Tag: Procedure


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

Court of Appeal Rules Delayed Request for CEQA Hearing is Excusable Error

CEQA litigators can breathe a small sigh of relief knowing that a calendaring error during otherwise vigorous advocacy should not prejudice their clients. The Second District Court of Appeal in Comunidad en Accion v. Los Angeles City Council, ___ Cal. App. 4th ___, Case No. B240554 (Sept. 20, 2013) found that requesting a CEQA hearing seven days past the 90-day deadline was excusable error deserving discretionary relief. Environmental justice advocates, however, will be disheartened by the court’s separate holding that a city’s local enforcement agency is not subject to the antidiscrimination statute that applies to state-funded activities.


In May 2010, the Los Angeles City Council approved siting a new 104,000-square-foot solid waste transfer station, an expanded materials recycling facility, and an expanded green waste processing center at the Bradley Landfill site in Sun Valley, Los Angeles. Community organization Comunidad en Accion challenged the city’s decision, alleging the facility subjected the predominately Latino Sun Valley residents to a disproportionate amount of pollution.

Under CEQA, a petitioner must request a hearing within 90 days of filing its petition or be subject to dismissal on the court’s or another party’s motion. Comunidad’s counsel inadvertently omitted the 90-day deadline from his personal calendaring system, and thus was seven days late requesting a hearing. The trial court found this delay inexcusable and dismissed Comunidad’s CEQA claims.

CEQA holding

The court of appeal disagreed and held the trial court abused its discretion in denying Comunidad’s motion for relief from dismissal. The court laid out two competing public policies at play: a strong preference for trial on the merits versus the desire for expeditious CEQA review. Previous cases had afforded plaintiffs relief in CEQA actions where there was “excusable error,” which the court defined as a mistake anyone could have made, rather than conduct falling below a professional standard of care. A calendaring error, the court believed, was a “clerical type mistake, not one involving professional skill.”

The court analogized two cases that had found calendaring errors excusable under certain circumstances. The guiding principle in those cases was that unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. The court also distinguished a case of inexcusable error where counsel made numerous missteps resulting in the absence of any opposition to a summary judgment. Comunidad counsel’s one-week delay in requesting a hearing, in contrast, was “an isolated mistake in an otherwise vigorous and thorough presentation” of the client’s claims. The court emphasized that counsel had diligently prosecuted the case up to that point. Furthermore, respondents had not suffered prejudice from the delay, since their preparation of the administrative record was not complete when Comunidad requested a hearing.