Tag: Exhaustion

Fourth District Holds that Land Acquisition Agreement Did Not Trigger Duty to Prepare an EIR

General Posted by   

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.

As a threshold issue, the court held that the appellants were barred from raising objections to the college’s decision because they had failed to exhaust their administrative remedies. The appellants argued that they were excused from objecting to the purchase agreement because the college did not give notice of the meeting at which it approved the agreement. Because the appellants could not establish that the no-notice exception applied—the court relied on the presumption afforded by Evidence Code section 664 to presume that the college had posted the agenda in accordance with the Brown Act requirements because the record contained no evidence to the contrary.

Nonetheless, the court went on to discuss the merits and determined that appellants’ claims were meritless because the purchase agreement required completion of an EIR before the sale could even be finalized. The court found that the purchase agreement complied with CEQA’s land acquisition agreement rule. Unlike the circumstances in the definitive California Supreme Court decision, Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, here, no funds had been committed to the project and a developer had yet to be identified. The court found nothing in the administrative record to indicate that the college had committed itself to a definitive use of the property.

Finally, the court held the college did not violate CEQA by failing to formally adopt local implementing guidelines. Public Resources Code section 21082 provides an exemption for school districts, if they “utilize” the guidelines of another public agency. Here, the college had chosen to use the local guidelines adopted by Riverside County.

 

Christina Berglund

First District Rules that State Lands Commission’s Approval of a Land Exchange Agreement Not Exempt from CEQA; Exhaustion Requirement Did Not Apply.

General Posted by   

The First District, in Defend Our Waterfront v. California State Lands Commission (Sept. 17, 2015) ___Cal.App.4th___, Case Nos. A1496 & 141697,  upheld the trial court’s grant of a petition for writ of mandate challenging a land exchange between the City and County of San Francisco and the project applicants for the 8 Washington Street Project.

The 8 Washington Street Project is a plan to develop waterfront land near the San Francisco Ferry Building. The project site includes the “Seawall Lot 351” parcel, which is currently owned by the City and County of San Francisco through its Port Commission (the City), subject to the public trust for uses benefiting the people of California. The public trust restriction on the use of the Seawall Lot 351 is inconsistent with the development proposed by the 8 Washington Project. To remove this inconsistency, the applicants and the City proposed to transfer Seawall Lot 351 out of the public trust and replace it with a different parcel of property pursuant to a land exchange agreement with the State Lands Commission (SLC). In August 2012, SLC approved the land exchange agreement, finding, among other things, that the agreement is a statutorily exempt activity under CEQA.

Defend Our Waterfront (DOW), argued that SLC abused its discretion in determining that the land exchange agreement was exempt from CEQA. SLC, the City, and the project applicants argued that DOW had not exhausted its administrative remedies on this issue. The trial court held the exhaustion requirement was inapplicable because there was no effective notice of a public hearing on a CEQA matter prior to the SLC ruling. The Court of Appeal affirmed. The appellate court explained that the only notice provided by the agenda for the SLC meeting was that the SLC was considering a land exchange agreement proposed by the City. The agenda made no reference to CEQA.

The applicants argued that although the agenda itself did not specify that staff considered the project exempt from CEQA, the staff report, which was available online through a link provided in the agenda, set forth this information. The Court of Appeal held, however, that the staff report did not provide legally sufficient public notice of SLC’s CEQA decision for two reasons. First, someone would have to take the additional step of clicking on the agenda’s link to the staff report to learn that a CEQA issue would be decided at the SLC meeting. Second, the hyperlink to the staff report was added after the 10-day notice requirement under Government Code section 11125, subdivision (a), so could not provide adequate notice.

The applicants alternatively argued that DOW had actual notice that the SLC was going to consider the CEQA exemption at the meeting. To support this argument, the applicants pointed to an e-mail from a member of DOW that referred to the staff report. The e-mail, however, did not mention CEQA, so the court refused to assume that the e-mail’s author had read the section of the staff report regarding the CEQA exemption. Furthermore, even if the e-mail’s author had read the entire report, the staff report still did not provide adequate notice because it was not provided until after the 10-day notice period, discussed above.

Moving to the CEQA issue, the Court of Appeal agreed with the trial court that the land exchange agreement was not exempt from CEQA review. SLC had found that land exchange agreement was statutorily exempt under Public Resources Code section 21080.11, which states: “This division shall not apply to settlements of title and boundary problems by the State Lands Commission and to exchanges or leases in connections with those or leases in connection with those settlements.” Applying principles of statutory construction, the Court of Appeal held that the statutory exemption for “settlements and title boundary problems” did not apply as a matter of law because there was neither a title or a boundary dispute nor settlement of any such dispute relating to Seawall Lot 351. Instead, the express purpose of the exchange is to further the 8 Washington Street Project. In reaching this conclusion, the Court of Appeal declined to defer to the public agencies’ interpretation of Public Resources Code section 21080.11.

