Our Cases

Citizens for Open Government v. City of Lodi

(2012) 205 Cal.App.4th 296

The Third Appellate District upheld the trial court’s judgment discharging a writ after the City of Lodi demonstrated full compliance with CEQA for a revised, recirculated EIR prepared for a use permit to develop a 35-acre shopping center. In 2005, the trial court granted a petition for writ of mandate in a proceeding challenging the City’s environmental review (Lodi First I).  The city council rescinded approval of the project and decertified the original EIR. In 2007, the city circulated revisions to the EIR for public review and comment.  The city concluded some of the comments it had received on the revised draft EIR were beyond the scope of the revisions and barred by res judicata. The city declined to provide substantive responses to these comments. In 2009, the city council conditionally approved the project entitlements and adopted findings of fact and a statement of overriding considerations for the project.

In order to proceed with the project, the city filed a petition to discharge the writ in the original proceeding. As part of this process, the city lodged a supplemental administrative record. Petitioner groups Citizens for Open Government (COG) and Lodi First filed separate lawsuits challenging the final revised EIR. Both groups contended the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants.  COG filed a motion to augment the supplemental administrative record. The court granted the motion in part and denied the motion in part based on the attorney-client, attorney-work-product and deliberative process privileges. In 2010, following a hearing on the merits, the trial court granted the City’s request to discharge the 2005 writ in Lodi First I and deny the petitions challenging the revised EIR.

On appeal, Lodi First and COG argued the trial court erred in applying the deliberative process privilege to exclude some emails from the administrative record. Appellants also challenged the sufficiency of the revised EIR on numerous grounds and disputed the trial court’s ruling precluding them from challenging certain issues based on res judicata.

Under the deliberative process privilege, senior officials in government enjoy a qualified, limited privilege not to disclose certain materials or communications. These include the mental processes by which a given decision was reached and other discussions, deliberations, etc., by which government policy is processed and formulated. The deliberative process showing must be made by the one claiming the privilege. Not every deliberative process communication is protected by the privilege.  Instead, the privilege is implicated only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In the trial court, the city argued the deliberative process privilege applied because the city manager, city attorney, community development director, and other consultants engaged in various deliberative discussions and document exchanges concerning revisions to the EIR. The privilege was required, the city argued, “to foster candid dialogue and a testing and challenging of the approaches to be taken…” On appeal, Lodi First claimed this assertion was insufficient to support nondisclosure through the deliberative process privilege. The appellate court agreed, finding the city offered a correct statement of policy, but that invoking policy was not sufficient to explain the public’s specific interest in nondisclosure of the documents at issue. As a result, the city failed to carry its burden, and the trial court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.

While the trial court erred in excluding these documents, this error was not necessarily prejudicial. Under the standard for prejudicial error established by the California Constitution, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred.

Lodi First acknowledged it could not satisfy its burden to prove prejudice on appeal because it had not seen the documents that were erroneously withheld. Lodi First claimed the improper withholding of the documents itself was prejudicial because it was impossible for Lodi First to acquire them. The appellate court disagreed and noted Lodi First should have sought writ review of the trial court’s ruling on the motion to augment the administrative record. In addition, the appellate court, citing Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disagreed with Lodi First’s contention that the incomplete record itself was a prejudicial error requiring reversal regardless of the actual contents of the withheld documents.

The appellate court upheld the revised EIR’s discussion of alternatives and cumulative urban decay impacts, the city’s selection of a baseline for urban decay impacts, cumulative impacts to agriculture, and a 1:1 conservation easement mitigation ratio.

Lodi First also attempted to argue the revised EIR failed to disclose cumulative water supply impacts. The trial court held that res judicata barred Lodi Frist from raising this claim. The appellate court agreed.

Res Judicata (claim preclusion) bars relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them and that adjudication resulted in a final decision on the merits. In this case, a writ was issued in Lodi First I and was final on the merits.  The trial court granted Lodi First’s petition and held the 2005 EIR was inadequate under CEQA. The city chose not to appeal, and the ruling was final because the time to appeal passed.

