Tag: CEQA

Second District Invalidates EIR’s Project Description For Failing to Provide Sufficient Detail and Certainty.

In Stopthemillenniumhollywood.com et al. v. City of Los Angeles et al., No. B282319 (2019) (published 08/22/2019), the Second District Court of Appeal affirmed the trial court’s conclusion that an EIR for a mixed-use development project proposed by Millennium Hollywood, LLC (Millennium) in the City of Los Angeles (City) violated CEQA as a matter of law, because it failed to provide an accurate, stable, and finite project description.

In 2008, Millennium filed an application—which the Court of Appeal described as detailed—with the City proposing a mixed-use development project (2008 Proposal) on 4.47 acres in multiple parcels straddling two sides of Vine Street, between Yucca Street and Hollywood Boulevard, in the Hollywood Community Plan area of the City. The 2008 Proposal described a mixed-use development with 492 residential units, a 200-unit hotel, 100,000 square feet of office space, a 35,000-square-foot sports club and spa, 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage uses. In total, proposed square footage was 1,163,079. Two historic buildings on site, the Capital Records Tower and Gogerty Building, would be preserved. The development would consist of two low-rise buildings, one on each side of Vine Street, with three towers intended to “frame” the Capital Records Tower. The 2008 Proposal would have required a zone change to allow the sports club, as well as a variance to allow the proposed density. After the City informed Millennium that a variance from the General Plan Floor Area Ratio (FAR) requirement would also be necessary, the project was put on hold.

In 2011, Millennium filed a new application with a new project description for the same site (2011 Project). Millennium still proposed a mixed-use development with residential, hotel, and retail uses totaling 1,166,970 square feet and a FAR of 6:1. Though the same mix of uses were proposed, the 2011 Project was “designed to create an impact ‘envelope’ within which a range of development scenarios can occur.” Thus, the specific shape, size, location, use, and number of buildings to be constructed on the site were not described, other than that the existing historic buildings would be preserved. Instead, Millennium sought to enter into a development agreement with the City that would establish the permitted developable floor area, land uses, design guidelines, and development standards for the site. Additionally, the 2011 Project included a land use equivalency program (LUEP) allowing the transfer of floor area between parcels on the site. The EIR analyzed the maximum level of impacts that could occur under the development agreement, regardless of which of the several development scenarios was actually constructed in the future.

Commenters on the Draft EIR complained that the imprecise project description hindered meaningful public participation. Nevertheless, the City approved the development agreement, certified the EIR, adopted mitigation for the analyzed maximum level of impacts and adopted a statement of overriding considerations. Petitioners, Stopthemillenniumhollywood.com, Communities United for Reasonable Development, and George Abrahams (collectively, Petitioners) petitioned the Los Angeles Superior Court for a writ of mandate setting aside project approval and certification of the EIR. Petitioners alleged three causes of action relating to violations of CEQA. First, they alleged that the EIR failed to include an accurate, stable, and finite project description. The second cause of action asserted that the City abused its discretion by failing to study traffic impacts to the 101 freeway despite Caltran’s direction that the City do so. The third cause of action alleged that the City failed to consult with the California Geological Survey regarding potential seismic hazards on the site. The trial court granted the petition as to the first and second causes of action, but not the third.

On the first cause of action, the trial court found that the project description was not stable or finite, and that the use of the word “or” in a condition of approval allowed Millennium, or future developers, to choose any permitted use listed for the C2 zone in the LAMC for future development, not just the list of proposed uses in the development agreement. The trial court reasoned that, though there may be circumstances where a project description may disclose only the physical parameters and maximum potential environmental impacts, no such circumstances were present here. The trial court distinguished Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036 (Treasure Island), on the grounds that that case dealt with a site contaminated by hazardous materials, and it was unknown when cleanup of the site would be completed. The trial court noted that the development in Treasure Island included both fixed elements (including the street grid) and conceptual elements that would “likely” be subject to supplemental CEQA review. The trial court concluded that neither element was present here.

The trial court also found that, by including an ambiguous project description, the EIR impermissibly deferred part of the analysis of environmental impacts. Specifically, the trial court found that, because no specific “concept” was analyzed, the EIR did not explain how exceedance of the maximum impacts would be avoided when the project was actually designed and built; nor was additional CEQA review contemplated by either the EIR or the development agreement. The trial court determined that, without knowing the “bona fide subject” of the EIR, it would be impossible for the public and decisionmakers to accurately weigh the “environmental price tag” of the proposal and decide if the benefits outweigh that price.

The City and Millennium appealed the trial court’s decision as to the first and second cause of action, while Petitioners appealed the decision on the third cause of action. The Court of appeal, after ruling on the first cause of action, determined that it need not reach the other issues raised by the parties.

In affirming the trial court, the Court of Appeal looked to County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 (County of Inyo), and Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277 (Washoe Meadows). The Court cited County of Inyo for the proposition that, even where an inaccurate project description does not render invalid the analysis of environmental effects, it may nevertheless violate CEQA by interfering with “intelligent public participation.” The Court found further support for this position in Washoe Meadows, where the First District held that a failure to select or identify a specific project in the Draft EIR interfered with the public’s right to participate in CEQA review.

In the case before it, the Court found that the project description “fail[ed] to describe the siting, size, mass, or appearance of any building proposed to be built at the project site” and that the proposed development regulations imposed only vague and ambiguous limits on future construction choices. The Court held that, even if the analysis of maximum impacts were adequate—despite the project description, “CEQA’s purposes go beyond an evaluation of theoretical environmental impacts.” The Court determined that the project description violated CEQA as a matter of law.

In reaching its decision, the Court distinguished South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321 (South of Market), on two grounds. First, the Court found that the only “uncertainty” at issue in South of Market was that the project description presented a choice of either a predominately office use or a predominately residential use, but the EIR did not select one or the other. Second, the Court found that the EIR in South of Market “included ‘site plans, illustrative massing, building elevations, cross-sections and representative floor plans for both options.”’ Because the EIR before it did not include these “technical characteristics” of the project, the Court concluded that it failed to comply with CEQA’s mandates. The Court also largely agreed with basis for the trial court’s distinguishing of Treasure Island, supra, 227 Cal.App.4th 1036, finding that no unusual circumstances were present in this case, and that future planning and development of the project would not be subject to additional environmental review. Lastly, the Court found the violation to be prejudicial because it interfered with public participation.

As stated above, the Court determined that it need not address the other issues raised by the parties. The Court dismissed an argument that Public Resources Code section 21168.9 required them to rule on each issue raised in a CEQA appeal. The Court found that section applied only to the trial court’s order on remand, which is to address only those mandates from the Court of Appeal that are necessary to comply with CEQA. The Court found that the trial court’s judgment was correct on at least one ground, so it was affirmed.

Nathan George

California Supreme Court Holds Adoption of Zoning Ordinance for Medical Marijuana Dispensaries is a “Project” Subject to CEQA

On August 19, 2019, the California Supreme Court issued its decision in Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) ___ Cal.5th___, in which the Court unanimously held that the City of San Diego’s adoption of a zoning ordinance for medical marijuana dispensaries is a “project” subject to CEQA. Although the Court agreed with the Fourth District Court of Appeal and the city in rejecting the petitioner’s argument that the adoption of a zoning ordinance is always a project, as a matter of law, under Public Resources Code section 21080, the Court reasoned that the adoption of the ordinance at issue was nonetheless the type of activity which, by its general nature, “is capable of causing a direct or reasonably foreseeable indirect physical change in the environment.” As such, the Court held, it is a “project” subject to CEQA.

