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CEQA Updates

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

Posts from January, 2012


No Distinction Between a “Grant” or “Denial” in Application of 90-day Limitation Period to Challenge a Zoning “Decision”

Friday, January 27th, 2012

General Development Co. v. City of Santa Maria (January 25, 2012)  202 Cal.App.4th 1391

A developer applied to change the zoning designation for a 4.84 acre parcel of vacant land.  The City of Santa Maria denied the request, and the developer filed a lawsuit, 97 days after the city’s final decision.  The court dismissed developer’s action, holding that a challenge to a denial of a zone change application is subject to the 90-day limitation period set forth in Government Code section 65009, subdivision (c)(1)(B).

The developer argued that denial of a rezoning application does not qualify as “a decision” because it does not require the city to “adopt or amend a zoning ordinance” within the meaning of section 65009.  In the developer’s view, the 90-day limitation period should only apply to “decisions” granting a zone change, not “decisions” denying a zone change.

The court looked to the Legislative intent of section 65009, finding no indication pointing toward a “grant v. denial” distinction.  Instead, the short 90-day statute is intended to allow government entities, land owners, lessees, adjoining land owners, and the public, to know quickly whether there is a “theoretical cloud” hanging over the land.  The court noted that section 65009 could be drafted with greater precision, but the language used does not defeat the stated legislative goal of providing “certainty for property owners and local governments” and a longer statute of limitation, combined with the typical pace of litigation, could inhibit free alienation and use of land.

Key Point:

This case should serve as a cautionary tale when considering whether to bring a challenge under  the catch-all three-year limitations period that applies to “an action upon a liability created by statute.”  For a zoning challenge, this case makes clear that an action should be brought within 90 days to avoid dismissal.

Written by:  Tina Thomas and Amy Higuera

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Governor Brown Releases CEQA Reforms in an Effort to Simplify the Approval Process for Infill Projects

Wednesday, January 25th, 2012

Sacramento, January 25, 2012.  Today Governor Brown released a package of CEQA reforms designed to simplify and expedite the approval process for key job-creating projects in California.  The package of CEQA reforms provide the regulatory changes necessary to implement SB 226 (Simitian), which the Governor signed October.

Upon finalization, these reforms will simplify the approval process for infill projects by eliminating repetitive studies of environmental effects already addressed in other planning documents, such as general plans and zoning codes.  This will help reduce the time and cost often associated with infill projects, while also allowing cities to focus on new or unique projects that help create jobs, revitalize cities and promote transit.  SB 226 also removes hurdles to harnessing solar energy and growing green-collar jobs by exempting solar projects located on existing rooftops and parking lots.

Earlier this month, Governor Brown issued proposed implementation guidelines for AB 900 (Buchanan), signed last September.  AB 900 sends CEQA litigation for certain large projects directly to the Court of Appeal and requires a decision on the merits in a short time frame.  The law also offers immediate help to projects that provide California with the most economic and environmental benefit.

The SB 226 guidelines, released today, can be found at http://www.opr.ca.gov/s_sb226.php.  The AB 900 guidelines, released last month, can be found at http://opr.ca.gov/s_californiajobs.php.

Written By:  Tina Thomas and Ashle Crocker

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Attorney General Joins Petitioners in SANDAG Litigation

Tuesday, January 24th, 2012

On January 23, 2012, Attorney General Kamala D. Harris filed a Notice of Intent to File a CEQA Petition for Writ of Mandate in Intervention to intervene in the CEQA lawsuit filed by the Cleveland National Forest Foundation and the Center for Biological Diversity on November 28, 2011, challenging the 2050 Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) adopted by San Diego Association of Governments (SANDAG).  (See http://ag.ca.gov/cms_attachments/press/pdfs/n2614_2012-01-23_notice_of_intent_to_file_ceqa_petition.pdf (AG notice), and http://ag.ca.gov/cms_attachments/press/pdfs/n2614_2012-01-23_ex_parte_application_to_intervene.pdf (related AG ex parte application).)  Also on January 23, 2012, petitioners filed a First Amended Petition for Writ of Mandate and Complaint for Injunctive Relief to add Sierra Club as a petitioner in the litigation. (See http://transitsandiego.files.wordpress.com/2012/01/cnff-verified-amended-petition.pdf.)  The focus of the Attorney General’s intervention concerns the adequacy of the EIR’s air quality analysis and related public health impacts.  The Attorney General has taken this position notwithstanding that the plan achieves the greenhouse gas targets established by AB 32 and the California Air Resources Board (CARB) concurred that the plan meets all CARB greenhouse gas targets.  For more information on the Attorney General’s decision to intervene visit:  http://oag.ca.gov/news/press_release?id=2614.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Mitigation Fee Programs Must Be Analyzed In An EIR Prior to Adoption

