Tag: Standard of Review

FOURTH DISTRICT HOLDS FAIR ARGUMENT STANDARD IS INAPPLICABLE TO CLAIM THAT HISTORICAL RESOURCE EXCEPTION PRECLUDES HISTORICAL RESOURCE CATEGORICAL CEQA EXEMPTION

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In Historic Architecture Alliance v. City of Laguna Beach (2023) 96 Cal.App.5th 186, the City of Laguna Beach approved a project to renovate and expand a historic single-family home. In doing so, the City determined that the project was categorically exempt from CEQA under the Class 31 historical resource exemption. Petitioners, the Historic Architecture Alliance and the Laguna Beach Historic Preservation Coalition (collectively, “Alliance”), alleged that the City improperly relied on the Class 31 exemption and that the historical resource exception to the categorical CEQA exemptions applied. Affirming the trial court’s denial of the petition, the Fourth District Court of Appeal held that the application of both the Class 31 exemption and the historical resources exception presented the City with the same factual issue, and that the City’s finding on this issue was supported by substantial evidence.

Background

In 2017, the owners of a historic single-family residence submitted their initial application and plans to the City to renovate and add on to the house. The City’s historical resources consultant reviewed the initial plans for compliance with the Secretary of the Interior’s Standards for the Treatment of Historic Properties (“Standards”), which provide guidance for achieving long-term preservation of historical features and materials.

When the consultant concluded that the initial plans did not fully comply with the Standards, the homeowners and their architect revised the plans and worked with the City to incorporate recommendations made by both the consultant and the City’s Heritage Committee and to ensure the project’s conformance to the Standards.

In 2020, the City approved the project. The City determined that the project satisfied the Standards and thus qualified for the Class 31 categorical CEQA exemption, which applies to historical resource renovation projects that are consistent with the Standards.

In 2021, Alliance filed a writ petition. The trial court denied the petition, finding that the City’s decision was supported by substantial evidence and that Alliance had not met its burden of demonstrating that an exception precluded reliance on the Class 31 exemption. Alliance appealed.

Court of Appeal’s Decision

Class 31 exemption

The court upheld the City’s reliance on the Class 31 exemption. The court explained that the determination that a categorical CEQA exemption applies is a factual one that is subject to review under the deferential substantial evidence standard. Pointing to the numerous rounds of review and revisions to bring the plans into compliance with the Standards and the City’s recommendations, the court concluded that the administrative record contained substantial evidence supporting the City’s determination that the project complied with the Standards, and therefore fell within the Class 31 exemption.

The court rejected Alliance’s argument that, by requiring various revisions to the project, the City was imposing mitigation measures to “shoehorn” the project into the Class 31 exemption. While the court acknowledged the general legal principle that mitigation measures may not be used to support categorical exemption, the court concluded that the plan revisions to bring the project into compliance with the Standards were not mitigation measures.

Historical resources exception

The court also rejected Alliance’s argument that the historical resources exception—which precludes reliance on a categorical CEQA exemption for projects “which may cause a substantial adverse change in the significance of a historical resource”—applied to the project. The court held that when applying the historical resource exception to the Class 31 exemption, the fair argument standard does not apply. Citing CEQA Guidelines section 15064.5(b)(3), which provides that projects that comply with the Standards “shall be considered as mitigated to a level of less than significant impact on the historical resources,” the court explained that “the decisive factor for the historical resource exception is the same as that for the [Class 31] exemption—whether the project complies with the [Standards].” Because an agency’s determination that the Class 31 exemption applies is reviewed for substantial evidence, the court reasoned that the exemption would be rendered “meaningless” if its underlying factual determination was then subject to the fair argument standard when applying the historical resources exception.

Thus, because the City’s determination that the Project satisfied the Standards was supported by substantial evidence, so too were the City’s reliance on the Class 31 exemption and the City’s finding that the historical resources exception did not apply.

First District Holds Petitioner Exhausted Its Remedies by Raising General Objections That the Project Site Should Be Preserved as Open Space, Finds “No Project” Alternative Analysis Defective

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In the published portions of Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, the First District Court of Appeal held that Petitioner Save the Hill’s failure to specifically reference the recirculated EIR or the no-project alternative in its comments to the City Council did not bar its CEQA claims regarding preservation of the Project site.

Background

This case involves the City of Livermore’s approval of a development application for a housing development in the Garaventa Hills. The Project underwent multiple revisions, and the Project at issue is a scaled-down version of the original 76-unit residential development. The final Project is a 44-unit development with pedestrian across Altamont creek that also serves as a secondary emergency vehicle access road. The City published a Recirculated Final EIR (RFEIR) for this final revised Project.