Lodi first attempted to argue res judicata did not preclude its water supply challenge because it was based on new information and the city’s 2009 findings regarding the project’s water supply impacts differed from its 2005 findings. For the purposes of res judicata, causes of action are considered the same if based on the same primary right. A claim is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.

The appellate court determined the problem of overdraft cited by Lodi First was not new evidence. The city’s own 1990 general plan identified overdraft in the aquifer. While Lodi First claimed new evidence established more information than the 1990 EIR, the critical fact was that the city’s water supply was inadequate to serve new development.  This was known at the time of the 2004 EIR. In addition, the court determined the findings were consistent in that both findings were that the project would have no significant impact on water supply and therefore, no mitigation was necessary

Finally, the appellate court disagreed with Lodi First that res judicata should not be applied to the water supply issue due to public policy. When the issue is a question of law rather than of fact, res judicata may not apply if injustice would result or if the public interest requires that relitigation be allowed. Lodi First’s water supply issue did not present a question of law, so the public interest exception did not apply.

This case demonstrates the limitations of the deliberative process privilege for public agencies. Agencies attempting to rely on this privilege must be prepared to support their assertion of the privilege with a specific showing that the nondisclosure outweighs the public interest in disclosure; broad policy statements are not enough to support application of the privilege.  In addition, the case offers an important reminder of the consequences of failing to raise all potential arguments in original CEQA proceedings, and indeed, most regular civil proceedings.

RMM partners Andrea Leisy and Howard Wilkins and associate Laura Harris represented real party in in interest Browman Development in this litigation.

Save the Plastic Bag Coalition v. City of Manhattan Beach

(2011) 52 Cal.4th 155

The California Supreme Court upheld the City of Manhattan Beach’s decision to ban plastic bags on the basis of a negative declaration. In its opinion, the court dealt with two issues arising under the California Environmental Quality Act (CEQA): (1) standing and (2) the fair argument standard of review. Petitioner, a coalition of plastic bag manufacturers and distributors, claimed standing to maintain a citizen suit under CEQA. On the merits of the case, Petitioner argued that the evidence in the record supported a fair argument that the ban would increase environmental damage, so that an EIR was required. The Court ruled for Petitioner on the procedural issue and against Petitioner on the merits. The Court rejected a heightened standard to maintain standing for corporations, following the trend in the United States Supreme Court, seeming to place corporations and natural persons on equal footing.

The Court’s decision on the merits was more narrowly tailored, reversing the lower courts which had held the city had to prepare an EIR before implementing a ban on plastic bags. The Court found that the evidence cited by Petitioner regarding the “life cycle” analysis of paper and plastic bags was not substantial evidence, even supporting a fair argument, that the City’s actions would result in significant impacts. The Court held that what was relevant were not the impacts of paper or plastic bags on a global scale, but on “the actual scale of the environmental impacts that might follow from increased paper bag use in Manhattan Beach [a city of 40,000 people].” In reaching its conclusions, the court repeatedly emphasized that in CEQA, the analysis should focus on the local environment, citing Public Resources Code section 21151, subd. (b) (“any significant effect on the environment shall be limited to substantial, or potentially substantial, adverse changes in physical conditions which exist within the area as defined in Section 21060.5”) and section 21060.5 (the physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, [and] objects of historic or aesthetic significance”). While the court stressed that the focus and depth of the analysis must be on local impacts, CEQA does require a consideration of impacts outside the boundaries of the project area, if such impacts will occur, but “[t]his does not mean, however, that an agency is required to conduct an exhaustive analysis of all conceivable impacts a project may have in areas outside its geographical boundaries. ‘[T]hat the effects will be felt outside of the project area . . . is one of the factors that determines the amount of detail required in any discussion. Less detail, for example, would be required where those effects are more indirect than effects felt within the project area, or where it [would] be difficult to predict them with any accuracy.”’ Here, because the City was not expecting a huge increase in the use of paper bags for a variety of reasons, “the city could evaluate the broader environmental impacts of the ordinance at a reasonably high level of generality.” [RMM Partner James G. Moose and Senior Counsel Jennifer S. Holman filed a brief for Californians Against Waste as Amici Curiae on behalf of the City of Manhattan Beach. Mr. Moose also presented the arguments on the merits of the CEQA suit on behalf of amicus and in support of the City’s position.]

