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CEQA Updates

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

California Supreme Court Allows Referendum Vote That Would Make Zoning Ordinance Inconsistent with General Plan for “Reasonable Time”

dateAugust 23rd, 2018 byby

The notable hillside El Toro raises behind the prominent community of Morgan Hill. (Phillip Stoffer/Paula Messina)

In City of Morgan Hill v. Bushey 2018 Cal. LEXIS 6267, the California Supreme Court held that a local referendum challenging a zoning ordinance amendment in the City of Morgan Hill (a general law city) was valid even where the referendum, if adopted by the local electorate, would be inconsistent with the general plan, so long as the city has the means to make the two consistent within a “reasonable amount” of time.

Seeking the construction of a hotel, the City of Morgan Hill, amended the city’s general plan to change a parcel designation from industrial use to commercial use in 2014; the zoning ordinance remained unchanged. Subsequently, in early 2015, the city approved rezoning the parcel from “ML-Light Industrial” to “CG-General Commercial.” Local hotel owners established the Morgan Hill Hotel Coalition (Coalition) to challenge the city’s approval of the rezone by referendum. The city declined to place the referendum on the ballot concluding that it was invalid because, if adopted by the local electorate, it would result in an inconsistency between the city’s current general plan and zoning ordinance. Coalition brought suit challenging the city’s decision not to place the referendum on the ballot.

The trial court, following the holding in deBottari v. City of Norco (1985) 171 Cal.App.3d 1204 (deBottari) that a referendum that “enacts” a zoning ordinance inconsistent with the general plan is invalid, held in favor of the city. Coalition filed an appeal.

The appellate court disagreed with the holding in deBottari and reversed the trial court, holding that referendums are not per se invalid if they contradict the general plan. Citing Government Code section 65860, subsection (c), the appellate court held, where a city could adopt a new designation within a “reasonable time,” a referendum may be valid. (City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34.) The California Supreme Court granted review.

The Court first emphasized the importance of the referendum power to alter local government policy, subject to preemption by the state legislature in only a few cases. At a local level, this power may only be preempted where there is a “definite indication” or “clear showing” that it was within the ambit of the Legislature’s purpose to restrict those rights. For instance, the Court elaborated, there is no reason to maintain the referendum power over ministerial or administrative tasks of local governments, they have no discretion. In addition, the Legislature maintains some power over local government authority to guide land use where it is an issue of “statewide concern,” for example the mandate to have a general plan.

Turning to the issue at hand, the City claimed that the referendum was invalid because it was “essentially an initiative causing the zoning ordinance and general plan to conflict.” The Court held that a referendum is not null simply because of an inconsistency with the general plan. Relying on Government Code section 65860, subdivision (a), the Court explained that such a referendum is not the final imposition where a local government “can use other means to bring consistency to the zoning ordinance and the general plan.” Here, the Court found that, if the referendum passed, the city was at liberty to change the zoning ordinance to another conforming use that was in line with the general plan. Essentially, the city was not without options.

The Court clarified that the referendum power should not be viewed as the power to repeal an ordinance or revive another, instead it provides the ability of the electorate to weigh in on a local government decision. Thus, the trial court was wrong to say the referendum would “enact” an ordinance. A referendum, rather than rewriting and establishing a specific ordinance, merely prevents a certain type of change from happening and directs the local government to take a different direction.

The Court concluded:

Given our duty to protect the referendum power, we conclude the Court of Appeal was correct to hold that a referendum can be used to challenge a zoning ordinance amendment that attempts to make the zoning ordinance consistent with an amended general plan. But it is not clear if other zoning designations were available for the property here, or whether the City has other means to comply with a successful referendum while making the zoning ordinance and the general plan consistent with one another. So we vacate the judgment of the Court of Appeal and remand the case to the Court of Appeal with directions to remand to the trial court to address these questions.


Key Point:

A referendum that results in a zoning ordinance inconsistent with the general plan may be valid so long as the local government may be able to bring them in to congruence with one another within a “reasonable time.”  In reaching its holding, the Court focused on Government Code section 65860, which applies to general law cities and certain charter cities (pursuant to subdivision (d) of the statute).  Therefore, the Court’s holding does not directly apply to charter cities that are not subject to Government Code section 65860.



Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review

dateAugust 22nd, 2018 byby

The Niles Historic District’s distinctive style is clear on the building facades of the District’s downtown area. (Craig Miyamoto)

In Protect Niles v. City of Fremont (2018) 2018 Cal.App.LEXIS 700, the First District Court of Appeal held the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence when given by a special commission with particular knowledge. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the city council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six acre lot; HARB recommended the Project be denied. Taking this into consideration, and amidst ample critical comments, the city approved the Project with a mitigated negative declaration (MND).