Save the Hill filed a petition for writ of mandate challenging the City’s approval of the Project and certification of the RFEIR for failure to consider significant environmental impacts, adequately investigate and evaluate the no-project alternative, and mitigate significant environmental impacts. The trial court denied the petition, determining that Save the Hill failed to exhaust its administrative remedies in challenging the RFEIR. Save the Hill appealed.

The Court of Appeal’s Decision

Exhaustion

The Court of Appeal held that Save the Hill did not fail to exhaust its administrative remedies before challenging the City’s failure to evaluate the no-project alternative. While Save the Hill did not mention the environmental documents or the lack of a no-project alternative specifically, it did express its desire to preserve the Project site as open space. The Court emphasized that CEQA does not require public interest groups such as Save the Hill—which are often unrepresented by counsel at administrative hearings—to do more than “fairly apprise” the agency of their complaints to preserve them for appeal.

Several Save the Hill representatives voiced support for preserving the Project site as open space in perpetuity at the City Council hearing for the RFEIR’s certification. These comments sparked questions from city councilmembers regarding the possibility of preserving the Project site and a discussion of available funding to purchase Garaventa Hills for conservation. This option was shut down by the City Attorney, who advised the City Council that its evaluation should be limited to the Project as set before them, and that if it were to change the zoning to permanent open space on the property, the City would likely face a takings lawsuit.

The Court determined that these comments and the ensuing discussion reflected the City Council’s consideration of a no-project alternative as a result of Save the Hill’s objections. It concluded that Save the Hill’s failure to specifically refer to the RFEIR’s Project alternatives evaluation was immaterial to the fact that it fairly appraised the City of its position. The court further explained that even if Save the Hill framed its arguments in the context of the RFEIR’s no-project alternative, “the evidence is overwhelmingly that, had it done so, the result would have been the same: [t]he City would have rejected the group’s proposal and certified the RFEIR” because it was improperly instructed to limit its focus to the presented Project.

Accordingly, the Court held that an exception to the exhaustion requirement applied because the aggrieved party—Save the Hill—could “positively state” what the lead agency’s decision would be in its particular case.

No Project Alternative Analysis

On the merits of Save the Hill’s alternative analysis claim, the Court held that the RFEIR failed to disclose and analyze information regarding the availability of funding sources that could have been used to purchase and permanently conserve the Project site. The Court explained that zoning changes are within the City’s police power, and the RFEIR accordingly should have discussed the feasibility of rezoning the site as permanent open space.

Mitigation Measures Adequacy

Save the Hill asserted that the mitigation measures for impacts to vernal pool fairy shrimp were inadequate because they would only be implemented if the fairy shrimp were detected at the site. The Court explained that CEQA allows deferred mitigation where the agency commits to achieving specific performance standards, which it did here, and that the mitigation measures were adequate because the RFEIR assumed that the fairy shrimp were present.

The Court also held that the preservation of an 85-acre compensatory mitigation site was adequate, despite Save the Hill’s contention that the City’s General Plan required the location to be preserved as open space. The Court concluded that the General Plan is “merely aspirational,” while the RFEIR’s mitigation measure created a “perpetual legal restraint on development” at the site, including requiring funding for upkeep and enforcement. Moreover, distinguishing this case from King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (“King”), the Court explained that this Project involved the loss of only 32 acres—as opposed to the loss of 6,450 acres in King—and CEQA does not require mitigation measures to “completely eliminate the environmental impacts of a project.”

Hydrological Impacts Adequacy

The Court held that the City’s finding of no significant hydrological impacts was supported by substantial evidence because Save the Hill failed to refute the City’s points in its reply brief. The Court refused to afford any weight to Save the Hill’s argument that the Project would degrade downstream water quality because a larger development project (which originally included this Project) would have a significant downstream water quality impact. The Court determined that impacts from a project almost 200 acres larger than this Project were not relevant.

Settlement Agreement Obligation Claims

Lastly, the Court held that that Save the Hill forfeited its claim that the City violated CEQA by failing to preserve the Project site to satisfy its obligations under two settlement agreements by failing to raise the issue prior to appeal. Moreover, Save the Hill was not a party to either settlement agreement and thus lacked standing to enforce those obligations.

Second District Court of Appeal upholds trial court’s denial of attorney fees after the County granted applicant’s request to vacate permit approvals for a single-family home.

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In Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, Division 4 of the Second District Court of Appeal affirmed the trial court’s denial of attorney fees following dismissal of an action challenging a negative declaration for a single-family home project on a vacant lot in Los Angeles County. After the petitioner successfully obtained an administrative stay, the applicant/Real Party in Interest, appearing in propria persona, requested that the County vacate his approvals because he could not afford to pay for the litigation. The Court of Appeal found that petitioner’s action did not enforce an important right affecting the public interest or confer a significant benefit on the general public.

