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California Supreme Court Holds Coastal Act and Mello Act Apply to Conversions of Rental Mobilehome Parks to Residential Ownership

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On November 29, 2012, the Supreme Court of California in Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles, (2012) __ Cal.4th __ (Case No. S187243) affirmed the judgment of the Second District Court of Appeal, finding a mobilehome park conversion is a “subdivision” under the Subdivision Map Act and also a “development” subject to permitting requirements of the Coastal Act.

The controversy in this case arose after the City of Los Angeles (City) rejected an application from Palisades Bowl Mobile Estates, LLC to convert its 170-unit mobilehome park, which is within the coastal zone, from tenant occupancy to resident ownership. The City asserted Palisades Bowl had failed to include applications for a coastal development permit or for Mello Act approvals. Rather than submit these applications, Palisades Bowl filed a petition for writ of mandate and complaint for injunctive and declaratory relief.

At the trial court, Palisades Bowl argued the proposed conversion from tenant occupancy to resident ownership was not subject to the Coastal Act because it was not a “development” as defined by that act. The trial court agreed and also found that Government Code section 66427.5 precluded the City from imposing conditions and requirements mandated by the Coastal and Mello Acts. The court of appeal reversed the trial court’s decision, and the Supreme Court subsequently granted review.

The Supreme Court’s Decision

i.        The Coastal Act

The Supreme Court first addressed whether the Coastal Act requires a permit for mobilehome park ownership conversions. The Coastal Act requires a coastal development permit for “any development” in the coastal zone. Public Resources Code section 30106 defines “development” as a “change in the density or intensity of use of land, including, but not limited to, subdivision pursuant to the Subdivision Map Act.” The Court pointed out that the Subdivision Map Act specifically refers to mobilehome park conversion as a form of subdivision.

Palisades Bowl argued the conversion of the mobilehome park was not a development under the Coastal Act because it would not alter the density or intensity of land use. The Supreme Court disagreed and cited to Public Resources Code section 30106, which lists “subdivision” in a non-exclusive list of projects subject to the Coastal Act. Furthermore, the Court noted that section 30106 addresses changes in the intensity of land uses. Therefore, Palisades Bowl’s assumption that the Coastal Act only applied to projects increasing density or intensity of use was mistaken.

The Supreme Court held that all subdivisions, even conversions of mobilehome parks that do not immediately alter use of land, are “developments” for the purposes of the Coastal Act. The Court also concluded that a broad interpretation of “development” as used in the Coastal Act is consistent with what the Legislature intended.

ii.      The Mello Act

The Supreme Court next considered whether the requirements of the housing elements law, Government Code sections 65580-65589.8, applies to conversions of residential units within the coastal zone. Under these Government Code sections, local governments are required to adopt a “housing element” as part of their general plans. The housing element must identify and analyze existing and projected housing needs, among numerous other requirements. The Mello Act supplements the housing element requirements by establishing “minimum requirements for housing within the coastal zone for persons and families of low or moderate income.” Specifically, local governments are prohibited from authorizing the conversion or demolition of occupied low or moderate income residential units without making provisions for the replacement of those units.

The Supreme Court held the Mello Act expressly applies to “most conversions” of residential units in the coastal zone, including the conversion of the ownership structure of a mobilehome park.

iii.    The Subdivision Map Act

Lastly, the Supreme Court considered Palisades Bowl’s argument that Government Code section 66427.5 of the Subdivision Map Act exempts mobilehome park conversions from other state laws, regulations, or policies. Palisades Bowl argued that this section prohibits local governmental entities from enforcing compliance with any state law requirements other than those imposed by section 66427.5.

Government Code section 66427.5 imposes several requirements on subdividers and seeks to prevent the economic displacement of all nonpurchasing residents during the conversion of a rental mobilehome park to resident ownership. Part of the procedure required by section 66527.5 involves a hearing before the relevant decision-making body which is limited in scope to the issue of compliance with section 66427.5. Palisades Bowl argued that by limiting the scope of the required hearing, the Legislature intended to define the full extent of local government’s obligation and power to review an application for an ownership conversion of a mobilehome park. By this reasoning, the City lacked authority to reject Palisades Bowl’s application for failure to comply with the Coastal and Mello Acts.