Community action group Protect Niles petitioned the trial court for a writ of mandamus to set aside the Project approval and prepare an EIR analyzing a handful of environmental impacts. The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic only and set aside the Project approval until an EIR was complete on these issues. Valley Oak appealed this decision.

The Court established that, despite Protect Niles’ claims to the contrary and the Court’s discretion to determine either way, the appeal was not moot. The Valley Oak had already submitted a revised Project application and the city had published a draft EIR therefore “voluntarily complied.” However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims so the Court continued.

The Court set out that CEQA is interpreted to afford the fullest possible protection to the environment. Because of this, an EIR is required where there is any substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect. Public participation is an essential element of that determination.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact is where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Within that framework, aesthetic impacts are highly context-specific. Here, the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, massing, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of an adverse impact on the unusual setting of the Niles HOD as mapped and officially recognized by the city and the city’s reliance on a MND was improper.

Briefly, the Court established that this analysis does not undermine CEQA environmental review of historical resources as that is a more comprehensive analysis, focusing on “direct physical changes to historical resources themselves that materially impair those resources’ historical significance, not a project’s aesthetic impact on its historical setting.”

The Court then criticized the traffic impact analysis. The city had conducted a professional traffic study concluding the impacts would fall below the city’s threshold of significance. Despite this, the Court found the study was shortsighted for operating under the presumption drivers follow the speed limit. The city was also culpable for failing to implement the study’s recommendation to establish a left-turn pocket lane. The record contained critical comments by residents, city officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument the Project will have significant adverse traffic impacts.

The Court affirmed, awarding costs to Protect Niles and directing the city to prepare an EIR if it were to go through with the original project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.



“Reasonable” Administrative Record Preparation Costs Awarded to Agency Where Plaintiff Elected to Prepare and Failed to do so within 60-Day Limit

dateJuly 30th, 2018 byby

In LandWatch San Luis Obispo v. Cambria Community Services District (2018) Cal. App. LEXIS 661, the Second District Court of Appeals affirmed an agency may properly take over the preparation of the administrative record per Public Resources Code section 21167.6(b)(1) when petitioner elects to prepare it and fails to do so within 60 days.

LandWatch San Luis Obispo County (LandWatch) filed suit against Cambria Community Services District (District) for alleged violations of the California Environmental Quality Act in approving an emergency water supply project on January 30, 2014. In its initial pleading of October 2014, LandWatch elected to prepare the administrative record. District provided the documents November 2014. The next month, District notified LandWatch of additional documents. LandWatch requested the documents in March 2015 and received them in April 2015.

LandWatch presented a draft administrative record index in August 2015. District notified LandWatch the draft was over and under inclusive and, to avoid further delays prohibiting $4.3 million in grant fund awards, prepared and certified the record itself.

LandWatch was granted an order to include additional documents and failed to timely request the documents, stalling from December 3rd to February 17th, over 60 days while haste was of essence as the trial was set for March. District brought suit against LandWatch for the cost of preparation of the administrative record, $4,299.01, and preparation of the appendix, $26,922.46. The trial court awarded the totality of the first and half of the second amounts, $14,328.59.

The Court, relying on Coalition for Adequate Review v. City and County of San Francisco (2014) 229 Cal.App.4th 1043, held that an agency is not determinatively prohibited from recovering costs for preparation of the administrative record where the petitioner initially elected to do so. Such a determination is made on a case-by-case basis where the Court has discretion to award costs.

While the award of such costs is limited to costs that are “reasonable” and “reasonably necessary,” so long as the trial court finds that it is not specifically prohibited, it is at the court’s discretion to award it. Here, the Court found that the trial court’s award was “on the low side of reasonable” for only totaling $1.77 per page. The trial court would have been “well within its bounds” to award more, especially where the 7,683 page appendix was erroneously requested by LandWatch. Finally, the Court allowed costs for court calls, copies, and transcription, costs that were circumstantially reasonable and not prohibited.

Key Point:

Any amount of delay in administrative record preparation past the 60-day limitation in Public Resources Code section 21167.6(b)(1) is “unreasonable delay” in which an agency may prepare the record and recover “reasonable” costs, at the discretion of the court, for doing so.



Second District Court of Appeal Finds County Well Permit Approval is “Ministerial,” Exempt from CEQA Review Absent Showing of Discretion, SGMA Absent Agency Law Incorporation

dateJuly 27th, 2018 byby

An agricultural groundwater well is inspected in California (Kelly Grow/CADFW)

The approval of groundwater well permits to a handful of farmers in San Luis Obispo County (County) was within the permissions of CEQA where such issuances are ministerial and therefore exempt so long as no discretion was allowed by laws guiding the issuance. Cal. Water Impact Network v. County of San Luis Obispo (2018) Cal. App. LEXIS 662.

