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CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277

dateFebruary 8th, 2018 byby

The First District Court of Appeal reversed the California Department of Parks and Recreation’s (“Department”) approval of the Upper Truckee River Restoration and Golf Course Reconfiguration Project (“Project”), finding that the failure to identify a preferred alternative in the Draft EIR compromised the integrity of the EIR process.

In 1984, the State of California acquired a 777-acre parcel encompassing a 2.2-mile stretch of the Upper Truckee River. The parcel was later divided into two units: the Washoe Meadows State Park (“State Park”) created to protect a wetland meadow and the Lake Valley State Recreation Area (“Recreation Area”) created to allow the continuing operation of an existing golf course.

Since the 1990s, erosion of the river bed of the Upper Truckee River has raised environmental concerns. The layout of the golf course, which altered the course of the river, apparently contributed to a deterioration of the habitat and water quality. The Project was proposed to reduce the discharge of sediment that diminishes Lake Tahoe’s clarity and at the same time to provide public recreation opportunities in the State Park and Recreation Area.

The Department issued a scoping notice including four alternative projects and identified one of the alternatives – river restoration with reconfiguration of the golf course – as the preferred alternative. In August 2010, the Department circulated a draft EIR (“DEIR”) for the project. Although the DEIR analyzed five very different alternative projects, including the four alternative projects identified in the scoping notice, it did not identify a preferred alternative. The DEIR stated that the lead agency would determine which alternative or combinations of features from multiple alternatives was the preferred alternative in the final EIR (“FEIR”).

In September 2011, the Department issued the FEIR, identifying a version of the project as the preferred alternative. After the Department approved the preferred alternative project in January 2012, the plaintiff sued. The trial court held in favor of the plaintiff.

On appeal, the court held that the DEIR’s failure to provide the public with an “accurate, stable and finite” project description prejudicially impaired the public’s right to participate in the CEQA process, citing County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185. Noting that a broad range of possible projects presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives, the court found that the presentation of five very different alternative projects in the DEIR without a stable project was an obstacle to informed public participation.



The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993

dateFebruary 8th, 2018 byby

In September 2014, the plaintiff challenged the City’s finding that its use of light emitting diode replacement lights was exempt from formal environmental review under CEQA. The plaintiff failed to lodge the administrative record as required pursuant to a stipulation. On July 8, 2015, the trial court denied the plaintiff’s request for a continuance because the record had not been lodged. The trial court also denied the plaintiff’s petition and complaint because the plaintiff could not support its arguments due to its failure to lodge the administrative record.

On August 26, 2015, the plaintiff moved to vacate the judgment under Code of Civil Procedure (“CCP”) section 473, subdivision (b), asserting that both discretionary and mandatory relief should be granted based on its attorney’s sworn affidavit in which he admitted neglect in failing to lodge the administrative record. The trial court denied discretionary relief because the plaintiff’s counsel’s mistake – failing to check to see if his assistant actually lodged the administrative record due to his hectic workload – did not rise to the level of excusable neglect. The trial court granted mandatory relief, however, finding that the mistake of plaintiff’s attorney deprived plaintiff of its day in court and explaining that it had ruled on the merits only because it was under the mistaken impression that the incomplete record had been lodged by plaintiff, when in fact it had been lodged by the City.

On appeal, the Second District Court of Appeal held that the trial court erred in granting the mandatory relief. The mandatory relief provision in CCP section 473, subdivision (b) only applies to a default, a default judgment, or a dismissal. In this case, the court found the mandatory relief provision did not apply. Plaintiff failed to present sufficient evidence to meet its burden of proof because it never lodged the administrative record.  The judgement was therefore on the merits and not a default, default judgment, or dismissal.