The Supreme Court disagreed with Palisades Bowl, holding Government Code section 66427.5 does not exempt conversions of mobilehome parks to resident ownership from compliance with the Coastal Act and Mello Act. The Supreme Court construed the hearing requirement of section 66427.5 to allow local agencies to establish procedures and conduct additional hearings required by other state laws, including the Coastal and Mello Acts.

 

 

Sixth District Court of Appeal Finds Inadequate EIR’s Description of Project Objectives and Analysis of Alternatives for Amendment to Sphere of Influence

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On November 27, 2012, the Sixth District Court of Appeal in Habitat and Watershed Caretakers v. City of Santa Cruz (2012) __Cal.App.4th __ (Case No. H037545) reversed a trial court’s judgment and directed the City of Santa Cruz to vacate certification of a final EIR for a project to amend the city’s sphere of influence. 

In 2006, the Regents of the University of California (the Regents) adopted a 2005 Long Range Development Plan (LRDP) for the University of California, Santa Cruz (UCSC). The LRDP contemplated the development of the north campus, which was not within the City of Santa Cruz’s (City) territorial boundaries or sphere of influence. The City and other parties brought a CEQA action against the Regents challenging their certification of an EIR for the LRDP, but the parties to the litigation entered into a comprehensive settlement agreement in August 2008.

In October 2008, the City applied to the Local Area Formation Commission (LAFCO) for a sphere of influence (SOI) amendment to include within the SOI the undeveloped north campus portion of UCSC. At the same time, the Regents applied for provision of extraterritorial water and sewer services. The City prepared an EIR for the project of amending its SOI while the applications were pending before LAFCO.

In August 2010, the City certified the final EIR and Habitat filed a petition challenging the certification. The trial court denied the petition, and Habitat appealed.

Assessment of Impacts

i.     Water Supply

The appellate court first turned to the issue of water supply and noted that the draft EIR extensively described the City’s water supply situation. The City had previously considered various strategies for addressing water supply, including conservation, curtailment of use during shortage, and construction of a desalination facility. Ultimately, the draft EIR determined that the City had sufficient supply to serve the project in normal years but would have a water supply shortfall during dry years regardless of growth rate and even without the project’s increased water demand.

Habitat claimed the draft EIR failed to demonstrate that the water required for the development of north campus was available and failed to discuss the environmental consequences of proceeding with the project without adequate water supplies. Citing Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, the court established that an EIR is not required to establish a likely source of water and instead may address reasonably foreseeable impacts of supplying water to the project, acknowledge the degree of uncertainty involved, discuss reasonably foreseeable alternatives, and disclose significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact. The draft EIR disclosed and discussed these issues, therefore the court found the EIR’s discussion of water supply was adequate.

ii.   Watershed Resources

Habitat asserted that the draft EIR failed to discuss the impact of development of the north campus on erosion in the Cave Gulch watershed. In particular, Habitat argued the final EIR’s reference to a storm water management plan was improper because the plan itself was not included in the final EIR. The appellate court disagreed, noting the draft EIR discussed, described, referenced, and incorporated analysis and mitigation measures discussed in the LRDP EIR. In addition, the final EIR described and referenced relevant portions of the storm water management plan. The court found this approach was proper and did not deprive decision makers of necessary information.

Habitat also argued the draft EIR was inadequate because the City failed to delineate wetlands. The draft EIR explained that the LRDP EIR’s mitigation measures required predevelopment delineation of wetlands. The draft EIR concluded that delineation was not initially required because wetland resources are dynamic and their precise boundaries are likely to change over the 15-year term of the 2005 LRDP. Since the EIR recognized the existence of wetlands and contained protective mitigation measures, the court found wetland delineation was appropriately deferred to project-level environmental review for future individual projects in the north campus.

iii.  Biological Resources

Habitat also argued the EIR was inadequate because the City did not perform necessary studies and analysis to show that future changes in the City’s water supply would not significantly harm biological resources. The appellate court determined this argument failed because the City did not propose to increase its water supply by drawing more water from its existing sources in order to meet water demand from North Campus. Instead, the City proposed to meet the campus needs through conservation, curtailment and possible construction of a desalination facility. The court found the EIR did not need to analyze impacts from the City’s current water usage from existing sources because they are not impacts of the project and would occur even without the project.