The County issued groundwater well permits to four agricultural enterprises for well depths ranging from 500 to 1000 feet. The County found that the permit applications were complete and complied with county and state standards. Specifically, the wells met the standards outlined in the San Luis Obispo County Code Chapter 8.40, incorporating the state well standards set by the Department of Water Resources. Finding as such, the County approved the wells without additional consideration.

California Water Impact Network (Network) appealed the well issuances claiming that the County improperly failed to conduct CEQA review and in doing so “bypassed public disclosure of potentially significant impacts to groundwater resources.” The trial court agreed with the County, no review was necessary, and dismissed Network’s petition on demurrer.

Reviewing de novo, the Court agreed with the trial court and County, no CEQA review was required where such actions are specifically exempt by Public Resources Code section 21080(b)(1) “ministerial projects.” The Court examined where a ministerial project does and does not exist and chided Network for trying to judicially alter the County Code to incorporate the then-recent Sustainable Groundwater Management Act, a task for the County’s elected officials.

The Court quoted a ministerial act is where “little or no personal judgement” is used by the public official, they merely apply the law and give no individualized or special consideration. This is contrasted to a discretionary project where such judgement or deliberation is required. Reading the legislative intent, the Court reminded that in ministerial acts, agencies, in this case the County, have no ability to influence the project therefore it makes sense they would be excluded. The Court found well permits are a type of building permits which are “presumed to be ministerial.”

Citing rules on judicial statutory interpretation, the Court refused appellant’s argument that County had some discretionary powers under Chapter 8.40 to impose additional conditions on well permits. The Chapter was clear; a well permit “shall be issued” so long as the listed conditions are met. Similarly, the Court excused any indication that the County had a responsibility to impose groundwater preservation measures as such goals are properly addressed by the County’s elected officials.

Though appellants did not contend that the applicants failed to satisfy the well specifications, the Court found all conditions were met in this ministerial action therefore the well permits were kept intact.

Key Point:

The issuance of groundwater well permits are ministerial duties exempt from CEQA review. Therein, SGMA considerations need not be addressed in agency decisions unless the guiding agency law specifically incorporates it.



Endangered Species Act Proposed Rules Lighten Required Considerations for Threatened Species, Narrows Agency Responsibilities for Critical Habitats

dateJuly 20th, 2018 byby

Island Foxes, a species no longer listed as endangered, in the Channel Islands National Park in California. (U.S. Fish and Wildlife Service)

On Thursday, July 19, 2018 the U.S. Fish and Wildlife Service (USDFW) and the National Oceanic Atmospheric Administration (NOAA) released proposed revisions to the federal Endangered Species Act (ESA). These proposals amend procedures for species protection by changing requisite considerations and protections afforded “threatened” species, limiting the time scope for such considerations, and streamlining agency consultation.

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out any action that would jeopardize a critical habitat that an endangered or threatened species relies on. Specifically, it is prohibited that any project “take,” or harm, any plants, animals or invertebrates that are listed as threatened or protected. Originally passed in 1973, the Act has been significantly amended in 1978, 1982, and 1988 to meet modern demands.

The proposed rules would extinguish the “blanket rule” under section 4(d) of the ESA, which provides the same level of consideration and protection to threatened species as it does to endangered species. Threatened species are those that are likely to become endangered but are not currently endangered, at risk of extinction. Currently, protections that shield threatened species mirror those for endangered species unless otherwise specified. The proposed rules would permit USDFW to craft specific plans for each threatened species determination that are “necessary and advisable for the conservation of the species,” according to the USDFW press release. While NOAA currently employs a similar practice, it may make it more difficult to shield species.

The proposed rules would shorten the requisite timeline for species endangerment considerations. Currently, “threatened” means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The vagueness of “foreseeable future” has been useful for environmental advocates to promote consideration of how climate change may affect the species. The proposed rules would change this section to mean only so far as can be “reasonably determined” that both the future threats and the species’ responses to those threats are foreseeable. This means that climate change considerations may not be required.

In the same vein, the proposed rules would repeal the prohibition on considering economic factors when deciding whether or not a species should be protected and the procedure to delist a species will now be the same standard as decisions to list the species.

Section 4 also deals with the procedures for listing, recovery and designating of critical habitats, or areas essential to support the conservation of a species. The proposed rules would revise the procedure for designating critical habitat by incorporating a non-exhaustive list of circumstances where they may find that designation of a critical habitat for a particular species would not be prudent. The agency will first evaluate areas currently occupied by the species before considering unoccupied areas. Additionally, the proposed changes would clarify when they may determine unoccupied areas are essential or not to the conservation of the species.