Tuesday, January 24th, 2012

Center for Sierra Nevada Conservation et al. v. County of El Dorado (January 20, 2012) 202 Cal. App.4th 1156 (Superior Court Case No. PC20080336)

El Dorado County adopted an oak woodland management plan (Management Plan) and mitigation fee program (Fee Program) without first certifying an EIR.  Instead, the County issued a negative declaration that allegedly tiered from the County’s previously approved General Plan and Program EIR.  The General Plan and Program EIR allowed developers of more than 10 acres to conserve oak woodlands on site at a 1:1 ratio as a mitigation “Option A” and also considered mitigation under an “Option B”, which would allow developers to pay a mitigation fee under a yet-to-be-adopted oak woodland management plan instead of providing on-site mitigation.  Importantly, however, neither the General Plan nor the Program EIR specified the fee rate for Option B, or provided how the collected fees would actually be used to mitigate the impact to oak woodlands.

Petitioners challenged the County’s adoption of the Management Plan and Fee Program and related negative declaration.  The County argued that the Management Plan and Fee Program were within the scope of the General Pan and the impacts were adequately addressed in the General Plan Program EIR.  While the trial court agreed with the County, the Third District Court of Appeal did not.  Siding with petitioners, the court held that the County was required to prepare a tiered EIR before its adoption of the Management Plan and implementation of the Fee Program.  The court acknowledged that the Program EIR anticipated development of a Management Plan and Fee Program, however the prior EIR did not provide adequate environmental analysis to conclude the Management Plan and Fee Program would have no greater adverse environmental effects than analyzed and anticipated in the Program EIR.  Specifically, the Program EIR did not set the fee rate, define how the acreage subject to the fee should be measured (e.g., measuring tree canopy by tree canopy cover or by total area including the space between canopies), or explain how the off-site oak woodland losses would be mitigated by the fees.  Each of these factors is critical in determining whether the Management Plan and Fee Program provide effective litigation.

The County also argued that any EIR analysis for the Management Plan could be postponed until formulation of the Plan had been completed.  The court disagreed, noting that “approval” of a project under CEQA occurs when a public agency’s decision commits it to a definite course of action.  Here, the County’s approval of the Management Plan had the effect of allowing developers to pay a fee under the Option B Fee Program instead of preserving a substantial number of trees on-site under Option A.  Thus, consistent with longstanding case law, the County was required to conduct an EIR review before approving the Management Plan and Fee Program.

Lastly, the court agreed with Petitioners’ argument that the County violated CEQA by issuing a negative declaration because the administrative record supported a “fair argument” that the Management plan and Fee Program would have a potentially significant effect on the environment and thus an EIR was required to consider the effects on the environment.   While the County did not assert that the Management Plan and Fee Program would have no environmental impacts, as discussed above it argued that the Program EIR already took any significant adverse effects into account.  This argument was undermined by the project’s Initial Study and other evidence in the record acknowledging potentially significant effects on the environment.  The fact that the Program EIR contemplated adverse impacts from development under the General Plan does not remove the need for a tiered EIR for the Management Plan and Fee Program.  Indeed, the court noted that a Program EIR is distinct from a Project EIR which is prepared for a specific project and provides site-specific analysis.  In this case, the court held that the Management Plan and Fee Program constituted the specific project at issue and required a tiered EIR to examine its potential environmental impacts.

The court’s holding in this case is consistent with California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, which held that an EIR was required to properly review a fee program.

Key Points:

An EIR must inform the formulation and approval of a mitigation fee program.  To avoid the need for a project level EIR for a mitigation fee program, a public agency proposing to adopt a land use plan could develop within that plan the specific terms of any contemplated fee programs and analyze potential environmental impacts of those fee programs.  This approach would allow the public agency to analyze the fee program within the EIR for the plan and avoid future environmental review.

This decision also adds to recent case law addressing the fair argument standard.  In light of recent decisions, we note that it is becoming nearly impossible for a negative declaration to withstand challenge if any evidence is produced regarding the potential for environmental impacts.