Stockton Citizens for Sensible Planning v. City of Stockton

(2010) 48 Cal.4th 481

The California Supreme Court reversed a Court of Appeal decision holding that, despite alleged flaws in the decision-making process, a facially valid and properly filed notice of exemption (NOE) triggered the 35-day statute of limitation period for filing a lawsuit to challenge the city’s determination that it had approved a project exempt from CEQA. The Supreme Court held that a petition filed nearly six months after the City of Stockton had filed an NOE for approval of a Wal-Mart retail center that was consistent with a previously approved master development plan was untimely. The Court held that the posting of the NOE triggered the 35-day statute of limitations period under Public Resources Code section 21167, subdivision (d), regardless of whether the exemption determination was properly made.

The petitioners argued that the filing of an NOE could only have force or effect to trigger the 35-day limitations period if the underlying project approval were valid. The Court found that the petitioners’ argument ran contrary to the principle that limitations periods apply regardless of the merits of the claims asserted. Section 21167, subdivision (d), clearly requires suits claiming that an agency has “improperly determined” a project to be exempt from CEQA to be brought within 35 days after the filing of an NOE that complies with CEQA requirements. The Court also looked to the legislative intent of the statutory limitations periods and found that the approach argued for by the petitioners would circumvent CEQA’s unusually shortened statute of limitations for challenges where the agency has given public notice.

The Court also rejected petitioners’ argument that the NOE itself was defective, concluding that it demonstrated minimal compliance with CEQA in that it described the project in question, including its location, set forth the action taken, and detailed the reasons for the exemption finding. The NOE thus alerted the public that the statute of limitations for bringing a CEQA challenge to the noticed action had begun to run. Because petitioners had not filed their challenge within the 35-day limitations period, their claims were time-barred. [RMM Partner Whitman F. Manley filed a brief for League of California Cities and California State Association of Counties as Amici Curiae on behalf of Real Parties in Interest and Appellants.]

Committee for Green Foothills v. Santa Clara County Board of Supervisors

(2010) 48 Cal.4th 32

The California Supreme Court held that the filing of a notice of determination (NOD) triggers the 30-day statute of limitations for all CEQA challenges to the decision announced in the notice, regardless of the nature of the CEQA violation alleged. The petitioners alleged that Santa Clara County had failed to determine whether review was required for an approval of a trail alignment for a countywide trail master plan, and therefore argued that the 180-day statute of limitations under Public Resources Code Section 21167, subdivision (d) should apply. The county had, however, filed an NOD.

Noting that Section 21167 does not specifically define the limitations period that applies to such a scenario, the Court found that the determinative question in identifying the appropriate statute of limitations was not the type of violation alleged, but whether the action complained of was disclosed in a public notice. According to the Court, when an agency gives the public notice of its decision under CEQA, the public can be expected to act promptly in challenging this decision. In contrast, when an agency does not give the statutorily required notice and the public is held to constructive notice based on the start of the project, a longer limitations period applies. Regardless of the type of violation alleged by petitioners, they had notice of the county’s action when the NOD was filed, and the Court concluded the petitioners thereafter had 30 days to file suit challenging that action.  The court also rejected the petitioners’ contention that the NOD was defective, and thus did not trigger a 30-day limitations period. The record supported the trial court’s finding that both the initial and the revised NODs were, at a minimum, in substantial compliance with CEQA guidelines. Of particular concern to the Court seemed to be the unusually short limitations periods set forth in CEQA, which are meant to ensure finality and predictability in land use planning decisions.  [RMM Partner Sabrina V. Teller filed a brief for League of California Cities and California State Association of Counties as Amici Curiae on behalf of the Respondent county.]

