(2014) 226 Cal.App.4th 1572

The First District Court of Appeal determined that a petitioner’s lawsuit involving the removal of trees on a college campus was time-barred under CEQA’s statute of limitations. The case, which was filed June 17, 2014, shows the importance of filing timely CEQA lawsuits.

The controversy arose when the San Mateo Community College District removed and pruned more than 200 eucalyptus trees on the northern edge of the its campus. The district began removing trees on December 28, 2010. Citizens for a Green San Mateo petitioned the trial court for a writ of mandate on July 1, 2011, alleging that the district violated CEQA and was required to prepare an EIR to study the tree removal. The trial court found the challenge timely and granted the petition, finding the district violated CEQA. On appeal, the district argued the 30-day statute of limitations period established by Public Resources Code section 21167, subdivisions (b) or (e) applied to bar the CEQA lawsuit because the district filed a Notice of Determination. The NOD described the mitigated negative declaration prepared by the district when it approved an overall community college expansion project in 2007. The negative declaration determined that the proposed project would result in the removal and pruning of an unknown number of trees, but that tree plantings would mitigate any unavoidable tree removal, resulting in a less than significant impact.

The appellate court rejected the petitioner’s claim that the tree removal was “materially different” from the activities discussed in the mitigated negative declaration and subsequent NOD. The court emphasized that the term “project,” for the purposes of CEQA, does not mean each separate governmental approval that may ultimately be required to complete the proposed action. The court concluded that the record demonstrated the tree removal was a subsequent activity encompassed within the scope of the overall expansion project. Since the district filed an NOD recording its approval of the expansion project, and the public was on notice that trees could be removed anywhere on campus as a result of expansion project, the 30-day statute of limitations established by section 21167, subdivisions (b) and (e) applied to bar the lawsuit.

The court went on to determine that even if the 180-day limitations period, which applies when no NOD is filed, applied to this case, the suit was still time-barred because the district committed to the tree removal at a public meeting November 17, 2010, and the petitioner did not file for a writ with the trial court until July 1, 2011. The appellate court emphasized that section 21167, subdivision (a), does not require any special notice requirement to start the 180-day clock; all that is required is a formal decision by a public agency to carry out or approve the project. Therefore, the petition was time-barred, even assuming the tree removal was not described in the mitigated negative declaration certified for the campus expansion project.

(RMM attorneys James G. Moose, Sabrina V. Teller and John T. Wheat represented the San Mateo Community College District.)

(2013) 221 Cal.App.4th 316

The Third District Court of Appeal held that Nevada County did not need to recirculate a draft EIR after a new “potentially feasible” alternative was proposed following circulation of the draft document. In this case, which involved a proposed shopping center, the county planning commission endorsed a staff-recommended alternative that emerged after the county published the final EIR. The petitioner argued that the county should have prepared and recirculated a revised draft EIR adding the alternative proposal. The court disagreed. According to the court, the duty to recirculate arises only if the information is “significant new information,” and the agency’s determination whether the new information is “significant” will be upheld if supported by substantial evidence.

The opinion provides helpful guidance on when the need for recirculation is triggered by a new “potentially feasible” alternative that is proposed after the draft EIR has been circulated. The decision carefully explains the burden of proof and the elements of proof for a challenge brought under CEQA Guidelines section 15088.5, subdivision (a)(3). In essence, a petitioner has the burden to demonstrate that no substantial evidence supported the agency’s decision not to recirculate the EIR. To demonstrate an abuse of discretion, a petitioner must show that no substantial evidence supports any of the following express or implied “negative findings” by a CEQA lead agency: The alternative was not actually feasible; the alternative was not “considerably different from” alternatives already analyzed in the EIR; and the alternative would not “clearly lessen the significant environmental impacts” of the project as approved.

Here, the court concluded that the petitioner did not meet its burden to show that the staff alternative was considerably different from those already analyzed in the EIR. The EIR looked at four alternatives. Staff’s recommendation provided more open space than any of these alternatives, but that in itself was not enough to show that it was considerably different from those already analyzed in the EIR. Nor did the petitioner explain how the staff alternative would clearly lessen the significant impacts of the project.

