleging the re-zoning constituted a regulatory taking of property. The case resolved in 1976 by stipulated settlement that (1) Martha could develop no fewer than 43 single family homes on a minimum of half-acre lots; (2) Martha could place some homes on portions of the property named the Ridge and the Upland Greenbelt; and (3) 43 single family homes on half-acre lots is consistent with the goals of the County’s general plan while allowing owners a feasible economic use of their property.

Between federal cases, Martha submitted a project proposal to the County, which directed Martha to file an application with the Town of Tiburon for approval. The Town conducted years of environmental study without rendering a decision, and eventually Martha withdrew its application. In 2005, Martha submitted a new project proposal. The County refused to process Martha’s second application just as it refused to process the first.

The County returned to federal court, seeking relief from the 1976 stipulated settlement. It alleged that California environmental laws had changed in the 30 years since 1976, such that it would be against public policy of the state to “allow a development of this magnitude, on environmentally sensitive and constrained land to proceed without the development and density being subject to CEQA review.” The district court dismissed the County’s complaint and granted the 2007 stipulated settlement, which set a timeline and procedures for enforcing the 1976 judgement.

Martha submitted a third development application for a 43-unit residential development project (the Project). The County circulated a draft EIR for the project in 2011.

In 2017, after years of administrative proceedings, further environmental review, and litigation concerning the project, Martha submitted a modified Master Plan of the development project to comply with the County Board of Supervisors’ request for a “more specific proposal.” Additionally, Martha agreed to a phased review of its development application. The Marin County Board of Supervisors certified the EIR by a 3-2 vote.

Tiburon Open Space Committee and the Town of Tiburon (collectively, the Town) each filed petitions for a Writ of Mandate against the County, alleging the EIR was legally inadequate in numerous respects, and the County’s review process was legally deficient. The trial court denied both petitions. The Town appealed.

The Court of Appeal’s Decision

Implications of the Stipulated Judgments

The Town’s principal allegation was that the County violated CEQA by failing to exercise the full measure of its statutory discretion when it complied with the stipulated judgements. In essence, the Town claimed the County illegally “contracted away its police powers.”

The Court of Appeal rejected these claims, explaining that the Board proceeded “along lines that are in fact expressly embedded in CEQA,” and did not circumvent its obligations under the statute.

First, the Court concluded that the EIR was not a “pro forma” exercise, nor had a preordained outcome as the Town contends. The Court underscored the fact that the EIR underwent several revisions, spanned 850 pages, involved consultation with other agencies, provided meaningful opportunity for public review and comment, and cost considerable time and money. Furthermore, the County retained discretion to shape the contours of the Project during the later phases of approval. Specifically, the Court noted, the EIR proceedings were not “rushed, perfunctory, or short circuited” and were “utterly at odds with the conduct of a public entity that believed itself free to blow off CEQA.”

Second, the County appropriately limited its CEQA analysis to the scope of its discretionary authority. The Court cited Sequoyah Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 for the holding that an agency’s discretion under CEQA is limited by its own legal obligations. For example, the Court remarked that CEQA imposes a duty to mitigate environmental impacts only to the extent feasible. Applied here, the County had a legal obligation to comply with the conditions imposed by the stipulated judgements. Since the stipulated judgments limit the scope of the County’s discretion by requiring certain conditions for the project be met, they also limited the scope of its environmental review. Thus, while legally feasible alternatives and mitigation measures had to be examined by the County, alternatives or mitigation measures that contradicted its obligations under the stipulated judgements were legally infeasible and did not need to be examined. Accordingly, the Court held that the County’s approval of a project that complied with the conditions set by the stipulated settlements was proper.

The Town also raised a corollary argument that the stipulated judgements deprived the members of the County Board of Supervisors from exercising their “independent judgement.” The Court refuted this argument by highlighting its logical flaw; that is, if it can be said that federal judgements are not binding on a public official’s independent discretion, then it can equally be said that inconvenient provisions of state law, namely CEQA, are not binding on independent discretion either.

The Court therefore concluded that the EIR fulfilled the central purpose of CEQA to “disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose,” and the County’s review process appropriately limited the scope of its environmental review to match its discretionary authority.

Project Description

The Court also rejected the Town’s claim that Final EIR’s 34-page project description was “artificially narrow” because it incorporated the legal constraints imposed by the stipulated judgments. The Court explained that the project description provided more detail than CEQA requires, and this argument was a mere variation of the claim that the County “abdicated” its responsibilities under CEQA by complying with the judgments—which it already rejected.

