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

Posts from November, 2012


Challenge Under Planning and Zoning Law Time-Barred for Failure to Comply with 90-Day Limitations Period

Friday, November 30th, 2012

In Stockton Citizens for Sensible Planning v. City of Stockton (2012) 2012 Cal.App. LEXIS 1175, the appellate court affirmed a trial court decision dismissing petitioner’s lawsuit seeking a writ of mandate to compel the City of Stockton to vacate its approval of a Wal-Mart supercenter based on alleged violations of planning and zoning laws. The court found that the action was time barred under Government Code section 65009(c)(1)(E) because it was not commenced within 90 days after the city approved the project.

In 1989, the city approved a plan for development of a 1,239-acre site in northwest Stockton, which included a mix of residential, commercial, recreational and open-space uses.  In 2001, due to changed market conditions, the developer proposed revisions to the plan to reduce the densities and revise the land use designations originally approved.  The city approved a master development plan incorporating these changes and certified a supplemental environmental impact report (EIR) on January 29, 2002.  The master development plan included provisions allowing for approval of specific projects within the plan area by the city planning director if staff determined the project was consistent with the master development plan, subject to appeal to the planning commission.

In the fall of 2003, a proposal and plans for a 207,000-acre Wal-Mart retail store on a 22.38-acre portion of the site were submitted to the city’s design review board.  On December 15, 2003, the director of the city’s community development department sent a letter stating that staff had completed its initial review and had determined that the plans were in substantial conformance with the master development plan, subject to minor listed corrections.  On February 5, 2004, Wal-Mart wrote to the director seeking confirmation that the director’s letter had constituted approval of the project for purposes of appeal.  The director initialed and returned a copy of the letter as requested, confirming that he had approved the project as consistent with the master development plan as of December 15, 2003.

On February 17, 2004, the city director filed a notice of exemption (NOE) for the project with the county clerk.  On July 22, 2004, more than five months after the filing of the NOE and seven months after issuance of the letter from the director, petitioners filed their petition for writ of mandate in the superior court.

On appeal of the trial court’s ruling that the petition was time barred, petitioners argued that the city’s approval of the project, in the form of a letter from the director of city’s community development department, did not trigger the 90-day limitations period because section 65009(c)(1)(E) is limited to challenges concerning variances and permits issued after a decision by a legislative body. The court found, however, that section 65009(c)(1)(E) is not so limited. The plain language of that section states that it applies to actions challenging any decision on matters listed in section 65901; in turn, that section lists any action in which the zoning administrator exercises powers granted by local ordinance.

In this case, the director was acting as the city’s zoning administrator and was exercising powers granted by local ordinance when he approved the project.  The director’s approval was thus subject to the 90-day statute of limitations.

Key Point:

This case is a follow up to the California Supreme Court’s ruling issued in 2010 in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, which held that petitioners’ challenge under the California Environmental Quality Act (CEQA) to city approval of a Wal-Mart Supercenter was likewise time barred because the suit was not commenced within the 35-day statute of limitations following posting of a facially valid NOE.  As noted by the Supreme Court, the limitations periods set forth in CEQA are unusually short and are meant to ensure finality and predictability in land use planning decisions.  As illustrated by this related appellate court ruling, the same is true of limitations periods under planning and zoning law.

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.

Alameda County Directed to Reconsider Its Approval of an Infill Development In Light of the Cumulative Impact Exception to the CEQA Infill Exemption

Tuesday, November 20th, 2012

On remand from the California Supreme Court, the First District Court of Appeal again considered the case of Tomlinson v. County of Alameda (Case No. A125471) in light of the Supreme Court’s holding (54 Cal.4th 281) that the exhaustion of administrative remedies provision as set forth in Public Resources Code section 21177, subdivision (e), applies to a public agency’s decision that a project is categorically exempt under CEQA.  The Supreme Court’s ruling overturned the Court of Appeal’s earlier decision (188 Cal.App.4th 1406) that the exhaustion requirement does not apply to categorical exemptions and remanded the matter to the Court of Appeal.  On remand, the Court of Appeal considered the Tomlinsons’ contentions that their objections at the public hearings were sufficient to satisfy the exhaustion requirement and that the public agency misled them.

