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CEQA Updates

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

Posts from February, 2013


California Coastal Commission Certification of Local Coastal Plan Amendment Not in Violation of CEQA

Wednesday, February 27th, 2013

In an unpublished decision, Protect Our Village v. California Coastal Commission (February 7, 2013) 2013 Cal.App.Unpub.LEXIS 1018, the Second District Court of Appeal affirmed the trial court’s denial of a writ of mandate to vacate California Coastal Commission (Commission) certification of an amendment to a local coastal plan (LCP).

In 2008, the City of Santa Barbara conditionally approved a coastal development permit for a mixed-use project on two adjoining parcels.  The city conditioned approval on the Commission’s certification of an amendment to the LCP, to allow for a re-zone of one of the parcels from residential to commercial use.  After finding the amendment consistent the California Coastal Act and the city’s existing land use plan (LUP), the Commission certified the amendment.

The petitioners filed a writ of mandate to vacate Commission approval of the amendment, arguing the approval violated the California Environmental Quality Act (CEQA).  The petitioners argued the Commission was required to consider the environmental impact of the whole project driving the request before certifying the amendment.

The court disagreed, finding that the Commission appropriately limited its review to those impacts that could be attributed to the zoning change.  The petitioners argued that an agency with independent responsibility to consider a preliminary approval, such as a rezone or annexation, must also consider impacts of the whole project, comparing the Commission’s action to those taken by a local agency formation commission (LAFCO).  However, unlike a LAFCO, the Commission is not subject to CEQA, but rather, must comply with its own certified regulatory program, which the Secretary of Natural Resources has deemed the equivalent of CEQA review.   Thus, the CEQA requirements that might apply to a LAFCO would not necessarily apply to the Commission.  In addition, the CEQA Guidelines have clarified the role of lead and responsible agencies, concluding in section 15051 that, where a city has pre-zoned an area, the city is the appropriate lead agency and should prepare the environmental review document for the whole of the project, and the LAFCO acts as a responsible agency, considering only those impacts directly related to its action.  The court concluded that the Commission appropriately limited its review under its certified regulatory program to whether the rezone would carry out the provisions of the city’s LUP, and that the Commission had no authority to consider impacts outside the scope of its conformity analysis.

The petitioners also argued that the Commission failed to consider environmental impacts on water supply, views and aesthetics.  The court rejected these arguments, explaining once again that the only responsibility of the Commission was to determine whether the zoning change conformed to the California Coastal Act and the city’s LUP.  The court held that, in determining the proposed rezone met these standards, the Commission appropriately deferred to the city’s decision to approve the project.

Written By: Tina Thomas, Amy Higuera and Andrea Lutge (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.

Sixth District Thirsty for a More Robust Alternatives Analysis

Wednesday, February 27th, 2013

In Habitat v. City of Santa Cruz (Feb. 19, 2013) 2013 Cal.App.LEXIS 128, the Sixth District Court of Appeal reversed the trial court decision and ordered the City of Santa Cruz (City) to vacate its certification of the final EIR and approval of a project because the EIR failed to discuss any feasible project alternatives that could avoid or lessen the significant environmental impact of the project on the City’s water supply.

The City certified an environmental impact report (EIR) for an amendment of the City’s sphere of influence (SOI) in order to include an undeveloped portion of the University of California, Santa Cruz (UCSC) campus known as “North Campus” so as to permit the City to provide extraterritorial water and sewer services to proposed new development in North Campus.

Habitat and Watershed Caretakers (Habitat) filed suit alleging the EIR failed to comply with the California Environmental Quality Act (CEQA) because the EIR (1) did not adequately discuss and analyze the impacts of the project on water supply, watershed resources, biological resources, and indirect growth, (2) misdescribed the project’s objectives, (3) failed to provide adequate mitigation measures, (4) failed to make sufficient findings,  (5) failed to provide an adequate statement of overriding considerations, and (6) failed to consider and analyze a reasonable range of alternatives.

The court held the EIR’s analysis of water supply impacts was adequate.  The EIR disclosed the City’s inadequate water supplies and projected that this imbalance could be dealt with through conservation and curtailment, and, hopefully, the future development of a desalination facility. The court concluded the analysis satisfied CEQA and separately considered the sufficiency of the proposed water supply mitigation measures.