RMM Attorneys Whit Manley, Chip Wilkins, and Chris Stiles represented Real Parties in Interest in the matter.

Second Appellate District clarifies facts and reaches different outcome than in prior published opinion, striking down a condition requiring a public access easement for a coastal development permit

General Posted by   

On rehearing, the Second Appellate District determined a public access easement required in a coastal development permit was an unconstitutional exaction based on the facts in the case Bowman v. California Coastal Commission, Case No. B243015 (Oct. 23, 2014). An earlier blog post describing the court’s original published opinion and the underlying facts of the case can be found here.

In short, Walton Emmick purchased approximately 400 acres of land in San Luis Obispo County that contained a single, uninhabitable residence and a barn in a state of disrepair. In 2002, Emmick applied to the County for a coastal development permit (CDP) to connect an existing well to the house. Emmick also received over-the-counter permits authorizing dry-rot removal and repairs to the roof and deck. Significantly, the County Code exempts repair and maintenance activities “that do not result in any change to the approved land use of the site or building…” from CDP requirements. Emmick began work pursuant to the over-the-counter construction permits but did not begin any of the work under the CDP.

As explained in the prior opinion, the original CPD included a condition imposing a lateral easement for public access along the shorefront portion of the property. No appeal to this condition was filed. Later, however, the County rescinded the first CDP and issued a second CDP that removed the condition imposing the easement. Environmental groups and two coastal commissioners appealed the second CDP to the California Coastal Commission, and the Commission accepted jurisdiction. After hearing, the Commission determined that the easement condition contained in the original CDP was permanent and binding on the landowner, and removal of the easement condition would violate the policy favoring public access to coastal resources. The Commission conditioned its permits on the implementation of the easement contained in the County’s original CDP.

Emmick’s estate filed a petition for an administrative writ of mandate to eliminate the public access condition from the CDP. The estate argued that the access easement condition constitutes an unlawful exaction of its property under the Fifth Amendment.

In its original opinion, the Court of Appeal denied the petition. The court determined that the estate failed to exhaust its administrative remedies because it had not challenged the County’s original CDP imposing the easement condition. Ordinarily, explained the court, the failure to pursue administrative remedies in an administrative mandamus action will bar a party from pursuing a remedy in court under the doctrine of collateral estoppel. In reaching the conclusion that Emmick’s estate had failed to exhaust, the court determined that Emmick had relied on the original CDP to make improvements on the property.

On rehearing, the court emphasized that, in fact, Emmick only completed work pursuant to the over-the-counter permits. Since these improvements were exempt from CDP requirements, the court concluded that Emmick had not relied on the original CDP. In light of these facts, the court concluded the doctrine of collateral estoppel did not support the court barring Emmick’s arguments due to a failure to exhaust administrative remedies.

The court then considered whether the access easement condition violated the Nollan and Dolan regulatory takings test: an argument the court did not previously reach. In this case, the easement lacked the “essential nexus” required by those cases since Emmick never accepted any benefit of the original CDP. Therefore, forcing Emmick to accept the access easement condition would amount to an unconstitutional taking.

This case presents an unusual about-face from an appellate court following a rehearing on a published opinion. The result of the rehearing here emphasizes the importance of the factual record in a mandamus case.

 

Second District Court of Appeal Holds EIR/EIS for the Newhall Ranch Resource Management and Development Plan and Spineflower Conservation Plan Complies with CEQA

General Posted by   

In Center for Biological Diversity v. Department of Fish and Wildlife (Mar. 20, 2014) ___ Cal.App. ___, Case No. B245131, the Second Appellate District reversed the trial court judgment granting a petition for writ of mandate challenging the California Department of Fish and Wildlife’s (Department) approval of the Newhall Ranch Resource Management and Development Plan and Spineflower Conservation Plan. In the published portion of its opinion, the court held that the provisions of the Fish and Game Code supported a determination that live trapping and transplantation of a protected species of fish does not constitute an unlawful taking when undertaken by the Department for conservation purposes. The court also found the Environmental Impact Report’s analysis of cultural resources, alternatives, impacts to Steelhead smolt, and impacts to spineflower complied with CEQA.