While none of these changes will be retroactive, they are part of the Trump Administration’s refocusing of federal environmental laws. Last month the administration began the process of overhauling the National Environmental Policy Act (NEPA). The Environmental Protection Agency, meanwhile, has used industry guidance documents and policy memos to dial back its oversight of air pollution under the Clean Air Act.

Deputy Secretary of the Interior Department described the ESA rule proposals as streamlining and improving the regulatory process. Indeed, per the USDFW press release, the changes are meant to narrow consultation requirements and allow federal agencies to simplify their actions with shorter ESA consideration. Opponents are concerned the changes will vacate protections for threatened species and weaken USDFW and NOAA’s abilities to address climate change.

The public has 60 days to issue comments on the proposed rules before the Interior Department and the Department of Commerce finalizes them.



Second Appellate District Upholds PG&E Lease Extension as Categorically Exempt from CEQA, Finds Unusual Circumstance Exception Inapplicable to Extension of Nuclear Power Plant Lease

dateJune 19th, 2018 byby

Ocean intake water flow can be seen at the Diablo Canyon Power Plant. (PG&E)

The Second Appellate District, in World Business Academy v. California State Lands Commission (2018) 24 Cal. App. 5th 476, determined that extending a power plant’s lease constituted a categorically exempt project under CEQA and the record was not sufficient to support an “unusual circumstances” exception to the exemption.

Diablo Canyon Power Plant is a nuclear power plant set to close in 2024 and 2025 owned and operated by PG&E in San Luis Obispo County. The plant’s cooling system draws in seawater plus incidental aquatic plants and animals from state-owned tidal and submerged lands then expels heated water back into the sea. The leases for this system were to expire in 2018 and 2019, five years before the plant closes.

PG&E submitted a single lease renewal application to the California State Lands Commission (Commission) to replace the expiring leases. A staff report confirmed the project would not require additional environmental review under the existing facility exemption unless it was found to be an unusual circumstance, an exception to exemption. After weighing the potential seismic and environmental impacts, Commission found that the state-land lease renewal would not have a significant effect on the environment due to unusual circumstances, moved to support the staff report, and issued a notice of exemption for the lease renewal.

Plaintiffs, World Business Academy, filed suit in Los Angeles County Superior Court alleging Commission’s actions violated CEQA and the public trust doctrine where the lease approval would irreparably injure and deplete the marine ecosystem surrounding the plant. The trial court held the lease replacement was within the existing facilities exemption to CEQA and the unusual circumstances exception did not apply.

Reviewing de novo, the Second District Court of Appeal agreed with the trial court, affirming Commission’s lease approval under the existing facility exemption. Further, there was no merit to arguments for an unusual circumstance exception to the CEQA exemption nor was there a violation of the public trust doctrine.

The Court determined the power plant was exempt from CEQA review as an existing facility. Appellants argued unlike other existing utility structures, nuclear power plants cannot be categorically exempt from CEQA because of the significant environmental impacts they have by their de facto operation. Further, the legislative history of the exemption indicated the meaning of “provide electric power” implicated structures which disseminate power, not power generating facilities themselves. The Court disagreed, under the plain meaning of the statute “provide” reasonably included a power plant.

The Court rejected a related argument that Commission lacked the authority to include nuclear power plants under the exemption due to their operational environmental impacts. The Court found minor alterations to, continued operation of, and leasing pre-CEQA facilities resulting in negligible or no expansion of use are unlikely to cause a significant adverse change in environmental conditions. Further, the class of projects at issue in the existing facilities exemption are not only nuclear power plants—rather, the exemption is applied to existing facilities of all types. The Court concluded that the Commission’s evaluation of the lease extension, while brief, was sufficient to demonstrate that the lease extension would maintain the status quo at the existing facility, not expand its operations.

The Court then looked to the unusual circumstances exception. Although Commission applied a procedurally lacking standard in showing that the project did not meet the exception, this was not fatal to their determination. Commission relied on a fair argument standard to assess if there was a reasonable possibility of a significant environmental effect of extending the lease, without first concluding that the project presented an unusual circumstance. The Court relied on North Coast Rivers Alliance v. Westlands Water District (2014) 227 Cal. App. 4th 832, to find even if the lease approval presented an unusual circumstance, Commission properly applied the fair argument standard in considering the possible effect on the environment.

