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Second District Court of Appeal Holds that Challenge to Project is Time-Barred, Since Statute of Limitations Starts Running with Initial Lease Approval, Not Subsequent Execution of Lease

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Van De Kamps Coalition v. Board of Trustees of Los Angeles Comm. College District (2d Dist. May 8, 2012) ___ Cal.App.4th ___ (Case No. BS129238)

The Second District Court of Appeal upheld the trial court’s ruling sustaining a demurrer without leave to amend on the ground that a petition for writ of mandate challenging a community college district’s leasing of a campus site was time barred.

 The project at issue involved the two-acre Van de Kamps Bakery building site (Building) in Los Angeles which the Los Angeles Community College District (LACCD) purchased in 2001 to construct a community college. An EIR had previously been prepared for the site when a real estate developer had proposed to demolish the Bakery building and build a Home Base store. An EIR update and to addenda were prepared to analyze the environmental impacts of the community college.

In 2008, the LACCD realized that due to state budget cuts, it would be unable to operate the campus. In 2009, in order to use the site for educational purposes, the LACCD Board adopted resolutions approving an interim use of the property and authorized a five-year lease of the Building to an outside tenant (Resolutions). The LACCD Board, however, decided that the lease agreement did not warrant additional environmental review, since the site would be used for the same educational functions contemplated in the EIR update and addenda. The same year, the Board furthered its Resolutions through various actions, such as approving a $40,000 building redesign expenditure and approving the purchase of a neighboring property (Purchase Agreement).

 In 2010, appellant Van De Kamps filed suit against the Board, challenging the adequacy of CEQA review for the Resolutions and subsequent 2009 actions (CEQA I). Following the filing of CEQA I, in 2010, LACCD undertook additional actions furthering its Resolutions. These actions included leasing a portion of one building for employment training, adding indemnification provisions to the Purchase Agreement, and amending a contract to allow for additional architectural services. Appellant moved to amend its CEQA I petition to include claims based on the Board’s 2010 actions. When the trial court denied appellant’s motion, appellant filed a second petition (CEQA II) challenging the 2010 actions. LACCD filed a demurrer to the CEQA I petition, which was unopposed and sustained without leave to amend. LACCD thereafter filed a demurrer to the CEQA II petition claiming it was time-barred, since the 180-day statute of limitations had started running with the 2009 Resolutions, not the subsequent 2010 actions. The trial court sustained the demurrer without leave to amend and the appellate court upheld the trial court’s decision.

The court based its holding on the fact that the 2010 actions were not separate “projects” under CEQA, but were instead mere modifications to the 2009 Resolutions. The court analogized this case to City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, where the court found that the executed agreement did not differ substantially from the original agreement, and was thus not a separate project for purposes of triggering a new statute of limitations. As in Chula Vista, the execution of the lease was not different enough from the lease formation to warrant independent CEQA review.

In reaching its conclusion, the court looked to when projects take legal effect, i.e., are approved, and thus trigger their statutes of limitation. Citing Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134, the Court stated that approval occurs “when the agency first exercises its discretion to execute a contract or grant financial assistance, not when the last such discretionary decision is made.” Under this definition, LAACD “approved” the project in 2009 when it committed itself to the lease and the Purchase Agreement, and approved the $40,000 expenditure. The subsequent approvals in 2010 did not substantially change the project or its environmental effects. The court reiterated Save Tara’s policy objection to the notion that “any development agreement, no matter how definite and detailed, even if accompanied by substantial financial assistance from the agency and other strong indications of agency commitment to the project, falls short of approval so long as it leaves final CEQA decisions to the agency’s future discretion.”

In conclusion, the court found that the 2010 actions were merely mechanisms for implementing the 2009 Resolutions. As such, they did not re-trigger the 180-day statute of limitations. That statute had run, and appellant’s action was therefore time-barred.

