Tag: project description

SECOND DISTRICT HOLDS AGENCY’S ADOPTION OF A MODIFIED PROJECT THAT DEVIATED FROM THAT DESCRIBED IN THE EIR DID NOT RENDER THE PROJECT DESCRIPTION UNSTABLE

General Posted by   

In a partially published opinion, Gooden v. County of Los Angeles (2024) 106 Cal.App.5th 1, the Second District Court of Appeal held that the Los Angeles County Board of Supervisors’ decision to prohibit new vineyards as part of an area plan update—a proposal not included in the EIR—did not violate CEQA’s requirement that a project description be accurate, stable, and finite. In doing so, the court applied the de novo standard of review to whether the project description contained an accurate, stable, and finite project description.

Background

The Project was a “comprehensive update” to the North Area Plan (NAP) and Community Standards District (CSD), enacted in the years 2000 and 2002 respectively, to serve as part of the County’s General Plan governing 21,000 acres in an unincorporated portion of the Santa Monica Mountains. The NAP served as a “planning tool” with “area-specific policies”; the CSD was a “zoning overlay” to implement the policies of the NAP.

The County issued a Draft EIR in May 2020 which identified revisions to the NAP and CSD including a proposal to reduce the minimum threshold for when grape-growing would be considered a “vineyard” and therefore subject to more stringent development standards and new standards for pest management. The Draft EIR did not include a proposal to ban new vineyards.  While several commenters expressed support for a complete ban, the Final EIR likewise did not propose a ban on new vineyards. The Department of Regional Planning recommended certification of the Final EIR and approval of the NAP and CSD as proposed.

The Board of Supervisors later certified the Final EIR and approved the Project with one pertinent change: prohibiting new vineyards of any size.

A group of petitioners filed a petition for writ of mandate alleging that the Board’s change to the project rendered the project description unstable and thus violated CEQA. The trial court denied the petition. One of the Petitioners, Gooden, appealed.

The Court of Appeal’s Decision

In the published portion of the decision, the Court of Appeal found that the Board’s adoption of the modified Project did not violate CEQA’s requirement of an accurate and stable project description.

The court first noted that CEQA allows flexibility for agencies to adopt a project that deviates from what was described in the EIR to allow for alterations in response to public feedback – the very purpose of CEQA’s requisite information exchange. However, the court said, when the later deviation is so great that the project description misleads the public, thwarting the public’s ability to participate in the process and comment meaningfully on the project, the earlier description may be unstable and inadequate.

Applying the “de novo” standard of review, the court concluded that the Board’s approval of the project including a ban on all new vineyards did not render the project description unstable. According to the court, the portion of land dedicated to agricultural land use was small within the greater NAP and CSD and constituted a small portion of the project plan, just half of one page of a total 91 pages. The court found it significant that the topic of vineyard regulation was discussed within the plan, preserving the project and its main features. The court noted the while change was significant to new vintners, a different rule would implicate all subsequent changes to a project description.

Third District Upholds the Department of Water Resources’ Long-Term Extensions of State Water Project Contracts under CEQA, the Delta Reform Act, and the Public Trust Doctrine

General Posted by   

In Planning and Conservation League v. Department of Water Resources (Cal. Ct. App., Jan. 5, 2024, No. C096304), the Third District Court of Appeal upheld an EIR prepared by the Department of Water Resources (DWR) for DWR’s approval of amendments to long-term water supply contracts with local water agencies receiving State Water Project (SWP) water. These contract amendments extended the terms of the SWP water supply contracts to 2085 and expanded DWR’s ability to use revenue bonds. In a victory for DWR and the SWP water contractors, the court upheld DWR’s EIR against an array of CEQA challenges. The court also rejected the petitioners’ claims that the amendments violated other legal requirements, including the Delta Reform Act, the Public Trust Doctrine, and the Burns-Porter Act.

By way of background, in the 1960s, DWR and 29 local government contractors entered into long-term (75-year) contracts granting the contractors rights to a portion of water from the SWP in exchange for the local agencies’ financial obligations. Each contract includes a table, “Table A,” that specifies the maximum annual water allocation, although full delivery is not guaranteed and often amounts to about half the Table A amount.

The contracts include an “evergreen clause” that allows the contractors to opt for continued service beyond the contract’s expiration by giving advanced notice. Several contractors exercised this option, leading to negotiations for long-term extensions of the contracts. The negotiations aimed to address the “debt compression problem,” where the impending contract termination limited bond maturity to 17 years, increasing the repayment costs. DWR and the contractors reached an agreement in principle to extend the contracts to 2085, which would allow for longer-term bond funding for essential capital upgrades and repairs. They also agreed to a revenue bond amendment that updates the definition of water system facilities to include post-1987 repairs and approved capital projects.

DWR prepared an EIR for the proposed amendments. The EIR concluded that the amendments would not cause environmental impacts because they would not alter the existing authority to build or modify SWP facilities, change water allocations, or create new water management measures.

After certifying the EIR, DWR filed a validation action to validate the amendments. Thereafter, several conservation groups and public agencies brought legal challenges the EIR and the validation action. The trial court ruled in favor of DWR and the petitioners appealed.

CEQA

DWR properly assumed the existence of the current contracts in the EIR’s environmental baseline.

The petitioners argued that the EIR’s impact analysis was based on an improper baseline because the baseline included the current water contracts. The court explained that to determine whether a project’s environmental impacts are significant, the agency must compare the project against existing environmental conditions—the baseline. When a project involves ongoing activities or the extension of past activities, the current levels of use and their physical impacts are part of the baseline.

The court explained that this rule is applicable to renewing permits or approvals for existing facilities, even if those facilities had not been previously assessed under CEQA. Accordingly, the court held that DWR appropriately included the existing contract conditions in the environmental baseline. DWR was not required to use a hypothetical baseline “that imagines a world” without the contracts.

DWR did not improperly piecemeal the Project in excluding a Delta conveyance facility from the project definition.

The petitioners argued that the EIR’s analysis was inadequate because it failed to consider related projects – including a future Delta conveyance facility, such as the previously proposed “California WaterFix” project – as part of the proposal, leading to an overly narrow project description and improper piecemealing.

The court explained that CEQA requires an environmental analysis to consider the whole of an action affecting the environment. An agency may not divide a larger project into smaller segments, which might individually have minimal environmental impacts but could collectively result in significant environmental damage. Further, as held in Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights I), an EIR must analyze the environmental effects of any future expansions or actions that are a foreseeable consequence of the initial project and might alter its scope or environmental effects.

The petitioners argued that the trial court relied too heavily on the Laurel Heights I criteria, asserting that a broader “related to” test should apply and that actions that are close in time and location must be considered part of a larger project. The court rejected the petitioners’ argument, explaining that later opinions have confined such reasonings to situations in which a project legally necessitates or assumes the completion of another action, a situation that was not present here.

The court next explained that the courts have interpreted Laurel Heights I variously, with some concluding that a project is part of a larger project under CEQA if it is a “crucial element” of a larger project, such as when one project cannot proceed without the other. Other courts have held that there may be piecemealing when the project at issue is a first step or a catalyst toward another project. On the other hand, there is no piecemealing when the projects can be implemented independently.

Here, DWR properly treated the contract amendments as a stand-alone project, distinct from a future Delta conveyance facility. The record demonstrated that the amendments have separate, independent purposes from a Delta conveyance, such as addressing the bond compression issue. While the amendments may possibly aid in financing a conveyance facility, they serve broader purposes and address other challenges. Moreover, the record showed that there is considerable uncertainty as to whether a Delta conveyance facility would ever be approved or constructed. In light of these factors, DWR was not required to treat a potential, uncertain Delta conveyance as part of the same project as the contract amendments.

DWR did not need to assess the direct, indirect, and cumulative effects of projects that would benefit from the amendments’ bond funding.

The petitioners argued that the EIR should have evaluated the direct and indirect impacts of enabling a Delta conveyance project. The court found that this argument suffered from the same flaws as the petitioners’ piecemealing argument: the possibility of a Delta conveyance in the future is too speculative in terms of both its timing and scale. Lead agencies are not required to speculate about potential impacts.

