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California Supreme Court holds that CEQA requires EIRs to show a reasonable effort to substantively connect a project’s air quality impacts to likely health impacts

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In a much-anticipated opinion, the California Supreme Court in Sierra Club v. County of Fresno (Dec. 24, 2018) 6 Cal.5th 502 held that portions of the air quality analysis in Fresno County’s EIR for the 942-acre Friant Ranch Specific Plan violated CEQA. In reaching this decision, the Court made four important holdings:  (1) when reviewing whether an EIR’s discussion of environmental effects “is sufficient to satisfy CEQA,” the court must be satisfied that the EIR “includes sufficient detail to enable those who did not participate in its preparation to understand and consider meaningfully the issues the proposed project raises”; (2) an EIR must show a “reasonable effort to substantively connect a project’s air quality impacts to likely health consequences”; (3) “a lead agency may leave open the possibility of employing better mitigation efforts consistent with improvements in technology without being deemed to have impermissibly deferred mitigation measures”; and (4) “[a] lead agency may adopt mitigation measures that do not reduce the project’s adverse impacts to less than significant levels, so long as the agency can demonstrate in good faith that the measures will at least be partially effective at mitigating the Project’s impacts.”

The Friant Ranch project is a Specific Plan calling for approximately 2,500 age-restricted (ages 55+) residential units, and other uses, including a commercial center and a neighborhood electric vehicle network. Fresno County’s EIR for the project generally discussed the health effects of air pollutants such as Reactive Organic Gases (ROG), oxides of nitrogen (NOx), and particulate matter (PM), but without predicting any specific health-related impacts resulting from the project. The EIR found that the project’s long-term operational air quality effects were significant and unavoidable, even with implementation of all feasible mitigation measures. The EIR recommended a mitigation measure that included a “substitution clause,” allowing the County, over the course of project build-out, to allow the use of new control technologies equally or more effective than those listed in the adopted measure.

After the trial court denied Sierra Club’s petition for writ of mandate, the Court of Appeal reversed, holding that the EIR’s air quality analysis and air quality mitigation measures violated CEQA. On October 1, 2014, the Supreme Court granted review of the appellate court’s decision. In a unanimous decision issued December 24, 2018, the Supreme Court reversed in part, and affirmed in part, the Court of Appeal’s decision.

The Court first considered which standard of judicial review applies to claims that an EIR’s discussion of environmental impacts is inadequate or insufficient. The Court explained that an EIR’s discussion of environmental impacts is adequate and sufficient where “the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.” To that end, an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The evaluation does not need to be exhaustive, but the courts will review the discussion “in light of what is reasonably feasible.” Claims that an EIR lacks analysis or omits the magnitude of the impact involve mixed questions of law and fact, and thus are generally reviewed de novo. The courts will apply the substantial evidence standard, however, to claims challenging the EIR’s underlying factual determinations, such as which methodologies to employ. “Thus, to the extent a mixed question requires a determination whether statutory criteria were satisfied, de novo review is appropriate; but to the extent factual questions predominate, a more deferential standard is warranted.”

The Court next considered whether the Friant Ranch EIR’s air quality analysis complied with CEQA. The Court held that an EIR must reflect “a reasonable effort to discuss relevant specifics regarding the connection between” and the estimated amount of a given pollutant the project will produce and the health impacts associated with that pollutant. Further, the EIR must show a “reasonable effort to put into a meaningful context” the conclusion that the project will cause a significant air quality impact. Although CEQA does not mandate an in-depth health risk assessment, CEQA does require an EIR to adequately explain either (a) how “bare [emissions] numbers” translate to or create potential adverse health impacts; or (b) what the agency does know, and why, given existing scientific constraints, it cannot translate potential health impacts further.

With respect to the Friant Ranch EIR, the EIR quantified how many tons per year the project will generate of ROG and NOx (both of which are ozone precursors), but did not quantify how much ozone these emissions will create. Although the EIR explained that ozone can cause health impacts at exposures for 0.10 to 0.40 parts per million, this information was meaningless because the EIR did not estimate how much ozone the Project will generate. Nor did the EIR disclose at what levels of exposure PM, carbon monoxide, and sulfur dioxide would trigger adverse health impacts. In short, the EIR made “it impossible for the public to translate the bare numbers provided into adverse health impacts or to understand why such translation is not possible at this time (and what limited translation is, in fact, possible).”