The petitioner also argued the county violated CEQA by failing to adopt findings regarding the feasibility of the staff alternative. According to the petitioner, once the planning commission found the staff alternative sufficiently feasible to recommend approval of the alternative to the board, the board had to either adopt the staff alternative or make findings setting forth the reasons why the staff alternative was not feasible. Again, the court disagreed. The petitioner did not argue, and thus conceded, that the draft EIR analyzed a reasonable range of alternatives. Under such circumstances, the board was not required to make an express finding of feasibility as to an alternative that emerged after publication of the EIR.

Finally, the petitioner argued the county violated CEQA by relying on future, unapproved traffic improvements to conclude the project’s traffic impacts would be insignificant. The road in question – Combie Road – was projected to operate at LOS F under its existing designation as a “major collector.” The county’s traffic study determined that the road actually functioned as a “minor arterial” because it served as a thoroughfare through the area. Under this alternative functional designation, LOS was adequate. The court ruled the county acted within its discretion in focusing on how the road actually functioned, rather than based on its formal designation. The record showed the county planned to widen Combie Road, and that the project was fully funded, lending further support to the county’s decision to evaluate the road as a “minor arterial.” Because the analysis focused on the functioning of the road, rather than on future traffic improvements, the county was not obliged to condition the project on the future expansion of the roadway.

(RMM attorneys James G. Moose, Tiffany K. Wright and Laura M. Harris represented the real party in interest and respondent, KKP Lake of the Pines, LLC.)

(2013) 57 Cal.4th 439

A majority of the California Supreme Court held that a lead agency only has the discretion to completely omit analysis of the project impacts on existing conditions if it can justify its decision to exclusively use a future conditions baseline by showing an existing conditions analysis would be misleading or without informational value. On this basis, the majority found a light-rail project’s EIR deficient for exclusively using year-2030 conditions as the baseline and for failing to provide an existing conditions analysis. Although the lead opinion by Justice Werdeger and the concurrence by Justice Baxter provided different rationales for upholding the EIR, the six justices joining in these two opinions did agree to affirm the appellate court’s judgment that upheld the EIR and denied the petition for writ of mandate.

Facts and Procedural Background

In 2007, the Exposition Metro Line Construction Authority (Expo Authority) issued a notice of preparation for an EIR for the Exposition Corridor Transit Project (Expo Phase 2), which would construct a light-rail transit line running from a station in Culver City to a terminus in Santa Monica. The Expo Phase 2 project was designed to provide high-capacity transit service between the Westside area of Los Angeles and Santa Monica, creating an alternative to the area’s congested roadways. The Expo Authority certified a final EIR and approved the Expo Phase 2 project in 2010.

Subsequently, Neighbors for Smart Rail filed a petition for writ of mandate alleging that the approval of Expo Phase 2 violated CEQA. The superior court denied the petition, and the Court of Appeal affirmed. The Neighbors filed a petition for review with the California Supreme Court, raising two issues: (1) the propriety of the EIR’s exclusive use of a future conditions baseline for assessment of likely impacts on traffic congestion and air quality, and (2) the adequacy of mitigation measures for potentially significant spillover parking effects in areas near planned transit stations.

California Supreme Court’s Decision

The Court issued one lead opinion and two concurring and dissenting opinions. Justice Werdeger, joined by Justices Kennard and Corrigan, wrote the Court’s lead opinion. Justice Baxter, joined by Chief Justice Cantil-Sakauye and Justice Chin, wrote a concurrence and dissent that differed from the lead opinion on the baseline issue. Justice Liu wrote a separate concurrence and dissent that differed from the lead opinion on the question of whether the EIR’s failure to use existing conditions as the baseline was prejudicial. All justices agreed that the Neighbors’ contentions regarding mitigation for spillover parking effects should be rejected. Otherwise, the Court split along different lines on both the baseline and prejudice analyses. Nonetheless, there was a majority of four justices on every issue except the prejudice question, and six justices agreed the EIR should be upheld.

Justice Werdeger’s lead opinion tackled the baseline issue first. In an overview of leading CEQA cases that discuss the use of a future conditions baseline, the lead opinion paid special attention to Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, and Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351. Expressing the majority’s view, the lead opinion concluded that unusual aspects of a project or surrounding conditions can justify a departure from the “default” use of an existing conditions baseline that CEQA Guidelines section 15125, subdivision (a), prescribes. In other words, the Court held that while lead agencies have the discretion to “omit an analysis of the project’s significant impacts on existing environmental conditions and substitute a baseline consisting of environmental conditions projected to exist in the future, the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value.” The Court explicitly disapproved Sunnyvale West Neighborhood Association, supra, 190 Cal.App.4th 1351, and Madera Oversight Coalition v. County of Madera (2011) 199 Cal.App.4th 48, insofar as they hold the exclusive use of a future conditions baseline may never be employed.