Description of the Project and its Objectives

Habitat argued that the draft EIR’s description of the project’s primary objective were incorrect because the draft EIR stated the comprehensive settlement agreement required the City to provide water and sewer services to the north campus when the agreement actually required the City only to initiate a LAFCO application for an amended SOI.

The appellate court first noted the comprehensive settlement agreement did not leave the City with any discretion because it obligated the City to provide water service if LAFCO approved the City’s SOI application and the Regents’ application. Thus, the court found the purpose of the final EIR was to provide LAFCO with information about the environmental consequences of their decision.

Finally, the court agreed with Habitat, finding the statements of the project’s objectives in the EIR failed to describe the purpose of the project and only described the nature of the project. Given the misstated project objectives, the court next considered whether these misstatements skewed the consideration of alternatives and mitigations.

Range of Alternatives

Habitat argued the EIR’s discussion of alternatives was inadequate because it failed to consider any alternatives that would avoid some of the significant environmental impacts of the project. Habitat argued analysis of a reduced-development alternative or a limited-water alternative was required. The court agreed, holding that consideration of the proposed alternatives could not be eliminated solely because they would “impede to some extent the attainment of the project’s true objectives.” Because the EIR failed to discuss any feasible alternative, the court determined it did not comply with CEQA.

Mitigations

Finally, Habitat argued that the EIR failed to provide specific, certain, and enforceable mitigation measures for the Project’s significant and unavoidable impacts on water supply. The appellate court disagreed. The draft EIR incorporated numerous mitigation measures from the LRDP EIR. In addition, the comprehensive settlement agreement required the Regents to implement a group of high priority conservation measures which the appellate court determined were specific and certain. The court found it sufficient that these mitigation measures addressed the impacts of the project on the City’s water supply; it rejected Habitat’s argument that the mitigation measures were required to address the City’s overall water supply shortfall. [RMM Counsel of Record: James G. Moose, Sabrina V. Teller, Jeannie Lee]

Third District Court of Appeal Finds Plaintiff’s Claims Time-Barred under Government Code Section 65009 Because the Suit was not Commenced Within 90 Days After Project Approval

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On November 13, 2012, the Third District Court of Appeal in Stockton Citizens for Sensible Planning v. City of Stockton (2012) __Cal.App.4th__ (Case No. C067164) affirmed a trial court’s judgment that claims brought under the State Planning and Zoning Law were time-barred because the suit was not commenced within 90 days after the City of Stockton approved the project at issue.

On February 17, 2004, the City filed a Notice of Exemption (NOE) regarding the City’s approval of a shopping center project. The NOE identified the project location and indicated that it fell within a fully entitled master planned development adopted on January 9, 2002. The City determined the site plan, grading plan, landscaping plan, and building elevations and design conformed to standards set forth in the master development plan. The City took the position that these determinations of compliance constituted ministerial actions not subject to CEQA review.

On July 22, 2004, the plaintiffs filed a petition for writ of mandate alleging that the City violated CEQA and planning and zoning laws. The Supreme Court ultimately held that the CEQA claims were untimely under the 35-day limitations period set forth in Public Resources Code, section 21167, subdivision (d). The Supreme Court declined to address the timeliness of the remaining causes of action, as neither the trial court nor the Court of Appeal had ruled on the issue. The remaining claims were remanded, and the trial court granted the City’s motion for judgment on the pleadings, holding the non-CEQA claims were barred by Government Code, section 65009, subdivision (c)(1)(E) because they were not brought within 90 days after the City’s approval of the project. The plaintiffs appealed.

On appeal, plaintiffs argued a letter of approval issued for the project did not trigger the 90-day statute of limitations because it was not a permit issued after a decision by a legislative body of the City. The appellate court found that plaintiffs’ argument ignored the express language of Government Code, section 65009, subdivision (c)(1)(E). This subdivision states that the 90-day limitations period applies to actions or proceedings “[t]o attack, review, set aside, void, or annul any decision on the matters listed in Sections 65901 and 65903…” Section 65901 enumerates the powers of the board of zoning adjustment or zoning administrator and states. In part, “The board of zoning adjustment or the zoning administrator may also exercise any other powers granted by local ordinance.”

The court determined the Stockton City Council, by local ordinance, created the office of Community Development Department Director and vested with this office the authority to review development projects “in compliance with” section 65901. The letter of approval was issued by the City’s Director, who the court found clearly qualified as the City’s “zoning administrator.”

