On March 14, 2012, the California Department of Fish and Game (DFG) announced that budget cuts have made it infeasible for the agency to review and approve new mitigation banking proposals statewide. DFG acknowledges that banking is an important mitigation tool and hopes the pause in banking activities is short-lived. DFG will sign bank agreements that are close to being completed, although it did not state what it considers “close.” DFG will not, however, be approving new banking programs and stated it may not have the capacity to process major amendments to existing agreements. The halt in DFG’s review of new banking programs is temporary and DFG stated that it is open to suggestions from the public for funding options. Once program funding is secured, DFG hopes to resume banking activities. At this time, DFG does not have a timeline by which it expects to resume its mitigation banking program.
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First District Applies “Unusual Circumstances” Exception to Strike Down Application of Categorical Exemption to Construction of Single-Family Residence
Berkeley Hillside Preservation et al., v. City of Berkeley et al., (Feb. 15, 2012) __Cal.App.4th__ (Case No. A131254)
(May 23, 2012, Petition for Review granted; CA Supreme Court Case No. 201116)
On February 15, 2012, the First District Court of Appeal ruled that the City of Berkeley violated CEQA when it approved the construction of a single-family residence based on a determination that the project qualified for a categorical exemption. Applying the “fair argument” standard to its review of the City and trial court’s contrary conclusion, the court held that an exception to the categorical exemption applied because substantial evidence of a fair argument that the project would have significant environmental impacts had been presented.
Factual and Procedural Background
In 2009, a property owner filed an application for a use permit with the City of Berkeley to demolish a single-family dwelling on a 30,000-square-foot lot in Berkeley and replace it with a new home. The application indicated the new dwelling would be a 6,478-square-foot home with an attached 3,394-square-foot garage on a Berkeley hillside.
Berkeley’s Zoning Adjustment Board approved the project without requiring an EIR because it found that the proposed construction was categorically exempt from CEQA pursuant to CEQA Guidelines sections 15332 (In-Fill Development Projects) and 15303, subdivision (a) (New Construction or Conversion of Small Structures, single-family residence). The board determined that the proposed project did not trigger any of the exceptions to the exemptions under CEQA Guidelines section 15300.2. Specifically, the board concluded that the “unusual circumstances” exception did not apply because the proposed construction would not have any significant effects on the environment due to “unusual circumstances.”
An appeal was filed with the board, arguing that the unusual circumstances exception should apply because the proposed dwelling would be one of the largest houses in the city. The city responded to the appeal with its own evidence of comparable sized “dwellings” in the city and the project vicinity. Appellants further challenged the board’s finding that the proposed construction was categorically exempt from CEQA, arguing the project’s unusual size, location, nature and scope may have a significant impact on its surroundings and therefore that an EIR was required to evaluate the proposed construction’s potential impact on noise, air quality and neighborhood safety.
The city received numerous letters supporting and opposing the appeal. One letter supporting the appeal was submitted by a geotechnical engineer specializing in foundation engineering and construction. The engineer argued that the project would require significant grading and extensive trucking operations and concluded the project would likely have significant environmental impacts. A geotechnical engineer for the project proponent disagreed with these findings, noting that the opposing engineer appeared to have relied upon incorrect, outdated project plans and presented evidence that the project would not have a significant impact.
After receiving a supplemental report and hearing arguments from both sides, the city adopted the findings made by the board, affirmed the decision not to require an EIR, and approved the use permit. Appellants filed a petition for writ of mandate, which the trial court denied after concluding that there was substantial evidence in the administrative record to support the city’s determination that the infill and new construction categorical exemptions applied to the proposed construction.