The Newhall Land and Farming Company proposed an almost 12,000-acre Specific Plan area approved by Los Angeles County in 2003 and to be built out over a number of years. After the local county approved an environmental impact statement for the proposed development, the Department prepared and certified an EIR for the project—a Resource Management and Development Plan and Spineflower Conservation Plan. The EIR analyzed the potential environmental effects of issuing incidental take permits and a streambed alteration agreement under the project. The construction of the project would impact, among other things, the stickleback, a fish protected under Fish & Game Code §5515(a)(1) as a “fully protected species.”

The Center for Biological Diversity filed a petition for writ of mandate challenging the Department’s actions. The trial court granted the writ petition, finding, among other things, that the department failed to prevent the taking of the stickleback. The Department and the developer appealed. The court of appeal reversed, holding that the trial court erred in granting the petition.

The court found substantial evidence supported the Department’s conclusion that no take of the stickleback would occur. The court found that the EIR contained mitigation measures to exclude stickleback from any construction areas in the river and to trap and relocate any stranded stickleback to other parts of the river in temporary containers. The court found substantial evidence supported a determination that no mortality would occur given the extraordinary measures taken by the Department to ensure the sticklebacks’ safety, including undertaking surveys of stickleback habitat prior to developing its plan, preparation of ten different studies, and employing the expertise of one of the leading authorities on stickleback preservation. The extensive mitigation measures, coupled with the expert’s discussion, constituted substantial evidence no deaths would result.

The court also rejected CBD’s contention that the mitigation measures themselves would constitute a taking prohibited by Fish and Game Code §§86 and 5515(a)(1). Those sections defined a prohibited take as the “catch, capture, or kill” of protected fish. After a thorough review of pertinent sections of the code, along with their legislative histories, the court agreed with the Department and developer that the use of live trapping and transplantation techniques approved in Fish and Game Code §2061 would not constitute a prohibited take or possession. The court reasoned the entire statutory scheme must be construed together and section 2061 allows for live trapping and transplantation when performed for conservation purposes. Such techniques, as explained by the Department’s expert, can involve the possession and movement of the stickleback in containers to parts of the river that would not be impacted by construction. Therefore, the court concluded the mitigation measures would not result in an unlawful take or possession of stickleback.

The court also rejected CBD’s claims that the EIR failed to adequately address the cultural resources impacts of the project. As an initial matter, the court found CBD had forfeited its cultural resources claims by failing to raise such issues during the public comment period. As a result, the court held CBD failed to exhaust administrative remedies and Department had no obligation to respond to untimely comments. Though finding the claims waived, the court addressed these claims on the merits and rejected them, finding the cultural resource analysis was supported by substantial evidence. The analysis in the EIR was based on extensive research, surveys, and studies performed by consultants with expertise in the field. The consultants undertook excavations of areas that the research and studies indicated resources might be present. Furthermore, the court found there was no evidence that the consultant have failed to uncover any human remains. Though human remains had been found near the project site, the court found that those earlier, off-site discoveries did not require the Department to conduct additional plug tests on site to confirm the consultant’s conclusion. The court also upheld the cultural resources mitigation measures set forth in the EIR as adequate and in full compliance with CEQA Guidelines §15126.4(b)(3)(A).

The court rejected CBD’s claim that the Department’s determination regarding the feasibility of one of the alternatives was not supported by substantial evidence. The court found that, in general, the alternatives were appropriate because they were required to follow the Newhall Ranch Specific Plan. In considering the objectives of the specific plan, the alternative in question would not meet the project objectives to provide a new major community with industrial, commercial, and residential uses because the alternative lacked commercial uses in one planning area and had no connectivity to the easternmost portion of the project area. Furthermore, the alternative was economically infeasible based on application of an industry metric of the cost per developable acre compared to the proposed project. The court upheld this methodology and found substantial evidence supported the Department’s determination regarding the infeasibility of the alternative.

The court rejected CBD’s claims that the EIR failed to address the potential effects on steelhead smolt downstream of the project area due to dissolved copper discharges.  Again, the court found CBD had forfeited its claims for failing to raise them during the public comment period. Though waived, the court addressed the claims and found that there were no steelhead smolt in the project area because the habitat would be below the dry gap where the river goes underground. Furthermore, the dissolved copper discharged to the river would be below the California Toxics Rule Threshold with compliance with regulatory requirements and implementation of mitigation measures and design features. The court found substantial evidence supported the Department’s determination that the project’s impacts on steelhead smolt would be less than significant.

