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SIXTH DISTRICT HOLDS CEQA ACTION IS BARRED UNDER COVID-19 EMERGENCY RULE 9’S EXTENDED STATUTE OF LIMITATIONS

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In Committee for Sound Water and Land Development v. City of Seaside (2022) 79 Cal.App.5th 389, certified for publication on June 1, 2022, the Sixth District Court of Appeal held that a nonprofit group’s CEQA claims were time-barred by the statute of limitations, even with the extended period afforded by Emergency rule 9, which the Judicial Council adopted in response to the COVID-19 pandemic.

Background

This case involves the City of Seaside’s certification of an EIR for the Campus Town 122-acre development project located on the former Ford Ord military base.

On March 6, 2020, the City issued a notice of determination for the Project. On April 5, the Committee for Sound Water and Land Development (the Committee), a nonprofit organization, submitted a request to the Fort Ord Reuse Authority (FORA) to receive written notice of (1) the City’s request of FORA to determine the Project’s consistency with the Fort Ord Reuse Plan (Reuse Plan), and (2) FORA’s consistency determination hearing. On June 6, FORA held a hearing at which it determined the Project was consistent with the Reuse Plan. It did not notify the Committee.

On April 6, 2020, the Committee filed a petition for writ of mandate challenging the City’s approval of the Project and FORA’s consistency determination under CEQA. The trial court subsequently granted its request to dismiss the petition without prejudice. On September 1, 2020, the Committee filed a second petition, alleging that the City violated CEQA and that FORA violated its constitutional due process rights.

The trial court sustained the City’s and Real Party’s demurrers on the grounds that (1) the CEQA claims were time-barred, (2) the due process causes were moot because FORA ceased existing as of June 30, 2020, and (3) the second writ petition was a sham pleading because it was only filed to cure the Committee’s failure to request a hearing within 90 days of filing the original petition, as required by Public Resources Code section 21167.4. The Court of Appeal affirmed the trial court’s dismissal.

The Court of Appeal’s Decision

Statute of Limitations

First, the court held that the petition was time-barred under the deadlines established by Public Resources Code section 21167, subdivision (c), as extended by Emergency Rule 9, subdivision (b).

The original Emergency rule, adopted by the Judicial Council on April 6, 2020 in response to the COVID-19 pandemic, tolled the statute of limitations in civil cases for 90 days until Governor Gavin Newsom lifts the state of emergency order that the Governor had declared on March 4, 2020. In response to requests from the CEQA bar, the rule was subsequently amended to end the tolling period on August 3, 2020 for 30-day statute of limitations applicable to CEQA causes of action. Thus, the last day for the Committee to file its CEQA petition was August 4, 2020. The Committee relied on the original version of Emergency rule 9 and claimed that its counsel was unaware of the amendment. The petition, filed on September 1, 2020, was therefore untimely.

The court was unpersuaded by the Committee’s argument that the amendment of the rule resulted in impermissible “truncation” of the limitations period. It explained that the rule was not unreasonable because the 30-day period would have ended on April 6, 2020—several months earlier—but for Emergency rule 9, as amended.

The court, consequently, did not address the sham pleading doctrine issue.

Mootness

The court also held that no effectual relief could be provided to the Committee for the alleged due process violation because the relief requested—that the City re-notice and conduct a new consistency determination hearing regarding the Project—could not be granted because the law requiring the consistency determination was repealed. By law, former Government Code sections 67650–67700 were repealed, dissolving FORA and eliminating the statutory requirement for FORA to determine whether projects at the base are consistent with the Reuse Plan.

The court rejected the Committee’s arguments that the City is a “successor in interest” to FORA’s obligations under the Reuse Plan and should be charged with correcting the improperly unnoticed hearing. It explained that the repeal of the law means that there is currently no requirement for a Reuse Plan consistency determination. Therefore, the Committee’s due process cause of action is moot.

Because the matter was moot, declaratory relief was also not available, and the court accordingly held that it was appropriate for the trial court to sustain the demurrers without leave to amend.

Third District Holds Bumble Bees are “fish” under the California Endangered Species Act, Can Be Listed as Endangered or Threatened Species

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In Almond Alliance of California v. Fish and Game Commission (2022) 79 Cal.App.5th 337, the Third District Court of Appeal held that bumble bees fall under the general definition of “fish,” as the term is defined in the California Fish and Game Code, because the definition includes terrestrial, as well as aquatic, invertebrates. Accordingly, bumble bees, which are terrestrial invertebrates, may receive protected status as endangered or threatened species under the California Endangered Species Act (“CESA”).

Background

In October 2018, several public interest groups petitioned the California Fish and Game Commission (“Commission”) to list four species of bumble bees as endangered. Soon after, the California Department of Fish and Wildlife (“Department”) issued a report declaring sufficient evidence for the Commission to accept the petition to list the species. The Commission acted accordingly, declaring the bee species as “candidate” species for further review by the Department.

In September 2019, Petitioners challenged the Commission’s decision to list the bumble bees as candidate species. They alleged the Commission violated its legal duty and abused its discretion because bumble bees are terrestrial invertebrates not included in CESA’s protections for “bird[s], mammal[s], fish, amphibian[s], reptile[s], or plant[s].” Furthermore, they asserted that section 45’s definition of “fish,” which includes invertebrates, refers only to aquatic invertebrates.

The trial court ruled for petitioners. The Commission, the Department, and several public interest groups appealed.

The Court of Appeal’s Decision

Section 45 Definition of “Fish” as Applied to Sections 2062, 2067, and 2068 of CESA

“Fish” as defined in section 45 of the California Fish and Game Code means “a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals.”  The Commission contended that this definition applies to the provisions of CESA which define endangered, threatened, and candidate species—sections 2062, 2067 and, 2068, respectively.

