By Daniel Bane
Alliance for the Protection of the Auburn Community Environment, et al. v. County of Placer, SCV0028200 (3rd Dist., February 18, 2013)
In Alliance for the Protection of the Auburn Community Environment v. County of Placer, the California Court of Appeal for the Third District considered plaintiff and appellant Alliance for the Protection of the Auburn Community Environment's ("Alliance") appeal from trial court's granting of real party in interest Bohemia Properties, LLC's ("Bohemia") demurrer, which was sustained without leave to amend, and the trial court's concurrent denial of Alliance's motion seeking relief on the grounds of mistake or excusable neglect under Code of Civil Procedure ("CCP") Section 473, subdivision (b) ("Section 473").Continue Reading Questions & comments
By James Rusk
A letter of approval finding a project consistent with a City’s Master Development Plan triggers the running of the 90-day statute of limitations under Government Code subsection 65009(c)(1)(E), the Third District Court of Appeal has held. Stockton Citizens for Sensible Planning v. City of Stockton involved the approval of a Wal-Mart store by the City of Stockton’s Community Development Department Director. Plaintiffs argued that the Director’s approval did not fall within the types of actions covered by section 65009 because it did not involve a “variance or permit” and was not made by a legislative body. The Court of Appeal disagreed, holding that section 65009’s short statute of limitations extends to land use approvals issued by zoning administrators and zoning boards exercising delegated authority.Continue Reading Questions & comments
City May Adopt Housing Element Revisions Inconsistent With General Plan If City Also Adopts Timeline To Correct Inconsistencies
Recently, the Fourth District Court of Appeal in Friends of Aviara v. City of Carlsbad affirmed the trial court’s judgment directing the City of Carlsbad to adopt a timeline for proposed changes to its general plan that would correct inconsistencies created by the City’s revision of its housing element. The appellate court interpreted Government Code section 65583 to create an exception to the requirement that general plans be facially consistent, as long as the municipality identifies a program with a timeline for resolving any inconsistencies arising from its adoption or revision of a housing element.Continue Reading Questions & comments
By James Pugh
The partially published opinion in Coalition for Clean Air v. City of Visalia brightened the line regarding when a California Environmental Quality Act Notice of Exemption (NOE) is valid. In a nutshell, the Fifth District Court of Appeal concluded that an NOE filed before the final approval of a proposed project is invalid and does not trigger the 35-day statute of limitations set forth in CEQA. This is not new law. However, it confirms the principle set forth in the recent California Supreme Court’s Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481 decision, which is that a petitioner has 35 days to challenge an NOE that is valid on its face.Continue Reading Questions & comments
By James Pugh
The recent Voices for Rural Living v. El Dorado Irrigation District case from the California Court of Appeal’s Third District applied the “unusual circumstances” exception to overturn a categorical exemption used to approve a water supply memorandum of understanding (MOU) for an existing Native American casino. As is typically the case, the court’s application of the “unusual circumstances” exception was highly fact-specific. This case demonstrates yet another way that potential plaintiffs may use the always amorphous “unusual circumstances” exception to attack a categorical exemption. The case also touches on the proper standard of review and annexation issues.Continue Reading Questions & comments
Appeals Court Reaffirms That Non-Prejudicial Planning And Zoning Code And CEQA Errors Cannot Serve As Basis For Overturning City Approval
By Phillip Tate
On July 31, 2012, the California Court of Appeal for the Fourth District held that the trial court erred in invalidating the City of Rialto’s (the “City”) approval of a 230,000 square foot commercial retail center to be anchored by a 24-hour Wal-Mart “Supercenter,” despite numerous procedural errors in the approval process because the plaintiff made no attempt to show, and the trial court did not find, that those errors resulted in prejudice or substantial injury, or that a different result was probable absent the errors.Continue Reading Questions & comments
City of Hayward et al. v. Board of Trustees of the California State University, A131412, A132424 (Cal. Ct. App., May 30, 2012) (certified for publication June 28, 2012).
By Deborah Rosenthal and Nady Nikonova
The Court of Appeal held that potential adverse impacts on required public services are not environmental impacts under CEQA requiring mitigation by the project proponent. This is contrary to the practice in many municipalities, which have treated the potential deterioration of public services based on applicable performance standards in the general plan or elsewhere (e.g., standards for fire, police, libraries and emergency services) as a significant impact requiring mitigation. While similar requirements may be defensible under a city's police power authority, this case holds they cannot be imposed under CEQA, at least insofar as the lead agency is otherwise required to provide such services.Continue Reading Questions & comments
Tomlinson v. County of Alameda et al., S188161 (Supreme Court, June 14, 2012)
The California Supreme Court recently reinforced the CEQA requirement that a party must exhaust administrative remedies even where the public agency finds a project exempt from CEQA, if the agency (a) gave notice of the grounds for its exemption determination; and (b) held a public hearing on the project at which the public had the opportunity to object to the exemption determination, even though CEQA does not require the filing of a notice of determination for exemption determinations. This decision reversed the appellate court, and it represents a departure from the majority of prior appellate and superior court decisions on this issue.Continue Reading Questions & comments
California Supreme Court Grants Hearing in Berkeley Hillside Preservation v. City of Berkeley
Vacated opinion at: http://www.courtinfo.ca.gov/opinions/documents/A131254.PDF; (modified on rehearing, no change in judgment) http://www.courtinfo.ca.gov/opinions/documents/A131254M.PDF
According to the Court, the case presents the following issue: Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code §§ 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the "Significant Effects Exception" set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?Questions & comments
Use of Projected Future Conditions Appropriate Baseline for Analyzing Impacts of Long-Term Infrastructure Projects
Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al., B232655 (2nd Dist. Div. 8, April 17, 2012)
By Daniel Bane
In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al. (“Neighbors for Smart Rail”), the California Court of Appeal for the Second District considered plaintiff and appellant Neighbors for Smart Rail’s (“Petitioner”) claim that defendants and respondents Exposition Metro Line Construction Authority, et al. (“Expo Authority”) abused their discretion in certifying the final environmental impact report (“EIR”) for the second phase of the construction of a light rail line along the Exposition Corridor connecting downtown Los Angeles with Santa Monica (the “Project”) because – in addition to other perceived deficiencies - the Expo Authority used an improper baseline for analyzing the impacts of the Project on traffic, air quality and greenhouse gas emissions. However, Petitioner’s claims were wholly rejected. Specifically, the Court of Appeal held that an agency’s use of a projected future baseline, when supported by substantial evidence, is an appropriate means to analyze the traffic and air quality effects of a long-term infrastructure project. In so holding, the California Court of Appeal for the Second District vehemently rejected the recent holdings of their colleagues in the Fifth and Sixth Districts in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 90 (“Madera”) and Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1382-1383 (“Sunnyvale”) to the extent they eliminated a lead agency’s discretion under any circumstances to adopt a baseline that uses projected future conditions.Continue Reading Questions & comments
California Supreme Court Denies Review of Case Holding that CEQA Does Not Require Analysis of Effects on a Project Caused by the Environment