Background

In 2014, the city adopted a zoning ordinance authorizing the establishment of medical marijuana dispensaries in the city and imposing various restrictions on their location and operation. The ordinance specified zones where dispensaries are permitted, included a cap on the number of dispensaries in any one district, restricted their proximity to sensitive uses, and imposed basic conditions on lighting, security, and hours of operation. At the time the ordinance was proposed, the city determined that the adoption of the ordinance did not constitute a “project” for purposes of CEQA. The city, therefore, did not conduct any environmental review prior to adopting the ordinance.

Following the city’s adoption of the ordinance, petitioner filed a petition for writ of mandate challenging the city’s decision not to conduct CEQA review. In the trial court, petitioner argued that the adoption of the ordinance should have been found to be a project under Public Resources Code section 21065, which defines a “project” as any activity undertaken or funded by, or requiring the approval of, a public agency that “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” According to the petitioner, the ordinance had the potential, among other effects, to cause increased vehicle traffic across the city, increase user cultivation, and concentrate dispensary development-related impacts in certain areas. The trial court rejected petitioner’s arguments and upheld the city’s decision, finding the petitioner’s claims were unsupported by evidence in the record.

On appeal, petitioner reiterated its argument regarding the potential to cause physical changes in the environment, and further argued that the adoption of the zoning ordinance was a project as a matter of law under Public Resources Code section 21080. Section 21080 states that CEQA “shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances …” Pointing to this language, petitioner argued that the enactment of a zoning ordinance is automatically a project under CEQA, regardless of the potential for environmental change. Petitioner’s argument was based in part on the Third District’s decision in Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, where the court held that the county’s approval of a tentative map—another activity expressly listed in section 21080—was a project as a matter of law.

Notwithstanding Rominger, the Fourth District Court of Appeal rejected both of petitioner’s arguments, holding that the enactment of a zoning ordinance is subject to the same “project” test as any other activity under Public Resources Code section 21065. Further, the court found no error in the city’s conclusion that the zoning ordinance was not a project because it lacked the potential to cause a physical change in the environment. According to the Fourth District, the potential environmental effects raised by the petitioner were unsupported by the record and too speculative to establish a potential to physically change the environment.

The Supreme Court’s Review

Seeking to resolve the split between the Fourth District’s decision and Rominger, the Supreme Court granted review to address two issues: (1) whether, under Public Resources Code section 21080, a public agency’s enactment of a zoning ordinance is always project under CEQA, as a matter of law; and (2) whether the enactment of the city’s zoning ordinance was a “project” under section 21065.

The Court began its analysis by placing the dispute into context. As the Court explained, CEQA proceeds by way of a three-step process or “decision tree.” First, the lead agency must determine whether the proposed activity is a “project” subject to CEQA at all. Second, assuming CEQA applies, the agency must determine whether the project qualifies for one or more of the many CEQA exemptions. Third, assuming no exemptions apply, the agency must undertake environmental review, namely, preparation of an initial study and a negative declaration, mitigated negative declaration, or an environmental impact report. At issue here was the very first step of the process—the city’s determination that the adoption of the zoning ordinance was not a “project” subject to CEQA at all.

Turning to the first issue, the Court agreed with the Fourth District that Public Resources Code section 21080 does not dictate the result as a matter of law. Engaging in a statutory interpretation analysis, the Court reasoned that while section 21080 is ambiguous when read in isolation, the Legislature’s use of the statutorily defined term “project” in that section must be read to incorporate the definition of “project” in section 21065. Accordingly, the language in PRC section 21080 that CEQA “shall apply to discretionary projects” must be read to provide that CEQA applies to activities that are both (1) discretionary; and (2) meet the definition of a “project” in section 20165. According to the Court, the specific activities listed in section 21080 are merely generic examples of the type of activities approved or carried out by public agencies to which CEQA could apply, however, the mere listing of an activity in that section does not supplant the potential “physical change” analysis required under section 21065.

The Court found further support for its reading of section 21080 in the definition of the term “project” in CEQA Guidelines section 15378, which makes clear the enactment of a zoning ordinance is merely an example of an activity undertaken by public agencies; policy considerations against subjecting activities to CEQA where there is no potential to effect the environment; and the legislative history of section 21065 revealing the Legislature’s intent to narrow CEQA’s application to activities posing a possibility of an environmental effect.

The Court also refuted the notion that its reading of the statute renders section 21080 mere surplusage, noting that the significance of section 21080 is that it states, in the affirmative, the additional requirement that projects must be “discretionary” for CEQA to apply.

After concluding that the adoption of a zoning ordinance is not a project as a matter of law, the Court turned to whether the adoption of the dispensary ordinance in this case was nonetheless a project subject to CEQA under Public Resources Code section 21065. The Court disagreed with the appellate court and answered the question in the affirmative.

As the Court explained, the governing decision for the “project” inquiry is Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372. In that case, the Court observed, “Whether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact.” In other words, an agency’s task in determining whether a proposed activity is a project is to determine if, by its general nature, the activity is capable of a causing physical change in the environment, without regard to whether actual effects will occur under the circumstances.

Applying Muzzy Ranch, the Court held that the city erred in determining that the adoption of the zoning ordinance was not a project subject to CEQA. The Court noted that the ordinance would permit the establishment of a sizable number of new businesses, which could foreseeably result in new construction. Furthermore, the ordinance could cause changes in vehicle traffic patterns as a result of customers, employees, and suppliers. Finally, the Court explained, the necessary casual connection between the ordinance and these effects was satisfied because the adoption of the ordinance was “an essential step culminating in action . . . which may affect the environment.” For these reasons, the Court held, the adoption of the zoning ordinance was a “project” subject to CEQA.

Collin McCarthy

In First Opinion Addressing a Sustainable Communities Environmental Assessment, the Third District Upholds the City of Sacramento’s Approval of an Infill Project

In Sacramentans for Fair Planning v. City of Sacramento (2019) ___Cal.App.5th___, the Third District Court of Appeal upheld the City of Sacramento’s reliance on a Sustainable Communities Environmental Assessment (SCEA), a relatively new method for conducting streamlined CEQA review for certain projects that help the state meet its greenhouse gas (GHG) reduction targets. (See Pub. Resources Code, § 21155.2, subd. (b).) The decision is the first published opinion addressing the propriety of an SCEA. The court held that the transit priority project at issue was consistent with the region’s sustainable communities strategy and therefore the City’s reliance on the SCEA complied with CEQA.

The court also upheld the City’s reliance on a unique provision in its general plan that allows the City to approve projects that are inconsistent with the City height and density limits if the projects offer significant community benefits.

Background

The Sustainable Communities and Climate Protection Act (SB 375) was created to integrate transportation and land use planning to reduce GHG emissions. SB 375 directed the California Air Resources Board to develop regional targets for automobiles and light trucks to reduce emissions. In turn, federally designated metropolitan planning organizations (MPOs) must now include a “sustainable communities strategy” (SCS) in their regional transportation plans/ metropolitan transportation plan (MTP). (Gov. Code, § 65080, subd. (b)(2)(B).) MTP/SCSs direct the location and intensity of future land use developments on a regional scale to reduce vehicle emissions. The Sacramento Area Council of Governments (SACOG) is the MPO for the Sacramento area. SACOG adopted an MTP/SCS for the region in 2012 and certified an EIR for the MTP/SCS at that time.

Under SB 375, the mandated reductions may be achieved through a variety of methods, including “smart growth planning.” The Legislature determined that one type of development that can help reduce vehicular GHG emissions is a “transit priority project.” This type of project contains at least 50% residential use, has a minimum density of 20 units per acre, and is located within one-half mile of a major transit stop.

To boost development of transit priority projects, SB 375 allows for streamlined CEQA review through an SCEA if the project: (1) is consistent with the general use designation, density, building intensity, and applicable policies specified for the project area’ in the strategy; and (2) incorporates all feasible mitigation measures, performance standards, and criteria set forth in the prior applicable environmental impact reports’ and which were adopted as findings. (Pub. Resources Code, §§ 21155, subd. (a), 21155.2, subds. (a), (b).)