The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883

dateFebruary 8th, 2018 byby

The Sixth District Court of Appeal affirmed the trial court and upheld the County’s approval of a shopping center proposed by Omni Resources LLC (“Omni”), known as the Corral de Tierra Neighborhood Retail Village (“Project”). The Project, proposed for construction on eleven acres of land located at the intersection of Highway 68 and Corral de Tierra Road in Monterey County, consists of ten retail buildings, including a grocery store, a two-story office building, and other retail spaces for a sporting goods store, bank, florist, mail store, post office branch, or a barber/beauty salon.

After the Board of Supervisors certified an EIR and approved the project in February 2012, the plaintiff sued the County, alleging failure to comply with CEQA. The trial court rejected the plaintiff’s claims of CEQA violations, but issued an order of interlocutory remand to allow the County to clarify whether the Project was consistent with the County’s general plan requirement that the Project have a long-term, sustainable water supply.

On remand, the Board adopted a resolution finding that the Project was consistent with the County’s general plan. In March 2015, the plaintiff filed its opening brief, contending that the County violated both CEQA and procedural due process during the remand proceedings. In 2015, the trial court again held for the County and Omni.

In the published portion of the opinion, the court rejected the plaintiff’s argument that the trial court erred in issuing an interlocutory remand. According to plaintiff, where an agency abused its discretion, the only allowable procedure, as provided by Public Resources Code (“PRC”) section 21168.9, was an order compelling compliance with CEQA. The court found that the mandate procedures in PRC section 21168.9 did not apply because the issue of whether a proposed project was consistent with a county’s general plan was not a CEQA issue. Citing Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499, the court concluded that the trial court’s choice to issue an interlocutory remand was eminently practical and well within the court’s inherent power. Because there was a single, discrete non-CEQA issue of general plan consistency that required clarification before the County’s approval of the Project could be upheld, the court concluded interlocutory remand was proper in this case.

The court rejected the plaintiff’s contention that the EIR failed to analyze whether the project was consistent with the County’s 2010 general plan. The court found that, although CEQA requires an analysis of general plan inconsistency, CEQA does not require an analysis of general plan consistency. The court also rejected the plaintiff’s argument that the County’s finding on interlocutory remand that the project was consistent with the County’s general plan and had a long-term sustainable water supply was not supported by substantial evidence.



Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941

dateFebruary 8th, 2018 byby

The Fourth District Court of Appeal affirmed the trial court and upheld the County’s approval of the Keller Crossing Specific Plan Project (“Project”), a master-planned community proposed by Hanna Marital Trust (“Trust”). The Project proposed residential, mixed-use, commercial and open space components on approximately 200 acres of undeveloped land in the French Valley region of the County. The Project included a general plan amendment, a zoning amendment, and a specific plan (Specific Plan 380).

After finding that the Project’s air quality and noise impacts could not be reduced below the level of significance after mitigation, the County approved the Project and the plaintiffs sued, asserting the County failed to comply with procedural, informational, and substantive provisions of CEQA. The trial court held in favor of the County and the Trust.

On appeal, the court rejected the plaintiff’s argument that the Trust and the County substantially modified the Project after the Board of Supervisors certified an EIR for the Project and approved the Project on December 18, 2012. The court explained that the administrative record clearly showed that the Board only tentatively approved the Project on December 18, 2012 and the Board approved the final version of the Project on November 5, 2013 after planning staff and the Trust had codified the plan changes discussed at the December 18, 2012 hearing.

Second, the court held that errors contained in the notice of determination did not justify unwinding the County’s approval. These errors were related to the description of the Project, such as the number of planning areas, the size of commercial office development, the number of residential units, and the acreage for residential, commercial, and mixed uses. Finding that much of the Project description in the notice was accurate, the court concluded the notice substantially complied with CEQA’s informational requirements by providing the public with the information it needed to weigh the environmental consequences of the County’s determination.

Third, the court rejected the plaintiff’s argument that the County failed to revise and recirculate the EIR after changes were made to Specific Plan 380. The plaintiff contended these changes might cause significant traffic, biological, and noise impacts. Finding these changes related to the details of the allocation and arrangement of uses within the Project site, the court held the EIR adequately addressed potential impacts that might result from the changes to the plan.