In 2008, Alameda County approved a subdivision development, finding it categorically exempt from CEQA under the “infill exemption.”  (CEQA Guidelines, § 15332.)  Under this section, a project is categorically exempt as infill development if it is consistent with the applicable general plan and zoning designations; occurs within city limits on a site no more than five acres substantially surrounded by urban uses; has no value as habitat for endangered species; would not result in significant effects to traffic, noise, air quality or water quality, and can be adequately served by utilities and public services.  On appeal, the Tomlinsons first argued the residential subdivision would not comply with the zoning ordinance and would not be served by existing utilities.  On this issue, the Court found the Tomlinsons failed to set forth all material evidence and thus waived their argument.  The Tomlinsons next asserted that the subdivision was located in unincorporated Alameda County and was not within the “city limits” as required by the infill exemption.  The Court concluded that the Tomlinsons failed to exhaust their administrative remedies and thus waived this claim as well.  According to the Court, neither the Tomlinsons nor other local residents specifically challenged the County’s reliance on the exemption on the ground that the project would not occur “within the city limits.”  The Court found the Tomlinsons’ arguments to “lack persuasive force” and thus concluded they were barred from asserting their “within the city limits” argument.

The Court did, however, agree with one of the Tomlinsons’ two remaining contentions that the County failed to consider the applicable exceptions to the infill exemption.  CEQA Guidelines, section 15300.2, precludes an agency from relying on a categorical exemption if there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances (unusual circumstances exemption) or if the cumulative impact of successive projects of the same type in the same place, over time is significant (cumulative impact exemption).  To the extent the Tomlinsons argued the County erred in failing to apply the unusual circumstances exception, the Court held the Tomlinsons failed to provide substantial evidence in support of their claims and “provide[d] no analysis demonstrating that the alleged circumstances differ from the circumstances of the projects generally covered by the in-fill development exemption.”  Indeed, the Court noted that “traffic congestion, inadequate parking, and the obstruction of viewsheds are precisely the circumstances one would expect to see in a ‘proposed development that occurs within city limits on a project site [that is] substantially surrounded by urban uses.’”

The Court also rejected the Tomlinsons’ assertion that the County tried to “mitigate its way into the exemption”.  On this issue, the Tomlinsons pointed to nothing in the record that would alert the Board that it could not impose conditions to mitigate the project’s impact and thus failed to exhaust their administrative remedies.

However, the Court found that the County’s failure to consider the cumulative impact exception to the infill exemption constituted a prejudicial abuse of discretion.  Although the court noted that an agency’s exemption determination generally supports an implication that the exceptions to the exemption do not apply, “the record in this case affirmatively demonstrates that the Board did not consider the cumulative impact [exception].”  The Court noted that, in testimony at the public hearings, neighbors expressed concern regarding the cumulative impact of increased development in the area over the last several decades and noted concern over traffic impacts and insufficient street width, parking problems and a concern that the project may include rental properties with “multi-family occupancy” that would each need to park “five to seven cars.”   In sum, the “evidence paints a picture of a semi-rural area that has had concerns about … increased development…”

In light of the concerns as expressed during the public hearing, the Court held that the Board was required to consider the cumulative impact exception to the infill exemption.  In so holding, however, the Court “confine[d] [its] analysis to whether the Board was required to decide this question and express[ed] no opinion as to whether the cumulative impact exception applies in this case.”

Four years after initial project approval, the matter has now been remanded back to the trial court with instructions to issue a writ of mandate directing the County to set aside its project approval and to reconsider approval of the subdivision, specifically, by determining whether the cumulative impact exception renders the infill exemption inapplicable.

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.

Forest Service Alternatives Analysis That Did Not Consider Alternatives Unrelated to Purpose and Need for National Forest Motorized Travel Project at Klamath National Forest Upheld

Friday, November 9th, 2012

In Klamath-Siskiyou Wildlands Center v. Graham (2012) 2012 U.S. Dist. LEXIS 141142, the court considered a challenge to the United States Forest Service’s (Service) adoption of the record of decision (ROD) approving the Klamath National Forest Motorized Travel Management Environmental Impact Statement (EIS).