The petitioners also argued that DWR should have evaluated the impacts of other capital projects financed by the amendments, such as the Oroville hydroelectric license project. Petitioners, however, failed to properly present this argument by failing to discuss these other projects or explain why their effects should be considered impacts of the amendments. Moreover, the argument was baseless. The EIR clarified that the amendments would support a variety of long-term capital projects. According to the petitioners’ logic, DWR would be obligated to predict the impacts of all of these projects in the EIR for the amendments, an expectation that is unreasonable. Further, the court noted, projects that are merely governmental funding mechanisms or fiscal activities that do not commit to any specific project that could have environmental effects are not subject to CEQA. Although these capital projects may be part of DWR’s overall plans for the SWP, their connections to the amendments is too tenuous: the amendments do not commit DWR to these projects and do not authorize revenue bonds for any of them (which would require a separate approval).

The EIR’s project description complied with CEQA and was not misleading or inconsistent.

The petitioners asserted – and the court rejected – three arguments regarding the EIR’s project description. First, the petitioners argued that depicting the Delta conveyance facility as a separate project in the EIR conflicted with statements made in earlier environmental review documents. The petitioners cited various documents to support this assertion, but failed to explain how these documents substantiated their position. Moreover, the court’s examination of the cited documents did not reveal any inconsistencies.

Second, the petitioners argued that identifying the 2085 extension date in the EIR was misleading and inaccurate because the EIR did not reveal DWR’s expectation of successive contract extensions under the existing contracts’ evergreen clauses. But petitioners failed to support this argument with any analysis or authority. Furthermore, the record demonstrated that there are clear differences between applying the evergreen clause to individual contracts and achieving a long-term extension for all contractors.

Third, the petitioners argued that the EIR incorrectly stated that the amendments would not change the authority under the current contracts to construct new or modify existing facilities. They argued that the amendments would remove limitations on revenue bond eligibility for new facilities, potentially financing new or expanded facilities. The court rejected this argument as inconsistent with the EIR’s project description, which made these facts plain by explaining that the amendments would offer enhanced funding mechanism that could fund new or expanded facilities.

The petitioners failed to show that the EIR’s range of alternatives was unreasonable.

CEQA requires an EIR to identify and evaluate a reasonable range of alternatives that could achieve most of the project’s basic objectives while avoiding or significantly reducing its adverse environmental effects. DWR’s objectives for the amendments included financing the SWP past 2035, maintaining funding reserves, simplifying the billing process, and improving financial coordination between DWR and the contractors. In addition to a no-project alternative, the EIR analyzed seven alternatives, including different contract extension lengths with or without financial amendments, bond sales extending beyond the current contract expiration, and a scenario where not all contractors agreed to the amendments. Two additional alternatives were considered, but rejected from further consideration in the EIR: reducing the “Table A” amounts and implementing new water conservation provisions.

The petitioners argued that DWR’s selection of alternatives violated CEQA in three ways. First, in a single-sentence argument, the petitioners asserted that the alternatives were not sufficiently different to constitute a reasonable range. The court summarily rejected this argument because the petitioners failed to provide any authority or analysis to support it. It was incumbent on the petitioners to show that the range of alternatives were manifestly unreasonable or identify evidence of a least one potentially feasible alternative that would meet most of the basic objectives while reducing the project’s impacts. The petitioners’ one-sentence statement did not satisfy this burden.

Second, the petitioners argued that the revenue bond amendment creates financial risk and that the EIR should have analyzed an alternative that excludes that amendment. The court rejected this argument, explaining that CEQA is not a statute for economic protection, and economic impacts alone do not qualify as significant environmental impacts. Moreover, the no-project and the extension-only alternative evaluated in the EIR sufficiently covered the exclusion of the revenue bond amendment.

Third, the petitioners challenged DWR’s rejection of alternatives to reduce Table A amounts and to implement new water conservation measures, arguing that these alternatives would reduce environmental effects and would align with other state laws and policies. The court rejected this argument, explaining that agencies are not required to analyze alternatives that would solve broader problems or add complex issues that the agencies had chosen not to address. Here, DWR deliberately limited the EIR’s scope to financial issues related to the SWP contracts and made a reasoned decision to exclude Table A amounts from the project’s scope. DWR was not required to analyze alternatives that address bigger issues than the problems DRW is trying to address.

DWR properly defined the no-project alternative as the water contracts proceeding without the amendments, rather than termination of the contracts.

An EIR is required to evaluate a “no project” alternative; the purpose of this requirement is to compare the environmental impacts of not approving the project with those that would occur if the project is approved. Here, the EIR’s no-project alternative assumed that operations and financing of the SWP would continue under existing contracts until December 31, 2035, with contract terms potentially extended beyond this date through the evergreen clause. Under this scenario, water services would continue beyond 2035 in line current financial terms, no bonds would be sold with maturity dates past 2035, and the debt compression issue would worsen. The EIR concluded that this alternative, like the amendments, would not lead to direct physical environmental impacts because it would not introduce new water management measures, change DWR’s authority to build or modify facilities, or alter water allocation in the existing contracts.

The petitioners argued that DWR should have considered, as the no-project alternative, a scenario in which the contracts are allowed to expire. According to the petitioners, relying on the evergreen clause as part of the no-project alternative is inappropriate because: (i) application of the evergreen clause might itself be a project; (ii) the evergreen clause does not guarantee an extension of all contract provisions; and (iii) the evergreen clause does not account for other future changes to the SWP that DWR has acknowledged. The petitioners further asserted that DWR’s analysis blurred the distinction between the no-project scenario and the amendments, thereby failing to provide a clear and factual analysis of maintaining the status quo.

The court rejected these arguments. The court explained that the analysis of the no-project alternative must consider current conditions and what can reasonably be expected in the foreseeable future if the project is not approved. In reviewing a no-project alternative, the court’s focus narrowly on whether the EIR adequately describes existing condition and offers a plausible vision of the foreseeable future. Here, DWR’s no-project met these standards. Given the long history of the SWP and its critical role in supplying water to the state, as well as the long-term investments of the contractors in the SWP, DWR was not required to treat termination of the contracts as the no-project alternative.

Petitioners failed to demonstrate that recirculation of the EIR was required.

CEQA requires a lead agency to recirculate an EIR for further public review and comments when the agency introduces “significant new information” to the EIR before its certification. The court held that petitioners failed to meet that burden by failing to provide any facts or analysis of the information added to the EIR was “significant” within the meaning of CEQA.

The petitioners further claimed that recirculation was required because DWR added additional information regarding the rejected “Table A amount reduction” alternative in the final EIR. The court explained, however, that the added discussion was not “significant” because it did not reveal any new environmental impact or an increase in the severity of an impact, and did not deprive the public of a meaningful opportunity to comment on a substantial adverse effect or a feasible mitigation measure or alternative that the project’s proponents declined to implement. Rather, the additional information added to the final EIR served only to clarify and amplify the conclusions of the draft EIR, and therefore did not trigger recirculation.

Delta Reform Act

Under the Delta Reform Act, any state agency planning to undertake a “covered action” must first certify in writing that the action is consistent with the Delta Plan. This certification, including detailed findings, must be submitted to the Delta Stewardship Council before the covered action is implemented. (Water Code, § 85225.) A “covered action” is defined in Water Code section 85075.5 as a plan, program, or project that meets certain criteria and is not exempt.

Here, DWR determined that the amendments were not a covered action and therefore did not prepare a certification of consistency with the Delta Plan. The petitioners, in contrast, asserted that the amendments constituted a covered action. The court agreed with DWR that the amendments were not a covered action.

The court observed that, viewing the Delta Reform Act holistically, several points stand out. First, the Act primarily targets “future developments,” rather than existing ones. Second, a covered action is defined as an action occurring within the Delta or Suisun Marsh boundaries. Third, such actions must significantly impact California’s water supply reliability or the Delta ecosystem. Fourth, routine maintenance and operation of the SWP are not included as covered actions. While the court did not delve into the exact meaning of “routine maintenance and operation,” it found it fair to say that the existing SWP is generally exempt from being a covered action.

Applying these insights, the court held that the amendments do not qualify as a covered action. The amendments merely extend existing contracts with SWP contractors and enhance DWR’s ability to finance improvements and new facilities for the SWP using revenue bonds, subject to certain approvals. They do not physically take place in the Delta, nor do they modify the developed uses of the SWP. Therefore, the DWR’s decision not to prepare a certification of consistency with the Delta Plan was not erroneous.