The Court agreed with the Commission, citing legal precedent and CESA’s legislative history. Specifically, the Court reaffirmed the holding in California Forestry Association v. California Fish & Game Commission (2007) 156 Cal.App.4th 1535 that section 45 defines “fish” as the term is used in sections 2062 and 2067 of CESA. Additionally, the Court identified several instances in which the Legislature used or acquiesced to the use of the section 45 definition. For example, the Court highlighted that the Legislature expressly used the section 45 definition of “fish” when it enacted CESA, though it was within the purview the Legislature to create its own definition. Relatedly, the Legislature amended section 45 after the California Forestry Association decision, but stopped short of signaling its contrary intent from the holding in that case. Based on this evidence, the Court concluded that the Legislature intended for the word “fish” in sections 2062, 2067, and 2068 of CESA to take on the meaning as defined in section 45.

“Fish” Is a Term of Art Not Limited to Aquatic Species 

Petitioners asserted that even if section 45 applies to sections 2062, 2067, and 2068, the term invertebrates in the definition of “fish” should be read as being limited to aquatic invertebrates. However, the Court espoused the more technical definition of “fish” that encompasses all terrestrial and aquatic species that fall under the categories of “mollusks, invertebrates, amphibians, and crustaceans.”

The Court described how legislative history supports this definition. It explained that at the time CESA was enacted, several bill analysis reports noted that the Commission had the authority to designate insects as endangered or threatened. Additionally, the Court highlighted that the Commission previously approved a terrestrial mollusk and invertebrate, the Trinity Bristle Snail, as an endangered species and expressly reaffirmed its status upon CESA’s enaction. The Trinity Bristle Snail’s endangered status is an explicit example of the Commission using its authority to protect terrestrial invertebrates under the section 45 definition of “fish.”

Additionally, the Court noted that previous caselaw directs it to construe laws providing for the conservation of natural resources liberally.

Construing CESA liberally, and considering the legislative intent behind CESA, the Court concluded that “a terrestrial invertebrate, like each of the four bumble bee species, may be listed as an endangered or threatened species under [CESA].”

— Jordan Wright

Third District Holds EIR’s Project Objectives Were Too Narrow and Recirculation Was Required Due to Increase in Significant and Unavoidable GHG Emissions

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In We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal. App.5th 683, the Third District Court of Appeal held that Siskiyou County’s environmental analysis of a bottling plant was deficient because the project objectives were too narrow, and because the County failed to recirculate the EIR despite a discrepancy in the estimated carbon dioxide emissions from the draft EIR to the final EIR (FEIR). Though the discrepancy did not change the EIR’s ultimate conclusions, recirculation was necessary to provide the public with meaningful opportunity to review and comment on the project’s environmental impacts. In We Advocate Through Environmental Review v. City of Mount Shasta (April 12, 2022, No. C091012) ___ Cal.App.5th___ [2022 WL 1487832], petitioners challenged city’s approval of wastewater permit for the same project.

Background

Real Party in Interest, Crystal Geyser, purchased a non-operational bottling facility in Siskiyou County in 2013, seeking to revive the plant for beverage production. To initiate the project, Crystal Geyser requested permits from the County to build a caretaker’s residence, and the City of Mount Shasta for discharging wastewater into the City’s sewer system. Both permits were approved.

We Advocate Through Environmental Review and the Winnehem Wintu Tribe sued the County alleging the EIR violated CEQA because it (1) provided an inaccurate description of the project, (2) defined the project’s objectives in an impermissibly narrow manner, (3) improperly evaluated several of the project’s impacts, and (4) approved the project though it would be inconsistent with the County’s and City’s general plans.

The trial court rejected all of petitioners’ claims. This appeal followed.

The Court of Appeal’s Decision

The Court of Appeal reversed the trial court in part, holding in the published portions of the decision that the project objectives were too narrow and that recirculation was required because the FEIR estimated that the project would generate significantly more carbon dioxide emissions than disclosed in the DEIR. The fact that the DEIR concluded that this impact was significant and unavoidable did not mean the increase in greenhouse gas emissions was “insignificant” under CEQA.

Project Objectives

The Court agreed with Appellant’s contention that the EIR defined the project objectives too narrowly, because the County defined the project objectives in a manner that precluded all alternatives other than the proposed project. For example, one objective was to “site the proposed facility at the Plant . . . to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property.” Another objective aimed to “utilize the full production capacity of the existing plant based on its current size.” According to the Court, this narrow approach was unacceptable because it transformed the alternatives section of the EIR into an “empty formality,” rather than served the purpose of enabling meaningful environmental review of a project. The Court concluded the County’s error was prejudicial because it foreclosed viable alternatives.

Climate Change Impacts Analysis

Appellants challenged the EIR’s discussion and mitigation of climate change impacts, arguing (1) the County failed to recirculate the EIR to address the discrepancy in carbon dioxide emissions estimations between the DEIR and the FEIR, (2) the County failed to analyze foreseeable emissions from “preform” bottles, and (3) the EIR’s mitigation measures were not properly amended to reflect the emissions change from the DEIR to the FEIR.

The Court agreed that the County violated CEQA by failing to recirculate the EIR after changing the greenhouse gas emissions estimate from 35,486 metric tons of carbon dioxide per year in the DEIR, to 61,281 metric tons in the FEIR. The County argued recirculation was unnecessary because the impact remained above the “significant and unavoidable” threshold in both versions of the EIR. The Court held that the estimated increase of over 25,000 metric tons of carbon dioxide per year between the versions was significant enough to require recirculation, though it did not change the EIR’s ultimate conclusions. Failing to recirculate “wrongly deprived the public of a meaningful opportunity to comment on a project’s substantial environmental impacts.”

