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THIRD DISTRICT PARTIALLY AFFIRMS JUDGMENTS SETTING ASIDE EIR FOR SPECIFIC PLAN LAND SWAP IN EASTERN PLACER COUNTY

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In a 123-page decision, League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer (2022) 75 Cal.App.5th 63, the Third District partially affirmed the trial court’s judgment in two cases granting a petition for writ of mandate, finding that the EIR for the Martis Valley West Parcel Specific Plan (Project) failed to adequately describe the environmental setting of Lake Tahoe regarding water quality, failed to adequately analyze impacts to Lake Tahoe water quality resulting from automobile trips, impermissibly deferred the formulation of mitigation for GHG impacts, failed to analyze proposed mitigation for the Project’s significant and unavoidable traffic impacts on SR 267, and failed to analyze whether renewable energy features could be incorporated into the Project. The Court of Appeal upheld the EIR’s analysis of impacts to forest resources and air quality, including the County’s reliance on the Placer County Air Pollution Control District’s (PCAPCD) thresholds of significance. The court also upheld the County’s decision not to recirculate the Draft EIR and to immediately rezone the subject property out of Timberland Productivity Zone (TPZ). Lastly, the Court of Appeal reversed the trial court’s decision that the EIR did not adequately analyze emergency evacuation impacts.

Background

Real Party in Interest, Sierra Pacific Industries (SPI), owns two undeveloped parcels on either side of SR 267, between Truckee and Lake Tahoe. The West Parcel is southeast of the Northstar Resort and has 1,052 acres. The East Parcel has 6,376 acres.  The existing zoning and land use designation in the Martis Valley Community Plan (MVCP) allows up to 1,360 residential units and 6.6 acres of commercial uses in a 670-acre area of the larger east parcel. Otherwise, both parcels are zoned TPZ and designated as forest in the MVCP. Starting in 2013, SPI and its partners (collectively, Real Parties in Interest or RPI) proposed that the County adopt a specific plan for the two parcels that would amend the MVCP and zoning to move the residential and commercial uses from the East Parcel to the West Parcel, reduce the residential capacity from 1,360 units to 760 units, immediately rezone 662 acres on the West Parcel out of TPZ, and rezone the entire East Parcel as TPZ. Following adoption of the specific plan, the applicants would sell the East Parcel for conservation purposes or place the land in a conservation easement. The effect of the land swap would be to allow development on the West Parcel, adjacent to Northstar and existing residential development, while permanently conserving all 6,376 acres of the East Parcel, connecting some 50,000 acres of open space east of SR 267. Two small areas of both parcels are within the Lake Tahoe Basin, and thus subject to the jurisdiction of the Tahoe Regional Planning Agency (TRPA), but neither area would be included in the specific plan.

The County circulated a draft EIR for the Project in 2015. In 2016, the County certified the final EIR, immediately rezoned the 662-acre project area of the West Parcel out of TPZ, rezoned the East Parcel to TPZ, and adopted the specific plan.

Sierra Watch, Mountain Area Preservation, and the League to Save Lake Tahoe (collectively, Sierra Watch) filed a lawsuit challenging the EIR and the County’s finding that immediately rezoning the project area on the West Parcel was consistent with the purposes of the Timberland Productivity Act (TPA). The California Clean Energy Committee (CCEC) filed a separate petition, also challenging the EIR. The trial court issued judgments in April and June 2018, rejecting all the challenges to the EIR, with the exception of the EIR’s analysis of impacts to emergency evacuations, and upholding the County’s findings on the immediate rezone out of TPZ. Sierra Watch and CCEC filed separate appeals, and the County and RPI cross-appealed on the emergency evacuation issue.

Court of Appeal’s Decision

On appeal, Sierra Watch argued that the EIR failed to adequately describe the Lake Tahoe Basin’s existing air and water quality, that the County should have adopted the TRPA’s threshold of significance for vehicle miles traveled (VMT) with respect to basin air and water quality, and that the EIR failed to adequately analyze the impacts of project traffic on air and water quality in the basin. Sierra Watch also challenged the County’s decision not to recirculate the EIR following changes to the analysis of GHG impacts, and argued that the adopted GHG mitigation measure was invalid. Lastly, Sierra Watch argued that the County violated the TPA by failing to make required findings. In their cross-appeal, the County and RPI argued that the EIR’s analysis of impacts to emergency evacuations was adequate, and that substantial evidence supported the EIR’s conclusion that the impacts would be less than significant.

CCEC’s appeal argued that the EIR did not adequately describe existing forest resources or analyze cumulative impacts to forest resources, failed to analyze feasible traffic mitigation measures proposed in comments, failed to disclose significant impacts from widening SR 267, and failed to discuss the use of renewable energy sources to meet Project energy demand. CCEC also argued that the adopted GHG mitigation measure was infeasible and unenforceable.

Lake Tahoe

The Court of Appeal found the County was not legally required to use TRPA’s thresholds of significance for measuring the Project’s impacts because, although the two parcels did include land within TRPA’s jurisdiction, the Project was revised to not include those areas. Instead, the County, as the lead agency, had discretion to rely on TRPA’s thresholds or those of another agency, or use their own thresholds, including thresholds unique to the Project. The court also concluded that, while TRPA had “jurisdiction by law” over resources that could be affected by the Project, and was thus, a “Trustee agency” under CEQA, they were not a “Responsible agency” because they had no permitting authority over the Project.
The court also found that the County did not abuse its discretion in adopting the PCAPCD’s thresholds of significance for the project’s air emissions impacts because, contrary to Sierra Watch’s claims, the PCAPCD’s significance thresholds were adopted to address air and water quality (resulting from air emissions) within the Tahoe Basin. However, the EIR failed to adequately describe the existing water quality of Lake Tahoe, which could be impacted by “crushed abrasives and sediment” from project traffic within the basin. According top the court, the EIR did not include a threshold of significance (though several were discussed in post-EIR responses to comments) for such impacts, even though there was substantial evidence that the project-generated traffic would travel within the basin, which the court found to be an abuse of discretion.