The “Yamanee” project at issue in Sacramentans is a proposed 15-story multi-use building made up of one floor of commercial space, three levels of parking, residential condominiums on 10 floors, and one floor of residential amenities. The building is proposed to be located near public transit in Sacramento’s growing “Midtown” area, adjacent to the City’s downtown. The project is located in the MTP/SCS’s central city subarea of a “Center and Corridor Community.” Under the MTP/SCS, Center and Corridor Communities are typically higher density and more mixed than surrounding land uses. SAGOG organized the MTP/SCS in such a way that policies for reducing GHG emissions were embedded in the MTP/SCS’s growth forecast assumptions. Thus, projects that are consistent with the MTP/SCS’s growth forecasts are automatically consistent with the MTP/SCS’s emission-reduction policies.

The City determined that the Yamanee project qualified as a transit priority project and that the project was consistent with the general land use designation, density, building intensity, and applicable policies in the MTP/SCS. Therefore, the City used an SCEA to review the project under CEQA. The SCEA explained that, as a transit priority project, the Yamanee project would increase housing options near high quality transit and reduce vehicle miles traveled. It also explained that the project is consistent with the MTP/SCS’s forecast of low to high-density residential and mixed uses in the center subarea of the Center and Corridor Community.

The City Council upheld the City planning and design commission’s approval of the project and rejected the petitioner’s appeal of that decision. The petitioner sought a writ of mandate in the superior court, claiming that the City’s approval of the project violated CEQA and the planning and zoning law. The superior court denied the petition and the Court of Appeal affirmed.

CEQA

The Court of Appeal rejected the petitioner’s claim that the City erred by relying on SACOG’s MTP/SCS to justify using an SCEA. The petitioner argued that because the MTP/SCS lacked specific density and building intensity standards, the City could not rely on it as a basis for an SCEA. Further, claimed the petitioner, the MTP/SCS undermines the City’s general plan because it treats the City’s center as “higher density,” whereas the general plan sets forth a more nuanced approach under which building intensities and densities increase the closer a development gets to the downtown. These arguments, concluded the court, were premised on a misunderstanding of the MTP/SCS’s role. An MTP/SCS does not regulate land use. The purpose of an MTP/SCS is to establish a regional development pattern, not site-specific zoning. SB 375 authorized the City to review the project in an SCEA if the project was consistent with the regional strategy. Because it was, the city was allowed to rely on an SCEA. Although, as the petitioner contended, reliance on an SCEA could mean that certain projects receive less environmental review than traditionally required under CEQA, the court advised that the petitioner should take this concern to the Legislature, not the courts.

The court also rejected the petitioner’s claim that the City erred by relying on previous EIRs for the general plan and MTP/SCS to avoid analyzing the project’s cumulative impacts. In particular, the petitioner claimed that streamlined review was inappropriate in this case because no prior environmental analysis had considered the cumulative impacts of high-rise development in Sacramento’s midtown. The court explained that CEQA required the City to prepare an initial study (IS) before drafting the SCEA. The City’s IS for the project concluded that cumulative effects had, in fact, been adequately addressed and mitigated, and therefore did not need to be analyzed further in the SCEA. Additionally, the project included all applicable mitigation measures recommended in the prior EIRs. The petitioner failed to show that the City’s analysis was not factually supported. Accordingly, the City did not err by relying on prior cumulative impact analyses.

Planning and Zoning Law

The development proposed by the project is denser and more intense than what would ordinarily be allowed under the City’s general plan and zoning code. The City approved the project, however, under a provision in its general plan that allows the City to approve more intensive development when a project’s “significant community benefits” outweigh strict adherence to the density and intensity requirements. The City determined that the project would have several significant community benefits, including helping the City to achieve its goal of building 10,000 new residential units in the central city by 2025, and reducing dependency on personal vehicles. These, and other benefits, outweighed strict adherence to the City’s density and intensity limits.

The petitioner argued that the City’s decision to allow the Project to exceed the general plan and zoning code’s intensity and density standards constituted unlawful “spot zoning.” The court explained that spot zoning occurs where a small parcel is restricted and given fewer rights than the surrounding property (e.g., when a lot is restricted to residential uses even though it is surrounded by exclusively commercial uses). This case, explained the court, is not a spot-zoning case in that the property was not given lesser development rights than its neighboring parcels. The petitioner argued that the neighboring parcels had, in fact, been given lesser development rights through the City’s approval of the project, but there was no evidence in the record that any neighboring owner sought and was denied permission to develop at a greater intensity or that the City would arbitrarily refuse to consider an application for such development.

The petitioner also argued that the phrase “significant community benefit” as used in the City’s general plan was unconstitutionally vague. The court disagreed, explaining that zoning standards in California are required to be made “‘in accord with the general health, safety, and welfare standard,’” and that the phrase “significant community benefit” was no less vague than the phrase “general welfare.” Additionally, held the court, the phrase “significant community benefit” provides sufficient direction to implement the policy in accordance with the general plan.

The court also held that the City had articulated a rational basis for the policy allowing the City to waive the density and intensity standards for projects that provide significant community benefits, which is all that the Constitution required.

Conclusion

In this case, the City of Sacramento successfully employed CEQA’s streamlined provisions for transit priority projects to expedite and simplify its environmental review of an infill project that will help the City meet its aggressive new housing goal and reduce greenhouse gas emissions. The City’s general plan allowed the City to approve the project because the project would provide significant public benefits, even though the project is inconsistent with the general plan and zoning code’s density and intensity standards. As California continues to combat the dual threats of a housing shortage and climate change, cities and counties are likely to increasingly rely on streamlined approaches to the approval process for mixed-use projects near public transit.

Second District Finds that CEQA’s Supplemental Review Provisions Applied to Modification of Commercial Development Project adding a Specific Plan Amendment and that the Amendment was not Impermissible “Spot Zoning”

In Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, the Second District Court of Appeal overturned the trial court’s decision that revisions to a commercial development project to include a specific plan amendment constituted a “new project” under CEQA, and found that supplemental review under Public Resources Code section 21166 applied instead. Additionally, the Court determined that, while the specific plan amendment created a “spot zone,” substantial evidence supported the City’s determination that the amendment was in the public interest, and thus not impermissible under the test announced in Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4th 1302.

Target Corporation (Target) applied to build a Super Target retail store at the intersection of Sunset Boulevard and Western Avenue in Hollywood. The project contemplated a nearly 75-foot tall, three-story building with the Target store occupying the third floor, parking on the second, and the first floor containing several smaller retail stores, a transit kiosk, and a pedestrian plaza. The City of Los Angeles certified the environmental impact report (EIR) prepared for the project, and granted eight variances from the Vermont/Western Transit Oriented District Specific Plan (SNAP) allowing the project to be built as proposed. Target began construction of the project. Several community associations (plaintiffs) filed separate petitions for writ of mandate challenging the City’s approval of the project, alleging violations of CEQA, and that the grant of the variances were not supported by substantial evidence in violation of the Los Angeles Municipal Code. The trial court upheld the EIR, but found that six of the eight variances were not supported by substantial evidence and ordered construction to cease.

While that case was pending on appeal, the City amended the SNAP to create a new subarea (Subarea F) that would allow projects similar to Target’s to be built in certain parts of the specific plan area without the need for variances, and designated the project site as Subarea F. There were two other locations in the specific plan area that could qualify for the Subarea F designation, but no projects meeting the requirements of Subarea F were proposed to the City at those locations. The appellate court dismissed the appeal as moot, leaving the trial court’s decision intact. The City prepared and approved an addendum to the Target project EIR, defining the revised project as the SNAP amendment and the completion of construction for the Target project. The same plaintiffs challenged the revised project approval, alleging that the City violated CEQA by relying on an addendum rather than a new, subsequent, or supplemental EIR, and that the City impermissibly “spot-zoned” by amending the SNAP for the project. The trial court found that the SNAP amendment was a new project, making the addendum improper but did not reach the “spot zoning” issue. The City and Target appealed.