Public Trust Doctrine

The petitioners argued that, under the California Supreme Court’s decision in National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 (National Audubon), DWR had an affirmative duty to take the public trust into account in approving the amendments. The court disagreed, reasoning that a closer reading of National Audubon indicates that the high court was specifically concerned about the approval of water diversions. This distinction is significant because DWR does not approve water diversions—that task is performed by the State Water Resources Control Board.

Furthermore, the court found that the record supported DWR’s conclusion that the amendments do not impact a public trust resource. The water rights at issue were granted by the State Water Board in 1967 and have been amended by that board several times. The contracts giving the contractors interest in those water rights “were executed in the 1960s and allow the contractors to extend their interests indefinitely.” Under this framework, it was reasonable for DWR to conclude that extending the terms of the contracts to 2085 would not have impacts on resources held in the public trust.

The court also rejected the petitioners’ argument that, under National Audubon, DWR has a “‘continuing duty to supervise’” the taking and use of the appropriated water. The court explained that petitioners took the statements in National Audubon out of context in that, in National Audubon, no agency had ever considered the public trust in relation to the challenged water diversions and their harm to Mono Lake. The court in the present case declined to translate the “continuing duty of supervision” described in National Audubon as imposing a continued duty on DWR to supervise the water rights with which it operates the SWP. In this context, DWR’s duty under the public trust doctrine is only triggered when DWR is taking an action with an impact on public trust uses. Since there is no such impact here, the duties to weigh the public trust interests or consider additional protections do not apply.

Remaining Arguments Against Validation of the Amendments

Finally, the court rejected several other arguments raised by the petitioners challenging the amendments’ validation.

The Validation Action Was Not Premature

The petitioners argued that DWR’s validation action was premature. The Court of Appeal rejected this contention, explaining that the 60-day limitation period for bringing a validation action and the public policy of a speedy determination of a public agency’s action undermined the petitioners’ claim of prematurity. Furthermore, the petitioners failed to cite any authority to support the position that prematurity is a valid defense against a validation action.

The Amendments Are Consistent with the Burns-Porter Act

Under the Burns-Porter Act, any income from the sale, delivery, or use of SWP water or power must be placed into a special fund. This fund is then used for various purposes, following a strict order of priority established by the Act. The highest priority is for funding the annual maintenance and operation costs of the SWP, including replacing any parts of the SWP as needed. The petitioners argued that the amendments – specifically the extension amendment and the revenue bond amendment – were inconsistent with this first priority requirement. The court disagreed, finding that nothing in the amendments disrupts or contravenes the established priority order for the use of funds as set forth in the Burns-Porter Act.

DWR Complied with Water Code Section 147.5

Water Code section 147.5 outlines the procedures DWR must follow when renewing or extending long-term water supply contracts. Specifically, that statute requires DWR to present details of the contract terms at an informational hearing before the Legislature at least 60 days before final approval of the contract.

The petitioners claimed that DWR failed to meet these requirements because it submitted only draft amendments, not the final version, to the Legislature. The court rejected this argument, finding that Water Code 147.5 only mandates a presentation to the Legislature 60 days before contract approval and does not specify that the contract must be in its final form at this stage. The informational hearing could lead to further amendments, and the statute not require another hearing for such changes. Moreover, the purpose of Water Code Section 147.5 is to ensure high-level oversight of the renewal or extension of SWP long-term contracts, not to involve the Legislature in overseeing the details of finalizing these contracts.

The Petitioners failed to support their argument that the amendments are unconscionable.

The petitioners argued that it was unconscionable for DWR to reauthorize the terms of the existing contracts regarding water delivery amounts because those terms are impossible or impractical to fulfill. The Court of Appeal, like the trial court before it,  declined to consider this argument because the petitioners failed to offer any legal authority to support it.

DWR acted within its authority in approving the amendments.

Lastly, the petitioners argued that validating the amendments is improper because, according to the petitioners, the amendments provide DWR “absolute power” to enter into “unbounded” contracts. The petitioners, however, failed to demonstrate how validating the amendments would give DWR absolute and unrestricted contracting authority, particularly given that the validation action is limited to contracts tied to or directly related to DWR bonds. Validating the amendments does not give DWR a “free pass” to base its decisionmaking on “paper water.”

Conclusions and Implications

At bottom, the petitioners’ CEQA arguments in this case rested on two mistaken assumptions: first, that the amendment would transform the SWP, possibly leading to expanded SWP operations and a Delta conveyance project; and second, that without the amendments, the existing SWP contracts would terminate. The court rejected these assumptions. Although future capital improvement projects within the SWP may benefit from bond funding under the amendments, such future projects are speculative and not a reasonably foreseeable consequence of the amendments. Furthermore, the court found that it is reasonable for DWR to assume that the terms of the existing contracts will continue, regardless of these particular amendments. The contracts’ evergreen provision authorizes the contractors to request the same amount of continued water service indefinitely and several contractors had already exercised that option. Furthermore, California’s residents and farms depend on continued delivery of SWP water, and the contractors have invested enormous sums in the SWP. The court agreed with DWR’s pragmatic view that it is more plausible to anticipate contract extensions than their termination.

Having rejected the underlying premises of the petitioners’ claims, the court applied straightforward analyses to the petitioners’ CEQA claims. Case law firmly establishes that when a project proposes the continuation of existing activities, the baseline includes those activities. Therefore, DWR properly included the current contracts, including current operation of the SWP, as part of the baseline. Impacts caused by the current operation of the SWP are not impacts of the proposed amendments.

The law is also clear that projects with independent utility need not be treated as part of a larger project under CEQA. Here, the amendments have utility independent of future improvements to the SWP, including a potential Delta conveyance project. Moreover, such future projects are not a consequence of the amendments, since such projects could proceed with or without the amendments. In addition, CEQA does not requires agencies to speculate about the consequences of future, uncertain activities.

– Laura M. Harris

FIRST DISTRICT UPHOLDS EIR FOR UC BERKELEY’S WILDFIRE FUEL MANAGEMENT PLAN

General Posted by   

In a partially published opinion Claremont Canyon Conservancy v. Regents of the University of California (2023) 92.Cal.App.5th 474, the First District Court of Appeal held that an EIR for wildfire-driven vegetation removal projects did not need to include a tree inventory or identify the number of or specific trees to be removed to comply with CEQA because the EIR contained sufficient information to analyze environmental impacts and preparing a tree inventory was not reasonably feasible.

Background

The Regents of the University of California, Berkeley worked with a wildland fire manager and fire ecologist to prepare a Wildland Vegetative Fuel Management Plan for an 800-acre fire-prone parcel of land on UC Berkeley’s campus, known as Hill Campus. Hill Campus is heavily forested and located in a “Very High Fire Hazard Severity Zone,” and “has been plagued by wildfires;” beginning in 1905 and most recently in 2017 when the Grizzly Fire burned approximately 24 acres. The Plan proposed several vegetation removal projects, including one fire fuel break project and three fire hazard reduction projects, with the goal of reducing the wildfire risk on Hill Campus. In developing the Plan and selecting the project locations, the Regents relied on fuel models to predict fire behavior, which considered the different vegetation types across Hill Campus. The Plan proposed removing dead, unhealthy or structurally unsound trees; trees that would torch or burn with high fire intensity; and certain understory shrubs.

The Regents prepared an EIR for the Plan, containing both programmatic and project-level review, and certified the Final EIR in early 2021. The EIR identifies objective criteria for tree removal and proposes the principle of “variable density thinning,” which considers site-specific conditions to create gaps in canopy cover to reduce canopy fire spread. The number of and specific trees to be removed would be determined by a certified arborist and registered professional forester by applying these criteria and this principle.

Two organizations, the Claremont Canyon Conservancy and the Hills Conservation Network, filed petitions for writ of mandate challenging the adequacy of the EIR’s description of the vegetation removal projects. After consolidating the cases, the trial court ruled in favor of the petitioners, concluding that the EIR’s project descriptions were “not accurate, stable and finite” and only provided “conceptual criteria,” rendering the project descriptions “vague and ambiguous.” The Regents appealed.

The Court of Appeal’s Decision

On appeal, Hills and Claremont argued that CEQA required the EIR to identify the specific trees that would remain in the fuel break area and that the EIR’s failure to specify the number of trees that would be removed made it was impossible to evaluate the projects’ environmental impacts; thereby rendering the EIR project description “unclear and unstable” and preventing meaningful comparisons between the plan and the project alternatives. The court disagreed.

