Tag: Fair Argument

First District Finds Noise Analysis by Non-Expert Attorneys Not Substantial Evidence

In Jensen v. City of Santa Rosa (2018) ___ Cal.App.5th ___ (May 1, 2018, A144782), the First District upheld a negative declaration for a youth treatment center, finding that noise analysis offered by non-expert attorneys was not substantial evidence in support of a fair argument of a potentially significant noise impact from outdoor recreation activities and the parking lot at the center.

In 2014, Santa Rosa approved plans to convert the shuttered Warrack Hospital to the SAY Organization’s new Dream Center. SAY is a non-profit organization that provides housing, counseling, and job services to youth and families in Sonoma County. The facility would offer temporary housing, job skills training, health services, and enrichment activities. The property is in a developed area, surrounded by residential housing, offices, and a hospital.

SAY filed applications for a conditional use permit, rezoning, and design review to implement the project. The initial study/negative declaration concluded there would be no significant impacts, and the planning commission approved the project. Two neighbors appealed the decision to the city council on the basis that the city’s noise impact analysis was flawed. The neighbors filed suit after the city rejected their appeal. The lower court found for the city, and petitioners appealed.

The First District evaluated whether substantial evidence supported a fair argument that noise impacts from the project’s parking lot and outdoor recreation area could be significant, thus requiring an EIR.

Petitioners urged the court to reject the city’s noise study, and rely instead on their independently calculated findings purporting to show the project’s noise levels would be significant. Petitioners’ attorneys extrapolated their own analysis from a previous study conducted by noise experts for the city, for another project, at a different site. Petitioners also argued that the city’s noise ordinance set the maximum allowable noise levels, and any noise that would exceed those thresholds was a significant impact.

The court rejected all of petitioners’ arguments. First, the court rejected petitioners’ interpretation of the city’s noise ordinance, finding that its “base” noise values set the standard or normally acceptable levels, not maximum allowable levels, and thus, were not significance thresholds for CEQA’s purposes. Furthermore, the ordinance was not as inflexible and quantitative as petitioners alleged, but rather, allowed for experts to consider factors such as the noises’ level, intensity, nature, and duration when determining if impacts would be significant. Under this analysis, petitioners failed to identify any evidence in the record that noise impacts would exceed the allowable threshold.

The court rejected the petitioners’ contention that their noise calculations based on another study for a different project were substantial evidence that this project could result in noise impacts. Substantial evidence must be reasonable, credible, and of solid value. In testing for potential significant impacts, a party cannot just import the values of one study onto those of another, particularly in the absence of qualified expert opinion. Petitioners’ convoluted methodology and ultimate conclusions were based on speculation, rested on supposition and hypothesis, and were not confirmed by experts. The analysis also ignored key facts, such as limitations on parking lot use and hours of operation.

The court also noted that petitioners’ conclusions, which they drew from the different project’s noise study, were not presented to the city during the approval process, and did not appear in any part of the administrative record; rather the other study was simply attached to their comments during their city council appeal. Only during appellate briefing did petitioners present the calculations they extrapolated from the other study. For that reason alone, the court stated it was justified in rejecting the petitioners’ calculations.

Given the court’s conclusion that the offered evidence lacked the requisite foundation and credibility, petitioners failed to demonstrate, even under the comparatively low fair argument standard, that further environmental review was required.

(Bridget K. McDonald)

Fourth District Court of Appeal Upholds Reliance on Mitigated Negative Declaration and Approval of Construction of School

The Fourth District Court of Appeal upheld the trial court’s decision denying a challenge to the City of San Diego’s approval of construction of a secondary school and associated adoption of a mitigated negative declaration. (Clews Land and Livestock, LLC v. City of San Diego (2017) ___Cal.App.5th ___ (Case No. D071145).)