The California Supreme Court unanimously declined to hear a challenge to the revised environmental impact report for the Playa Vista development in Los Angeles in Ballona Wetlands Land Trust v. City of Los Angeles, resulting in a published decision in the Second District Court of Appeal holding that CEQA does not require analysis of the effects on a project caused by the environment. Some commentators have declared that because the Supreme Court declined to hear the case, the provision of the CEQA Guidelines at issue in the case (Section 15126.2(a)) is not enforceable until there is a legislative fix. A more cautious approach would be to treat the provision as enforceable.Continue Reading Questions & comments
Tiered EIR Must Be Prepared Where Program EIR Provides Insufficient Guidance on Discretionary Choices
Center for Sierra Nevada Conservation et al. v. County of El Dorado, C064875 (Super. Ct. No. PC20080336) (Cal. Ct. App. 3rd Dist., January 20, 2012)
Plaintiffs and Appellants, led by the Center for Sierra Nevada Conservation (Sierra Nevada), challenged the County of El Dorado’s adoption of an oak woodland management plan and mitigation fee program (the Woodland Plan) without an environmental impact report. The County had completed a program environmental impact report in 2004 in connection with its general plan to deal with land use issues in the face of a growing population. The Woodland Plan, according to the County, was within the scope of the General Plan EIR, which adequately addressed the environmental impacts of the Woodland Plan. Consequently, asserted the County, the General Plan EIR obviated the need for a separate, or “tiered,” EIR before adoption of the Woodland Plan. The Court of the Appeal disagreed and held that the California Environmental Quality Act required the County to prepare a tiered EIR before it adopted the Woodland Plan. The court agreed that the General Plan EIR anticipated the development of the Woodland Plan. However, the General Plan EIR did not provide the County with guidance in making the discretionary choices that served as the basis for the Woodland Plan or adequately address the environmental impacts of the Woodland Plan.Continue Reading Questions & comments
The building industry contends a 2011 law aiming to jump-start the economy by streamlining the state's environmental review process for development projects is failing to attract much interest because strict eligibility criteria prevents most projects from qualifying. Most housing, transportation and land-use project proponents say their projects are unable to qualify for the streamlining due to costly, stringent environmental mitigation criteria, sources said.Continue Reading Questions & comments
By Alex Merritt
Last week, the Governor's Office of Planning and Research released proposed guidelines for streamlining CEQA review of infill projects. The proposed guidelines will implement SB 226 (Simitian)—one of several bills passed in the 2011 legislative session that streamline the CEQA process for certain green projects.
The proposed guidelines contain eligibility requirements that infill projects must meet to qualify for streamlined CEQA review under SB 226. Included in the eligibility requirements are new statewide performance standards for infill development. In addition, the proposed guidelines set forth the streamlined review procedures.Continue Reading Questions & comments
Neither CEQA nor the Public Trust Requires Exclusion of Current Conditions in Determining Baseline for Purposes of Lease Renewal on Tide and Submerged Lands
Citizens for East Shore Parks, et al. v. California State Lands Commission (Chevron U.S.A, et al., real party in interest), No. A129896 (Cal. Ct. App. 1st Dist., December 30, 2011, modified on denial of rehearing No. A129896M, Jan. 27, 2012.).
The proper baseline for analyzing potential environmental impacts under the California Environmental Quality Act (CEQA) of a project that requires renewal of an existing lease are the existing, actual conditions at the property including impacts of the operations being carried on pursuant to the lease. In renewing an existing 50-year lease with Chevron U.S.A. (Chevron) for a marine terminal, the California State Lands Commission (the Commission) acted properly when it prepared its final environmental impact report (FEIR) based on the current and longstanding conditions at the property, including the terminal operation. Citizens for East Shore Parks (Citizens) had argued that the baseline must exclude current conditions because the Commission could eliminate current conditions by refusing the renewal. The court ruled that the conditions when the project is approved must be the baseline, not possible conditions if the use were different or eliminated. The current conditions at the property might interest enforcement agencies (if the use or user violated existing law); however, when preparing a FEIR, the normal baseline rule applies: the conditions existing when the environmental analysis begins.Continue Reading Questions & comments
The Flanders Foundation v. City of Carmel-by-the-Sea et al., No. H035818 (Cal. Ct. App. 6th Dist., January 4, 2012)
By Michael Gibson
A lead agency must consider and respond to all comments that raise significant environmental issues prior to certifying a final environmental impact report (FEIR) even if the required mitigation measures might have rendered the comment moot or modifying the project in response to the comments might have made the project infeasible. The City of Carmel-by-the-Sea (the City) wanted to sell the Flanders Mansion (listed on the National Register of Historic Places as an example of noted architect, Henry Higby Gutterson) which was surrounded on all sides by a City-owned park. The opponent in the City's effort to sell the Flanders Mansion was the Flanders Foundation (the Foundation) which raised several challenges to the FEIR but the two primarily taken up on appeal were that the FEIR did not adequately: (1) consider the potential environmental impacts associated with the application of the Surplus Land Act (Gov. Code § 54220, et seq.) and (2) the FEIR did not sufficiently respond to a comment that proposed selling a smaller piece of land than initially proposed by the City in order to reduce the loss of potential public parkland. The Foundation was successful on its second argument but not the first.
City of San Diego v. Board of Trustees of the California State University, No. D057446 (Cal. Ct. App. 4th Dist., December 13, 2011.)
By Michael Hansen
In 2005, the Board of Trustees of the California State University ("CSU") certified an environmental impact report ("EIR") and approved a project for the expansion of San Diego State University ("SDSU") to increase student enrollment from 25,000 students to 35,000 students by 2024. The 2005 EIR certification was challenged and in light of a California Supreme Court opinion that was issued during the pendency of the litigation affecting issues involved in the case, the trial court entered judgment against CSU. In 2007, CSU revised its master plan for expansion of SDSU and certified a new EIR and approved the revised project. CSU found that there were no feasible mitigation measures to reduce the project's off-site traffic impacts to below a level of significance because it might not obtain its "fair-share" mitigation funding from the Legislature and Governor. CSU also adopted a statement of overriding considerations concluding that the project's benefits outweighed its unavoidable significant environmental effects. The court determined, following the California Supreme Court decision in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 ("Marina"), that the CSU finding of infeasibility of off-site mitigation measures and its statement of overriding consolidations were both invalid.
CEQA Does Not Require Identification of Significant Effects of the Environment (Sea Level Rise) on a Project; Assertion of New Claims Barred in EIR Required to be Revised by Judgment in a Prior Case
Ballona Wetlands Land Trust v. City of Los Angeles and Ballona Ecosystem Education Project v. City of Los Angeles, No. B231965 (Cal. Ct. App. 2d Dist., November 9, 2011)
By Michael Hansen
The Second Appellate District recently held that CEQA does not require identification of significant effects of the environment on a project, only significant effects of a project on the environment. The court also held that plaintiffs are barred from alleging new CEQA inadequacies in challenge to an EIR that is being revised pursuant to a judgment in a prior case. Continue Reading Questions & comments
By Judy Davidoff and Alex Merritt
In the 2011 session, the California Legislature and the Governor passed several bills to amend CEQA. As summarized below, these bills streamline the review process for green projects, environmental leadership projects, and a proposed football stadium; relax water supply assessment requirements for photovoltaic and wind energy projects; and clarify requirements for naming and serving real parties in interest in CEQA lawsuits.