The court pointed out that CEQA Guidelines section 15124 requires a project description to include specific information—“the precise location and boundaries of the proposed project on a detailed map; a general description of the proposed project’s objectives, including the project’s underlying purpose; a general description of the project’s technical, economic, and environmental characteristics; and a brief description of the EIR’s intended uses.” The court found that the EIR contained all of the required information. The CEQA Guidelines, the court noted, do not require a project description to “supply extensive detail beyond that needed for evaluation and review of the environmental impact[.]”

The court then noted that, here, where “a project is subject to variable future conditions,” such as “unusual rainy weather, tree growth, impact of pests and diseases, [and] changing natural resources,” a project description must “be sufficiently flexible” to account for those conditions. Hills argued that conditions within the project area would not substantively change in any “unforeseen way.” But, the court found this argument unavailing given the substantial evidence in the record demonstrating otherwise. The court then concluded that as long as an EIR contains sufficient information to enable decision-makers and the public to understand the projects’ environmental consequences it satisfies CEQA’s requirements. Accordingly, the court determined that the EIR “need not specify, on a highly detailed level, the number of trees [to be] removed.” The absence of this information did not violate CEQA because the project’s’ basic characteristics were “accurate, stable and finite,” contrary to the trial court’s determination.

The Regents further contended that it was not reasonably feasible to prepare a tree inventory and so the EIR could not violate CEQA for omitting one. The court agreed, finding sufficient evidence in the record to support this conclusion (steep and rugged terrain of Hill Campus created impediments, high cost associated with an inventory). Because the project area was subject to variable environmental conditions, on-the-ground realities could significantly change between the EIR’s preparation and project implementation, making it impractical to identify specific trees to remove.

Lastly, the court emphasized that “technical perfection, scientific certainty, and exhaustive analysis” are not required of an EIR; rather, it looks at whether the EIR is adequate, complete, and represents a good-faith effort at full disclosure. The court concluded that the EIR “provides sufficient information to understand the projects’ environmental impacts” and “sufficient detail to enable the public to understand the environmental impacts associated with the Regents’ plan to remove vegetation in specific locations on the Hill Campus to reduce wildfire risk.”

The remainder of the opinion disposing of other CEQA claims challenging the EIR’s methodology for wind speed modeling and its analysis of and visual impacts is unpublished.

– Alina Werth

THIRD DISTRICT HOLDS CAPITOL BUILDING ANNEX EIR FAILED TO ADEQUATELY DESCRIBE ANNEX DESIGN, ANALYZE IMPACTS TO HISTORIC CAPITOL BUILDING, AND CONSIDER REASONABLE PROJECT ALTERNATIVES

General Posted by   

In Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, the Third District Court of Appeal held that an EIR prepared by the Department of General Services and the Joint Committee on Rules of the California State Senate and Assembly (collectively, DGS) for the demolition and replacement of the State Capitol Building Annex in Sacramento (project) did not comply with CEQA. In particular, the court found that the EIR’s project description, analyses of aesthetics and historical resources, and analysis of alternatives were deficient.

Background

The Legislature enacted the State Capitol Building Annex Act of 2016 authorizing renovation or reconstruction of the Annex and streamlining CEQA review for the project. Pursuant to the Act, the project sought to demolish the existing Annex and construct a new Annex, underground visitor center, and underground parking structure.

In the draft EIR, DGS explained that the project would follow an accelerated design and construction process in which the initial project concept would evolve and become more refined as the process moved forward. After circulating the draft EIR for public comment, DGS redesigned the visitor center and recirculated the draft EIR.

After recirculating the draft EIR, DGS continued to develop and modify the project design. The final EIR included more modifications from the draft EIR. It changed the location and capacity of the underground parking garage and clarified the project’s impacts on trees and landscaping. Additionally, for the first time, the final EIR disclosed the exterior design of the new Annex. DGS concluded that none of the modifications in the final EIR constituted significant new information that would require recirculation, certified the EIR, and approved the modified project.

Save Our Capitol! and Save the Capitol, Save the Trees filed petitions for writ of mandate challenging the EIR’s compliance with CEQA. The trial court denied the petitions, and the cases were consolidated on appeal.

Court of Appeal’s Decision

Project Description

While the court rejected most of petitioner’s arguments, it agreed that DGS’s failure to disclose the exterior design of the Annex before preparing the final EIR rendered the project description inadequate.

The key inquiry in the court’s analysis was whether the changes in the project description “thwarted the public’s ability to participate in the process and comment meaningfully on the EIR.” The court emphasized that the EIR was required to consider the project’s aesthetic impacts on an important historical resource, the Capitol Building, and reasoned that without the description of the Annex design, neither the draft EIR nor the public could consider those impacts before the final EIR was prepared.

The court explained that while the draft EIR stated that the new Annex would be aesthetically “consistent” with the Capitol Building and would create a “one-building” feel, the final EIR described the Annex as aesthetically “compatible” with the Capitol Building and clarified that the “one-building” feel referred to the interior consistencies between the Annex and the Capitol Building. The court also found that the glass exterior, proposed in the final EIR design, was highly relevant to the analysis of impacts, including impacts to the historical Annex building.  The court concluded that the discrepancies between the draft and final EIR, and the important information disclosed in the final EIR, could have misled the public about the design and hindered the opportunity for meaningful public comment about the project’s impacts. Thus, the court determined, the EIR’s description of the Annex’s exterior design deprived the public of an opportunity to comment on environmental impacts and did not satisfy CEQA’s project description requirements.

Analysis of Impacts

The court found that substantial evidence supported much of the EIR’s analysis of impacts; however, it agreed with petitioners that the EIR did not adequately analyze the project’s impacts on historical resources and aesthetics.

First, the court found that the EIR’s analysis of impacts to historical resources was deficient. Because the exterior design of the Annex was never circulated for public comment, DGS did not receive public comments concerning the project’s aesthetic impacts on the historic Capitol Building. Thus, the final EIR did not include written responses to concerns about these impacts. Recognizing that public comments and responses are an essential part of an EIR’s analysis, the court concluded that the analysis of impacts to historical resources did not comply with CEQA.

Second, the court found that the EIR did not adequately analyze the project’s impacts on the scenic vista of the Capitol Building from the west. While the court acknowledged that “CEQA does not expressly require visual simulations,” it nevertheless concluded that the EIR was required to include a visual representation or rendering of the east-facing vista. The court reasoned that the importance of the view of the west façade of the Capitol “[could] not be overstated,” given the significance of the Capitol’s historic role as “the seat of state government” and the Legislature’s development of various programs for the beautification of the area. The court concluded that, without a visual depiction, the EIR did not allow either DGS or the public to meaningfully consider the project’s intrusion on the scenic vista. Thus, the court held, the EIR’s analysis of this aesthetic impact did not comply with CEQA.

Analysis of Alternatives

The court explained that CEQA requires an EIR to describe a range of reasonable alternatives that would both attain most of the project’s objectives and avoid or lessen the project’s environmental impacts. It concluded that DGS failed to meet this standard by selecting clearly inferior alternatives that would be easily eliminated—either by failing to obtain the project objectives or causing a greater environmental impact than the project.

Additionally, while the court concluded that DGS meaningfully considered and rejected alternatives involving Annex renovation instead of demolition, it disagreed with the EIR’s conclusion that a proposed alternative would not lessen any significant impacts and found the alternative would also meet the project’s objectives. Thus, because it deprived the public of the opportunity to participate in the evaluation of reasonable alternatives, the court concluded that the omission of this alternative violated CEQA.

Remedy

On rehearing, the court concluded that the deficient portions of the EIR were severable from the portions of the EIR that addressed the impacts of Annex demolition and the Annex renovation alternatives. Thus, recognizing that any new exterior Annex design will require demolition of the existing Annex, the court concluded that demolition activities could proceed during remand. However, the court prohibited DGS from proceeding with any project activities that would prejudice DGS’s ability to revise the new Annex design based on new analysis.

Accordingly, the court directed the trial court to issue a peremptory writ of mandate directing DGS to partially decertify the EIR and revise and recirculate the deficient portions before recertifying.

Concurring and Dissenting Opinion

Justice Mauro filed a separate opinion concurring with the majority, but dissenting with respect to the conclusion that the EIR did not adequately analyze the project’s aesthetic impacts. The dissent concluded that CEQA did not require the EIR to include additional visual renderings of the project’s impacts on the view of the Capitol Building from the west.

