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FOURTH DISTRICT HOLDS FAIR ARGUMENT STANDARD IS INAPPLICABLE TO CLAIM THAT HISTORICAL RESOURCE EXCEPTION PRECLUDES HISTORICAL RESOURCE CATEGORICAL CEQA EXEMPTION

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In Historic Architecture Alliance v. City of Laguna Beach (2023) 96 Cal.App.5th 186, the City of Laguna Beach approved a project to renovate and expand a historic single-family home. In doing so, the City determined that the project was categorically exempt from CEQA under the Class 31 historical resource exemption. Petitioners, the Historic Architecture Alliance and the Laguna Beach Historic Preservation Coalition (collectively, “Alliance”), alleged that the City improperly relied on the Class 31 exemption and that the historical resource exception to the categorical CEQA exemptions applied. Affirming the trial court’s denial of the petition, the Fourth District Court of Appeal held that the application of both the Class 31 exemption and the historical resources exception presented the City with the same factual issue, and that the City’s finding on this issue was supported by substantial evidence.

Background

In 2017, the owners of a historic single-family residence submitted their initial application and plans to the City to renovate and add on to the house. The City’s historical resources consultant reviewed the initial plans for compliance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties (“Standards”), which provide guidance for achieving long-term preservation of historical features and materials.

When the consultant concluded that the initial plans did not fully comply with the Standards, the homeowners and their architect revised the plans and worked with the City to incorporate recommendations made by both the consultant and the City’s Heritage Committee and to ensure the project’s conformance to the Standards.

In 2020, the City approved the project. The City determined that the project satisfied the Standards and thus qualified for the Class 31 categorical CEQA exemption, which applies to historical resource renovation projects that are consistent with the Standards.

In 2021, Alliance filed a writ petition. The trial court denied the petition, finding that the City’s decision was supported by substantial evidence and that Alliance had not met its burden of demonstrating that an exception precluded reliance on the Class 31 exemption. Alliance appealed.

Court of Appeal’s Decision

Class 31 exemption

The court upheld the City’s reliance on the Class 31 exemption. The court explained that the determination that a categorical CEQA exemption applies is a factual one that is subject to review under the deferential substantial evidence standard. Pointing to the numerous rounds of review and revisions to bring the plans into compliance with the Standards and the City’s recommendations, the court concluded that the administrative record contained substantial evidence supporting the City’s determination that the project complied with the Standards, and therefore fell within the Class 31 exemption.

The court rejected Alliance’s argument that, by requiring various revisions to the project, the City was imposing mitigation measures to “shoehorn” the project into the Class 31 exemption. While the court acknowledged the general legal principle that mitigation measures may not be used to support categorical exemption, the court concluded that the plan revisions to bring the project into compliance with the Standards were not mitigation measures.

Historical resources exception

The court also rejected Alliance’s argument that the historical resources exception—which precludes reliance on a categorical CEQA exemption for projects “which may cause a substantial adverse change in the significance of a historical resource”—applied to the project. The court held that when applying the historical resource exception to the Class 31 exemption, the fair argument standard does not apply. Citing CEQA Guidelines section 15064.5(b)(3), which provides that projects that comply with the Standards “shall be considered as mitigated to a level of less than significant impact on the historical resources,” the court explained that “the decisive factor for the historical resource exception is the same as that for the [Class 31] exemption—whether the project complies with the [Standards].” Because an agency’s determination that the Class 31 exemption applies is reviewed for substantial evidence, the court reasoned that the exemption would be rendered “meaningless” if its underlying factual determination was then subject to the fair argument standard when applying the historical resources exception.

Thus, because the City’s determination that the Project satisfied the Standards was supported by substantial evidence, so too were the City’s reliance on the Class 31 exemption and the City’s finding that the historical resources exception did not apply.

EPA PUBLISHES REVISED DEFINITION OF “WATERS OF THE UNITED STATES” IN RESPONSE TO SCOTUS’ SACKETT DECISION.

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On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) issued a final rule to amend the agencies’ earlier “Revised Definition of ‘Waters of the United States,’” published on January 18, 2023. (88 Fed. Reg. 3004.) The latest rule revises the definition of “waters of the United States” (WOTUS) to conform to the Supreme Court’s May 25, 2023 opinion in Sackett v. Environmental Protection Agency (2023) 598 U.S. 651.

The highly anticipated Sackett decision resolved long-standing debate over the scope and definition of WOTUS under the Clean Water Act (CWA). The Court’s opinion considerably narrows the regulatory reach of the EPA and the Army by invalidating the agencies’ application of the “significant nexus” test and promulgating a limited interpretation of jurisdictional “waters” and “adjacent wetlands” that are covered by the CWA.

While the EPA and Army’s January 2023 WOTUS Rule was not directly before the Supreme Court, the Sackett decision made clear that certain aspects of the that Rule were invalid, in turn creating further uncertainty for CWA implementation. The August 2023 Rule (also referred to as “the Conforming Rule”) thus responds to Sackett by amending only those components of the rule’s regulatory text that are now invalid under the Supreme Court’s interpretation of the CWA—namely, removing the “significant nexus” standard and amending the definition of “adjacent” waters. By expeditiously issuing these amendments, the agencies assert the final rule provides much-needed clarity and a clear path forward that is not only consistent with the Supreme Court’s ruling, but allows the Army Corps to resume issuing jurisdictional determinations (which have been put on hold in some Corps’ Districts).

A summary of the August 2023 Rule’s key amendments and its timeline for implementation are summarized below:

Key Regulatory Amendments

To align with the Sackett holding, the August 2023 Rule takes a surgical approach to make targeted revisions to selected portions of the January 2023 Rule that are implicated by the decision:

Removal of “Significant Nexus” Standard
The Sackett decision found that the agencies’ application of the “significant nexus” test to identify federally protected tributaries and other waters was inconsistent with the text and structure of the CWA. The August 2023 Rule thus removes all references to the standard.