Turning to the substantive portion of the unusual circumstance analysis, the Court found the project did not have a potentially significant environmental effect based on its size and location. Commission acted properly by considering the baseline for the site its pre-CEQA operational levels. Appellants failed to point to specific evidence supporting the claim that aquatic life would be significantly decreased past the initial operational level of the plant or certain risks – seismic activity, terrorist threats, “embrittleing” and others—would occur. Appellants’ claim that the plant constituted a significant environmental effect because it was the last one of its kind in the state was irrelevant, and dismissed appellant’s ad hominem attack against PG&E which alleged criminal conduct outside of the included record.

Finally, the Court held Commission’s staff report explicitly analyzed the public trust doctrine and the plant’s shutdown in 2024 and 2025 would adequately regulate the impacts to marine life associated with the cooling system. The Court concluded the Commission’s factual inquiry was sufficient, and that appellant’s contentions that the doctrine required factual evaluation vis-a-vie a CEQA analysis lacked merit.

Accordingly, the Court affirmed the judgement of the trial court.

Key Point:

The existing facilities exemption allows pre-CEQA power plants (regardless of power source) undergoing non-significant changes to avoid additional environmental review. The proper baseline to determine if a change is significant is not established by present-day or forecasted analysis, rather, by the environmental impact the facility had when it began operations.



Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

dateJune 14th, 2018 byby

Land erosion is visible under steps to Malibu’s Broad Beach. (Melanie Wynne)

In County of Ventura v. City of Moorpark (2018) 24 Cal. App. 5th 377, the Second Appellate District upheld a CEQA exemption applied to a project undertaken by the state-created Broad Beach Geologic Hazard Abatement District (BBGHAD). Notably, the Court held that the “project” for CEQA consideration, as approved by the California Coastal Commission and State Lands Commission, included both plans to restore the beach and a settlement agreement detailing project truck’s traffic restrictions. The Court held that the settlement agreement restrictions were not preempted by state law, and do not constitute an attempted extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper therefore voiding that part of the agreement.

The state created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was to restore and restock sand at the beach. The project would involve shipments of 300,000 cubic yards of sand, four subsequent deposits of equal size at five year intervals, and additional shipments of 75,000 cubic yards on an as-needed basis. The sand was to be collected from quarries 30-40 miles away from Broad Beach and transported by trucks to the beach. The initial deposit alone was estimated to require 44,000 one-way truck trips. Possible truck routes from the quarries to the beach either required traveling through the City of Moorpark or on roads adjacent to the community. In the project’s planning stages, Moorpark officials expressed concern that hauling sand on these routes would negatively impact residents, and eventually created a settlement agreement with BBGHAD. BBGHAD agreed to specific haul routes, truck staging requirements, changes in route in response to settlement-defined road emergencies, and made concessions to only change the tenants of the agreement upon mutual assent. Thereafter, the Coastal Commission approved a coastal development permit for the beach restoration project, including the incorporated settlement agreement. The County of Ventura challenged the project in a petition for writ of mandate, alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by Moorpark to regulate traffic outside of their city’s limits, and represents an abdication of BBGHAD’s state-granted police power.

The trial court found that the project was statutorily exempt from CEQA, held that the settlement agreement was not preempted by the state’s Vehicle Code, and found that the settlement was not an improper attempt by Moorpark to regulate traffic outside city limits. The trial court found that BBGHAD improperly contracted away its ability to break the settlement, struck the settlement’s mutual assent provision, and held that BBGHAD must be able to modify the agreement in response to changed circumstances.

The Second Appellate District affirmed the trial court’s ruling. On appeal, in addition to its original claims, Ventura contended that the settlement agreement is an action distinct from the Broad Beach restoration project, thus beyond the protection of the exemption and subject to CEQA review. The Court disagreed, and found that the settlement agreement between Moorpark and BBGHAD was part of the whole beach restoration effort. The Court stated that when two activities are a coordinated endeavor to obtain an objective or are otherwise related to each other, they constitute a single project for purposes of CEQA. Only when the second activity is independent of and not a contemplated future part of the first activity may the two activities may be reviewed separately.

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in Moorpark’s settlement agreement. Vehicle Code section 21 prohibits local authorities from enacting resolutions or ordinances which affect state traffic restrictions. The Court found that because the agreement did not involve an ordinance or resolution (rather, it was the City acting under its contracting power), it was not preempted by Vehicle Code section 21. The Court further found that the agreement merely dictated the routes BBGHAD’s contractors and subcontractors must use when delivering on behalf of the project because it did not amount to a physical barrier which would redirect traffic, did not close roads, and did not restrict non-project related hauling.

The Court then addressed the extraterritorial regulation contentions. Moorpark was within its contracting rights to further its implied necessity function of preventing public nuisances on their roads vis-a-vie the thousands of sand shipments. Additionally, the Court found the traffic restrictions on BBGHAD shipments were valid, as they only affected activity within the city limits.

