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California Native Plant Society v. City of Rancho Cordova

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(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.]

California Native Plant Society v. County of El Dorado

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(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.]

St. Vincent’s School for Boys, Catholic Charities CYO v. City of San Rafael

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(2008) 161 Cal.App.4th 989

The Court of Appeal upheld San Rafael’s general plan against a challenge from a landowner. St. Vincent’s School for Boys’ property is located outside the city limits, but within the city’s previous sphere of influence. In updating its general plan, the city determined to remove the property from the city’s planning area and to seek its removal from the sphere of influence. St. Vincent’s challenged the city’s general plan, its housing element, and the EIR for the general plan. The court rejected each of St. Vincent’s claims. The court also awarded the city significant costs associated with certification of the record despite the fact that St. Vincent’s had elected to prepare the record. [RMM Counsel of record: Tiffany K. Wright]

Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova

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(2007) 40 Cal.4th 412

The Supreme Court held that the EIR prepared for a 6,000-acre community plan and its first phase of development contained an adequate analysis of the near-term water supplies but did not adequately assess the long-term water supplies. The court held that the long-term water supply analysis was both procedurally and factually inadequate. Procedurally, the Final EIR improperly claimed to tier from a future regional water planning environmental document, failed to explicitly incorporate and/or tier from the impact and mitigation discussion of another relevant EIR, and relied on a mitigation measure that would curtail development if an adequate water supply did not materialize without analyzing the environmental impacts of such action. Factually, the Final EIR failed to explain discrepancies between the estimated surface water supply and water demand at build-out and estimates contained in the Water Forum EIR, an important regional water planning document. The court concluded on these bases that the Final EIR lacked substantial evidence that the requisite water supply bore a reasonable likelihood of being available for the community plan in the long term. The court also held that the County should have re-circulated a Draft EIR that addressed the impacts of groundwater pumping on the Cosumnes River and its dependent species before preparation of the Final EIR because its failure to do so denied the public and decision makers the opportunity to evaluate the project in light of all its potentially significant environmental impacts. [RMM Counsel of record: James G. Moose and Sabrina V. Teller]

Friends of the Sierra Railroad v. Tuolumne Park and Recreation District

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(2007) 147 Cal.App.4th 643

The Court of Appeal held that a transfer of land between Tuolumne Park and Recreation District (TPRD) and the Me-Wuk Tribe was not a “project” requiring environmental review under CEQA. At issue was a historic railroad right-of-way running through the parcel conveyed to the Tribe that the Tribe said it would use for public hiking trails. There was evidence in the record, however, that the Tribe acquired the right-of-way to further its plans for developing its adjacent property. The petitioner group was also concerned that the Tribe could escape future CEQA review by applying to the Bureau of Indian Affairs to place the land in trust. Friends of the Sierra Railroad argued that TPRD was required to carry out a CEQA analysis prior to conveying its property to the Tribe. The court held that while the development of the property surrounding the historic resource was reasonably foreseeable, review of conceivable impacts on the historic resource was premature in the absence of any concrete development proposals from the Tribe. The court stated that ordering CEQA review in the absence of a plan involving an identifiable impact would not be meaningful. [RMM Counsel of record: Whitman F. Manley and Sabrina V. Teller.]

Save Our Neighborhood v. Lishman

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(2006) 140 Cal.App.4th 1288

The Court of Appeal held that the City of Placerville should have prepared an EIR for the proposed construction of a hotel, gas station, and convenience store complex, rather than relying on an addendum to a mitigated negative declaration adopted for an earlier project that involved the same land and contained similar components, but was never built. Opponents of the proposed project argued that an addendum was inappropriate because the proposed project did not involve only minor technical changes from the previous project, but rather, would cause new significant environmental effects and substantial increases in previously identified effects. The court held that the project was a “new” project, rather than a modification of the previously approved version, because they had different project proponents and the court could find no evidence in the record that the new project proponent had relied on the previous project’s plans and studies for his application for the new version. Thus, the court ruled that the City’s application of Public Resources Code section 21166, governing subsequent or supplemental review of previously studied projects, and CEQA Guidelines section 15164, regarding the use of addenda, were inapplicable to the new project. [RMM Counsel of record: Whitman F. Manley and Sabrina V. Teller]

The Pocket Protectors v. City of Sacramento

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(2005) 124 Cal.App.4th 903

The Court of Appeal held that the City of Sacramento should prepare an EIR for a proposed 139-unit, single-family residential project in the Pocket neighborhood in southern Sacramento, finding that the comments of neighbors opposed to the project and the opinions of members of the Planning Commission qualified as the requisite “substantial evidence” under the “fair argument” standard that significant impacts may result, and therefore, the City’s mitigated negative declaration for the project was insufficient. At issue were aesthetic impacts associated with the project’s design, two parallel rows of detached, one- and two-story single-family homes along a narrow private street, and the project’s consistency with existing land use regulations and policies applicable to the site. The court also held that the City’s interpretation of its own regulations was not entitled to the traditional, significant deference, but rather, when the document at issue is a negative declaration, the less deferential “fair argument” standard also applies to the agency’s threshold determination of a project’s consistency with the agency’s land use policies and regulations. [Former RTMM partner Tina A. Thomas and current RMM partner Sabrina V. Teller were counsel of record.]

Association for Sensible Development at Northstar, Inc. v. Placer County

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(2004) 122 Cal.App.4th 1289

The Court of Appeal held the so-called “90-day rule” applicable to petitions filed under the California Environmental Quality Act does not require the petitioner to schedule a specific hearing date on the merits within the 90-day period after filing the petition. Rather, simply filing a “request for hearing” is enough. An earlier case – McCormick v. Board of Supervisors (1988) 198 Cal.App.3d 352 – had held the petitioner had to “take affirmative steps sufficient to place the matter on the court’s docket for a hearing.” (198 Cal.App.3d at p. 358.) In ASDAN, the Court ruled the McCormick decision was no longer good law in light of 1994 amendments to Public Resources Code section 21167.4, the section that establishes the 90-day rule. [RMM Counsel of record: Whitman F. Manley]

Sierra Club v. County of Napa

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(2004) 121 Cal.App.4th 1490

The Court of Appeal affirmed that Napa County complied with CEQA when it certified a final EIR for a wine warehousing and distribution facility in an area designated for general industrial use near the Napa airport and found proposed alternatives economically infeasible. Sierra Club challenged the County’s rejection of project alternatives based on evidence from the project applicant that the alternatives were economically infeasible. The court rejected the petitioners’ arguments that CEQA requires evidence of economic feasibility to be presented within the EIR itself, and that information the agency receives relating to economic feasibility must be circulated for public review prior to the agency’s final decision on the project. The court further confirmed that agencies are to be afforded considerable deference in determining whether proposed projects are consistent with the agency’s general plan. [RMM Counsel of record: James G. Moose and Sabrina V. Teller]

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