Written By: Tina Thomas and Ashle Crocker

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

The League to Save Lake Tahoe’s CEQA Claims are Dismissed by District Court after Motion to Dismiss Related Federal Claims is Granted

Tuesday, January 24th, 2012

In May of 2011, the City of South Lake Tahoe (City) adopted the South Lake Tahoe General Plan Update (Plan). Prior to adopting the Plan, the City determined that certain elements of the Plan were not consistent with the 1987 Tahoe Regional Planning Agency’s (TRPA) Regional Plan for Lake Tahoe. Because TRPA was in the process of updating its Regional Plan the City elected to approve the General Plan as drafted with a disclaimer that elements of the Plan that conflict with the 1987 Regional Plan would not be implemented until TRPA’s Regional Plan is updated and TRPA confirms the City’s Plan is consistent with the updated Regional Plan.

In League to Save Lake Tahoe v. City of South Lake Tahoe, Case No. 2:11-cv-01648 -GEB-GGH, 2012 U.S.Dist.LEXIS 6288 (E.D.Cal., Jan. 19, 2012), the League to Save Lake Tahoe (League) filed a lawsuit challenging the City’s approval of the Plan on that grounds that the City’s Plan is inconsistent with the TRPA Compact, the City was required to submit the Plan to TRPA for its approval and because the Environmental Impact Report (EIR) prepared for the Plan failed to comply with the California Environmental Quality Act (CEQA).

The City filed a Motion for Summary Judgment arguing that the League lacked standing to bring the federal claims alleged and that the federal claims were not ripe. Specifically, the City argued that because aspects of the Plan that are inconsistent with the Regional Plan would not be implemented, the City’s approval of the Plan could not harm the League. The District Court agreed and granted the City’s Motion for Summary Judgment explaining that the injuries claimed by the League are speculative and that even if the City procedurally erred by failing to obtain TRPA’s approval prior to adopting its Plan, such a procedural error did not threaten to cause serious environmental impacts claimed by the League. Additionally, because the court dismissed all of the League’s federal claims, the court also dismissed the League’s state law CEQA claims without prejudice.

Key Point:
Federal courts are commonly reluctant to hear state law claims, such as CEQA challenges, where all federal claims raised in the plaintiff’s lawsuit are dismissed.

Written by: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Final Environmental Impact Reports Must Include Responses to Public Comments, but Need Not Include Economic Feasibility Analyses

Sunday, January 22nd, 2012

The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (January 4, 2012) 202 Cal. App. 4th 603

A citizens group brought suit against the City of Carmel-by-the-Sea challenging the city’s Final EIR prepared in connection with the sale of an historic property known as the Flanders Mansion.  It its action, The Flanders Foundation claimed that the city did not adequately address the Surplus Lands Act, the city was required to include an economic feasibility analysis in the Final EIR and the city failed to respond adequately to a public comment on the Draft EIR.  The court rejected the trial court’s ruling regarding the Surplus Lands Act and the economic feasibility analysis; however, the court agreed with the trial court that the city failed to adequately respond to a Draft EIR comment.

One of the comments submitted on the Flanders Mansion Draft EIR proposed an alternative to the project and suggested that such alternative would mitigate environmental impacts as compared to the project.  The Final EIR failed to provide any response to this comment.  The court reaffirmed a lead agency’s duty to respond to public comments on an EIR and held that where a public comment raises a “significant environmental issue,” the lead agency must at least provide a detailed response explaining why the comment was not accepted.  The Final EIR was faulty for its failure to do so.

The Flanders Foundation also alleged that the Final EIR was inadequate for neglecting to include economic analyses.  On this claim, the court determined that the city was not required to include the feasibility analysis prepared for the project in the Final EIR because such analysis did not discuss or address any environmental issues.  The feasibility analysis was available for public review and was part of the administrative record.  Thus, the court held that substantial evidence in the record supported the infeasibility findings and the city’s statement of overriding considerations.  The Flanders Foundation conceded that there are several cases with this same holding, however, they felt those decisions were incorrect.  This court disagreed with The Flanders Foundation and reaffirmed those previous holdings.