The City of San Diego adopted an MND and approved a project to build the 5,340-square-foot Cal Coast Academy, a for-profit secondary school, on property adjacent to the plaintiffs’ (Clews Land and Livestock, LLC, et al. [“CLL”]) commercial horse ranch and equestrian facility. CLL filed a petition for writ of mandate and complaint alleging the project would cause significant environmental impacts relating to fire hazards, traffic and transportation, noise, recreation, and historical resources. CLL also argued that CEQA required recirculation of the MND, that the project was inconsistent with the applicable community land use plan, and that the City did not follow historical resource provisions of the San Diego Municipal Code. The trial court determined that CLL had failed to exhaust its administrative remedies, and ruled in favor of the City on the merits. CLL appealed and the Court of Appeal upheld the trial court’s determinations.

Exhaustion of Administrative Remedies

The court first held that CLL failed to exhaust its administrative remedies. The San Diego Municipal Code appeal process provides for two separate procedures—one for appeal of a hearing officer’s decision to the Planning Commission, and one for appeal of an environmental determination to the City Council. Because CLL filed only an appeal of the hearing officer’s decision, the court determined that CLL failed to exhaust its administrative remedies with respect to adoption of the MND. CLL argued that the City’s bifurcated appeal process violated CEQA, but the court found the process was valid. CLL also argued that the City had not provided proper notice of the appeal procedures under Public Resources Code section 21177, subdivision (a), thereby excusing CLL’s failure to appeal the environmental determination. The court explained, however, that section 21177 did not apply because CLL’s failure to appeal was not a failure to raise a noncompliance issue under that section. Where, like here, a public agency has accurately provided notice of a public hearing, but it misstates the applicable procedures to appeal the decision made at that hearing, the only available remedy is to prevent the public agency from invoking an administrative exhaustion defense through equitable estoppel. CLL had pursued a claim for equitable estoppel in the trial court and was unsuccessful, and CLL did not challenge that determination with the Court of Appeal. Therefore, the court found, CLL’s failure to exhaust could not be excused on an equitable estoppel basis.

Adoption of the MND

Notwithstanding its determination that CLL failed to exhaust its administrative remedies, the court also considered the merits of CLL’s claims. The court determined that CLL did not make a showing that substantial evidence supported a fair argument that the project may have a significant effect on the environment. In making its determination, the court emphasized that the project is “relatively modest” and located on already-developed land.

CLL argued that the City was required to prepare an EIR due to potentially significant impacts on fire hazards, traffic and transportation, noise, recreation, and historical resources. The court rejected each of CLL’s arguments. In part, the court was unpersuaded by CLL’s expert’s comments because they were “general” and did not have a specific nexus with the project, they focused on the effects of the environment on the students and faculty at the school rather than on the effects of the school on the environment, and they were conclusory and speculative. In addition, quoting Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 684, the court noted that “dire predictions by nonexperts regarding the consequences of a project do not constitute substantial evidence.” The court also found that a possibility that noise from the project would impact the adjacent business’s operations was insufficient to require an EIR under CEQA. The court explained that the question is not whether the project would affect particular persons, but whether the project would affect the environment in general. In addition, the court explained that the fact that a project may affect another business’s economic viability is not an effect that must be analyzed under CEQA unless the project may result in a change in the physical environment, such as by causing urban decay.

Recirculation of MND

CLL argued that by adding a shuttle bus plan and describing the school’s intent to close on red flag fire warning days after circulation of the MND, the City substantially revised the MND and was required to recirculate the draft prior to certification. The court rejected these contentions, explaining that the added plans were purely voluntary, and thus could not constitute mitigation measures. In addition, the court explained, CLL did not show that the plans were added to the project to reduce significant effects on the environment. According to the court, all revisions to the MND were clarifying and amplifying in nature and did not make substantial revisions to the project, and therefore, did not warrant recirculation.

Historical Resource Regulations

CLL argued that City did not follow its historical resource regulations and guidelines. The court explained that the City relied on an exemption contained within the regulations, but CLL did not address the substance of that exemption, nor did CLL show that the City was actually required to apply the specific procedures contained in the regulations. Instead, CLL simply critiqued the City’s reliance on the exemption as a post hoc rationalization; the court found this was not enough to meet CLL’s burden to show failure on the part of the City.