The Court noted that, on remand, one possible topic to address would be the impact the Project would have on the number of days of nonattainment of air quality standards per year, but the Court stopped short of stating such a discussion is required. Instead, the County, as lead agency, has discretion in choosing the type of analysis to supply.

The Court further held that the EIR did not fulfill CEQA’s disclosure requirements in that it stated that the air quality mitigation would “substantially reduce” air quality impacts but failed to “accurately reflect the net health effect of proposed air quality mitigation measures.”

Next, the Court examined whether the air quality mitigation measure impermissibly deferred formulation of mitigation because it allowed the County to substitute equally or more effective measures in the future as the Project builds out. The Court held that this substitution clause did not constitute impermissible deferral of mitigation because it allows for “additional and presumably better mitigation measures when they become available,” consistent with CEQA’s goal of promoting environmental protection. The Court also explained that mitigation measures need not include quantitative performance standards. If the mitigation measures are at least partially effective, they comply with CEQA; this is true even if the measures will not reduce the project’s significant impacts to less-than-significant levels.

RMM attorneys Jim Moose, Tiffany Wright, and Laura Harris represented the Real Party in Interest in the case.

(Laura M. Harris)

First District Court of Appeal Holds Private Sand Mining is Not a Public Trust Use

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In a decision issued on remand from San Francisco Baykeeper Inc., v. State Lands Commission (2015) 242 Cal.App.4th 202 (Baykeeper I) the First District Court of Appeal, in San Francisco Baykeeper Inc. v. State Lands Commission (2018) 29 Cal.App.5th 562 (Baykeeper II) upheld the State Lands Commission’s (SLC’s) reapproval of leases authorizing a private company to dredge mine sand from sovereign land under the San Francisco Bay. Although SLC staff had erroneously concluded that sand mining is a public trust use, the appellate court held that substantial evidence in the record supported SLC’s finding that the mining leases would not impair the public trust.

In Baykeeper I, the Court of Appeal held that SLC violated the public trust doctrine by approving a sand mining project without considering whether the 10-year sand mining leases were a proper use of public trust lands. The court also held that SLC had complied with CEQA with respect to the leases. Based on SLC’s failure to consider the public trust, the court in Baykeeper I remanded the matter to the trial court, who issued a peremptory writ of mandate directing SLC to reconsider the sand mining project in light of the common public trust doctrine. In response, SLC staff prepared a report, which concluded that sand mining is a public trust use based upon waterborne commerce and because sand miners engage in navigation. The report also concluded that granting the mining leases would not impair the public right to use the lease parcels for public purposes. Staff reasoned that the mining leases were restricted in terms of duration and location, that the mining would be heavily regulated and supervised, and that previous leases had not caused any substantial impairment to the public trust. Based on the new analysis, the trial court discharged the writ of mandate. Petitioner and Appellant San Francisco Baykeeper, Inc. (Baykeeper) appealed that decision.

On appeal, Baykeeper and an amicus curiae group of law professors argued that SLC’s “overbroad” definition of a public trust use was inconsistent with Baykeeper I and case law interpreting the public trust doctrine. The Court of Appeal agreed, holding sand mining does not qualify as a public trust use of submerged lands. The court reasoned that if it were to agree with SLC, any private commercial use of trust property that involves a boat would constitute a trust use (and thus SLC could automatically authorize it pursuant to its authority to prefer one public trust use over another). This conception of what constitutes a public use is impermissibly overbroad because it would give the state too much discretion to allocate trust property without fulfilling its duty to preserve trust resources for public use and enjoyment.

Although the court held SLC staff was mistaken in concluding that sand mining qualifies as a public trust use, the court held that the record supported SLC’s conclusion that the mining leases in question would not interfere with the public trust. Baykeeper argued that the leases would impair the public trust by causing erosion at Ocean Beach and San Francisco Bar, both of which are public trust resources. Citing SLC’s CEQA findings on this issue, which the court upheld in Baykeeper I, the court held that substantial evidence supported SCL’s finding that the project would not have a significant impact related to coastal morphology.  In doing so, the court affirmed that SLC was entitled to incorporate its CEQA data into its subsequent public trust analysis. Baykeeper also argued that new scientific evidence shows a “definitive causal link” between sand mining and erosion, but the court held that the scientific disagreement between Baykeeper and SLC on the issue was not a ground for overturning a finding by SLC that is supported by substantial evidence. The court therefore upheld the trial court’s decision to discharge the writ of mandate.