Turning to the issue of infringements on BBGHAD’s police power, the Court found that as an entity of the state, BBGHAD was entitled to exercise a portion of the state’s police power. However, BBGHAD erred in part of the settlement agreement by contracting away its right to exercise its police power in the future. The agreement, in part, bound BBGHAD to surrender its discretion to haul routes in the future unless mutual assent was achieved between BBGHAD and the City. The Court found that this grant of veto power infringed upon the state’s police power therefore was invalid. In examining if this error was sufficient to render the entire agreement void, the Court weighed the agreement’s impact on the public and the expressed intentions of the parties, and determined that the aspects of the agreement which infringed on BBGHAD’s state-granted police power were severable from the rest of the agreement. Accordingly, the Court upheld the agreement in part and struck the agreement in part.

Key Point:

While incorporated settlement agreements with local authorities in project planning is allowable as part of one CEQA-defined “project”, when contracting with state entities, it is important to not infringe upon state police powers through the creation of modification clauses requiring assent from all parties.



First Appellate District Denies Initial Study Noise Level Challenge to Transitional Housing Project Based on Non-Expert Analysis

dateJune 4th, 2018 byby

Construction crews begin the building transformation from hospital to youth center. (Bruce Robinson, KRCB)

In Jensen v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, the First Appellate District struck down a writ challenging repurposing of a hospital into a youth center and transitional housing. The Court ruled against claims the project traffic noise and recreational activities would constitute a source of noise significant enough to warrant the creation of an EIR where the two unrelated noise studies appellant relied on lacked merit. These reports constituted non-expert analysis and any conjectures from them were improperly supported. For these reasons, there was no substantial evidence supporting a fair argument there would be a significant noise impact meriting preparation of an EIR.

The project at issue, the Dream Center, was intended to repurpose a defunct hospital and create housing for 18-24 year old runaways, homeless youth, and former foster youth as well as those who have been abused, are unable to afford housing, or are unable to find employment.

Project leaders filed applications for a CUP, rezoning, and design review to implement plans for the Center. The City of Santa Rosa prepared a draft Initial Study/Negative Declaration. When creating the Dream Center’s Initial Study/Negative Declaration, project planners contracted with Fred Svinth of Illingworth & Rodkin to conduct a noise analysis of the site. Svinth’s study concluded, after taking independent measurements, that the project would not constitute a significant noise impact. The Santa Rosa Planning Commission reviewed the application and Svinth study and found the project would have no significant effect on the environment. The Council unanimously passed resolutions adopting and approving the project.

Thereafter, neighbors of the project (Petitioners) appealed the Commission’s approval to the Santa Rosa City Council, alleging that the project required an EIR because there would be potentially significant operational noise from the south staff parking lot and recreational activity space with a half basketball court, community garden, and pottery throwing space. However, per project plans and conditions for approval, Dream Center residents and delivery-persons were limited to use the main northern parking lot and recreation hours, specifically use of the basketball court, were limited. Petitioner’s challenge relied on a separate noise study performed by Svinth at a nearby convenience store to bolster their claim the project would constitute a significant noise impact.

City Council unanimously denied the appeal then approved the project. In response, Petitioners filed a writ of administrative mandate in the Sonoma County Superior Court, which was heard and denied. Petitioners appealed and the First District Court of Appeal upheld the denial of the writ and struck down the comparison of the Initial Study’s analysis to the separate Svinth study.

Petitioners urged the First Appellate District to adopt and apply the unrelated Svinth study’s methodology and specific noise values to the Dream Center site. Petitioners claimed that if the methodology and specific noise values from the unrelated Svinth study were applied to the Dream Center site, the project would have noise impacts significant enough to warrant the creation of an EIR. Petitioners conducted a non-expert qualitative analysis of the convenience store and Dream Center Svinth studies and concluded the “alternative” levels recorded at the convenience store were an acceptable means of analyzing noise impacts.

The Court struck down this comparison, stating Petitioner’s calculations were essentially opinions rendered by non-experts, and therefore could not be used. In addressing the parking lot claim, the Court stated Petitioner’s arguments rested on supposition and hypothesis, rather than fact, expert opinion, or reasonable inference. The Court clarified the noise impacts could not be reasonably shown to be significant because parking in the northern lot was more than adequate to accommodate use of the site and residents would not be allowed to park in the southern lot. In addressing the recreational use noise claim, the Court reiterated Petitioner’s calculations lacked scientific credibility, and upheld the independent noise study Svinth provided for the site.