As a result, tributaries, adjacent wetlands, and intrastate lakes and ponds that “significantly affect the chemical, physical, or biological integrity of [traditional navigable] waters” are no longer jurisdictional under the CWA. Along these lines, the Conforming Rule also eliminates the definition of “significantly affect,” which listed various factors and conditions that the agencies used to ascertain whether certain waters would have a material influence on the chemical, physical, or biological integrity of traditional navigable waters. These standards, according to the Court, were too nebulous for reasonable and understandable implementation and were inconsistent with the structure of the Clean Water Act.

Amended Definition of “Adjacent” Waters
To conform to Sackett, the August 2023 Rule also amends the WOTUS definition so that water can no longer be found “jurisdictional” based on the January 2023 Rule’s definition of “adjacent.” As such, wetlands are not “adjacent,” and thus, not jurisdictional under the CWA, solely because they are “bordering, contiguous, or neighboring…[or] separated from other ‘waters of the United States’ by man-made dikes or barriers, natural river berms, beach dunes, and the like.”

Instead, “adjacent” tributaries, wetlands, and intrastate lakes/ponds are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water,” or have a continuous surface connection to navigable waters.

No More “Interstate Wetlands,” But Little Clarity on “Relatively Permanent” Wetlands
With the elimination of the “significant nexus” standard, tributaries, wetlands, and intrastate lakes/ponds that are “adjacent” to federal navigable waters are only jurisdictional if they are “relatively permanent, standing, or continuously flowing bodies of water.” The August 2023 Rule also eliminates “interstate wetlands” from the definition of “interstate waters” that are subject to the CWA.

Notably, however, the August 2023 Rule provides little clarity into the factors that create “relatively permanent” waters. The Rule’s supplemental preamble explains that, under Rapanos, those waters do “not necessarily exclude streams, rivers, or lakes that might dry up in extraordinary circumstances such as drought,” or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.”

And, under Sackett, “waters”  encompass “only those relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes.” Wetlands are  WOTUS “when they have a continuous surface connection to bodies that are ‘waters of the United States’in their own right, so that there is no clear demarcation between ‘waters’ and wetlands.’” Nevertheless, under the Conforming Rule, it remains unclear the length of “relative permanency” a water must experience in order to qualify as jurisdictional under the CWA.

Finally, the August 2023 Rule removes “interstate wetlands” to conform to the Sackett decision’s determination that wetlands are not jurisdictional simply because they are interstate. Instead, under the Supreme Court’s interpretation of the CWA, the term “waters” refers to such ‘open waters’ such as rivers, lakes, and other waters that flow across or form a part of State boundaries.

Regulatory Interpretation & Agency Guidance
Unlike prior versions of the WOTUS rule, the August 2023 Rule’s proposed amendments note that the agencies will continue to interpret the remainder of the definition of WOTUS in a manner that is consistent with the Sackett decision. But the agencies reiterate that it is both reasonable and appropriate for the agencies to promulgate this rule as quickly as feasible, without notice and comment, in response to the Supreme Court’s significant holding.

In turn, the agencies concede that they will address any potential issues arising from implementation of the August 2023 Rule through appropriate avenues, such as approved jurisdictional determinations and CWA permits, issuing future guidance, subsequent notice and comment rulemaking, preparing agency forms and training materials, and holding stakeholder meetings to ensure the public has an opportunity to provide input on other issues they would like the agencies to address.

Thus, in practice, the agencies will develop guidance and take stakeholder input regarding the August 2023 Rule’s proposed amendments after it is published in the Federal Register and becomes effective, and not rely on pre-publication comment.

Severability Clause
As with the agencies’ January 2023 Rule, the August 2023 Rule similarly provides a severability clause that attempts to preserve as many portions as feasible in the event future litigation attempts to stay or invalidate the Rule. The August 2023 Rule reiterates that the WOTUS rule was crafted so that each portion or element is disjunctive and capable of operating independently. Therefore, if any provision is deemed legally invalid, that partial invalidation will not render the remainder of the Rule as also invalid. To this end, if applying any portion of the Conforming Rule is determined to be invalid, the agencies intend that the complete WOTUS rule, as revised, will remain applicable to all other circumstances. In other words, if any of the exclusions from WOTUS were deemed invalid, invalidating one exclusion would not necessarily have any practical impact on any other part of the definition of WOTUS.

Implementation Timeline

No Notice and Public Comment Process
Because the proposed amendments are change only those parts of the January 2023 rule that are invalid under Sackett, the EPA and the Army have decided to issue the August 2023 Rule without notice or an opportunity for public comment. Citing section 553(b)(B) of the Administrative Procedure Act (APA), the agencies have found there is good cause that providing noticing or receiving public comments on the final rule would be impracticable and unnecessary.

According to the agencies, the conforming amendments “do not involve the exercise of the agencies’ discretion,” therefore a “notice and comment process would neither provide new information to the public nor inform any agency decisionmaking regarding the aspects of the regulations defining ‘waters of the United States’ that are invalid as inconsistent with the [CWA] under Sackett.”

Immediate Publication & Effect
The August 2023 Rule will become immediately effective upon publication in the Federal Register. The agencies have found similar good cause under APA section 553(d)(3) to make the August 2023 Rule immediately effective because it will not impose any burdens on the regulated community. Instead, the agencies contend that the amendments merely conform the January 2023 Rule to Sacket by amending those provisions deemed invalid under the Supreme Court’s interpretation of the CWA.

The agencies reiterate that making the rule immediately effective will provide more clarity and certainty to the regulated community; whereas a delayed effective date would prolong confusion and potentially result in project delays for prospective permittees that seek a jurisdictional determination for their project’s proposed discharges. Finally, the immediate effect of the Conforming Rule will also provide clarity to States and Tribes that administer CWA permitting programs, as well as members of the general public who seek to understand which waters are subject to the CWA’s requirements.