(Laura M. Harris)

Third District Holds EIR Is Required When Lay Opinion Supports Fair Argument of Aesthetic Impacts

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In Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358, the Third District Court of Appeal held that the county is required to prepare an EIR when the lay opinions of local community members create a fair argument of potentially significant aesthetic impacts.

The project at issue was a proposed Dollar General store in a designated rural commercial zone in downtown Georgetown, an unincorporated community in El Dorado County. Although the community is not a designated historic resource, it has a historical design overlay zone, and new construction is required to “generally conform” to the county’s Historic Design Guidelines. The county prepared a mitigated negative declaration. The county also determined, through an extensive design review process in which the proposed design was revised and refined to more fully express the “Gold Rush Era” aesthetic, that the project was consistent with the design guidelines, relying in part on peer review by experts in historic architecture. Over the course of the design and environmental review processes, local residents expressed their opinions that the project was visually incompatible with the existing aesthetic character of the community. Nonetheless, the county adopted the MND, and the Georgetown Preservation Society sued. The Society prevailed in the trial court, asserting that local residents’ lay opinions on the compatibility of the proposed store design with the existing aesthetic character of the town provided substantial evidence in support of a fair argument and that an EIR was required. The applicant and the county appealed.

First, the court held that the county’s finding that the project complied with applicable planning and zoning rules via the historic design review process is not entitled to deference in the context of the county’s compliance with CEQA, and the fair argument standard still applies. Although an agency’s planning and design review forms part of the entire body of evidence to consider when determining whether the fair argument standard has been met, application of such design guidelines does not insulate the project from CEQA review at the initial study phase under the fair argument standard.

Second, the court stated that lay commentary can establish a fair argument that the project may cause substantial environmental impacts. The court rejected the appellants’ arguments that here, the county’s design review criteria recommending specific architectural styles and features constituted a technical subject. Therefore the court held that lay commentary on nontechnical matters is admissible and probative. Here, the court cited the large number of local residents who submitted comments on this issue, including some claiming backgrounds in design and planning.

Relatedly, the court held that the county’s position that cited evidence from lay persons was not credible, the county’s decision-makers were first obligated to state, in the record and with particularity, which evidence lacked credibility and why. The appellants asserted that much of the cited testimony lacked basis in facts, but the court held that the county could not discount such evidence in litigation after failing to do so in the administrative record. The court further stated that even if the county had made such determinations here, doing so would have been an abuse of discretion because the court found the testimony constituted substantial evidence supporting a fair argument.

The court noted that it was not offering an opinion as to whether the project would have a substantial impact on aesthetics, but only that an EIR was required in order to fully examine the issue.

Real parties in interest were presented by Sabrina V. Teller, L. Elizabeth Sarine, and Sara F. Dudley.

Third District Upholds Plumas County’s General Plan EIR and Holds that a Local Government May Base Its Impact Analysis on Reasonably Foreseeable Levels of Growth and Development, as Opposed to Theoretically Possible Levels

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On November 15, 2018, the Third District Court of Appeal certified for publication its decision in High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102. Rejecting arguments that Plumas County violated the Timberland Productivity Act (Timberland Act) and the California Environmental Quality Act (CEQA) when it adopted a general plan update, the appellate court affirmed the trial court’s judgment in the County’s favor. The opinion is the first precedent to explore the intersections of CEQA and the Timberland Act. It is also the first CEQA precedent clearly holding that a local government, in preparing an EIR for a general plan update, may base its impact analysis on reasonably foreseeable levels of population growth and development, as opposed to theoretically possible levels.

In 2005, the County began efforts to update its 1984 General Plan. Over the next eight years, the County engaged in a robust community engagement and education process to create the 2035 General Plan Update (GPU) that reflected the County’s planning goals and values. In December 2013, the County’s Board of Supervisors certified the Final Environmental Impact Report (EIR) and adopted the GPU. High Sierra Rural Alliance (High Sierra) filed suit, arguing that the GPU conflicted with the Timberland Act and that the EIR for the GPU did not adequately analyze impacts of potential growth outside of designated planning areas. The trial court disagreed and denied the petition and complaint in its entirety.

