(2009) 170 Cal.App.4th 1026

The Court of Appeal held that the payment of a rare plant impact fee did not presumptively establish full mitigation for the potential impacts of a senior assisted living and Alzheimers’ care unit project in El Dorado County. The project was approved with a mitigated negative declaration, which relied on the payment of the plant impact fee as mitigation for impacts to two endangered plant species with confirmed populations on the project site. The court ruled that although a comprehensive preservation program funded by impact fees may be a sound strategy for addressing such impacts, the absence of any environmental review for the adoption of the fee program meant that reviews of individual projects triggering the fee could not presumptively assume that payment of the fee constitutes full mitigation for the potential impact. The court also found fault with the County’s failure to update the fee program as required. [RMM Counsel of record: Andrea K. Leisy and Laura M. Harris.]

(2009) 172 Cal.App.4th 603

The Third Appellate District Court of Appeal held that the City of Rancho Cordova approved a project that was inconsistent with one mandatory policy of its General Plan concerning wetland mitigation. Specifically, the Court ruled that before the City approved a project that would impact on-site wetlands, its General Plan policy required the City to “coordinate” wetland preservation and mitigation with the federal agencies with jurisdiction over wetlands and wetland-dependent special-status species. The Court held that the term “coordinate” as used in the City’s General Plan policy implied a higher level of effort was required on the part of the City, beyond merely “consulting” with the other agencies, as under the CEQA process. Addressing the CEQA claims, the Court upheld the project EIR in its entirety, reversing the trial court’s determinations that the wetland mitigation measures improperly deferred mitigation. The court rejected the notion that an adequate wetlands mitigation measure relying on a “no net loss” performance standard had to identify specific off-site mitigation areas. The court also reversed the lower court’s ruling that the City’s findings concerning the adequacy of mitigation were not supported by substantial evidence. In so doing, the court repeatedly emphasized the requirement for petitioners to cite to evidence in the record that is favorable to the agency, not just supportive of their own arguments. The court also rejected a number of other claims raised by the California Native Plant Society because they were not properly exhausted at the administrative level. [RMM Counsel of record: James G. Moose and Sabrina V. Teller.]

(2009) 177 Cal.App.4th 957

The Sixth District Court of Appeal upheld the City of Santa Cruz’s approval of a master plan for Arana Gulch, a City-owned greenbelt property. The EIR for the master plan acknowledged that the project would have a significant effect on the habitat of the Santa Cruz tarplant due to the chosen alignment of a multiuse trail; however, the City determined that overriding considerations, including making the trail accessible for wheelchair users, warranted approval of the project as proposed. The court confirmed that the permissible considerations for a finding of infeasibility include whether an alternative is impractical or undesirable from a policy standpoint. Citing City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, the court concluded that the City was legally justified in rejecting environmentally superior alternatives as “infeasible” on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve what the City Council regarded as primary objectives of the project, and because substantial evidence supported this finding. Further, the court addressed the applicable standard of review for challenges to the adequacy of an EIR’s alternatives analysis, holding that the relevant question is whether CEQA’s informational requirements have been met. If they have been met, then a dispute over whether the type or amount of information provided is adequate is a factual determination subject to the “substantial evidence” prong of Public Resources Code section 21168.5, rather than a question of whether the agency failed to proceed in the manner required by law. [RMM Counsel of record: James G. Moose .]

(2009) 179 Cal.App.4th 113

The Second District Court of Appeal upheld the Santa Barbara Association of Governments (SBCAG) approval of a transportation sales tax measure without conducting CEQA review. SBCAG developed and approved its sales tax measure pursuant to its authority under the Local Transportation Authority and Improvement Act. The Act requires that an agency approving a transportation sales tax measure receive a supermajority approval of the County voters before implementing the measures, and requires that the agency develop a funding plan listing projects anticipated to receive funding under the measure. The decision confirmed that neither of these requirements turns a funding mechanism into a project subject to CEQA. The Court explains that a funding plan “does not qualify as a project within the meaning of CEQA . . . [if] it is a mechanism for funding proposed projects that may be modified or not implemented depending on a number of factors, including CEQA environmental review.” The Court also explains that a ballot measure that does not meet the definition of a project, such as funding mechanism established consistent with CEQA Guidelines section 15378, subdivision (b)(4), does not require prior CEQA review merely because an agency must put the measure before the voters.

Importantly, the court considered the implications of the California Supreme Court’s analysis in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Save Tara) to reach its holding. The court concluded that the analysis in Save Tara is applicable not only to agency agreements relating to private development, as was the case in Save Tara, but also to public projects that do not involve agreements with private entities. The court, therefore, conducted the fact-specific inquiry required by Save Tara in considering whether SBCAG’s actions constituted a “project approval” under CEQA. The court held that it did not, and explained that an agency’s esteem for projects that may be funded by a government funding mechanism is not, in and of itself, the equivalent of a commitment to fund any particular project. [RMM Counsel of record: Whitman F. Manley, Tiffany K. Wright, and Christopher J. Butcher.]