Finally, The Flanders Foundation argued (and the trial court agreed) that the Final EIR was inadequate for failing to analyze the potential environmental impacts of the possible uses a potential purchaser might make of the Flanders Mansion.  Petitioner’s argument was based on the premise that a future owner would not be required to comply with CEQA-mandated mitigation measures in the city’s MMRP and the conservation easement in the recorded CC&R’s.  This court disagreed with the trial court and held that the Surplus Land Act “contains no provision that explicitly prohibits a discarding agency from selling surplus property that is subject to mitigation conditions and conservation easements.”  Those mitigation conditions and conservation easements were created to comply with CEQA and are not negotiable.  The Surplus Land Act clearly provides that it shall not be applied if its provisions conflict with any other provision of statutory law.  Therefore, the court overturned the trial court’s ruling and held that in a sale of surplus land, there is nothing in the Surplus Lands Act that can be interpreted to exclude CEQA-required mitigation conditions and conservation easements to be included in the sale.

Key Points:

Public agencies must respond to comments that raise “significant environmental issues.”  Because an economic feasibility analysis does not address environmental issues it need not be included in the EIR as long as it is included in the administrative record.

Written By: Tina Thomas and Michele Tong

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Agencies Can Make Adjustments to Environmental Baseline Early in the Review Process

Sunday, January 22nd, 2012

In Citizens for East Shore Parks v. California State Lands Commission (Dec. 30, 2011) 202 Cal.App.4th 549, a citizen group challenged the California State Lands Commission’s (Commission) approval of a lease renewal for Chevron’s marine terminal in the San Francisco Bay near its refinery in Richmond, California.  At the onset of the review process, the Commission stated it would analyze the lease renewal project in relation to an environmental baseline that assumed no terminal operations ever existed.  After release of the notice of preparation, but prior to release of the Draft EIR, the Commission changed its position and concluded that the environmental baseline must consider existing conditions, including existing terminal operations.

The court upheld the Commission’s revised baseline, explaining that Chevron’s terminal was a valid existing condition and the baseline should consider all existing conditions, even when those conditions have never been reviewed previously.  The court rejected petitioner’s argument that the Commission improperly changed its position concerning the appropriate baseline, finding that agencies not only can, but should make appropriate adjustments as the environmental review process unfolds.

Petitioners also challenged the adequacy of the project description, alternatives analysis, cumulative analysis, and land use compatibility.  The court rejected each of these arguments in short order, emphasizing that petitioner’s arguments were premised on a misunderstanding of the scope of the lease renewal project and an inappropriate baseline.  The court also found that the Commission complied with its responsibility to consult trustee agencies and to adequately respond to public comments.   The court declined to consider petitioner’s attack on the Commission’s CEQA findings because the arguments constituted nothing more than “a recycled medley” of their challenges to the EIR.

The court also disagreed with petitioner’s argument that the lease renewal violated the public trust doctrine, explaining that because the lease renewal simply continued a permissible and long-standing trust use, there was no violation.

Key Points:  

The decision demonstrates that a lead agency does not violate CEQA by reconsidering methodologies utilized during the environmental review process.  The adjustments in this case occurred prior to the release of the Draft EIR; therefore, a lead agency must still consider whether recirculation is required when changes in methodology occur after the release of the Draft or Final EIR.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

AB 32 Low Carbon Fuel Standard Found Unconstitutional; Other Climate Change Regulations Could Be Next

Sunday, January 22nd, 2012

In Rocky Mountain Farmers Union v. Goldstene (Case no. CV-F-09-2234), the U.S. District Court for the Eastern District granted summary judgment in favor of a group of farming and oil-industry plaintiffs, finding that the Low Carbon Fuel Standard (“LCFS”) regulations promulgated by the California Air Resources Board (“CARB”) to implement provisions of California Assembly Bill 32 (“AB 32”) violate the Commerce Clause of the U.S. Constitution.

Plaintiffs argued that CARB’s method of assigning a higher “carbon intensity score” to ethanol produced in the Midwest, which is otherwise chemically and physically identical to that produced in California, impermissibly discriminates against interstate commerce.  The court agreed and issued an injunction prohibiting enforcement of the LCFS.

According to CARB, the LCFS applies evenhandedly to all ethanol used as a fuel in California.  Under the LCFS, all ethanol sold as fuel in California would receive a carbon intensity value based on its lifecycle greenhouse gas emissions analysis. The carbon intensity value is determined by application of the same scientific modeling tool for all ethanol sold in California, regardless of origin. The court found that, although the same modeling formula applies, the variables within the formula favor California ethanol producers.  CARB has appealed the court’s ruling.