SB 973: “Save Our Events” Act would exempt annual fireworks displays

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Senate Bill 973, otherwise known as the “Save Our Events” Act, would exempt annual fireworks displays from CEQA. The CEQA Guidelines include a list of project classes that have been determined not to have a significant effect on the environment. SB 973 authorizes a lead agency to grant, on an annual basis, one categorical exemption per site for a fireworks display. The bill would thereby impose a state-mandated local program. SB 973 would authorize the office of Planning and Research to identify potential environmental issues related to fireworks displays and to develop guidelines to assist local agencies regarding those displays.

According to Senator Juan Vargas, who fought to pass the bill, “CEQA was not created to allow frivolous lawsuits to ban family and charitable events like parades and fireworks on the Fourth of July.” However, the bill’s narrowness may be fatal to its support. The limited application of SB 973 was intended to be a temporary, politically palatable compromise during negotiations, but Vargas and other supporters now say that if they cannot get broader exemptions they would rather abandon the bill.

Little Hoover Blesses Governor Brown’s Government Reorganization Plan

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On May 22, 2012, the Little Hoover Commission, a bipartisan state oversight agency responsible for promoting government efficiency, voted 7-0 to endorse Governor Brown’s proposal to reorganize the state government. The Governor’s plan to replace five state agencies with three includes folding the Delta Stewardship Council into the Natural Resources Agency. The proposed changes are not intended to affect the policy independence of each board, but are simply meant to achieve administrative efficiency. The Delta Stewardship Council, for example, already receives a number of administrative services from the Natural Resources Agency and is listed on the agency’s letterhead. The reorganization becomes effective July 1, 2012, and is operative a year from then. The Governor’s plan will save taxpayer dollars by making government more efficient, responsive, and coordinated. The plan is currently unopposed.

Los Angeles City Council Bans Plastic Grocery Bags

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On May 23, 2012, Los Angeles became the nation’s largest city to ban plastic bags at grocery stores. The City Council voted 13-1 to ban single-use plastic bags later this year after completing an EIR and adopting an ordinance. Forty-eight other cities in the state already have similar bans; San Francisco’s extends to pharmacies, restaurants, and small retailers. Large retailers in L.A. will have six months to phase out plastic bags (small retailers will have one year), after which they will provide free paper bags for six months. After that, retailers will charge ten cents per bag.

The city currently goes through 2.7 billion single-use plastic bags every year. Environmentalists supporting the ordinance noted that plastic bag waste contributes to ocean pollution, landfill expansion, littered streets, and clogged waterways. Lobbyists and union employees opposing the ban argued that it would result in job loss and shift jobs overseas. A version of the law that was passed in 2010, which covered the unincorporated areas of Los Angeles County, reduced plastic bag use in those areas by an estimated 94 percent.

Third District Court of Appeal Strikes Down Negative Declaration Prepared for a County’s Oak Woodland Fee Program

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Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156

The Third District Court of Appeal struck down negative declaration prepared for El Dorado County’s oak woodland fee program, rejecting the county’s attempt to tier off the program EIR prepared for its General Plan. 

In 2004, El Dorado County certified a program EIR and adopted a general plan.  The program EIR acknowledged that development under the new general plan would have significant impacts on oak woodland habitat.  The plan included a policy to develop an integrated natural resources management plan.  The plan had two options to protect woodlands:  “Option A” required adherence to canopy retention standards and replacing woodland habitat at a 1:1 ratio; and “Option B” required payment of an in lieu fee into the county’s integrated plan’s conservation fund.  Pending completing of the integrated plan, the county required project developers to mitigate the loss of oak woodland habitat through only Option A.  In 2008, the county adopted an oak woodland management plan. The purpose of the management plan included developing the Option B fee program and creating a foundation for the oak woodland conservation portion of the integrated plan. Development of the management plan required mapping existing oak woodlands and identifying conservation priorities. Certain criteria were used to prioritize areas with the highest biological value. Valley oak woodland was designated as sensitive habitat.  The plan also included oak woodland corridors for wildlife.  To analyze the environmental effects of the management plan, the county prepared an initial study and negative declaration that tiered from the 2004 program EIR.  The petitioners challenged this approach, arguing an EIR was required.  The trial court denied the petition.  The petitioners appealed.