Court Upholds Medical Campus Expansion, Provides Guidance on Using Future Traffic Projections to Analyze Traffic Impacts
Pfeiffer v. City of Sunnyvale, No. H036310 (Cal. Ct. App. 6th Dist; October 28, 2011)
By Maria Pracher and Alex Merritt
The 6th District Court of Appeal recently denied a challenge to the proposed expansion of a medical complex in the City of Sunnyvale. The decision reaffirms the standard for evaluating general plan consistency and, in the wake of Sunnyvale West Neighborhood Assn v. City of Sunnyvale City Council, 190 Cal.App.4th 1351 (2010), reaffirms the use of future baselines in analyzing traffic impacts.
By Whitney Hodges & Olivier Theard
After months of CEQA litigation and political lobbying, including an appeal to the California Supreme Court (previous article can be found here), California's landmark climate change bill, the Global Warming Solutions Act of 2006 ("AB 32"), has been modified and appears ready to be implemented starting in January 2012.
Court Clarifies Mitigation Requirements for Impacts to Historical Resources, Reaffirms Use of Existing Conditions as Analytical Baseline
By James Rusk
The Court of Appeal for the Fifth Appellate District of California held this month that the Environmental Impact Report for the Tesoro Viejo mixed use development project in southeastern Madera County failed to comply with the California Environmental Quality Act. The court's opinion articulates a new standard for analysis and mitigation of impacts to archeological sites that are historical resources. It also adopts the Sixth Appellate District's recent holding that agencies do not have discretion to use predicted future conditions as the baseline for analysis of project impacts. Finally, the opinion reiterates that an EIR must contain a full disclosure of uncertainties affecting a project's water supply.
California Legislature Passes Bills to Expedite Judicial Review of CEQA Challenges for Selected Projects
By James Rusk
The California Legislature last week passed two bills that would expedite judicial review of challenges to certain large development projects under the California Environmental Quality Act (CEQA). The first, SB 292 (Simitian), applies only to the proposed development of a new NFL football stadium and convention center in Los Angeles. The second, AB 900 (Steinberg), applies to various types of projects involving investment of more than $100 million that provide "high-wage, highly skilled" jobs for Californians and do not result in a net increase of greenhouse gas (GHG) emissions. Both bills would grant the state Courts of Appeal original jurisdiction over challenges to project approvals, bypassing the trial courts. Neither bill would significantly change the requirements for environmental analysis under CEQA.
Clover Valley Foundation et al. v. City of Rocklin et al., C061808, 2011 WL 2671250 (Cal. Ct. App. July 8, 2011)
By James Pugh, Alexis Pelosi and Kira Teshima
In this case, the Third District Court of Appeal rejected claims raised by Clover Valley Foundation, the Sierra Club and the Town of Loomis that the City abused its discretion in certifying an environmental impact report on a residential project because the EIR failed to adequately analyze the project's impact on cultural, biological and visual resources and failed to adequately consider the project's growth-inducing impacts and water supply. The court also rejected opponents’ claims regarding the project's consistency with the City's General Plan, deciding in favor of the City and its analysis on all counts. The first line of the decision says it all: "This is a case where CEQA worked."
Del Cerro Mobile Estates v. City of Placentia (July 7, 2011, G043709)
By James Pugh & Shoshana Zimmerman
In this case, the Court of Appeal for the Fourth District held that a city may defend itself against a California Environmental Quality Act challenge by invoking a statutory exemption even if the city has prepared an EIR for the project. The court also rejected the argument that because the exemption was written in the singular, it could not apply to a project involving multiple railway crossings. Section 21080.13 exempts from CEQA “any railroad grade separation project which eliminates an existing grade crossing or which reconstructs an existing grade separation.” Finally, the petitioner’s non-CEQA claims that the City of Placentia (“City”) and Orange Country Transportation Authority (“OCTA”) were planning to possibly violate the City’s resolutions, were held not ripe for adjudication.
Save the Plastic Bag Coalition v. City of Manhattan Beach (July 14, 2011, S180720)
By James Pugh & Shoshana Zimmerman
Corporations now have the ability to file citizen suits to assert public interests without facing heightened scrutiny by the courts. The California Supreme Court ruled that a coalition of plastic bag manufacturers and distributors (“Plaintiff”) had standing to maintain a citizen suit to vindicate the asserted public interest in environmental quality. This means more generally that a corporation has greater freedom to bring a CEQA-based citizen suit to further the public interest in environmental quality. Additionally, the court ruled that any corporation or business interest whose operations are directly affected by a government project has standing in their own right to raise a CEQA challenge.
In this clean-tech era, Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista marks only the third time that a court has published a case addressing greenhouse gases in California. In CREED, the City of Chula Vista certified a mitigated negative declaration ("MND") and approved development permits for a project that would demolish an existing Target store, a smog check facility, and a small market, and construct in its place a larger Target store. CREED filed suit, claiming that CEQA required the City to certify a full environmental impact report because the project would have a significant environmental impact on hazardous materials, air quality, particulate matter and ozone, and greenhouse gas emissions. While the court held that an EIR was likely required for other reasons, the court also held that, to demonstrate the project’s consistency with the GHG emissions reduction goals established by California's "Global Warming Solutions Act" (AB 32), the City had properly relied upon evidence the project’s emissions were below the GHG threshold of significance. The City established this threshold of significance using what has become known as the "Business-As-Usual" ("BAU") method. The court also held that the City properly relied on the thresholds of significance in the South Coast Air Quality Management District's CEQA Air Quality Handbook to conclude that the project's air quality impacts (particulate matter and ozone) were not cumulatively considerable even though the San Diego air basin is in non‑attainment for particulate matter pollution.Continue Reading Questions & comments
Government Code Does not Require Analysis of Environmental Impacts Directly Related to School Facilities
Chawanakee Unified School District v. County of Madera (June 21, 2011, F059382) __ Cal.App.4th __ (certified for partial publication)
By Robyn Christo
In a partially published opinion, the Court of Appeal for the Fifth Appellate District, interpreted Government Code Section 65596(a) (as revised by the Leroy F. Greene School Facilities Act of 1998 [“Senate Bill 50”]), and examined the effect of language restricting the “methods of considering and mitigating [project-related] impacts on school facilities” (italics added) on an environmental impact report (“EIR”). In the published portion of its opinion, the court found that impacts directly related to school facilities do not require consideration under the California Environmental Quality Act (“CEQA”). On the other hand, the reasonably foreseeable non-school impacts caused by a project must be analyzed in an EIR.
Oakland Heritage Alliance v. City of Oakland (May 19, 2011, A126558) __ Cal.App.4th __
By Maria Pracher & Robyn Christo
In this case, the Court of Appeal for the First Appellate District rejected all of petitioner’s arguments regarding the adequacy of the seismic impact analysis and mitigation measures in a revised Environmental Impact Report (“EIR”) prepared for a project that proposed to convert 64 acres of maritime and industrial land along Oakland’s waterfront into residential, retail/commercial, open space and marina uses (“Project”).