Fourth, the court rejected the plaintiff’s argument that the EIR failed to adequately analyze the air quality, noise, and traffic impacts from the mixed-use planning area in the Project. Specifically, the plaintiff contended that, although the EIR analyzed the impacts of development of a continuing care retirement community (“CCRC”) in the mixed-use planning area, the EIR failed to analyze the impact of higher-impact uses that could be allowed. Because the plan included a provision that uses other than a CCRC are allowed only if such uses are compatible with the adjacent planning areas and no additional environmental impacts would occur (based on review by the County) the court held that the County did not improperly defer environmental analysis of other uses.

Finally, the court held that the EIR adequately considered specific suggestions for mitigating the impact of the Project on air quality and noise levels. The court found that the Planning Department properly determined that an air quality mitigation measure proposed by the South Coast Air Quality Management District – requiring all off-road diesel-powered construction equipment greater than 50 horsepower to meet Tier 3 off-road emissions standards – was not feasible because the applicant provided evidence that such equipment would not be available at the time of construction. Further, the court held that the County was not required to respond to the plaintiff’s comments in which it proposed several noise mitigation measures because they were submitted more than 14 months after the comment period ended.



Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261

dateFebruary 8th, 2018 byby

The First District Court of Appeal affirmed the trial court and upheld the City and County of San Francisco’s (“City”) approval of the construction of a three-story-over-basement, three-unit condominium and the restoration of an existing cottage on a 7,517-square-foot lot on the south side of Telegraph Hill (“Project”).

In September 2014, the San Francisco Planning Department (“Department”) determined that the Project was categorically exempt from CEQA. Subsequently, the Planning Commission approved a conditional use authorization for the Project. The plaintiffs appealed the Department’s decision exempting the Project from environmental review and the Planning Commission’s conditional use authorization to the San Francisco Board of Supervisors (“Board”). Both the Planning Commission and the Board imposed conditions related to pedestrian safety and possible disruption of traffic on Telegraph Hill during construction. After the Board affirmed the Planning Commission’s decisions, the plaintiffs sued the City. The trial court ruled for the City.

On appeal, calling the plaintiffs’ argument an ipse dixit, the court rejected the plaintiffs’ argument that the fact that conditions of approval were imposed on the Project meant the Project would have a significant impact. The court explained that the conditions were intended to address the ordinarily anticipated inconvenience and danger associated with significant construction activity in a congested urban environment. The court found that the conditions were not adopted out of concern that the Project would have a significant environmental effect, given that the Department approved the categorical exemptions without qualifications.

Second, the court rejected the plaintiffs’ contention that the project description was inadequate. The court found that County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, the only authority on which the plaintiffs relied to support their argument, was inapposite because Inyo considered the adequacy of a project description for an EIR and not a CEQA exemption. The court held that the project description was adequate because it met the requirements in the City’s Administrative Code though it did not meet the specifications for a project description in an EIR set forth in the CEQA Guidelines section 15124.

Third, the court rejected the plaintiffs’ argument that the unusual circumstances exception applied in this case because the Project’s location and site constraints were “unequivocally rare.” The court found that substantial evidence in the record supported the City’s determination that the Project presented no unusual circumstances with respect to the nearby intersection, views, and the site topography.

Finally, the court rejected the plaintiffs’ argument that the City impermissibly approved the conditional use authorization because the Project was inconsistent with the general plan. The plaintiffs argued that the Project conflicted with one of the policies in the general plan, which protects access to vistas, because the Project would obscure the views from the stairway leading to Pioneer Park. The court explained that the policy directives contained in the San Francisco general plan are not strictly construed because the agency has discretion to interpret its own plans, citing San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498.



Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187

dateFebruary 8th, 2018 byby

The First District Court of Appeal affirmed the trial court and upheld the Judicial Council of California’s (“Judicial Council”) certification of an EIR analyzing the relocation of a courthouse (“Project”) in the City of Placerville (“City”). The Project involves the consolidation of trial court operations from two buildings, including the Main Street courthouse, which is an historic downtown building dating from 1912, and a County administrative complex, into a new three-story building to be constructed on undeveloped land adjacent to the County jail, located less than two miles from downtown Placerville.