Having established the appropriate standard for analyzing the baseline issue, the Court proceeded to conduct a factual assessment of the Expo Authority’s use of projected conditions in the year 2030 as a baseline. After a brief review of the EIR’s discussion of traffic congestion, air pollution, and baseline choice, the Court found that the administrative record did not contain substantial evidence to support the Expo Authority’s decision to omit an analysis of project impacts on existing conditions. This conclusion was joined by Justice Liu and represents the majority view.

Nonetheless, the three justices in the lead opinion proceeded to find that the EIR’s failure to use an existing conditions baseline did not have a prejudicial effect and did not deprive decision makers or the public of substantial information relevant to the project’s potential impacts. In part II.B.5, the lead opinion provides its prejudice analysis and explains how the EIR’s extensive analysis of year 2030 project impacts demonstrated “the lack of grounds to suppose the same analysis performed against existing . . . conditions would have produced any substantially different information.” But Justice Werdeger’s opinion is carefully worded to limit the lead opinion’s conclusion– that the EIR’s failure to analyze the project’s effects on existing traffic and air quality conditions had no prejudicial effect– to “these particular factual circumstances.” As footnote 2 explains, the prejudice analysis in part II.B.5 does not represent the view of the majority. In fact, Justice Liu based his dissent on the prejudice issue, and Justice Baxter’s concurrence brings up Justice Werdegar’s prejudice analysis only to support the assertion that the EIR’s assessment of Expo Phase 2′s impacts did adequately inform decision makers and the public.

The lead opinion closes with a short discussion of the adequacy of mitigation measures for spillover parking effects. The Expo Authority and Metropolitan Transportation Authority (Metro) had adopted a series of measures proposed by the EIR, including: monitoring of on-street parking, Metro’s financial and administrative assistance with appropriate permit parking programs, and Metro’s commitment to work with local jurisdictions to decide on other options (time-restricted, metered, or shared parking arrangements) if necessary. The Court rejected Neighbors’ reliance on Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-62, finding that case to be factually distinguishable. While acknowledging that the Expo Authority and Metro “cannot guarantee local governments will cooperate to implement permit parking programs or other parking restrictions,” the Court found that the record supported the conclusion that local municipalities can and should cooperate. This portion of the opinion is the only part that enjoys the support of all seven justices.

Justice Baxter’s concurring and dissenting opinion disagreed with the lead opinion’s baseline analysis. Rejecting the new standard articulated by the majority, Baxter’s opinion proposed a new rule in which “an agency retains discretion to omit an analysis of a project’s likely impacts with an existing conditions baseline, so long as the selected alternative of a projected future conditions baseline is supported by substantial evidence and results in a realistic impacts analysis that allows for informed decisionmaking and public participation.” Using this alternative rule, Baxter’s opinion concluded that the agency “did not abuse its discretion in forgoing an existing conditions baseline in favor of a 2030 baseline” because substantial evidence did support the 2030 baseline as a realistic baseline for analyzing the project’s impacts. According to Baxter’s opinion, the EIR should be upheld because it was not deficient and, therefore, there was no need to address the question of whether the alleged baseline error was prejudicial. Finally, Baxter’s opinion asserts two main criticisms of the majority’s analysis: (1) the majority’s restrictions are not supported by CEQA or CEQA Guidelines, (2) the majority’s analysis creates uncertainties regarding CEQA compliance, increasing project costs and delays.

[RMM Partner Tiffany K. Wright and Associate Amanda R. Berlin represented Real Parties in Interest Los Angeles County Metropolitan Transportation Authority]

(2013) 215 Cal.App.4th 25

On February 28, 2013, the Third Appellate District upheld the trial court’s sustainment of a demurrer filed by Bohemia Properties and joined by Placer County, finding that a petitioner’s petition for writ of mandate under CEQA was time barred under the statute of limitations set forth in Public Resources Code section 21167. The court held that Code of Civil Procedure section 473, subdivision (b), which provides relief from mistake or excusable neglect, did not apply.