Project Background

Real Party in Interest Stephen Kuhn, owned a roughly one-acre parcel on a steep hillside in Altadena, an unincorporated community in Los Angeles County. In 2014, Kuhn applied to the County for a minor use permit to build a single-family home on the hillside and an oak tree permit to remove one tree on site. In 2015, he presented the project to the Altadena Town Council, which recommended approval. The County planning department initially determined that the project was categorically exempt under Guidelines section 15303, but prepared an initial study to assess potential impacts, though not because the planning department believed there were “unusual circumstances.” The initial study found that the project was “at the edge of a disturbed woodland community” but, by complying with the County’s oak tree ordinance, the project would not have a significant impact. The County prepared a negative declaration in 2016.

After learning about the project, Kuhn’s neighbors sent a letter to the County objecting to the project, primarily because it would affect their views and because one neighbor would no longer be able to park cars on Kuhn’s property. The neighbors sent additional letters to the County objecting to the project’s potential impacts to the oak canopy, and hired an attorney who began objecting to the project for them, and then on behalf of the nonprofit they created. The neighbors also hired an arborist who opined that the single tree slated for removal on the project site actually belonged to the neighbors, and that the project would impact three additional trees. The County planning department held a hearing on the project at which the neighbors appeared and objected that it would lower the market value of their homes. Kuhn offered to redesign the home to reduce the impacts to trees, and his arborist defended the initial assessment of tree impacts. A County biologist opined that the permit conditions were adequate to address impacts to trees given the “highly disturbed” condition of the woodland. The County approved the project, and the neighbors appealed.

The County Planning Commission heard the neighbors’ appeal and, in upholding project approval, required Kuhn to replace any removed or deceased trees at a 2-1 ratio and to monitor the remaining trees for 7 years. The neighbors appealed to the Board of Supervisors (board), who held three hearings on the project and ultimately approved it. The neighbors filed a petition before the board’s final approval, but agreed to stay the action until the board approved the project.

Trial Court Proceedings

In May 2017, the trial court granted an administrative stay under Code of Civil Procedure section 1094.5, finding that the neighbors had shown a reasonable possibility of success on the merits of their claim that their expert’s opinion was substantial evidence supporting a fair argument that the project may have significant impact on the oak woodland, but cautioned that her finding was not determinative as to the merits of the writ petition itself.
In December 2017, Kuhn, who appeared in propria persona throughout the litigation and appeal, asked the County to vacate the approvals “to end the litigation.” County planning recommended vacating the approvals but stated they would keep Kuhn’s application on file, and noted that an EIR was not normally required for a single-family home on a vacant lot, and that none of the exceptions to the exemption were present. The board vacated the approvals after Kuhn stated he could not afford to continue to pay for the litigation. One supervisor stated her belief that the neighbors had abused the CEQA process.
In March 2018, after dismissing the action, the neighbors moved for attorney’s fees under Code of Civil Procedure section 1021.5 seeking $289,544.00. The County and Kuhn opposed the motion, and the trial court denied it, finding that the neighbors had failed to establish any of the required prongs under Code of Civil Procedure section 1021.5. The neighbors appealed.

The Court of Appeal Opinion

An appellate court considering a trial court’s order on attorney’s fees reviews it for abuse of discretion. Whether the statutory requirements have been met is left to the trial court’s sound discretion unless the issue turns on statutory construction, which is reviewed de novo. The burden of proof is on the party challenging the trial court’s order. Here, that party was Kuhn’s neighbors.
The neighbors argued for de novo review of whether their action enforced an important right or conveyed a significant benefit. The Court rejected their arguments, finding that the trial court was in a better position than the Court of Appeal to assess whether the neighbors had met the requirements.

Enforcement of an Important Right Affecting the Public Interest

The County and Kuhn argued that even though CEQA actions can involve important public rights, this one did not. The trial court agreed, noting that the neighbors did not obtain any additional environmental review, and that the grant of the stay was not a favorable ruling on the merits of their CEQA claim. On appeal, the neighbors challenged both of those determinations, but the Court of Appeal found both to be within the discretion of the trial court. The Court noted that the record indicated that the County believed it and Kuhn had acted properly, and there was no evidence it would require additional CEQA review should Kuhn renew his application. The neighbors argued that all they needed to do was bring a “viable CEQA claim” to show an important public right, but the Court stated they must vindicate the right through their litigation, which the trial court found the neighbors had not done.