After the Judicial Council certified the final EIR in June 2015, the plaintiff, a group of County citizens with “a particular interest in the protection of El Dorado County’s environment,” sued the Judicial Council. Although the plaintiff’s petition alleged four deficiencies in the EIR, only one of them, the failure to treat the potential for urban decay resulting from relocation of courthouse operations as a significant environmental impact, was ultimately argued at the trial court. The trial court found in favor of the Judicial Council.

On appeal, the court concluded that under CEQA urban decay is defined as “physical deterioration of properties or structures that is so prevalent, substantial, and lasting a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community.” Citing Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 685, the court further provided that physical deterioration includes “abnormally high business vacancies, abandoned buildings, boarded doors and windows, parked trucks and long-term unauthorized use of the properties and parking lots, extensive or offensive graffiti painted on buildings, dumping of reuse or overturned dumpsters on properties, dead trees and shrubbery, and uncontrolled weed growth or homeless encampments.”

In applying the definition of urban decay to the facts of this case, the court held that physical deterioration was not a reasonably foreseeable consequence of terminating judicial functions at the Main Street courthouse.

Finally, the court found that an informal survey submitted by a local resident that suggested that some businesses would lose revenue as a result of the Project, is little more than anecdotal evidence where the nature of the survey is not explained, including the manner in which participants were selected, the proportion of businesses participating, and the number responding that there would be no effect on their businesses. Distinguishing this case from Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, the court found that the administrative record in this case did not contain sufficient evidence supporting the validity of concerns about the Project impacts, such as an economic study and articles related to the risk of urban decay.



Living Rivers Council v. State Water Resources Control Board (2017) 15 Cal.App.5th 991

dateFebruary 8th, 2018 byby

The First District Court of Appeal affirmed the trial court and upheld the State Water Resources Control Board’s (“Board”) approval of a policy to maintain instream flows of Northern California coastal streams (“Policy”) for the purposes of water rights administration under Water Code section 1259.4. The Policy includes measures to protect native fish populations, including steelhead trout, coho salmon, and chinook salmon. It also establishes five principles related to the timing and rate of allowable surface water diversions and the construction of new on-stream dams.

In May 2010, the Board adopted the Policy with a Substitute Environmental Document (“SED”), in accordance with CEQA’s provisions for certified regulatory programs under Public Resources Code section 21080.5. Although the Board also prepared Subterranean Stream Delineations (“Delineations”) to identify locations in the Policy area where the Board would have permitting authority over groundwater pumping, the Board neither disclosed the locations, nor incorporated the Delineations, into the Policy. A report prepared by the Board’s consultant as part of the SED noted that the Policy’s restrictions on surface water diversions could result in depletion of groundwater as some of the surface water users would begin to divert water from other sources, including groundwater.

The plaintiff sued the Board, alleging CEQA violations. The trial court found the SED deficient and ordered the Board to, among other things, evaluate the Delineations as a potentially feasible mitigation measure for the anticipated increased use of groundwater. In response, the Board conducted additional CEQA review and certified a revised SED (“RSED”) in October 2013. The RSED evaluated the Delineations as a mitigation measure, but concluded they would not be feasible for several reasons, including: (1) the likelihood of affected persons switching to groundwater pumping was uncertain; (2) the potential shift from surface water diversions to groundwater pumping that might be caused by the Policy was unlikely to cause a significant reduction in surface water flows; (3) adoption of the Delineations would not assist the Board in regulating pumping outside the mapped areas; (4) the Delineations were based on the information available at the time they were prepared and field inspections had not been conducted; (5) the Board could consider the Delineations on a case-by-case basis even if they were not adopted as part of the Policy; and (6) the Board could regulate unacceptable impacts associated with groundwater pumping based on its authority to prohibit the unreasonable use of water. In March 2014, the plaintiff again sued the Board based on the RSED’s analysis of the anticipated increased use of groundwater pumping. The trial court held for the Board.