The Court rejected Appellants’ other arguments regarding climate change impacts. On the subject of “preforms,” the Court rejected Appellants’ argument because they failed to concretely show that “each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced.” Additionally, the Court held that the mitigation measures were valid and enforceable because the County revised and reevaluated mitigation measures to reflect increased emissions in the FEIR.

— Jordan Wright

First District Holds Stipulated Federal Court Judgments Do Not Preclude Independent Review Under CEQA

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In Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, the First District Court of Appeal held that Marin County properly limited the scope of its environmental review to comport with its legal obligations pursuant to two stipulated federal judgments. In the same vein, the Court rejected appellants’ claim challenging the scope of the EIR’s project description, which incorporated the constraints imposed by the judgments. The Court also rejected appellants’ claims that the County abused its discretion by rejecting a scaled down project alternative, and making several mitigation findings for impacts to traffic safety and density, a threatened species, and water supply and fire flow.

Background

Real Party in Interest, the Martha Company (Martha), owns a 110-acre property on a mountaintop in Marin County that overlooks the Town of Tiburon. For several decades, Martha attempted to develop single family homes on the property, yet all proposed projects befell to forceful opposition from residents of the Town of Tiburon and the County.

The current dispute is predated by two stints in federal court that resulted in stipulated judgements.

The first federal case occurred in 1975, when the County adopted a re-zoning measure that drastically reduced the number of residences Martha could build on the property from a minimum of 300 to a maximum of 34. Martha sued the County in federal district court, alleging the re-zoning constituted a regulatory taking of property. The case resolved in 1976 by stipulated settlement that (1) Martha could develop no fewer than 43 single family homes on a minimum of half-acre lots; (2) Martha could place some homes on portions of the property named the Ridge and the Upland Greenbelt; and (3) 43 single family homes on half-acre lots is consistent with the goals of the County’s general plan while allowing owners a feasible economic use of their property.

Between federal cases, Martha submitted a project proposal to the County, which directed Martha to file an application with the Town of Tiburon for approval. The Town conducted years of environmental study without rendering a decision, and eventually Martha withdrew its application. In 2005, Martha submitted a new project proposal. The County refused to process Martha’s second application just as it refused to process the first.

The County returned to federal court, seeking relief from the 1976 stipulated settlement. It alleged that California environmental laws had changed in the 30 years since 1976, such that it would be against public policy of the state to “allow a development of this magnitude, on environmentally sensitive and constrained land to proceed without the development and density being subject to CEQA review.” The district court dismissed the County’s complaint and granted the 2007 stipulated settlement, which set a timeline and procedures for enforcing the 1976 judgement.

Martha submitted a third development application for a 43-unit residential development project (the Project). The County circulated a draft EIR for the project in 2011.

In 2017, after years of administrative proceedings, further environmental review, and litigation concerning the project, Martha submitted a modified Master Plan of the development project to comply with the County Board of Supervisors’ request for a “more specific proposal.” Additionally, Martha agreed to a phased review of its development application. The Marin County Board of Supervisors certified the EIR by a 3-2 vote.

Tiburon Open Space Committee and the Town of Tiburon (collectively, the Town) each filed petitions for a Writ of Mandate against the County, alleging the EIR was legally inadequate in numerous respects, and the County’s review process was legally deficient. The trial court denied both petitions. The Town appealed.

The Court of Appeal’s Decision

Implications of the Stipulated Judgments

The Town’s principal allegation was that the County violated CEQA by failing to exercise the full measure of its statutory discretion when it complied with the stipulated judgements. In essence, the Town claimed the County illegally “contracted away its police powers.”

The Court of Appeal rejected these claims, explaining that the Board proceeded “along lines that are in fact expressly embedded in CEQA,” and did not circumvent its obligations under the statute.

First, the Court concluded that the EIR was not a “pro forma” exercise, nor had a preordained outcome as the Town contends. The Court underscored the fact that the EIR underwent several revisions, spanned 850 pages, involved consultation with other agencies, provided meaningful opportunity for public review and comment, and cost considerable time and money. Furthermore, the County retained discretion to shape the contours of the Project during the later phases of approval. Specifically, the Court noted, the EIR proceedings were not “rushed, perfunctory, or short circuited” and were “utterly at odds with the conduct of a public entity that believed itself free to blow off CEQA.”

Second, the County appropriately limited its CEQA analysis to the scope of its discretionary authority. The Court cited Sequoyah Hills Homeowners Association v. City of Oakland (1993) 23 Cal.App.4th 704 for the holding that an agency’s discretion under CEQA is limited by its own legal obligations. For example, the Court remarked that CEQA imposes a duty to mitigate environmental impacts only to the extent feasible. Applied here, the County had a legal obligation to comply with the conditions imposed by the stipulated judgements. Since the stipulated judgments limit the scope of the County’s discretion by requiring certain conditions for the project be met, they also limited the scope of its environmental review. Thus, while legally feasible alternatives and mitigation measures had to be examined by the County, alternatives or mitigation measures that contradicted its obligations under the stipulated judgements were legally infeasible and did not need to be examined. Accordingly, the Court held that the County’s approval of a project that complied with the conditions set by the stipulated settlements was proper.

The Town also raised a corollary argument that the stipulated judgements deprived the members of the County Board of Supervisors from exercising their “independent judgement.” The Court refuted this argument by highlighting its logical flaw; that is, if it can be said that federal judgements are not binding on a public official’s independent discretion, then it can equally be said that inconvenient provisions of state law, namely CEQA, are not binding on independent discretion either.

The Court therefore concluded that the EIR fulfilled the central purpose of CEQA to “disclose to the public the reasons why a governmental agency approved the project in the manner the agency chose,” and the County’s review process appropriately limited the scope of its environmental review to match its discretionary authority.