The Third District’s opinion begins with a brief description contrasting the County’s large size with its small population. Although the County covers approximately 2,613 square miles or over 1.67 million acres, its vast lands supported only 20,007 residents in 2010. The court also highlighted the minimal expected population growth, with the Department of Finance estimating the County’s population to remain under 21,000 until 2025, at which point the population is expected to decline.

Turning to High Sierra’s Timberland Act claims, the opinion provides an overview of the Act and the GPU policies related to timberland production zone (TPZ) lands. The opinion then settles a heretofore unresolved question under the Timberland Act–– namely, whether any residence approved on land zoned for timberland production must be “necessary for” the management of the relevant parcel as timberland. The court agreed with the County’s interpretation of Government Code section 51104, subdivision (h)(6), as providing that any “residence” on TPZ lands must be “necessary for” and “compatible with” the management of land zoned as timberland production. The court also made clear that “section 51104 suffices to supply the restrictions on residences and structures on timberland production zone parcels,” and thus the County’s GPU did not conflict with the Timberland Act simply because it failed to recite the statutory language in Section 51104 in its relevant policies.

In discussing the Timberland Act arguments, the court explained that “the finding [required by the Timberland Act] that a residence or structure is necessary for the management of a timberland production zoned parcel is not an exercise of discretion as used in the CEQA context.” The court provides local agencies and legal practitioners with important guidance on this issue by citing and quoting the discussion in the Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 272, which provides that an agency can exercise CEQA discretion only where it has “the power (that is, the discretion) to stop or modify” a project in a “way which would mitigate the environmental damage in any significant way.” Because the court concluded that “the Timberland Act affords the County no discretion to stop or request modification of the proposed residence or structure in order to mitigate environmental impacts,” the court rejected High Sierra’s argument.

Next, the court rejected High Sierra’s CEQA claims. High Sierra argued that the EIR failed to acknowledge and analyze the potential for rural sprawl. But the EIR explained that full build-out under the GPU would not occur for another three hundred years. Based on the substantial evidence in the record, the court concluded that the County could properly focus its analysis on the reasonably foreseeable growth occurring under the GPU through year 2035. The court also agreed with the County that historic land use data supported the conclusion that growth would occur almost exclusively within the planning areas. The court rejected High Sierra’s speculation that one of the GPU policies would open the floodgates to residential subdivisions on agricultural, timber, and mining lands. High Sierra’s reliance on a working paper about real estate markets in the Northern Rockies failed to persuade the court because the paper did not cite any data specific to Plumas County.

Finally, the court held that the County did not violate CEQA by failing to recirculate the EIR. The court was unconvinced by High Sierra’s argument that the inclusion in the Final EIR of building intensity standards and more accurate maps showing potential development outside of planning areas triggered recirculation.

 

RMM Senior Partner James G. Moose and Associate L. Elizabeth Sarine represented Plumas County.

 

Fourth District Finds LUP Policies Constitutional; Other Challenges Barred as Untimely Under CCP § 1094.5

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In Beach and Bluff Conservancy v. City of Solano Beach (2018) ­­28 Cal.App.5th 244, filed October 17, 2018, the Fourth Appellate District concluded that a petitioner’s remedy for challenges to policies under the California Coastal Act was exclusively limited to a writ of administrative mandamus (Code Civil Proc., § 1094.5) and that to the extent the challenge raised constitutional claims, those challenges failed on the merits.

In 2014, the California Coastal Commission approved the city’s amended land use plan (ALUP), pursuant to its local coastal program under the provisions of the Coastal Act. The amendments provided conditions and restrictions on the use, expansion, and repair of private coastal access stairways and retaining walls to protect new development or accessory buildings, and conditions under which private access stairways must be converted to public use.

Petitioner Beach and Bluff Conservancy alleged that the ALUP policies violated the Coastal Act, were unconstitutional, or both, and filed both a writ of mandate under traditional mandamus (CCP § 1085) and complaint for declaratory relief. The lower court ruled for the Conservancy, finding two of seven policies inconsistent with the Coastal Act. This appeal and cross-appeal followed.