Global Warming and Droughts Not New Information; Project Opponents Must Fairly Present Claims Before Filing CEQA Lawsuit
Citizens for Responsible Equitable Environmental Development v. City of San Diego (May 19, 2011, D057524) __ Cal.App.4th __
By Jeffrey Forrest & Robyn Christo
On May 19, 2011, the California Court of Appeal for the Fourth Appellate District upheld an Addendum to an Environmental Impact Report (“EIR Addendum”) over claims that the lead agency failed to follow statutory procedures for adopting a Water Supply Assessment (“WSA”) and that a supplemental EIR (“SEIR”) was required to analyze “new” environmental impacts related to drought and global warming.
Court Affirms CEQA Does Not Require Cumulative Impact Analysis Where Project Makes No Contribution to Groundwater Impacts
By Jeffrey Forrest
In Santa Monica Baykeeper v. City of Malibu, the Court of Appeal considered Santa Monica Baykeeper’s (“Plaintiff”) claim that the City of Malibu (“City”) abused its discretion in certifying the environmental impact report (“EIR”) for the City’s Legacy Park project (“Project”) because it failed to adequately analyze (1) construction-related water quality impacts; (2) the impact of using treated effluent from the adjoining Malibu Lumber Yard; and (3) cumulative groundwater impacts of the project. The appellate court concluded that the construction-related water quality impacts were moot since the Project had already been constructed during the pendency of the appeal, and that there was substantial evidence to support the City’s findings that the Project’s use of Lumber Yard wastewater effluent and stormwater did not create a cumulative groundwater impact within an area of the City known for significant groundwater problems.
By Whitney Hodges
On March 18, 2011, Judge Ernest Goldsmith of the San Francisco County Superior Court suspended implementation of AB 32, California's landmark law to reduce greenhouse gas ("GHG") emissions. In Association of Irritated Residents v. California Air Resource Board, [Statement of Decision] the Court found the California Air Resource Board (the "ARB")'s adoption of AB 32's Climate Change Scoping Plan (the "Scoping Plan") to be in violation of the California Environmental Quality Act ("CEQA"). The ruling determined that the ARB abused its authority by not adequately analyzing potential alternatives to a carbon "cap-and-trade" program aimed at limiting GHG emissions.
By Whitney Hodges
On January 21, a San Francisco Superior Court issued a proposed decision that could significantly delay the implementation of the Global Warming Solutions Act of 2006 ("AB 32"). In Association of Irritated Residents, et al. v. California Air Resources Board, Case No. CPF-09-509562, the Court held that the California Air Resources Board (CARB) failed to comply with the California Environmental Quality Act (CEQA). The Court found the CARB to have neglected to conduct a sufficient environmental impact review prior to adopting the State's AB 32 Scoping Plan (Plan). Specifically, CARB failed to adequately analyze all potential alternatives and prematurely adopted the Plan prior to fully responding to public comment.
Court Invalidates EIR's Use of a Baseline Predicated On Future, Post-Approval Conditions For Analysis of Project's Impacts
Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council, No. H035135 (6th Dist., December 16, 2010)
By Kyndra Joy Casper
In Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council ("Sunnyvale"), the California Court of Appeal, Sixth District (the "Court") invalidated the use of a baseline consisting of future, post-project approval conditions to analyze a project's impacts in an Environmental Impact Report (“EIR”). This decision may have widespread effects because the use of a future baseline has become a widespread industry practice particularly for analysis of traffic and circulation impacts.
Cherry Valley Pass Acres and Neighbors, et al. v. City of Beaumont, E049651 (4th Dist. Div. 2, November 22, 2010)
By Daniel Bane
In Cherry Valley Pass Acres and Neighbors, et al. v. City of Beaumont, the Court of Appeal considered Plaintiffs Cherry Valley Pass Acres and Neighbors and Cherry Valley Environmental Planning Group (“Plaintiffs”) claim that the City of Beaumont (“City”) abused its discretion in certifying the environmental impact report (“EIR”) for the Sunny-Cal Specific Plan (“SCSP” or “Project”) because it failed to properly address the Project’s significant impacts on area water supplies and agricultural land uses. Both claims were rejected. The appellate court concluded that the use of existing entitlements for baseline conditions was legitimate when it corresponds to an conditions “on the ground” at the time environmental review commenced. It also concluded that there was substantial evidence to support the City’s findings related to agricultural impacts.
Court of Appeal Upholds Previous Decision, Finding That the Requirements for Exhausting Administrative Remedies Before Challenging CEQA Exemption Did Not Apply
Tomlinson v. County of Alameda, No. A125471 (1st Dist. Div. 5, October 6, 2010)
By Misty L. Calder
In Tomlinson v. County of Alameda, the First Appellate District reexamined its decision in Tomlinson v. County of Alameda (2010) 185 Cal.App.4th 1029, where the Court found that the County of Alameda ("County") abused its discretion in deeming a proposed subdivision project exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) ("CEQA"), under the categorical exemption for in-fill development (Cal. Code Regs., tit. 14 (CEQA Guidelines), § 15332). After the publication of the case, Division Two of the First Appellate District certified its opinion in Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830 for publication, which held that Public Resources Code section 21177's exhaustion requirement did apply in circumstances similar to those presented in this case. The Division Five court granted rehearing on its own motion to allow for further consideration of the Hines decision.
By Misty L. Calder
Senate Bill ("SB") 1456, authored by Senator Joe Simitian (D-Palo Alto), and Assembly Bill ("AB") 231, authored by Assembly Member Alyson Huber (D-El Dorado Hills), were signed by Governor Arnold Schwarzenegger on September 29, 2010. As urgency statutes, both bills became effective immediately, and both will sunset as of January 1, 2016.
Coastal Commission's No Substantial Issue Determination Will Be Upheld Even If Project Technically Not Consistent With LCP
Hines v. California Coastal Commission, No. A125254 (1st Dist. June 17, 2010)
By Michael Wilmar and Alex Merritt
In Hines v. California Coastal Commission, the First District Court of Appeal upheld the Coastal Commission’s determination that an appeal raised no substantial issue under the California Coastal Act, and went so far as to state in dicta that even if a development were technically inconsistent with a Local Coastal Program ("LCP"), the Commission could still reject an appeal of the approval of that development as not presenting a substantial issue.
City of Santee v. County of San Diego, No. D055310 (4th Dist. June 7, 2010)
By Michael Wilmar and Alex Merritt
Last month the California Court of Appeal for the Fourth District provided important guidance on the issue of when approval of an agreement affecting a development constitutes approval of a “project” that requires review under the California Environmental Quality Act ("CEQA"). In City of Santee v. County of San Diego, the Fourth District held that a siting agreement between the County of San Diego and the California Department of Corrections and Rehabilitation ("DCR") for a state prison facility did not commit the County to a definite course of action, and therefore did not constitute a project approval requiring CEQA review. The court reached this conclusion after noting that the agreement did not preclude any alternatives or mitigation measures, and that implementation of the agreement was contingent on a number of factors, including future environmental review.