Project Description

The Court also rejected the Town’s claim that Final EIR’s 34-page project description was “artificially narrow” because it incorporated the legal constraints imposed by the stipulated judgments. The Court explained that the project description provided more detail than CEQA requires, and this argument was a mere variation of the claim that the County “abdicated” its responsibilities under CEQA by complying with the judgments—which it already rejected.

Alternatives

The Court held that the County did not abuse its discretion by rejecting a 32-unit alternative because that alternative was legally infeasible due to the legal requirements imposed by the stipulated judgments. It emphasized that an EIR is not required to review infeasible alternatives “even when such alternatives might be imagined to be environmentally superior.”

Environmental Impacts and Mitigation Findings

The Court of Appeal held that substantial evidence supported the County’s findings that several of the Project’s impacts would be mitigated to a less than significant level.

First, the Court upheld the County’s finding that traffic safety impacts could be mitigated by measures that required the Town to implement them—including removing traffic obstacles such as trash receptacles and enforcing speed limits on narrow winding road. The Court explained that CEQA only requires a “reasonable plan” for mitigation and allows for the approval of a project with a finding that mitigation should be adopted by another entity that has exclusive jurisdiction.

The Court also concluded that substantial evidence supported the EIR’s “level of service” (LOS) methodology for calculating the Project’s traffic density impacts, noting that LOS was an established standard required in the County. Quoting the trial court, the Court of Appeal held that the traffic analyst was entitled to rely on this methodology because it “had the prerogative to resolve conflicting factual conclusions” about the traffic congestion impacts of the Project.

The Court upheld the EIR’s use of best management practices (BMPs) for the mitigation of impacts on the threatened California red-legged frog. It explained that the BMPs did not defer mitigation, but rather qualified as “revisions in the project plans” agreed to by Martha because they were accepted as conditions of approval. Further, the Court noted, the BMPs were already in existence because they were included in the Project’s Stormwater Control Plan. Accordingly, the Court determined that the BMPs were incorporated by reference in the EIR.

The Town’s claims regarding the County’s water supply and fire flow mitigation measures were barred due to its failure to exhaust the issues during the County’s administrative process. The Court nonetheless concluded that the measures requiring Martha to work with local water and fire authorities were sufficient and would not allow Martha to do “nothing” because failing to comply would result in the County not issuing the permits required to proceed with the Project. The Court also concluded that the Town’s demand for more detail in the water supply plan went beyond what CEQA requires.

Lastly, the Court concluded that substantial evidence—specifically, construction and traffic experts’ opinions—supported the County’s determination that mitigation would reduce the Project’s safety impacts resulting from a temporary on-site construction road to less than significant. The Court explained that alternative evidence does not negate the substantial evidence that the County relied on, and that it is within the agency’s discretion to evaluate the credibility of such evidence. It also emphasized that the safety risks were limited to the workers building the Project, and CEQA only requires review of safety risks posed to the public in general.

The Court’s Closing Remarks

The Court of Appeal concluded its opinion by expressing its inclination to afford the trial court’s decision great weight in counties with designated CEQA judges. The Court also generally criticized the use of CEQA lawsuits as “tool[s] of obstruction,” especially for housing developments.

— Jordan Wright & Veronika Morrison

SECOND DISTRICT FINDS LOS ANGELES’S 15 PERCENT AFFORDABLE HOUSING SET-ASIDE INOPERATIVE

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In AIDS Healthcare Foundation v. City of Los Angeles (2022) 78 Cal.App.5th 167, the Second District Court of Appeal rejected claims challenging the City of Los Angeles’s decision to approve the development of a large mixed-use apartment building in Hollywood. The court upheld the decision of the Superior Court, finding that a 15 percent low income set-aside requirement had been voided by 2011 legislation and, even if it had not, the set-aside requirement applied only to the aggregate amount of dwelling units within a planning area, not to individual projects.

FACTUAL AND PROCEDURAL BACKGROUND

In 1986, the (now dissolved) Community Redevelopment Agency of the City of Los Angeles (CRA-LA) established the “Hollywood Redevelopment Plan” (HRP) in accordance with the City of Los Angeles’s (City’s) “Community Redevelopment Law” (CRL). Both the HRP and CRL included a requirement that at least 15 percent of all new and rehabilitated dwelling units within a total project area be reserved for families of “low or moderate income.” However, the local redevelopment agencies charged with preparing and executing these plans had no power to tax, and instead funded their activities using “tax increment” financing.

Under this financing scheme, public entities that were entitled to receive property tax revenue received such revenues from properties within the planning area based on their assessed value prior to the effective date of the applicable redevelopment plan. Any tax revenue received in excess of that amount was a “tax increment.” However, in 2011, the Legislature enacted the “Dissolution Law,” which dissolved redevelopment agencies and repealed any provisions of the CRL that depended upon tax increment financing. “Successor agencies” acquired the former redevelopment agencies’ “housing functions and assets,” but were to have no “legal authority to participate in redevelopment activities, except to complete any work related to an approved enforceable obligation.”

In January 2019, the City’s Advisory Agency approved a tentative tract map for a 26-story mixed-use building on a 0.89-acre plot within the HRP planning area (developed by 6400 Sunset, LLC, the real party in interest). The project involves approximately 200 dwelling units, of which 5 percent will be reserved for “very low income households.” Coalition to Preserve LA (CPLA) appealed the Advisory Agency’s approval to the City Planning Commission, arguing that a reservation of only 5 percent of units for affordable housing would violate the CRL/HRP requirement of 15 percent. The Planning Commission denied CPLA’s appeal in March 2019. CPLA’s appeal of that decision, to the City Council’s Planning and Land Use Management Committee, was also denied in June 2019.