In 2005, the Service adopted a final rule governing management of motor vehicle travel within the National Forests.  The rule requires that the Service balance the need to protect forest resources with the need to allow reasonable access to motor vehicles in designating new roads, trails and other areas for motor vehicle use.  In 2010, the Service adopted the ROD for the Klamath National Forest Motorized Travel Management project, which addressed the need to prohibit unrestricted off-road travel in Klamath National Forest, while recognizing that many pre-existing, user-created trails were not environmentally damaging and some were necessary for legitimate reasons to allow access to remote sites.  The ROD approved one of the alternatives considered in the accompanying EIS, which prohibited cross-county travel through the Forest, and added 53 miles of user-created roads and 20 miles of user-created trails to the Forest.  Plaintiffs challenged the Service’s approval of the ROD, contending that the EIS violated the National Environmental Policy Act (NEPA) by failing to consider an alternative that would have physically removed routes from the landscape or refrained from designating all existing routes for motorized use.  Instead, all of the alternatives increased the size of the transportation system in the Forest and designated motor vehicle use on all roads previously open to such use.

On cross-motions for summary judgment, the court found in favor of the Service, holding that the EIS contained a reasonable range of alternatives under NEPA.  The Service identified the purpose of the project as addressing the problem of unmanaged cross-county travel in the Forest, and identified needs for the project, including a need to regulate unmanaged motor vehicle travel and need to make limited changes to the transportation system to provide access to recreation opportunities.  The Service relied on the stated purpose and needs to develop the seven alternatives analyzed in the EIS.  Recognizing that it must afford considerable discretion to the Service in defining the purpose and need of its project, the court held that including an alternative to decommission existing roads would have expanded the scope of the project without addressing the stated purpose and needs.  The court therefore held that the Service’s decision to limit the scope of the project and alternatives was reasonable and it did not act arbitrarily or capriciously by refusing to consider closure or decommissioning of existing routes.

The plaintiffs also argued that the Service should have assessed environmental impacts of the entire Forest transportation system, and not just impacts of the 73 miles of roads and trails added to the transportation system by the project.  NEPA requires consideration of all connected actions in an EIS, and the plaintiffs argued that the Service was therefore required to consider impacts related not only to the addition or roads and trails, but also the continued existence of the overall transportation system.  The court upheld the Service’s decision to address the existing infrastructure as part of the environmental baseline rather than a connected action.  Likewise, the court rejected the plaintiffs’ argument that that the entire transportation system be considered as a cumulative impact rather than as part of the existing baseline.

Finally, the plaintiffs argued that the EIS and ROD failed to disclose site-specific information related to the land use allocations where the approved routes were located, as well as information related to impacts of the existing transportation system. The court found that the Service adequately disclosed environmental information and consequences of the proposed action.

 Key Point:

The “purpose and need” statement set forth in a project EIS under NEPA is similar to the “project objectives” required under CEQA for an EIR.  Under either statutory scheme, the agency is afforded considerable discretion in articulating the purpose or objectives of a project.  This case makes clear that, similar to decisions pursuant to CEQA holding that an agency is not required to consider alternatives that do not meet the stated objectives, even if those alternatives might otherwise reduce environmental impacts, an agency is not required to consider NEPA alternatives that do not meet the project purpose and need.

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.

Appellate Court Holds Association’s CEQA Claims Regarding Klamath River Compromise Agreements are Time-Barred

Friday, November 9th, 2012

In Siskiyou County Water Users Association v. Natural Resources Agency (2012) 2012 Cal. App. Unpub. LEXIS 7073, the Siskiyou County Water Users Association (Association) challenged a pair of compromise agreements made between stakeholders regarding the potential removal of hydroelectric dams to help restore fisheries on the Klamath River (Agreements), alleging the Agreements constituted a “project” pursuant to the California Environmental Quality Act (CEQA).  The trial court dismissed the Association’s claims as time-barred.  The Third Appellate District Court upheld the lower court’s ruling.

