News & Updates

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

Changes to State Clearinghouse Document Submission Process (AB 819) Effective January 1, 2022

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On January 1, 2022, Assembly Bill (AB) 819 (Levine, 2021), signed into law on July 16, 2021, takes effect and changes several CEQA communication, noticing, and filing requirements. Most notably, Public Resources Code section 21082.1(c)(4) now requires electronic submissions of draft environmental documents to the State Clearinghouse for all projects subject to CEQA review, regardless of whether the agency is a lead, responsible, or trustee agency or if the project is of sufficient statewide, regional, or areawide environmental significance. Documents include environmental impact reports (EIRs), negative declarations (NDs), and mitigated negative declarations (MNDs).

Other notable changes:

  • Public Resources Code section 21092.2(d) requires that all lead agencies post CEQA-related notices on their websites, “if any.”
  • Public Resources Code section 21092.3 requires notices of preparation (NOPs) and notices of availability for review (NOAs) to be posted on the county clerk’s website.
  • Public Resources Code section 21108(d) now requires electronic filing of all notices of determination (NODs) and notices of exemption (NOEs) with the State Clearinghouse for which the lead agency is a state agency.
  • Public Resources Code section 21161 requires all notices of completion (NOCs) to be filed electronically with the State Clearinghouse; mailed copes are no longer required.

All document submitters must be registered in OPR’s “CEQA Submit” to upload and submit documents and notices. For instructions on how to register and electronically submit documents, visit: http://opr.ca.gov/sch/document-submission.html.

For the State’s technical advisory on AB 819, visit: http://opr.ca.gov/sch/docs/20211202-Submitting_CEQA_Docs_to_the_SCH_Under_AB_819.pdf.

Upcoming Speaking and Teaching Engagements

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On November 18, 2021, Tiffany Wright will be a guest lecturer for the UCLA Annual CEQA Update (virtual course). This intensive one-day seminar features the latest legislative amendments, proposed revisions to the CEQA Guidelines, court decisions handed down in the past year, and key issues and trends in CEQA practice. Also joining the seminar will be the Honorable Ronald B. Robie, Associate Justice for the Third District Court of Appeal, to discuss CEQA from a Justice’s perspective and to participate in the Q & A.

For more information and to register, please visit UCLA Extension’s website HERE.

Upcoming Speaking and Teaching Engagements

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On October 1, 2021, Whit Manley and Chip Wilkins will serve as panelists for a CEQA conference presented by LSI International. Whit will summarize recent legislation re-authorizing streamlined judicial review for “environmental leadership development projects,” renewable energy projects, and housing projects certified by the Governor as meeting certain requirements. Chip will present the annual CEQA case law review, discussing key cases and trends.

On October 4 and 5, 2021, Whit Manley will serve as a panelist for a two-day conference sponsored by the California Judicial Council. The conference will provide an overview of CEQA to California Justices, Judges, and court staff.

UPCOMING SPEAKING AND TEACHING ENGAGEMENTS

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On February 26, 2021, Whit Manley will serve as a panelist at a webinar sponsored by the California Judicial Council addressing recent developments in CEQA. The Webinar is available to California Justices, Judges, and court staff, and is designed to keep the judiciary abreast of important recent CEQA case law.

Upcoming Speaking and Teaching Engagements

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On December 8, 2020, Jim Moose will be presenting a discussion on 2020 CEQA case law at the 16th Annual (Virtual) CEQA Conference put on by CLE International.

On February 26, 2021, Whit Manley will participate in a webinar sponsored by the California Center for Judicial Education and Research (CJER). The webinar will focus on recent developments in the California Environmental Quality Act. The webinar is available to Justices, Judges, research attorneys, and other members of the California judicial branch who are involved in cases involving CEQA claims.

RMM Attorneys Named Top Attorneys for Environmental Law and Environmental Litigation

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RMM is full of super attorneys! Jim Moose, Tiffany Wright, Andrea Leisy, Sabrina Teller, and Chip Wilkins, along with Whit Manley, of counsel, and Senior Associate Laura Harris, have been named as Super Lawyers in 2020 by Super Lawyers Magazine. Partner Chris Stiles and Associate Nathan George were selected as Rising Stars. Several of our attorneys are fortunate enough to be officially recognized, but all are highly valued at RMM for their hard work and expertise.

EPA Releases Navigable Waters Protection Rule that Redefines Waters of the U.S.

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On January 23, 2020, the U.S. Environmental Protection Agency (EPA) released its Navigable Waters Protection Rule to replace the 2015 Clean Water Rule, promulgated by the Obama administration and repealed by the current administration in 2019. The new rule purports to clarify federal regulation of waters within the U.S. by differentiating “waters of the U.S.,” which are subject to federal jurisdiction under the Clean Water Act, and non-jurisdictional waters. It identifies four categories of protected waters—the territorial seas and traditional navigable waters; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands that are adjacent to jurisdictional waters. The new rule also identifies waters not subject to federal control, including groundwater; ephemeral features; ditches; prior converted cropland; farm and stock watering ponds; waste treatment systems; and rainfall collection features.

The new rule is moored to late Justice Antonin Scalia’s plurality opinion in the landmark Supreme Court case Rapanos v. United States, 547 U.S. 715 (2006), that offers a more restrictive view of jurisdictional waters. Justice Anthony Kennedy’s concurrence in the same case offers a more expansive view and spawned what became known and implemented as the “significant nexus” test—which placed all waters that bear a significant nexus to traditional navigable waterways within federal jurisdiction. For nearly a decade, Kennedy’s significant nexus test, imprecise as it may be, supplemented the 1986 U.S. Army Corps of Engineers (USACE) definition of jurisdiction waters in a majority of regions—later serving as the basis for the 2015 Rule.

Implications of the new Trump administration rule vary state by state but mark a clear reduction in federal protection for waters that were formerly classified as jurisdictional, notably wetlands and ephemeral waterways. California is especially affected because of its unique climate and abundance of wetlands and seasonal streams. A primary stated goal of the current administration with the Navigable Waters Protection Rule was to increase state responsibility for managing their waters, which is the exact outcome in California where the State Water Board will soon regulate what are referred to as “Waters of the State.” This new regulatory program becomes effective on May 28, 2020, and closely tracks the 2015 rule in terms of protection and coverage.

The Navigable Waters Protection Rule arrives on the heels of nearly 620,000 public comments on its proposal, fewer than the over one million received on the 2015 rule’s proposal.  The rule will take effect 60 days after publication in the Federal Register, although a publication date has yet to be released. Until such time, the 1986 USACE definition prevails, along with any adopted Supreme Court clarifications. For Ninth Circuit territory, this means a return, if only temporary, to Kennedy’s “significant nexus” test.

Casey Shorrock

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