Next Steps

The amended August 2023 Rule is expected to be published in the Federal Register by Friday, September 1, 2023. Once published, the rule will go into immediate effect and the Army Corps’ pause on issuing jurisdictional determinations (due to the pending Sackett decision) will be lifted.

Due to an existing injunction against the January 2023 Rule, the agencies will implement the August 2023 Rule in the 23 states where the January 2023 Rule is not enjoined. In the remaining 27 states where the January 2023 is enjoined, the agencies will continue interpreting WOTUS consistent with the pre-2015 regulatory regime and the Sackett framework until further notice.

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Brian Plant, Of Counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at: [email protected].

U.S. SUPREME COURT LIMITS FEDERAL PERMITTING JURISDICTION UNDER THE CLEAN WATER ACT, HOLDING THAT ONLY WETLANDS WITH A SURFACE CONNECTION TO INTERSTATE NAVIGABLE WATERS CONSTITUTE “WATERS OF THE UNITED STATES.”

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SUMMARY AND UPDATE

In a highly-anticipated decision published on May 25, 2023, the United Stated Supreme Court in Sackett v. Environmental Protection Agency (2023) 598 U.S. __, 143 S.Ct. 1322 (No. 21-454), resolved the long-standing debate over the definition and scope of “waters of the United States” under the Clean Water Act. The unanimous opinion authored by Justice Alito significantly narrows the jurisdictional reach of the EPA and Army Corps by adopting the Court’s earlier plurality opinion in Rapanos v. U.S. to hold that only those wetlands with geographical features that are “indistinguishable” from traditional navigable waters due to a continuous surface connection are subject to federal regulation under the Clean Water Act. The Court applied this new standard to conclude that the EPA lacked regulatory and permitting authority over wetlands located adjacent to land owned by petitioners Michael and Chantell Sackett because those wetlands were distinguishable from covered waters.

Factual & Procedural Background

In 2004, Petitioners Michael and Chantell Sackett (the Sacketts) began backfilling land on their property near Priest Lake, Idaho, across the street from a tributary that feeds a non-navigable creek. While the parcel does not share a “continuous surface connection” with the tributary, the land could, at times, be hydrologically connected to the tributary and, by extension, Priest Lake.

After an enforcement action brought by EPA and after nearly a decade of litigation, the District Court entered summary judgment in favor of the EPA, holding that the Sacketts’ land was subject to CWA protections. The Ninth Circuit affirmed, holding that the CWA covers adjacent wetlands with a significant nexus to traditional navigable waters and that the Sacketts’ lot satisfied that standard.

The Supreme Court’s Opinion

The U.S. Supreme Court granted certiorari to decide the proper test for determining whether the wetlands on the Sacketts’ property constituted “waters of the United States” under the CWA.

The Court’s Holding – Defining “Waters of the United States”

Against the backdrop of a much litigated CWA history regarding jurisdiction, and relying heavily on earlier Supreme Court decisions (i.e., Rapanos), the 9-0 majority in Sackett held that the CWA’s use of the term “waters” in “waters of the United States” refers only to “those relatively permanent, standing, or continuously flowing bodies of water ‘forming geographical features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’” As such, adjacent wetlands only constitute statutory “waters of the United States” if they are “indistinguishable” from those bodies of water due to a continuous surface connection.

The Court agreed with the plurality in Rapanos that wetlands subject to the CWA include those that are “indistinguishable” from bodies of water that traditionally constitute “waters of the United States.” This only occurs when wetlands have “a continuous surface connection” to bodies of WOTUS, such that there is “no clear demarcation between ‘waters’ and ‘wetlands.’” Accordingly, to assert jurisdiction over an adjacent wetland under the CWA, a party must establish that: (1) “the adjacent body of water constitutes [WOTUS] (i.e., a relatively permanent body of water connected to traditional interstate navigable waters)”; and (2) “the wetland has a continuous surface connection with … a relatively permanent body of water connected to traditional interstate navigable waters,” such that it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

In articulating this bright-line rule, the Court declined to defer to the EPA’s 2023 “wetlands” rule, which provides that “adjacent wetlands are covered by the CWA if they possess a significant nexus to traditional navigable waters, [and] that wetlands are ‘adjacent’ when they are ‘neighboring’ to covered waters.” The Court, in part, relied heavily on the thought that the assertion of jurisdiction should be clear so that those regulated can determine if their actions trigger the need for federal permitting and whether proposed “fill” activities can be subject to federal criminal enforcement.  In so doing, the Court relied on dictionary definitions and reasoned that the EPA’s earlier regulatory interpretations were inconsistent with the text of the CWA because the Act contained no “exceedingly clear language” indicating Congress’ intent.

Despite the Court’s focus on the need for clear language, the opinion provides that “[the Court] also acknowledge that temporary interruptions in surface connection may sometimes occur because of phenomena like low tides or dry spells.”  Here the Court raises a question with respect to what amounts to a “continuous” surface connection during drought, for instance.  Indeed, how “dry” is “dry” and how long does a feature need to be “dry” before it is no longer a “temporary” interruption of flow.

Recent Updates

Both EPA and the Corps have gone on record in saying that they anticipate issuing a federal rule addressing the Court’s opinion in September 2023. In addition, various Corps Districts are modifying procedures in anticipation of this proposed rule and/or guidance. For instance, the Sacramento District has suspended processing Approved Jurisdictional Determinations (AJDs) and will verify only Preliminary Jurisdictional Determinations (PJDs).

Numerous NGOs, policy groups and agencies are attempting to determine the impact of the ruling on their programs. For instance, the National Association of Homebuilders (NAHB) has conducted talks with aquatic resource consultants and scientists in an effort to determine the likely effect of future regulation and permitting. That input generally recognizes that “one size” will likely “not fit all” given the wide variety of regional wetland hydrology. In particular, regions with “ephemeral” Mediterranean climates like California will be affected differently than those with consistently wetter climates.