Habitat argued the EIR failed to provide “specific, certain and enforceable mitigation measures for the Project’s significant and allegedly unavoidable impacts on water supply.”  In Habitat’s view, the sole mitigation proposed in the EIR was the potential construction of a desalination facility which would not solve the City’s water issues.  The court disagreed finding the EIR contained numerous mitigation measures, including using water from existing supply wells, feasibility studies on measures for utilization of reclaimed water, water conservation strategies, and water audits to identify feasible measures that could be implemented.  The court held that these mitigation measures were adequate, explaining an EIR did not have to present mitigation measures to solve the City’s longstanding water supply deficit, it only had to address the impact of the project being analyzed.

Furthermore, the court held the EIR’s analysis of cumulative impacts on the City’s water supply caused by indirect growth inducement was adequate because the EIR acknowledge and considered the impacts of off-campus growth and secondary off-campus growth.  The court explained, although there “may be a legitimate basis for disagreement” they must defer to the conclusions found in the EIR because substantial evidence existed in support of the conclusions found.

Additionally, the court held the EIR’s analysis of the project’s impact on watershed resources was adequate.  Habitat alleged the EIR was inadequate because it relied on a Storm Water Management Plan (SWMP) that was not included in the EIR.  The court disagreed.  The Draft EIR adequately analyzed potential impacts on watershed resources and concluded those impacts were less than significant after mitigation.  The Final EIR’s discussion of the SWMP only served to buttress the conclusion reached in the Draft EIR and, therefore, did not render the EIR inadequate.  The court also upheld the City’s decision not to delineate all the wetlands within the project area.  In recognition of the fact that wetlands are dynamic resources, the EIR adopted mitigation that, among other things, required wetland delineations to occur during future project-level environmental review as specific projects are proposed within the North Campus.

Next, the court held the EIR’s discussion of the project’s impact on biological resources was adequate.  Habitat asserted that the EIR was required to disclose and analyze the project’s impact on the San Lorenzo River and the North Coast Streams resulting from its water supply demands.  However, the EIR did not propose relying on increased water consumption from existing water resources.  Instead, it proposed meeting the project’s needs through conservation, curtailment, and the possible construction of a desalination facility.  Thus, substantial evidence demonstrated the project would not impact the existing water resources identified by Habitat.

With respect to Habitat’s challenge to the project objectives, the court agreed the draft EIR originally misstated the project objective as: “implementation of the settlement agreement as related to submission of applications for an SOI amendment and to facilitate the provision of water and sewer service.” The court explained that the purpose of the project was not to fulfill the settlement agreement requirements, since those were satisfied when the applications were filed.  The court held the final EIR described the project objective properly.  The true objective, as disclosed in the Final EIR, was to provide the Regents with the water necessary to develop the North Campus.  The court concluded, “[w]hile the draft EIR did fail to adequately delineate the project’s objectives, the final EIR corrected this problem.”

Additionally, Habitat argued the EIR’s findings and statement of overriding considerations were inadequate. The court held there was no independent merit to Habitat’s challenge to the findings because the argument was essentially a repeat of the challenges to the EIR.  However, the court agreed with Habitat that three of the six reasons stated in the City’s statement of overriding considerations were inadequate.  Nevertheless, the City found that each of the six reasons stated was individually sufficient to outweigh the significant impact on the City’s water supply.  Therefore, “[u]nder the abuse of discretion standard, the City’s decision to favor the identified benefits over the significant environmental impacts of the project must be upheld.”

Finally, Habitat argued the EIR failed to consider and analyze a reasonable range of potentially feasible alternatives. The court rejected Habitat’s argument that the EIR was required to include a reduced-development alternative because “LAFCO lacks the power to impose conditions that would directly restrict the Regents’ development of North Campus…”  However, the court agreed that the EIR should have included a “limited-water” alternative.