The county argued the oak woodland management plan and Option B fee program were encompassed in the 2004 program EIR.  The Court disagreed, holding that the 2004 program EIR did not encompass the oak woodland management plan and Option B fee program.  The county had to make a number of judgment calls regarding the details of the fee program, and the general plan and program EIR had not considered or analyzed these details.  First, the 2004 program EIR and general plan did not differentiate between oak species. The management plan, however, focused on valley oaks to the exclusion of other oak species.  Second, the 2004 program EIR did not determine the measurement metric for conservation of oak woodlands to be used under Option B; yet, the choice of one metric versus another would alter the fees required under the Option B fee program.  Third, the 2004 program EIR did not set the fee rate to be paid if a project applicant elected to mitigate under Option B.  Although preservation programs funded by impact fees can be appropriate mitigation, the program must still, at some point, undergo CEQA review.  Fourth, the county’s 2004 program EIR had not specified how fees collected under Option B should be used to preserve oak woodlands. The program EIR emphasized the importance of maintaining connectivity among preserved oak woodlands, yet the county deferred the issue of connectivity until after other elements of the integrated plan could be established.  As a result, the Option B mitigation approach differed from the 2004 program report’s emphasis on the protection of connectivity between woodland habitats.

The Court concluded the record supported a fair argument that the oak woodland management plan and Option B fee program could have a potentially significant effect on the environment. While the 2004 program EIR determined impacts would remain significant even with mitigation, the negative declaration for the management plan concluded cumulative impacts would be less than significant.  The county argued there would be no greater adverse environmental effect than already anticipated in the 2004 general plan and program EIR. The Court rejected this argument, noting that, prior to adoption of the management plan, oak woodlands were required to be preserved at a 1:1 ratio on-site under Option A; that was no longer true under Option B.  For this reason, the county had to prepare an EIR.

Sixth District Court of Appeal Upholds a City’s Economic Infeasibility Basis for Rejecting Alternatives Involving Retaining Ownership of a Mansion

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The Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202 Cal.App.4th 603

The Sixth District Court of Appeal ruled that, in a project involving restoration and sale of an historic mansion, the city had a sufficient basis for rejecting as economically infeasible alternatives involving retaining ownership of the mansion. 

The Flanders Mansion is an historic, 1920s-era Tudor Revival residence.  The City of Carmel-by-the-Sea owns the mansion.  The site is surrounded by a 35-acre nature preserve, also owned by the city.  The city certified an EIR and approved the sale of the mansion in view of the substantial cost of implementing necessary repairs.  The Foundation sued.  The trial court granted the petition.  Both sides appealed.

First, the Foundation argued the EIR did not contain an adequate analysis of potential future uses of the mansion in light of the Surplus Lands Act.  Under that statute, when a local agency wishes to dispose of surplus property, the agency must offer to sell or lease the property to other agencies for use as affordable housing or for park purposes before the property can be sold to a private party.  The EIR recognized the sale of the property would be subject to the act.  The Foundation argued, and the trial court agreed, that the EIR was deficient because it did not analyze the impacts of potential uses for the property authorized under the act.  That was so because an agency buying under the act would not be subject to mitigation measures or conservation easements adopted by the city when it approved the sale.  The Court of Appeal disagreed, holding that the city had authority to require, as conditions of sale, adherence to these measures and easements.  Moreover, the city did not have to analyze the impacts of using the mansion as affordable housing because the record supported the city’s conclusion that this use was not reasonably foreseeable in view of the high cost of rehabilitating the mansion and complying with adopted mitigation measures.