Significant Benefit on the General Public

The neighbors argued that they had conferred a significant benefit by causing the County to reconsider the project under CEQA. The trial court rejected this argument because the administrative stay was not an adjudication of the merits and there was no evidence that the County would reconsider the CEQA review of the project. The neighbors submitted statements from area residents that they believed the County would treat their concerns about the project more seriously because of the lawsuit, but the trial court rejected these statements as speculative and unsubstantiated. The trial court also found that because of the small size of the project (a 1500-square-foot single-family home on one lot) the neighbors had not shown that their action conferred a benefit on the general public or a large class of persons. The Court of Appeal agreed, noting that the County kept Kuhn’s application on file and would allow him to revive the project if he wanted to, but made no indication that it would require additional CEQA review. The Court also noted that the neighbors had admitted that their concern was the effect of the project on their personal property and the use of Kuhn’s property as parking. Lastly, the Court rejected the neighbors’ argument that they had provided additional opportunities for public input, as Kuhn stopped pursuing the project.

Nathan O. George

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

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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.

California Supreme Court holds that CEQA requires EIRs to show a reasonable effort to substantively connect a project’s air quality impacts to likely health impacts

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In a much-anticipated opinion, the California Supreme Court in Sierra Club v. County of Fresno (Dec. 24, 2018) 6 Cal.5th 502 held that portions of the air quality analysis in Fresno County’s EIR for the 942-acre Friant Ranch Specific Plan violated CEQA. In reaching this decision, the Court made four important holdings:  (1) when reviewing whether an EIR’s discussion of environmental effects “is sufficient to satisfy CEQA,” the court must be satisfied that the EIR “includes sufficient detail to enable those who did not participate in its preparation to understand and consider meaningfully the issues the proposed project raises”; (2) an EIR must show a “reasonable effort to substantively connect a project’s air quality impacts to likely health consequences”; (3) “a lead agency may leave open the possibility of employing better mitigation efforts consistent with improvements in technology without being deemed to have impermissibly deferred mitigation measures”; and (4) “[a] lead agency may adopt mitigation measures that do not reduce the project’s adverse impacts to less than significant levels, so long as the agency can demonstrate in good faith that the measures will at least be partially effective at mitigating the Project’s impacts.”

The Friant Ranch project is a Specific Plan calling for approximately 2,500 age-restricted (ages 55+) residential units, and other uses, including a commercial center and a neighborhood electric vehicle network. Fresno County’s EIR for the project generally discussed the health effects of air pollutants such as Reactive Organic Gases (ROG), oxides of nitrogen (NOx), and particulate matter (PM), but without predicting any specific health-related impacts resulting from the project. The EIR found that the project’s long-term operational air quality effects were significant and unavoidable, even with implementation of all feasible mitigation measures. The EIR recommended a mitigation measure that included a “substitution clause,” allowing the County, over the course of project build-out, to allow the use of new control technologies equally or more effective than those listed in the adopted measure.

After the trial court denied Sierra Club’s petition for writ of mandate, the Court of Appeal reversed, holding that the EIR’s air quality analysis and air quality mitigation measures violated CEQA. On October 1, 2014, the Supreme Court granted review of the appellate court’s decision. In a unanimous decision issued December 24, 2018, the Supreme Court reversed in part, and affirmed in part, the Court of Appeal’s decision.

The Court first considered which standard of judicial review applies to claims that an EIR’s discussion of environmental impacts is inadequate or insufficient. The Court explained that an EIR’s discussion of environmental impacts is adequate and sufficient where “the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.” To that end, an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The evaluation does not need to be exhaustive, but the courts will review the discussion “in light of what is reasonably feasible.” Claims that an EIR lacks analysis or omits the magnitude of the impact involve mixed questions of law and fact, and thus are generally reviewed de novo. The courts will apply the substantial evidence standard, however, to claims challenging the EIR’s underlying factual determinations, such as which methodologies to employ. “Thus, to the extent a mixed question requires a determination whether statutory criteria were satisfied, de novo review is appropriate; but to the extent factual questions predominate, a more deferential standard is warranted.”

The Court next considered whether the Friant Ranch EIR’s air quality analysis complied with CEQA. The Court held that an EIR must reflect “a reasonable effort to discuss relevant specifics regarding the connection between” and the estimated amount of a given pollutant the project will produce and the health impacts associated with that pollutant. Further, the EIR must show a “reasonable effort to put into a meaningful context” the conclusion that the project will cause a significant air quality impact. Although CEQA does not mandate an in-depth health risk assessment, CEQA does require an EIR to adequately explain either (a) how “bare [emissions] numbers” translate to or create potential adverse health impacts; or (b) what the agency does know, and why, given existing scientific constraints, it cannot translate potential health impacts further.

With respect to the Friant Ranch EIR, the EIR quantified how many tons per year the project will generate of ROG and NOx (both of which are ozone precursors), but did not quantify how much ozone these emissions will create. Although the EIR explained that ozone can cause health impacts at exposures for 0.10 to 0.40 parts per million, this information was meaningless because the EIR did not estimate how much ozone the Project will generate. Nor did the EIR disclose at what levels of exposure PM, carbon monoxide, and sulfur dioxide would trigger adverse health impacts. In short, the EIR made “it impossible for the public to translate the bare numbers provided into adverse health impacts or to understand why such translation is not possible at this time (and what limited translation is, in fact, possible).”