The trial court denied the writ despite finding that the project presented unusual circumstances and finding that the proposed construction would cause significant environmental impacts. The trial court applied a two-part test established in Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 278. Under Banker’s Hill, when considering whether to apply the “unusual circumstances” exception, a court is required to determine: (1) whether the project presents “unusual circumstances” and (2) whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances.” (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego, supra, 139 Cal.App.4th 249, 278 (original italics).) In emphasizing that each step is an independent element, Banker’s Hill stated that, “[a] negative answer to either question means the exception does not apply.” (Id.) Applying this test, the trial court held that, although there were unusual circumstances were present and the project could have significant impacts, the proposed construction did not trigger the exception to the exemptions because the possible significant impacts were not due to the unusual circumstances.
Court of Appeal Decision
On appeal, Appellants conceded that the proposed construction was subject to the two CEQA categorical exemptions. Appellants argued, however, that the “unusual circumstances” exception to the exemptions should apply. CEQA Guidelines section 15300.2, subdivision (c), provides that an activity which would otherwise be categorically exempt is not exempt if there are “unusual circumstances” which create a “reasonable possibility” that the activity will have a significant effect on the environment.
The Court of Appeal reversed the trial court’s decision denying the writ. It held that where there is substantial evidence that a proposed activity may have an effect on the environment, an agency is precluded from applying a categorical exemption. “The fact that proposed activity may have an effect on the environment is itself an unusual circumstance, because such action would not fall ‘within the class of activities that does not normally threaten the environment,’ and thus should be subject to further environmental review.”
The Court of Appeal found Appellants had presented substantial evidence of a fair argument that the proposed construction would have a significant effect on the environment. This alone was enough for the unusual circumstances exception to apply. The court relied heavily on the letter submitted by the geotechnical engineer in opposition to the project. The court noted contrary evidence was not adequate to support a decision to dispense with an EIR. As a result of the substantial evidence in the record supporting a fair argument that the project would have a significant impact, the application of a categorical exemption was inappropriate. The Court of Appeal, therefore, ordered the prior judgment reversed, and directed the trial court to order the preparation of an EIR.
Conclusion
By taking this approach, the Court of Appeal essentially rejected the two-part Banker’s Hill test. Interestingly, however, the court did not expressly state that it was rejecting the Banker’s Hill test. To the contrary, it proclaimed in the decision that “[the] conclusion that the unusual circumstances exception applies whenever there is substantial evidence of a fair argument of a significant environmental impact is [] not inconsistent with Banker’s Hill.” (A previous error in this statement was corrected by a modification issued by the Court of Appeals on March 7, 2012.)
Despite the Court of Appeal’s statement otherwise, the decision is not consistent with Banker’s Hill. The court’s holding that the unusual circumstances exception will apply whenever there is substantial evidence of a fair argument that a proposed project will have a significant effect on the environment is contrary to Banker’s Hill and significantly limits the availability of categorical exemptions under CEQA. The apparent split in authority creates substantial uncertainty for the future application of categorical exemptions.
U.S. Army Corps of Engineers Issues New Procedures for Determining Compensatory Mitigation Ratios
On February 20, 2012, the U.S. Army Corps of Engineers, South Pacific Division, announced new procedures for determining compensatory mitigation requirements for processing permits under section 404 of the Clean Water Act, section 10 of the Rivers and Harbors Act, and section 103 of the Marine Protection, Research and Sanctuaries Act.
Background
Compensatory mitigation involves actions that must be taken to offset adverse impacts to wetlands, streams and other aquatic resources authorized by Clean Water Act section 404 permits and other Department of the Army permits. It is the restoration, establishment, enhancement and/or, in certain circumstances, preservation of aquatic resources for the purpose of offsetting unavoidable, adverse impacts that remain after all appropriate and practicable avoidance and minimization of adverse effect has been achieved. The purpose of compensatory mitigation is to develop long-term self-sustaining wetlands and other waters that offset project impacts. As such, compensatory mitigation is a critical tool in helping the federal government to meet the longstanding national goal of “no net loss” of wetland acreage and function.