Second, during the CEQA process, a commenter asked the city to consider reducing the size of the parcel sold with the mansion.  The Court ruled the Final EIR’s response was inadequate.  Reducing the size of the parcel would also reduce one of the project’s significant and unavoidable impacts:  a reduction in public parkland.  The Final EIR had not provided a complete response to this proposal.

Third, the Foundation argued the city erred by failing to include an economic feasibility analysis in the EIR.  That analysis was prepared by a real-estate consultant to address the economic feasibility of the various alternatives analyzed in the EIR.  The Court ruled the city could rely on information in the record in making its feasibility determinations, regardless of whether that information appeared in the EIR itself.

Fourth, the EIR analyzed alternatives focusing on restoring and leasing the mansion for residential or non-residential use, or doing nothing (no project).  All these alternatives were environmentally superior to the proposed project.  The city rejected them, however, as economically infeasible, citing the consultant’s feasibility report.  The issue for the Court was whether this report constituted substantial evidence supporting the city’s decision.  The Court ruled that it did.  The report estimated that restoration would cost $1.4 million, and lease payments would not enable the city to recoup this cost for many years.  Selling the mansion would recover these costs, however, because the appraised value of the restored mansion was estimated at $4 million.  Doing nothing meant the city would incur ongoing maintenance costs, with no revenue to cover them.  Under such circumstances, the city acted within its discretion in rejecting these alternatives.

Finally, the Court ruled that substantial evidence supported the city’s adopted statement of overriding considerations.  The city acted within its discretion in deciding to sell the mansion, subject to mitigation measures and easements requiring its sensitive restoration.  Although the city could have retained ownership of the restored the building (alternatives the city rejected as infeasible), that did not mean the city could not cite restoration in its list of project benefits, even if the city intended to sell the restored mansion.

First District Court of Appeal Rules a County Board of Supervisors Did Not Need to Hear an Appeal of a Decision to Certify an EIR for Modifications to a Solid Waste Facility Permit Approved by the Local Enforcement Agency

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No Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 573

            The First District Court of Appeal ruled that a County Board of Supervisors did not need to hear an appeal of a decision to certify an EIR for modifications to a solid waste facility permit approved by the County’s local enforcement agency.

The Redwood Landfill is an existing landfill located in northern Marin County.  In 1999, the landfill operator applied to revise the landfill’s solid waste facility permit.  The application sought to expand the landfill’s capacity and to adjust landfill operations.  Marin County Environmental Health Services (EHS), the local permitting agency under State law, prepared and certified the Final EIR.  The petitioners tried to appeal that decision to the County Board of Supervisors.  The county rejected the appeal because EHS was the final decision-maker.  In December 2008, EHS approved the permit amendments.  The petitioners sued.  The trial court ruled the county had erred by rejecting the appeal to the Board of Supervisors.  The trial court did not reach the merits with respect to the adequacy of the EIR.  The county and applicant appealed.

            The Court of Appeal reversed.  EHS was lead agency as the designated local enforcement agency under the California Integrated Waste Management Act.  As such, its decision to certify the EIR was not appealable to the Board of Supervisors.  Public Resources Code section 21151, subdivision (c), provides that, if an EIR is certified by a non-elected decision-making body within a local lead agency, then that certification may be appealed to the local lead agency’s elected decision-making body.  That section did not apply, however, because EHS was a separate, distinct entity vested with authority over the permit and, as such, EHS had no elected decision-making body.  The trial court erred in directing the Board of Supervisors to consider the appeal.

            The county and applicant asked the Court of Appeal to reach the merits of the petitioners’ attack on the EIR.  The Court of Appeal declined, and sent the case back to the trial court to be heard on the merits.