The Agreements included proposed federal and California legislation which were necessary to carry out the Agreements.  The Natural Resources Agency (Agency) filed a notice of determination (NOD) stating the execution of the Agreements was not a “project” within the meaning of CEQA since it did not bind the Agency to any specific course of action.  The Association challenged the validity of the NOD and argued the Agreements should have been subject to CEQA review before becoming effective.  In response to the lower court’s determination that its claims were time-barred, the Association advanced three arguments on appeal, all of which were rejected.

The Association first claimed the 180-day statute of limitations period applied because the Agency’s notice was substantially defective.  The court disagreed.  The court explained the Association was using the wrong rubric to examine the NOD.  While the court acknowledged that the Agency used the title NOD, the court found the notice was more properly viewed as a notice of exemption (NOE) because the Agency concluded the Agreements were not subject to CEQA review.  The court also found the mistitle of the notice dispositive since it did not lead to any material misrepresentation.  Since the substance of the notice complied with requirements for an NOE, the court held the notice triggered the shorter limitation period.

The Association’s second claim alleged the parties’ failure to seek legislation identified in the Agreements constituted a modification of the action and therefore either restarted the limitations period or gave rise to equitable estoppel.  The court rejected both arguments, holding the Association failed to show the execution of the Agreements fell within CEQA, and also failed to show reasonable reliance or an injury outweighing a public interest to establish estoppel.

The Association last claimed the Department of Fish and Game (Department) was improperly designated as the lead agency and that this claim “is ripe and justiciable before the Department completes the draft environmental impact report (EIR).”  The court was not convinced.  The Department’s status as a lead agency was not final because no action subject to CEQA had yet to be taken; if another agency believed it was better suited as the lead agency, it could negotiate with the Department or request an administrative review of the designation when timely.  The court also explained that to prevail on a CEQA claim a petitioner is required to make a showing of prejudice to the environmental review process.  The court therefore held the Association’s challenge was premature.

Key Point:

Determining an action is not a “project” under CEQA is similar to finding an action is exempt, therefore, the agency should publish a notice of exemption, as opposed to a notice of determination.

Written By: Tina Thomas, Christopher Butcher and Holly McMannes (law clerk)
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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.

Merced County Board of Supervisors Unanimously Approves the Quinto Solar Photovoltaic Project

Wednesday, November 7th, 2012

On November 6, 2012, the Merced County Board of Supervisors unanimously approved the Quinto Solar Photovoltaic Project, certified the Environmental Impact Report for the Project and approved a Solar Benefits Agreement between the applicant and the County. The Project will generate 110-megawatts of new solar power utilizing approximately 320,000 monocrystalline silicon solar panels mounted to single-axis photovoltaic trackers. The amount of energy generated by this project is enough to supply power to approximately 40,000 homes. This power will be sold in the wholesale power market to electricity providers such as utilities, municipalities or other purchasers and transferred to the PG&E high voltage transmission system. The Project will create 315 construction jobs over the anticipated 16 month project construction period and 5 full time jobs during project operation. This project will also aid the state in meeting its Renewable Energy goals as set forth in Assembly Bill 32, whereby 33% of its energy must be derived from renewable sources by 2020. Tina Thomas and Ashle Crocker assisted the project applicant through the approval process.
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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.

Court Finds Evidence Plaintiff Should Have Known About CEQA Violation At Time Injury Occurred Over A Year Ago, Therefore Court Held Plaintiff’s CEQA Claim Time Barred

Wednesday, November 7th, 2012

In Lucille Saunders v. City of Los Angeles (2012) 2012 Cal. App. Unpub. LEXIS 6965, Lucille Saunders (Saunders) and Fix the City sought writs of mandate to require the City of Los Angeles (City) to comply with its general plan, its municipal code, applicable Government Codes, and the California Environmental Quality Act (CEQA).  The Second Appellate District Court affirmed the lower court’s denial of the writs.