Consistency with Neighborhood Plan

CLL argued that the project conflicted with the Carmel Valley Neighborhood 8 Precise Plan because the plan designates the site as open space. CLL’s argument was two-fold. First, CLL argued the site could not be developed because of the plan’s open space designation. Second, CLL argued the plan’s designation was in conflict with the multifamily residential zoning at the project site.

With respect to the plan’s open space designation, the court held that CLL failed to meet its burden to show that the City’s consistency finding was an abuse of discretion. The court explained that the standard is whether no reasonable person could have reached the conclusion made by the City. In making its determination, the City relied on the fact that the property was already developed—the school would be sited at the location of a previously-capped swimming pool, and the project would not impact or be developed on undisturbed open space. The court found that the City’s determination was reasonable, and that CLL did not address the City’s reasoning or explain how the City abused its discretion. With respect to the site’s zoning, the court explained that consistency of the zoning ordinance with the plan was not at issue—instead, the issue was whether the project is consistent with the Precise Plan’s open space designation.

The court affirmed the judgment of the lower court and upheld the City’s determinations regarding the project and the associated MND.

Elizabeth Pollock

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.

Third District Court of Appeal Strikes Down Negative Declaration Prepared for a County’s Oak Woodland Fee Program

Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156

The Third District Court of Appeal struck down negative declaration prepared for El Dorado County’s oak woodland fee program, rejecting the county’s attempt to tier off the program EIR prepared for its General Plan. 

In 2004, El Dorado County certified a program EIR and adopted a general plan.  The program EIR acknowledged that development under the new general plan would have significant impacts on oak woodland habitat.  The plan included a policy to develop an integrated natural resources management plan.  The plan had two options to protect woodlands:  “Option A” required adherence to canopy retention standards and replacing woodland habitat at a 1:1 ratio; and “Option B” required payment of an in lieu fee into the county’s integrated plan’s conservation fund.  Pending completing of the integrated plan, the county required project developers to mitigate the loss of oak woodland habitat through only Option A.  In 2008, the county adopted an oak woodland management plan. The purpose of the management plan included developing the Option B fee program and creating a foundation for the oak woodland conservation portion of the integrated plan. Development of the management plan required mapping existing oak woodlands and identifying conservation priorities. Certain criteria were used to prioritize areas with the highest biological value. Valley oak woodland was designated as sensitive habitat.  The plan also included oak woodland corridors for wildlife.  To analyze the environmental effects of the management plan, the county prepared an initial study and negative declaration that tiered from the 2004 program EIR.  The petitioners challenged this approach, arguing an EIR was required.  The trial court denied the petition.  The petitioners appealed.

The county argued the oak woodland management plan and Option B fee program were encompassed in the 2004 program EIR.  The Court disagreed, holding that the 2004 program EIR did not encompass the oak woodland management plan and Option B fee program.  The county had to make a number of judgment calls regarding the details of the fee program, and the general plan and program EIR had not considered or analyzed these details.  First, the 2004 program EIR and general plan did not differentiate between oak species. The management plan, however, focused on valley oaks to the exclusion of other oak species.  Second, the 2004 program EIR did not determine the measurement metric for conservation of oak woodlands to be used under Option B; yet, the choice of one metric versus another would alter the fees required under the Option B fee program.  Third, the 2004 program EIR did not set the fee rate to be paid if a project applicant elected to mitigate under Option B.  Although preservation programs funded by impact fees can be appropriate mitigation, the program must still, at some point, undergo CEQA review.  Fourth, the county’s 2004 program EIR had not specified how fees collected under Option B should be used to preserve oak woodlands. The program EIR emphasized the importance of maintaining connectivity among preserved oak woodlands, yet the county deferred the issue of connectivity until after other elements of the integrated plan could be established.  As a result, the Option B mitigation approach differed from the 2004 program report’s emphasis on the protection of connectivity between woodland habitats.