Key Point:

When attempting to rebut the validity of an independent noise analysis for a project’s Initial Study, is it imperative to use expert analysis. Additionally, comparison of two unrelated Initial Study results (even if the sites are nearby) will likely fall short of Court-accepted scientific evidence.



Fourth District Court of Appeal Finds Minor Telecommunications Facility on Dedicated Park Land Is Not An “Unusual Circumstance” Exception to CEQA Small Facility Exemption

dateMay 21st, 2018 byby

A faux eucalyptus tree cell tower stands next to a live evergreen  (Annette LeMay Burke)

Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal. App. 5th 338 centers on a dispute involving the interpretation of a portion of the San Diego City Charter (Charter 55), which requires that real property dedicated in perpetuity for park purposes may not be used for any other purpose without authorization or ratification by vote of two-thirds of qualified City of San Diego voters. The Fourth District Court of Appeal found that an approved project within a park was properly approved by the City without deferring to voters.

In the San Diego community of Ranch Peñasquitos, an 8.5-acre park was dedicated in perpetuity for recreational purposes in accordance with Charter 55. Thereafter, Verizon filed an application to build a wireless telecommunications facility including a 35-foot tall unmanned cell tower disguised as a faux eucalyptus tree and a 250-square-foot landscaped equipment enclosure with a trellis roof on the outskirts of the park. The San Diego Planning Board voted to approve the project, and determined that its location on the periphery of the park qualified it for an exemption from CEQA. Don’t Cell Our Parks (DCOP) appealed the CEQA exemption, then filed a writ of mandamus and complaint seeking injunctive and declaratory relief. DCOP argued that placing the facility within the park was not a permissible park or recreational use under the plain language of Charter 55. The trial court found that the project was properly approved, was exempt from CEQA, and found that no unusual circumstances established an exception to the CEQA exemption.

In affirming the judgement of the trial court, the Fourth District Court of Appeal addressed two issues: whether Charter 55 prohibited the construction of the project within the park, and if the project was exempt from CEQA.

The Court first focused on the language and context of Charter 55, which delineates that real property dedicated without the formality of an ordinance or statute expressly dedicating the land may be used for any public purpose deemed necessary by the Council. Voter approval is necessary only if a project changes the use or purpose of a dedicated park. The Court stated that deference should be given to the City to determine whether or not an addition to a dedicated park is a changed use. The Court reasoned that this deference is appropriate because dedicated parks often start as bare pieces of land, and the City is subsequently charged with exercising its management and control authority to upkeep the land and determine whether proposed additions would change its use. The Court determined if the record supports the City’s conclusion that a project does not change the use or purpose of a park, the project can be built without the approval of voters.

After an examination of the record, the Court held the project did not change the use or nature of the park. The visual and aesthetic impacts would be minimal—the facility’s faux-tree would be installed in an existing stand of trees of similar and greater height, and the corresponding structure would be shrouded by native plants set off from the pedestrian interface. The Court also stated that the addition of the wireless facility would “clearly benefit park visitors” by providing greater access to 911 services and recreational wireless access. Without a supported contrary conclusion that the project would disrupt or interfere with the purposes of the park, the Court concluded that deference to the City’s approval of the project (and circumvention of the voting provision of Charter 55) was proper.

Turning to the second issue, the Court rejected DCOP’s argument that the project was erroneously claimed a Class 3 exemption because it did not fit within the meaning or use of the exemption as a matter of law, because the unusual circumstances exemption applied, and because the placement of the project in a dedicated park precluded use of a categorical exemption.

First, the Court found that the project qualified for the CEQA Class 3 limited, small facility exemption, despite a lack of applicability to the exemption’s established examples. The Court noted that exemption criteria were not exhaustive, and that the exemption was intended to apply to a small facilities like the project.

Second, the Court addressed CEQA Guidelines § 15300.2 subd. (c), which states that a categorical exemption cannot be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to “unusual circumstances.” In determining if the project constituted an unusual circumstance, the Court relied on the two means of analysis established by Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. Under the first analysis, a challenger must prove both unusual circumstances (through a showing that some feature of the project distinguishes it from other features in the exempt class) and a significant environmental effect due to those circumstances. Under the alternative analysis, a challenger must establish an unusual circumstance with evidence that the project will have a significant environmental effect.

Under the first Berkeley Hillside analysis, the Court rejected DCOP’s argument that the project’s location within the dedicated park constituted an unusual feature or circumstance distinguishing it from other features in the exempt class. Although the Guidelines do not define an “unusual circumstance,” the Court found that the City had submitted evidence sufficient to show that the project was not atypical, many cellular towers and reception boxes had been challenged and permitted. The Court looked to the biological resource report the City created for the project, the fact that the project site was mostly disturbed habitat and did not contain environmentally sensitive lands, and evidence that at least 37 other similar facilities existed in dedicated parks. The Court also found that DCOP had failed to demonstrate features which would have rendered the project unusual and did not establish a reasonable possibility that the project would have a significant effect on the environment, use of the park, or aesthetics.