The dissent noted that the EIR discussed the extent to which the new structures west of the Capitol Building would obstruct the view. Additionally, the dissent pointed to visual depictions of the proposed structures from above and cross-sections of the proposed structures from the south of the project site contained in the EIR. The dissent emphasized that the manner of discussion of the project’s aesthetic impacts was left to DGS’s discretion. While DGS could have provided more or different details about the impact, the dissent concluded that the impact discussion and visual schematics, considered together, sufficiently notified the public and decisionmakers about the extent of the aesthetic impact to the east-facing view.

By Louisa I. Rogers

SECOND DISTRICT FINDS QUANTIFICATION OF EXISTING WATER RIGHTS NOT REQUIRED UNDER CEQA FOR WATER DIVERSION AND STORAGE PROJECT

General Posted by   

On March 3, 2022, the Second District Court of Appeal ordered published its decision in Buena Vista Water Storage District v. Kern Water Bank Authority (2022) 76 Cal.App.5th 576, in which the court held that an EIR for a project to divert and store unappropriated flood flows need not quantify all existing water rights. The court also held that CEQA does not require the project description to specify the exact amount of water that would be diverted, since that amount will vary from year to year based on the weather. Additionally, the court held that substantial evidence supported the EIR’s conclusion that the project would not adversely affect the long-term recovery of the groundwater basin in which it is located, as the project would cause a net benefit to the aquifer.

Factual & Procedural Background

Although the Kern River had been designated a fully appropriated stream for many years—such that only those who held an appropriative right could divert from it—in 2010, the State Water Resources Control Board (SWRCB) found that in certain wet years, Kern River water was available in excess of the amount appropriated. In particular, following construction of the Kern River-California Aqueduct Intertie in 1977, the Kern River water master began occasionally releasing reservoir water into the intertie to alleviate flooding. This release only occurs when flows are in excess of those held by existing water rights holders. The SWRCB concluded that this flood-released water was unappropriated and stated that it would allow applications to appropriate that water.

Respondent, the Kern Water Bank Authority, thereafter filed an application with the SWRCB seeking a permit for a water right to divert and store up to 500,000 acre-feet-per-year of the unappropriated water. The Authority also certified an EIR for the project. Buena Vista Water Storage District filed a petition for writ of mandate, seeking to set aside the Authority’s certification of the EIR and its approval of the project.

The trial court granted Buena Vista Water Storage District’s writ petition, holding: (1) the EIR’s project description was inadequate because it did not quantify existing water rights and it was unstable; (2) the EIR’s discussion of the existing baseline was inadequate because it did not quantify competing existing rights to Kern River water; and (3) the EIR’s impact analysis was inadequate because it did not adequately assess impacts on senior rights holders and impacts on groundwater during long-term recovery operations. The Court of Appeal reversed, concluding that the EIR complied with CEQA.

The Court of Appeal’s Opinion

The EIR’s Project Description is Accurate and Stable

Unlike the trial court, the Second District Court of Appeal held that the EIR’s project description is adequate under CEQA. As explained by the court, the EIR consistently and adequately describes the project as “‘high flow Kern River water, only available under certain hydrologic conditions and after the rights of senior Kern River water right holders have been met, that otherwise would have (1) been diverted to the Intertie, (2) flooded farmlands, or (3) left Kern County.’”

Buena Vista Water Storage District argued that the EIR’s project description is unstable because it relies on an “open-ended limit of ‘up to 500,000 [acre-feet] of water.” The court rejected this argument, explaining that a precise amount of water to be diverted by the project cannot be determined because water availability will fluctuate from year to year. As stated by the court: “A project description may use a flexible parameter when subject to future changing conditions.” Furthermore, the proposed 500,000 acre-foot-per-year is a finite maximum amount based on historical conditions, thus providing an adequate upper-end of the proposed diversion.

EIR Not Required to Quantify Existing Water Rights

The appellate court also rejected the District’s contention that the EIR’s project description must include a quantification of existing Kern River rights. That amount of detail is not necessary under CEQA Guidelines section 15124, subdivision (c), which requires a “general description” of the project’s technical and environmental characteristics. Moreover, a stream-wide quantification is a complex proceeding conducted by the SWRCB or a court and can take several years (or even decades) to complete. CEQA does not require this type of exhaustive detail.

Similarly, the EIR’s description of the existing environmental setting is not required to include a quantification of the existing Kern River water rights. The EIR satisfies CEQA’s informational requirements by providing measurements of Kern River water historically diverted into the Kern Water Basin and estimating, based on these historic records, how much water the Kern River Bank Authority could have diverted from the basin under baseline conditions. A complete quantification of existing water rights was not necessary to provide these estimates.

Finally, the court found it was clear that existing rights would not be impacted because the SWRCB cannot issue a new permit to divert water that is already subject to existing water rights. Further, the SWRCB expressly allowed processing of water rights applications, like the one at issue, in its Order finding that the water diverted to the Intertie was not fully appropriated. Quantification of the existing water rights was not necessary to evaluate the project’s impacts.

Substantial Evidence Supports the EIR’s Conclusions Regarding Groundwater Impacts

According to the trial court, the project would alter groundwater recovery by making groundwater available for long-term pumping for additional months or years during drought conditions, which, in the trial court’s view, would likely deplete groundwater during a drought. The Second District rejected the lower court’s analysis as factually inaccurate. The purpose of the project is to add to groundwater supplies and increase the availability of groundwater storage. The EIR concludes that the project would raise the local groundwater, resulting in a net increase in aquifer volume. Additionally, the Kern Water Bank Authority’s existing groundwater and monitoring policies will ensure that banking additional groundwater will not lower groundwater tables or affect the production rate of existing wells. Thus, substantial evidence supports the EIR’s conclusion that the project’s groundwater impacts will not be significant.

Conclusions & Implications

The Second District’s decision addresses whether an EIR for a water diversion and storage project must quantify the existing water rights to the underlying waterbody. In holding that such quantification is not required for the Kern Water Bank Authority’s proposed water diversion project, the Court of Appeal adhered to the principle that CEQA does not require an exhaustive analysis, but rather a good faith and reasonable effort at full disclosure. The decision also recognizes that for certain types of projects, particularly those involving water supplies, a project description must be somewhat flexible. The decision illustrates how a court reviewing an EIR must defer to the lead agency’s factual analyses and conclusions—deference that the trial court had failed to give to the Kern Water Bank Authority’s determinations.

– Laura Harris Middleton

THIRD DISTRICT UPHOLDS EIR FOR EL DORADO IRRIGATION DISTRICT’S “UPPER MAIN DITCH” WATER TRANSMISSION PIPELINE PROJECT

General Posted by   

In a February 16, 2022 decision, the Third District Court of Appeal in Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239, upheld the District’s approval of the Blair Road Alternative for the Upper Main Ditch piping project by finding that substantial evidence supported the District’s determination that the project and alternative would have less-than-significant impacts, and rejected petitioner challenges to the EIR’s project description, hydrological, biological, and wildfire impact analyses.

Background

The El Dorado Irrigation District operates a primarily surface-water system in El Dorado County, with more than 1,250 miles of pipe and 27 miles of earthen ditches that connect the system’s facilities and treatment plants. The Upper Main Ditch (UMD) is the system’s main conveyance feature consisting of a three-mile open and unlined ditch that connects the system’s Forebay Reservoir to its Reservoir 1 Water Treatment Plant (WTP). In June 2015, the District proposed to convert the UMD to a buried 42-inch pipeline that spanned the length of the existing ditch. The upstream end of the new pipeline would connect to the Reservoir and the downstream end would connect to a new metering and inlet structure at the WTP. The District would backfill around the pipe and reshape the ditch to allow for the passage of stormwater flows up to the current 10-year storm event capacity. Ultimately, the project would conserve more water by reducing seepage and evaporation, and improve water quality by reducing contaminant infiltration.

The District considered three alternatives, and ultimately approved the Blair Road Alternative, which would also convert the UMD into a buried pipeline but would instead place the pipe across District-owned property from the Reservoir to Blair Road, where it would continue until it reached the UMD crossing, then travel across private property to the WTP. The Blair Road Alternative would involve less construction activity near residents that the project and require the removal of fewer trees. It would also reduce the number of easements across private property.