The City argued that a limited-water use alternative was properly omitted because (1) it would not “meet the basic Project objective,” (2) it would not avoid the significant impact on water supply because the Regents could develop areas already within the City’s water service area, and (3) “the City has no jurisdiction to limit UCSC’s on-campus development.”  The court rejected these arguments in turn.  First, the court explained an alternative cannot be eliminated from consideration only because it would interfere to some extent with project objectives.  Second, the court concluded the EIR failed to explain how a limited-water alternative would not avoid the significant impact on water supply stating: “to facilitate CEQA’s informational role, the EIR must contain facts and analysis, not just the agency’s bare conclusions or opinions.”  Third, the court found that the limitation on LAFCO’s power to directly regulate land use did not prohibit it from conditioning the provision of water and sewer services for North Campus development on water supply availability by imposing a limited-water condition.  Therefore, the City’s failure to analyze any potentially feasible alternative that could avoid or lessen the significant environmental impact of the project on the City’s water supply rendered the EIR inadequate.

Key Point:

Feasibility of alternatives must be considered at two phases in the EIR process.  At the outset, the lead agency must identify and analyze potentially feasible alternatives within the EIR.  Then, in certifying an EIR and adopting a project, the lead agency must determine whether the potentially feasible alternatives that will reduce or avoid a project’s significant and unavoidable impacts are actually feasible.  Here, the court faulted the City for improperly rejecting potentially feasible alternatives during the first step in the CEQA process for analyzing alternatives.

Written By: Tina Thomas and Christopher 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.

Better Wear Your Helmet – Bicycle Plan Update Collides with CEQA

Wednesday, February 20th, 2013

In 1997, the City of San Francisco adopted the City’s Bicycle Plan.  In 2005, the San Francisco Board of Supervisors directed its staff to prepare an update to the City’s Bicycle Plan.  Initially, the City determined the Bicycle Plan Update did not require further CEQA review.  This determination resulted in Rob Anderson and two unincorporated associations filing a CEQA petition.  In November 2006, the trial court sided with the petitioners and directed the City to comply with CEQA.

In response, the City undertook a nearly three yearlong environmental review process to analyze potential impacts of the Bicycle Plan Update.   The programmatic environmental impact report prepared by the City for its Bicycle Plan Update contained more than 2,000 pages and was supported by an administrative record of more than 36,000 pages.  The City certified the Bicycle Plan Update EIR in the summer of 2009.

In September 2009, the City filed a return to the writ requesting the court discharge the writ.   Nearly a year later, in August 2010, the trial court entered an order discharging the writ of mandate.  Rob Anderson alone elected to appeal from the trial court’s order discharging the writ.

Roughly 8 years after the City first began the process to update its Bicycle Plan, Division Two of the First District Court of Appeal issued an unpublished decision (Anderson v. City & County of San Francisco (2013) 2013 Cal. App. Unpub. LEXIS 288) resolving Rob Anderson’s appeal.  The Court rejected all of Anderson’s challenges to the EIR.  However, the Court concluded that in certifying the EIR, the City failed to make “a handful of findings required by CEQA.”  For this reason, the Court reversed the trial court’s order discharging the writ.

Anderson challenged the EIR on numerous grounds.  First, he claimed the public comment process was flawed and that the EIR should have been recirculated.  Second, he argued the project description was inadequate. Third, he asserted that the EIR failed to accurately describe the baseline environmental conditions relevant to the Bicycle Plan Update.  Fourth, he claimed the EIR failed to include a reasonable range of alternatives and that an offsite alternative should have been analyzed.  Fifth, he argued six potential impacts were not adequately analyzed including transit impacts, parking impacts, air quality impacts, traffic impacts, noise impacts, and cumulative impact.  Lastly, he asserted that for 107 of the 139 significant impacts identified in the EIR the City failed to consider – and where feasible adopt – mitigation measures to reduce the impacts to a less than significant level.

Putting the Project in context, the Court explained that “[t]his project was not the construction of a new factory or housing subdivision in a virgin setting, but a setting that is perhaps the most intensely developed urban landscape in California. And, the particular project concerns a plan to promote greater use of bicycles in that setting—more accurately, only amendments to an already existing plan that has been around for more than a decade.”

In rejecting Anderson’s challenges to the EIR, the Court undertook a detailed analysis of each issue he raised.  To support its holding, the Court explained that the EIR was a product of a coordinated effort between San Francisco Municipal Transportation Agency, its transportation consultants, and staff of the Major Environmental Analysis division of the City’s Planning Department.  The Court noted that “[t]he Planning Department and the Municipal Transit Authority have been involved with the Bicycle Plan since its inception 15 years ago.”  The Court concluded that “[t]hey must be presumed to have some acquaintance with urban transportation in general, the flow of San Francisco traffic in particular, and, most particularly, the nuts and bolts of the actual operations of the Bicycle Plan. And they undoubtedly have a healthy respect for the law of unintended consequences.”  For these reasons, the Court found “this would appear to be a distinctly appropriate occasion for judicial deference to administrative expertise.”