The court also rejected the plaintiffs’ assertion that the Director’s letter or approval did not trigger the limitation period because section 65009 is only applicable to the decision of a legislative body. The appellate court found, when considered as a whole, the language of section 65009 supports a finding that the Legislature intended to include decisions by zoning administrators in the 90-day limitations period.

Finally, the plaintiffs argued the application of Government Code section 65009 requires a public procedure and an opportunity for hearing. Plaintiffs asserted this requirement was implied in the section. Real Parties pointed out that this assertion is refuted by the statute’s express language. Section 65009, subdivision (c)(1)(e), specifically applies to matters listed in section 65901. Section 65901 distinguishes cases involving the authority to hear and decide applications for conditional uses or other permits from the exercise of other powers granted by local ordinance. Additionally, section 65901 expressly authorizes local jurisdictions to allow the grant of certain variances without a public hearing. The appellate court agreed. After finding the plaintiffs’ planning and zoning claims time-barred, the court dismissed the remaining derivative claims.

California Chamber of Commerce Sues to Invalidate AB 32 Cap-and-Trade Program

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On November 13, 2012, the California Chamber of Commerce filed a petition seeking to block the California Air Resources Board (CARB) from auctioning carbon allowances. The complaint, filed in a Sacramento state court, asserts that CARB lacks the authority under AB 32 to raise money beyond what is needed to cover its administrative costs of implementing a state emissions regulatory program.

The Chamber argues that the California Legislature never authorized CARB to raise fees or taxes through an auction mechanism. Therefore, the program constitutes an unauthorized and unconstitutional tax according to the Chamber. The Chamber cites the California Constitution, which requires a two-thirds vote of the Legislature to raise taxes. In prepared statements regarding the suit, the Chamber states the current CARB proposal “is the most costly way to implement AB 32” and that it will “hurt consumers, the job climate, and the ability of business to expand” in California. The Chamber argues other states will decline to follow California’s AB 32 as a model if it is not designed to be the most cost effective way of reducing carbon emissions.

In the suit, the Chamber did not seek a court order blocking the first auction set for November 14, 2012, and state officials indicated the sale would proceed as scheduled. An affiliate of the Chamber indicated that the organization is trying to eliminate future auctions, which are set for regular intervals over the next eight years. Tim O’Conner, director of the Environmental Defense Fund’s California Climate and Energy Initiative noted that the Chamber’s filing of the suit on the eve of the first auction “seems quite unsavory” and could dampen California’s comprehensive program to curb greenhouse gases. The Chamber insisted the suit was not filed in relation to the specific auction scheduled for November 14, 2012.

CARB spokesperson Stanley Young indicated that the agency is confident the cap-and-trade program will withstand any court challenge. CARB believes the market-based approach to cutting greenhouse emissions gives California business flexibility to best decide now to reduce emissions.

The court must decide whether the auction should be viewed as a tax and whether AB 32 granted CARB discretion to design a mechanism, such as cap and trade, to curb the state’s greenhouse gas emissions. Considering that the Legislature passed legislation directing the State’s Department of Finance and CARB to develop a plan to invest auction proceeds and to set up an account for the deposit of auction funds, it seems the Chamber may have a difficult time convincing a court that the Legislature intended to limit CARB’s discretion in a way that would prohibit the auction of allowances for a cap-and-trade program designed under AB 32.

Fourth District Court of Appeal Holds a City May Adopt Revisions to Its Housing Element That Create Inconsistencies With the General Plan If the City Also Adopts a Timeline for Proposed Changes to the General Plan That Correct Those Inconsistencies

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On November 1, 2012, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad (2012) __ Cal.App.4th __ (Case No. D060167), affirmed the trial court’s judgment directing the city to adopt a timeline for proposed changes to its general plan that would correct inconsistencies created by the city’s revision of its housing element. The appellate court found that Government Code section 65583 establishes an exception to the requirement that general plans be facially consistent, as long as the municipality identifies a program with a timeline for resolving any inconsistencies arising from its adoption or revision of a housing element.