Brian Plant, of counsel attorney at RMM, advises private and public agency clients regarding a broad range of permitting actions arising under Federal and State water quality, endangered species, and other natural resources laws and regulations. He can be reached at [email protected].

SECOND DISTRICT HOLDS HOUSING PROJECT DOES NOT QUALIFY FOR CLASS 32 IN-FILL EXEMPTION BECAUSE OF INCONSISTENCIES WITH GENERAL PLAN POLICIES

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In United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074, the court held that the City of Los Angeles failed to consider the project’s consistency with the general plan’s applicable housing element polices, and that the challenging petitioner group sufficiently exhausted its administrative remedies regarding the inconsistencies by contesting the project’s consistency with the housing element’s general goals, without referencing the specific policies.

 Background

The City approved a project that would replace 40 apartment units subject to the City’s rent stabilization ordinance with a 156-room hotel, and determined the project was exempt from CEQA pursuant to the Class 32 in-fill exemption. United Neighborhoods for Los Angeles sought a writ of mandate arguing that the in-fill exemption does not apply because the project is not consistent with a general plan policy regarding the preservation of affordable housing. The trial court granted the writ, halting the project pending CEQA review or the City making a finding that the project is consistent with the policy at issue. The City appealed.

Court of Appeal’s Opinion

Exhaustion

The court concluded that United Neighborhoods exhausted its administrative remedies because its comments that the project’s demolition of the rent stabilized apartment units would conflict with the first goal of the housing element were sufficient to apprise the City of the issues raised in litigation. The court explained that United Neighborhoods’s references to the housing element’s general goals, rather than its specific policies, was immaterial because a general plan is structured in such a way that a project that is inconsistent with housing element goals will also conflict with the housing element policies. Moreover, the court found United Neighborhoods’s objection concerned multiple housing element policies relating to the preservation of, as opposed to the production of, affordable housing, and was therefore sufficient to apprise the City of the policies that United Neighborhoods’s objection implicated. Finally, the court emphasized that the City expressly acknowledged that United Neighborhoods’s objection was that the project’s removal of the apartment units would conflict with the housing element.

Consistency with General Plan Policies

The court held that substantial evidence does not support the City’s determination that the housing element policies are inapplicable, and that the City did not consider the project’s consistency with the applicable policies.

First, the court explained that the housing element policies are applicable to the project because the project will have an impact on the preservation of housing reflected in several of the housing element’s goals, objectives, and policies. The court found that the City focused only on the portions of the housing element that related to the production of new housing.

The court also rejected the City’s argument that “affordable housing” is a term of art that does not include rent stabilized housing units. The court explained that nothing in the housing element suggests that “affordable housing” is a term that deviates from its ordinary meaning, and therefore must refer to the dictionary definition: “housing that can be afforded by those on low or median incomes; spec. housing made available to those on lower incomes at a price below normal market value, as the result of legislation or subsidy by a local authority or the state.” Accordingly, the court determined that rent stabilized units are a form of “affordable housing” because they prohibit landlords from raising rents to reflect normal market value under certain circumstances. While the court acknowledged that deference is typically given to an agency’s finding of consistency with its own general plan, such deference is not given with respect to the City’s determination of which policies apply to the project.

Second, the court rejected the City’s argument that its consideration of the project’s consistency with the housing element can be inferred from its express discussion of other related policies. The court explained that the other policies that the City expressly discussed did not mention affordable housing and were less specific than the housing element policies.

The court was also not persuaded that the City’s conditional approval of the project on compliance with the Ellis Act—a requirement in the housing element—implied that it considered applicable housing element policies. It explained that the conditions of approval indicated that the Ellis Act condition is derived from the City’s Municipal Code, and therefore does not demonstrate the City’s consideration of the housing element policies.

While the court emphasized that the City was not required to make formal findings that housing element policies are outweighed by competing polices favoring the project, or that such a decision would necessarily conflict with the general plan, it concluded that a court cannot defer to the City’s weighing and balancing of general plan policies without supporting evidence that the City did weigh and balance all applicable policies.

Therefore, because the Class 32 in-fill exemption requires consistency with all applicable general plan policies, the court upheld the trial court’s determination that the City’s application of the exemption was unlawful.

FIRST DISTRICT HOLDS LACK OF A LEGALLY COMPLIANT LAND USE DESIGNATION ALONE DOES NOT PRECLUDE AN AGENCY FROM DENYING A PROJECT FOR UNRELATED REASONS

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In Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, the First District Court of Appeal upheld the Town of Moraga’s denial of a development application based on unrelated inconsistencies with the general plan, despite the fact that Moraga’s land use element included a land use designation for the project site that was out of compliance with the law.

Background

The Town of Moraga denied Lafayette Bollinger Development LLC’s and Joan and David Bruzzone’s application to develop housing on the developers’ property and certify the EIR for the project because the project was not consistent with portions of the general plan related to public safety, residential density, grading volumes, location of other proposed development relative to the site, and impacts to natural resources. Moraga also denied the developers’ request for a general plan amendment and to change the zoning of the subject property from a “Study” designation to “residential.” The “Study” designation was originally intended to be temporary, but remained in place for approximately two decades and only allowed agricultural and accessory building uses. The developers sued Moraga, challenging its denial of the development application and general plan and zoning changes. The trial court issued a peremptory writ of mandate in favor of the developers, directing Moraga to issue a legally compliant land use designation, but rejecting the developers’ other claims regarding the denial of the development application, including takings, equal protection, and due process violations. The developers appealed.