Procedurally, the Court was also very critical of the manner in which Anderson pursued his appeal.  The Court explained that much of Anderson’s arguments appeared to do nothing more than regurgitate his arguments at trial.  In doing so, Anderson ignored “two most elemental principles of appellate review: that the judgment under review is presumed correct, and it is the appellant’s burden to overcome that presumption.  Simply rehashing or tweaking arguments rejected by the trial court neither rebuts that presumption nor carries that burden.”

Next, the Court rejected Anderson’s argument that the statement of overriding considerations failed to comply with the requirements of CEQA.  The Court conceded that the factors identified in the City’s statement of overriding considerations were “somewhat general and aspirational…”  But, the Court found them to be sufficient because conclusions reached in the statement of overriding consideration “lies at the core of the lead agency’s discretionary responsibility under CEQA, and is, for that reason, not lightly to be overturned.”  The Court also explained that the City’s determination that it should follow the path put in place by the original Bicycle Plan was appropriate since continuity with existing policy is a proper consideration within a statement of overriding consideration.

Lastly, the Court concluded that the City’s CEQA findings failed to comply with the requirement to consider the actual feasibility of alternatives and to discuss each significant and unavoidable impact.  While the Court acknowledged that the statement of overriding considerations properly identified factors supporting approval of the Bicycle Plan as adopted, CEQA nevertheless required findings adequately addressing alternatives and significant and unavoidable impacts identified in the EIR.  Because the Court determined that with respect to certain impacts and alternatives “there is nothing establishing the written balance struck by the Board in weighing the benefits of the project against ‘its unavoidable environmental risks,’” the Court concluded as a matter of law that the findings were inadequate.  Therefore, the Court reversed the trial court’s order discharging the writ on this single ground.

Key Point:

When CEQA was adopted in 1970, the legislature never could have fathomed the law it created to protect the environment would result in over 8 (and counting) years of delay in implementing projects such as bicycle plans designed to enhance pedestrian travel, improve health and safety, and reduce air quality impacts from automobile use.  The factual history surrounding San Francisco’s Bicycle Plan Update is just one of the growing numbers of examples highlighting the critical need for modernization of CEQA.

Written By: Tina Thomas and Christopher 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.

Court Finds CEQA Challenge Not Worth its Weight in Sand

Wednesday, February 20th, 2013

In  Save Cuyama Valley v. County of Santa Barbara (Jan. 10, 2013) 2013 Cal.App.LEXIS 212, the Sixth District Court of Appeal issued a decision upholding the trial court’s denial of Save Cuyama Valley’s (Save Cuyama) petition for a writ of mandate against the County of Santa Barbara (County).  Save Cuyama contended that the Environmental Impact Report (EIR) prepared for a sand and gravel mining project violated the California Environmental Quality Act (CEQA) in several ways.

First, Save Cuyama challenged the EIR’s analysis of the project’s hydrological impacts, claiming that: (1) the County violated CEQA in defining its threshold of significance for hydrological impacts; (2) substantial evidence did not support the EIR’s finding that the project’s hydrological impacts were minor yet significant and unavoidable; and (3) the mitigation measure proposed for hydrological impacts was too nebulous to satisfy CEQA.  The court rejected each argument.  “CEQA grants agencies discretion to develop their own thresholds of significance.” (CEQA Guidelines, § 15064, subd. (d)).  In addition, the court found that the EIR’s assessment of the project’s hydrological impacts was supported by substantial evidence because it sufficiently explained why a sediment deficiency did not inevitably translate into adverse hydrological impacts.  Lastly, the court found that the mitigation measure proposed to address the project’s hydrological impacts did not constitute improperly deferred mitigation.