Historically, the Corps has determined the required acreage ratio for mitigation (compensatory mitigation ratio) after receiving recommendations from the applicant and the appropriate resource agencies. The Corps would consider the functions and values of the wetlands that might be eliminated or degraded, the functions and values of the proposed mitigation site, and the likelihood of success of the proposed mitigation. Based on all of that information, the Corps would establish the mitigation ratio.
Until now, the South Pacific Division Regulatory Program has not had procedures or other guidance for determining the mitigation ratios. There were only some general guidelines that required that the rationale used by the Corps to determine the ratio to be documented in the administrative record for the permit action.
To address this need, a multi-district team was assembled to develop regional procedures for determining and documenting mitigation ratios.
The New Mitigation Ratio Procedures
The main component of the new procedures is a mitigation ratio checklist that project managers are required to fill out using an applicant’s compensatory mitigation proposal. Project managers then use the checklist to evaluate the applicant’s proposed mitigation for each impact site or type.
The checklist requires the consideration of several factors, including:
(1) Qualitative impact-mitigation comparison – This factor is considered if a Corps-approved functional/condition assessment has been obtained. The quantitative assessment of functional loss at the impact site versus expected functional gain at the mitigation site may warrant a lower or higher ratio.
(2) Quantitative impact-mitigation comparison – If a Corps-approved functional/condition assessment has not been obtained, the project manager must use a Before-After-Mitigation-Impact (BAMI) spreadsheet to determine the appropriate mitigation ratio adjustment. Project managers must consider either qualitative or quantitative factors, but not both as they are mutually exclusive.
(3) Mitigation site location – The ratio will be increased for mitigation located outside the impacted watershed.
(4) Net loss of aquatic resource area – The ratio will be increased for mitigation measures that result in rehabilitation, enhancement, or preservation, as opposed to establishment.
(5) Type conversion – Out-of-kind mitigation generally warrants a higher ratio.
(6) Uncertainty – Project managers must consider the inherent uncertainty of mitigation when determining a ratio. Greater levels of uncertainty will result in a higher ratio.
(7) Temporal Loss – Under this factor, project managers consider the amount of time between when the authorized impacts occur and when constructed mitigation is expected to replace lost functions. A longer delay will warrant a higher ratio.
A copy of the checklist must be included in the administrative record.
The procedures apply to the Regulatory Program within the South Pacific Division of the U.S. Army Corps of Engineers which includes Sacramento, San Francisco and Los Angeles, and are applicable for all permit applications that the Corps receives after April 20, 2011, that require compensatory mitigation.
Conclusion and Implications
The new procedures address a long-standing need in the permitting process and incorporate the most current scientific understanding of mitigation concepts. The Corps intends that they will benefit both the regulated community and the environment by eliminating uncertainty and creating more consistency between different project managers, offices and districts. Because the procedures have a lot of flexibility, however, and the Corps must still make judgment calls throughout the process, it is unclear whether the Corps’ goals will be achieved. The amount of discretion permitted by the procedures could result in continuing inconsistency and uncertainty.
Sixth District Court of Appeal Holds that an EIR Need Not Consider All Possible Future Uses for Property Sold Under the Surplus Lands Act
The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (2012) 202 Cal.App.4th 603
On January 4, 2012, the Sixth District Court of Appeal held that the City of Carmel-by-the-Sea did not violate CEQA by failing to analyze in its EIR all potential uses of a property that was to be sold under the Surplus Lands Act (the Act), even though the uses were specifically mentioned in the Act. Continue reading
Third District Rejects Negative Declaration for Oak Woodland Fee Program Despite County’s Attempt to Tier from Prior Program EIR
Center for Sierra Nevada Conservation, et al., v. County of El Dorado (Jan. 20, 2012) __Cal.App.4th___ (Case No. C064875)
On January 20, 2012, the Third District Court of Appeal ruled that the County of El Dorado violated CEQA by adopting a negative declaration for an oak woodland management plan and impact fee program. The court decided the county could not “tier” its review of the fee program from an earlier program EIR prepared for the county’s 2004 general plan. Continue reading
Fifth District Holds EIR Inadequate for Using Future Baseline Traffic Conditions, Failure to Address Water Supply Issues, and Inadequate Mitigation for Cultural Resources Impacts
Madera Oversight Coalition, Inc. v. County of Madera
(2011) 199 Cal.App.4th 48
The Fifth District Court of Appeal held the trial court did not err in applying section 21167.6, subdivision (e) and determining which documents to include and exclude from the administrative record. The Court also held a mitigation measure that proposed to verify that certain archaeological sites are historical resources for purposes of CEQA constituted an unlawful deferral of environmental analysis; that the EIR’s traffic analysis lacked clarity regarding the baseline used to determine the project’s potential impacts; and that the trial court correctly determined that the analysis of the project’s proposed water supply was inadequate.