In July 2019, CPLA (joined by AIDS Healthcare Foundation) filed a petition for writ of mandate. The superior court denied the petition on the grounds that the pertinent provisions of the CRL had been repealed and, even under the CRL’s language, the 15 percent requirement “need not be imposed on each individual project,” but only to buildings within the planning area “in the aggregate.” CPLA and AIDS Healthcare Foundation timely appealed.

THE COURT OF APPEAL’S DECISION

The Court of Appeal agreed with the superior court on both counts, holding that the Dissolution Law had effectively repealed the 15 percent requirement and that, even if it had not, the requirement applied to the number of dwelling units within the CRL planning area as a whole—not individual projects.

Under the Dissolution Law, “all provisions of the [CRL] that depend on the allocation of tax increment to redevelopment agencies . . . shall be inoperative.” The court agreed that because enforcement of the 15 percent requirement depended upon redevelopment agencies, and redevelopment agencies in turn depended upon the funds supplied by the tax increment, this requirement was also rendered inoperative. The appellants countered that redevelopment agencies could raise funds by issuing bonds, but the court reasoned that “bonds . . . have to be repaid, and the former agencies repaid the bonds, generally, from the same source of funds used to pay other obligations—from the tax increment.”

The appellants also argued that the 15 percent requirement was an “enforceable obligation” under the Dissolution Law, which the successor agency (here, the City) was required to perform. The court, however, found that such obligations related only to “monetary and existing contractual obligations,” not to statutory affordable housing requirements. The appellants countered that the City, as the former CRA-LA’s successor agency, is not limited to the statutory powers enumerated under the CRL and, therefore, the 15 percent requirement could be enforced under the City’s “inherent police power.” The court remained unpersuaded. Even assuming that the City is CRA-LA’s successor agency, the Dissolution Law did not grant the successor any powers that the former redevelopment agency did not have (such as general police powers).

The court also rejected appellants’ argument that, even if the Dissolution Law rendered the CRL’s 15 percent requirement inoperative, the HRP’s own 15 percent requirement remained intact. According to the court, the HRP and its powers applied only to CRA-LA (not the City), and that agency was dissolved by the Dissolution Law.

Finally, beyond the nullifying effects of the Dissolution Law, the court held that under the plain language of both the CRL and HRP, the 15 percent requirement would apply only “in the aggregate,” and “not to each individual case of rehabilitation, development, or construction of dwelling units, unless an agency determines otherwise.” Because CRA-LA never determined otherwise, individual projects were not subject to a strict 15 percent minimum.

 —Griffin Williams

First District Holds Petitioner Exhausted Its Remedies by Raising General Objections That the Project Site Should Be Preserved as Open Space, Finds “No Project” Alternative Analysis Defective

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In the published portions of Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, the First District Court of Appeal held that Petitioner Save the Hill’s failure to specifically reference the recirculated EIR or the no-project alternative in its comments to the City Council did not bar its CEQA claims regarding preservation of the Project site.

Background

This case involves the City of Livermore’s approval of a development application for a housing development in the Garaventa Hills. The Project underwent multiple revisions, and the Project at issue is a scaled-down version of the original 76-unit residential development. The final Project is a 44-unit development with pedestrian across Altamont creek that also serves as a secondary emergency vehicle access road. The City published a Recirculated Final EIR (RFEIR) for this final revised Project.

Save the Hill filed a petition for writ of mandate challenging the City’s approval of the Project and certification of the RFEIR for failure to consider significant environmental impacts, adequately investigate and evaluate the no-project alternative, and mitigate significant environmental impacts. The trial court denied the petition, determining that Save the Hill failed to exhaust its administrative remedies in challenging the RFEIR. Save the Hill appealed.

The Court of Appeal’s Decision

Exhaustion

The Court of Appeal held that Save the Hill did not fail to exhaust its administrative remedies before challenging the City’s failure to evaluate the no-project alternative. While Save the Hill did not mention the environmental documents or the lack of a no-project alternative specifically, it did express its desire to preserve the Project site as open space. The Court emphasized that CEQA does not require public interest groups such as Save the Hill—which are often unrepresented by counsel at administrative hearings—to do more than “fairly apprise” the agency of their complaints to preserve them for appeal.

Several Save the Hill representatives voiced support for preserving the Project site as open space in perpetuity at the City Council hearing for the RFEIR’s certification. These comments sparked questions from city councilmembers regarding the possibility of preserving the Project site and a discussion of available funding to purchase Garaventa Hills for conservation. This option was shut down by the City Attorney, who advised the City Council that its evaluation should be limited to the Project as set before them, and that if it were to change the zoning to permanent open space on the property, the City would likely face a takings lawsuit.

The Court determined that these comments and the ensuing discussion reflected the City Council’s consideration of a no-project alternative as a result of Save the Hill’s objections. It concluded that Save the Hill’s failure to specifically refer to the RFEIR’s Project alternatives evaluation was immaterial to the fact that it fairly appraised the City of its position. The court further explained that even if Save the Hill framed its arguments in the context of the RFEIR’s no-project alternative, “the evidence is overwhelmingly that, had it done so, the result would have been the same: [t]he City would have rejected the group’s proposal and certified the RFEIR” because it was improperly instructed to limit its focus to the presented Project.

Accordingly, the Court held that an exception to the exhaustion requirement applied because the aggrieved party—Save the Hill—could “positively state” what the lead agency’s decision would be in its particular case.

No Project Alternative Analysis

On the merits of Save the Hill’s alternative analysis claim, the Court held that the RFEIR failed to disclose and analyze information regarding the availability of funding sources that could have been used to purchase and permanently conserve the Project site. The Court explained that zoning changes are within the City’s police power, and the RFEIR accordingly should have discussed the feasibility of rezoning the site as permanent open space.