Second, Save Cuyama claimed that the water supply analysis was deficient because the EIR used the same threshold of significance to assess the project’s individual and cumulative impacts.  In addition, they argued that the standard that was used, which was from 1992, was outdated.  The court explained that a noncumulative examination of the project’s impact on water usage was unnecessary because the EIR already found that the project had no significant cumulative impact, which is under an “undoubtedly more stringent cumulative-impact threshold.”  The court also found that substantial evidence demonstrated the water supply threshold relied on in the EIR, although established in 1992, was still valid.

Finally, Save Cuyama challenged the EIR’s finding that the project would not have a significant water quality impact without mitigation.  The court agreed that no substantial evidence supported the conclusion that the water quality impact was less than significant without mitigation.  However, the court concluded Save Cuyama failed to establish the error was prejudicial.  The court explained that Save Cuyama did not dispute that a water quality condition required by the County when it approved the project would be wholly effective in negating the mine’s adverse impact on water quality.  Therefore, whether or not the impact was labeled significant, Save Cuyama failed to establish that the project as approved had the potential to result in a significant water quality impact.

Key Point:

CEQA grants agencies considerable discretion in their determination of thresholds and their assessment of environmental impacts, requiring only that the agency support any conclusions with sufficient evidence.

If the threshold for cumulative impacts is more stringent than that for noncumulative impacts, it is unnecessary to do an examination of the latter impacts when it has already been established that the former fell below the threshold.

When challenging an EIR’s finding that an impact will be less than significant, the opposing party must establish that the project, if approved would result in a significant impact on the environment.  Claiming that substantial evidence in support of the conclusion is lacking is not enough to show prejudicial error.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (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.

Thirty-Five Miles of Alaskan Rail Line Not in Violation of NEPA

Wednesday, February 20th, 2013

In Alaska Survival v. Surface Transportation Board (2013) 43 ELR 20016, the Ninth Circuit Court of Appeals denies Alaska Survival’s NEPA challenge to the Surface Transportation Board’s (Board) decision authorizing Alaska Railroad Corporation (the Railroad) to construct thirty-five miles of new rail line.

Alaska Survival contended that the Board violated NEPA by (1) adopting an unreasonable purpose and need statement, (2) refusing to consider an alternative route without an access road, and (3) inadequately assessing the project’s adverse effect on wetlands.

In rejecting Alaska Survival’s challenge to the purpose and need, the court explained that a statement of purpose and need must only “briefly specify the underlying purpose and need to which the agency is responding and that the statement will only fail if it unreasonably narrows the agency’s consideration of alternatives.”  Here, the court concluded the statement complied with this standard.  Alaska Survival further argued that the Board erred when it adopted the Railroad’s asserted goals without considering the “public convenience necessity.”  The court rejected this argument stating that “public need can be interpreted broadly, and the Board has discretion to determine which public needs it will consider.”

Next, Alaska Survival contended that the Board acted arbitrarily and capriciously when it “thoughtlessly considered an impermissibly narrow range of alternatives,” and refused to consider an EPA-supported alternative rail design.  The court concluded that in order to prevail on its claim, Alaska Survival had a duty to show that the EPA-supported alternative was viable.  Because Alaska Survival failed to meet its burden, the court held the Board’s technical expertise regarding railroad construction alternatives.

Finally, Alaska Survival contended that the Board relied on improper methodology for its wetlands delineation, that the wetland analysis was too cursory to meet NEPA’s “hard look” requirement, and that the Board impermissibly referred to mitigation measures as “future prospects” to be handled by the Railroad.  The court held that it was not the role of the court to decide whether the EIS is based on the best scientific methodology available; all that is required is a thorough discussion. The court also found that Alaska Survival failed to meet its burden of demonstrating that alternative mitigation measures that it preferred were in fact feasible.  Lastly, the court concluded that NEPA does not require finalization or adoption of mitigation mandates but only mandates that the agency engage in a reasonably thorough discussion of mitigation. Because the EIS contained such a discussion, it complied with NEPA.

 Key Point:

In drafting an EIS, a federal agency may properly incorporate the applicant’s project objectives into the Statement of Purpose and Need for the project.  To satisfy NEPA’s “hard look” standard, the absence of “unanimity of opinion among agencies” is not determinative; all that NEPA requires is that the agency undertakes a “reasonably thorough discussion” of an issue.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (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.