The court of appeal, in analyzing whether the addendum violated CEQA asked three questions: what did the SNAP amendment do? Do CEQA’s supplemental or initial project review provisions apply? And, did the City comply with the applicable CEQA provisions? The court answered each question in turn. First, the court found that SNAP amendment, though it created a new subarea, only placed the project location into that subarea. While two other locations in the SNAP area could meet the proximity to transit and acreage requirements, they did not meet the commercial square footage requirement and no projects meeting that requirement had been proposed to the City. The court also rejected plaintiffs’ “haphazard” development argument, finding that the amendment was consistent with the SNAP’s policies and that the City could rationally take planning and development “one step at a time.”

In determining whether CEQA’s supplemental review provisions applied, the court found that there had been prior CEQA review of the Target project. Thus, the question was “whether the previous environmental document retains any relevance in light of the proposed changes.” (Citing Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937, 944.) The court found that substantial evidence supported the City’s determination that the previous EIR retained relevance for the revised project. The court rejected the argument that, because the previous EIR was limited to a specific development “project” and the SNAP amendment involved more general policy considerations, the “project” EIR was insufficient. The court found that the label placed on the EIR said little about its sufficiency as an informational document. The proper question is whether the EIR retains any value in addressing the impacts associated with the revised project.

Next, the court asked whether the City complied with CEQA’s supplemental review requirements, and found that substantial evidence supported the City’s decision to rely on an addendum for the revised project. Plaintiffs made four arguments, all of which the court rejected. First, petitioners argued that the addendum did not discuss the SNAP amendment, which the court stated was factually inaccurate. Second, they argued that the City intended further development in the SNAP area through the new subarea because of some of the language the City used in describing the requirements of the new subarea. The court found that the cited language did not negate the substantial evidence supporting the City’s finding that no additional development was foreseeable. Third, plaintiffs argued that additional development projects at the two locations that could qualify for the new subarea, and any other locations that could be “cobbled together” were reasonably foreseeable consequences of the SNAP amendment that required a subsequent or supplemental EIR. The court found that whatever incentive for development the amendment created, evidence of that incentive did not overcome the substantial evidence supporting the City’s determination. Lastly, plaintiffs argued that de novo review should apply because the challenge to the amendment required the court to construe its meaning. The court found that the issue before it involved the amendment’s environmental impact, not its meaning, and thus review was for substantial evidence.

Though the trial court did not address the “spot zoning” issue, the court of appeal did, finding that it was important enough to resolve the fully briefed, longstanding issue. Under the analysis in Foothill Communities, the court found that the SNAP amendment did create a zoning “island,” though it was unclear whether the zoning was less or more stringent than the surrounding parcels because of the specific requirements for the new subarea. Regardless, the question was whether the zoning decision creating the “island” was arbitrary, irrational or unreasonable. The court found that, under that standard, the spot zone was valid. Further, the City’s determination that the amendment was in the public interest was supported by substantial evidence, and the SNAP, as amended, remained compatible with the City’s general plan. The court rejected plaintiffs’ challenge to the City’s alleged motive in amending the SNAP, and plaintiffs’ questioning of whether the SNAP amendment represented good policy, as neither issue was appropriate for the court’s inquiry. The court also found that even if future projects proposed to use the new subarea, the City retained its power to determine whether each project is in the public interest. Lastly, the court rejected plaintiffs’ argument that the amendment to the SNAP was “incompatible” with it because the amendment would “alter” the SNAP.  The court found that the law unambiguously allows specific plan amendments.

Nathan O. George

First District Court of Appeal upholds EIR for San Francisco’s Housing Element

On August 22, 2018, the First District issued its decision in San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. The appellate court upheld an EIR that San Francisco prepared for its 2004 and 2009 Housing Elements, notably rejecting a challenge to the use in the EIR of a future-conditions baseline for the plan’s traffic and water supply impacts.

In an earlier appeal involving San Francisco’s 2004 Housing Element, the First District concluded that the City should have prepared an EIR rather than a negative declaration. By the time the trial court issued an amended writ in April 2009 requiring the preparation of an EIR for the 2004 Housing Element, the City was already in the process of preparing its 2009 Housing Element. Consequently, the City combined the environmental review of the two versions and prepared one EIR for both the 2004 and 2009 Housing Elements. After the City adopted the 2009 Housing Element in June 2011, San Franciscans for Livable Neighborhoods (SFLN) filed a new suit and this appeal followed.

For traffic and water supply impacts, the EIR used a baseline of 2025 conditions based on population projections from the Association of Bay Area Governments (ABAG). The court concluded that the City was “within its discretion to adopt a baseline calculation forecasting traffic and water impacts in 2025” rather than “comparing the existing conditions with and without the Housing Element.” Citing POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (“POET II”), SFLN argued that the City took an improperly narrow view of the Housing Element and “sidestepped review of the reasonably foreseeable indirect physical changes in the environment.” The court was unpersuaded because the Housing Element consisted of growth-accommodating policies but did not induce or lead to population growth. Discussing the rule described in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, the court found that substantial evidence supported the City’s determination that an existing-conditions baseline would be misleading as to traffic and water supply impacts. The court also rejected SFLN’s corollary argument about the baseline for land use and visual resources impacts, noting that the EIR did compare the changes in the Housing Element to the existing environment.

Second, the court tackled SFLN’s challenges to the EIR’s analysis of various impacts. It found that substantial evidence supported the EIR’s analysis, explaining that: (1) the EIR reasonably concluded that the 2009 Housing Element would not result in significant impacts on visual resources or neighborhood character because there would be no changes to allowable land uses or building heights, and residential growth would be directed to areas with existing residential uses; (2) the EIR for the Housing Element was not required to study traffic impacts of specific development projects in the pipeline because those projects were proceeding under their own EIRs or CEQA documents; (3) the EIR for the Housing Element was not required to establish a likely source of water and satisfied CEQA by acknowledging the possibility of a post-2030 water supply shortfall during a multiple-dry-year event and discussing the water rationing plan that would balance supply and demand; and (4) the City did not abuse its discretion in determining that the Housing Element was consistent with ABAG’s Land Use Policy Framework because policies would further the goals of the Framework by placing housing near transit and encouraging infill development.

Third, the court turned to SFLN’s argument that the EIR failed to consider feasible reduced-density alternatives. The EIR analyzed three alternatives, including a No Project Alternative, a 2004 Housing Element Alternative, and an Intensified 2009 Housing Element Alternative. The 2004 Housing Element Alternative was identified as the environmentally superior alternative because it would reduce the sole significant and unavoidable impact (cumulative impact on transit) even though it would not reduce the impact to a less than significant level. The court concluded that this was a reasonable range of alternatives. In particular, the court approved of the City’s explanation in responses to comments that the reduced density alternatives suggested by SFLN would not add any meaningful analysis to the EIR because they would not reduce the project’s potential cumulative transit impacts. The court also found that substantial evidence supported the EIR’s conclusion that the SFLN-proposed alternative dubbed the No Additional Rezoning Alternative was infeasible because increasing the density of two major projects within existing neighborhoods as suggested would require rezoning.

Finally, the court rejected SFLN’s argument that the City should have considered additional mitigation measures to reduce transit impacts. The EIR explained that the only way to eliminate the significant transit impacts would be to increase the number of transit vehicles or reduce transit travel time. Since funding for these measures is uncertain and cannot be guaranteed, the EIR deemed them infeasible. Although SFLN suggested two mitigation measures, one was simply a permutation of the No Project Alternative and the other was infeasible because it involved imposing transit impact fees that the City had already decided would be infeasible because they cannot be guaranteed.