Mitigation Measures Adequacy

Save the Hill asserted that the mitigation measures for impacts to vernal pool fairy shrimp were inadequate because they would only be implemented if the fairy shrimp were detected at the site. The Court explained that CEQA allows deferred mitigation where the agency commits to achieving specific performance standards, which it did here, and that the mitigation measures were adequate because the RFEIR assumed that the fairy shrimp were present.

The Court also held that the preservation of an 85-acre compensatory mitigation site was adequate, despite Save the Hill’s contention that the City’s General Plan required the location to be preserved as open space. The Court concluded that the General Plan is “merely aspirational,” while the RFEIR’s mitigation measure created a “perpetual legal restraint on development” at the site, including requiring funding for upkeep and enforcement. Moreover, distinguishing this case from King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (“King”), the Court explained that this Project involved the loss of only 32 acres—as opposed to the loss of 6,450 acres in King—and CEQA does not require mitigation measures to “completely eliminate the environmental impacts of a project.”

Hydrological Impacts Adequacy

The Court held that the City’s finding of no significant hydrological impacts was supported by substantial evidence because Save the Hill failed to refute the City’s points in its reply brief. The Court refused to afford any weight to Save the Hill’s argument that the Project would degrade downstream water quality because a larger development project (which originally included this Project) would have a significant downstream water quality impact. The Court determined that impacts from a project almost 200 acres larger than this Project were not relevant.

Settlement Agreement Obligation Claims

Lastly, the Court held that that Save the Hill forfeited its claim that the City violated CEQA by failing to preserve the Project site to satisfy its obligations under two settlement agreements by failing to raise the issue prior to appeal. Moreover, Save the Hill was not a party to either settlement agreement and thus lacked standing to enforce those obligations.

SECOND DISTRICT FINDS QUANTIFICATION OF EXISTING WATER RIGHTS NOT REQUIRED UNDER CEQA FOR WATER DIVERSION AND STORAGE PROJECT

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On March 3, 2022, the Second District Court of Appeal ordered published its decision in Buena Vista Water Storage District v. Kern Water Bank Authority (2022) 76 Cal.App.5th 576, in which the court held that an EIR for a project to divert and store unappropriated flood flows need not quantify all existing water rights. The court also held that CEQA does not require the project description to specify the exact amount of water that would be diverted, since that amount will vary from year to year based on the weather. Additionally, the court held that substantial evidence supported the EIR’s conclusion that the project would not adversely affect the long-term recovery of the groundwater basin in which it is located, as the project would cause a net benefit to the aquifer.

Factual & Procedural Background

Although the Kern River had been designated a fully appropriated stream for many years—such that only those who held an appropriative right could divert from it—in 2010, the State Water Resources Control Board (SWRCB) found that in certain wet years, Kern River water was available in excess of the amount appropriated. In particular, following construction of the Kern River-California Aqueduct Intertie in 1977, the Kern River water master began occasionally releasing reservoir water into the intertie to alleviate flooding. This release only occurs when flows are in excess of those held by existing water rights holders. The SWRCB concluded that this flood-released water was unappropriated and stated that it would allow applications to appropriate that water.

Respondent, the Kern Water Bank Authority, thereafter filed an application with the SWRCB seeking a permit for a water right to divert and store up to 500,000 acre-feet-per-year of the unappropriated water. The Authority also certified an EIR for the project. Buena Vista Water Storage District filed a petition for writ of mandate, seeking to set aside the Authority’s certification of the EIR and its approval of the project.

The trial court granted Buena Vista Water Storage District’s writ petition, holding: (1) the EIR’s project description was inadequate because it did not quantify existing water rights and it was unstable; (2) the EIR’s discussion of the existing baseline was inadequate because it did not quantify competing existing rights to Kern River water; and (3) the EIR’s impact analysis was inadequate because it did not adequately assess impacts on senior rights holders and impacts on groundwater during long-term recovery operations. The Court of Appeal reversed, concluding that the EIR complied with CEQA.

The Court of Appeal’s Opinion

The EIR’s Project Description is Accurate and Stable

Unlike the trial court, the Second District Court of Appeal held that the EIR’s project description is adequate under CEQA. As explained by the court, the EIR consistently and adequately describes the project as “‘high flow Kern River water, only available under certain hydrologic conditions and after the rights of senior Kern River water right holders have been met, that otherwise would have (1) been diverted to the Intertie, (2) flooded farmlands, or (3) left Kern County.’”

Buena Vista Water Storage District argued that the EIR’s project description is unstable because it relies on an “open-ended limit of ‘up to 500,000 [acre-feet] of water.” The court rejected this argument, explaining that a precise amount of water to be diverted by the project cannot be determined because water availability will fluctuate from year to year. As stated by the court: “A project description may use a flexible parameter when subject to future changing conditions.” Furthermore, the proposed 500,000 acre-foot-per-year is a finite maximum amount based on historical conditions, thus providing an adequate upper-end of the proposed diversion.

EIR Not Required to Quantify Existing Water Rights

The appellate court also rejected the District’s contention that the EIR’s project description must include a quantification of existing Kern River rights. That amount of detail is not necessary under CEQA Guidelines section 15124, subdivision (c), which requires a “general description” of the project’s technical and environmental characteristics. Moreover, a stream-wide quantification is a complex proceeding conducted by the SWRCB or a court and can take several years (or even decades) to complete. CEQA does not require this type of exhaustive detail.

Similarly, the EIR’s description of the existing environmental setting is not required to include a quantification of the existing Kern River water rights. The EIR satisfies CEQA’s informational requirements by providing measurements of Kern River water historically diverted into the Kern Water Basin and estimating, based on these historic records, how much water the Kern River Bank Authority could have diverted from the basin under baseline conditions. A complete quantification of existing water rights was not necessary to provide these estimates.