Third District Court of Appeal Upholds County’s General Plan Update “Tiered” Environmental Impact Report

Wednesday, February 20th, 2013

In an unpublished decision, Sierra Club v. County of Tehama (2012) 2012 Cal.App.Unpub.Lexis 8813, the Third District Court of Appeal issued a decision upholding the trial court’s denial of Sierra Club’s petition for a writ of mandate against the County of Tehama (County).  Sierra Club alleged that the Environmental Impact Report (EIR) prepared for the County’s General Plan Update (GPU) violated the California Environmental Quality Act (CEQA) in several respects.  Specifically, Sierra Club asserted that the EIR failed to fulfill its informational purpose, misrepresented greenhouse gas emissions, failed to adopt feasible mitigation measures for several impacts,  failed to include an adequate alternatives analysis, and made findings unsupported by substantial evidence.

The court began its inquiry by considering whether the GPU EIR was a program EIR, as claimed by the County, or a first tier project EIR.  Citing CEQA Guidelines, section 15378, the court concluded that a general plan is by definition a “project” and, therefore, should have been called a first tier project EIR, rather than a program EIR.  The court, however, noted that in this instance the County’s treatment of the EIR as a program EIR instead of a first tier project EIR was a distinction without a difference as both types of EIRs allow deferral of certain analysis.

Turning to the substantive claims, the court concluded that Sierra Club forfeited its argument that the County’s CEQA findings were not supported by substantial evidence because Sierra Club’s 1.5-page argument failed to include any citations to the administrative record and did not provide evidence favorable to the County and show why it was lacking. Similarly, the court rejected Sierra Club’s argument that no substantial evidence supported the conclusion that the County would have an annual average growth of 2.2 percent because Sierra Club presented a one-sided argument ignoring evidence in the record favoring the County’s conclusion.

Next, the court rejected Sierra Club’s claim that CEQA required the County to analyze potential impacts of the theoretical build-out scenario.  Pointing to CEQA Guidelines, section 15145, the court stated the County complied with the rule that “[i]f, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.”

The court then addressed Sierra Club’s challenges to the analyses of air quality and greenhouse gas (GHG) emissions, agricultural, water supply, traffic and circulation, and land use impacts.  With respect to each claim and in consideration of the fact that the GPU EIR was a first tier project EIR, the court held that Sierra Club failed to show reversible error.  For instance, in regard to the CEQA findings on GHG emissions, Sierra Club argued that the County improperly developed its GHG analysis around the theory that the science of GHG is ever-changing and, as a result, the law on GHG emissions is a “moving target.” The court rejected this argument because the uncertainty in the County’s GPU EIR was the result of the project’s tiered nature, not because the law is a “moving target.”

Finally, the court addressed Sierra Club’s argument that the County’s GPU EIR violated CEQA by failing to include an adequate analysis of alternatives.  In rejecting this argument, the court stated that an EIR does not need to consider every conceivable alternative to a project. The court held that the County’s consideration of five alternatives constituted a reasonable range of potentially feasible alternatives and satisfied CEQA’s goal to foster informed decision making and public participation.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (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.

Modernizing CEQA Requires More than Repackaging Existing CEQA Procedures

Friday, February 15th, 2013

On January 18, 2013, Senator Ellen Corbett introduced Senate Bill 123 which, if enacted, will require the presiding judge of each superior court to create an environmental and land use division. The specialized division would hear cases regarding the California Environmental Quality Act (CEQA), air quality, climate change, hazardous materials, and other biological resource subject areas. The cases would be decided by judges trained in environmental and land use law.

State law already requires courts in counties with a population over 200,000 to have at least one judge with CEQA experience. SB 123 essentially removes the population limit in existing law, expands the types of environmental cases that may be heard by this division, and requires the Judicial Council to establish rules regarding “educational requirements and other qualifications” for the judges.

Requiring judges that handle CEQA matters to have yet-to-be defined educational and other qualifications will not reduce CEQA litigation abuses.  Counties with populations over 200,000 already have designated judges with CEQA expertise, yet the results of CEQA litigation are no more predictable in these counties than those without such judges.  (See Thomas Law Group CEQA Litigation Study, http://thomaslaw.com/wp-content/uploads/2012/03/CEQA-Lit-History.pdf.)

SB 123 fails to move CEQA in the direction necessary to modernize the statute and reduce abuses.  California courts are severely under-staffed and under-funded.  In the end, SB 123 would do little to streamline CEQA and would merely create additional financial strains within the already overburdened California Judicial Branch.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (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.