Notice Of Exemption Triggers A 35-Day Statute Of Limitations Under CEQA Despite Flaws in Underlying Approval
Stockton Citizens for Sensible Planning v. City of Stockton _____ Cal. ___ (April 1, 2010, No. S159690)
By Phillip Tate
On April 1, 2010, the California Supreme Court unanimously ruled that flaws in the decision making process underlying a facially valid and properly filed Notice of Exemption ("NOE") do not prevent the NOE from triggering a 35-day statute of limitations period for challenging the agency's determination under the California Environmental Quality Act ("CEQA"). The decision ended a lawsuit challenging the approval of a Wal-Mart Supercenter in Stockton, California (the "City"). In overturning the lower courts, the Supreme Court held that when an NOE minimally complies with CEQA, it is sufficient to trigger the 35-day statute of limitations under CEQA. and a plaintiff can not argue the merits of the underlying approval as a means of circumventing the statute of limitations.
Patricia Melom v. City of Madera, __ Cal. App. __ (March, 24, 2010, No. MCV037258)
By Phillip Tate
Retail "supercenters" do not automatically trigger the need to study urban decay effects in an environmental impact report ("EIR"). Rather, the project or the change in the project should be the focus of the inquiry as to whether additional study is needed, and not the type of retail store.
By Claudia Gutierrez
Communities for a Better Environment v. South Coast Air Quality Management District et al. ___Cal.__) (March 15, 2010; Case No. S161190)
In this case, the Supreme Court of California held that neither the statute of limitations, the principles of vested rights, nor the CEQA case law on which ConocoPhillips relied, justified employing the maximum capacity allowed under prior equipment permits as an analytical baseline for a new project, rather than the physical conditions actually existing at the time of the analysis. The court therefore concluded that the South Coast Air Quality Management District (District) abused its discretion in determining ConocoPhillips' proposed project would have no significant environmental effects compared to a baseline of maximum permitted capacity.
The Fish and Game Commission has published a notice of proposed regulatory action and invited interested parties to provide oral or written comments relevant to the proposed action prior to or at its May 5 hearing. The proposed regulation would add the California tiger salamander ("CTS") to the list of species protected under the California Endangered Species Act ("CESA"), but it provides no guidance on how hybrid salamanders would be treated under the rule.Continue Reading Questions & comments
Committee for Green Foothills v. Santa Clara County Board of Supervisors, __ Cal.4th __ (February 2, 2010, No. S163680)("Green Foothills")
By Robyn Christo
On February 11, 2010, the California Supreme Court unanimously decided that a lead agency's filing of a Notice of Determination ("NOD") sets off the 30-day statute of limitations (found in Public Resources Code section 21167, subdivisions (b), (c) and (e)) for all California Environmental Quality Act ("CEQA") lawsuits brought to challenge the decision announced in the NOD.
By Brenna Moorhead
On December 29, 2009, the California Natural Resources Agency ("Resources Agency") adopted amendments to the guidelines implementing the California Environmental Quality Act ("CEQA"). The amendments were filed with the Secretary of State on February 16, 2010 and will assist lead agencies in complying with CEQA's existing requirements when analyzing and mitigating the impacts of greenhouse gas ("GHG") emissions associated with a proposed project.
By Brenna Moorhead
The California Natural Resources Agency (CNRA) led twelve state agencies in preparing the Draft California Climate Adaptation Strategy. The Strategy responds to the mandates of Executive Order S-13-08, which called for development of an adaptation strategy for addressing climate change. Consistent with the Order, the Strategy summarizes the best known science on climate change impacts, assesses the state’s vulnerability to these impacts, and outlines solutions to be implemented by state agencies to promote resiliency.
Lin v. City of Pleasanton., ___ Cal. App. 4th ____, No. A121147 (1st App. Dist. 2009)
by James Rusk
A referendum petition challenging the approval of a development plan need not include the text of the plan itself, if the plan was neither attached to the ordinance approving the plan nor explicitly incorporated by reference, the First District Court of Appeal has held. Although the content of the development plan clearly was relevant to a decision on the referendum, the court in Lin v. City of Pleasanton declined to extend the "text" requirement of Election Code section 9238(b) to require that the petition include the development plan, in addition to the text of the challenged ordinance. Expanding the text requirement would force citizens to guess at the documents that must be included in a valid referendum petition—a burden the court found unwarranted, absent "extreme circumstances" that otherwise would render the petition "affirmatively misleading."
New Law Automatically Extends Existing Tentative Maps For Two Years, But Also Creates New Pitfalls, And Reduces Some Protections For Recorded Maps
By David P. Lanferman & Jeffrey W. Forrest
On July 15, 2009, the Governor signed new "urgency" legislation to automatically extend the life of existing tentative subdivision maps, vesting tentative maps ("VTMs") and parcel maps for two additional years -- provided that they were still valid and in effect on July 15, and would otherwise expire before January 1, 2012. The new law, AB 333 (Fuentes) (Stats. 2009, ch. 18), included urgency provisions so that it took effect immediately upon signature by the Governor. The urgency of this measure, intended to preserve the many approved projects which were otherwise in danger of map expiration and loss of valuable rights, was apparently recognized so that it was able to receive the Governor's signature notwithstanding the hold on most other new legislation pending resolution of the State budget situation.
Checklist Approval Of Design Plan Conforming To Guidelines Established Under Specific Plan Constitutes A Ministerial Act Under CEQA
Health First v. March Joint Powers Authority (Tesco Stores West, Inc.), ___ Cal. App. 4th ___ (June 10, 2009, No. RIC458367)
By Katharine E. Allen
The California Court of Appeal for the Fourth Appellate District determined that the act of reviewing and approving a design permit application for a warehouse facility by the March Joint Powers Authority (the "Authority") in accordance with the Specific Plan for the March Business Center constituted a ministerial act and thus did not require further environmental review under the California Environmental Quality Act ("CEQA"). In reversing the trial court's holding on this issue, the Court of Appeal emphasized the Authority's use of fixed standards and objectives embodied in a checklist for conformance with certain Design Guidelines established under the Specific Plan and the lack of any discretionary or subjective judgment in granting approval. The Court of Appeals also briefly addressed lesser issues relating to the application of certain mitigation measures called for in the Specific Plan to the development of the facility and the standing of the plaintiff in the trial court.
County Outside Counsel Work Product Not Part of CEQA Record Even If Disclosed To Real Party In Interest
California Oak Foundation v. County of Tehama et al. (Del Webb California Corp. et al.), ____ Cal. App. 4th ____ (June 11, 2009, No. CI58258)
By Katharine E. Allen
Four letters sent to the County of Tehama and the Tehama County Board of Supervisors (collectively “Tehama”) and disclosed to real parties in interest by a law firm retained as outside counsel for the purpose of providing advice on compliance with the California Environmental Quality Act (“CEQA”) maintained their privileged status under the attorney-client and work product privileges despite the disclosure and thus did not need to be included in the administrative record. In so holding, the Court of Appeal for the Third Appellate District relied on the common interest doctrine to maintain the privileged status of the letters. The court did, however, reverse the judgment of the Superior Court of Tehama County on a separate issue related to the investigation of the financial feasibility of certain mitigation fees, with directions that the superior court enter a judgment requiring Tehama to reconsider the standard used in determining the economic feasibility of the underlying project.