The court rejected CBD’s claims of flaws in the EIR’s analysis of impacts to the San Fernando Valley spineflower, which is listed as endangered under the California Endangered Species Act (CESA) and is known to occur only in the project area and one other location in Ventura County.  The Department issued an incidental take permit for spineflower, allowing take of 24% of the habitat within the Specific Plan area. The court found substantial evidence supported the mitigation plan for the spineflower. The Department had employed 43 biologists who conducted 21 surveys to identify the potential spineflower habitat. The Conservation Plan would dramatically expand the area for potential growth of the spineflower: from 13.88 acres of growth to 56.79 acres of core growth, 110.77 acres of buffer and 42.90 acres of expansion areas. The Plan would ultimately increase the preserve areas from two to five. The court also found that Department’s comprehensive monitoring plan did not constitute impermissible deferral of mitigation, but rather called for future research, which represented “sound ecological management.”

In an unpublished portion of the opinion, the court upheld the EIR’s greenhouse gas analysis. The Department employed a significance threshold for greenhouse gas emissions premised on the reduction target established under the California Global Warming Solutions Act (AB 32) where GHG emissions would be significant if the project would impede achievement of a reduction in statewide GHG emissions to 1990 levels by 2020.  The court held the Department had discretion to employ this threshold and concluded the threshold was appropriate.  The court found the GHG analysis complied with CEQA because it was consistent with the requirements for such analysis set forth in CEQA Guidelines §15064.4(b)(1)-(3) and was supported by substantial evidence.

Second Appellate District Upholds Coastal Commission Development Permit Containing Lateral Public Access Easement

General Posted by   

In a short opinion, the Second Appellate District affirmed the Coastal Commission’s decision concerning a development permit issued by the County of San Luis Obispo in the case Bowman v. California Coastal Commission, Case No. B243015 (March 18, 2014). The Coastal Commission refused to lift a public access agreement contained in a coastal development permit when applicants applied for a second coastal development permit for the same property.

The subject property is approximately 400 acres in San Luis Obispo County and was owned by Walton Emmick. At the time of purchase, the property contained a single family residence and barn—both of which were in disrepair and unusable. The property includes about one mile of shoreline along noncontiguous parcels.

Emmick applied to the County for a coastal development permit (CDP) in 2002 for improvements to the house, installation of a septic system, and connection to an existing well. Emmick began to work on the residence pursuant to the construction permits, but the County told him to stop until the CDP was issued.

Emmick passed away in 2003, and the SDS Family Trust succeeded to the property. Subsequently, in 2004, the County approved the coastal development permit (CDP-1) for which Emmick had originally applied. The CPD was conditioned upon an offer to dedicate a lateral easement for public access along the shorefront portion of the property. The notice of approval informed the SDS Family Trust that it had 14 days to appeal.

No appeal was filed, but nine months later, the SDS Family Trust applied to the county for another coastal development permit (CDP-2). The permit application was for construction of a new barn to replace the existing one, which had collapsed. The application also included the same scope of work requested and approved under CPD-1 along with a request for the removal of the easement condition imposed by CPD-1. The county approved the CDP-2 application despite finding that the SDS Family Trust was in violation of the CDP-1 lateral easement condition because work had begun on the residence but no offer to dedicate had been recorded.

The Sierra Club, the Surfrider Foundation, and two coastal commissioners appealed the county’s approval of the CDP-2 application to the Coastal Commission. The appealing parties argued the county improperly eliminated a valid, existing easement which had been imposed by CDP-1. The Coastal Commission agreed with the appealing parties. The SDS Family Trust responded by filing a petition for writ of mandate, but the trial court ruled for the Commission. The trust appealed.

On appeal, the SDS Family Trust attempted to argue the access easement condition violated the Nollan and Dolan regulatory takings test. The appellate court did not reach this argument though. Instead, the appellate court pointed out that the county made a quasi-judicial determination when it granted CDP-1 and no one appealed that determination, so it became final. Therefore, the SDS Family Trust could not collaterally attack the county’s determination in a second permit proceeding after failing to exercise its administrative remedies during the first proceeding.

The SDS Family Trust then attempted to argue that they were a dissatisfied permit applicant who could simply “walk away” from the permit and apply for a new one. But the appellate court invoked the doctrine of collateral estoppel to reject this and similar arguments. The appellate court noted the purpose of collateral estoppel is to protect the finality of judgments and administrative decisions; so again, a party dissatisfied with an administrative decision must challenge that decision directly on appeal. The SDS Family Trust could walk away from the permit, but it could not walk away from County’s final determination that the lateral easement condition was a valid condition for granting the proposed permit.

This case serves as an important reminder for CEQA practitioners. While the CEQA statute is clear about the requirement that parties exhaust administrative remedies before seeking a court’s relief, this requirement applies wherever an administrative tribunal renders a quasi-judicial opinion.