Recirculation

Sierra Watch argued that the revisions to the draft EIR’s GHG analysis included in the Final EIR triggered the need to recirculate. The draft EIR included a tiered analysis of GHG impacts. First, annual Project GHG emissions were calculated and compared to PCAPCD’s numeric threshold of 1,100 MTC2E for residential development. Second, although the draft EIR acknowledged that little, if any, of the Project would be constructed by 2020, the EIR compared a completed Project in 2020 with the GHG reduction measures, including those required by law, in place with a “no action” or “business as usual” scenario to determine the Project’s GHG efficiency, pursuant to the California Air Resources Board’s revised Scoping Plan. The draft EIR concluded that, because the Project would generate GHG emissions substantially greater than the numeric threshold, and because it was uncertain what regulatory GHG measures would be in place after 2020, when the Project was likely to begin operating, the impact was significant and unavoidable.

Before the final EIR was published, however, the California Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204 (Newhall Ranch). Newhall Ranch ruled that an efficiency metric comparing a proposed project to a hypothetical “business as usual” scenario was a permissible way to analyze GHG impacts, but the Scoping Plan’s statewide efficiency threshold required additional evidence and analysis to apply to individual projects, and the EIR in that case did not include the required connection. In response to Newhall Ranch, the final EIR dropped the efficiency analysis, but affirmed the draft EIR’s conclusion that impacts would be significant and unavoidable because the Project would generate emissions exceeding the numeric threshold, and because of the uncertainty around future regulatory GHG reduction measures. The County concluded that, because the significance conclusion did not change, recirculation was not required. The Court agreed recirculation was not required because the final EIR did not show new or substantially more significant effects, and merely clarified or amplified the information provided in the draft EIR.

GHG Mitigation

The court agreed with the appellants that the GHG mitigation measure impermissibly deferred determining the significance of GHG impacts, because the measure required future tentative maps to establish consistency with future efficiency targets adopted in compliance with the Newhall Ranch decision, even though the EIR acknowledged that no such targets existed and may not ever exist. The measure provided a suite of proposed mitigation tools that future maps could use to meet the efficiency targets. The court reasoned that, if no efficiency target consistent with Newhall Ranch became available, mitigation would never be triggered. RPI and the County argued that, if no efficiency targets were available, the 1,100 MTC2E threshold would apply to future maps, but the court found that the language of the measure itself did not include the numeric threshold.

Emergency Evacuations

The court agreed with the County and RPI that the EIR’s analysis of impacts to emergency evacuation plans was adequate and the EIR’s conclusion that impacts would be less than significant was supported by substantial evidence. The court upheld the EIR’s reliance on the questions in Appendix G to the CEQA Guidelines to set a threshold of significance. The EIR acknowledged that adding people and development to the area could exacerbate cumulative impacts to evacuation but concluded that the impact was less than significant because the project would not cut off or modify any evacuation routes and would not prevent an evacuation from occurring or otherwise interfere with the implementation of the County’s evacuation plans. The court found that the conclusion was supported by substantial evidence, including the EIR’s analysis of how long it would take to evacuate the project site, the number of emergency access/evacuation roads included in the project, the requirement that RPI develop a “shelter in place” feature, and the analysis of impacts to fire department response times.

The court acknowledged that evacuation planning involved multiple unknown factors and a host of potential circumstances which made it difficult to predict how an evacuation might play out or how a project could impact such an evacuation. The court reasoned that because the County had discretion as the lead agency to decide how to analyze an impact, the court would defer to the County’s methodology decision provided it was reasonable and supported by substantial evidence. The court found that it was. The court concluded that many of Sierra Watch’s challenges to the EIR’s analysis amounted to requests for further analysis, additional modeling, and speculative hypothetical scenarios. The court cited Guidelines sections 15145 and 15151 for the propositions that the EIR need not speculate and need not be exhaustive. While some of the evidence, relating to fire prevention and fire department response times, did not directly relate to emergency evacuation planning, the evidence indirectly supported the County’s conclusions by demonstrating that the project was reducing the likelihood of wildfire on the site and reducing the need for an evacuation.

Sierra Watch also argued that the EIR was internally inconsistent because the traffic analysis reached the opposite conclusion of the emergency evacuation analysis regarding project traffic on SR 267. The court found that the EIR’s conclusion that project generated traffic would have a significant impact on vehicle delay was not inconsistent with the conclusion that project generated traffic would not substantially interfere with emergency evacuation plans. The court reasoned that the two analyses focused on different types of impacts, with time (as measured by vehicle delay) being the focus of the traffic analysis and public safety being the focus of the emergency evacuation analysis.

Forest Resources

The court upheld the EIR’s conclusions that cumulative impacts to forest resources were less than significant. The EIR discussed the County’s 1994 General Plan EIR’s analysis of impacts to forest resources based on projected growth and development in the County and concluded that the Project’s impacts were consistent with and would not exceed the impacts disclosed in 1994 General Plan EIR. The Final EIR concluded that analyzing climate-related forest impacts, such as drought, wildfire, and tree mortality cause by bark beetles, would be speculative, and the court agreed. The court concluded that climate-driven tree mortality was not within the scope of a CEQA cumulative impacts analysis, which required the County to analyze impacts from the Project combined with past, present, and reasonably foreseeable future projects. Tree mortality is not a “project” under CEQA. The court acknowledged that climate-caused tree mortality could be exacerbated by a project, but such impacts would be best analyzed as part of the climate change and GHG analysis. The court concluded that aspect of the GHG analysis was not challenged in this case.

Traffic Mitigation

The EIR concluded that the Project’s traffic impacts on SR 267, measured in terms of delay and using the level of service (LOS) metric, would be significant and unavoidable. The EIR reached this conclusion in part because while the California Department of Transportation had plans to widen SR 267 from two to four lanes, the plan did not cover the portion of SR 267 within the Tahoe Basin, and it was uncertain when the widening would occur. Several commenters suggested that the EIR analyze transportation demand management (TDM) options to reduce traffic on SR 267. The EIR included similar measures for the Project’s impact on public transit but did not analyze whether TDM measures could further reduce the significant traffic impacts. The court, without acknowledging previous rulings by the Third District Court of Appeal finding LOS impacts to be moot given the Legislature’s directive that vehicle delay is not a significant environmental impact, ruled that the EIR failed to analyze facially feasible mitigation proposed in comments and therefore violated CEQA. The Court also found that, while the EIR did not analyze the impacts of widening SR 267, that lack of analysis was not prejudicial error because widening SR 267 was previously approved by the County in the MVCP, which concluded at the time that impacts of such a project would be analyzed in a separate EIR once the improvements were designed.