The Court noted that, on remand, one possible topic to address would be the impact the Project would have on the number of days of nonattainment of air quality standards per year, but the Court stopped short of stating such a discussion is required. Instead, the County, as lead agency, has discretion in choosing the type of analysis to supply.

The Court further held that the EIR did not fulfill CEQA’s disclosure requirements in that it stated that the air quality mitigation would “substantially reduce” air quality impacts but failed to “accurately reflect the net health effect of proposed air quality mitigation measures.”

Next, the Court examined whether the air quality mitigation measure impermissibly deferred formulation of mitigation because it allowed the County to substitute equally or more effective measures in the future as the Project builds out. The Court held that this substitution clause did not constitute impermissible deferral of mitigation because it allows for “additional and presumably better mitigation measures when they become available,” consistent with CEQA’s goal of promoting environmental protection. The Court also explained that mitigation measures need not include quantitative performance standards. If the mitigation measures are at least partially effective, they comply with CEQA; this is true even if the measures will not reduce the project’s significant impacts to less-than-significant levels.

RMM attorneys Jim Moose, Tiffany Wright, and Laura Harris represented the Real Party in Interest in the case.

(Laura M. Harris)

Second District Upholds City’s Interpretation of Its Charter Allowing General Plan Amendment for Transit Oriented Development Project

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In Westsiders Opposed to Overdevelopment v. City of Los Angeles et al.(2018) 27 Cal.App.5th 1079, the Second District Court of Appeal upheld the trial court’s conclusion that the City of Los Angeles did not misinterpret its City Charter when it amended its general plan to change the land use designation of a nearly five-acre parcel for a transit-oriented development project on the west side of the city.

In 2015, Real Parties in Interest, Dana Martin, Jr., Philena Properties, L.P. and Philena Property Management, LLC (Philena) applied to develop a mixed-use, transit oriented development project on a former car dealership site of approximately five acres. The site is on the corner of Bundy Drive and West Olympic Boulevard in West Los Angeles, less than 500 feet from a new light rail station. As part of its application, Philena requested that the City change the site’s general plan land use designation from light industrial to general commercial, and several other entitlements. The City prepared an EIR for the project and in September 2016, approved the project and the general plan amendment. Appellant, Westsiders Opposed to Overdevelopment sued, challenging the amendment under City Charter section 555, subdivisions (a) and (b).

Los Angeles City Charter section 555 governs general plan amendments in the city. Relevant here, subdivision (a) allows the plan to be amended “by geographic areas, provided that the … area involved has significant social, economic or physical identity.” Subdivision (b) of that section states, in pertinent part, that “[t]he Council, the City Planning Commission or the Director of Planning may propose amendments to the General Plan.” Westsiders argued that both of these provisions prevented the City from approving the amendment in this case. Westsiders alleged that the general plan could not be amended for a single project or parcel because a single parcel did not qualify as a “geographic area” with “significant social, economic or physical identity” as required by section 555, subdivision (a). Petitioner also argued that, by requesting the general plan amendment, Philena had effectively “initiated” the amendment in violation of section 555, subdivision (b), which restricts the authority to start that process to the council, planning commission or planning director. The trial court denied the petition and found that the city did not exceed its authority under its charter in approving the amendment in this case. Westsiders appealed.

The court of appeal found that, because the challenge was to the city’s amendment of the general plan, Government Code section 65301.5 required that the city’s action be reviewed under Code of Civil Procedure section 1085, governing traditional mandamus. In doing so, the court rejected Westsiders’ argument that, because the general plan amendment was for a single project and parcel, review should be under Code of Civil Procedure section 1094.5, governing administrative mandamus. In discussing the appropriate standard of review, the court recognized that charter cities are presumed to have power over municipal affairs, and that any limitation or restriction on that power in the charter must be clear and explicit. The court also stated that, while construing the charter was a legal issue subject to de novo review, the city’s interpretation of its own charter is entitled to great weight unless it is clearly erroneous, and must be upheld if it has a reasonable basis.

In interpreting the charter, the court found that the plain meaning of the terms “geographic area” and “significant social, economic or physical identity” did not contain any clear and explicit limitation on the size or number of parcels involved in amending the general plan by geographic area. The court rejected Westsiders’ request for judicial notice, which contained several documents that Westsiders claimed were legislative history showing that the voters had intended to include such a limitation. The court also rejected Westsiders’ argument that, in considering whether a geographic area has “significant social, economic or physical identity” the city may not consider the proposed project and future uses of the site. The court found that the city’s determination that the site had significant economic and physical identity because it was one of the largest underutilized sites with close proximity to transit in West Los Angeles, and that the project would be the first major transit oriented development met the requirements of Charter section 555, subdivision (a). The court also pointed out that not every lot in the city would necessarily meet the requirements of the charter and qualify for a general plan amendment.