RMM Hikes in the Sutter Buttes for Spring Outing with the Middle Mountain Foundation

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For the firm’s spring outing, attorneys and staff of Remy Moose Manley, LLP recently hiked in the Sutter Buttes. The Sutter Buttes are a unique cluster of inactive volcanoes isolated in the Sacramento Valley. The hike through this beautiful area was led by Joe Ruesser, a guide from the Middle Mountain Foundation. Sites included spectacular vistas, wildflowers, golden eagles and a large herd of feral Barbary Sheep—a species of caprid native to North Africa.

The Middle Mountain Foundation was formed in 1989 with the purpose of educating the general public in the relevance and importance to society of natural and cultural resources and to encourage preservation, understanding, and good stewardship of such resources. To further these purposes, the Foundation focuses on findings ways for the public interest and private land to converge for the benefit of all.

Through contractual agreements with private landowners, Middle Mountain Foundation has created numerous learning opportunities within the Sutter Buttes , typically as guided hikes for the public. MMF works with many entities, including local counties, state agencies and national land trusts. MMF encourages land protection easements, which compensate private landowners for development rights, to protect private lands in the Sutter Buttes.

The Middle Mountain Foundation takes its name from that given to the Sutter Buttes by the native Maidu people. The translation to English is “The Middle Mountain.” The Buttes played an important role in the spiritual lives of the Maidu, and evidence of their past presence in the range can still be found today in the form of grinding stones and other cultural resources.

Participants in the spring outing all agreed hiking in the Sutter Buttes was an excellent way to spend a sunny spring day.

More information on the Middle Mountain Foundation can be found here: http://www.middlemountain.org

First District Determines Local Land Use Ordinance Does Not Violate Map Act and Properly Characterized Certain Approvals as Ministerial Acts Exempt from CEQA.

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Sierra Club v. Napa County Bd. of Supervisors (1st Dist. April 20, 2012) __Cal.App.4th__ (Case No. A130980)

Sierra Club challenged an ordinance adopted by the Napa County Board of Supervisors clarifying lot line adjustments. Sierra Club argued the ordinance violated the Subdivision Map Act (Map Act) and CEQA. The appellate court disagreed, rejecting Sierra Club’s facial attack on the ordinance and upholding the county’s interpretation that lot line adjustments could be ministerial approvals and therefore exempt from CEQA.

Background and Procedure

In 1976, amendments to section 66412 of the Map Act exempted from the act any lot line adjustment between two or more adjacent parcels. Thus, land could be taken from one parcel and added to an adjacent parcel, but no additional parcels could be created. This exemption was later restricted to four or fewer existing adjoining parcels. This amendment also required lot line adjustments to be approved by the local agency or advisory agency. Further, the agency’s review was limited to a determination of whether the parcels resulting from an adjustment conformed with the local general plan, any applicable specific or coastal plan, and any zoning or building ordinances.

In 2002, Napa County revised its local ordinance governing lot line adjustments to reflect the amendments limiting the scope of section 66412. The revised ordinance also prohibited lot line adjustments that transformed non-building parcels into buildable ones. The ordinance did not comment on whether sequential adjustments affecting four or fewer parcels would be permitted.

Around 2007, Napa County addressed this issue, as it had pending applications from one owner for lot line adjustments affecting 16 contiguous parcels. Each application affected only four parcels, but were sequential in that a lot adjusted under one application was further adjusted under a following application. Napa County determined some counties prohibited this approach to lot line adjustments while others required a waiting period between each application.  A final option would be to allow all of the application to be processed without a waiting period. The Board directed that an ordinance be prepared addressing sequential applications for lot line adjustments.

In 2009, a draft ordinance was presented to the Board that distinguished between major and minor lot line adjustments. Major adjustments depended on discretionary approval subject to CEQA, while minor adjustments were considered ministerial and outside CEQA’s purview. The final ordinance adopted by the county continued the existing administrative practice of allowing lot line adjustments impacting four or fewer parcels to re-adjust lots included in a prior application if the prior adjustments had been completed and recorded. Approval of these adjustments remained characterized as ministerial acts not subject to CEQA. The Board determined approval of the ordinance itself was exempt from CEQA based on a class 5 categorical exemption and the “general rule” exempting actions with no possibility of adverse impact to the environment (CEQA Guidelines, § 15061(b)(3)).