Court of Appeal’s Opinion

 While the Court of Appeal agreed that the “Study” designation violates Government Code section 65302, subdivision (a), it rejected the developers’ argument that the improper land use designation rendered Moraga’s entire land use element unlawful, and that Moraga was therefore unauthorized to reject its development application. The court concluded that a lack of a legally compliant land use designation alone does not preclude a local agency from denying a project application for unrelated reasons.

Procedural Issues

The court rejected Moraga’s argument that the developers’ challenge of the illegal land use designation is time barred because the court agreed that Moraga forfeited this argument by failing to raise it before the trial court.

The court also rejected Moraga’s argument that the developers failed to exhaust their administrative remedies by not requesting that Moraga adopt a land use designation independent of the development application. The court determined that the developers had repeatedly challenged the designation during the administrative proceedings—including specifically arguing that the designation prevented them from developing the property, that there was no legal precedent for leaving the designation in place for an extended duration, and that Moraga had an obligation to change it. Therefore, the court concluded, Moraga had sufficient notice of these claims.

Unlawful “Study” Land Use Designation

The parties did not contest that the “Study” land use designation violates section 65302, subdivision (a) because, as the court explained, the designation fails to describe a use of land and there is no dispute that the designation was a placeholder until Moraga could determine the appropriate permanent category. The court agreed with the trial court that Moraga had a mandatory duty to adopt a legally compliant land use designation for the property and that the trial court properly issued a writ directing Moraga to fulfill its duty.

The court further held, however, that this deficiency in the general plan did not void Moraga’s denial of the project application. The court explained that the developers failed to identify any law that prohibited Moraga from denying the project application simply because the general plan’s land use element did not comply with section 65302, subdivision (a). Here, the reasons given for the denial of the application involved public safety concerns and environmental impacts, and had nothing to do with the improper designation. If the developers were to prevail on their argument, the court reasoned, any deficiency in the general plan would preclude a local government from making any land use decision until the deficiency was corrected. Therefore, the developers failed to demonstrate a prejudicial abuse of discretion in the denial of their project application.

Takings

The court upheld the trial court’s determination that the developers’ takings claim was ripe as to the denial of the development project application and the land use designation, but not smaller potential projects, because neither Moraga or the developers explained why the trial court’s holding was unsound. Therefore, both parties forfeited their ripeness arguments.

The court rejected the developers’ takings claim on the merits. The court held that the illegal land use designation did not prevent the developers from seeking to develop the property, as the project application was not denied because of the land use designation and Moraga’s denial of the project did not deprive developers of all economically beneficial use of the property. The developers failed to argue otherwise on appeal, or show that smaller projects would not be economically beneficial or that they had no other reasonable use of the property. Moreover, the court also reiterated the trial court’s finding that the developers did not have a reasonable expectation of building the number of homes for which it claimed it had an “investment-backed” expectation because the character of the land might have limited the number of residences that could be built.

Equal Protection & Substantive Due Process

The court rejected the developers’ claim that Moraga’s actions denied them equal protection. The court determined that although Moraga’s actions resulted in an unreasonably long delay in adopting a permanent land use designation to comply with Government Code section 65302, Moraga had a rational basis in the delay to gather more information about the property due to the property’s unique aspects, including significant slopes and grading. Moreover, the court reiterated that the unlawful land use designation did not make it impossible for developers to develop the property or prevent them from submitting a project application, as they were able to propose a permanent designation in conjunction with the project application. Lastly, the developers failed to explain why Moraga’s denial of the project application had no rational basis beyond those involving the land use designation.

The court also rejected the developers’ substantive due process claims based on Moraga’s failure to issue a permanent and lawful land use designation for similar reasons. The court reiterated that there were rational reasons to retain the “Study” land use designation, and that it did not prevent other development or substantially hinder use of the property.

FOURTH DISTRICT UPHOLDS CITY’S APPROVAL OF AN ADDENDUM TO A PROGRAM EIR FOR A RESIDENITAL HOUSING PROJECT

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In Olen Properties Corporation v. City of Newport Beach (2023) 93 Cal.App.5th 270, the Fourth District Court of Appeal held that no new conditions existed that would trigger the need for a subsequent EIR for a residential housing project in the designated Airport Area near John Wayne Airport.

Background

The City of Newport prepared an addendum to the City’s 2006 general plan program EIR for a residential housing project. The Project is a 312-unit residential housing development on an existing surface parking lot in a mixed-use development area, located within the designated Airport Area near the John Wayne Airport. The addendum concluded that the Project’s impacts would either be the same or not substantially greater than those described by the program EIR.

Olen Properties Corporation, an owner of commercial property near the Project site, challenged the City’s approval of the Project and the addendum. The trial court rejected the petitioner’s claims and the petitioner appealed, arguing that new conditions not addressed in the program EIR required the City to prepare a subsequent EIR, rather than an addendum.

The Court of Appeal’s Decision

Land Use

The Court of Appeal rejected the petitioner’s claims that the City violated several land use policies in the City’s general plan. First, it rejected the argument that the Project was not large enough to be consistent with the 10-acre requirement for a “mixed-use residential village” because the court determined that the City properly adopted the its Planning Commission’s definition of the Project to include the surrounding business area—thus satisfying this size requirement. Second, the court rejected the argument that the Project’s “public park” did not qualify as a required “neighborhood park.” The court found this terminology distinction meaningless. Third, the court found that the Project’s irregularly shaped park satisfied the minimum dimension requirements—which the court interpreted as exceeding 150 feet in two dimensions, measured from any point within the park’s space, rather than the lesser of the park’s length or width.

Standard of Review

The court explained that the reverse substantial evidence test described in Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 applies only in limited circumstances where the initial EIR is a program EIR, and a subsequent project is proposed which is not the same or within the scope of the Project, program, or plan described in the program EIR. Otherwise, the appropriate standard is the deferential substantial evidence standard, under which the court considers whether substantial evidence supports the City’s determination that none of the conditions for requiring a subsequent or supplemental EIR under Public Resources Code section 21166 exist.