First, the court found that, as the Coastal Act expressly provides, a writ of mandate is the exclusive remedy for a challenge to a Commission-certified policy on the ground that it is inconsistent with the Act. The Coastal Act requires the Commission to certify a local government’s LUP and amendments as consistent with the Act, by vote of the commissioners, pursuant to a noticed public hearing followed by written findings. In doing so, the Commission clearly acts in a quasi-judicial capacity, under CCP section 1094.5. It is well-established that an action for declaratory relief is not appropriate to review an administrative decision. Accordingly, the court held that the petitioner’s challenges to four ALUP policies alleging they were inconsistent with the Act were barred by the petitioner’s failure to file a timely writ petition for administrative mandamus.

Although the Conservancy’s facial constitutional challenges were not subject to CCP’s section 1094.5 filing procedures, the court held that these allegations failed on the merits.  Facial constitutional challenges are generally disfavored because they often rest on speculation and may lead to premature interpretation of the enactment on the basis of a “bare-bones” record.  A petitioner has a heavy burden to demonstrate that an enactment is facially unconstitutional.

The court found that the petitioner’s regulatory takings challenge failed because they could not demonstrate that the enactments effected a physical taking or deprived the owners of all economically beneficial or viable use of their property. The policy that provided for conversions of private stairways to a public stairways could not be deemed to facially conflict with constitutional takings principles, because the policy did not inevitably require a property conversion. Rather, the policy provided that conversion would occur only if specified conditions are met (when public access can be feasibly provided and the stairway already uses some public land per a deed restriction or public easement).

The court also ruled that allegations under the “unconstitutional conditions doctrine,” which limits the government’s power to require surrender of a constitutional right in exchange for a discretionary benefit, also failed. The doctrine applies only where the condition constitutes an exaction in the form of a conveyance of a property interest or the payment of money. It does not apply where, as here, the government simply restricts the use of property without demanding an exaction. And, the Nollan/Dolan test developed to determine if an exaction is permissible applies only to permit approvals, and not to facial constitutional challenges.

Lastly, the court opined that the disposition of this appeal does not preclude future “as-applied” constitutional challenges to the ALUP. Citing federal law with approval, the court stated that the doctrine of res judicata (and collateral estoppel) does not bar claims that arise from events that postdate the filing of the initial complaint. Affected property owners can always challenge the application of these policies as applied to their properties.

First District Court of Appeal Allows City to Recover Costs of “Extracting” and Producing Video Recordings Requested Under the California Public Records Act

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On September 28, 2018, the First District issued its decision in National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937.* Concluding that the trial court misinterpreted applicable provisions of the California Public Records Act (CPRA), the appellate court reversed the trial court’s decision to issue a writ directing the City of Hayward to refund the National Lawyers Guild for payments that the Guild made to cover the city’s costs in producing videos responsive to the Guild’s request for public records.

In January 2015, the Guild served the city with requests for public records relating to a demonstration in Berkeley protesting police violence. The city’s police department provided security for the demonstration that was held in December 2014. In response to the Guilds’ CPRA request, the city provided the Guild with over 200 public records, including six hours of police body camera videos from the Berkeley demonstration. In May 2015, the city sent the Guild an invoice for $2,939.58 to cover the costs incurred by city employees in preparing the videos for production, including editing the videos to redact exempt material. The Guild paid this first invoice under protest and submitted another request for a second set of videos. The city informed the Guild that the second set of videos could be produced for a cost of $308.89. The Guild paid the second invoice, but not before it filed a petition for writ of mandate seeking a refund of what it had paid to the city.

The trial court concluded that Government Code sections 6253 and 6253.9 do not permit the city to charge a public records requester for costs incurred in redacting material from a video that is a public record. After the trial court ruled in favor of the Guild, the city appealed.

The appellate court began with an overview of the statutory framework and public policies behind the CPRA. Then the court focused on the plain language in Section 6253 and Section 6253.9, subdivision (b)(2). The main dispute between the city and the Guild centered on the term “extract” in Section 6253.9, subdivision (b), which provides: “the requester shall bear the cost of producing a copy of the record” when compliance with the request for an electronic record “would require data compilation, extraction, or programming to produce the record.” (Gov. Code, § 6253.9, subd. (b).)