Sierra Club challenged the approval of the ordinance, claiming it violated the Map Act’s lot line adjustment exemption and violated the Map Act and CEQA by classifying adjustments as ministerial. Sierra Club requested that the county stipulate to a court order extending the time to prepare the administrative record. The county agreed and the court ordered the deadline extended. The county later argued that Sierra Club failed to effect summons within 90 days as required by section 66499.37 of the Map Act. The trial court held that the county’s stipulation to extend time to prepare the administrative record was a general appearance, and therefore, the county waived any irregularities in the service of summons. The trial court rejected Sierra Club’s other challenges to the ordinance, and Sierra Club appealed.

Sierra Club’s Action Not Time-Barred

The appellate court agreed with the trial court that Sierra Club’s action was not time-barred.  The appellate court determined that the county made a general appearance when it agreed to the stipulation extending the time to prepare the administrative record. California Code of Civil Procedure section 1014 lists acts that constitute an appearance, but the appellate court noted this list is not exclusive. The determining factor is whether the defendant takes a part in the action and in some manner recognizes the authority of the court to proceed. In this case, the county clearly acknowledged the trial court’s authority to proceed when it stipulated to the order granting Sierra Club an extension. As a result of this appearance, the county waived all irregularities in service.

Compliance with the Map Act

Sierra Club argued the county’s ordinance violated the Map Act by circumventing its limited exemption for lot line adjustments. The appellate court interpreted this as an argument that section 66412 preempted the local ordinance, or that the local ordinance facially conflicted with this section.

The appellate court noted the difficult burden Sierra Club faced in making its facial challenge to legislation. Local land use regulations conflict with general laws and are void if the local legislation duplicates, contradicts, or enters an area fully occupied by the general law. The court determined Napa County’s ordinance did not conflict with section 66412, as the ordinance did not conflict with any of the criteria established by the Map Act for procedural exclusions of lot line adjustments.

Further, the court rejected Sierra Club’s argument that the county’s ordinance would reopen the loopholes closed by the amendments to section 66412. Specifically, the ordinance did not allow an unlimited number of lot lines to be adjusted at the same time. The ordinance required landowners to obtain approval of adjustments of no more than four adjoining lots at one time and record the deeds reflecting those adjustments before another application could be processed. The court determined that if the legislature had intended to remove all sequential lot line adjustments from the section 66412 exemption, it could have used language to make this intention clear.

Application of CEQA to Sequential Lot Line Adjustments Under County Ordinance

Sierra Club argued that approval of sequential lot line adjustments is a discretionary action subject to CEQA. Approval of discretionary projects requires the exercise of judgment or deliberation, while ministerial projects involve little or no personal judgment by the relevant public official. The public official merely applies the law to the facts presented.

The ordinance classified lot line adjustments as ministerial and not subject to CEQA except where such adjustments required approval of a variance or were processed concurrently with a related application for a use permit or other discretionary approval. Otherwise, if an application complies with 12 specific standards under the ordinance, a public official must accept the application. The court held fixed approval standards left officials with no ability to exercise discretion to reject or shape the project in any way. Therefore, approvals of lot line adjustments under the ordinance that met these criteria were appropriately classified as ministerial.

Conclusion

This case offers an important civil procedure reminder that if a party makes a general appearance before a court, it waives the ability to later challenge sufficiency of service. Stipulating to a court order extending the deadline for filing the administrative record in a CEQA action was characterized as a general appearance in this case. In addition, the case demonstrates the heavy burden petitioners face when attempting to argue a local land use regulation conflicts with a general law. Finally, the case reiterates past precedent distinguishing discretionary acts subject to CEQA and ministerial acts falling outside the jurisdiction of the act.

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