The court applied the deferential substantial evidence standard because the Project is within the scope of the projects described in the program EIR, which expressly contemplates the construction of higher density housing within the Airport Area.

Traffic

The court held that the City’s use of Level of Service instead of Vehicle Miles Traveled to analyze traffic impacts in the addendum for the Project was appropriate because the program EIR used LOS, and there is no feasible way to compare LOS with VMT. Moreover, the court explained that CEQA Guidelines section 15064.3 (the section requiring VMT to analyze traffic impacts) operates “prospectively” and subsequent changes to the guidelines are not “new information” triggering a subsequent EIR. Otherwise, the court reasoned, any changes to the CEQA Guidelines would trigger the preparation of an EIR for every project.

Hazardous Materials

The court rejected the petitioners’ argument that the proximity to a preexisting semiconductor plan would result in environmental impacts. The petitioner and the City provided conflicting expert opinions on this issue. The court concluded that because the substantial evidence standard of review applies, the City’s conclusion was supported and the petitioner’s conflicting evidence is inconsequential.

CC&Rs

The court rejected the petitioner’s claim that the Project does not comply with CC&Rs for the area because they are covenants between private parties, and there is no legal requirement for an agency to consider CC&Rs in an EIR. Moreover, the court explained that the CC&Rs predate the program EIR, and they therefore cannot constitute changes in the Project or its circumstances requiring a subsequent EIR.

Geology and Soils

The court rejected the petitioner’s claim that the Project’s geotechnical report recommendations indicated that impacts on geology and soil could be significant. The court explained that the recommendations were aimed at protecting the Project from corrosion from soil—such as by encasing metal materials in corrosion-resistant materials—and were not designed to protect the environment from the Project.

Lastly, the court concluded that the Project was not required to have a paleontologist physically present at the Project site constantly, and that the Project’s on-call paleontologist was consistent with the City’s general plan requirements.

FIRST DISTRICT UPHOLDS EIR FOR UC BERKELEY’S WILDFIRE FUEL MANAGEMENT PLAN

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In a partially published opinion Claremont Canyon Conservancy v. Regents of the University of California (2023) 92.Cal.App.5th 474, the First District Court of Appeal held that an EIR for wildfire-driven vegetation removal projects did not need to include a tree inventory or identify the number of or specific trees to be removed to comply with CEQA because the EIR contained sufficient information to analyze environmental impacts and preparing a tree inventory was not reasonably feasible.

Background

The Regents of the University of California, Berkeley worked with a wildland fire manager and fire ecologist to prepare a Wildland Vegetative Fuel Management Plan for an 800-acre fire-prone parcel of land on UC Berkeley’s campus, known as Hill Campus. Hill Campus is heavily forested and located in a “Very High Fire Hazard Severity Zone,” and “has been plagued by wildfires;” beginning in 1905 and most recently in 2017 when the Grizzly Fire burned approximately 24 acres. The Plan proposed several vegetation removal projects, including one fire fuel break project and three fire hazard reduction projects, with the goal of reducing the wildfire risk on Hill Campus. In developing the Plan and selecting the project locations, the Regents relied on fuel models to predict fire behavior, which considered the different vegetation types across Hill Campus. The Plan proposed removing dead, unhealthy or structurally unsound trees; trees that would torch or burn with high fire intensity; and certain understory shrubs.

The Regents prepared an EIR for the Plan, containing both programmatic and project-level review, and certified the Final EIR in early 2021. The EIR identifies objective criteria for tree removal and proposes the principle of “variable density thinning,” which considers site-specific conditions to create gaps in canopy cover to reduce canopy fire spread. The number of and specific trees to be removed would be determined by a certified arborist and registered professional forester by applying these criteria and this principle.

Two organizations, the Claremont Canyon Conservancy and the Hills Conservation Network, filed petitions for writ of mandate challenging the adequacy of the EIR’s description of the vegetation removal projects. After consolidating the cases, the trial court ruled in favor of the petitioners, concluding that the EIR’s project descriptions were “not accurate, stable and finite” and only provided “conceptual criteria,” rendering the project descriptions “vague and ambiguous.” The Regents appealed.

The Court of Appeal’s Decision

On appeal, Hills and Claremont argued that CEQA required the EIR to identify the specific trees that would remain in the fuel break area and that the EIR’s failure to specify the number of trees that would be removed made it was impossible to evaluate the projects’ environmental impacts; thereby rendering the EIR project description “unclear and unstable” and preventing meaningful comparisons between the plan and the project alternatives. The court disagreed.

The court pointed out that CEQA Guidelines section 15124 requires a project description to include specific information—“the precise location and boundaries of the proposed project on a detailed map; a general description of the proposed project’s objectives, including the project’s underlying purpose; a general description of the project’s technical, economic, and environmental characteristics; and a brief description of the EIR’s intended uses.” The court found that the EIR contained all of the required information. The CEQA Guidelines, the court noted, do not require a project description to “supply extensive detail beyond that needed for evaluation and review of the environmental impact[.]”

The court then noted that, here, where “a project is subject to variable future conditions,” such as “unusual rainy weather, tree growth, impact of pests and diseases, [and] changing natural resources,” a project description must “be sufficiently flexible” to account for those conditions. Hills argued that conditions within the project area would not substantively change in any “unforeseen way.” But, the court found this argument unavailing given the substantial evidence in the record demonstrating otherwise. The court then concluded that as long as an EIR contains sufficient information to enable decision-makers and the public to understand the projects’ environmental consequences it satisfies CEQA’s requirements. Accordingly, the court determined that the EIR “need not specify, on a highly detailed level, the number of trees [to be] removed.” The absence of this information did not violate CEQA because the project’s’ basic characteristics were “accurate, stable and finite,” contrary to the trial court’s determination.