Pursuant to Government Code section 65300, the City prepared a general plan for future development.  The City included in its plan the seven mandatory elements, such as housing, noise, and land use, as well as an optional Framework Element.  Lawsuits ensued after the Framework Element’s adoption.  In response, the City readopted its Framework Element and made new CEQA findings and statement of overriding considerations.  Saunders filed a complaint alleging a CEQA violation, failing to perform mandatory duties under the Framework Element, and evidentiary error.

Appealing from the lower court’s holding that the CEQA claim was barred by the 180-day statute of limitations, Saunders argued she could not have discovered the CEQA violation prior to the City’s service of supplemental discovery responses made on March 11, 2009.  The appellate court explained a plaintiff must bring a cause of action within the limitations period applicable after accrual of the cause of action, which is “when, under substantial law, the wrongful act is done.”  The court also addressed the “discovery rule,” an exception to the general rule which postpones the start of the limitation date until plaintiff discovers or has reason to discover the cause of action.

With regard to this case, the court found the City informed Saunders’s counsel in a letter dated January 14, 2008 that the Planning Department had “not produced an Annual Report on Growth and Infrastructure for the years 1999 through 2007.”  The court held this evidence sufficient to support a reasonable inference that Saunders knew or should have known in January 2008 of the alleged CEQA violation, that the City was no longer generating bound Annual Reports.  Since Saunders did not file her CEQA claim until October 2009, the 180-day limitation period had passed and her claim was thus time barred.

Saunders’s claims of failing to perform mandatory duties under the Framework Element required the court to partake in statutory interpretation of said Framework Element.  Saunders asserted City Council intended to impose on the Planning Department mandatory duties to monitor growth and prepare Annual Report programs; therefore the Department had no power to eliminate those two programs.  The City responded the Department had not eliminated either program, but simply changed the timing, method, and manner of the implementation of those programs, an action well within its discretionary power.  The court agreed with the City, finding that based on the general language and the context of the Framework Element as a whole, the City Council intended to give the Planning Department broad discretion when deciding how best to implement the Framework Element.  The court thus denied Saunders’s petition.

Saunders’s last claim alleged the trial court erred by allowing certain evidence offered by the City and excluding certain evidence offered by Saunders.  The court explained if a trial court improperly excluded or admitted evidence, its decision would be overturned only if the “error resulted in a miscarriage of justice.”  The court found no evidence that Saunders was prejudiced by these rulings.  Therefore, the court upheld the lower court’s judgment.

Key Point:

The statute of limitations for a CEQA claim begins once the injury occurs.  However, under the “discovery rule,” that start date could be postponed to the date at which plaintiff knows, or more importantly should have known, when the injury occurred.  As seen in this case, the City presented evidence sufficient to show Saunders should have known in January 2008 of the alleged CEQA violation.  Therefore, her March 2009 claim was time barred.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)
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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.

Appellate Court Finds No Issue with the Timing of San Francisco’s Permit Issuance for T-Mobile’s Project

Wednesday, November 7th, 2012

In Wendy Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, the First District Court of Appeal upheld the City’s approval of T-Mobile’s installation of wireless telecommunication equipment on existing utility poles throughout San Francisco as proper under the California Environmental Quality Act (CEQA).

The issue raised by appellants (a group of residents near one of the utility poles in question) , was that the Department of Public Works authorized the construction of T-Mobile’s project before the Planning Department prepared a certificate classifying the project as a Class 3 categorical exemption and thus exempt from CEQA review.  On appeal, the court addressed three issues: CEQA review, timing of the permit issuance, and the due process right to notice and hearing.

Beginning with CEQA review, the court first explained Class 3 exemptions apply to the construction and location of limited numbers of new and small facilities, installation of small new equipment, and the conversion of existing small structures with only minor modifications made to the exterior of the structure.  The court found the T-Mobile project involved “installation of small new equipment on numerous existing small structures in scatted locations,” and therefore, as a matter of law, T-Mobile’s project falls within the scope of the exception.  Second, the court reviewed the cumulative impact exception to the exemption and held it did not apply.  The CEQA Guidelines state the exception applies “when the cumulative impact of successive projects of the same type in the same place, over time is significant.”  The court emphasized the use of “the same place” as an important limit on the exception.  The court defined “same place” as referring to an area “whose size and configuration depend on the nature of the potential environmental impact of the specific project under consideration.”  With respect to this project, given the absence of evidence showing future telecommunications installations will likely be located within “sensory range of the installations included in the T-Mobile project,” the cumulative impact exception to the Class 3 categorical exemption did not apply.