In June 2018, the District circulated the draft EIR, which described the location of the UMD and the Blair Road Alternative’s setting and noted that, should it be adopted, the District would no longer use the existing ditch—instead reverting the land back to private landowners. After an extended public comment period, the District issued the final EIR in January 2019. After which, in April 2019, the Board of Directors certified the final EIR and approved the Blair Road Alternative. The Boar determined that, although the original project would achieve the desired objectives, it would have greater potential impacts to residents along the ditch from the resulting construction and eminent domain proceedings than the Alternative.

Thereafter, Save the El Dorado Canal filed a petition for writ of mandate alleging the approval and certification violated CEQA. The trial court denied each of Petitioner’s ten contentions. Petitioner timely appealed.

The Court of Appeal’s Decision

On appeal, Petitioner re-alleged that the action violated CEQA because the EIR contained an inaccurate project description and failed to adequately analyze potential impacts to hydrology, biological resources, and wildfire hazards. Under an abuse of discretion standard, the Third District Court of Appeal rejected each claim, finding that substantial evidence supported the District’s determination and Petitioner failed to demonstrate otherwise.

Petitioner first alleged the EIR failed to adequately describe the project by omitting the “crucial fact” that the ditch that would soon be abandoned was the “only drainage system” for the watershed. Notwithstanding Petitioner’s “problematic” briefing errors, the court rejected this argument and found instead that the EIR provided a detailed description of the UMD’s size, history, and location, and explained how the UMD passively intercepts stormwater runoff that would otherwise naturally flow down slope. For the Blair Road Alternative, the EIR explained that the ditch would continue to passively receive and convey stormwater flows during storm events, even after the District abandoned its maintenance easement over it. The court concluded this was an adequate, complete, and good faith effort at full disclosure about the ditch and its relationship to the watershed’s drainage system, as well as the District’s intent to abandon the ditch should it adopt the Blair Road Alternative.

Petitioner then claimed the EIR inappropriately concluded that the Blair Road Alternative would not significantly impact watershed drainage because abandonment would permit “the underlying property owners to do with [the ditch] as they please.” Citing a comment letter submitted by the County, Petitioner claimed the EIR failed to mitigate foreseeable impacts to watershed drainage that would result from vegetation and debris clogging the abandoned ditch. The court disagreed. It found that the final EIR’s response explained that private action or inaction will ensure the abandoned ditch retains its current capacity to convey stormwater across private property thereby reducing any risk of significant flooding. Moreover, unlike the District, the County can regulate private fill activities via administrative and civil penalties to ensure such activities do not yield significant environmental effects. Thus, it would be too speculative to predict landowners’ particular actions or inactions and the ensuing potential effects to the ditch’s stormwater conveyance capacity.

Petitioner next alleged the EIR failed to mitigate impacts to riparian habitats and sensitive natural communities and conflicted with local resource protection ordinances. The court noted that the Blair Road Alternative would yield fewer potential impacts to biological resources because the pipeline would be laid in an existing road corridor that is devoid of natural riparian habitat. Because the affected waterbody is not naturally occurring, plant and wildlife species are not dependent on water in the current ditch. Nevertheless, any impacts to vegetation communities—including those resulting from tree removal—would be mitigated to less than significant levels through permit compliance. The Alternative would therefore be consistent with the General Plan’s biological resources management plan, the County’s tree mortality removal plan, and CALFIRE’s tree removal procedures.

The court was also unpersuaded by Petitioner’s claim that the EIR failed to adequately analyze and mitigate impacts to tree mortality. Relying on facts and expert opinion, the EIR explained that trees surrounding the project site are not native riparian species, and thus, not dependent on water conveyed through the ditch. To the contrary, most of the adjacent tree species are stress-tolerant and can withstand climatic variation and changes in water seepage. The court also found that because both the project and Alternative were specifically designed to avoid Waters of the U.S. (WOTUS), and that, in any event, mitigation would alleviate any impacts, regulatory requirements associated with WOTUS were met.

Lastly, the court rejected Petitioner’s contention that the EIR failed to adequately consider the project’s fire risks by only considering construction-related impacts. Petitioner asserted the project would have potentially significant impacts by removing a water source that could be used as a firefighting tool. The court disagreed by noting that the EIR specifically debunked Petitioner’s claim—the ditch supplies potable drinking water only, and water from the ditch has never been used to fight fires. Indeed, CAL FIRE’s Strategic Fire Plan did not identify the UMD as a potential firefighting resource.

– Bridget McDonald[/vc_column_text][/vc_column][/vc_row]

In a Procedurally-Dense Opinion, First District Court of Appeal Clarifies that Real Parties in CEQA Cases Are Not Always Indispensable Parties

General Posted by   

In Save Berkeley’s Neighborhoods v. Regents of the University of California (2021) 70 Cal.App.5th 705, the First District Court of Appeal upheld a trial court’s determination that the developer and operator of a proposed campus expansion project were not indispensable parties to a lawsuit challenging the Regents of the University of California’s (Regent’s) approval of that project. In doing so, the court held that Assembly Bill No. 320 (AB 320) (2011–2012 Reg. Sess.)—which amended CEQA to require agencies to identify the recipients of project approvals on a project’s notice of determination (NOD) and to require CEQA petitioners to name and serve those persons or entities listed on the NOD—did not alter the court’s analysis of whether a party is “indispensable” to the lawsuit under Code of Civil Procedure section 389, subdivision (b) (CCP section 389(b)).

Background

The Regents approved a project to demolish an existing parking structure, construct student housing above a new parking structure, and develop a new academic building adjacent to the new residential building (project). The Regents prepared and certified a supplemental environmental impact report (SEIR) for the project. On May 17, 2019, the Regents filed an NOD, which identified American Campus Communities (ACC) and Collegiate Housing Foundation (CHF) as the parties undertaking the project. ACC is the developer for the project, and CHF is the ground lessee and borrower for the housing component of the project.

On June 13, 2019, petitioner Save Berkeley’s Neighborhoods filed a petition for writ of mandate seeking to vacate the Regents’ certification of the SEIR on the ground that the Regents violated CEQA. The petition named the Regents as a respondent, but did not name ACC or CHF as parties. Nor did petitioner serve ACC and CHF. On September 18, 2019, petitioner filed a first amended petition, which added ACC and CHF as real parties in interest. The amended petition acknowledged that ACC and CHF were listed as parties undertaking the project in the NOD, and thus were being named pursuant to Public Resources Code section 21167.6.5, subdivision (a), which requires the entities identified as recipients of project approvals on an NOD to be named as real parties in interest.

ACC and CHF filed demurrers to the first amended petition, asserting that petitioner failed to name them as parties within the applicable statute of limitations and that they are necessary and indispensable parties to the litigation, so the entire action should be dismissed. The trial court sustained the demurrers without leave to amend, but did not dismiss the lawsuit. The court held that ACC and CHF should have been named as real parties because they were listed on the NOD as the parties undertaking the project. Because petitioner had failed to amend its petition to name them as parties within 30 days after the Regents filed the NOD, petitioner’s challenge against ACC and CHF was time-barred under Public Resources Code section 21167. The court held, however, that the failure to timely name ACC and CHF as real parties did not justify dismissing the case because ACC and CHF were not indispensable parties under CCP 389(b).

ACC and CHF appealed, arguing that the trial court erred in concluding they were not indispensable parties. Petitioner filed a cross-appeal, arguing that the trial court erred in applying CEQA’s 30-day statute of limitations to the lawsuit because, according to petitioner, the Regents’ NOD for the project – the filing of which triggered the 30-day statute of limitations – was defective. The Court of Appeal affirmed the trial court’s order sustaining the demurrer.

Discussion

Appealability

As a threshold matter, the appellate court considered whether the trial court’s order sustaining the demurrer was appealable. Petitioner argued that it was not because the appeal arose from an interlocutory (non-final) order and thus violated the “one final judgment” rule. Furthermore, petitioner argued, the issue of whether AOC and CHF are indispensable parties remained in the underlying action because that issue was also raised by the Regents, who remained a party to the action, so the court should not consider that issue yet. The court rejected these arguments. The court explained that in actions involving multiple parties, an order fully disposing all of the issues as to one party is appealable, even if those same issues remain as to the other parties. Accordingly, the appeal was proper.