The court decided that it must consider legislative history because it was not clear from the statutory text what the Legislature intended. Based on various documents that the court judicially noticed for purposes of the appeal, the court concluded that lawmakers drafted Section 6253.9(b) to “expand the circumstances under which a public agency could be reimbursed by a CPRA requester to include” a scenario where “the agency must incur costs to acquire and utilize special computer programming (e.g., the Windows Movie Maker software) to extract exempt material from otherwise disclosable electronic public records.” The court reversed the trial court’s judgment, allowing the city to recover the costs it incurred in providing the Guild with redacted videos.

*Review granted, December 19, 2018.

First District Finds CEQA Claim Timely Filed in Case Challenging Approval of Tree Removal

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In Save Lafayette Trees v. City of Lafayette (Oct. 23, 2018, A154168)* ___ Cal.App.5th___, the First District Court of Appeal held that the 90-day statute of limitations period set forth in the Planning and Zoning Law did not apply to petitioners’ CEQA cause of action. Therefore, although the trial court correctly granted the demurrer to petitioners’ Planning and Zoning Law claim, the trial court erred in dismissing petitioners’ CEQA claim.

The case involves the City of Lafayette’s approval of an agreement with Pacific Gas and Electric Company (PG&E) authorizing the removal of up to 272 trees within PG&E’s natural gas pipeline rights-of-way. City staff and PG&E disagreed as to whether PG&E was required to comply with the city’s tree protection ordinance. Rather than requiring PG&E to comply with the city’s tree protection ordinance, however, the city agreed to allow PG&E to remove the trees under a provision of the Lafayette Municipal Code allowing removal of protected trees “to protect the health, safety, and general welfare of the community.”

Petitioners filed a lawsuit challenging the city’s approval of the tree-removal agreement. The petition alleged that the city failed to comply with the Planning and Zoning Law and CEQA in approving the agreement. It also alleged that the city violated the petitioners’ due process rights by failing to give sufficient notice of the hearing at which the agreement was approved.

PG&E filed a demurrer, in which the city joined, asserting that the petition was barred by Government Code section 65009, subdivision (c)(1)(E), which requires that an action challenging a zoning permit be filed and served within 90 days of the decision. The trial court sustained the demurrer without leave to amend, finding that the petition had not been served within the 90-day filing and service period. Based on this, the trial court dismissed the petition in full.

The Court of Appeal agreed with the trial court that petitioners’ Planning and Zoning Law claim was time-barred because petitioners had not served the petition within 90 days, as required by Government Code section 65009, subdivision (c)(1)(E). Government Code section 65009 applies to “any decision” by a legislative body regarding a permit. Although the approval of the agreement was not labeled a “permit,” it was, in effect, a permit authorizing the removal of trees, so section 65009, subdivision (c)(1)(E) applied. Although section 65009’s legislative findings discuss the need for a short limitations period to provide certainty to housing developers, nothing in section 65009 restricts its application to decisions involving houses. The longer statute of limitations found in the city’s Municipal Code did not apply because the shorter limitations period of the Government Code preempted that of the city’s code. Because the due process cause of action derived from the Planning and Zoning Law, the 90-day statute of limitations under the Planning and Zoning Law also barred petitioners’ due process claim.

The 180-day statute of limitations found in Public Resources Code section section 21167.6, subdivision (a), applied to the CEQA cause of action. Because the petition had been filed and served within that time, the trial court erred in dismissing the CEQA claim. Because the CEQA limitations period was twice as long as that of the Government Code, the two statutes of limitations could not be reconciled. Therefore, the statute of limitations under the Planning and Zoning Law did not control the CEQA cause of action.

*Previously published at: 28 Cal.App.5th 622, Rehearing Granted, Opinion Not Citeable November 26, 2018.

Fourth District Court of Appeal Declines Invitation to Invalidate CEQA Guidelines Section 15164, Affirming Agency’s Ability to Rely on Addendum to an EIR

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The Fourth District Court of Appeal found that the addendum process under CEQA Guidelines section 15164 fills a procedural gap in the statute and is not invalid. The court also ruled that Public Resources Code section 21081 findings are not required again with an addendum. (Save Our Heritage Organisation v. City of San Diego (2018) 28 Cal.App.5th 656.