Pursuant to the Housing Element Law, the California Department of Housing determines the number and type of housing units each region of the state must provide, and regional planning bodies like the San Diego Association of Governments determine what percentage of the regional allocation individual municipalities must provide. On December 22, 2009, the city council of Carlsbad adopted proposed revisions to the housing element of its general plan to comply with Government Code section 65583. The city council also certified a mitigated negative declaration (MND) because it found the revision would not have a substantial environmental impact. The city’s housing element revisions included an assessment of housing needs and an inventory of sites which could accommodate the city’s assigned share of the region’s low cost housing needs. The adopted revision also identified several amendments to the general plan’s land use element that would be necessary to permit development of affordable housing on the specified sites at higher minimum densities than permitted in the existing version of the land use element.

Friends of Aviara challenged the city’s adoption of the housing element revision, alleging the MND violated CEQA and the revision impermissibly created inconsistency in the general plan. The trial court denied the CEQA claim, but found that the revision did create an improper conflict between the housing element and the land use element of the general plan. Consequently, the trial court issued a writ of mandate directing the city to adopt a timeline for the proposed amendments to the land use elements. Friends of Aviara appealed, contending that adopting a timeline for proposed amendments was not enough to remedy the defect in the revision and that the trial court should have required the city to rescind its adoption of the revision.

The appellate court’s analysis focused on Government Code section 65583, subdivision (c)(7), which requires a housing element to include “an identification of the agencies and officials responsible for the implementation of the various actions and the means by which consistency will be achieved with other general plan elements and community goals.” (Gov. Code, § 65583, subd. (c)(7), italics added.) The court concluded that the Legislature’s use of the future tense in the statute demonstrated a “legislative preference that municipalities promptly adopt housing plans which meet their numerical housing obligations even at the cost of creating temporary inconsistency in general plans.” Therefore, the Fourth District Court of Appeal held the trial court properly required the city to adopt a timeline for the proposed amendments to the general plan’s land use element and was not required to order the city to rescind its adoption of the housing element revision to remedy the resulting inconsistencies in the general plan.

California Air Resources Board Conducts Auction for Cap-And-Trade Program

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On November 14, 2012, the California Air Resources Board will conduct its first quarterly auction for greenhouse gas allowances under the cap-and-trade program, which is identified in the Assembly Bill 32 Scoping Plan as one of the strategies California will employ to reduce the greenhouse gas emissions that cause climate change.

In 2006, the Legislature passed and Governor Schwarzenegger signed AB 32, the Global Warming Solutions Act of 2006, which requires California to reduce greenhouse gas emissions to 1990 levels by 2020. In complying with AB 32, CARB prepared a Scoping Plan identifying a cap-and-trade program as one of the strategies California will use to reduce the GHG emissions that cause climate change. The cap-and-trade program places a limit on the GHG emissions allowed from pollution producers like refineries and cement manufacturers, and directs all entities subject to the cap (covered entities) to surrender “compliance instruments” equivalent to their GHG emissions to CARB. Compliance instruments include both allowances, which are allocated by CARB or obtained from auctions or secondary markets, and offset credits, which represent GHG emissions reductions achieved in sectors that are not subject to the cap.

This year, the cap-and-trade program covers about 350 industrial businesses operating a total of 600 facilities throughout the state. They include cement plants, steel mills, food processors, electric utilities, and refineries. Starting in 2015, the program will also cover distributors of natural gas and other fuels. For the first two years of the cap-and-trade program, covered entities will receive 90 percent of their allowances for free, with the free amount and the cap declining over time. Covered entities must either cut their GHG production to that level or buy credits to make up the difference. Companies that have more credits than they need can sell them at the auction, and CARB will sell additional credits as well. The proceeds from CARB’s sale of allowances sold at auction will be deposited in CARB’s Air Pollution Control Fund, awaiting appropriation by the Legislature.

The November 14, 2012, auction is the first, major step for CARB in implementing the cap-and-trade program. Though there remains strong opposition to the program from those businesses required to participate in it, CARB’s completion of this first auction signifies its commitment and readiness to enforce compliance with the cap-and-trade program when it comes online in January 2013.

Second District Court of Appeal Holds That Placing a Measure on the Ballot to Establish a Competitive Bidding Process for a City’s Future Waste Disposal Contracts Does Not Constitute a “Project” Under CEQA.

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On October 23, 2012, the Second District Court of Appeal issued its decision in Chung v. City of Monterey Park (2012))       Cal.App.4th     (Case No. B233859).  The court held that a city council’s approval of a ballot measure seeking voter approval of a competitive bidding process for residential trash service was not a “project” within the meaning of the CEQA.