Alternatives

The Court held that the County did not abuse its discretion by rejecting a 32-unit alternative because that alternative was legally infeasible due to the legal requirements imposed by the stipulated judgments. It emphasized that an EIR is not required to review infeasible alternatives “even when such alternatives might be imagined to be environmentally superior.”

Environmental Impacts and Mitigation Findings

The Court of Appeal held that substantial evidence supported the County’s findings that several of the Project’s impacts would be mitigated to a less than significant level.

First, the Court upheld the County’s finding that traffic safety impacts could be mitigated by measures that required the Town to implement them—including removing traffic obstacles such as trash receptacles and enforcing speed limits on narrow winding road. The Court explained that CEQA only requires a “reasonable plan” for mitigation and allows for the approval of a project with a finding that mitigation should be adopted by another entity that has exclusive jurisdiction.

The Court also concluded that substantial evidence supported the EIR’s “level of service” (LOS) methodology for calculating the Project’s traffic density impacts, noting that LOS was an established standard required in the County. Quoting the trial court, the Court of Appeal held that the traffic analyst was entitled to rely on this methodology because it “had the prerogative to resolve conflicting factual conclusions” about the traffic congestion impacts of the Project.

The Court upheld the EIR’s use of best management practices (BMPs) for the mitigation of impacts on the threatened California red-legged frog. It explained that the BMPs did not defer mitigation, but rather qualified as “revisions in the project plans” agreed to by Martha because they were accepted as conditions of approval. Further, the Court noted, the BMPs were already in existence because they were included in the Project’s Stormwater Control Plan. Accordingly, the Court determined that the BMPs were incorporated by reference in the EIR.

The Town’s claims regarding the County’s water supply and fire flow mitigation measures were barred due to its failure to exhaust the issues during the County’s administrative process. The Court nonetheless concluded that the measures requiring Martha to work with local water and fire authorities were sufficient and would not allow Martha to do “nothing” because failing to comply would result in the County not issuing the permits required to proceed with the Project. The Court also concluded that the Town’s demand for more detail in the water supply plan went beyond what CEQA requires.

Lastly, the Court concluded that substantial evidence—specifically, construction and traffic experts’ opinions—supported the County’s determination that mitigation would reduce the Project’s safety impacts resulting from a temporary on-site construction road to less than significant. The Court explained that alternative evidence does not negate the substantial evidence that the County relied on, and that it is within the agency’s discretion to evaluate the credibility of such evidence. It also emphasized that the safety risks were limited to the workers building the Project, and CEQA only requires review of safety risks posed to the public in general.

The Court’s Closing Remarks

The Court of Appeal concluded its opinion by expressing its inclination to afford the trial court’s decision great weight in counties with designated CEQA judges. The Court also generally criticized the use of CEQA lawsuits as “tool[s] of obstruction,” especially for housing developments.

— Jordan Wright & Veronika Morrison

SECOND DISTRICT FINDS LOS ANGELES’S 15 PERCENT AFFORDABLE HOUSING SET-ASIDE INOPERATIVE

General Posted by   

In AIDS Healthcare Foundation v. City of Los Angeles (2022) 78 Cal.App.5th 167, the Second District Court of Appeal rejected claims challenging the City of Los Angeles’s decision to approve the development of a large mixed-use apartment building in Hollywood. The court upheld the decision of the Superior Court, finding that a 15 percent low income set-aside requirement had been voided by 2011 legislation and, even if it had not, the set-aside requirement applied only to the aggregate amount of dwelling units within a planning area, not to individual projects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, the (now dissolved) Community Redevelopment Agency of the City of Los Angeles (CRA-LA) established the “Hollywood Redevelopment Plan” (HRP) in accordance with the City of Los Angeles’s (City’s) “Community Redevelopment Law” (CRL). Both the HRP and CRL included a requirement that at least 15 percent of all new and rehabilitated dwelling units within a total project area be reserved for families of “low or moderate income.” However, the local redevelopment agencies charged with preparing and executing these plans had no power to tax, and instead funded their activities using “tax increment” financing.