Real Parties in Interest Tesoro Viejo, Inc., Rio Mesa Holdings, LLC and Tesoro Viejo Master Mutual Water Company proposed the Tesoro Viejo mixed-use development project, a 1,579-acre development located in southeastern Madera County. The project proposed a mix of residential, commercial, and light industrial uses plus areas for open space, recreation, and other public uses. The project would contain up to 5,190 dwelling units and about three million square feet for commercial, retail, office, public institutional, and light industrial uses.
In February 2006, Tesoro Viejo requested that Madera County initiate the project’s environmental review process. The county circulated the EIR, received comment and provided responses. In December 2008, the County certified the EIR and approved the project. Petitioners Madera Oversight Coalition, Inc., Revive the San Joaquin, Inc., and the Dumna Tribal filed a petition for writ of mandamus and complaint for declaratory and injunctive relief challenging the County’s approval of the project. They alleged violations of CEQA, the Planning and Zoning Law and the Water Code.
In May 2009, the County lodged and certified the administrative record. Along with their briefing, Petitioners thrice requested augmentation of the administrative record. After a hearing, the trial court granted the petition. The parties appealed and cross-appealed. The dispute focused in part on various questions concerning the scope of the administrative record and the admission of extra-record evidence.
First, the court addressed questions regarding the scope of the record, which involved both rulings made by the trial court and motions filed on appeal. The court found that legislative intent and case law indicate that, after an administrative record is certified, the trial court has authority to decide issues relating to whether an omitted document should have been included in the administrative record pursuant to the provisions of subdivision (e) of Public Resources Code section 21167.6. On appeal, the court noted, its role was to review the trial court’s decisions, giving deference to the trial court’s factual determinations, rather than make an independent decision regarding the scope of the record. The court found such a role was appropriate in light of the non-discretionary nature of the determinations made by the agency in preparing and certifying the administrative record and the independent judicial scrutiny of trial court to in applying section 21167.6, subdivision (e) to the disputes before it. Furthermore, the court found that petitioners’ motion to augment the record, filed in the appellate court concerning documents on which the trial court had already ruled, was not a proper way to present the court with issues concerning the inclusion of the documents in the administrative record. Although the court ultimately construed the motion to augment as a direct challenge to the trial court’s decision to deny the request to include four documents in the administrative record, it rejected petitioners’ challenge because they failed to establish the trial court erred in excluding the documents. The court also rejected respondents’ claims regarding certain documents the trial court excluded from the record and certain documents the trial court included in the record, finding that respondents did not affirmatively demonstrate that the trial court erred. The court did find that the trial court failed to include one EIR comment letter requested by petitioners, but that no prejudice occurred by its exclusion because the letter raised no issues not raised in the EIR.