City Not Required To Identify Specific Location For Off-Site Mitigation Under CEQA Because Standards Sufficient
California Native Plant Society v. City of Rancho Cordova, ____ Cal. App. 4th _____ (March 24, 2009, No. C057018)
By Elizabeth S. Anderson
The California Court of Appeal for the Third Appellate District determined that the City of Rancho Cordova did not improperly defer mitigation under the California Environmental Quality Act ("CEQA") when it adopted a mitigation measure that required the applicant to develop (1) a habitat mitigation and monitoring plan for off site mitigation pursuant to standards which would ensure no net loss of habitat as a result of on site construction; and (2) a wetland avoidance/mitigation plan to address the potential impacts of any off-site creation activities contemplated in the habitat mitigation and monitoring plan. In reversing the trial court's holding on this point, the court found that the habitat mitigation and monitoring plan did not need to identify specific off-site locations for mitigation. The court did, however, affirm the trial court's holding that the City's approval of the entitlements was inconsistent with a General Plan policy that required the City to design mitigation "in coordination with" other public agencies because the City merely solicited, considered, and responded to the agencies' comments on the EIR. Although the holding on this latter issue may require public agencies that use this language in their general plan to "cooperate with" the specified agencies, the court upheld the principle that a project need not be in "perfect conformity" with every general plan policy. Rather, a project would be consistent with the general plan if it would "further the objectives and policies of the general plan and not obstruct their attainment."
Agreements Conditioned On Subsequent CEQA Review Violate CEQA If Record Shows Agency Already Committed To Project
Save Tara v City of West Hollywood, ___ Cal. 4th ___ (Oct. 30, 2008, Case No. S151402)
In this case, the California Supreme Court invalidated agreements by the City of West Hollywood (“City”) for a housing project that was conditioned on future environmental review. The court avoided establishing a bright-line rule that would define CEQA approvals as either entering into any agreement for development of a well-defined project, or the execution of unconditional agreements that irrevocably vest development rights. Instead it articulated the general principle that before conducting CEQA review, agencies must not take any action that significantly furthers a project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of the project. Surrounding circumstances along with the agency’s agreements should be evaluated by the courts when applying this general principle. To assist in making the determination, the court set forth a two-step approach: (i) whether the agency, in taking action indicates it will perform environmental review before making any further commitment to the project, and if so, whether the agency nevertheless limits its discretion regarding environmental review; and (ii) whether the record shows the agency committed significant resources to shape the project and thereby foreclosed consideration of meaningful alternatives.Continue Reading Questions & comments
SB 375: California Adopts New Law Geared to Reduce Greenhouse Gas Emissions by Integrating Regional Transportation and Land Use Planning
On September 30, 2008, the rules governing regional planning changed dramatically when Governor Schwarzenegger signed Senate Bill No. 375 ("SB 375") into law. SB 375, in its essence, attempts to control greenhouse gas ("GHG") emissions by curbing urban sprawl through the implementation of "sustainable community strategies" in land use and transportation planning, along with various related incentives relating to housing development.Continue Reading Questions & comments
Fish and Game Commission Must Accept Petition to List the CTS under California Endangered Species Act
On September 2, 2008, the Third District of the California Court of Appeal decided that the California Fish and Game Commission (“Commission”) erred by rejecting at the threshold a petition to list the California tiger salamander (“CTS”) under the California Endangered Species Act ("CESA"). The Commission had rejected the petition in 2004, finding that it provided insufficient information to indicate that listing “may be warranted,” the standard for the accepting a petition for further evaluation under Fish and Game Code section 2074.2. The petitioner sued, and the trial court granted the petitioner’s request to overturn the Commission’s decision. The decision has major implications for the administration of the California Endangered Species Act.Continue Reading Questions & comments
Loss of Power? AQMD rules Designed to Spur Development of Newer, Cleaner Electrical Power Plants Recently Vacated in LA Superior Court
Two new rules promulgated by the South Coast Air Quality Management District (AQMD) that were designed to encourage development of newer, cleaner electric power plants by replacing older, more-polluting ones were recently vacated in a case pending in the Superior Court in Los Angeles. The court decided that, in implementing the rules, the AQMD, which has broad jurisdiction to control air pollution in most of Southern California, violated the California Environmental Quality Act (CEQA) by failing to analyze the rules’ health and environmental impacts prior to their adoption.Continue Reading Questions & comments
California Supreme Court Holds Headwaters Agreement Incidental Take Permit And Sustained Yield Plan Invalid
Environmental Protection and Information Center v. California Department of Forestry and Fire Protection (July 17, 2008, S140547) __ Cal.4 ___.