Necessary and Indispensable Parties

The court next considered whether the trial court erred in determining that CHF and ACC were not indispensable parties. If CHF and ACC were indispensable parties, the lawsuit must be dismissed in full. If they were not indispensable, then petitioner’s lawsuit against the Regents could move forward. The Court of Appeal agreed with the trial court that CHF and ACC were not indispensable parties.

Assembly Bill 320 Did Not Alter a Court’s Analysis of Whether a Real Party is “Indispensable”

CEQA currently requires petitioners to name, as a real party in interest, any person or entity identified on an NOD as a recipient of the project’s approval. Prior to 2012, however, CEQA did not require the recipients of the project approvals to be identified on the NOD. CEQA did, however, require any recipient of a project approval to be named as a real party in interest. The phrase “any recipient of an approval” was not defined by the statute, leading to confusion in the courts.

In 2011, the Legislature passed AB 320, which amended CEQA to require agencies to identify the recipient of a project’s approval on the project’s NOD. (Pub. Resources Code, § 21108.) It also amended CEQA to require petitioners to name the entities identified on the NOD as real parties in interest and to serve the petition on those entities. (Pub. Resources Code, § 21167.6.5, subd. (a)). The AB 320 amendments also provided that the “failure to name potential persons, other than those real parties in interest described in Public Resources Code, § 21167.6.5, subdivision (a), is not a ground for dismissal pursuant to Section 389 of the Code of Civil Procedure.” (Pub. Resources Code, § 21167.6.5, subd. (d).)

ACC and CHF argued that AB 320 was intended to provide “finality and certainty” as to who must be joined in a CEQA action and, therefore, CCP 389(b), which provides an equitable balancing test for determining who constitutes an indispensable party, does not apply. The court rejected this argument, holding that the AB 320 did not alter judicial analysis of whether a party is indispensable.

ACC and CHF argued that the express language of Public Resources Code section 21167.6.5, as amended by AB 320, demonstrates that CCP 389(b) does not apply. Specially, subdivision (d) of that statute states: “Failure to name potential persons, other than those real parties in interests described in subdivision (a), is not grounds for dismissal pursuant to Section 389 of the Code of Civil Procedure.” (Italics added.) The court disagreed that this language indicates that CCP 389(b)’s equitable balancing test does not apply when the petition fails to name a real party. As the court explained, the statute does not explicitly state that CCP 389(b) cannot be applied in CEQA actions in which the real party has not been properly named and served. Rather, that statute only suggests that the failure to name a real party in interest may be grounds for dismissal, depending on the equitable factors set forth in CCP 389(b).

Turning to the Legislative intent, the court found that in enacting AB 320, the Legislature did not intend to prevent application of CCP 389(b). Rather, the bill was only meant to clarify who constitutes a real party in interest, as there had been confusion on that issue in the courts. Moreover, AB 320’s Legislative history suggests that rather than intending to limit CEQA actions, AB 320 was intended to “prevent the dismissal of important and meritorious CEQA cases.” Applying a blanket rule that the failure to timely name a real party in interest constitutes a ground for mandatory dismissal of a CEQA case would frustrate that intent.

Application of CCP 389(b)’s Equitable Factors

The court next considered whether the trial court erred in holding that ACC and HCF were not indispensable parties. Under CCP 389(b), if a necessary party cannot be joined, “the court shall determine whether in equity and good conscious the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.” (Code Civ. Proc., § 389, subd. (b).)

Applying these factors, the trial court held that ACC and CHF were not indispensable parties. Among other things, ACC and CHF’s interests were closely aligned to that of Regents because ACC and CHF were undertaking the project for the Regents’ own use and benefit. Moreover, petitioner would have no way of challenging the SEIR if the case was dismissed. On the other hand, ACC and CHF were parties in a related case challenging the same SEIR and were thus unlikely to be harmed by a settlement.

On appeal, ACC and CHF argued that they had fundamentally different interests in the project than the Regents. The Regents’ interest was to add housing and academic space to the campus, whereas ACC and CHF’s interest was to develop and operate the project. The court disagreed, explaining that the Regents, like ACC and CHF, had a strong interest in moving forward with the project; the fact that the Regents might have different motivations for doing so was immaterial. Further, contrary to ACC and CHF’s assertion, the Regents had a strong economic interest in the project because the Regents would manage and operate the new parking structure and the new academic building and the Regents would regain ownerships of the project once the project’s debt was repaid. ACC and CHF had failed to cite any evidence that they had unique financial interests or would be more harmed by an adverse judgment than the Regents. Accordingly, the trial court properly concluded that ACC and CHF were not indispensable parties.

Petitioner’s Cross Appeal – Did the Trial Court Err in Applying CEQA’s 30-Day Statute of Limitations?

Turning to the cross appeal, the court held that the trial court properly applied CEQA’s 30-day statute of limitations to the first amended petition. Petitioner argued that the statute of limitations should not apply because the Regents’ NOD for the project failed to accurately describe the project. In particular, the NOD did not explain that the project would result in an increase in student enrollment. The court disagreed that such information was required, holding that an increase in student enrollment was not a material component of the project. To the contrary, the NOD and SEIR indicated that the project was intended to accommodate the existing student body and planned growth, not necessarily to increase enrollment. Although it is possible that the project could result in an increase in enrollment, the record did not suggest that increasing enrollment was a component of project. Therefore, the trial court correctly held that the Regents’ filing of the NOD triggered CEQA’s 30-day statute of limitations.

Implications

The Court of Appeal was unwilling to interpret AB 320’s amendments to CEQA as modifying judicial analysis of whether a party is indispensable in a CEQA case. Although Public Resources Code 21167.6.5, as amended, could be interpreted as implying that the failure to name a real party in interest is a ground for dismissal under CCP 389(b), as the court noted, the statute does not explicitly require such a result. Thus, where a CEQA petitioner fails to name all parties listed as approval recipients on an NOD (or a notice of exemption (NOE)), case law decided under the former statute is still relevant to the question of whether a party is indispensable. The case also clarifies that although a project might result in changes to the existing baseline (e.g., an increase in student enrollment), that change need not be described as a component of the proposed project in the NOD or NOE.

Second District Invalidates EIR’s Project Description For Failing to Provide Sufficient Detail and Certainty.

General Posted by   

In Stopthemillenniumhollywood.com et al. v. City of Los Angeles et al. (2019) 39 Cal.App.5th 1, the Second District Court of Appeal affirmed the trial court’s conclusion that an EIR for a mixed-use development project proposed by Millennium Hollywood, LLC (Millennium) in the City of Los Angeles (City) violated CEQA as a matter of law, because it failed to provide an accurate, stable, and finite project description.

In 2008, Millennium filed an application—which the Court of Appeal described as detailed—with the City proposing a mixed-use development project (2008 Proposal) on 4.47 acres in multiple parcels straddling two sides of Vine Street, between Yucca Street and Hollywood Boulevard, in the Hollywood Community Plan area of the City. The 2008 Proposal described a mixed-use development with 492 residential units, a 200-unit hotel, 100,000 square feet of office space, a 35,000-square-foot sports club and spa, 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage uses. In total, proposed square footage was 1,163,079. Two historic buildings on site, the Capital Records Tower and Gogerty Building, would be preserved. The development would consist of two low-rise buildings, one on each side of Vine Street, with three towers intended to “frame” the Capital Records Tower. The 2008 Proposal would have required a zone change to allow the sports club, as well as a variance to allow the proposed density. After the City informed Millennium that a variance from the General Plan Floor Area Ratio (FAR) requirement would also be necessary, the project was put on hold.

In 2011, Millennium filed a new application with a new project description for the same site (2011 Project). Millennium still proposed a mixed-use development with residential, hotel, and retail uses totaling 1,166,970 square feet and a FAR of 6:1. Though the same mix of uses were proposed, the 2011 Project was “designed to create an impact ‘envelope’ within which a range of development scenarios can occur.” Thus, the specific shape, size, location, use, and number of buildings to be constructed on the site were not described, other than that the existing historic buildings would be preserved. Instead, Millennium sought to enter into a development agreement with the City that would establish the permitted developable floor area, land uses, design guidelines, and development standards for the site. Additionally, the 2011 Project included a land use equivalency program (LUEP) allowing the transfer of floor area between parcels on the site. The EIR analyzed the maximum level of impacts that could occur under the development agreement, regardless of which of the several development scenarios was actually constructed in the future.