The court then reviewed the adequacy of the EIR’s cultural resources analysis. The court noted that the EIR included analysis of certain archaeological sites at the development site that had the potential to be a “historical resource” for the purposes of CEQA. The EIR also acknowledged a potentially significant adverse impact on each of the sites. While the EIR included mitigation which purported to reduce the impacts to a less than significant level, the court found the mitigation constituted improper deferral because it required a “verification” of whether the site was a historical resource before preservation and recovery actions would be required. The court noted that the verification process described in the mitigation measure is not expressly authorized by CEQA or the Guidelines. Nor could such a process be harmonized with CEQA and the Guidelines, as Guidelines §15064.5(c)(1) states: “When a project will impact an archaeological site, a lead agency shall first determine whether the site is an historical resource …” The court found use of the word “shall” in CEQA Guidelines, section15064.5, subdivision (c)(1) indicated that the determination whether an archaeological site is an historical resource is mandatory. Moreover, that provision’s use of the word “first” indicates that the determination must be made before the final EIR is certified and it cannot be undone thereafter. The court concluded that the mitigation measure set forth a course of action that was contrary to law.
The court also found that, while an EIR’s discussion of mitigation measures for an impact to historical resources of an archeological nature must include preservation in place pursuant to CEQA Guidelines, section 15126.4, subdivision (b)(3), preservation in place is not always mandatory, even when feasible. The court noted that, preservation in place is the preferred manner of mitigating impacts to archeological sites pursuant to the language CEQA Guidelines, section 15126.4, subdivision (b)(3)(A), unless another type of mitigation better serves the interests protected by CEQA. The court interpreted “preferred manner” to mean that feasible preservation in place must be adopted to mitigate impacts to historical resources of an archaeological nature unless the lead agency determines that another form of mitigation is available and provides superior mitigation of the impacts.
With respect to the EIR’s traffic analysis, the court found the EIR was inadequate because it used predicted future conditions as a baseline. Citing CEQA Guidelines section 15125, subdivision (a) and following the court’s interpretation of the guideline in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, the court concluded: (a) a baseline used in an EIR must reflect existing physical conditions; (b) lead agencies do not have the discretion to adopt a baseline that uses conditions predicted to occur on a date subsequent to the certification of the EIR; and (c) lead agencies do have the discretion to select a period or point in time for determining existing physical conditions other than the two points specified in subdivision (a) of Guidelines section 15125 [“as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced”], so long as the period or point selected predates the certification of the EIR. Furthermore, while the respondents asserted the EIR did analyze traffic impacts employing existing conditions as the primary baseline, based on its review of the EIR’s traffic analysis, the traffic impact analysis study attached to the EIR, and the county’s responses to public comments, the court found the EIR lacked clarity regarding which baseline or baselines were used, which contributed to its inadequacy as an informational document.
The court also found that the Water Supply Assessment (WSA) and the EIR did not provide full disclosure of relevant information related to water supply because the analyses ignored contrary information and failed to discuss whether a recent legal decision would affect the availability and reliability of proposed water supplies. According to the WSA and the EIR, the water demands of the project would be met with surface water delivered from the San Joaquin River under a contract with the United States Bureau of Reclamation. Interpreting the Supreme Court’s decision in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 432 the court concluded that the legal adequacy of the EIR’s discussion of the water supply for the Project depends upon whether the discussion included a reasoned analysis (i.e., a “full discussion,” a “good faith effort at full disclosure,” or an “analytically complete and coherent explanation”) of the circumstances affecting the likelihood of the availability of the proposed water supply. While the WSA included an opinion letter of a water expert which concluded the legal issues concerning water supply would not affect the availability of the contractual water supply, neither the opinion letter nor the WSA acknowledged the existence of the a letter from the Bureau of Reclamation stating it would object to the use of the water supply for a municipal supply or for commercial uses. Nor did the WSA or EIR address a recent legal decision invalidating the water supply analysis for a nearby project which was also proposing to rely on reclamation contracts for water supply. On these bases, the court concluded the public was not provided a full disclosure of the uncertainties related to the project’s water supply and that the trial court did not err in concluding that the EIR’s discussion of the water supply was inadequate under CEQA.
Finally, the court concluded that the trial court correctly determined it had the discretionary authority under Code of Civil Procedure section 1032, subdivision (a)(4) to apportion costs. Although the petitioners obtained a writ of mandate in a CEQA proceeding, that nonmonetary relief alone does not entitle the plaintiff to costs as a matter of right under Code of Civil Procedure section 1032, subdivision (b).