Elizabeth Sarine

First District Finds a “Fair Argument” in Comments that a Project’s Height and Density Were Incompatible with a Historic Overlay District and that Traffic Safety and Congestion Issues Could Be Worsened

In Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, the First District Court of Appeal held that the record contained a “fair argument” that a mixed-use project in an historic district might have significant aesthetic impacts on the historic character of the community due to the project’s size and scale. The court also cited residents’ concerns regarding traffic hazards and congestion, and concluded that the city was required to prepare an EIR.

The City of Fremont adopted a zoning overlay district to protect the historic character of the community of Niles, a small commercial strip dating to the 19th century. A developer proposed a mixed-use project with 98 residential units on a vacant six-acre property at the gateway to this district. Neighbors complained that the buildings were too tall, and the project was too dense, so that it was incompatible with the area and would increase traffic congestion. The city’s architectural review board recommended denying the project. The planning commission recommended approval, and the city council adopted a mitigated negative declaration and approved the project. Neighbors sued. The trial court found that the record contained a “fair argument” of potentially significant impacts relating to aesthetics and traffic, and granted the writ. The developer appealed.

In May 2018, the city published a draft EIR for the project. The neighbors moved to dismiss the appeal as moot because the city had decided to comply with the trial court’s writ. The appellate court declined to dismiss the appeal. The city was not a party to the appeal. The developer’s submittal of a revised application did not mean the original project was abandoned. Moreover, the appeal was not moot because, were the developer to prevail, the city’s original approvals would be reinstated regardless of the new application.

Turning to the merits, the court concluded that the project’s visual impact on its setting – in this case, an historic commercial “main street” recognized as sensitive by the city – was a proper subject of review, over and above the analysis of the project’s impact on historic resources. According to the court, the record “clearly” contained a fair argument that the project would have a significant aesthetic impact on the historic district. The city’s initial study found that the project was aesthetically compatible with the district because it reflected the architectural style of the industrial buildings that previously occupied the site, and the city’s design guidelines recognized that architecture within the district was varied. Members of the architecture review board and of the public, however, stated that the project was too tall and dense, and inconsistent with Niles’ village-like character. These complaints continued even after the developer modified the project. The court recognized the “inherently subjective” nature of aesthetic judgments, but found that the comments “were not solely based on vague notions of beauty or personal preference, but were grounded in inconsistencies with the prevailing building heights and architectural styles of the Niles [district] neighborhood and commercial core.” Commenters included members of the city’s historic architectural review board, who recommended denial.

The court rejected the developer’s various arguments that the project’s aesthetic impact was not significant. First, although the site was largely vacant and unkempt, that did not automatically mean that development of the site would be an upgrade. Second, the site, though on the edge of the historic district, was nevertheless located at a recognized gateway to Niles, and was within the district’s boundaries. Third, the architectural review board’s recommendation to deny the project was not a bare conclusion, but was supported by record evidence of the board members’ (whom the court presumed to have historic aesthetic expertise) underlying aesthetic judgments about the effect of the project. Thus, the board’s “collective opinions” on project compatibility with the historic overlay district were substantial evidence supporting a fair argument that the project may have significant aesthetic impacts. Though the court noted that, were the city to prepare an EIR, the city could conclude that the project would not have a significant impact on aesthetics “because aesthetics is an inherently subjective assessment.”

The court also found that the record contained a fair argument concerning traffic safety. The project’s traffic study concluded a left-turn pocket lane was warranted at the project entrance. Staff did not recommend the pocket, however, because left-turn pocket lanes generally were not located elsewhere along the street, and because omitting a pocket would make vehicles slow down. Testimony from residents, however, stated that drivers did not adhere to the posted speed limit, and sight lines might not be adequate if multiple drivers queued up to turn left into the project site. These “fact-based comments” were substantial evidence supporting a fair argument that a new intersection at the project entrance could have significant traffic impacts.

The record also contained a fair argument that the project could contribute to existing traffic congestion. Residents testified that traffic at a nearby intersection was already terrible, and that during the morning commute traffic already backed up from this intersection to the project site. The city’s own traffic study found that traffic at this intersection was Level of Service (“LOS”) E – an unacceptable level of congestion under the city’s standards – and that project-related traffic would cause congestion there to worsen to LOS F. The developer argued that, under the city’s thresholds of significance, a shift from LOS E to LOS F was not a significant impact. The court held, however, that the city’s significance threshold could not be applied to foreclose consideration of substantial evidence that the impact might be significant. The court again found that the “fact-based comments of residents and city staff and officials supported a fair argument that unusual circumstances in Niles might render the thresholds inadequate to capture the impacts of congestion on Niles Boulevard.”

2017 CEQA Case Law: The Year in Review

2017 CEQA Case Law: The Year in Review

2017 was a busy year in CEQA jurisprudence, with over two dozen published cases. Below is a list of the most significant, with links to the full case summaries from the RMM blog.

Center for Biological Diversity v. California Department of Fish and Wildlife (2017) __Cal.App.5th­­__ (Case No. B280815)

In a partially published decision filed December 4, 2017, the Second District Court of Appeal upheld the lower court’s judgment and order on remand in Center for Biological Diversity v. California Department of Fish and Wildlife (2017) __Cal.App.5th­­__ (Case No. B280815). The court concluded that the trial court did not abuse its discretion in decertifying only the affected sections of the EIR, enjoining all project construction, and suspending some (but not all) of the project approvals. This CEQA remedy also provided adequate relief for violations of the Fish and Game Code.

Case Summary: https://www.rmmenvirolaw.com/2017/12/second-district-upholds-limited-writ-in-second-newhall-ranch-appeal/

Monterey Coastkeeper v. Monterey Water Resources Agency (2017) ___ Cal.App.5th ___ (Case No. H042623)

In Monterey Coastkeeper v. Monterey Water Resources Agency (2017) ___ Cal.App.5th ___ (Case No. H042623), the Sixth District Court of Appeal reversed the trial court’s judgment granting Monterey Coastkeeper’s petition for writ of mandate for violation of section 13260 of the Porter-Cologne Act (failure to file a report of waste discharge), holding that the petitioner had failed to exhaust its administrative remedies.

Case Summary: https://www.rmmenvirolaw.com/2017/12/sixth-district-court-of-appeal-holds-breach-of-public-trust-doctrine-claim-not-ripe-for-adjudication-in-the-absence-of-petitioners-exhaustion-of-its-administrative-remedies/

Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413

On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year. The court found that the EIR’s analysis of impacts and mitigation measures for air quality and impacts to agricultural land were insufficient and not supported by substantial evidence.

Case summary: https://www.rmmenvirolaw.com/2017/12/on-remand-fourth-district-determines-that-case-challenging-sandags-rtp-is-not-mooted-by-later-eir-and-resolves-ceqa-issues-on-the-merits/

Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277.

In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal upheld the trial court’s decision directing the Department of Parks and Recreation and the State Park and Recreation Commission to set aside project approvals where the draft EIR analyzed five alternative projects in detail, but did not identify one preferred alternative.

Case Summary: https://www.rmmenvirolaw.com/2017/11/in-a-case-of-first-impression-first-district-court-of-appeal-holds-that-presentation-of-five-alternatives-in-eir-without-designation-of-one-as-the-project-does-not-satisfy-ceqa/

Association of Irritated Residents v. Kern County Board of Supervisors (2017) 17 Cal.App.5th 708.

On November 21, 2017, the Fifth District partially published its decision in Association of Irritated Residents v. Kern County Board of Supervisors (2017) 17 Cal.App.5th 708. The published sections covered arguments about the baseline used for the oil refinery modification project, the mitigation of greenhouse gas (GHG) emissions, and the extent to which federal preemption precludes aspects of CEQA review of project impacts. In reversing the trial court’s judgment denying the petition for writ of mandate, the Court of Appeal upheld the EIR’s treatment of the project baseline and GHG emissions but determined that the county erred in relying on federal preemption to avoid analyzing and mitigating impacts from off-site rail activities.