On September 28, 2010, Placer County certified an EIR prepared by Bohemia for the development of a 155,000-square-foot commercial building. The county filed its notice of determination (NOD) for the project on September 29, 2010, triggering the 30-day statute of limitations set forth in Public Resources Code section 21167. Under this limitations period, the deadline to bring a challenge to the County’s approval of Bohemia’s EIR expired on October 29, 2010. Although counsel for Petitioner Alliance for the Protection of the Auburn Community Environment (Alliance) requested the petition be filed on October 29, 2010, the filing service arrived too late and did not file the petition until three days later on November 1, 2010. Based on these facts, Alliance argued that Code of Civil Procedure section 473 applies and the trial court should have overruled the demurrer.

The appellate court held that under the precedent set out in Maynard v. Brandon (2005) 36 Cal.4th 364, CCP section 473 only applied to procedural errors and not mandatory deadlines. Therefore, in order to extend a mandatory deadline, the court would need statutory authorization. The court noted that Public Resource Code section 21176 did not contain a “provision extending the limitations period on a showing of good cause.”

Additionally, the court believed that the legislative intent that CEQA lawsuits be resolved promptly would be defeated if section 473 were applied to CEQA deadlines. The court found persuasive the Second District Court of Appeal’s decision in Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961, 968, which states that because CEQA deadline violations are almost always caused by mistake or excusable neglect, “few dismissals would be final if mandatory relief under section 473 were applied.” [RMM Partners James Moose and Howard Wilkins represented real party in interest Bohemia Properties, LLC].

(2013) 213 Cal.App.4th 1277

In 2006, the Regents of the University of California adopted a 2005 Long Range Development Plan (LRDP) for UC Santa Cruz. The LRDP contemplated the development of the “north campus,” which was not within the City’s territorial boundaries or sphere of influence. The City and other parties brought a successful CEQA action against the Regents challenging the EIR for the LRDP, but following the judgment in the trial court, the parties to the litigation entered into a comprehensive settlement agreement in August 2008, specifying certain additional mitigation and cooperative steps between the parties to address water supply, housing and traffic impacts

In October 2008, the City applied to the Local Area Formation Commission (LAFCO) for a SOI amendment, and the Regents applied for provision of extraterritorial water and sewer services. The City prepared an EIR for the project of amending its SOI while the applications were pending before LAFCO.

Habitat and Watershed Caretakers (Habitat) challenged the City’s certification of the EIR. The trial court denied the petition, and Habitat appealed.

The Sixth District Court of Appeal reversed the trial court’s judgment in November 2012 on the grounds that the City failed to comply with CEQA with respect to the project objectives and alternatives analysis. The Court held the EIR mischaracterized the project’s objectives, concealing the project’s true “purpose,” and analyzed an inadequate range of alternatives because it failed to analyze “reduced-development” or “limited-water” alternatives under which UC Santa Cruz would limit its planned growth or the City would limit the additional water supplied to the campus for development.

The City and the Regents successfully petitioned for rehearing in December 2012. The court issued a modified opinion on February 19, 2013. The modified opinion found that the project objectives were adequate as eventually revised and stated in the final EIR. The court also held that the City should have analyzed a “limited-water” alternative, under which even if the City could not have approved a lesser amount of water to be supplied under the comprehensive settlement agreement, LAFCO, as an independet responsible agency relying on the EIR for a subsequent discretionary approval, could have conditioned or restricted the provision of water to serve new development in north campus pending further progress by the City in developing additional water supplies.

[RMM attorneys James G. Moose, Sabrina V. Teller, and Jeannie Lee represented the City in the administrative process and throughout the litigation.]

(2013) 216 Cal.App.4th 614

On May 21, 2013, the First District Court of Appeal upheld Marin Municipal Water District’s EIR for the Marin Desalination Plant, finding substantial evidence supported the District’s analyses of aesthetic impacts, seismology, biological resources, hydrology, and water quality impacts, and the decision not to recirculate the EIR. Additionally, the court approved of the mitigation plans proposed in the EIR for aesthetic impacts and biological resources and held that mitigation was not required for energy and greenhouse gas emissions because the EIR found that the impacts were less than significant.