Interpreting Charter section 555, subdivision (b), the court rejected Westsiders’ argument that, by filling out a land use application requesting that the city amend the general plan, Philena had improperly “initiated” the amendment in violation of the charter. Similar to its analysis of subdivision (a), the court found that section 555, subdivision (b) did not contain a clear and explicit limitation on who could request that the city amend the charter. The court also stated that city followed the procedures required by the charter because, after Philena made its request, it was the planning director who formally initiated the amendment process.

Next, the court found that, because amending the general plan is a legislative act, the city was not required to make explicit findings to support its decision. The court rejected Westsiders’ argument that the city was required to make findings that “bridge the analytical gap between the raw evidence and ultimate decision” in this case (quoting Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 515). The court found that this requirement did not apply to legislative acts, such as the amendment of the general plan. The court also rejected Westsiders’ argument that the city’s use of the word “unique” in discussing the site’s identity (as opposed to “significant”) made its “findings” inadequate. The court found that the city’s analysis showed that the site had significant economic and physical characteristics and met the requirements of section 555, subdivision (a).

Lastly, the court rejected Westsiders’ argument that the city impermissibly “spot-zoned” the project through the general plan amendment. The court found that Westsiders had failed to raise this argument in the trial court and was thus barred from raising it on appeal. The court affirmed the trial court’s judgment dismissing the petition for writ of mandate.

First District Court of Appeal Applies Substantial Evidence Standard of Review to Subsequent MND and Upholds County’s Decision to Permit Expansion of Buddhist Retreat Center

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In Coastal Hills Rural Preservation v. County of Sonoma (2016) (previously published at 2 Cal.App.5th 1234)* the First District Court of Appeal upheld the trial court’s determination that the County of Sonoma did not violate CEQA or the Planning and Zoning law when it adopted a subsequent mitigated negative declaration (MND) and approved a master use permit to expand the existing Ratna Ling Buddhist retreat center and printing facility.

The Tibetan Nyingma Meditation Center (TNMC) has operated a monastery and retreat center in Cazadero since 1975. In 2004, TNMC purchased an additional property, which it designated the Ratna Ling Retreat Center. Since 2004 Ratna Ling has undergone numerous changes and expansions, including growing from a one-printing-press facility to operating six printing presses. In response to applications from Ratna Ling, the county adopted and approved a series of mitigated negative declarations in 2004, 2008 and 2012. In 2014, Ratna Ling applied for a third multiple-use permit, and the county adopted a subsequent MND to the 2004 and 2008 MNDs, superseding the 2012 MND. The 2014 subsequent MND analyzed Ratna Ling’s application to make permanent four storage tents for its printing-press operation, and construct a new six-bedroom residence and up to eight tent cabins.

Coastal Hills Rural Preservation (CHRP) filed suit, arguing that the county should have prepared an EIR because the project greatly expands the printing-press operation. CHRP also argued that the approval violated the county’s general plan and zoning provisions. The trial court denied the petition, and the First District Court of Appeal affirmed.

CHRP argued that the project was inconsistent with the county’s general plan and zoning provisions in violation of Government Code section 65300. The site is designated for “resources and rural development” under the county’s general plan, which is intended to “protect lands used for timber, geothermal and mineral resource production and for natural resource conservation.” Contrary to CHRP’s argument that the printing press included “extraordinary levels of manufacturing productions …, massive storage structures and commercial Internet sales,” the court found that substantial evidence supported the county’s determination that the proposed uses were consistent with the land use regulations. The court explained that an agency’s determination regarding consistency with its own general plan is given great deference because “the body adopting a general plan has unique competence to interpret those policies when applying them to a proposed project.” There was no evidence in the record that the printing activities were undertaken for profit, the printing press use had been permitted since 2004, and the Board fully considered the county’s land use policies and the extent to which the project conforms to those policies.

The Court of Appeal also affirmed the trial court’s determination that the Board did not violate CEQA. Because the court was considering the county’s decision to prepare a subsequent MND where an MND had already been prepared under Public Resources Code section 21166, the court applied the substantial evidence test rather than the fair-argument standard of review. The court noted that the issue of the standard of review is currently before the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), review granted Nov. 5, 2013, S214061).

The court found that substantial evidence supported the Board’s conclusion that any fire risks posed by the storage tents were adequately mitigated: the membranes covering the tents met applicable fire protection standards, there was 200 to 300 feet of defensible space around each tent, and a condition of approval required Ratna Ling to provide and maintain its own onsite fire engine. In addition, the court held that, regardless of whether the county should have included the tents in the baseline for its analysis, substantial evidence in the record indicated that the Board fully considered the potential impacts of the tents.