Case Summary: https://www.rmmenvirolaw.com/2017/11/fifth-district-court-of-appeal-approves-of-oil-refinery-eirs-use-of-cap-and-trade-program-to-mitigate-ghg-emissions-but-disapproves-of-kern-countys-reliance-on-federal-preemption-in/

Kennedy Commission v. City of Huntington Beach (2017) 16 Cal.App.5th 841

On October 31, 2017 in Kennedy Commission v. City of Huntington Beach  (2017) 16 Cal.App.5th 841, the Fourth Appellate District reversed the lower court, finding that the city was a charter city, and thus exempt from the requirement that zoning ordinances and specific plans be consistent with the general plan.

Case Summary: https://www.rmmenvirolaw.com/2017/11/fourth-district-rejects-challenge-to-the-city-of-huntington-beachs-housing-element-applying-charter-city-exemption/

Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883

The Sixth District Court of Appeal held in the partially-published opinion, Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, that general plan consistency is not a CEQA issue, and therefore mandate procedures for CEQA violations are inapplicable.

Case Summary: https://www.rmmenvirolaw.com/2017/11/sixth-district-court-of-appeal-upholds-trial-courts-use-of-interlocutory-remand-on-determination-regarding-general-plan-consistency/

Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187

On October 16, 2017, the First District Court of Appeal published its decision in Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187, upholding the San Francisco County Superior Court’s denial of a petition for writ of mandate challenging the Judicial Council of California’s decision to certify a Final EIR and approve the New Placerville Courthouse Project.

Case Summary: https://www.rmmenvirolaw.com/2017/10/first-district-court-of-appeal-upholds-judicial-council-of-californias-determination-that-closure-of-downtown-placerville-courthouse-would-not-lead-to-significant-urban-decay-impacts/

Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261

In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal, Division Three, upheld the City and County of San Francisco’s finding that a conditional use authorization for the restoration of a small cottage and construction of a three-unit condominium on Telegraph Hill was categorically exempt from CEQA, and found that the city’s conditions of approval relating to construction were not mitigation for pedestrian and traffic impacts.

Case Summary: https://www.rmmenvirolaw.com/2017/10/first-district-upholds-categorical-exemption-with-conditions-of-approval-and-conditional-use-authorization-for-residential-project-on-infill-site-in-transit-priority-area/

Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 16 Cal.App.5th 224

In Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 16 Cal.App.5th 224 (republished as modified), the First Appellate District reversed the Alameda Superior Court and found that environmental documents prepared by the California Department of Pesticide Regulation, regarding amended labelling for two pesticides, inadequately analyzed potential impacts on honeybees. The court held that the Department was required to analyze the environmental baseline, alternatives, and cumulative impacts in documents promulgated under CEQA’s exemption for certified regulatory programs (CRP).

Case Summary: https://www.rmmenvirolaw.com/2017/10/first-circuit-finds-environmental-review-under-certified-regulatory-program-inadequate/

Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449

In Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, the First District Court of Appeal, Division One, upheld the City of South San Francisco’s (City) finding that a conditional use permit for the conversion of an office building into a medical clinic was categorically exempt from CEQA, as well as the City’s implied finding that the unusual circumstances exception did not apply.

Case Summary: https://www.rmmenvirolaw.com/2017/09/first-district-upholds-categorical-exemption-for-planned-parenthood-clinic-and-implied-finding-of-no-unusual-circumstances-under-the-fair-argument-test/

Bridges v. Mt. San Jacinto Community College District (2017) 14 Cal.App.5th 104

In Bridges v. Mt. San Jacinto Community College District (2017) 14 Cal.App.5th 104, the Fourth District Court of Appeals held that a land acquisition agreement entered into by the Mt. San Jacinto Community College District to purchase property from the Riverside County Regional Park & Open-Space District for potential future use as the site of new campus did not trigger the duty to prepare an EIR.

Case Summary: https://www.rmmenvirolaw.com/2017/08/fourth-district-holds-that-land-acquisition-agreement-did-not-trigger-duty-to-prepare-an-eir/

Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677

In Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, the California Supreme Court held that the Interstate Commerce Commission Termination Act does not preempt CEQA when a California public agency decides to undertake a new railroad project, even if the state agency later authorizes a private entity to operate the new rail line. The Court therefore concluded that the North Coast Railroad Authority was required to comply with CEQA prior to taking steps to reinitiate rail service on a segment of an interstate rail line that had gone out of operation for many years. The Court declined, however, to enjoin the ongoing operations of the railroad by NWPCo, the private operator. Because these operations had been occurring during the course of the litigation against NCRA, any such injunction would intrude into an area of activity that is preempted by the ICCTA, namely, private railroad operations.

Case Summary: https://www.rmmenvirolaw.com/2017/08/california-supreme-court-holds-that-state-agency-compliance-with-ceqa-is-not-preempted-by-the-iccta/

Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal. 5th 497

In a 6/1 opinion, the California Supreme Court held that the San Diego Association of Governments (SANDAG) did not abuse its discretion by failing to present a consistency analysis in the EIR for its 2011 regional transportation plan (RTP) comparing anticipated GHG emissions with the long-term reduction goals presented in Executive Order (EO) S-3-05, in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal. 5th 497.  The court reasoned that SANDAG had adequately informed the public, using information available at the time, of inconsistencies with overall state climate goals.

Case Summary: https://www.rmmenvirolaw.com/2017/07/3822/

Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235

In Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235, the First District Court of Appeal held that a responsible agency air quality management district may be sued under CEQA, but such suit must be limited to the agency’s specific discretionary action and may not challenge prior lead agency approvals. In addition, the court held that such an action must be brought as an administrative mandamus proceeding under Code of Civil Procedure section 1094.5.

Case Summary: https://www.rmmenvirolaw.com/2017/07/first-district-reversal-allows-for-challenge-to-local-air-districts-limited-discretionary-approval-under-ceqa/

Grist Creek Aggregates, LLC v. The Superior Court of Mendocino County (2017) 12 Cal.App.5th­­­ 979

On June 14, 2017, Division One of the First Appellate District published its decision in Grist Creek Aggregates, LLC v. The Superior Court of Mendocino County (2017) 12 Cal.App.5th­­­ 979, in which the Court of Appeal held that a county air district board’s tie vote on the petitioner’s administrative appeal of an asphalt production facility’s construction permit, effectively resulted in the appeal’s denial, rendering the denial subject to judicial review.

Case Summary: https://www.rmmenvirolaw.com/2017/07/air-district-boards-tie-vote-on-authority-to-construct-permit-is-effectively-a-decision-not-to-revoke-it-which-is-reviewable-for-prejudicial-abuse-of-discretion/

Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034

On May 23, 2017, the Fourth District Court of Appeal court ordered published Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034. In a succinct opinion, the court upheld the city’s decision to deny a mitigated negative declaration (MND), initially approved by the planning commission, regarding an application to subdivide two hillside lots and build three residences.

Case Summary: https://www.rmmenvirolaw.com/2017/06/denial-of-mitigated-negative-declaration-upheld-for-small-san-diego-subdivision/

Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11

On April 21, 2017, the First District Court of Appeal in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11, affirmed the trial court and ruled that Sonoma County’s ordinance, issuing an erosion-control permit to establish a vineyard was a ministerial act, not subject to CEQA.