Energy Resources

Lastly, the court found fault in the EIR’s analysis of impacts to energy resources. The EIR concluded that the Project’s energy consumption impacts would be less than significant because the Project would not result in “wasteful, inefficient, or unnecessary use of energy, or wasteful use of energy resources.” The court, however, ruled that the EIR was required to analyze the Project’s potential use of renewable energy both in determining whether the Project may have a significant impact and how to mitigate that impact. Citing California Clean Energy Com. v. City of Woodland (2014) 225 Cal.App.4th 173, 209, the court concluded that the requirement to analyze renewable energy as part of a project’s impact analysis was a procedural requirement of CEQA, which the EIR failed to comply with.

– Nathan George

*RMM Attorneys Whit Manley, Chip Wilkins, and Nate George served as counsel to Real Parties in Interest in the above litigation.

FIRST DISTRICT HOLDS RESIDENTIAL DEVELOPMENT PROJECT THAT IS CONSISTENT WITH SPECIFIC PLAN AREA IS EXEMPT FROM FURTHER ENVIRONMENTAL REVIEW

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In Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, the First District Court of Appeal upheld the city’s determination that a residential project within a specific plan area was exempt from further environmental review under Government Code section 65457, which provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.

Background

In 2010, the city certified an environmental impact report (EIR) for a specific plan. The specific plan allowed for development of up to 1,260 residential units, and a golf course and related facilities spread across identified subareas (Areas 3 and 4). Area 4 contained wetland habitat for the salt marsh harvest mouse, a state-protected species. After petitioners filed suit under CEQA, the trial court found several deficiencies with the EIR.

In response, the city prepared a recirculated EIR (REIR), which stated that it was a program-level analysis of the impacts related to development of housing and the golf course in Areas 3 and 4 because the final design of those components was not yet known. In March 2015, the city certified the final REIR and re-adopted the 2010 specific plan.

In 2019, the developer submitted a proposed subdivision map for approval of 469 residential lots, omitting the golf course that was previously authorized by the specific plan.

The city prepared a checklist to determine whether the REIR adequately analyzed the environmental impacts of the proposed subdivision map and concluded that the project was consistent with the specific plan and that there were no changed circumstances or new information that might trigger additional environmental review. Accordingly, the city determined the project qualified for the statutory CEQA exemption under Government Code section 65457.

Petitioners challenged the city’s determination, arguing that a subsequent EIR was required due to changes in the project showing that it would have new significant impacts on the endangered harvest mouse.

Court of Appeal’s Decision

To qualify for the Government Code section 65457 exemption, a project must be for residential development, must be consistent with a specific plan for which an EIR was previously certified, and circumstances requiring subsequent environmental review (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162) must not be present.

Petitioners alleged that three changes to the project created new significant impacts triggering the requirement for a subsequent EIR:

(1) Fill of only uplands and not wetlands inhibited wetland migration;

(2) Omission of the golf course deprived the harvest mouse of escape habitat; and

(3) Use of riprap on the banks of elevated upland increased predation of the harvest mouse.

The court disagreed, finding that substantial evidence supported the city’s conclusion that none of the changes significantly increased the impacts on the harvest mouse beyond what the REIR analyzed, i.e., the impacts of the complete development of all of Area 4. The court noted that the project as approved would develop fewer total acres and include far fewer residential units than analyzed in the REIR.

In regard to petitioners’ specific arguments of new impacts, the court held the REIR addressed the impact of loss of upland escape habitat and found that the impact would be less than significant because the uplands did not provide high quality transitional habitat as they were regularly used for agriculture. The project would develop less upland than previously analyzed, meaning the project would eliminate less, not more, upland escape habitat. Additionally, because of the low value of upland habitat, the REIR’s less-than-significant determination did not depend on the golf course continuing to provide upland habitat. Accordingly, the elimination of the golf course did not affect that determination.

While the REIR did not discuss the use of riprap to stabilize the slopes of the filled and raised development areas, the court found this did not require subsequent environmental review because the REIR already examined the issue of rat predation on the harvest mouse and petitioners cited to no evidence that the riprap would substantially increase the severity of predation effects. The court acknowledged that there could be some potential increase in predation due to riprap but recognized that the Section 65457 exemption sets a higher threshold for environmental review. Like other statutory exemptions, the court said, Section 65457 reflects the Legislature’s determination that the interest promoted, which here was to increase the housing supply, was important enough to justify foregoing the benefits of environmental review.

The court also rejected petitioners’ claim that changed circumstances and new information related to sea level rise triggered subsequent review. Petitioners argued that the city was required, due to new scientific insights concerning the amount and rate of sea level rise, to analyze whether the project would exacerbate the effects of sea level rise because of how the project would interact with wetlands in the area (e.g., wetland migration). Even assuming wetland migration must be analyzed under CEQA, the court found that it was mentioned in the original 2010 EIR and the REIR assumed that all developable areas would be impacted. Accordingly, the court concluded that petitioners should have raised this argument in response to the REIR, or even the 2010 EIR.

Finally, the court rejected petitioners’ claim that an adaptive management approach to sea level rise was impermissibly deferred mitigation. The court held that the city’s adaptive responses were not mitigation because sea level rise is not an environmental impact caused by the project that needs to be analyzed under CEQA.

– Nina Berglund

The Future of Wetlands and Waters of the United States: U.S. Supreme Court Grants Review of Sackett v. EPA

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On January 24, 2022, the United States Supreme Court granted review of Sackett v. U.S. EPA (No. 21-454) to consider whether the Ninth Circuit Court of Appeals set forth the proper test for determining whether wetlands constitute “waters of the United States” under the federal Clean Water Act. (33 U.S.C. § 1362(7).) The Supreme Court’s second grant of certiorari marks a pivotal development in a long-running legal battle between the Sacketts—an Idaho couple seeking to build a home near Priest Lake—and the EPA, which has maintained that the Sacketts’ property contains wetlands subject to federal jurisdiction and permitting.