In August 2003, the District proposed building a desalination plant in San Rafael. The final EIR included a new alternative, which discussed water conservation and diverting water from the Russian River as an alternative to desalination. The District certified the final EIR in February 2009 and approved the project in August 2009.  North Coast Rivers Alliance and others challenged the adequacy of the EIR under CEQA. In September 2011, the Marin County Superior Court ruled the analysis in the EIR was inadequate in several areas and that adding the new alternative to the EIR triggered recirculation.  The District appealed. The First Appellate District reversed the trial court, rejecting all of the petitioners’ claims.

Notably, the court held that the EIR adequately relied on as-yet undetermined landscaping plan to mitigate project’s visual impact from two large water tanks. The landscaping plan “would identify success metrics such as survival and growth rates for the plantings.” The Alliance argued, and the trial court had agreed, that the mitigation measure was improperly deferred and indefinite. But the Court of Appeal held that the mitigation measure was acceptable in this situation because the mitigation was known to be feasible and practical considerations prevented the District from establishing more specific standards early in the process.  The measure was sufficient because it committed the District to mitigation and set out a standard for the landscaping plan to follow: to reduce and soften the visual intrusion of the tanks.  Although the specific details of how mitigation would be achieved under the plan were deferred until the construction phase, the EIR gave adequate assurance that visual impacts would be mitigated by the selection and location of appropriate plantings.

[RMM Partner Whit Manley, Associate Chris Butcher of the Thomas Law Group, and District General Counsel Mary Casey represented the District.]

(2012) 54 Cal.4th 281

The California Supreme Court held that the requirement for exhaustion of administrative remedies found in Public Resources Code section 21177, subdivision (a) of the California Environmental Quality Act (CEQA) applies to an agency’s decision that a project is categorically exempt from compliance with CEQA, so long as the public agency gives notice of the grounds for its exemption determination, and that determination is preceded by a public hearing at which members of the public had the opportunity to raise objections to the project.

The petitioners had participated in Alameda County’s administrative process to challenge the approval of an 11-unit subdivision in the unincorporated portion of the County near Hayward. The County Board of Supervisors determined that the infill exemption found at CEQA Guidelines section 15332 applied and approved the project after hearing the petitioners’ appeal from the planning commission.

The Court did not reach the petitioners’ arguments that the public agency’s description of the requirements for the infill exemption was misleading, where the county omitted any mention of the infill exemption’s criterion requiring that the project be located “within city limits.” The county did not quote the full language of the exemption in any of its notices and staff reports. Instead, it summarized the criteria and substituted “in an established urban area” for the proper phrase “within city limits” in the exemption in all explanations of the exemption in project materials. Petitioners asserted that this substitution misled and prevented them from raising the specific issue of whether the “city limits” restriction disqualified the project from using the infill exemption. The Court also did not address the argument that the petitioner’s extensive objections to the project on multiple grounds at public hearings, including a dispute about the project site’s characterization as an “urban area”, were sufficient to satisfy the exhaustion requirement.

The Court remanded the case to the First District Court of Appeal to determine whether the claims the petitioners raised were adequate to put the County on notice that the infill exemption did not apply, and whether the County’s omission of key criteria for the exemption excused the petitioner’s failure to exhaust on the specific issue of the city limits criterion. [The petitioners were represented by RMM partner Sabrina V. Teller.]

(2012) 205 Cal.App.4th 195

The First Appellate District Court of Appeal affirmed dismissal of Salmon Protection & Watershed Network’s (SPAWN’s) complaint in intervention where the underlying tolling agreements were valid. Property owners SPAWN had challenged the adequacy of an EIR certified by Marin County in connection with a county-wide General Plan update implementing stream conservation policies. The trial court had sustained a demurrer to SPAWN’s complaint, which alleged that the group’s petition was untimely. 

Marin County had certified an EIR in connection with area-wide stream conservation policies. Thereafter, SPAWN entered into a series of tolling agreements that extended the limitation period for filing a complaint challenging the sufficiency of the EIR, during which time the parties were engaged in unsuccessful settlement negotiations. The Court held, against SPAWN’s arguments, that these tolling agreements were valid because the added time benefitted the County rather than SPAWN, and thus could be waived by the County. Because the tolling agreements were valid, the trial court had properly sustained demurrers to the complaint in intervention. [RMM Partner James G. Moose, Senior Counsel Jennifer S. Holman and Associate Jeannie Lee  represented the respondent County.]