Under this financing scheme, public entities that were entitled to receive property tax revenue received such revenues from properties within the planning area based on their assessed value prior to the effective date of the applicable redevelopment plan. Any tax revenue received in excess of that amount was a “tax increment.” However, in 2011, the Legislature enacted the “Dissolution Law,” which dissolved redevelopment agencies and repealed any provisions of the CRL that depended upon tax increment financing. “Successor agencies” acquired the former redevelopment agencies’ “housing functions and assets,” but were to have no “legal authority to participate in redevelopment activities, except to complete any work related to an approved enforceable obligation.”

In January 2019, the City’s Advisory Agency approved a tentative tract map for a 26-story mixed-use building on a 0.89-acre plot within the HRP planning area (developed by 6400 Sunset, LLC, the real party in interest). The project involves approximately 200 dwelling units, of which 5 percent will be reserved for “very low income households.” Coalition to Preserve LA (CPLA) appealed the Advisory Agency’s approval to the City Planning Commission, arguing that a reservation of only 5 percent of units for affordable housing would violate the CRL/HRP requirement of 15 percent. The Planning Commission denied CPLA’s appeal in March 2019. CPLA’s appeal of that decision, to the City Council’s Planning and Land Use Management Committee, was also denied in June 2019.

In July 2019, CPLA (joined by AIDS Healthcare Foundation) filed a petition for writ of mandate. The superior court denied the petition on the grounds that the pertinent provisions of the CRL had been repealed and, even under the CRL’s language, the 15 percent requirement “need not be imposed on each individual project,” but only to buildings within the planning area “in the aggregate.” CPLA and AIDS Healthcare Foundation timely appealed.

THE COURT OF APPEAL’S DECISION

The Court of Appeal agreed with the superior court on both counts, holding that the Dissolution Law had effectively repealed the 15 percent requirement and that, even if it had not, the requirement applied to the number of dwelling units within the CRL planning area as a whole—not individual projects.

Under the Dissolution Law, “all provisions of the [CRL] that depend on the allocation of tax increment to redevelopment agencies . . . shall be inoperative.” The court agreed that because enforcement of the 15 percent requirement depended upon redevelopment agencies, and redevelopment agencies in turn depended upon the funds supplied by the tax increment, this requirement was also rendered inoperative. The appellants countered that redevelopment agencies could raise funds by issuing bonds, but the court reasoned that “bonds . . . have to be repaid, and the former agencies repaid the bonds, generally, from the same source of funds used to pay other obligations—from the tax increment.”

The appellants also argued that the 15 percent requirement was an “enforceable obligation” under the Dissolution Law, which the successor agency (here, the City) was required to perform. The court, however, found that such obligations related only to “monetary and existing contractual obligations,” not to statutory affordable housing requirements. The appellants countered that the City, as the former CRA-LA’s successor agency, is not limited to the statutory powers enumerated under the CRL and, therefore, the 15 percent requirement could be enforced under the City’s “inherent police power.” The court remained unpersuaded. Even assuming that the City is CRA-LA’s successor agency, the Dissolution Law did not grant the successor any powers that the former redevelopment agency did not have (such as general police powers).

The court also rejected appellants’ argument that, even if the Dissolution Law rendered the CRL’s 15 percent requirement inoperative, the HRP’s own 15 percent requirement remained intact. According to the court, the HRP and its powers applied only to CRA-LA (not the City), and that agency was dissolved by the Dissolution Law.

Finally, beyond the nullifying effects of the Dissolution Law, the court held that under the plain language of both the CRL and HRP, the 15 percent requirement would apply only “in the aggregate,” and “not to each individual case of rehabilitation, development, or construction of dwelling units, unless an agency determines otherwise.” Because CRA-LA never determined otherwise, individual projects were not subject to a strict 15 percent minimum.

 —Griffin Williams

First District Holds Petitioner Exhausted Its Remedies by Raising General Objections That the Project Site Should Be Preserved as Open Space, Finds “No Project” Alternative Analysis Defective

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In the published portions of Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, the First District Court of Appeal held that Petitioner Save the Hill’s failure to specifically reference the recirculated EIR or the no-project alternative in its comments to the City Council did not bar its CEQA claims regarding preservation of the Project site.

Background

This case involves the City of Livermore’s approval of a development application for a housing development in the Garaventa Hills. The Project underwent multiple revisions, and the Project at issue is a scaled-down version of the original 76-unit residential development. The final Project is a 44-unit development with pedestrian across Altamont creek that also serves as a secondary emergency vehicle access road. The City published a Recirculated Final EIR (RFEIR) for this final revised Project.