Factual Background

The Sacketts own a residential lot in Bonner County, Idaho, that lies just north of Priest Lake. To prepare for construction of a house, the Sacketts filled part of their lot with dirt and rock. Several months later, the Sacketts received a compliance order from the EPA stating that the lot contained wetlands that were adjacent to Priest Lake, which was a “navigable water” within the meaning of section 502(7) of the Clean Water Act (CWA) and constituted “waters of the United States” within the meaning of 40 C.F.R. § 232.2. The compliance order found that the Sacketts violated the CWA by impermissibly discharging pollutants into navigable waters. The order directed the Sacketts to remove the fill and restore the lot to its original condition, or be subject to civil penalties.

March 2012: Initial Lawsuit & Supreme Court Decision

The Sacketts sought, but were denied, an administrative hearing before the EPA. The Sacketts thus filed suit in the U.S. District Court of Idaho, contending that the compliance order violated the Administrative Procedure Act and the Sacketts’ due process rights. The petition alleged the EPA acted arbitrarily and capriciously by issuing the compliance order, and deprived the Sacketts of life, liberty, or property without due process of law in violation of the Fifth Amendment. The District Court dismissed the action due to lack of subject-matter jurisdiction. The Ninth Circuit affirmed, finding that the CWA precluded pre-enforcement judicial review of compliance orders, and that such preclusion does not violate the Fifth Amendments’ due process guarantee.

In 2012, the Supreme Court granted review of the Ninth Circuit’s decision to consider whether the EPA’s compliance order constituted a “final agency action” that could be subject to judicial review. The Supreme Court unanimously held in favor of the Sacketts, finding that the order had “all the hallmarks of APA finality.” In an opinion authored by the late Justice Scalia, the court held that the EPA’s order “determined” the “rights or obligations” of the Sacketts by imposing “legal consequences” that “flowed” from noncompliance with its terms. Because the EPA denied them an administrative hearing, the Sacketts possessed “no other adequate remedy in a court” so as to challenge the nature and scope of the order and administrative penalties therein.

August 2021: The Ninth Circuit’s Decision on Remand

On August 16, 2021, the Ninth Circuit issued its opinion on the merits of the Sacketts’ claims. The court of appeal held that the EPA reasonably determined that the Sacketts’ property contained wetlands. The court explained that Justice Kennedy’s interpretation and understanding of “significant nexus” in his concurring opinion in Rapanos v. United States (2006) 547 U.S. 715, provided the standard for determining when wetlands are regulated under the CWA. Applying that test, the panel held that the standard was satisfied because evidence in the record supported EPA’s conclusion that wetlands on the Sacketts’ property were adjacent to a jurisdictional tributary and that, together with a similarly situated wetlands complex, they had a significant nexus to Priest Lake, a navigable water that is regulated under the CWA.

January 2022: The Supreme Court’s Second Grant of Certiorari – Implications

Since the Supreme Court’s decision in Rapanos, most lower courts have relied on Justice Kennedy’s “significant nexus” test as the governing standard. Nevertheless, the split of opinion in Rapanos, coupled with the lack of executive rulemaking to clarify the scope of the EPA’s CWA jurisdiction, has created confusion. As such, the Supreme Court’s second grant of certiorari could mark a momentous step in the ongoing debate about the appropriate “WOTUS” test.

The Supreme Court will consider “whether the Ninth Circuit set forth the proper test for determining whether wetlands are ‘waters of the United States’ under the Clean Water Act, 33 U.S.C. § 1362(7).” The Sacketts urge the Court to adopt the four-justice plurality’s test in Rapanos, which, unlike the “significant nexus” test, would allow regulation of wetlands only when they have a continuous surface water connection to regulated waters of the United States. In contrast, the EPA maintains that a rule divergent from the significant nexus test would deprive the agency of “authority to protect wetlands separated from a navigable river by a small dune or other natural barrier, even if overwhelming scientific evidence showed that the wetlands significantly affect the river’s ‘chemical, physical, and biological integrity.’”

Though the Court will likely hear this case in October 2022, with a decision to follow in early 2023, it remains to be seen how the pending outcome will affect the EPA’s current implementation of, and revisions to, the “WOTUS” rule. Either way, the scope of federal jurisdiction in regulating and protecting the nation’s wetlands and navigable waters will be decided by our highest court yet again, hopefully yielding greater clarity on the issue rather than further muddying the waters.

– Bridget McDonald

FOURTH DISTRICT UPHOLDS EIR FOR MULTI-FAMILY HOUSING PROJECT AND FINDS CITY PROPERLY USED A PLANNED DEVELOPMENT PERMIT TO ALLOW A VARIATION FROM CONVENTIONAL ZONING REGULATIONS

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In Ocean Street Extension Neighborhood Association v. City of Santa Cruz (2022) 73 Cal.App.5th 985, the Fourth District Court of Appeal held that an EIR for a multi-family housing project properly relied on the biological resources analysis and mitigation measures identified in the initial study for the project, and sufficiently addressed the project objectives, alternatives, and cumulative impacts to water supply and traffic. Reversing the trial court, the Court of Appeal also held that the City complied with its municipal code by using a planned development permit as a variation from its conventional slope regulations.

Background

The proposed project consisted of a 40-unit residential complex on a vacant lot in the City of Santa Cruz. The City prepared an initial study that discussed, among other topics, biological impacts that would be reduced to less-than-significant with mitigation, and later circulated a draft EIR and recirculated draft EIR before certifying the final EIR. The City Council approved a reduced-housing alternative with 32 units.

Along with a general plan amendment, rezone, and other entitlements, the City approved a planned development permit (PDP) to allow a variation from the conventional slope regulations in the City’s zoning code.

The Ocean Street Extension Neighborhood Association (OSENA) filed a petition for writ of mandate challenging the EIR and the City’s approval of the PDP. The trial court ruled that the City complied with CEQA, but found the City violated its municipal code by not requiring compliance with the conventional slope regulations. OSENA appealed and the City and Real Parties in Interest cross-appealed.

The Court of Appeal’s Decision

CEQA and Adequacy of the EIR

Upholding the trail court’s ruling on the CEQA claims, the Court of Appeal concluded that the EIR was adequate. The court held that impacts that are less than significant with mitigation may be discussed in an initial study rather than in the EIR as long as the EIR fulfills its purpose as an informational document. The court noted that the EIR summarized the impacts and mitigation measures, and the EIR’s reference to the initial study—which was attached to the EIR as appendix—sufficiently alerted the public to the environmental issues and provided readers with adequate information. Accordingly, the court determined that it was appropriate for the EIR to rely on the biological resources analysis and mitigation measures identified in the initial study.