The Regents further contended that it was not reasonably feasible to prepare a tree inventory and so the EIR could not violate CEQA for omitting one. The court agreed, finding sufficient evidence in the record to support this conclusion (steep and rugged terrain of Hill Campus created impediments, high cost associated with an inventory). Because the project area was subject to variable environmental conditions, on-the-ground realities could significantly change between the EIR’s preparation and project implementation, making it impractical to identify specific trees to remove.

Lastly, the court emphasized that “technical perfection, scientific certainty, and exhaustive analysis” are not required of an EIR; rather, it looks at whether the EIR is adequate, complete, and represents a good-faith effort at full disclosure. The court concluded that the EIR “provides sufficient information to understand the projects’ environmental impacts” and “sufficient detail to enable the public to understand the environmental impacts associated with the Regents’ plan to remove vegetation in specific locations on the Hill Campus to reduce wildfire risk.”

The remainder of the opinion disposing of other CEQA claims challenging the EIR’s methodology for wind speed modeling and its analysis of and visual impacts is unpublished.

– Alina Werth

SECOND DISTRICT UPHOLDS CITY OF POMONA’S RELIANCE ON CEQA GUIDELINES SECTION 15183 EXEMPTION FOR APPROVAL OF A ZONING OVERLAY DISTRICT ALLOWING COMMERCIAL CANNABIS ACTIVITIES

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In Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, the Second District Court of Appeal held that the City of Pomona properly relied on the exemption provided in CEQA Guidelines section 15183 when approving a zoning overlay district allowing commercial cannabis activities on specific parcels located in certain areas within the City.

Background

In the years following the 2016 voter passage of the state’s Control, Regulate and Tax Adult Use of Marijuana Act, which legalized the cultivation, manufacturing, distribution, and sale of nonmedical cannabis and cannabis products, the City of Pomona passed several ordinances in anticipation of allowing cannabis operations within City limits—(i) an ordinance implementing a cannabis business tax; (ii) an ordinance establishing a formal application process to obtain a cannabis business license; and (iii) specifically relevant to the case, an ordinance to develop a commercial cannabis permit program overlay district within existing zoning designations in the City.

To establish this overlay district, constituting a “project” under CEQA, the City underwent a multifaceted process that included the establishment of buffers from sensitive uses such as schools, conducting research and site visits to other cities with legally operating cannabis businesses, meeting with applicable state agencies and the local police department, holding a series of community meetings, and conducting a City-wide parcel-level analysis.

Based on this process, the City determined that a total of six types of commercial cannabis activity could occur with the City—(1) store front retail, (2) manufacturing, (3) cultivation (indoor), (4) testing, (5) distribution, and (6) micro-business. The City prepared a “Determination of Significance” demonstrating that the proposed land uses “are consistent with and similar to already existing land uses” in “the Pomona Zoning Ordinance and the General Plan Update.”  The City also prepared an initial draft overlay map showing 414 parcels where cannabis businesses could be established. The initial map included a parcel owned by petitioner Lucas (which he claimed to have spent two million dollars preparing for operation of a cannabis business), however, the final draft excluded this parcel.

The City then had a third-party consultant prepare a “Findings of Consistency” document, which demonstrated that the project would not “have new or increased significant environmental effects beyond those identified in the 2014 [General Plan Update] EIR” by addressing “each of the environmental issues studied in the 2014 EIR [and] comparing the effects of the proposed project to the effects of the adopted General Plan Update.”

As a result, the City determined that the project qualified for the CEQA streamlining and exemption allowable under CEQA Guidelines section 15183.

At an October 2019 Planning Commission hearing considering the project, Lucas requested that the City reconsider including his property in the overlay district. Other parties opposed the project for different reasons—the nearby cities of La Verne and Walnut requested increased buffers from their City boundaries, as they both prohibited commercial cannabis activity and, in the case of Walnut, questioned CEQA Guidelines section 15183 applicability to the project. The Planning Commission did not recommend project approval to City Council and requested changes to the project.

After the hearing, petitioner and adjacent cities (amongst other commenters) sent correspondence to the City again expressing opposition to the project and making specific requests for changes. The project was thusly amended to create a 600-foot buffer from City boundaries and further remove more than a hundred parcels, leaving 292 parcels eligible for commercial cannabis activities.

In November 2019, the Pomona City Council approved the modified project and adopted the Determination of Significance and Findings of Consistency, and concluded that the project met the requirements in CEQA Guidelines section 15183. The City then filed a Notice of Exemption with the county recorder. The Determination of Significance states that the public has ten days to appeal. No one appealed.

Lucas filed a petition for writ of mandate alleging a CEQA violation for the City’s use of the Guidelines section 15183 exemption for the project. Three weeks before the hearing on the merits, at which the trial court found against petitioner, City voters passed Measure PO, “which adopted a cannabis permit overlay identical to the Project.” A few weeks later, the City Council adopted and ratified Measure PO. Lucas appealed the trial court’s decision, but did not file an appeal or request a court-ordered stay of Measure PO.

Court of Appeal’s Decision

The court bypassed the City’s standing and exhaustion of administrative remedies claims by assuming for sake of argument Lucas prevailed on these procedural issues, and therefore only reviewed the merits of the challenge to the City’s reliance on the CEQA Guidelines section 15183 exemption. The court reviewed this claim under the substantial evidence standard, which, per prevailing caselaw, is proper where an agency determines a project’s consistency with a prior program EIR.

To use the Guideline section 15183 exemption, as noted by the court, a project must be “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified,” whereas “consistent” means “the density of the proposed project is the same or less than the standard expressed for the involved parcel in the general plan, community plan or zoning action for which an EIR has been certified, and that the project complies with the density-related standards contained in that plan or zoning.”