The court also ruled against arguments put forth by amicus curiae Friends of the Gualala River and Forest Unlimited. Contrary to those arguments, the county’s Hazard Mitigation Plan was not effective until October 25, 2011, well after the storage tents were permitted and constructed, and therefore was inapplicable. In addition, the county did not improperly defer mitigation when it required Ratna Ling to coordinate with the fire district and comply with all fire-related conditions, because the mitigaton simply granted the county the right to impose new, stricter requirements if deemed necessary.

Finally, CHRP argued that the county engaged in impermissible spot zoning. The court explained that because the record and the relevant zoning regulations did not suggest that the authorized use for Ratna Ling is prohibited as to all other parcels in the same zone, this was not impermissible spot zoning in violation of Government Code section 65852.

*On November 22, 2016, the California Supreme Court granted review (210 Cal.Rptr.3d 14), depublished the decision, and transferred the case back to the First District, Division One, for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al. (2016) 1 Cal.5th 937, 957–959. On May 16, 2016, the First District filed an unpublished decision in matter, available at 2017 WL 2118370.

Third Appellate District requires preparation of an EIR for approval of a tentative subdivision map

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Rominger v. County of Colusa (Sept. 9, 2014), Case No. C073815

This case originates from an application for approval of a tentative subdivision map filed with the County of Colusa. The application proposed dividing four existing parcels into 16 parcels. The proposed parcels ranged in size from about 1 acre to 30 acres. The existing site consisted of agricultural use and light industrial uses related to agriculture. The application indicated no specific plans for expansion were available, and the present intention for the parcels was for their existing uses to continue.

The County prepared an initial study in June 2010 to determine if approval of the proposed tentative subdivision map could have significant environmental impacts. The initial study identified potentially significant impacts to cultural resources but determined these impacts could be mitigated to less-than-significant. Therefore, the County proposed adoption of a mitigated negative declaration for the project.

During the public comment period on the MND, the Romingers submitted comments suggesting an EIR was necessary for a variety of reasons. As a result of these comments, the County determined a water supply assessment was needed and cancelled the public hearing on the MND. Thereafter, a revised initial study was completed in August 2011. The revised initial study concluded that the project could potentially have significant impacts on air quality, cultural resources, and hydrology/water quality. Again, the initial study determined these impacts could be mitigated to less-than-significant and that an MND would be appropriate. The Romingers renewed their complaints during the public comment period for the updated MND. The County approved the MND in spite of these objections, and the Romingers filed a petition for writ of mandate asserting that an EIR was necessary. The trial court rejected the petition, concluding that approval of the tentative map was not a “project” for the purposes of CEQA. The Romingers appealed.

The Appellate Court’s Decision

On appeal, the Romingers argued that the County was barred from asserting that the proposed subdivision was not a CEQA project or that the project was exempt from CEQA based on the common sense exemption. The Romingers reasoned that the County could not make these arguments because the County treated the proposed subdivision as a CEQA project at the administrative level and approved an MND. The appellate court did not find this reasoning persuasive. The court’s task under CEQA is to review agency actions for compliance with procedures required by law. The County reasoned preparation of the MND was entirely voluntary and not required by law in the first place. Therefore, it would be a waste of judicial resources to review the adequacy of the voluntarily prepared MND. The appellate court agreed and allowed the County to argue no environmental review was required in the first place. However, the court disagreed with the County that approval of the tentative subdivision map was not a project under CEQA. Public Resources code section 21080 specifically provides that an approval of a tentative subdivision map is a project subject to CEQA.

The appellate court also concluded that the “common sense” exemption did not apply to the County’s approval. The County argued the map approval, in this specific case, fell within CEQA’s common sense exemption in the CEQA Guidelines section 15061(b)(3). The County reasoned that the action only established new parcel lines and that there was no possible effect on the environment as a result. But the appellate court noted that, in the application, the real parties stated the objective for the subdivision was to facilitate “future expansion where separate financing may be needed.” Therefore, the record demonstrated the purpose of the subdivision was to make development on the parcels easier. Under the common sense exemption, the agency must show, based on evidence in the record, that there is no possibility that the action may result in a significant effect on the environment. Here, the reasonable possibility that creation of smaller parcels could lead to development that might not otherwise occur pushed the project beyond the confines of the common sense exemption.