The Court concluded the record supported a fair argument that the oak woodland management plan and Option B fee program could have a potentially significant effect on the environment. While the 2004 program EIR determined impacts would remain significant even with mitigation, the negative declaration for the management plan concluded cumulative impacts would be less than significant.  The county argued there would be no greater adverse environmental effect than already anticipated in the 2004 general plan and program EIR. The Court rejected this argument, noting that, prior to adoption of the management plan, oak woodlands were required to be preserved at a 1:1 ratio on-site under Option A; that was no longer true under Option B.  For this reason, the county had to prepare an EIR.

Fifth District Finds Irrigation District has Standing Under CEQA to Challenge Environmental Review Document

Consolidated Irrigation District v. City of Selma (5th Dist. Feb. 28, 2012 [modified March 9th, 2012]) __ Cal.App.4th__ (Case No. 08CECG01591)

On February 8, 2012, the Fifth Appellate District ruled that a lower court properly found an irrigation district had standing to sue under CEQA and challenge a residential development approved by the City of Selma. The court also found the administrative record provided substantial evidence supporting a fair argument that the proposed project would result in potentially adverse significant impacts, and therefore, a mitigated negative declaration was inappropriate and a full environmental impact report was required.

Factual and Procedural Background

Raven Development, Inc., proposed developing a 160-unit, single-family residential subdivision that would be annexed by the city. Water for the proposed subdivision would be provided by a private water company. The initial environmental study concluded that the project’s groundwater use would not be significant and would not interfere substantially with the recharge of the aquifer; therefore, no mitigation would be required for the project’s impacts on hydrology and water quality.

Petitioner Consolidated Irrigation District (CID) is an independent special district formed under the California Water Code. The district is located in southern Fresno County, and its boundaries enclose approximately 163,000 acres of land, the majority of which is irrigated agricultural land.  The District delivers over 200,000 acre-feet of surface water for irrigation per year. The District also operates a groundwater recharge system that includes over fifty recharge basins.

An integrated regional water management plan was completed for the Upper Kings groundwater basin. The water management plan included findings that the Kings groundwater basin was in a state of overdraft that would continue to worsen through year 2030 based on projected conditions. The findings noted that between 2005 and 2030, the groundwater levels in the District’s urban areas will decline between an estimated five and ten feet.

The city prepared a mitigated negative declaration for Raven Development’s proposed subdivision. During the public review period, the District submitted letters stating the conversion of agricultural land to urban land was having an adverse and cumulatively significant impact on the groundwater basin, and the project potentially could have cumulative hydrology impacts as well. The District asserted that a full EIR was required. Despite these concerns, the city council adopted resolutions approving the project and adopting the MND.

CID filed a petition alleging that substantial evidence supported a fair argument that the project could result in significant impacts to the environment. CID requested that the city prepare the administrative record.

The city lodged a certified administrative record. Subsequently, CID filed a statement of issues.  This included an allegation that mandatory portions of the administrative record had not been included. CID filed a motion to augment the record, claiming it did not contain four documents that CID had submitted to the city. The trial court ordered that the administrative record be augmented and ultimately found the city violated CEQA when it approved the project. The court determined that the city needed to prepare a full EIR to address the significant cumulative impacts attributable to the project, among other potential impacts. The city appealed.

The Appellate Court’s Decision

On appeal, the city argued the trial court erred when it allowed the challenged documents to be added to the administrative record.  The city asserted the documents were not presented to a city decision-making body, and therefore, were not considered during the project approval process. The city further argued that the trial court erred in determining the district had standing. Finally, the court addressed the fair argument standard as applied to MNDs and issues of credibility of evidence submitted before an agency.

Order Augmenting the Administrative Record

The parties disagreed on the appropriate standard of review to be applied to the trial court’s decision to grant the motion to augment the administrative record. The city asserted de novo review of the trial court’s decision was the appropriate standard. The city argued this review should be limited to an examination of the administrative record. CID disagreed and claimed the only issue was whether the documents had been submitted to a decision-making body prior to the final approval of the project. Therefore, the trial court’s decision to augment the record with the contested documents should be upheld under the substantial evidence standard of review.