Sixth District Allows Use of Background Conditions and Future Growth Factors in Traffic Baseline, Backing Away From Recent Cases Rejecting Use of Future Conditions
Pfeiffer v. City of Sunnyvale
(2011) 200 Cal.App.4th 1552
The Sixth District Court of Appeal upheld an EIR for the expansion of a medical campus in the City of Sunnyvale. The petitioners, neighbors of the project, alleged that: (1) the project is inconsistent with the general plan; (2) the EIR’s discussion of general plan conformity is inadequate; (3) the EIR used a legally incorrect baseline to determine traffic impacts; and (4) the analysis of traffic noise is inadequate.
Regarding general plan consistency, the project opponents argued that that project is inconsistent with the general plan because a portion of the project slated for storage and waste management are located in an area that the general plan designates as low-density residential, which, the opponents argued, expressly excludes any use other than single-family, detached homes. The court rejected the opponents’ claims, pointing to the existing zoning and other uses in the vicinity of the project.
The project opponents also argued that, pursuant to CEQA Guidelines section 15125, subdivision (d), the EIR “had a duty to fully present the issue of general plan consistency of that portion of the project being built on land designated in the City’s general plan as exclusively residential with single family detached homes.” The court rejected this argument stating that CEQA requires only a discussion of general plan inconsistency. Similarly, the court rejected the opponents’ claims that the City did not adequately respond to comments on the issue of consistency because “[t]he response contains a similar level of detail as the comment and demonstrates a good faith analysis as to how the matter was addressed and analyzed.”
The project opponents argued that the EIR’s baseline for traffic was improper because it used hypothetical “background conditions” rather than the actual existing conditions. The “background conditions” were “existing peak-hour volumes multiplied by a growth factor plus traffic from approved but not yet constructed developments in the area. The traffic growth factor was developed based on the City of Sunnyvale’s travel demand forecasting model.” The court first confirmed that establishing the proper baseline is a fact-based analysis and is subjected to the substantial evidence standard of review. Here, the opponents had failed to show that the City’s determination was not supported by substantial evidence.
The court distinguished the case of Sunnyvale West Neighborhood Assn. v. City of Sunnyvale (2010) 190 Cal.App.4th 1351. The court quoted Sunnyvale West “[a]lthough ‘[n]either CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing conditions baseline’ [citation] nothing in the law authorizes environmental impacts to be evaluated only against predicted conditions more than a decade after EIR certification and project approval.” The court then explained “Sunnyvale West is therefore distinguishable from the present case, where the traffic baselines included in the EIR were not limited to projected traffic condition in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.”
Regarding noise, the court rejected the opponents’ claim that the traffic noise was inadequate because it relied on hypothetical levels of traffic. The record showed the analysis used existing noise levels, and the court found the opponents had failed to meet their burden. The court also rejected the opponents’ claim that the EIR did not properly identify mitigation for significant construction noise impacts. Although the EIR was less than clear on the point, the court pointed to significance conclusions and mitigation measures identified in the EIR. The court held this was adequate.
Second District Holds the Purpose of CEQA Is to Consider Impacts of Projects on the Environment rather than Environment’s Impacts on the Project
Ballona Wetlands Land Trust v. City of Los Angeles
(2011) 201 Cal.App.4th 455
The Second District Court of Appeal upheld a revised EIR for the Playa Vista phase two project, prepared after a previous peremptory writ had been issued. The project opponents challenged the revised EIR with respect to the project description, the analysis of archaeological resources, the analysis of sea level rise resulting from global climate change, and the finding of no significant impact on land use consistency. The court concluded that the EIR adequately discussed preservation in place of archaeological resources and sea level rise. The court also concluded that newly-asserted challenges to the project description and the findings on consistency were beyond the trial court’s jurisdiction in these proceedings after issuance of the peremptory writ.