The court also rejected OSENA’s argument that the mitigation measures were vague and improperly deferred because OSENA failed to exhaust its administrative remedies as to this issue and did not raise it in the trial court proceedings. The court nonetheless explained that even if it considered this issue on the merits, it would reject OSENA’s arguments because the question of effectiveness of a mitigation measure is a factual one, which, in this case, was supported by substantial evidence in the record.

The court further concluded that the project’s objectives and alternatives analyses were adequate, and that OSENA’s arguments amounted to mere disagreement with the City’s conclusions. The court explained that rejecting or approving an alternative is a decision only for the decisionmakers, and they may reject alternatives that are undesirable for policy reasons or fail to meet project objectives. While the project objectives included specific targets, those objectives did not improperly restrict the range of alternatives analyzed in the EIR, and the City justified its reasons for rejecting alternatives with even less housing than the 32-unit alternative.

Additionally, the court determined that the EIR sufficiently analyzed the project’s cumulative impacts on water supply and traffic. Regarding water supply, the court explained that the EIR’s analysis properly considered the water supply impact in light of city-wide needs and future demand, and properly relied on the City’s Urban Water Management Plan. Regarding traffic, the court held that OSENA’s arguments challenging the EIR’s analysis of LOS impacts were moot because CEQA Guidelines section 15064.3, which took effect after the case was initiated, provides that a project’s effects on automobile delay shall not constitute a significant environmental impact.

Therefore, the Court affirmed the portion of the trial court’s order and judgment concluding that the City complied with CEQA.

Santa Cruz Municipal Code

Reversing the trial court’s ruling on OSENA’s municipal code claims, the Court of Appeal held that the City did not violate its municipal code by granting a PDP without also requiring compliance with the conventional slope modification regulation procedures in its zoning code. The City’s PDP ordinance allows a variation from certain zoning regulations including “Slope Regulations Modifications, pursuant to procedures set forth in Chapter 24.08, Part 9 (Slope Regulations Modifications).” Rejecting OSENA’s claim that the City was required to comply with the conventional regulations in Chapter 24.08, Part 9, in addition to the requirements for a PDP, the court explained that the City should be afforded deference in the interpretation of its own municipal code. The court upheld the City’s determination that the granting of a PDP does not require compliance with the conventional slope regulations, as this interpretation was consistent with the text and purpose of the ordinance and interpreting the PDP ordinance as requiring compliance with both the PDP ordinance and the slope regulations would have served no readily apparent purpose.

RMM Partners Christopher L. Stiles and Tiffany K. Wright represented the Real Parties in Interest in this case.  Chris Stiles argued the case in Court of Appeal on behalf of the City and Real Parties.

-Veronika S. Morrison

THIRD DISTRICT UPHOLDS CITY’S DETERMINATION THAT PROJECT WAS CONSISTENT WITH APPLICABLE PLANNING DOCUMENTS

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In Old East Davis Neighborhood Association v. City of Davis (2021) 73 Cal.App.5th 895, the Third District found the trial court erred in concluding the record did not support the city’s decision that a mixed-use development project was consistent with the general plan, specific plan, and design guidelines. Rather, using the deferential standard of review applied to general plan consistency determinations, the court found sufficient evidence to support that the city’s consistency determination was not unreasonable.

Background

The challenged project is a four-story mixed-use building development offering ground floor retail and apartment units on the three upper levels. The project is located in an area referred to as a “transition area” between the Downtown Core and the Old East Davis residential neighborhood. Both the Downtown Core and the project site are subject to the Core Area Specific Plan and the Downtown and Traditional Residential Neighborhoods Design (DTRN) Guidelines.

A Sustainable Communities Environmental Assessment/Initial Study (SCEA) prepared for the project concluded the project would be consistent with the general plan and would adhere to the design guidelines.

The staff report recommending approval of the project found the project consistent with general plan policies requiring an “architectural fit” with the city’s existing scale and specific plan policies “encouraging more intense mixed-use development and accommodating buildings with floor areas up to three times the site area, while still maintaining scale transition and small city-character.” The report further explained that consistent with the DTRN guidelines the project had been designed to provide a transition area from Downtown to the Old East Neighborhood and to remain in scale with the adjacent area through use, in part, of stepped-back upper stories to concentrate building mass away from the nearby residential properties.

The city council approved the project finding it conformed with the general plan and the specific plan. Petitioner filed suit challenging the approval on the basis that the project failed to meet requirements for an SCEA assessment and that the project was inconsistent with applicable planning guidelines.

The trial court granted the petition in part reasoning that the project did not meet the general plan’s “fundamental policy” that it be a transition property. The city appealed and petitioner cross-appealed.

Court of Appeal’s Decision

On appeal, the city argued that the trial court failed to afford the appropriate deference to the city’s consistency determination. The appellate court agreed. Articulating the applicable standard of review, the court explained that a general plan consistency determination will only be reversed if it is unreasonable based on all the evidence in the record. It further noted that the city is uniquely competent to interpret adopted planning policies and the reviewing court’s role is only to decide whether the city considered the applicable policies and the extent to which the project conforms with those policies.

Applying the correct standard of review, the court found substantial evidence supported the city’s finding that the project serves as a “transition.” The court noted that the applicable planning documents did not provide a formula for determining what constitutes a “transition.” The determination instead rests on subjective criteria, e.g., “architectural fit” and “appropriate scale and character.” The court rejected petitioner’s arguments that the project could not be a transition between Downtown and Old East Davis because it was the largest building in the area, noting that nothing in the planning documents compels such a conclusion. Accordingly, the court held that the trial court erred in applying a formulistic approach that discounted the step-back design, the SCEA analysis, and other factors relied on by the city.

Petitioner also argued that the project violated DTRN guideline language stating that “a building shall appear to be in scale with traditional single-family houses along the street front” — asserting that the use of the word “shall” makes this language mandatory. The court disagreed. The DTRN guidelines explained that, unlike standards, which use unequivocal language to prescribe minimum acceptable limits, guidelines are descriptive statements that illustrate a preferred course of action. Given this, the court held that the DTRN guideline language was “decidedly subjective.” Even if the language could be deemed mandatory, the court found that the city’s conclusion that the scale of the project was consistent with the DTRN guidelines was reasonable based on the evidence in the record.