On appeal, the court first rejected the plaintiff’s argument that the RSED was misleading because it “equivocated” by asserting that the Policy’s impacts were uncertain or unlikely, while it simultaneously found these impacts would be significant. The court concluded the RSED fulfilled its information purpose because it clarified the basis for its conclusions and was internally consistent.

Next, the court upheld the Board’s conclusion that use of the Delineations as a mitigation measure was infeasible. First, the court rejected the plaintiff’s contention that the Board relied on two legally irrelevant factors in making the conclusion, including: (1) the likelihood that surface water users would switch to groundwater pumping as a result of the Policy; and (2) the severity of the depletion of surface water flows resulting from groundwater pumping. The court found it permissible for the Board to consider these factors because the likelihood and severity of the effect were relevant in making the determination. Second, the court rejected the plaintiff’s argument that the Board was prohibited from considering the effectiveness of a mitigation measure in determining the measure’s feasibility. The court explained that no case law precluded the Board from doing so.



L.A. Conservancy v. City of W. Hollywood, 2017 Cal.App.LEXIS 1151

dateFebruary 8th, 2018 byby

The Second District Court of Appeal affirmed the trial court’s decision upholding the adequacy of the environmental impact report (EIR) and supporting CEQA findings made by the City of West Hollywood (City) concerning approval of a mixed-use project on a three-acre “gateway” site in the City.

The Project, as proposed, required demolition of a building built in 1928 and remodeled in 1938, which was considered eligible for listing on the California Register of Historical Resources. The EIR acknowledged that demolition of the building constituted a significant and unavoidable impact.  As a result, the EIR included a project alternative that proposed redesigning the Project in order to preserve the historic building.  In approving the Project, the City rejected the preservation alternative, but required that portions of the historic building façade be incorporated into the Project design.

Plaintiff Los Angeles Conservancy (plaintiff) alleged that the City violated CEQA because the analysis of the preservation alternative was inadequate, the Final EIR failed to sufficiently respond to comments concerning preservation of the historic building, and evidence did not support the City’s findings that the preservation alternative was infeasible. The trial court denied the plaintiff’s petition.  On appeal, the court affirmed.

First, the court held that the EIR’s analysis of the conservation alternative was detailed enough to permit informed decision making and public participation. The court rejected plaintiff’s argument that the City was required to prepare a “conceptual design” for the alternative.  The court noted that no legal authority required a conceptual design to be prepared for an alternative included in an EIR.

Second, the court found that comments on the draft EIR cited by the plaintiff did not raise new issues or disclose any analytical gap in the EIR’s analysis. The court noted that to respond to comments that merely expressed general Project objections and support for the preservation alternative, the City could properly refer the commenters back to discussion included in the draft EIR concerning the historic building on the project site.

Finally, the court stated that a court must uphold the lead agency’s findings concluding an alternative is infeasible if supported by substantial evidence. In undertaking this inquiry, “[a]n agency’s finding of infeasibility… is ‘entitled to great deference’ and ‘presumed correct.’” While the court noted that the plaintiff may have demonstrated that the City could have concluded the preservation alternative was not infeasible, other evidence in the record supported the City’s determination that the alternative was impractical or undesirable from a policy standpoint.  Thus, substantial evidence supported the City’s infeasibility findings.



Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034

dateFebruary 8th, 2018 byby

The Fourth District of Court of Appeal reversed the trial court and upheld the City Council’s findings that a mitigated negative declaration (“MND”) prepared for a vesting tentative parcel map and related construction permits (“Project”) was inadequate.

The Project proposed subdividing a 1.45-acre lot into four lots, retaining an existing two-story residence on one lot, and constructing a new residence on each of the three remaining lots. The Project site is located in the La Playa neighborhood of the Peninsula Community Plan (“Plan”) area, which includes large single-family homes of various ages and architectural styles.

