Tag: Discretionary approvals

Third District Upholds Plumas County’s General Plan EIR and Holds that a Local Government May Base Its Impact Analysis on Reasonably Foreseeable Levels of Growth and Development, as Opposed to Theoretically Possible Levels

On November 15, 2018, the Third District Court of Appeal certified for publication its decision in High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102. Rejecting arguments that Plumas County violated the Timberland Productivity Act (Timberland Act) and the California Environmental Quality Act (CEQA) when it adopted a general plan update, the appellate court affirmed the trial court’s judgment in the County’s favor. The opinion is the first precedent to explore the intersections of CEQA and the Timberland Act. It is also the first CEQA precedent clearly holding that a local government, in preparing an EIR for a general plan update, may base its impact analysis on reasonably foreseeable levels of population growth and development, as opposed to theoretically possible levels.

In 2005, the County began efforts to update its 1984 General Plan. Over the next eight years, the County engaged in a robust community engagement and education process to create the 2035 General Plan Update (GPU) that reflected the County’s planning goals and values. In December 2013, the County’s Board of Supervisors certified the Final Environmental Impact Report (EIR) and adopted the GPU. High Sierra Rural Alliance (High Sierra) filed suit, arguing that the GPU conflicted with the Timberland Act and that the EIR for the GPU did not adequately analyze impacts of potential growth outside of designated planning areas. The trial court disagreed and denied the petition and complaint in its entirety.

The Third District’s opinion begins with a brief description contrasting the County’s large size with its small population. Although the County covers approximately 2,613 square miles or over 1.67 million acres, its vast lands supported only 20,007 residents in 2010. The court also highlighted the minimal expected population growth, with the Department of Finance estimating the County’s population to remain under 21,000 until 2025, at which point the population is expected to decline.

Turning to High Sierra’s Timberland Act claims, the opinion provides an overview of the Act and the GPU policies related to timberland production zone (TPZ) lands. The opinion then settles a heretofore unresolved question under the Timberland Act–– namely, whether any residence approved on land zoned for timberland production must be “necessary for” the management of the relevant parcel as timberland. The court agreed with the County’s interpretation of Government Code section 51104, subdivision (h)(6), as providing that any “residence” on TPZ lands must be “necessary for” and “compatible with” the management of land zoned as timberland production. The court also made clear that “section 51104 suffices to supply the restrictions on residences and structures on timberland production zone parcels,” and thus the County’s GPU did not conflict with the Timberland Act simply because it failed to recite the statutory language in Section 51104 in its relevant policies.

In discussing the Timberland Act arguments, the court explained that “the finding [required by the Timberland Act] that a residence or structure is necessary for the management of a timberland production zoned parcel is not an exercise of discretion as used in the CEQA context.” The court provides local agencies and legal practitioners with important guidance on this issue by citing and quoting the discussion in the Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, 272, which provides that an agency can exercise CEQA discretion only where it has “the power (that is, the discretion) to stop or modify” a project in a “way which would mitigate the environmental damage in any significant way.” Because the court concluded that “the Timberland Act affords the County no discretion to stop or request modification of the proposed residence or structure in order to mitigate environmental impacts,” the court rejected High Sierra’s argument.

Next, the court rejected High Sierra’s CEQA claims. High Sierra argued that the EIR failed to acknowledge and analyze the potential for rural sprawl. But the EIR explained that full build-out under the GPU would not occur for another three hundred years. Based on the substantial evidence in the record, the court concluded that the County could properly focus its analysis on the reasonably foreseeable growth occurring under the GPU through year 2035. The court also agreed with the County that historic land use data supported the conclusion that growth would occur almost exclusively within the planning areas. The court rejected High Sierra’s speculation that one of the GPU policies would open the floodgates to residential subdivisions on agricultural, timber, and mining lands. High Sierra’s reliance on a working paper about real estate markets in the Northern Rockies failed to persuade the court because the paper did not cite any data specific to Plumas County.

Finally, the court held that the County did not violate CEQA by failing to recirculate the EIR. The court was unconvinced by High Sierra’s argument that the inclusion in the Final EIR of building intensity standards and more accurate maps showing potential development outside of planning areas triggered recirculation.

 

RMM Senior Partner James G. Moose and Associate L. Elizabeth Sarine represented Plumas County.

 

First District Reversal Allows for Challenge to Local Air District’s Limited Discretionary Approval Under CEQA

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.

In 2014, Grist Creek Aggregates, LLC (Grist Creek), initiated a process with Mendocino County to resume aggregate and asphalt production after years of reduced operation due to market conditions. The site had been used for aggregate and asphalt production since 1972. In 2009, the county updated its general plan and certified an EIR to, among other things, change the land use designation at the site from rangeland to industrial, and in 2010, the county rezoned the site to conform to the updated land use designations. No legal challenges were brought against the county’s actions.

In response to Grist Creek’s request to resume aggregate and asphalt production, the county Board of Supervisors issued a March 2015 resolution declaring that the resumption of asphalt production was neither a new, nor a changed, industrial use, and therefore it was allowed under a previously issued permit. The county issued a notice of exemption and Friends of Outlet Creek (Friends) filed a lawsuit challenging the county’s determination. Grist Creek then applied to the Mendocino County Air Quality Management District for an Authority to Construct (ATC), which the district issued in June of 2015 based on the county’s previous actions as the CEQA lead agency.

After its administrative appeal was denied, Friends filed a lawsuit against the district alleging that the district failed to comply with CEQA because it did not conduct a separate environmental analysis, and alleging the district did not follow its own regulations. The district and Grist Creek filed demurrers asserting that Friends could not sue the district directly under CEQA, and instead could only sue under Health and Safety Code section 40864. The trial court sustained the demurrers and Friends appealed.

The Court of Appeal cited to several cases to support its determination that the district could be sued under CEQA, including those that addressed challenges to individual permit decisions. In addition, the court pointed out that no court has ever declared that Health and Safety Code section 40864 is the only statute that can be invoked in challenging an action by an air quality management district. Therefore, the court held, Friends could sue directly under CEQA and was not required to sue under Health and Safety Code section 40864.

The court then turned to the scope of the CEQA challenge. Relying on the fact that the district’s role was limited to issuing the ATC, the court found that Friends could not challenge any of the county’s land use decisions through this litigation. The court further determined that, because a hearing was required, evidence was taken, and the administrative agency had discretion in determining the facts, the lawsuit must be brought as an administrative mandamus proceeding under Code of Civil Procedure section 1094.5. Thus, the challenge was limited to the record from the administrative appeal and matters judicially noticeable.

For information on Grist Creek’s action against the trial court seeking to vacate its demurrer rulings, see: http://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/.

[Casey Shorrock Smith]