Update: Court of Appeal reverses decision on rehearing.

Court holds that only agency decisionmaking bodies may certify the project’s EIR

General Posted by   

In California Clean Energy Committee v. City of San Jose (2013) ___Cal.App.4th___ (Case No. CV212623), the city of San Jose prepared an environmental impact report for Envision San Jose, a comprehensive update of the city’s general plan. CCEC submitted a comment letter criticizing the project and the draft EIR’s analysis, arguing that the draft should be recirculated. The planning commission certified the EIR without recirculation. CCEC did not appeal the decision. CCEC subsequently submitted a letter to the city’s planning department but did not mention any deficiencies in the final EIR or the certification process. The city council thereafter independently reviewed, analyzed, and certified the final EIR. CCEC sued, the trial court granted the city’s motion for summary judgment, and CCEC appealed.

CCEC argued that the city planning commission’s certification of the final EIR was unlawful because the planning commission had no approval authority over the project.   The Court of Appeal agreed. The CEQA Guidelines prohibit the decisionmaking body of a public agency from delegating review of a final EIR to a nondecisionmaking body. The planning commission was not a decisionmaking body for the project because it could not to approve or disapprove the project. The court rejected the city’s contention that its certification process was bifurcated, since bifurcation would allow a decisionmaking body to be bound by a finding made by a nonelected, nondecisionmaking body. This process would skirt the purpose of CEQA by segregating environmental review of the EIR from project approval.  Because the planning commission did not have the authority to certify the EIR, the court held that CCEC did not need to take an administrative appeal against the commission in order to exhaust its administrative remedies. The court of appeal reversed the judgment of the trial court, effectively sending the matter back to the trial court to consider the merits of CCEC’s petition.

California Supreme Court holds that exhaustion of administrative remedies is required for challenges to categorical exemptions under CEQA where public hearings are held.

General Posted by   

On June 14, 2012, the California Supreme Court decided Tomlinson v. County of Alameda (Case No. S188161), holding that the requirement for exhaustion of administrative remedies found in Public Resources Code section 21177, subdivision (a) of the California Environmental Quality Act (CEQA) applies to an agency’s decision that a project is categorically exempt from compliance with CEQA, so long as the public agency gives notice of the grounds for its exemption determination, and that determination is preceded by a public hearing at which members of the public had the opportunity to raise objections to the project.

In its decision the Court carefully considered conflicting holdings in Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 and Hines v. California Coastal Commission (2010) 186 Cal.App.4th 830.

Azusa held that section 21177’s exhaustion requirement does not apply to a challenge to a public agency’s decision that a project is categorically exempt from CEQA compliance, whereas Hines held to the contrary.

Procedurally, the issue is that while section 21777 requires that petitioners exhaust their administrative remedies during the public comment period or during a public hearing on the project before issuance of a notice of determination, CEQA does not provide for a public comment period prior to an agency’s determination of a categorical exemption. Further, no public hearing typically precedes the agency’s notice of determination in this situation, because a notice of determination is not generally filed for a categorical exemption.

Under Hines, an exhaustion provision does apply for categorical exemptions, where there was ample notice of a public hearing. The Court followed Hines rather than Azusa because it found that in this case, as in Hines, the agency did hold public hearings on the project which gave interested parties the opportunity to raise objections to the project before the agency’s exemption finding.

The Supreme Court did not reach the petitioners’ arguments that the public agency’s description of the requirements for the infill exemption was misleading, where the County omitted any mention of the infill exemption’s criterion requiring that the project be located “within city limits.” In Tomlinson, the County did not quote the full language in CEQA Guidelines section 15332 in any of its notices and staff reports. Instead, it substituted “in an established urban area” for the exemption’s language “within city limits” in all of its summaries of the exemption criteria in project materials. Petitioners asserted that this substitution misled and prevented them from raising the specific issue of whether the “city limits” restriction disqualified the project from using the infill exemption. The Court also did not address the argument that the petitioner’s extensive objections to the project on multiple issues at public hearings were sufficient to satisfy the exhaustion requirement.

The Court remanded the case to the Court of Appeal to determine whether the claims the petitioners raised were adequate to put the County on notice that the infill exemption did not apply, and whether the County’s omission of key criteria for a categorical exemption excuses the petitioner’s duty to exhaust on that issue.

This case continues to have important precedential value: it is still important to resolve whether an agency must provide full and accurate information in order to successfully assert the affirmative defense of failure to exhaust administrative remedies in CEQA litigation. The Tomlinson petitioners were represented by RMM partner Sabrina V. Teller.

 

12