Petitioner’s cross-appeal raised three issues with the SCEA that were raised in the trial court, but the judgment did not address. Petitioner argued 1) the SCEA failed to adequately analyze historic resources impacts to the Old East Davis conservation district; 2) the SCEA failed to analyze changes to the project that would be necessary if a lease on part of the project site were not renewed; and 3) the SCEA failed to adequately analyze potential hazardous material impacts associated with the historic railroad use of the site.

The Court of Appeal concluded that petitioner had forfeited its claims because it did not challenge the trial court’s tentative decision, and, in any case, found Petitioner’s claims to be without merit. First, the court found that SCEA concluded that the Old East Davis conservation district was not a historic resource. Second, the SCEA did analyze the potential loss of the lease, and the project approvals allowed for that contingency. Third, the SCEA analyzed the potential for discovering hazardous materials and concluded that any impacts would be addressed through standard regulatory conditions.

Lastly, petitioner argued that the project did not meet the requirements for relying on a SCEA because of potential impacts to historic resources and that the city’s findings under Public Resources Code, section 21155.2, were not supported by substantial evidence. The court rejected these arguments, concluding that petitioner relied on the wrong statutory provision in claiming the project did not qualify for a SCEA and failed to raise its challenge to the City’s findings in its opening brief.

– Nina Berglund

FOURTH DISTRICT HOLDS CITY OF PALM SPRINGS’ SHORT-TERM RENTAL ORDINANCE IS CONSISTENT WITH ZONING CODE

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The Fourth District Court of Appeal in Protect Our Neighborhoods v. City of Palm Springs (Jan. 7, 2022) 73 Cal.App.5th 667 (part. pub.), upheld the City of Palm Springs’ ordinance authorizing short-term rentals in residential zones as consistent with the City’s Zoning Code.

Factual Background

The 2008 Short-Term Rental Ordinance

The City of Palm Springs’ Zoning Code authorizes two uses in a single-family residential (R-1) zone without a permit: (1) a “permanent single-family dwelling”; and (2) uses “customarily incident to the permitted uses when located on the same lot therewith.” All other uses not expressly permitted are prohibited, and the Planning Commission shall not permit commercial uses in such zones.

As a popular vacation destination, the City has expressly allowed for short-term rentals of single-family dwellings since 2008. The corresponding ordinance initially applied to rentals for 28 days or less and limited occupancy based on the number of bedrooms. Rental owners were required to register the property with the City and use “reasonably prudent business practices” to ensure that renters and their guests did not create unreasonable disturbances or engage in disorderly conduct.

The 2016–2017 Ordinance Amendments

In 2016, the City amended the short-term rental ordinance to authorize short-term rentals of single-family residences and duplexes, but not apartments. The City adopted subsequent amendments in 2017, which barred ownership of more than one vacation rental, limited rentals to 36 per year, and added new provisions for “estate homes” (5+ bedrooms) and “homesharing.” The 2017 amendments also included findings that—when taken together—confirmed vacation rentals are permitted in R-1 zones as “ancillary and secondary uses of residential properties.”

Procedural Background

Protect Our Neighborhoods, an organization of homeowners opposed to vacation rentals, filed a petition for writ of mandate alleging the 2017 amendments violated the City’s Zoning Code, General Plan, and CEQA. The trial court denied the petition. Protect Our Neighborhoods appealed on the zoning code claims, but did not appeal the trial court’s ruling on the CEQA or General Plan claims.

The Court of Appeal’s Opinion

On appeal, petitioners alleged short-term rentals violated the zoning code because they are “commercial,” not “residential” uses, and improperly change the character of the R-1 Zone. Petitioners also contended that, if the zoning code permits short-term rentals at all, it only does so on the condition that an owner obtain a land use or conditional use permit.

Conflict With the Zoning Code

Effect of a Conflict

The Court of Appeal rejected petitioners’ contention that the ordinance conflicted with the zoning code. Petitioners treated the code as some kind of “higher law” that invalidated any subsequent conflicting law, even though the zoning code and ordinance are “coequal parts of the Municipal Code.” The court thus reasoned that, to the extent they conflicted with one another, “the most recently enacted statute expressed the will of the Legislature.” Therefore, even if the ordinance and zoning code could not be reconciled, the ordinance would remain valid because the City’s findings evinced its intent to repeal any inconsistent provision of the zoning code.

Existence of a Conflict

The court also rejected petitioners’ claim that vacation rentals constituted “commercial uses” that were barred in R-1 residential zones. The court noted that R-1 zones expressly permit any use that is “customarily incident to” the use of a “permanent single-family dwelling.” A “dwelling” includes “a building or portion thereof designed exclusively for residential occupancy…” Here, the ordinance plainly states that “vacation rentals are an ‘ancillary and secondary use of residential property…’” Petitioners failed to establish that this interpretation was erroneous.

Petitioners also failed to establish how short-term vacation rentals fell within the definition of a “commercial use.” The zoning code meaningfully distinguishes between commercial stays, and the City could reasonably conclude that the short-term rental of a single-family dwelling has different impacts than the short-term rental of a 20, 50, or 100-unit motel. That vacation rentals will impermissibly change the character of the R-1 zone is equally unavailing. Petitioners mistakenly cited to the “business regulations” provision of the code’s “home occupations” chapter, which does not apply to short-term rentals. Nevertheless, even if rentals did affect nearby single-family residents, allowing them was a legislative judgment left up to the City.

The Ordinance’s Findings

Petitioners claimed the ordinance’s supportive findings were internally inconsistent because they impliedly permitted an owner to acquire property and exclusively use it as a short-term rental without ever living in it. The court observed that a property can be “residential,” even if it is vacant. The code defines “dwelling” based on whether the building is designed exclusively for residential occupancy, not whether the building is actually occupied. The building is then limited to use as a single-family residence or uses customarily incident thereto, such as vacation rentals.