As to density, Lucas argued that, because the existing zoning contains no density-related standards, there was no way for the project to be deemed consistent. The court disagreed with this “literal approach” and instead concluded that the omission of the “the exact word ‘density’ or exact phrase “density-related standards’” in a zoning ordinance “does not necessarily mean that those topics were not discussed with different verbiage.” Although the court did not illuminate what verbiage in the applicable zoning ordinance might demonstrate density, it did note that the 2014 General Plan Update EIR, the project’s Determination of Similarity, and the project’s Findings of Consistency all addressed land use and/or density. And, importantly, Lucas did not file an appeal of the Determination of Similarity conclusions. Therefore, he was “foreclosed from challenging any of [its] commercial cannabis activities/land findings.”

On the need for additional environmental review, the court again rebuked Lucas’ “literal approach.” The City’s Determination of Similarity deemed the six types of proposed cannabis land uses “similar to already existing land uses, and as such…covered by the uses contemplated by the 2014 EIR and 2013 General Plan Update.” Thus, just because the 2014 General Plan Update EIR did not contain the explicit words “marijuana” or “cannabis” did not mean it did not address that land use. The court likewise denounced Lucas’ argument that the project presents “unique and peculiar impacts associated with cannabis-related business” because, as it noted, the project itself “does not guarantee anyone the automatic right to establish a cannabis-related business,” it merely “imposes an overlay use on existing zoning” that only provides an opportunity to apply for a business permit. The court again relied on the findings in the Determination of Similarity “that cannabis uses were sufficiently similar to existing uses allowed by the underlying zonig” as substantial evidence supporting the City’s determination.

Lastly, Lucas argued that the project’s impacts on “traffic, air quality, greenhouse gas emissions, land use/planning, noise, and public services” did not fall within the scope of the less-than-significant conclusions made in the 2014 General Plan Update EIR. The court addressed each impact area, ultimately concluding that substantial evidence demonstrated that the project would not generate impacts beyond those identified in the 2014 EIR, and that existing mitigation measures and uniform standards applied to the project would reduce or manage any impacts.

Notably, the court found that Lucas’ concern with cannabis cultivation odor was addressed by the City’s municipal code regulating odor control devices. It also found that cultivation-related energy use, which petitioner claimed would result in “‘extraordinary [greenhouse gas emissions] impacts,’” could be dealt with through development standards, similarly to “other uses that could be developed in the Overlay District subareas.” On noise emitted by backup generators used in cannabis operations, the court opined that “[s]urely back-up generators are also utilized by other retail stores or manufacturers in times of a power outage.” And, in response to Lucas’ claim that the project would result in a greater impact on police services than analyzed in the 2014 General Plan Update EIR, the court noted in particular that “[t]he project would not result in the need for additional police protection facilities.”

– Casey Shorrock

SECOND DISTRICT UPHOLDS CITY OF VENTURA’S DETERMINATION THAT A 1989 BRONZE STATUE OF FATHER JUNÍPERO SERRA IS NOT A HISTORIC LANDMARK AND THEREFORE ITS RELOCATION WAS NOT SUBJECT TO CEQA

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In Coalition for Historical Integrity v. City of San Buenaventura (2023) 92.Cal.App.5th 430, the Second District Court of Appeal affirmed the trial court’s determination that the City of San Buenaventura, colloquially known as Ventura, acted appropriately and did not violate CEQA when it relocated a statue of Father Junípero Serra.

Background

In the summer of 2020, a bronze statue of Father Junípero Serra, located in downtown Ventura, was the subject of protests and vandalism. In response, the City Council voted to relocate the statue to the San Buenaventura Mission. The bronze statue, which was dedicated in 1989, had replaced a 1936-era concrete statue of Father Junípero Serra that had cracked and was in danger of falling apart.

A citizen’s group, the Coalition for Historical Integrity, challenged the City’s decision to relocate the statue and sought an injunction and restraining order to prevent the removal of the statue. The Coalition argued that the bronze statue was a historic landmark and therefore environmental review under CEQA was necessary. The trial court denied the Coalition’s request for relief and the City subsequently relocated the bronze statue to the mission. The Coalition appealed.

The Court of Appeal’s Decision

On appeal, the court held that removal of the bronze statue did not require CEQA review under Public Resources Code section 21084.1 because the “preponderance of the evidence” demonstrated that the statue was not “historically…significant” and likely did not match any definition of historical resources set forth in section 5020.1.

The Coalition first argued that the statue qualified as a historic resource because it was designated as such by the City in 1974. However, as the City countered and the court agreed, it was the original circa 1936 concrete statue that received a historic designation, and not the circa 1989 bronze statue. The Coalition then argued that the City’s historical resources report prepared by a third-party consultant, which found the statue to not be historically significant, did not constitute substantial evidence because it does not provide “participant testimony” and contained no evidence that its author was a qualified expert. The court again disagreed, because “municipal agencies can properly consider and base decisions on evidence that would not be admissible in a court of law” and because the report appeared sufficient. The court further rejected the Coalition’s argument “that section 21084.1 requires the City to find that the statue is ‘no longer’ culturally or historically significant,” noting that “there is no reason why the presumption cannot be rebutted by a finding that the statue was never culturally or historically significant.” Accordingly, the City appropriately determined that the bronze statue was not a historic landmark and thus not subject to CEQA review.

In affirming the City’s decision, the court noted that there is a “40-year-old threshold required for local designation as a historic landmark,” which the bronze statue did not meet. The court also disagreed with the Coalition’s argument that removal of the statue was quasi-judicial and that City Council unlawfully acted with bias and prejudice when deciding to relocate the statue. The court found that City Council was instead acting in a quasi-legislative manner, making a policy decision based on the statue being offensive to some members of the community, rather than a decision based on the criteria of a statute or ordinance. Because the statue was not considered a historic landmark, the court held that code provisions for removing a historic landmark status did not apply.

–  Alina Werth

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