The City of San Diego certified an EIR and approved a project in 2012 to restore pedestrian and park uses to portions of Balboa Park. Save Our Heritage Organisation (SOHO) filed a petition for writ of mandamus challenging the project. The superior court granted the petition and directed the City to rescind the project approval. The Real Party in Interest and SOHO each appealed the judgment, and the court of appeal reversed the trial court’s judgment and upheld the EIR. The Real Party in Interest filed a motion seeking an award of attorney fees, which the trial court denied and the appellate court affirmed.

While the appeals were pending, several physical changes occurred to the project’s environmental setting. In 2016, the City adopted an addendum to the EIR to address modifications to the project. The addendum concluded that:

  1. There were no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects;
  2. There were no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and
  3. There was no new, previously unknown or unknowable, information of substantial importance showing: (a) the project will have significant effects not discussed in the EIR; (b) the project will have substantially more severe significant effects than shown in the EIR; (c) previously infeasible mitigation measures and project alternatives are now feasible and would substantially reduce significant environment effects; or (d) considerably different mitigation measures than analyzed in the EIR would substantially reduce significant environmental effects.

The City incorporated these findings into its resolution adopting the addendum.

CEQA Guidelines Section 15164

The court found that SOHO did not meet its burden of proof to show that CEQA Guidelines section 15164, which allows for preparation of addenda, is invalid. The court explained the difference between quasi-legislative rules (those in which the Legislature has delegated a portion of its lawmaking power) and interpretive rules (those in which an agency interprets a statute’s meaning and effect). Although the California Supreme Court has not ruled on which category applies to the CEQA Guidelines, the court explained that such a distinction was not necessary to make here because, either way, SOHO did not establish that section 15164 is invalid.

The court determined that Guidelines section 15164 is both (1) consistent and not in conflict with CEQA; and (2) reasonably necessary to effectuate the purpose of CEQA.

The court explained that the Resources Agency promulgated Guideline 15164 to implement Public Resources Code section 21166, which describes the circumstances under which an agency must conduct subsequent or supplemental review. That section, explained the court, creates a presumption against further environmental review once an EIR has been finalized. And, although section 21166 does not expressly authorize an “addendum,” the court explained that Guidelines section 15164 fills in the gap for CEQA projects where there is a previously certified EIR that should be revised, but the conditions that warrant preparation of a subsequent EIR under section 21166 are not met. Furthermore, the court said, Guidelines section 15164 is consistent with and furthers the objectives of section 21166 because it requires an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review.

The court also explained that the absence of a public review process for an addendum does not render Guidelines section 15164 inconsistent with CEQA. Instead, the absence of public review reflects the finality of adopted EIRs, and the proscription against further environmental review except in specified circumstances in section 21166. In addition, the court pointed to the analogous requirement that a Final EIR must be recirculated before certification only where revisions add significant new information. Finally, the court emphasized that the Resources Agency first promulgated Guidelines section 15164 in 1983, and the Legislature has not modified CEQA since then to eliminate the addendum process.

Findings Required Under Section 21081

SOHO argued that the City was required to make new findings under section 21081, but the court disagreed. Section 21081 provides that a public agency shall not approve or carry out a project for which an EIR has been certified unless the agency makes specific findings with respect to identified significant effects. The court explained that neither the Code nor the Guidelines suggests new findings are required when an addendum is prepared. And, the court explained, the only purpose of findings is to address new significant effects, but an addendum is only proper where no new significant environmental impacts are discovered. Where there are no new significant impacts, there is no need for findings. Therefore, the court held, findings are not required for an addendum.

Second District Upholds City’s Interpretation of Its Charter Allowing General Plan Amendment for Transit Oriented Development Project

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In Westsiders Opposed to Overdevelopment v. City of Los Angeles et al.(2018) 27 Cal.App.5th 1079, the Second District Court of Appeal upheld the trial court’s conclusion that the City of Los Angeles did not misinterpret its City Charter when it amended its general plan to change the land use designation of a nearly five-acre parcel for a transit-oriented development project on the west side of the city.

