In Friends, Artists, and Neighbors of Elkhorn Slough v. California Coastal Commission (2021) 72 Cal.App.5th 666, the Sixth District Court of Appeal held that the California Coastal Commission (CCC) violated CEQA by analyzing a coastal development permit’s environmental impacts and adopting findings in support thereof after it had approved the permit and underlying project. Although the CCC is authorized to issue “revised findings” when the Commission’s action differs from what was proposed in the staff report, the court held that the revised findings in this case went too far and were an improper pot-hoc rationalization.
In 2000, Real Party in Interest Heritage/Western Communities, Ltd., applied to the County of Monterey for a combined development permit and coastal development permit (CDP) for the Rancho Los robles Subdivision. The project proposed more than 100 residential units on a commercial parcel. Monterey County prepared an EIR containing several alternatives, including one with a reduced number of units.
In 2008, the County Planning Commission recommended denying the project due to water supply and traffic congestion issues. Heritage/Western appealed the denial to the County Board of Supervisors. The Board disagreed with the Planning Commission and approved the project. The Board also certified the EIR and adopted a statement of overriding considerations regarding significant and avoidable impacts to traffic, groundwater, and seawater intrusion.
In 2009, Friends, Artists, and Neighbors of Elkhorn Slough (FANS) appealed the Board’s decision to the CCC, alongside two Coastal Commissioners. CCC staff issued a staff report recommending denial of the CDP primarily due to lack of adequate water supply. The staff report concluded further analysis for certain issues was unwarranted in light of staff’s recommendation to deny the permit.
On November 8, 2017, the CCC held a de novo hearing and voted to approve the CDP, despite staff recommending denial.
In August 2018, CCC staff issued a subsequent report, containing revised findings in support of the CCC’s approval of the CDP. The 2018 report concluded that water supply was no longer an issue that necessitated denying the project. The 2018 staff report also considered other impacts previously identified in the 2017 report and determined they were no longer relevant or significant, and that staff’s prior conditions of approval would still apply to the project but be adjusted where necessary and implemented in a manner consistent with the project as approved by the Commission. Finally, the report concluded that the project was consistent with CEQA because it adequately addressed any potential adverse impacts to coastal resources, and there were no additional feasible alternatives or mitigation measures that would substantially lessen adverse impacts. The CCC approved the revised findings at a public hearing on September 13, 2018, approximately ten months after the CDP was approved.
FANS filed a petition for writ of mandate challenging the CCC’s approval of the CDP. The trial court denied the petition, rejecting FANS’ assertion that the CCC violated CEQA by approving the project without conducting environmental review before making findings. FANS appealed.
Court of Appeal’s Decision
On appeal, FANS asserted that the CCC failed to employ the proper procedures required by CEQA and the Coastal Act because its “revised findings” were a post-hoc rationalization for the CCC’s prior decision to approve the project and went beyond what was permitted by the CCC’s regulations. The Court of Appeal agreed and reversed the trial court.
The Court of Appeal outlined the steps for seeking CCC review of an approved CDP application and noted that the Commission’s de novo review of a permit application mimics CEQA’s environmental review process. The analysis and recommendation in a staff report must be accompanied by specific findings regarding—among other factors—the project’s conformity with the Coastal Act and CEQA. If the CCC’s action on the project substantially differs from staff’s recommendation, the prevailing Commissioners must separately state the basis to allow staff to prepare a revised staff report with proposed revised findings that reflect the action taken by the Commissioners. Under section 13096 of the CCC’s regulations, a public hearing must be held before the revised findings are adopted. (Cal. Code Regs., tit. 13, § 13096, subd. (c).) After the hearing, the CCC must vote on whether to adopt the revised findings.
Based on the facts of the case, the court held that the CCC’s environmental review for the CDP was incomplete at the time of approval, and the revised finding did not make up for the shortcoming. The court determined that the CCC’s decision to approve the project relied on a staff report that failed to contain elements required by CEQA (and the Commission’s certified regulatory program), including project alternatives, feasible mitigation measures to substantially lessen significant adverse effects, and conditions of approval.
In reaching its conclusion, the court explained the importance of these factors: “Requiring specific findings about alternatives and mitigation measures ‘ensures there is evidence of the public agency’s actual consideration of alternatives and mitigation measures, and reveals to citizens the analytical process by which the public agency arrived at its decision.’ [Citation.]” (Opinion, p. 32.) Through this lens, the court clarified that section 13096 “requires commissioners to set forth the analytic route between the evidence and the action at the hearing before approval.” The court further observed that no prior case law involved facts similar to this one, where the CCC’s environmental analysis was this incomplete at the time a CDP was approved. Accordingly, the court found that the CCC abused its discretion because it was required to conduct the analysis before it approved the project.
– Bridget McDonald