Commenters on the Draft EIR complained that the imprecise project description hindered meaningful public participation. Nevertheless, the City approved the development agreement, certified the EIR, adopted mitigation for the analyzed maximum level of impacts and adopted a statement of overriding considerations. Petitioners, Stopthemillenniumhollywood.com, Communities United for Reasonable Development, and George Abrahams (collectively, Petitioners) petitioned the Los Angeles Superior Court for a writ of mandate setting aside project approval and certification of the EIR. Petitioners alleged three causes of action relating to violations of CEQA. First, they alleged that the EIR failed to include an accurate, stable, and finite project description. The second cause of action asserted that the City abused its discretion by failing to study traffic impacts to the 101 freeway despite Caltran’s direction that the City do so. The third cause of action alleged that the City failed to consult with the California Geological Survey regarding potential seismic hazards on the site. The trial court granted the petition as to the first and second causes of action, but not the third.

On the first cause of action, the trial court found that the project description was not stable or finite, and that the use of the word “or” in a condition of approval allowed Millennium, or future developers, to choose any permitted use listed for the C2 zone in the LAMC for future development, not just the list of proposed uses in the development agreement. The trial court reasoned that, though there may be circumstances where a project description may disclose only the physical parameters and maximum potential environmental impacts, no such circumstances were present here. The trial court distinguished Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036 (Treasure Island), on the grounds that that case dealt with a site contaminated by hazardous materials, and it was unknown when cleanup of the site would be completed. The trial court noted that the development in Treasure Island included both fixed elements (including the street grid) and conceptual elements that would “likely” be subject to supplemental CEQA review. The trial court concluded that neither element was present here.

The trial court also found that, by including an ambiguous project description, the EIR impermissibly deferred part of the analysis of environmental impacts. Specifically, the trial court found that, because no specific “concept” was analyzed, the EIR did not explain how exceedance of the maximum impacts would be avoided when the project was actually designed and built; nor was additional CEQA review contemplated by either the EIR or the development agreement. The trial court determined that, without knowing the “bona fide subject” of the EIR, it would be impossible for the public and decisionmakers to accurately weigh the “environmental price tag” of the proposal and decide if the benefits outweigh that price.

The City and Millennium appealed the trial court’s decision as to the first and second cause of action, while Petitioners appealed the decision on the third cause of action. The Court of appeal, after ruling on the first cause of action, determined that it need not reach the other issues raised by the parties.

In affirming the trial court, the Court of Appeal looked to County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 (County of Inyo), and Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277 (Washoe Meadows). The Court cited County of Inyo for the proposition that, even where an inaccurate project description does not render invalid the analysis of environmental effects, it may nevertheless violate CEQA by interfering with “intelligent public participation.” The Court found further support for this position in Washoe Meadows, where the First District held that a failure to select or identify a specific project in the Draft EIR interfered with the public’s right to participate in CEQA review.

In the case before it, the Court found that the project description “fail[ed] to describe the siting, size, mass, or appearance of any building proposed to be built at the project site” and that the proposed development regulations imposed only vague and ambiguous limits on future construction choices. The Court held that, even if the analysis of maximum impacts were adequate—despite the project description, “CEQA’s purposes go beyond an evaluation of theoretical environmental impacts.” The Court determined that the project description violated CEQA as a matter of law.

In reaching its decision, the Court distinguished South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321 (South of Market), on two grounds. First, the Court found that the only “uncertainty” at issue in South of Market was that the project description presented a choice of either a predominately office use or a predominately residential use, but the EIR did not select one or the other. Second, the Court found that the EIR in South of Market “included ‘site plans, illustrative massing, building elevations, cross-sections and representative floor plans for both options.”’ Because the EIR before it did not include these “technical characteristics” of the project, the Court concluded that it failed to comply with CEQA’s mandates. The Court also largely agreed with basis for the trial court’s distinguishing of Treasure Island, supra, 227 Cal.App.4th 1036, finding that no unusual circumstances were present in this case, and that future planning and development of the project would not be subject to additional environmental review. Lastly, the Court found the violation to be prejudicial because it interfered with public participation.

As stated above, the Court determined that it need not address the other issues raised by the parties. The Court dismissed an argument that Public Resources Code section 21168.9 required them to rule on each issue raised in a CEQA appeal. The Court found that section applied only to the trial court’s order on remand, which is to address only those mandates from the Court of Appeal that are necessary to comply with CEQA. The Court found that the trial court’s judgment was correct on at least one ground, so it was affirmed.

Nathan George

First District Court of Appeal Upholds EIR for Mixed-Use Development Project

General Posted by   

In the first published decision to apply the standard of review articulated by the Supreme Court in Sierra Club v. County of Fresno (Friant Ranch), the First District Court of Appeal affirmed the trial court’s decision upholding an EIR for a mixed-use development project in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321.

The project at issue is a mixed-use development that covers four acres of downtown San Francisco and seeks to provide office, retail, cultural, educational, and open-space uses for the property, to support the region’s technology industry and offer spaces for coworking, media, arts, and small-scale urban manufacturing. The city certified an EIR, which described two options for the project—an “office scheme” and a “residential scheme.” The office scheme had a larger building envelope and higher density than the residential scheme but all other project components were the same and the overall square footage was substantially similar. Several community organizations raised a variety of claims challenging the environmental review. The trial court denied relief and the petitioners appealed.

Applying the three “basic principles” set forth by the Supreme Court in Friant Ranch regarding the standard of review for the adequacy of an EIR, the First District held the EIR was legally adequate.

The court rejected the petitioners’ argument that the project description was inadequate because it presented multiple possible projects. The court found that the EIR described one project—a mixed use development involving retention or demolition of existing buildings and construction of new buildings—with two options for different allocations of residential and office units. The court also rejected petitioners’ argument that the final EIR adopted a “revised” project that was a variant of another alternative identified in the draft EIR—emphasizing that the CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project, but to allow consideration of other options that may be less harmful to the environment.

Petitioners alleged that the cumulative impacts analysis was flawed because the EIR used an outdated 2012 project list, developed during the “Great Recession,” which did not reflect a more recent increase in development. The court noted the petitioners did not point to any evidence to establish that the project list was defective or misleading or that the city had ignored foreseeable projects. Accordingly, the court held that the petitioners had not met their burden of proving the EIR’s cumulative impacts analysis was not supported by substantial evidence.

With respect to traffic, the petitioners argued the EIR was inadequate because it failed to (1) include all impacted intersections, (2) consider the impact of the Safer Market Street Plan (SMSP), and (3) adequately evaluate community-proposed mitigation measures and alternatives. The court rejected each argument in turn. First, the court found that the EIR’s explanation for selecting certain intersections and excluding others and the related analysis was supported by substantial evidence. The court further held that the city did not need to include the SMSP in the EIR because it was not reasonably foreseeable when the city initiated the EIR, nor was there evidence that the SMSP would have an adverse impact on traffic and circulation related to the project. Lastly, the court deferred to the city’s selection of alternatives because the petitioners had failed to meet their burden to show the nine alternatives evaluated in the EIR were “manifestly unreasonable.” Similarly, the court found the petitioners had failed to meet their burden to demonstrate their proposed alternatives were feasible and met most of the project objectives.

In addressing wind impacts, an argument petitioners failed to exhaust, the court found such impacts were appropriately addressed in the EIR. The court reasoned an alternative configuration was not required under the city’s comfort criterion for wind speed impacts because the exceedance of the comfort criterion did not establish significant impacts for CEQA purposes.

The court also rejected an argument that the project failed to provide onsite open space because the EIR explained that the project provided more space than the city code required and the impact related to demand on existing parks and open spaces would be less than significant.

The court further upheld the EIR’s shade and shadow analysis, finding no evidence in the record to support that sunlight on a park is not a “special and rare resource” warranting “special emphasis” under CEQA Guidelines section 15125.

The court also held that the city had made a good faith effort to discuss inconsistencies with the applicable general plans, noting that CEQA does not “mandate perfection.”

Finally, the petitioners claimed that the statement of overriding considerations was invalid because the city improperly considered the benefits of the project before considering feasible mitigation measures or alternatives. The court disagreed, emphasizing that the project was modified to substantially conform to the identified environmentally superior alternative and stating that the revised project would not have been adopted if there had been no consideration of mitigation measures or alternatives.