Finally, the court found it was clear that existing rights would not be impacted because the SWRCB cannot issue a new permit to divert water that is already subject to existing water rights. Further, the SWRCB expressly allowed processing of water rights applications, like the one at issue, in its Order finding that the water diverted to the Intertie was not fully appropriated. Quantification of the existing water rights was not necessary to evaluate the project’s impacts.

Substantial Evidence Supports the EIR’s Conclusions Regarding Groundwater Impacts

According to the trial court, the project would alter groundwater recovery by making groundwater available for long-term pumping for additional months or years during drought conditions, which, in the trial court’s view, would likely deplete groundwater during a drought. The Second District rejected the lower court’s analysis as factually inaccurate. The purpose of the project is to add to groundwater supplies and increase the availability of groundwater storage. The EIR concludes that the project would raise the local groundwater, resulting in a net increase in aquifer volume. Additionally, the Kern Water Bank Authority’s existing groundwater and monitoring policies will ensure that banking additional groundwater will not lower groundwater tables or affect the production rate of existing wells. Thus, substantial evidence supports the EIR’s conclusion that the project’s groundwater impacts will not be significant.

Conclusions & Implications

The Second District’s decision addresses whether an EIR for a water diversion and storage project must quantify the existing water rights to the underlying waterbody. In holding that such quantification is not required for the Kern Water Bank Authority’s proposed water diversion project, the Court of Appeal adhered to the principle that CEQA does not require an exhaustive analysis, but rather a good faith and reasonable effort at full disclosure. The decision also recognizes that for certain types of projects, particularly those involving water supplies, a project description must be somewhat flexible. The decision illustrates how a court reviewing an EIR must defer to the lead agency’s factual analyses and conclusions—deference that the trial court had failed to give to the Kern Water Bank Authority’s determinations.

– Laura Harris Middleton

SECOND DISTRICT FINDS 90-DAY STATUTE OF LIMITATIONS APPLIES TO LAWSUIT ALLEGING CITY FAILED TO OBTAIN COASTAL DEVELOPMENT PERMIT PRIOR TO ADOPTING SHORT-TERM RENTAL ORDINANCE

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In Coastal Act Protectors v. City of Los Angeles (2022) 75 Cal.App.5th 526, the Second District Court of Appeal held a lawsuit alleging the City of Los Angeles was required to obtain a coastal development permit (CDP) prior to the adoption an ordinance imposing restrictions on short-term vacation rentals was subject to the 90-day statute of limitations in Government Code section 65009 subdivision (c)(1)(B). Because the lawsuit was not filed with 90 days, the court dismissed the case.

Background

The City adopted an ordinance imposing restrictions on short-term vacation rentals in December 2018. More than a year later, Coastal Act Protectors (CAP) filed a lawsuit seeking a writ of mandate to enjoin the City from enforcing the ordinance in the Venice coastal zone until the City obtained a CDP pursuant to the California Coastal Act, arguing that the ordinance constituted a “development” under the Act.

The trial court concluded that the 90-day statute of limitations in Government Code section 65009, subdivision (c)(1)(B), applied to the City’s adoption of the ordinance, and CAP’s petition was therefore untimely. It reasoned that the City’s purported duty to obtain a CDP was a procedural task to perform in enacting a lawful ordinance; therefore, CAP’s petition challenging the City’s failure to obtain a CDP constituted an action to “attack, review, set aside void, or annual” the decision of the City to adopt the ordinance, bringing it within the ambit of Government Code section 65009 subdivision (c)(1)(B). The trial court also addressed the merits of the petition and concluded that the ordinance was not a “development” under the Coastal Act. CAP appealed.

Court of Appeal’s Decision

On appeal, CAP argued that the City’s purported failure to comply with the Coastal Act when it adopted the ordinance was not an “action” or “decision” contemplated by section 65009 of the Government Code, but was instead subject to the three-year statute of limitations in Code of Civil Procedure section 338, subdivision (a), for actions “upon a liability created by statute.”

The Court of Appeal agreed with the trial court that CAP’s petition constituted an action to “attack, review, set aside void, or annual” the decision of the City to adopt the ordinance, and therefore, the 90-day limitations period applied. The court explained that, unlike in cases where it would have been impossible for a petitioner to bring a lawsuit within 90 days, the Coastal Act predated the County’s ordinance. If the City did have a duty to obtain a permit for application of the ordinance to residences in the Venice coastal zone, the court held, that duty would have existed when the City enacted the ordinance. The statute of limitations in the Government Code therefore applied. Because CAP waited over a year to file suit, the Court of Appeal agreed with the trial court that the petition was untimely. The court concluded by noting its determination comported with the Legislature’s stated intent to “provide certainty for property owners and local governments regarding” local zoning and planning decisions. (Gov. Code, § 65009, subd. (a)(3).)

Since its holding on the statute of limitations issue was dispositive, the Court of Appeal did not address whether the ordinance constituted a “development” subject to the CDP requirements of the Coastal Act.

– Elizabeth Pollock

THIRD DISTRICT UPHOLDS EIR FOR EL DORADO IRRIGATION DISTRICT’S “UPPER MAIN DITCH” WATER TRANSMISSION PIPELINE PROJECT

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In a February 16, 2022 decision, the Third District Court of Appeal in Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239, upheld the District’s approval of the Blair Road Alternative for the Upper Main Ditch piping project by finding that substantial evidence supported the District’s determination that the project and alternative would have less-than-significant impacts, and rejected petitioner challenges to the EIR’s project description, hydrological, biological, and wildfire impact analyses.