Save the Hill filed a petition for writ of mandate challenging the City’s approval of the Project and certification of the RFEIR for failure to consider significant environmental impacts, adequately investigate and evaluate the no-project alternative, and mitigate significant environmental impacts. The trial court denied the petition, determining that Save the Hill failed to exhaust its administrative remedies in challenging the RFEIR. Save the Hill appealed.

The Court of Appeal’s Decision

Exhaustion

The Court of Appeal held that Save the Hill did not fail to exhaust its administrative remedies before challenging the City’s failure to evaluate the no-project alternative. While Save the Hill did not mention the environmental documents or the lack of a no-project alternative specifically, it did express its desire to preserve the Project site as open space. The Court emphasized that CEQA does not require public interest groups such as Save the Hill—which are often unrepresented by counsel at administrative hearings—to do more than “fairly apprise” the agency of their complaints to preserve them for appeal.

Several Save the Hill representatives voiced support for preserving the Project site as open space in perpetuity at the City Council hearing for the RFEIR’s certification. These comments sparked questions from city councilmembers regarding the possibility of preserving the Project site and a discussion of available funding to purchase Garaventa Hills for conservation. This option was shut down by the City Attorney, who advised the City Council that its evaluation should be limited to the Project as set before them, and that if it were to change the zoning to permanent open space on the property, the City would likely face a takings lawsuit.

The Court determined that these comments and the ensuing discussion reflected the City Council’s consideration of a no-project alternative as a result of Save the Hill’s objections. It concluded that Save the Hill’s failure to specifically refer to the RFEIR’s Project alternatives evaluation was immaterial to the fact that it fairly appraised the City of its position. The court further explained that even if Save the Hill framed its arguments in the context of the RFEIR’s no-project alternative, “the evidence is overwhelmingly that, had it done so, the result would have been the same: [t]he City would have rejected the group’s proposal and certified the RFEIR” because it was improperly instructed to limit its focus to the presented Project.

Accordingly, the Court held that an exception to the exhaustion requirement applied because the aggrieved party—Save the Hill—could “positively state” what the lead agency’s decision would be in its particular case.

No Project Alternative Analysis

On the merits of Save the Hill’s alternative analysis claim, the Court held that the RFEIR failed to disclose and analyze information regarding the availability of funding sources that could have been used to purchase and permanently conserve the Project site. The Court explained that zoning changes are within the City’s police power, and the RFEIR accordingly should have discussed the feasibility of rezoning the site as permanent open space.

Mitigation Measures Adequacy

Save the Hill asserted that the mitigation measures for impacts to vernal pool fairy shrimp were inadequate because they would only be implemented if the fairy shrimp were detected at the site. The Court explained that CEQA allows deferred mitigation where the agency commits to achieving specific performance standards, which it did here, and that the mitigation measures were adequate because the RFEIR assumed that the fairy shrimp were present.

The Court also held that the preservation of an 85-acre compensatory mitigation site was adequate, despite Save the Hill’s contention that the City’s General Plan required the location to be preserved as open space. The Court concluded that the General Plan is “merely aspirational,” while the RFEIR’s mitigation measure created a “perpetual legal restraint on development” at the site, including requiring funding for upkeep and enforcement. Moreover, distinguishing this case from King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (“King”), the Court explained that this Project involved the loss of only 32 acres—as opposed to the loss of 6,450 acres in King—and CEQA does not require mitigation measures to “completely eliminate the environmental impacts of a project.”

Hydrological Impacts Adequacy

The Court held that the City’s finding of no significant hydrological impacts was supported by substantial evidence because Save the Hill failed to refute the City’s points in its reply brief. The Court refused to afford any weight to Save the Hill’s argument that the Project would degrade downstream water quality because a larger development project (which originally included this Project) would have a significant downstream water quality impact. The Court determined that impacts from a project almost 200 acres larger than this Project were not relevant.

Settlement Agreement Obligation Claims

Lastly, the Court held that that Save the Hill forfeited its claim that the City violated CEQA by failing to preserve the Project site to satisfy its obligations under two settlement agreements by failing to raise the issue prior to appeal. Moreover, Save the Hill was not a party to either settlement agreement and thus lacked standing to enforce those obligations.

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