The court of appeal noted that the parties briefed the appeal before the court published its decision in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, which addressed numerous questions related to the scope of the administrative record. Relying on Madera Oversight, the court determined Public Resources Code section 21167.6, subdivision (e), governing the contents of administrative records, is mandatory, and the requirements thereof are not committed to the discretion of a trial court. Instead, the findings of fact made by the trial court in determining whether documents are part of the record are appropriately reviewed under the substantial evidence standard.

The trial court based its decision to augment the administrative record on conflicting evidence presented by the city and district. Testimony from a district representative indicated that the documents in question had been presented to the city planning commission at a public hearing. The planning commission had failed to maintain two files in its record that it later agreed should have been included. Further, while transcripts were not available for the hearing, minutes indicated that the district submitted three documents. Testimony from the district’s representative indicated that two documents had actually been submitted to the city as a single document. The appellate court determined these facts presented substantial evidence supporting the trial court’s order to grant the motion to augment the record.

Standing of a Public Agency

The city also argued the trial court erred when it determined CID had standing to bring an action under CEQA. The city asserted the water district could not claim public interest standing to bring a citizen suit under CEQA. The city reasoned that a public agency could not qualify for public interest standing because it is a governmental body. The court declined to address this argument after finding the district adequately met the usual “beneficially interested” standing requirement under Code of Civil Procedure section 1086.

The court determined the district was “beneficially interested” after citing Water Code section 22650, which states, “A district may commence and maintain any actions and proceedings to carry out its purposes or protect its interests…”  The court determined “interests” in this section included all beneficial interests sufficient to satisfying standing requirements of Code of Civil Procedure section 1086. As a result, CID had authority under the Water Code to pursue CEQA litigation to protect its beneficial interests.

The court declined to adopt the city’s argument that a public agency only has a special interest or right, and therefore a beneficial interest, if the project affects a natural resource over which the agency has jurisdiction. The city attempted to support its argument by citing to CEQA Guidelines which limit the matters a public agency may comment on during environmental review. The court noted, however, that public agencies are authorized to submit comments to the lead agency on projects with impacts falling outside their legal jurisdiction if an affected resource is within an area of expertise of the agency. Therefore, the court concluded a public agency’s beneficial interests are not limited only to resources over which it has direct jurisdiction.

In this case, the district argued its operations, including that of numerous groundwater recharge basins, would be adversely affected by the project. The court found the operation of these recharge basins gave CID a special interest in the local groundwater. As a result, the district had a beneficial interest that could be adversely affected by the project. Therefore, the district satisfied the standing requirements necessary to file suit to enforce CEQA.

Application of the Fair Argument Standard

An agency’s decision to certify a negative or mitigated negative declaration is reviewed by courts under the fair argument test. If this test is met, then the declaration is overturned and the agency must prepare and certify an environmental impact report. A fair argument that a particular project may have a significant adverse effect on the environment must be supported by substantial evidence in the administrative record. The city argued the lead agency has discretion to determine whether evidence presented is actually substantial. The court disagreed and noted that whether an administrative record contains sufficient evidence to support a fair argument is a question of law.  Instead, the court found deference to the agency appropriate only for limited issues of credibility.

To support rejecting evidence for lack of credibility, an agency must identify that evidence with sufficient particularity to allow a reviewing court to determine if there were actually disputed issues of credibility. The court determined this was an appropriate requirement to prevent post hoc rationalization by the agency. In this case, the city could provide no citations to the administrative record showing any decision-maker questioned the credibility of any evidence presented. Therefore, court declined to defer to the city when reviewing the record to determine if it supported a fair argument that the project would cause significant adverse impacts.

Conclusion

This case further illustrates the difficulty lead agencies can face in defending MNDs. It also indicates that it is important for agencies to identify and discuss the reasons they believe presented evidence may not be credible. If an agency fails to do this, a court is likely to dismiss subsequently presented credibility challenges as simply post hoc rationalization.

In addition, an agency’s beneficial interest in CEQA proceedings extends not only to just the natural resources over which the agency has direct jurisdiction, but also those which have some relation or connection to the jurisdictional resource areas.