Planning & Conservation League v. Castaic Lake Water Agency

(2009) 180 Cal.App.4th 210

The Second District Court of Appeal upheld the adequacy of an EIR certified by the Castaic Lake Water Agency analyzing the impacts of transferring 41,000 acre-feet of water to Castaic from the Kern County Water Agency and Wheeler Ridge Maricopa Water Storage District (collectively, “KCWA”).  The court ruled that Castaic was the proper lead agency, and the EIR contained an adequate analysis of the transfer in light of uncertainties regarding the outcome of a separate analysis concerning the operation of the State Water Project, from whence the 41,000 acre-feet derived.

The fate of the allocation of water from the SWP, and of this particular water transfer, has been the subject of much litigation and multiple published opinions.  In 1995, the Central Coast Water Authority prepared and certified an EIR regarding the “Monterey Agreement” – an agreement between the Department of Water Resources (DWR) and 29 water contractors revamping the allocation of water from the SWP.  In 1999, Castaic agreed to purchase 41,000 acre-feet of SWP water from KCWA.  Castaic certified an EIR in connection with this agreement.  Castaic’s EIR “tiered off” the Monterey Agreement EIR.  Castaic’s EIR drew a CEQA lawsuit, which was subsequently appealed.  Meanwhile, the Third District Court of Appeal issued an opinion striking down the Monterey Agreement EIR, reasoning, in part, that the DWR, as operator of the SWP with its state-wide reach, should have been the lead agency for the document, rather than the Central Coast Water Authority, one of the 29 water contractors that purchases SWP water. (Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892.)  The Second District thereafter ruled that Castaic’s EIR was defective because it tiered off the defective Monterey Agreement EIR.  (Friends of the Santa Clara River v. Castaic Lake Water Agency (2002) 95 Cal.App.4th 1373 (Friends of the Santa Clara River).)  In an unpublished decision, the Second District upheld the decision of the trial court, on remand from Friends of the Santa Clara River, to decline to enjoin or otherwise invalidate the transfer, which was left in place.

In 2004, Castaic certified a second EIR concerning the 41,000 acre-feet transfer, this time expressly not tiering from the Monterey Agreement EIR.  The court found that Castaic’s 2004 EIR appropriately traced the history of the Monterey Agreement EIR, related litigation, and ongoing efforts by DWR.  The EIR then analyzed a “worst-case” scenario, consisting of SWP operations under the pre-Monterey Agreement contractual regime.  The court concluded that the 2004 EIR, though imperfect, provided an adequate road-map to Castaic’s analytic route from evidence to decision.   [RMM Partner James G. Moose and Associate Laura M. Harris were co-counsel for Respondent Castaic Lake Water Agency.]

California Native Plant Society v. City of Rancho Cordova

(2009) 172 Cal.App.4th 603

The Third Appellate District Court of Appeal held that the City of Rancho Cordova approved a project that was inconsistent with one mandatory policy of its General Plan concerning wetland mitigation. Specifically, the Court ruled that before the City approved a project that would impact on-site wetlands, its General Plan policy required the City to “coordinate” wetland preservation and mitigation with the federal agencies with jurisdiction over wetlands and wetland-dependent special-status species. The Court held that the term “coordinate” as used in the City’s General Plan policy implied a higher level of effort was required on the part of the City, beyond merely “consulting” with the other agencies, as under the CEQA process. Addressing the CEQA claims, the Court upheld the project EIR in its entirety, reversing the trial court’s determinations that the wetland mitigation measures improperly deferred mitigation. The court rejected the notion that an adequate wetlands mitigation measure relying on a “no net loss” performance standard had to identify specific off-site mitigation areas. The court also reversed the lower court’s ruling that the City’s findings concerning the adequacy of mitigation were not supported by substantial evidence. In so doing, the court repeatedly emphasized the requirement for petitioners to cite to evidence in the record that is favorable to the agency, not just supportive of their own arguments. The court also rejected a number of other claims raised by the California Native Plant Society because they were not properly exhausted at the administrative level. [RMM Counsel of record: James G. Moose and Sabrina V. Teller.]