By James Rusk
The state Incidental Take Permit (the “ITP”) and the Sustained Yield Plan (the “SYP”) approved under the Headwaters Agreement of 1996, which allowed the Pacific Lumber Company (“PLC”) to log old growth redwood forests in Humboldt County, are invalid, the California Supreme Court ruled last week. The Court held the state ITP invalid because it provided “no surprises” assurances that unlawfully limited PLC’s obligation to fully mitigate its impacts on endangered and threatened species. The SYP was invalid for two reasons: First, the California Department of Forestry and Fire Protection (“CDF”) never approved an “identifiable final SYP,” as required by California law. Second, the environmental analysis performed by PLC for the SYP did not examine watershed impacts of logging at a sufficiently detailed level.Continue Reading Questions & comments
Denial Of A Conditional Use Permit For Airport Requires Initial Study Under CEQA Because Airport Closure May Affect Environment
Sunset Skyranch Pilots Association v. County of Sacramento (July 2, 2008, C055224) ___ Cal.App.4th ___
By Misty Calder
In this case, Sacramento County (“County”) denied renewal of a conditional use permit (“CUP”) needed for the continued operation of a privately-owned, public-use airport. The trial court held that (1) denial of the CUP renewal did not constitute a “project” under the California Environmental Quality Act (“CEQA”); and (2) denial of the CUP renewal was not preempted by or violative of the State Aeronautics Act (“SAA”). The Court of Appeal reversed as to the CEQA claim, holding that denial of the CUP would have the practical effect of closing the airport, and airport closure had the potential to cause significant environmental impacts. Therefore, notwithstanding section 15270 of the CEQA Guidelines, the closure of the airport was a “project” under CEQA and not exempt from environmental review under CEQA.Continue Reading Questions & comments
Lincoln Place Tenants Assoc. v. City of Los Angeles (September 19, 2007, B193235 [2nd Dist. , Div. 7]) ___ Cal. App. 4th ____; http://www.courtinfo.ca.gov/cgi-bin/opinions
In this case, the Second District Court of Appeal confirmed that the Ellis Act does not preempt CEQA and that cities have a continuing obligation to comply with mitigation measures required under CEQA.Continue Reading Questions & comments
Global Warming Update: Legislature Amends CEQA Regarding Greenhouse Gas Emissions; Attorney General Settles Global Warming Suit
On August 21, 2007, the California State Legislature ended a 52?day budget stalemate, agreeing to a $145 billion spending plan. As part of that agreement, the lawmakers passed minor amendments to the California Environmental Quality Act (“CEQA”). The amendments require the State Office of Planning and Research to develop and prepare guidelines addressing the analysis and feasible mitigation of greenhouse gas emissions, as required by CEQA. These guidelines must be adopted by the Resources Agency by January 1, 2010. The amendments also provide an exemption for certain projects from CEQA lawsuits based on claims that the effects of greenhouse gas emissions were not adequately analyzed or mitigated in an Environmental Impact Report (“EIR”) or other CEQA document prepared for the project. The projects exempted are any transportation or flood protection projects funded by the $25 billion bond measures passed by the voters in 2006. The CEQA exemptions are temporary, expiring on January 1, 2010.Continue Reading Questions & comments
Test for Preparation of Supplemental or Subsequent EIR is Significance of Impacts from Project Modifications, Not the Modifications
In Mani Brothers Real Estate Group v. City of Los Angeles, the Second District Court of Appeal of California addressed the issue of whether the City of Los Angeles (the “City”) and the Los Angeles Community Redevelopment Agency (the “CRA”) properly relied on a 2005 Addendum to a 1989 environmental impact report (“EIR”) in approving a modified project. In doing so, the Court specifically rejected the analysis of a 2006 case which held that the initial inquiry should focus on whether the changes amount to a “new project” requiring an EIR. Rather, under the substantial evidence standard of review, and based on CEQA and the CEQA Guidelines, the Court held that the proper question is whether the changes result in new significant impacts compared to the original project.Continue Reading Questions & comments
California Supreme Court Upholds Use of "Common Sense" Exemption, Says That CEQA May Require Consideration of the Effects of "Displaced Development"
Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) __ Cal. __
In Muzzy Ranch Co. v. Solano County Airport Land Use Commission, the California Supreme Court unanimously held that the adoption of the Travis Air Force Base Land Use Plan (the "Plan") by the Solano County Airport Land Use Commission (the "Commission") was a "project" for purposes of CEQA. In this particular case, however, the Court affirmed the Commission's determination that the adoption of the Plan was exempt from CEQA pursuant to the "common sense" exemption since the Plan simply reiterated existing Solano County General Plan land use policies. This decision is significant in that the Court: (1) upheld the use of the "common sense" exemption from CEQA review, even though "legitimate questions were raised" about the possible environmental impacts of the adoption of the Plan and the Commission had erred by failing to identify substantial evidence in the record in support of its invocation of the exemption; and (2) also acknowledged that CEQA may require lead agencies to consider the effects of "displaced development" resulting from restrictive land use policies where such development can be reasonably anticipated.Continue Reading Questions & comments
On May 22, 2007, the Napa County Superior Court issued its ruling in American Canyon Community United for Responsible Growth et al. v. City of American Canyon et al. (Napa County Superior Court Case No. 26-27462), approving the City’s “addendum” to the previously approved mitigated negative declaration, and thereby authorizing the partially constructed and approved Wal-Mart supercenter in American Canyon to proceed with construction and operations. The court’s ruling is significant in part because it rejected the petitioners’ novel claim that the City was required to perform “supplemental” environmental review of the project’s potential impacts on climate change in response to the California legislature’s recent enactment of Assembly Bill 32.Continue Reading Questions & comments
Transfer Of Park & Recreation District Land To Third Party Was Not A Project Requiring Prior CEQA Review Where The Lack Of Any Development Plan Made Environmental Review Premature
Friends Of The Sierra Railroad v. Tuolumne Park and Recreation District (filed January 12, 2007; certified for publication February 8, 2007, F050117) __ Cal.App.4th__
By Lori Wider
In this case plaintiff Friends of the Sierra Railroad (Friends) challenged the approval and sale of land from Tuolumne Park and Recreation District (District) to Tuolumne Band of Me-Wuk Indians (Real Party). The land sold contained a portion of an historic railroad right?of?way. Friends contended that the sale constituted a “project” under CEQA, requiring prior environmental review. The Court of Appeal held that the transfer of the land was not a “project” under CEQA under the circumstances of this case. While some development of the property was reasonably foreseeable, review of possible impacts to the historical resource would be premature in the absence of any specific proposal for development.Continue Reading Questions & comments
Court Sets Aside Approval Of Demolition Permit On Basis That Findings Of Infeasibility Concerning EIR Project Alternatives Not Supported By Substantial Evidence
Uphold Our Heritage v. Town of Woodside (filed January 10, 2007; certified for publication February 2, 2007, A113376) __ Cal.App.4th__
By Lori Wider
In this case plaintiff Uphold Our Heritage (Heritage) challenged the issuance by the Town of Woodside (Town) of a permit to Steve Jobs (Jobs) to demolish a mansion on his property to enable construction of a new single family residence. The Court of Appeal held that Town's findings of infeasibility of certain EIR project alternatives involving rehabilitation of the existing structure rather than demolition were not supported by substantial evidence in the record. While the estimated costs of restoration of the mansion were before the Town Council (Council), the record was devoid of any information regarding the likely cost of a new residence (the proposed project). Without the information necessary to compare the restoration costs against the cost of the project, there was insufficient evidence to support the findings of infeasibility of rehabilitation alternatives.Continue Reading Questions & comments
No Cause Of Action Under CEQA To Challenge County CEQA Determination Where Determination Superseded By Coastal Commission De Novo Review On Appeal
McAllister v.County of Monterey et al. (January 31, 2007, H028813) __ Cal.App.4th__
By Lori Wider
This case involved a challenge by the plaintiff McAllister to approval of a coastal development permit issued to his neighbors ("Real Parties") for a single family residence on the Big Sur coast. The primary issues addressed by the court were McAllister's arguments that (1) the County of Monterey's ("County") approval of the permit was null and void since a prior owner's violation of conditions of a previously issued development permit for the same property constituted a violation of the County Code and, therefore, divested the County of jurisdiction to approve the permit; and (2) the County violated CEQA by failing to prepare an EIR rather than a mitigated negative declaration in connection with the permit.Continue Reading Questions & comments