The proposed four lots would share a private driveway, but the slope of the driveway would be too steep for fire trucks to access the property. Accordingly, the Project would include the installation of standpipes near the furthest three residences, which would provide fire personnel with direct access to water connections in an emergency. The Project requested deviations from applicable development regulations, including the minimum rear yard setback, the minimum street frontage, and the maximum height for side yard retaining walls.

After the local community planning board recommended denial of the project based on concerns about fire safety, fire truck access, density, and the appropriateness of the requested deviation, the Planning Commission certified the MND and approved the Project. A citizen appealed the Planning Commission’s decision to the City Council, which found the MND inadequate and reversed the Planning Commission’s decision to approve the Project. The City Council denied the Project because it found it did not meet applicable City requirements, including consistency with the Plan and provisions for public health, safety, and welfare. The owners of the Project site sued the City, alleging violation of their civil rights, inverse condemnation, mandamus, and nuisance. The trial court held for the owners.

On appeal, the court held that evidence in the record supported the City’s findings that the Project was inconsistent with the Plan, particularly the Plan’s goals of conserving the character of existing single-family neighborhoods. The court found that opinions and objections of neighbors, along with expertly prepared renderings of the Project and photographs of the surrounding neighborhood, that lend credence to the neighbors’ opinions, sufficed to support the City’s findings.

The court also held that evidence in the record supported the City’s findings that the Project would be detrimental to public health, safety, and welfare. The record contained expert evidence showing flaws and omissions in the Project’s geotechnical report, as well as evidence showing that the configuration of the residences and steepness of the shared private driveway would present significant challenges for fire services personnel.




Creed-21 v. City of Wildomar, 2017 Cal.App.LEXIS 1131

dateFebruary 8th, 2018 byby

The Fourth District Court of Appeal held that the trial court did not abuse its discretion in imposing an issue sanction against Plaintiff Creed-21 (plaintiff) on standing, which terminated the action, for the misuse of the discovery process in response to a motion for sanctions pursuant to Code of Civil Procedure section 2023.030 filed by Real Party in Interest Wal-Mart Real Estate Business Trust (Wal-Mart).

At trial, Wal-Mart repeatedly attempted to set a deposition and to obtain corporate documents from plaintiff in order to investigate plaintiff’s standing to bring the CEQA lawsuit. Wal-Mart’s first notice of deposition of the plaintiff’s person most qualified (PMQ) to appear for the deposition was issued in August of 2015.  Plaintiff did not respond to the notice or the follow-up meet and confer letter sent by Wal-Mart.  Wal-Mart set a second deposition in October of 2015.  Plaintiff refused to have its PMQ appear and Wal-Mart filed a motion to compel.  In response to the motion, the trial court ordered plaintiff produce the PMQ for the deposition and issued $3,000 in sanctions against the plaintiff.

Plaintiff did not comply with the order by either producing the PMQ or paying the sanction. Plaintiff instead sought relief from the order, which was denied.  Plaintiff was ordered to participate in a deposition on February 8, 2016.  Plaintiff again failed to comply with the order, but urged its failure to participate in the deposition on February 8, 2016, was based on a family emergency impacting one of its attorneys.  The trial court was unpersuaded.

Wal-Mart filed a motion for sanctions, which the trial court granted based on the plaintiff’s consistent refusal to comply with the court orders on discovery. The trial court issued a terminating sanction in light of the fact that its prior issuance of monetary sanctions and two court orders did not result in the plaintiff complying with discovery rules.

The court held the trial court did not abuse its discretion when it issued a terminating sanction. The court explained that the discovery statutes evince an incremental approach to discover sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  The trial court properly followed the progression in issuing sanctions in the case.

The court also rejected plaintiff’s claim that a terminating sanction could not be issued without a showing of bad faith. The court concluded that no decision rendered after the Civil Discovery Act of 1986 was enacted supported plaintiff’s argument.