If implemented, CARB estimates that the LCFS would result in a 10 percent reduction of the carbon content of motor fuels sold in California by 2020.  CARB identified the LCFS as a “key element” in its Climate Change Scoping Plan, which outlines the State’s overall strategy for meeting the AB 32 goal of reducing greenhouse gas emissions by 20 percent in 2020.  The court’s prohibition against enforcement of the LCFS could impair the State’s ability to meet this goal.

Key Points

The decision does not affect other aspects of CARB’s AB 32 implementation strategy, several of which took effect on January 1st.  However, challenges to other aspects of California’s climate change regulations, particularly the cap and trade program, based on the dormant Commerce Clause argument embraced by the court seem likely.  See http://www.sacbee.com/2012/01/12/4181493/valeros-revenge-foils-ab-32-implementation.html for more information.

Written by:  Tina Thomas and Amy Higuera

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Tina Thomas Establishes Thomas Law Group

Wednesday, January 4th, 2012

Experienced lawyers and staff from Remy, Thomas, Moose and Manley, LLP to join in formation of new firm

SACRAMENTO –Tina Thomas, a nationally-recognized land use attorney whose cases have established critical legal precedents in California, announced today the formation of the Thomas Law Group after nearly three decades as a managing partner and of counsel to Remy, Thomas, Moose and Manley, LLP.

Six other attorneys and staff from Remy, Thomas, Moose and Manley will join Thomas at the Thomas Law Group. The new law firm will allow Thomas to better serve her clients’ needs by providing more focused attention and support. The Thomas Law Group will continue to concentrate on land use issues and assisting clients navigate the challenges of the California Environmental Quality Act (CEQA).

“Tina Thomas has been instrumental in making the Sacramento Region a better place to live and do business,” said Sacramento County Supervisor Phil Serna. “She has the experience to solve any problem that may arise with her clients and the talent joining her at the Thomas Law Group will bring the best of the best all under one roof.”

Thomas co-authored “Guide to the California Environmental Quality Act” which is in its 11th edition and is currently working with the California Legislature to reform CEQA. She has argued successfully before the California Supreme Court, California Appellate Courts and Federal District Court with many of her cases establishing new case law to guide future decisions in environmental law.

“For decades Thomas has been the chief authority on land use issues in the Sacramento area,” said Mark Friedman President of Fulcrum Property. “My company has looked to Thomas for our most difficult CEQA and land-use issues and she consistently delivers results. The formation of the Thomas Law Group will be a great benefit to the region.”

Service to the community will continue to be at the foundation for Thomas and her new law firm. Thomas serves on a number of nonprofit boards – including John Burton Foundation, Camellia Network, The California Museum, Faith in Families, Hemispheres Arts Academy, Sacramento Food Bank Services, Valley Vision and Works in New Directions (WIND Center for Homeless Teens) – and provides pro-bono representation to social-service organizations such as Francis House, Loaves & Fishes, Cottage Housing, Union Gospel Mission and The Moral Values Program.

Thomas received her BA from Stephens College and her law degree from the University of San Diego.

Attorneys and staff who will be part of the Thomas Law Group:

Ashle Crocker.  Formerly a partner at Remy, Thomas, Moose and Manley, Ashle has practiced environmental and land use law for ten years, with a focus on CEQA/NEPA and land use permitting and entitlements.

Chris Butcher.  Formerly an associate with Remy, Thomas, Moose and Manley, Chris will continue to practice in the areas of land use and environmental law, in both administrative and judicial arenas.

Amy Higuera. Formerly an associate with Remy, Thomas, Moose and Manley, Amy augments the firm’s land use and CEQA practice with a strong knowledge of real estate law.

Michele Tong. Formerly an associate with Remy, Thomas, Moose and Manley, Michele is well versed in CEQA and contract law and will join Thomas Law Group as a paralegal.

Stephanie Richburg.  Stephanie has served as office manager for Remy, Thomas, Moose and Manley for 25 years.  Stephanie will join Thomas Law Group as the office manager.

Ara Jauregui. Ara has been Tina’s legal assistant for 20 years and will continue in such capacity with Thomas Law Group.

Tina and her associates at Thomas Law Group are available to provide high quality legal services for clients seeking expertise in land use and environmental issues including NEPA, CEQA, AB 32 and Climate Change, Permitting and Entitlements, SB 375 and Municipal Law.

The contact information for Thomas Law Group is:
455 Capitol Mall, Suite 801
Sacramento, CA  95814