District Approval Of Agreement For Purchase And Sale Of Water Expressly Conditioned On Future CEQA Compliance Does Not Require Prior CEQA Review
Concerned McCloud Citizens v. McCloud Community Services District et al. (Filed January 2, 2007; certified for publication January 31, 2007, C050811) __ Cal.App.4th__
By Lori Wider
Introduction and Background
The California Court of Appeal, Third Appellate District, reversed the decision of the trial court granting a petition for writ of mandate brought to challenge approval of an agreement between the McCloud Community Facilities District ("District") and Nestle Waters North America, Inc. ("Nestle") for the sale and purchase of spring water. The lower court determined that the District had violated CEQA by failing to conduct environmental review prior to approving the agreement. The appellate court disagreed, finding that approval of the agreement did not trigger the requirement for environmental review prior to District approval because (a) the agreement was expressly conditioned on future CEQA compliance; and (b) it did not commit the District to a course of action or commit it to issuance of any permits or other entitlements to Nestle.Continue Reading Questions & comments
CEQA Violated Where City Determined No Additional Environmental Review Required For Wal-Mart Supercenter
American Canyon Community United for Responsible Growth v. City of American Canyon et al. (November 17, 2006; certified for partial publication December 18, 2006, A111278) __ Cal.App.4th__ http://www.courtinfo.ca.gov/opinions
By Lori Wider
In this case, the Court of Appeal determined that the City of American Canyon (“City”) violated CEQA because the City’s determination that project changes would not substantially increase traffic impacts was not supported by substantial evidence and the City failed to proceed in accordance with law by refusing to consider potential extraterritorial urban decay effects of a proposed Wal-Mart supercenter. The changes would have increased the size of the approved project by 6.5% and added 30 traffic trips. The Court also determined that the City violated its zoning ordinance by approving the supercenter without approving a major modification application. Only the CEQA portion of the decision is certified for publication; the last section of the decision, addressing the alleged zoning ordinance violations, is not.Continue Reading Questions & comments
Wagner Farms, Inc. v. Modesto Irrigation District (Dec.6, 2006, F049966) __ Cal.App.4th __ http://www.courtinfo.ca.gov/opinions/
In this case, the appellate court reversed an award of costs in favor of the Modesto Irrigation District (the District) granted by the trial court after the plaintiff's petition for a writ of mandate was denied. The court found the District had failed to provide sufficient justification for the "unusually high" cost per page for preparing the record and to adequately document the time legitimately charged for assembling the record of the proceedings.Continue Reading Questions & comments
Lead Agency Can Decide New Information Does Not Require Recirculation Of A Final EIR Without First Adding The Information To The Final EIR
Western Placer Citizens for an Agricultural and Rural Environment v. County of Placer (3rd Dist. Nov. 9, 2006)
In this new California Environmental Quality Act (CEQA) case, the Court of Appeal upheld the County's EIR for a sand, gravel, and granite mining and processing project. The court ruled on two important issues. First, the County did not violate CEQA by failing to include and analyze a slightly revised project description submitted by the applicant after the final environmental impact report (EIR) had been prepared. Coupled with this holding, the court found that the County's decision not to prepare additional environmental review of the revised project was supported by substantial evidence in the record. Second, the court determined that the EIR's water supply analysis was adequate. The court also found that the plaintiff had exhausted its administrative remedies.Continue Reading Questions & comments
Citizens for Open Government v. City of Lodi (3rd Dist. Nov. 9, 2006)
By Julie Austin
Two non-profit groups, Citizens for Open Government (Citizens) and Lodi First, opposed the City of Lodi’s certification of a Final Environmental Impact Report (FEIR) and approval of a use permit for a Wal-Mart-anchored shopping center. The trial court found that Citizens had not exhausted all of its administrative remedies because, even though Lodi First filed an appeal to the City Council, Citizens had not filed its own appeal. The Court of Appeals reversed this determination and found that Citizens had exhausted its administrative remedies under CEQA and the Municipal Code because Citizens appeared before the City Council to file its own objections and participated in the administrative process. The court also found that Citizens’ claims were not moot even though a trial court had partially granted Lodi First’s petition and vacated the City Council’s approval of the project.Continue Reading Questions & comments
Major Victory for Habitat Conservation Planning: California Appeals Court Denies CEQA and CESA Challenge to Natomas Basin Habitat Conservation Plan
In what can be characterized as a win for habitat conservation planning generally, and for development in the Natomas Basin specifically, California's Third Appellate District has just published its August 9, 2006 decision, Environmental Council of Sacramento v. City of Sacramento et al., affirming the trial court's conclusion that the city of Sacramento and Sutter County's certification of the Environmental Impact Report (EIR) for the 2003 Natomas Basin Habitat Conservation Plan fully accounted for the environmental consequences of the HCP and implementation agreement under the California Environmental Quality Act (CEQA), and that the Department of Fish and Game met its responsibilities to protect threatened species through issuance of incidental take permits for the HCP under the California Endangered Species Act (CESA). The court concluded that plaintiffs failed to show an abuse of discretion under either statute.Continue Reading Questions & comments
Wal-Mart Stores, Inc., et al. v. City of Turlock
In Wal-Mart Stores, Inc., et al. v. City of Turlock, (2006) 138 Cal.App.4th 273, the California Court of Appeal for the Fifth Appellate District upheld a City of Turlock zoning ordinance which amended the City's general plan to bar the development of “big box” retail stores containing full service grocery departments. Under the ordinance, the City banned the development of “discount superstores,” which it defined as discount stores that exceed 100,000 square fee of gross floor area and devote at least 5 percent of the total sales floor area to the sale of nontaxable merchandise, often in the form of a full-service grocery department. In Wal-Mart's appeal of its earlier Superior Court defeat, it argued that the ordinance was an unconstitutional use of the City's police power and that the ordinance failed to comply with the California Environmental Quality Act (CEQA).Continue Reading Questions & comments
In Citizens For Responsible Equitable Environmental Development (CREED) v. City of San Diego Redevelopment Agency, 2005 Cal. App. LEXIS 1850, the California Court of Appeal, Fourth District, recently rejected the appeal by opponents, CREED, of a hotel development project claiming that the City of San Diego Redevelopment Agency ("City") violated CEQA when the City approved the hotel project without first requiring a project-specific EIR.Continue Reading Questions & comments
In Endangered Habitats League v. County of Orange, 131 Cal. App. 4th 777 (2005), the California Court of Appeal rejected a development plan in Orange County. The court did so on the grounds that the specific plan approved by the County conflicted with its general plan, and that the County compiled an inadequately detailed environmental impact report (EIR).Continue Reading Questions & comments
Recently, three separate panels of the California Court of Appeal rendered opinions on the availability of attorneys' fees for plaintiffs who bring CEQA challenges. The decisions make clear that courts have considerable latitude in determining who is the "successful party" and whether there has been a "significant benefit" under the private attorney general statute.Continue Reading Questions & comments
"Conversion" of industrial properties to residential use, and "collocation" of residential units near industrial or commercial uses, has attracted concern from some industrial users and environmentalists.
Yet given the housing crisis and the scarcity of residential land available, urban infill and other "smart growth" developments are vital -- and, by their nature, are often located near other uses, including industrial.
(July 7, 2004) 04 C.D.O.S. 6060
In 2002, the Town of Apple Valley approved a project allowing the construction of a 1.2 million square foot distribution center with related outbuildings on a 300 acre site. The City Council certified an EIR for the project, adopted findings, and adopted a statement of overriding considerations for seven significant unavoidable environmental impacts. Neither the EIR nor the various public notices issued in connection with the EIR and the public hearings on the project revealed that Wal-Mart would be the project's end user.Continue Reading Questions & comments