The court next addressed the timing of the permit issuance.  The appellants pointed out T-Mobile received a permit to build before it received a CEQA exemption certificate or a Department of Public Health approval.  The court, however, found the actual work of the project authorized by the permit did not occur until after all of the necessary approvals had been obtained.  The court found appellants’ argument that the permit be retroactively invalidated “absurd” and explained the City’s failure to issue the CEQA exemption and the Department of Public Health approval before issuing the permit were inadequate grounds for invalidating the permit.  The court found no requirement that an agency must put its exemption decision in writing at any specific time, and also that notice of a categorical exemption determination should not be given until after project approval.

Lastly, the court addressed the issue of the due process right to notice and hearing.  The court explained constitutional notice and hearing provisions are triggered only by governmental action resulting in substantial or significant deprivation of property.  Given this case involved agency action, and the project of putting small equipment boxes on existing utility poles in an already developed urban area did not result in a significant deprivation of property, the due process rights to notice and hearing were not triggered.

Key Point:

If construction of a project does not begin until after all the requisite permits were received, then failure of a city to issue a CEQA exemption and Department of Public Health certificates before issuing a permit approving the construction of a project is not adequate grounds for invalidating the permit.  This case also reiterates there is no requirement for an agency to put an exemption decision in writing at any specific time.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)
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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.

Petitioners Have the Burden of Proof to Establish Substantial Evidence Supporting a Fair Argument that a Project May Have a Significant Effect on the Environment

Wednesday, November 7th, 2012

In an unpublished decision, Agriculture, Business & Labor Education Coalition of San Luis Obispo County v. County of San Luis Obispo, 2012 Cal.App. Unpub. LEXIS 7948, the Second Appellate District upheld the trial court’s decision that an environmental group did not meet its burden of proof to show the County’s proposed amendments to the Framework for Planning, included in the land use and circulation elements of the General Plan could result in environmental impacts.  The Framework for Planning amendments were analyzed in an initial study and mitigated negative declaration (IS/MND) which concluded that the amendments would not have a significant effect on the environment.    The IS/MND was circulated for public comment and was considered by both the County Planning Commission and Board of Supervisors.  As a result of the public comments and hearings, County staff revised the IS/MND.  The revised IS/MND concluded that the County was not required to produce an EIR because the Framework for Planning amendments “do not create additional growth beyond the existing General Plan.”  Moreover, the Framework for Planning amendments would actually be as protective, or more protective, of the environment than the existing General Plan and therefore could not create significant environmental impacts.

Petitioners contended that the County’s revised IS/MND  was “inadequate because the administrative record contained substantial evidence supporting a fair argument that adoption of the Framework [for Planning amendments] would have a significant effect on the environment.”  To prevail on such claim, however, Petitioners bear the burden of proof to show such evidence exists.  Here, Petitioners were unable to provide any evidence in the administrative record supporting their position and, therefore, the Court of Appeal affirmed the trial court’s conclusion that Petitioners failed to demonstrate the Framework for Planning amendments are likely to result in any significant environmental impact. Furthermore, the Court found Petitioners had misrepresented both the content and the potential effect of the Framework for Planning amendments.

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.

Appellate Court Upholds EIR Given its Discrepancies Are Minor and Present No Risk of Prejudice to the Environmental Review Process

Wednesday, November 7th, 2012

In Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, Siskiyou County (County) approved a project to expand an existing wood veneer manufacturing facility for the cogeneration of electricity for resale.  The Mount Shasta Bioregional Ecology Center and the Weed Concerned Citizens (Plaintiffs) sought a writ of mandate against County claiming the project approval violated the California Environmental Quality Act (CEQA) because the project environmental impact report (EIR): (1) failed to adequately analyze alternatives and (2) failed to fully disclose, analyze, and mitigate air quality, noise, and water quality impacts.  The Third District Court of Appeal upheld the EIR upon finding its minor deficiencies did not prejudice the environmental review process.