Case Summary: https://www.rmmenvirolaw.com/2017/05/first-district-rules-that-issuing-erosion-control-permit-under-sonoma-county-ordinance-was-ministerial-act-exempt-from-ceqa/

Save our Heritage Organization v. City of San Diego (2017) 11 Cal.App.5th 154

In Save our Heritage Organization v. City of San Diego (2017) 11 Cal.App.5th 154, the Fourth District Court of Appeal upheld a trial court’s denial of a Code of Civil Procedure section 1025.1 attorneys’ fee award to the prevailing real party in interest.

Case Summary: https://www.rmmenvirolaw.com/2017/05/despite-being-a-successful-party-real-party-in-interest-denied-attorneys-fee-award-by-fourth-district/

POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52

In POET, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52 (“POET II”), the Fifth District Court of Appeal held that the California Air Resources Board (CARB) failed to comply with the terms of the writ of mandate issued by the same court in POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681 (“POET I”). The court invalidated the trial court’s discharge of the writ, modified the existing writ, and ordered CARB to correct its defective CEQA Environmental Analysis (EA).

Case Summary: https://www.rmmenvirolaw.com/2017/04/fifth-district-rules-carb-acted-in-bad-faith-in-selecting-baseline-for-analysis-of-low-carbon-fuel-standards-regulations/

Friends of the College of San Mateo v. San Mateo County Community College (2017) 11 Cal.App.5th 596

On remand from the Supreme Court’s holding in Friends of the College of San Mateo Gardens v. San Mateo County Community College (2016) 1 Cal.5th 926 (San Mateo I ), the First District interpreted the Supreme Court’s direction as requiring the application of the fair argument standard of review to claims challenging an addendum to a negative declaration in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal. App.5th 596.

Case Summary: https://www.rmmenvirolaw.com/category/blog/

The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993

In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, the Second District Court of Appeal held that the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b), do not apply where counsel fails to lodge the administrative record in a CEQA proceeding and receives a judgment denying the petition for writ of mandate.

Case Summary: https://www.rmmenvirolaw.com/2017/04/second-district-holds-that-failure-to-lodge-administrative-record-barred-post-trial-relief/

California Chamber of Commerce v. State Air Resources Board (2017) 10 Cal.App.5th 604

In a 2-1 opinion, the Third District Court of Appeal upheld the auction-sale component of the cap-and-trade program created by the State Air Resources Board pursuant to the California Global Warming Solutions Act of 2006 (“AB 32”) in California Chamber of Commerce v. State Air Resources Board (2017) 10 Cal.App.5th 604.

Case Summary: https://www.rmmenvirolaw.com/2017/04/third-district-court-of-appeal-upholds-state-air-resources-boards-ab-32-cap-and-trade-program/

Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266

In Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266, the Sixth District held that the County of Santa Cruz did not engage in piecemeal review when it separately adopted three different zoning ordinances. The court also upheld the negative declaration for an ordinance increasing the height and density of hotels.

Case Summary: https://www.rmmenvirolaw.com/2017/04/sixth-district-rules-county-of-santa-cruz-did-not-engage-in-piecemeal-review-and-upholds-negative-declaration/

Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918

In Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, the California Supreme Court held that CEQA requires an EIR for a project located within a coastal zone to identify which areas in a project site might qualify as “environmentally sensitive habitat areas” (ESHA) under the California Coastal Act and account for those areas in its analysis of project alternatives and mitigation measures.

Case Summary: https://www.rmmenvirolaw.com/2017/03/california-supreme-court-holds-that-ceqa-requires-eirs-for-projects-located-within-coastal-zones-to-identify-potential-environmentally-sensitive-habitat-areas-as-defined-by-the-calif/

Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941

On March 15, 2017 the Fourth District certified for publication its February 4, 2017 decision in Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, upholding the EIR for a master- planned community (project). A citizens group challenged the sufficiency of the EIR and the county’s approval process on six grounds. The court found for the county and real party in interest, Hanna Marital Trust (applicant), on every count.

Case Summary: https://www.rmmenvirolaw.com/2017/03/fourth-district-upholds-eir-for-master-planned-community-and-concludes-that-county-not-required-to-recirculate/

City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608

In City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608, the City of San Jose argued that messages communicated through personal accounts of city employees were not public records subject to disclosure under the California Public Records Act (“CPRA”). The Supreme Court disagreed, holding that a city employee’s emails about public business are not excluded from disclosure simply because they have been sent, received, or stored in a personal email account.

Case Summary: https://www.rmmenvirolaw.com/2017/03/california-supreme-court-rules-personal-emails-may-be-considered-public-records-subject-to-disclosure-under-the-public-records-act/

Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594

On February 27, 2017, the California Supreme Court issued its unanimous opinion in Central Coast Forest Association v. Fish and Game Commission (2017) 2 Cal.5th 594, reversing an appellate decision holding that Plaintiff’s petition to delist coho salmon south of San Francisco from the register of endangered species was procedurally improper.

Case Summary: https://www.rmmenvirolaw.com/2017/03/high-court-reverses-appellate-decision-limiting-use-of-delisting-petitions-under-the-california-endangered-species-act-but-avoids-reaching-merits-of-fish-and-game-commissions-decision-denyin/

First District Upholds Categorical Exemption for Planned Parenthood Clinic and Implied Finding of No Unusual Circumstances Under the “Fair Argument” Test

In Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, the First District Court of Appeal, Division One, upheld the City of South San Francisco’s (City) finding that a conditional use permit for the conversion of an office building into a medical clinic was categorically exempt from CEQA, as well as the City’s implied finding that the unusual circumstances exception did not apply.

The challenged project proposed converting an existing office building into a medical clinic providing a range of services and operated by Planned Parenthood. The City Planning Commission approved the application after a public hearing and found that the project was categorically exempt from CEQA review. Respect Life South San Francisco (Respect Life) appealed that decision to the City Council, arguing that, because of the nature of Planned Parenthood’s services, the project might draw protests that could have environmental impacts. The City Council rejected the appeal and found that the project qualified for three categorical exemptions. Respect Life and three individuals filed a petition for writ of mandate challenging the City’s decision. The trial court denied the petition and Respect Life appealed. On appeal, Respect Life admitted that at least one of the exemptions applied, but alleged that the unusual circumstances exception applied, requiring full environmental review.

The court first rejected Planned Parenthood’s argument that Respect Life lacked standing. Planned Parenthood argued that Respect Life had failed to allege that it had a beneficial interest in the litigation, but the court found that the group’s petition included sufficient allegations to establish standing.

The court then articulated the standard of review for categorical exemptions and the unusual circumstances exception under the California Supreme Court’s recent decision in Berkeley Hillside Preservation v. City of Berkeley (2016) 60 Cal.4th 1086 (Berkeley Hillside). At the administrative level, a challenger must prove to the agency that 1) there are unusual circumstances, and 2) there is a reasonable possibility of a significant impact because of those circumstances. Upon judicial review, a court applies the deferential “substantial evidence” test to the agency’s decision regarding the first prong, and the non-deferential “fair argument” test to the agency’s decision on the second.

Here, the City denied the administrative appeal and found the project categorically exempt, but made no express finding on the unusual circumstances exception. Thus, the record did not reveal whether the City concluded that the project presented no unusual circumstances (a decision entitled to deference) or had found that, while there were unusual circumstances, there was no reasonable possibility of significant impacts due to those circumstances (a decision reviewed under the non-deferential “fair argument” test). The court determined that when an agency makes an implied finding regarding the unusual circumstances exception, the court must assume that the agency determined that there were unusual circumstances. To uphold the agency’s implied finding that the exception is inapplicable, a court must conclude that the record contains no substantial evidence supporting either 1) the existence of unusual circumstances, or 2) a fair argument that such circumstances will have a significant effect on the environment. Thus, the court applies a non-deferential test to both implied determinations.