CEQA Guidelines section 15126.4, subdivision (b)(3) states that preservation in place is the preferred manner to mitigate impacts on historic archaeological resources and expressly requires a discussion of preservation in place in an EIR involving a historical archaeological site. The revised EIR stated that preservation in place is the preferred manner of mitigating impacts to archaeological sites, but explained the infeasibility of preservation in place. The revised EIR therefore concluded that data recovery and curation are appropriate mitigation measures, and described other mitigation measures that had already occurred and that would continue to occur. The court held that this analysis satisfied the requirements of CEQA Guidelines section 15126.4, subdivision (b)(3).
The court then addressed whether the revised EIR was required to analyze the effects of sea level rise on the project. The court explained that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.” In doing so, the court cited CEQA Guidelines section 15126.2, subdivision (a), which states in part that: “The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards.”
The court explained: “We believe that identifying the environmental effects of attracting development and people to an area is consistent with CEQA’s legislative purpose and statutory requirements, but identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA statutes.” The court thus held that “[c]ontrary to Guidelines section 15162.2 subdivision (a). . . an EIR need not identify or analyze such effects.”
Regarding sea level rise, the revised EIR briefly noted that global warming could result in sea level rise and the inundation of coastal areas, but provided no specific analysis of the impact on the phase two project site. It also explained in responses to comments that according to estimates by the Intergovernmental Panel on Climate Change that the project was not expected to be subjected to inundation as a result of sea level rise resulting from climate change. The court had rejected the opponents request for judicial notice of a flood hazard map prepared by the city prior to approval of the project because the map was not included in the administrative record and the opponents had shown no extraordinary circumstances to justify consideration of the extra-record evidence. The court held the revised EIR’s discussion of sea level rise was adequate.
In previous litigation, the court had held that the previous EIR’s analysis of land use impacts was inadequate, and therefore a peremptory writ was issued. In their challenge to the return to the writ and in their supplemental petition challenging the revised EIR, the project opponents asserted new challenges related to the project description, land use impacts, and the city’s findings regarding these issues. The court held that these challenges had to be raised prior to the judgment in the previous round of litigation, and therefore rejected them.
Third District Upholds Dismissal of CEQA Petition Where Petitioner Corporation Had Been Suspended Until After Statute of Limitations Had Run
Friends of Shingle Springs Interchange v. County of El Dorado
2011 200 Cal.App.4th 1470
The Third District Court of Appeal held that dismissal of a CEQA petition by demurrer was proper where the petitioner corporation had been suspended and did not obtain revival within the statute of limitations. The Friends of Shingle Springs Interchange, Inc. (FSSI) filed a verified petition for writ of mandate challenging the certification and approval of a Circle K mini-mart and gas station complex off Highway 50 in Shingle Springs. FSSI challenged approval of the project asserting three causes of action in its petition: violations of the CEQA, violations of the Planning and Zoning Law, and “violating the traffic safety provisions” of a County Regulation.
At the time FSSI filed its petition, its corporate powers had been suspended for two and a half years. The Real Party in Interest and the County demurred to the petition, asserting that FFSI did not have the legal capacity to file the petition and that FFSI’s corporate powers were not revived until after the applicable statute of limitations had run. The trial court sustained the demurrer without leave to amend.
The appellate court first determined that dismissal of the petition by demurrer was proper. The court then considered whether the petition could be saved by the “substantial compliance” doctrine. The court held that a suit filed by a corporation while its powers were suspended does not toll the statute of limitations. The suit is ineffective because of the suspension, so that statute continues to run. The court invited supplemental briefing on the issue of whether the doctrine of substantial compliance with corporate suspension and reviver statutes apply in CEQA and Planning and Zoning Law challenges to avoid the statute of limitations for such actions. The court held that the substantial compliance doctrine cannot be used by a suspended corporation to defeat the short statutes of limitation in actions involving CEQA or the Planning and Zoning Law.