Factual and Procedural Background

The Monterey Park City Council voted to place Measure BB on the March 8, 2011 municipal ballot without performing any type of environmental review under CEQA.  No initial study was prepared, and there was no Notice of Exemption.  Measure BB requires that the City seek competitive bids for trash service when the City’s current contract expires in 2017, and thereafter requires that the City competitively bid for trash service every five years.  Opponents of Measure BB argued that the measure was a “project” under CEQA and that environmental review was required before the measure could be placed on the ballot.  Measure BB, among other things, would require the City Council to award the residential solid waste franchise to a single franchisee, but the City Council would also have the discretion to award the commercial solid waste franchise to up to three franchisees.  Therefore, Measure BB raised concerns about air quality, noise pollution and road damage that would likely result from an increase in the size of the solid waste contractor fleet serving the City. On March 8, 2011, City voters approved Measure BB, with over 71 percent voting in favor of establishing a competitive bidding process. 

Wing Chung, a city resident, filed a petition for writ of mandate, alleging that Measure BB was a “project” subject to CEQA, and that the City violated CEQA by failing to make any decision as to whether Measure BB would have a significant impact upon the environment, failing to consider any alternatives or mitigation measures, and failing to conduct the requisite informed decision-making under CEQA. 

The trial court disagreed and determined that Measure BB was not a “project” within the meaning of CEQA and therefore the measure did not require environmental review before being placed on the ballot.  

Court of Appeal’s Decision

The Court of Appeal began its analysis by navigating through the statutory definition of a “project” and the extensive case law on the subject. Citing CEQA Guidelines section 15378, subdivision (b)(4), the court noted that the definition of a  “project” does not include the “creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment.” The court determined that placing the ballot measure on the ballot fit within that definition. The ballot measure merely established a competitive bidding process for future waste services contracts, and the new manner of awarding such contracts is a fiscal activity that does not involve a commitment to a specific project. As such, the measure is not a project within the meaning of CEQA.

The court placed emphasis on distinguishing the seminal case Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, where the City of West Hollywood conditionally agreed to allow a private developer to redevelop property for senior housing predicated on future compliance with CEQA. There, the fatal flaw in the City of West Hollywood’s decision was that the city had “committed itself to a definite course of action regarding the project before fully evaluating its environmental effects.” (Id. at p. 142.) The court explained that this case was different because the City has not committed itself to any particular course of action. Measure BB does not require the City to select more than one service provider and does not preclude the City from providing solid waste services by itself. 

In addition, the court noted that Measure BB requires the City Council to hold one or more public hearings before deciding whether to grant one or more solid waste franchises.  Thus, at the time Chung filed the lawsuit it was unknowable which companies would bid on the contract, what additional trucks would be required (if any), or what significant impacts the City’s choice of service provider(s) may have in 2017.  The court held that, at this juncture, environmental review of Measure BB would be meaningless because there is simply not enough specific information about the various courses of action available to the City to warrant review at this time.

Third District Court of Appeal Holds that Stormwater Discharge from a Construction Site into Ephemeral Ditches which are Tributaries to Waters of the United States is a Violation of the Clean Water Act.

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On October 24, 2012, the Third District Court of Appeal upheld the trial court’s ruling in Albert Garland v. Central Valley Regional Water Quality Control Board (2012) __Cal.App.4th__ (Case No. C067130). The case involves the question of whether the discharge of stormwater with sediment from a residential construction into adjacent ephemeral drainages encompassing swales, ditches, and culverts that eventually connected to waters of the United States was sufficient to trigger Clean Water Act violations under the federal Clean Water Act.

The trial court denied a petition for writ of administrative mandate challenging a $250,000 administrative civil liability (ACL) order issued against petitioner by the Central Valley Regional Water Quality Control Board (Board) for permit violations of the Clean Water Act (Act). The court affirmed the judgment, holding that the order was authorized even under the view in Rapanos v. United States (2006) 547 U.S. 715 that most narrowly reads the Act’s jurisdiction. In issuing the ACL order against petitioner, the Board found that the ephemeral drainages, into which petitioner discharged the construction site stormwater runoff, were tributaries to downstream navigable waters.