California Native Plant Society v. County of El Dorado

(2009) 170 Cal.App.4th 1026

The Court of Appeal held that the payment of a rare plant impact fee did not presumptively establish full mitigation for the potential impacts of a senior assisted living and Alzheimers’ care unit project in El Dorado County. The project was approved with a mitigated negative declaration, which relied on the payment of the plant impact fee as mitigation for impacts to two endangered plant species with confirmed populations on the project site. The court ruled that although a comprehensive preservation program funded by impact fees may be a sound strategy for addressing such impacts, the absence of any environmental review for the adoption of the fee program meant that reviews of individual projects triggering the fee could not presumptively assume that payment of the fee constitutes full mitigation for the potential impact. The court also found fault with the County’s failure to update the fee program as required. [RMM Counsel of record: Andrea K. Leisy and Laura M. Harris.]

California Native Plant Society v. City of Santa Cruz

(2009) 177 Cal.App.4th 957

The Sixth District Court of Appeal upheld the City of Santa Cruz’s approval of a master plan for Arana Gulch, a City-owned greenbelt property. The EIR for the master plan acknowledged that the project would have a significant effect on the habitat of the Santa Cruz tarplant due to the chosen alignment of a multiuse trail; however, the City determined that overriding considerations, including making the trail accessible for wheelchair users, warranted approval of the project as proposed. The court confirmed that the permissible considerations for a finding of infeasibility include whether an alternative is impractical or undesirable from a policy standpoint. Citing City of Del Mar v. City of San Diego (1982) 133 Cal.App.3d 401, the court concluded that the City was legally justified in rejecting environmentally superior alternatives as “infeasible” on the basis of its determination that the alternatives were undesirable from a policy standpoint because they failed to achieve what the City Council regarded as primary objectives of the project, and because substantial evidence supported this finding. Further, the court addressed the applicable standard of review for challenges to the adequacy of an EIR’s alternatives analysis, holding that the relevant question is whether CEQA’s informational requirements have been met. If they have been met, then a dispute over whether the type or amount of information provided is adequate is a factual determination subject to the “substantial evidence” prong of Public Resources Code section 21168.5, rather than a question of whether the agency failed to proceed in the manner required by law. [RMM Counsel of record: James G. Moose .]

Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments

(2009) 179 Cal.App.4th 113

The Second District Court of Appeal upheld the Santa Barbara Association of Governments (SBCAG) approval of a transportation sales tax measure without conducting CEQA review. SBCAG developed and approved its sales tax measure pursuant to its authority under the Local Transportation Authority and Improvement Act. The Act requires that an agency approving a transportation sales tax measure receive a supermajority approval of the County voters before implementing the measures, and requires that the agency develop a funding plan listing projects anticipated to receive funding under the measure. The decision confirmed that neither of these requirements turns a funding mechanism into a project subject to CEQA. The Court explains that a funding plan “does not qualify as a project within the meaning of CEQA . . . [if] it is a mechanism for funding proposed projects that may be modified or not implemented depending on a number of factors, including CEQA environmental review.” The Court also explains that a ballot measure that does not meet the definition of a project, such as funding mechanism established consistent with CEQA Guidelines section 15378, subdivision (b)(4), does not require prior CEQA review merely because an agency must put the measure before the voters.

Importantly, the court considered the implications of the California Supreme Court’s analysis in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Save Tara) to reach its holding. The court concluded that the analysis in Save Tara is applicable not only to agency agreements relating to private development, as was the case in Save Tara, but also to public projects that do not involve agreements with private entities. The court, therefore, conducted the fact-specific inquiry required by Save Tara in considering whether SBCAG’s actions constituted a “project approval” under CEQA. The court held that it did not, and explained that an agency’s esteem for projects that may be funded by a government funding mechanism is not, in and of itself, the equivalent of a commitment to fund any particular project. [RMM Counsel of record: Whitman F. Manley, Tiffany K. Wright, and Christopher J. Butcher.]