In 2015, Real Parties in Interest, Dana Martin, Jr., Philena Properties, L.P. and Philena Property Management, LLC (Philena) applied to develop a mixed-use, transit oriented development project on a former car dealership site of approximately five acres. The site is on the corner of Bundy Drive and West Olympic Boulevard in West Los Angeles, less than 500 feet from a new light rail station. As part of its application, Philena requested that the City change the site’s general plan land use designation from light industrial to general commercial, and several other entitlements. The City prepared an EIR for the project and in September 2016, approved the project and the general plan amendment. Appellant, Westsiders Opposed to Overdevelopment sued, challenging the amendment under City Charter section 555, subdivisions (a) and (b).

Los Angeles City Charter section 555 governs general plan amendments in the city. Relevant here, subdivision (a) allows the plan to be amended “by geographic areas, provided that the … area involved has significant social, economic or physical identity.” Subdivision (b) of that section states, in pertinent part, that “[t]he Council, the City Planning Commission or the Director of Planning may propose amendments to the General Plan.” Westsiders argued that both of these provisions prevented the City from approving the amendment in this case. Westsiders alleged that the general plan could not be amended for a single project or parcel because a single parcel did not qualify as a “geographic area” with “significant social, economic or physical identity” as required by section 555, subdivision (a). Petitioner also argued that, by requesting the general plan amendment, Philena had effectively “initiated” the amendment in violation of section 555, subdivision (b), which restricts the authority to start that process to the council, planning commission or planning director. The trial court denied the petition and found that the city did not exceed its authority under its charter in approving the amendment in this case. Westsiders appealed.

The court of appeal found that, because the challenge was to the city’s amendment of the general plan, Government Code section 65301.5 required that the city’s action be reviewed under Code of Civil Procedure section 1085, governing traditional mandamus. In doing so, the court rejected Westsiders’ argument that, because the general plan amendment was for a single project and parcel, review should be under Code of Civil Procedure section 1094.5, governing administrative mandamus. In discussing the appropriate standard of review, the court recognized that charter cities are presumed to have power over municipal affairs, and that any limitation or restriction on that power in the charter must be clear and explicit. The court also stated that, while construing the charter was a legal issue subject to de novo review, the city’s interpretation of its own charter is entitled to great weight unless it is clearly erroneous, and must be upheld if it has a reasonable basis.

In interpreting the charter, the court found that the plain meaning of the terms “geographic area” and “significant social, economic or physical identity” did not contain any clear and explicit limitation on the size or number of parcels involved in amending the general plan by geographic area. The court rejected Westsiders’ request for judicial notice, which contained several documents that Westsiders claimed were legislative history showing that the voters had intended to include such a limitation. The court also rejected Westsiders’ argument that, in considering whether a geographic area has “significant social, economic or physical identity” the city may not consider the proposed project and future uses of the site. The court found that the city’s determination that the site had significant economic and physical identity because it was one of the largest underutilized sites with close proximity to transit in West Los Angeles, and that the project would be the first major transit oriented development met the requirements of Charter section 555, subdivision (a). The court also pointed out that not every lot in the city would necessarily meet the requirements of the charter and qualify for a general plan amendment.

Interpreting Charter section 555, subdivision (b), the court rejected Westsiders’ argument that, by filling out a land use application requesting that the city amend the general plan, Philena had improperly “initiated” the amendment in violation of the charter. Similar to its analysis of subdivision (a), the court found that section 555, subdivision (b) did not contain a clear and explicit limitation on who could request that the city amend the charter. The court also stated that city followed the procedures required by the charter because, after Philena made its request, it was the planning director who formally initiated the amendment process.

Next, the court found that, because amending the general plan is a legislative act, the city was not required to make explicit findings to support its decision. The court rejected Westsiders’ argument that the city was required to make findings that “bridge the analytical gap between the raw evidence and ultimate decision” in this case (quoting Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515). The court found that this requirement did not apply to legislative acts, such as the amendment of the general plan. The court also rejected Westsiders’ argument that the city’s use of the word “unique” in discussing the site’s identity (as opposed to “significant”) made its “findings” inadequate. The court found that the city’s analysis showed that the site had significant economic and physical characteristics and met the requirements of section 555, subdivision (a).

Lastly, the court rejected Westsiders’ argument that the city impermissibly “spot-zoned” the project through the general plan amendment. The court found that Westsiders had failed to raise this argument in the trial court and was thus barred from raising it on appeal. The court affirmed the trial court’s judgment dismissing the petition for writ of mandate.

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