The discharge in question encompassed 641,000 gallons of sediment-laden stormwater flowing off the sides of a residential subdivision construction site being developed by Garland. The Board showed that a $250,000 ACL order could have been based on as little as 25,000 gallons of polluted discharge under Water Code, section 13385. The stormwater flowed into ephemeral drainages adjacent to the construction site, which are tributaries of the Feather River and the Thermalito Afterbay.

The board argued that regardless of whether the ephemeral drainages at issue constituted waters of the United States, Garland should remain liable for discharging pollutants into waters of the United Stated under the alternative rationale for the ACL order that the discharge traveled through point sources to waters of the United States. The District Court of Appeal concluded that the Board acted properly in issuing the ACL order against Garland on that basis.

Third District Court of Appeal Holds That Minor Deficiencies and Inaccuracies in an EIR for a Cogeneration Power Plant Project Did Not Result in Any Prejudicial Defects in the CEQA Review Process

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On October 18, 2012, the Third District Court of Appeal ordered publication of its decision in Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) __ Cal.App.4th __ (Case No. C064930). The appellate court affirmed the trial court’s judgment denying the petition for writ of mandate and found the majority of the petitioners’ arguments were simply a difference of opinion with the lead agency. Although the EIR for the cogeneration power plant project contained small discrepancies relating to the project’s air quality impacts and water usage, the court held these inaccuracies did not prejudice the environmental review process. 

In 2006, Roseburg Forest Products Co. proposed expanding its existing wood veneer manufacturing facility to accommodate a biomass-fueled cogeneration power plant that would generate electricity for resale. The project involved installing new equipment on one acre of the 300-acre Roseburg facility near the town of Weed, as well as trucking in additional fuel for the cogeneration system. On December 6, 2006, the Siskiyou County Planning Commission determined that the project fit within a categorical exemption under CEQA and approved a conditional use permit for the project. After this decision was appealed, Roseburg withdrew its initial application and submitted a new application. On June 29, 2007, Siskiyou County issued a Notice of Preparation for an EIR for the project, and released a draft EIR in April 2008. On September 30, 2008, the Planning Commission approved the project and certified a final EIR. Mount Shasta Bioregional Ecology Center and Weed Concerned Citizens filed a petition for writ of mandate against the county and board of supervisors, alleging various CEQA violations. The trial court denied the petition. 

After a thorough discussion of the standard of review, the Court of Appeal addressed the alternatives analysis of the EIR. The court found that the EIR was adequate even though it only considered the “No Project” alternative in detail because the county had dismissed three other alternatives as not potentially feasible during the scoping phase. The court rejected the petitioners’ challenge to the alternatives analysis because they failed to show that there was no substantial evidence to support the county’s rejection of the three alternatives during the scoping phase. 

Next, the court considered the plaintiffs’ arguments regarding the project’s air quality impacts. The court found that a comment letter cited by the plaintiffs was not properly part of the record because the letter was submitted the day before the hearing on the plaintiffs’ appeal of the Planning Commission’s decision and not five days before as required by county hearing rules. Nonetheless, the court addressed the merits of the plaintiffs’ challenge and concluded that a small discrepancy of 7 percent between actual and approximate emissions of steam production from the facility did not result in prejudicial error. 

The court then turned to the project’s noise impacts. The court dismissed each of the plaintiffs’ assertions, noting the plaintiffs appeared confused about the difference between average sound level readings for 15-minute periods at various times during the day (Leq) and average sound levels for a 24-hour period (Ldn). The court found, among other things, that substantial evidence in the record supported the finding that mitigation measures could reduce noise impacts to less than significant levels, the discussion of noise from the turbine generator was adequate, and there was substantial evidence in the record that the project’s predicted noise increase of less than 1.1 dB was not cumulatively considerable. 

Finally, the court addressed the petitioners’ challenge to the EIR’s discussion of the project’s impacts to water. The court found that defendants could not cite anything in the record to support the EIR’s assertion that the project’s water usage would be 120,000 gpd when a Roseburg consultant’s conflicting estimate was around 230,400 gpd. Despite acknowledging that the draft EIR might have understated the overall water usage, the court held it was not a prejudicial abuse of discretion because the petitioners did not cite evidence the higher level of water usage would have a significant environmental impact. The court also found the argument that the EIR’s project description was inaccurate because it failed to discuss blow down water was “simply a difference of opinion” with the county over the EIR’s conclusion that there will be no water discharges.  (Elizabeth Sarine)

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