Need for a Discretionary Permit

Finally, petitioners argued short-term rentals in R-1 zones required issuance of a discretionary permit. Though the zoning code only requires permits for large day cares, model homes, temporary onsite trailers in conjunction with sale of subdivision lots, accessory apartments, churches, schools, and golf courses in R-1 zones, petitioners argued that vacation rentals have greater impacts than those uses. The court rejected this by observing that the zoning code does not require permits for “similar uses” with “similar impacts.” Rather, uses customarily incident to uses as a single-family dwelling—i.e., vacation rentals—are allowed without a permit.

– Bridget McDonald

FIRST DISTRICT UPHOLDS STATE WATER RESOURCES CONTROL BOARD’S RELIANCE ON CEQA’s MINISTERIAL EXEMPTION FOR REGISTRATION OF APPROPRIATION OF WATER FOR DOMESTIC USE UNDER THE WATER RIGHTS PERMITTING REFORM ACT

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In Mission Peak v. State Water Resources Control Board (2021) 72 Cal.App.5th 873, the First District Court of Appeal held that the State Water Resources Control Board’s (Board’s) registration process is ministerial and therefore exempt from CEQA.

Background

The Water Rights Permitting Reform Act of 1988 permits eligible persons to acquire a right to appropriate up to 10 acre-feet per year of  water for domestic or other specified uses by completing a registration process with the Board. Pursuant to this Act, the State Water Resources Control Board granted a small domestic use registration to two Alameda County property owners without conducting environmental review on the premise that the action was ministerial and thereby did not trigger CEQA.

Mission Peak Conservancy and Kelly Abreau (collectively, Mission Peak) sued the Board, alleging that it violated CEQA by approving the registration without conducting CEQA review. Mission Peak contended that the Board’s approval was discretionary and that it should have denied the registration because the property owners did not qualify for small domestic use and also because their registration form contained false information. The Board filed a demurrer, which the trial court sustained without leave to amend. Mission Peak appealed.

Court of Appeal’s Decision

The Court of Appeal determined that the Board’s registration process was indeed a ministerial act, not discretionary, and was therefore exempt from CEQA pursuant to Public Resources Code section 21080, subdivision (b)(1). As the court explained, “[m]inisterial projects involve ‘little or no personal judgment by the public official as to the wisdom or manner of carrying out the project.’ (Guidelines, § 15369.) . . . The test is whether the law governing the agency’s decision to approve the project gives it authority to require changes that would lessen the project’s environmental effects.”

The court determined the Board did not have such authority here. Although the Board has statutory authority to impose general conditions applicable to all registrations, it did not have authority “to place conditions on the . . . registration to lessen its environmental effects.” The Board determines whether a registration is compliant by applying a checklist of fixed criteria, and the registration is automatically deemed complete if it meets these criteria. Accordingly, there is no discretion involved in the registration, and it is therefore not subject to CEQA.

Specifically, the Court rejected Mission Peak’s argument that “a different agency, the Department of Fish and Wildlife, has discretion to impose conditions that could ameliorate the project’s environmental impacts” and therefore the the process is discretionary. Not so. As the court explained, another agency’s discretionary authority for its review cannot be imputed to the Board. Mission Peak then argued that “the project did not satisfy the requirements for a small domestic use registration because the [applicant] misrepresented facts,” and thereby the Board did have discretion in that it could deny the project or request changes to meet program requirements. But, “the test is whether the Board had the legal authority to impose environmentally beneficial changes as conditions of the project,” not whether the agency could request changes on an application or deny it.  Lastly, Mission Peak argued that the Board violated CEQA because the project did not meet program requirements. The court pointed out that “this is simply an argument that the Board made an erroneous ministerial decisions.” And such an error is not the basis for a CEQA claim. Plainly stated, “CEQA does not regulate ministerial decisions—full stop.”

– Veronika S. Morrison

SIXTH DISTRICT HOLDS COASTAL COMMISSION VIOLATED CEQA BY FAILING TO COMPLETE ENVIRONMENTAL REVIEW OF COASTAL DEVELOPMENT PERMIT PRIOR TO PROJECT APPROVAL

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In Friends, Artists, and Neighbors of Elkhorn Slough v. California Coastal Commission (2021) 72 Cal.App.5th 666, the Sixth District Court of Appeal held that the California Coastal Commission (CCC) violated CEQA by analyzing a coastal development permit’s environmental impacts and adopting findings in support thereof after it had approved the permit and underlying project. Although the CCC is authorized to issue “revised findings” when the Commission’s action differs from what was proposed in the staff report, the court held that the revised findings in this case went too far and were an improper pot-hoc rationalization.

Background

In 2000, Real Party in Interest Heritage/Western Communities, Ltd., applied to the County of Monterey for a combined development permit and coastal development permit (CDP) for the Rancho Los robles Subdivision. The project proposed more than 100 residential units on a commercial parcel. Monterey County prepared an EIR containing several alternatives, including one with a reduced number of units.

In 2008, the County Planning Commission recommended denying the project due to water supply and traffic congestion issues. Heritage/Western appealed the denial to the County Board of Supervisors. The Board disagreed with the Planning Commission and approved the project. The Board also certified the EIR and adopted a statement of overriding considerations regarding significant and avoidable impacts to traffic, groundwater, and seawater intrusion.

In 2009, Friends, Artists, and Neighbors of Elkhorn Slough (FANS) appealed the Board’s decision to the CCC, alongside two Coastal Commissioners. CCC staff issued a staff report recommending denial of the CDP primarily due to lack of adequate water supply. The staff report concluded further analysis for certain issues was unwarranted in light of staff’s recommendation to deny the permit.

On November 8, 2017, the CCC held a de novo hearing and voted to approve the CDP, despite staff recommending denial.

In August 2018, CCC staff issued a subsequent report, containing revised findings in support of the CCC’s approval of the CDP. The 2018 report concluded that water supply was no longer an issue that necessitated denying the project. The 2018 staff report also considered other impacts previously identified in the 2017 report and determined they were no longer relevant or significant, and that staff’s prior conditions of approval would still apply to the project but be adjusted where necessary and implemented in a manner consistent with the project as approved by the Commission. Finally, the report concluded that the project was consistent with CEQA because it adequately addressed any potential adverse impacts to coastal resources, and there were no additional feasible alternatives or mitigation measures that would substantially lessen adverse impacts. The CCC approved the revised findings at a public hearing on September 13, 2018, approximately ten months after the CDP was approved.