In this instance, the court found that even assuming that the first condition had been met by Respect Life, it had not identified any substantial evidence supporting a fair argument that the protests may result in significant effects. The court stated that Respect Life contradicted itself by conceding that CEQA review does not consider the identity of the applicant or operator, but also arguing that because the proposed operator is Planned Parenthood, the project might draw protests that will create indirect environmental impacts. The court held that “the possibility of ‘foreseeable First Amendment activity’” does not establish the unusual circumstances exception, where Respect Life “simply assert[ed] that protests will lead to environmental impacts.” The court also found that comments by opponents of abortion, even those that indicated they would protest, were not substantial evidence supporting a fair argument that there is a reasonable possibility that protests will have indirect significant effects on the environment. Ultimately, Respect Life was required, but unable, to point to evidence of the alleged indirect impacts, not just evidence of the protest activity that might lead to such impacts.

Streamlined Yet Underutilized: CEQA’s Class 32 Urban Infill Exemption

Streamlining—the promotion of organizational and systemic efficiency through the simplification of process—has been steadily incorporated into CEQA for years, largely through exemptions. The notion being: why not shorten the lengthy CEQA review where prior planning documents have nearly fully assessed potential impacts of a project? (E.g., CEQA Guidelines, § 15183.3, subd. (a).) These exemptions, categorical or statutory, are intended to save agencies, and by extension the public, time and resources.

Unlike many statutory exemptions that excuse qualifying projects entirely from CEQA consideration, categorical exemptions only discharge a “class” of projects from typical CEQA evaluation via a discretionary preliminary review. (CEQA Guidelines, § 15354.) The “Class 32” exemption is one such class promoting “shovel-ready” urban infill development projects through categorical streamlining. Established in 1998, this urban infill exemption requires projects to be consistent with applicable general plans and zoning designations, located within a city’s limits on a site five acres or less, bordered by urban uses, and without significant impacts to traffic, noise, air quality, or water quality. The project site itself can be either vacant or previously developed, but must be devoid of sensitive habitat and adequately served by public utilities. (CEQA Guidelines, § 15332).

In 2011, additional streamlining provisions included in Senate Bill 226 were intended to balance the interests of the government, business, and the environment by better fast-tracking Class 32 urban infill development by specifying conditions under which these projects would be adequately supported by existing planning documents and land use designations. (Pub. Resources Code, § 21094.5.) Despite SB 226 streamlining and Class 32’s beneficial function, it still goes underutilized. So why aren’t cities using this infill categorical exemption and should that change?

Class 32 and the Balancing Act of Senate Bill 226

The Class 32 infill development exemption was included in the Guidelines as a part of a 1998 revision by the Governor’s Office of Planning and Research (OPR) to clarify project types that are categorically exempt from typical CEQA review. In an effort to promote this exemption, along with other environmental tools such as solar technology, in 2011 State Senator Joseph Simitian penned SB 226 to expand CEQA streamlining provisions for infill development projects. Sen. Simitian intended the bill to balance interests, especially with increasing legislative demands for a reduction in greenhouse gas emissions. He also purported to provide a much-needed boost to industries struggling to recover from the country’s economic recession, specifically construction. (See State Sen. Joseph Simitian, letter to Governor Jerry Brown, Sept. 5, 2011, http://www.senatorsimitian.com/images/uploads/SB_226_CEQA_Letter.pdf; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 226 (2011–2012 Reg. Sess.) as amended September 9, 2011, p. 4.) By June 2012, OPR had effectuated the final proposal, incorporated the bill’s language into CEQA Guidelines, and published its accompanying performance standards as Appendix M, at which time it became an official enhancement to Class 32 exemptions.

Exemption Usage…or Lack Thereof

While a Class 32 exemption and its streamlining provisions can help cities more predictably plan development, it has gone underutilized.

Scott Morgan, OPR Deputy Director of Administration and State Clearinghouse Director, has stated that agencies often choose to prepare negative declarations or even environmental impact reports (EIRs) for projects that meet infill exemption criteria, despite the fact that negative declarations are often litigated and held to an less deferential standard of judicial review (“fair argument” versus “substantial evidence” standard, see below). Mr. Morgan explains some of this underutilization as simple unfamiliarity—city staff often aren’t aware of or comfortable using this exemption and its streamlining possibilities. However, some larger cities like Oakland and San Francisco almost exclusively use this exemption for their smaller-scale infill projects, thereby exemplifying the principle that areas already predetermined for these exact uses by a CEQA-driven planning process need not undergo a more onerous review.

The City of Oakland has developed a Class 32 exemption process that includes a preliminary review with report-style documentation, inclusive of applicable technical analysis and informal findings. In July 2015, for example, the Oakland Bureau of Planning prepared a 54-page Class 32 exemption report for a 24-story, mixed-use project with residential, retail, and restaurants on a previously developed half-acre site at 1700 Webster Street. This report included a detailed project description, CEQA categorical exemption and streamlining criteria, a CEQA exemption checklist demonstrating how this criteria has been met, and seven technical appendices ranging from transportation impact analysis to air quality and noise studies to a wind tunnel analysis. The report led to the planning staff’s December 2015 recommendation for approval and the Planning Commission’s subsequent approval. The project broke ground in the spring of 2017.

Taking Exception: How Unusual Are Unusual Circumstances?

Procedurally, Class 32 exemptions require a fraction of the process prescribed for standard CEQA review, with no required public review period, specific CEQA documents, or mitigation. Exceptions to the exemptions, however, add back in a measure of consideration to the process. (CEQA Guidelines, § 15300.2, subds. (b), (c)–(f).) Under these exceptions, the infill exemption cannot be used if the project would cause cumulatively significant impacts, impact scenic highways or historical resources, involve hazardous waste, or are subject to “unusual circumstances.” While these four exemptions lend themselves to relatively straightforward interpretation and have been largely uncontroversial, the “unusual circumstances” exception has been the subject of much litigation.

The “unusual circumstances” exception precludes the use of any categorical exemption when there is a “reasonable possibility” that the project “will have a significant effect on the environment due to unusual circumstances.” (CEQA Guidelines, § 15300.2 (c.).) In reviewing a lead agency’s determination as to whether the exemption applies and if the effects will be significant, the Supreme Court has applied a two-prong test wherein an agency must answer: (1) are there unusual circumstances? And if so, (2) would these unusual circumstances create a potential for significant impact? Further complicating the issue is the bifurcation of the standard of review that applies the “substantial evidence” standard to the first prong of the test and the “fair argument” standard to the second. Under the more deferential first prong, an agency may base its decision on substantial evidence, including conditions in the vicinity of the project. If it determines there is an “unusual circumstance,” then the “fair argument” standard requires an EIR when it can be fairly argued based on substantial evidence that “due to” the unusual circumstances of the project, it may have a significant effect on the environment. Both standards require substantial evidence in the record. And the question of whether a project qualifies for the Class 32 exemption in the first instance is subject to the more deferential “substantial evidence” threshold. (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1114).

Given the above, a prudent agency using a Class 32 exemption should document its determination of whether any “unusual circumstances” are present and resulting potential significant effects (or presumably, the lack thereof) with applicable land use documents (zoning maps, general plans, etc.) and if warranted, some standard preliminary technical analysis (traffic, biology, noise, etc.). With these components on the record, as in the Oakland example, in conjunction with the issuance of an NOE, the outcome of legal challenges should be more favorable for cities and developers.

Conclusion

Although litigation for Class 32 exemption projects is always a possibility for development projects, with fulfillment of applicable CEQA criteria and requirements, agencies would be wise to consider the Class 32 exemption. Based on judicial trends, this exemption may be more likely to survive a legal challenge than a negative declaration at least in some jurisdictions. If these trends continue, over time challenges to these exemptions could even quieted by case law that supports agency discretion with the use of the Class 32 CEQA infill exemption, making it an increasingly viable option for agencies to speed up the development of much needed infill housing and other urban projects.

By: Casey Shorrock Smith