CEQA requires an EIR to analyze a range of project alternatives that would reduce adverse environmental impacts and could be successfully accomplished within a reasonable period of time and attain the basic objectives of the project.  Plaintiffs contended the EIR’s analysis of the project and the “No Project” alternatives alone were not enough.  The court explained under CEQA, there is no magic number of alternatives the County must consider.  Given the circumstances of the case and the basic project objectives, the court found the alternatives analysis sufficient under CEQA.  The court also explained Plaintiffs had a burden to show the EIR failed to include a particular alternative that was potentially feasible under the circumstances, which Plaintiffs failed to meet.

Plaintiffs next contended the EIR failed to analyze and mitigate air quality, noise, and water impacts of the project.  Plaintiffs’ first claim targeted the EIR’s baseline.  CEQA guidelines require an EIR to include a description of the project’s environmental setting, which is then used as the baseline to determine whether a project’s impact is significant.  Plaintiffs claimed the EIR incorrectly relied on an approximation of emissions as opposed to actual emissions.  County responded the baseline used data representative of actual operations at the existing facility and not the maximum permitted or hypothetical rates.  Upon finding the actual and approximate emissions were nearly identical, the court concluded the seven percent difference would not “have precluded informed decision-making or … public participation,” and was therefore adequate under CEQA.

Plaintiffs’ complaint regarding noise impacts consisted of several separate issues, all of which were rejected, mostly due to no substantial evidence and legal support.  One claim was the EIR lacked evidence supporting its conclusion that project noise impacts will be less than significant.  Plaintiffs claimed the EIR should have included a 24-hour noise study to determine if outdoor noise is already excessively loud, instead of “just a few 15-minute noise level measurements.”  The court explained there is nothing requiring a 24-hour measurement rather than periodic sampling during a 24-hour period.  Plaintiffs also alleged a failure to look at the cumulative noise impacts in Weed.  Given a significant cumulative noise impact already existed in Weed, and the project would add very little noise to that total, the court upheld the EIR’s determination that the Project’s cumulative noise impacts would be less than significant.  Lastly, Plaintiffs argued the County should have recirculated the EIR after two “significant new noise reports” were added to it.  If new information is added to an EIR after completion of the public comment period, the lead agency must recirculate the EIR with a new comment period.  The court noticed while the Draft EIR did not include the studies, it did identify both reports and include a summary of the findings.  Inclusion of the two reports in their entirety thus did not constitute adding significant new information.  Recirculation was not necessary.

Plaintiffs’ last claim alleged the EIR failed to include an adequate description and analysis of the impacts on water quality and usage.  Plaintiffs did not provide legal or factual bases to show future water use will change, and presented nothing to refute the Final EIR’s conclusion that the Project’s water use would be consistent with historical practice and adjudicated water rights.  The court also held Plaintiffs’ argument regarding the Project’s water usage was a difference of opinion as to how the project’s cooling tower will operate, which is no ground for setting aside County’s approval of the EIR.

Key Point:

When examining an EIR, the court will generally defer to the lead agency and refuse to overturn an EIR if its minor discrepancies don’t cause prejudice to the environmental review process.  As seen in this case, the court will also refuse to set aside an EIR if the opposing party either fails to present substantial evidence of CEQA violations or fails to present evidence other than a difference of opinion.

Written By: Tina Thomas, Christopher Butcher and Holly McMannes (law clerk)
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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.

Thomas Law Group Ranks as a Tier 1 Law Firm

Monday, November 5th, 2012

The U.S.News – Best Lawyers “Best Law Firms” rankings names Thomas Law Group as one of the best law firms in Sacramento in Land Use & Zoning Law and  Environmental Law.  Only four other law firms in Sacramento were given a “Tier 1” ranking in either Land Use & Zoning Law or  Environmental Law.  For more information visit:  http://bestlawfirms.usnews.com/search.aspx.