Background

The El Dorado Irrigation District operates a primarily surface-water system in El Dorado County, with more than 1,250 miles of pipe and 27 miles of earthen ditches that connect the system’s facilities and treatment plants. The Upper Main Ditch (UMD) is the system’s main conveyance feature consisting of a three-mile open and unlined ditch that connects the system’s Forebay Reservoir to its Reservoir 1 Water Treatment Plant (WTP). In June 2015, the District proposed to convert the UMD to a buried 42-inch pipeline that spanned the length of the existing ditch. The upstream end of the new pipeline would connect to the Reservoir and the downstream end would connect to a new metering and inlet structure at the WTP. The District would backfill around the pipe and reshape the ditch to allow for the passage of stormwater flows up to the current 10-year storm event capacity. Ultimately, the project would conserve more water by reducing seepage and evaporation, and improve water quality by reducing contaminant infiltration.

The District considered three alternatives, and ultimately approved the Blair Road Alternative, which would also convert the UMD into a buried pipeline but would instead place the pipe across District-owned property from the Reservoir to Blair Road, where it would continue until it reached the UMD crossing, then travel across private property to the WTP. The Blair Road Alternative would involve less construction activity near residents that the project and require the removal of fewer trees. It would also reduce the number of easements across private property.

In June 2018, the District circulated the draft EIR, which described the location of the UMD and the Blair Road Alternative’s setting and noted that, should it be adopted, the District would no longer use the existing ditch—instead reverting the land back to private landowners. After an extended public comment period, the District issued the final EIR in January 2019. After which, in April 2019, the Board of Directors certified the final EIR and approved the Blair Road Alternative. The Boar determined that, although the original project would achieve the desired objectives, it would have greater potential impacts to residents along the ditch from the resulting construction and eminent domain proceedings than the Alternative.

Thereafter, Save the El Dorado Canal filed a petition for writ of mandate alleging the approval and certification violated CEQA. The trial court denied each of Petitioner’s ten contentions. Petitioner timely appealed.

The Court of Appeal’s Decision

On appeal, Petitioner re-alleged that the action violated CEQA because the EIR contained an inaccurate project description and failed to adequately analyze potential impacts to hydrology, biological resources, and wildfire hazards. Under an abuse of discretion standard, the Third District Court of Appeal rejected each claim, finding that substantial evidence supported the District’s determination and Petitioner failed to demonstrate otherwise.

Petitioner first alleged the EIR failed to adequately describe the project by omitting the “crucial fact” that the ditch that would soon be abandoned was the “only drainage system” for the watershed. Notwithstanding Petitioner’s “problematic” briefing errors, the court rejected this argument and found instead that the EIR provided a detailed description of the UMD’s size, history, and location, and explained how the UMD passively intercepts stormwater runoff that would otherwise naturally flow down slope. For the Blair Road Alternative, the EIR explained that the ditch would continue to passively receive and convey stormwater flows during storm events, even after the District abandoned its maintenance easement over it. The court concluded this was an adequate, complete, and good faith effort at full disclosure about the ditch and its relationship to the watershed’s drainage system, as well as the District’s intent to abandon the ditch should it adopt the Blair Road Alternative.

Petitioner then claimed the EIR inappropriately concluded that the Blair Road Alternative would not significantly impact watershed drainage because abandonment would permit “the underlying property owners to do with [the ditch] as they please.” Citing a comment letter submitted by the County, Petitioner claimed the EIR failed to mitigate foreseeable impacts to watershed drainage that would result from vegetation and debris clogging the abandoned ditch. The court disagreed. It found that the final EIR’s response explained that private action or inaction will ensure the abandoned ditch retains its current capacity to convey stormwater across private property thereby reducing any risk of significant flooding. Moreover, unlike the District, the County can regulate private fill activities via administrative and civil penalties to ensure such activities do not yield significant environmental effects. Thus, it would be too speculative to predict landowners’ particular actions or inactions and the ensuing potential effects to the ditch’s stormwater conveyance capacity.

Petitioner next alleged the EIR failed to mitigate impacts to riparian habitats and sensitive natural communities and conflicted with local resource protection ordinances. The court noted that the Blair Road Alternative would yield fewer potential impacts to biological resources because the pipeline would be laid in an existing road corridor that is devoid of natural riparian habitat. Because the affected waterbody is not naturally occurring, plant and wildlife species are not dependent on water in the current ditch. Nevertheless, any impacts to vegetation communities—including those resulting from tree removal—would be mitigated to less than significant levels through permit compliance. The Alternative would therefore be consistent with the General Plan’s biological resources management plan, the County’s tree mortality removal plan, and CALFIRE’s tree removal procedures.

The court was also unpersuaded by Petitioner’s claim that the EIR failed to adequately analyze and mitigate impacts to tree mortality. Relying on facts and expert opinion, the EIR explained that trees surrounding the project site are not native riparian species, and thus, not dependent on water conveyed through the ditch. To the contrary, most of the adjacent tree species are stress-tolerant and can withstand climatic variation and changes in water seepage. The court also found that because both the project and Alternative were specifically designed to avoid Waters of the U.S. (WOTUS), and that, in any event, mitigation would alleviate any impacts, regulatory requirements associated with WOTUS were met.

Lastly, the court rejected Petitioner’s contention that the EIR failed to adequately consider the project’s fire risks by only considering construction-related impacts. Petitioner asserted the project would have potentially significant impacts by removing a water source that could be used as a firefighting tool. The court disagreed by noting that the EIR specifically debunked Petitioner’s claim—the ditch supplies potable drinking water only, and water from the ditch has never been used to fight fires. Indeed, CAL FIRE’s Strategic Fire Plan did not identify the UMD as a potential firefighting resource.

– Bridget McDonald[/vc_column_text][/vc_column][/vc_row]

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