Under the second Berkeley Hillside alternative, the Court pointed to the evidence presented to rebut the first alternative to establish that DCOP had not established an unusual circumstance with evidence that the project would have a significant environmental effect.

The Court finally rejected DCOP’s argument that the location exception applied to the project.  That exception applies where a project “may impact [] an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” (CEQA Guidelines, § 15300.2, subd. (a).)  DCOP presented no evidence that the park was “designated” as an “environmental resource of hazardous or critical concern” by any federal, state or local agency.

Key Point:

The list of project types set forth in the Class 3 exemption is not exhaustive.  In evaluating whether a project is covered by the exemption, a court may consider whether the project is similar in size or scope to other project types listed in the exemption.



Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

dateMarch 28th, 2018 byby

The Covina Metrolink station a short distance from the project site

In Covina Residents for Responsible Development v. City of Covina, 2018 Cal. App. 5th 712, the Second District Court of Appeal determined the judicial history and development of Public Resources Code section 21099 settles the apparent conflict between San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 and Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, and clarified what constitutes adequate environmental review and project parking allocation under CEQA.

In 2012, project applicants submitted a proposal to the City of Covina for the construction of a mixed-used urban residential infill project near the Covina Metrolink commuter rail station. The project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site by appellants, Covina Residents for Responsible Development (CRRD). Post-project approval, CRRD sued the City for approving the project without preparing an EIR, for tiering the MND from a General Plan EIR, and for violating the Subdivision Map Act by failing to make the necessary findings for approval of the project. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence to support CRRD’s claim the parking shortage would result in environmental impacts; (b) any parking impacts from the project were exempt from environmental review under section 21099; (c) the City properly tiered its environmental review from the General Plan EIR; and (d) the City did not violate the Subdivision Map Act. The Second Circuit affirmed the trial court.

The Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court examined the scope and purpose of section 21099 by analyzing San Franciscans and Taxpayers; in which opposing outcomes were found where it was alleged that projects’ parking-related “secondary impacts” could cause an environmental effect. The Court found the cases, while facially appearing diametric in conclusion, are consistent with each other and section 21099 by contextualizing not only the effect on parking a project has by virtue of its physical scope, but by the area in which a project is planned. In Taxpayers, the Court considered a suburban project and found the “secondary impacts” of the parking shortage significantly affected the narrow, canyon road environment. In San Franciscans, the Court considered an urban project and found the “secondary impacts” of the parking shortage, close to numerous public transit options, did not significantly affect the environment.

The Second Circuit clarified that, while secondary parking impacts caused by ensuing traffic congestion must be addressed, parking shortfalls relative to demand are not considered significant environmental impacts in urban contexts. In order to challenge a project’s allegedly inadequate parking provisions, petitioners must do so by submitting evidence of resultant secondary environmental impacts to the surrounding area—not by simply raising concerns that the project would result in a lack of parking spaces nearby. The Court concluded CRRD failed to make such a showing. The Court also found, when the secondary effects of parking do not impact environmental quality of the area of the project, parking shortage claims are exempt from CEQA under section 21099.

The Court also dismissed the allegation the General Plan EIR was inconsistent with the Subdivision Map Act. The Court held the City’s parking analysis did not “cherry-pick” certain circulation elements of the General Plan while ignoring others, the project was consistent with the City’s General Plan traffic provisions encouraging biking and pedestrian use. As a “higher density, mixed-use residential, transit-oriented project, the project inherently encourages alternative travel modes”, and in reviewing changes to the subdivision map, the City was right to find the project’s inherent promotion of walking and bicycling was sufficient to comport with the General Plan’s goal of offering a balanced circulation system offering multiple travel options.

Key Point:

Public Resources Code section 21099 subdivision (d)(1) exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting. Practitioners seeking to apply the Taxpayer standard in non-urban areas must take the project’s surroundings into account and make a showing that the project’s parking impacts would constitute a significant secondary environmental impact and may not simply assert concerns that the project would result in a lack of parking spaces.

Additionally, practitioners seeking to challenge the adequacy of a project’s environmental review via inconsistency between a tiered MND from a General Plan EIR and the Subdivision Map Act should take care to recognize the inherent impacts of the project. For example, if a high density transit-oriented residential project is built as infill near a Metrolink station, it likely will be found by a court to constitute a project with encourages alternative travel modes (even if its environmental documents do not explicitly state as such!).