On the specific challenges to the MND, the appellate court sided with the project opponents on only a single issue. The appellate court determined substantial evidence in the record supported a fair argument that the project may have significant traffic impacts. In this case, a traffic engineer submitted a comment letter suggesting the County relied on unrealistically low trip generation estimates. This comment letter cited specific evidence, such as the proximity of a major interstate, and the potential for the light-industrial uses to be redeveloped as more traffic-intensive uses. In light of this, and other evidence, the traffic engineer suggested that the County should use the general trip generation characteristics from categories in the authoritative trip generation source reference Trip Generation, 8th Edition. Based on these trip generation numbers, the project could potentially have a significant traffic impact on an intersection of a county road and State Highway 99. This evidence in the record supported the fair argument made by the Romingers. In protest, the County pointed to substantial evidence supporting a contrary conclusion. But the appellate court explained that pointing to contrary evidence was insufficient to defeat the fair argument. Therefore, the appellate court concluded that the county prejudicially abused its discretion when it failed to prepare an EIR addressing the potentially significant traffic impact.

Also of note, the appellate court concluded that the County did not entirely comply with the requirement to provide a full 30-day review period for the MND. The Romingers complained that the review period was only 29 days long. But the appellate court reviewed the record and determined that this error did not preclude informed decisionmaking or informed public participation. Since the error was not prejudicial, the error could not provide a basis for relief.

Conclusions and Analysis

The opinion adds to the litany of cases which accept a broad definition of “project” for the purposes of CEQA. This is especially true where the statute explicitly identifies the action as an example of a project. The opinion treads over fresher ground in CEQA law where the appellate court approaches the fair argument standard in a detailed and thoughtful manner. The opinion recognizes that the fair argument must be supported by substantial evidence in the record. The court rejects numerous attacks on the MND in this case where the arguments constituted vague criticisms unsupported by any specific facts. At the same time, the opinion demonstrates the perils of relying on a negative declaration. Because the petitioners supported a fair argument that the project may have a significant traffic impact, the County will be required to prepare an EIR analyzing the traffic impact.

Sixth District Court of Appeal Remands for Further Review Trial Court Decision Invalidating City’s Inclusionary Housing Ordinance.

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In California Building Industry Association v. City of San Jose (2013) __Cal.App.4th__ (Case No. H038563) the Sixth District Court of Appeal rejected the strict standard of review applied by a trial court decision finding the City of San Jose’s inclusionary housing ordinance invalid and remanded the matter to the trial court for further consideration under a more deferential standard of review. This ordinance required developers of housing projects to construct affordable housing or otherwise pay an in-lieu fee.

Factual and Procedural Background

The state Legislature, in the Housing Accountability Act, emphasized the need for affordable housing to address a severe state-wide shortage. The act places the responsibility of facilitating the provision of affordable housing on local governments and directs that general plans include a “housing element.”

In January 2010, the City of San Jose addressed this state policy by adopting Ordinance No. 28689, the Inclusionary Housing Ordinance, which required residential developments of 20 or more units to reserve 15 percent of the units for purchase at below-market rate. The requirement could also be satisfied by constructing affordable housing on different sites at specified percentages. The ordinance also offered incentives for affordable housing units constructed on the same sites as market-rate units. Finally, developers could instead pay an in-lieu fee to satisfy the ordinance, with collected fees being directed to the City’s Affordable Housing Fee Fund.

The California Building Industry Association (CBIA) challenged the ordinance. In July 2012, a trial court declared the ordinance invalid and enjoined the City from enforcing it until the City could provide an evidentiary showing to demonstrate justification for the ordinance and a reasonable relationship between exactions and impacts caused by new residential development. The City appealed.

The Court of Appeal’s Decision

The primary issue on appeal involved the appropriate standard of review for the court to apply to the City’s challenged ordinance. The City argued that the CBIA relied on the wrong standard of review. The City characterized the ordinance as a land use regulation adopted pursuant to the City’s police power. Such ordinances must be upheld as valid if the terms “are reasonably related to purposes protecting or advancing the public welfare” subject to an arbitrary and capricious standard of review.

CBIA argued for stricter review of the ordinance because, in their opinion, it imposed an exaction that was neither a zoning ordinance nor a regulation of the use of property. Since the exaction, such as payment of an in-lieu fee or dedication and conveyance of property for public purposes, constituted a compelled transfer of property, the CBIA argued the ordinance required stricter scrutiny review, similar to that applied in takings cases.

The appellate court sided with the City, characterizing the ordinance as an exercise of the City’s police power with the express purpose of enhancing the public welfare by establishing affordable housing policies. The court emphasized that the ordinance was not enacted for the purpose of mitigating housing loss caused by new residential development, which could implicate a different standard of review.

The court cautioned that a municipality’s police power is not unlimited, and it declined to accept the City’s stated goals without further review of the record. Since the trial court formerly applied the incorrect standard of review, the Court of Appeal remanded the matter to the trial court to consider evidence offered by CBIA under the proper standard of review: whether the ordinance has a real and substantial relation to the public welfare supported by basis in fact.