FANS filed a petition for writ of mandate challenging the CCC’s approval of the CDP. The trial court denied the petition, rejecting FANS’ assertion that the CCC violated CEQA by approving the project without conducting environmental review before making findings. FANS appealed.

Court of Appeal’s Decision

On appeal, FANS asserted that the CCC failed to employ the proper procedures required by CEQA and the Coastal Act because its “revised findings” were a post-hoc rationalization for the CCC’s prior decision to approve the project and went beyond what was permitted by the CCC’s regulations. The Court of Appeal agreed and reversed the trial court.

The Court of Appeal outlined the steps for seeking CCC review of an approved CDP application and noted that the Commission’s de novo review of a permit application mimics CEQA’s environmental review process. The analysis and recommendation in a staff report must be accompanied by specific findings regarding—among other factors—the project’s conformity with the Coastal Act and CEQA. If the CCC’s action on the project substantially differs from staff’s recommendation, the prevailing Commissioners must separately state the basis to allow staff to prepare a revised staff report with proposed revised findings that reflect the action taken by the Commissioners. Under section 13096 of the CCC’s regulations, a public hearing must be held before the revised findings are adopted. (Cal. Code Regs., tit. 13, § 13096, subd. (c).) After the hearing, the CCC must vote on whether to adopt the revised findings.

Based on the facts of the case, the court held that the CCC’s environmental review for the CDP was incomplete at the time of approval, and the revised finding did not make up for the shortcoming. The court determined that the CCC’s decision to approve the project relied on a staff report that failed to contain elements required by CEQA (and the Commission’s certified regulatory program), including project alternatives, feasible mitigation measures to substantially lessen significant adverse effects, and conditions of approval.

In reaching its conclusion, the court explained the importance of these factors: “Requiring specific findings about alternatives and mitigation measures ‘ensures there is evidence of the public agency’s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision.’ [Citation.]” (Opinion, p. 32.) Through this lens, the court clarified that section 13096 “requires commissioners to set forth the analytic route between the evidence and the action at the hearing before approval.” The court further observed that no prior case law involved facts similar to this one, where the CCC’s environmental analysis was this incomplete at the time a CDP was approved. Accordingly, the court found that the CCC abused its discretion because it was required to conduct the analysis before it approved the project.

– Bridget McDonald

FOURTH DISTRICT UPHOLDS EIR FOR ROADWAY CONNECTION PROJECT AND HOLDS CITY’S QUASI-LEGISLATIVE APPROVALS WERE NOT SUBJECT TO PROCEDURAL DUE PROCESS REQUIREMENTS

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In Save Civita Because Sudberry Won’t v. City of San Diego (2021) 72 Cal.App.5th 957, a partially published opinion, the Fourth District Court of Appeal held that the City of San Diego did not violate CEQA by failing to summarize revisions made in its recirculated draft EIR, and that the City’s certification of the Final EIR and approval of the project were quasi-legislative acts not subject to procedural due process requirements.

Background

In 2008, as part of an alternative to a proposed mixed-use development project, the City of San Diego proposed a four-lane major roadway in Mission Valley that would directly connect the development to local roadways. This connector roadway required an amendment to the Serra Mesa Community Plan (SMCP) and the City’s General Plan.

In April 2016, the City issued examined this connector roadway as its own project and prepared a programmatic draft EIR (PDEIR) for the SMCP and General Plan amendments. In March 2017, when roadway construction became foreseeable and upon a large volume of public comment, the City issued a revised and recirculated draft EIR (RE-DEIR) that looked at both the programmatic portion of the project, the adoption of amendments, as well as the actual construction of the roadway. In August 2017, the City issued the Final EIR for the project. Also in August 2017, the Planning Commission voted unanimously, with one member recusing, to recommend approval of the project and certification of the FEIR, with the City Council’s Smart Growth & Land Use Committee voting the same a month later. The City Council certified the Final EIR and approved the project in October 2017.

Save Civita Because Sudberry Won’t (Save Civita) filed a petition for writ of mandate and complaint for declaratory and injunctive relief challenging the City’s certification of the Final EIR and approval of the project on several grounds, namely here that it violated the requirement in CEQA Guidelines section 15088.5, subdivision (g) that a recirculated EIR summarize the revisions made to the prior EIR, and also that it violated procedural due process rights. The trial court denied the petition and complaint. Save Civita appealed.

The Court of Appeal’s Decision

Save Civita argued that the City violated CEQA Guidelines section 15088.5, subdivision (g), because it failed to summarize the changes in the RE-DEIR from the PDEIR, thereby forcing readers to “‘leaf through thousands of pages,’” and cause them “‘to have the mistaken belief’” that the two EIRs address the same project. The Court of Appeal disagreed, holding that statements in the RE-DEIR adequately summarized the changes to the PDEIR, and that these summary provisions informed the public that the revisions to the PDEIR were extensive and the PDEIR had been effectively “replaced” by the RE-DEIR. To make its determination, the court also looked to section 15088.5, subdivision (f), which requires that an agency inform the public that, when an EIR is so substantially revised that the document is recirculated, then comments on the prior EIR will not receive a response. The City fulfilled this criteria.

Furthermore, the court concluded that even if the City had failed to comply with the summation requirements of section 15088.5, any such failure was not prejudicial because it did not deprive the public of a meaningful opportunity to discuss and critique the project. Specifically, the court noted that the administrative record contained “ample and vigorous” public discussion of the RE-DEIR, proof that there were not fatal obstacles to public discourse created by any absence of a revision summary.

Save Civita also argued that the City’s certification of the Final EIR and project approval violated the public’s procedural right to due process and a fair hearing because a member of the City Council, who voted to approve the project was, according to Save Civita, “‘a cheerleader for the Project’” who had predetermined his vote. The court foreclosed this claim by explaining that procedural due process requirements are applicable only to quasi-adjudicatory hearings. Here, the City’s actions were quasi-legislative because they involved the adoption of generally applicable rules on the basis of broad public policy. The project approved by the City and analyzed in its EIR—construction of the roadway and amendment of planning documents—were, as the court determined, matters of public policy that required it to assess a broad spectrum of community costs and benefits. Therefore, procedural due process did not apply.

– Veronika S. Morrison

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