Governor Brown Calls for Streamlining CEQA

Friday, February 15th, 2013

On January 24, 2013, Governor Jerry Brown discussed the need for CEQA reform in his State Of The State address.  In discussing CEQA, Governor Brown explained that streamlining CEQA could help California regain its fiscal footing and create new jobs.  To achieve these goals, Governor Brown stated that CEQA must be implemented to apply “consistent standards that provide greater certainty and cut needless delays.”

Governor Brown’s comments provide further evidence of the growing consensus that CEQA must be modernized to ensure California can simultaneously achieve its environmental and economic goals.

Written By: Tina Thomas , Christopher Butcher and Andrea Lutge (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.

Court Hauls Private Road Project Back to County for Further Environmental Review

Wednesday, February 13th, 2013

In an unpublished decision, Forest Tull v. Yuba County (Jan. 11, 2013) 2013 Cal.App.Unpub.LEXIS 247, Forest and Bobbie Tull (the Tulls), challenged Yuba County’s (County) certification of an EIR for a gravel haul road proposed by Teichert & Sons (Teichert).  The Tulls alleged that the EIR failed to consider feasible alternate routes for the haul road, and that the EIR’s drainage, noise, and traffic safety impact analyses were inadequate.  In addition, the Tulls alleged that two Yuba County ordinances, which inform the process of certifying EIRs, violated CEQA.

The court first agreed with the Tulls that the EIR failed to consider feasible alternative routes.  The court pointed specifically to inconsistencies in the EIR’s alternatives analysis.  The court reasoned that after characterizing one particular alternative as “environmentally superior,” the EIR then classified it as infeasible because eminent domain proceedings would be required to acquire the land.  The court held this explanation was insufficient because the “County was perfectly willing to use eminent domain proceedings to acquire land to complete the private haul road.”

Turning to the noise and vibration impacts, the court found the EIR in error because, although it properly identified the threshold of significance, “at minimum, the quietest of the Teichert trucks,” would exceed that threshold.  In addition, the court held that the EIR failed to account for potentially significant impacts from the project because it failed to characterize the noise from the “loudest trucks.”  Furthermore, the court found, the measure of noise used disguised the impact of the project.  The court also rejected/questioned “the EIR’s use of a 24-hour average noise measure [because it] artificially lowers the decibels that can be expected to result from the project.”

The court next held that the EIR failed to disclose the County’s plan to condemn land for a drainage pond and analyze potential hydrology impacts of this plan.  The court reasoned that “under CEQA, it is well established that [a] project description that omits integral components of the project may result in an EIR that fails to disclose the actual impacts of the project.”

In addressing the EIR’s traffic and safety analysis, the court held that the County properly studied the traffic and safety impacts of the haul road.  The court also rejected the Tulls’ criticisms regarding the conclusions found in the traffic and safety analysis, explaining that the Tulls only pointed to “conflicts of evidence” that the County already considered and  the court was not required to “reweigh.”

Finally, the court held that the combined operation of Yuba County ordinance section 11.10.580 and 11.10.581 violated the CEQA Guidelines.  Section 11.10.580 permits the Planning Commission to either certify the EIR as adequate or return it for corrections prior to certification.  The court interpreted section 11.10.580, together with section 11.10.581, which states, “the action of the Planning Commission to certify a Final EIR shall be final unless appealed to the Board of Supervisors within 10 days,” to permit the Planning Commission to certify EIRs without recourse to the Board of Supervisors.  The court held this violated CEQA Guidelines, section 15090, which requires a decision making body review and consider the information contained in the EIR prior to approving the project.

Written By: Tina Thomas , Christopher Butcher and Andrea Lutge (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.

Court Silences Petitioner’s Challenge to a Negative Declaration

Wednesday, February 13th, 2013

In an unpublished decision, Stahovich v. City of Anaheim (2012) 2012 Cal.App.Unpub.LEXIS 9465, the Fourth District Court of Appeal affirmed the trial court’s denial of a writ of mandate and complaint for declaratory relief against the City of Anaheim (City).  Arthur E. Stahovich filed a petition alleging the City violated the California Environmental Quality Act (CEQA) in adopting a negative declaration for a 32-unit single family residential infill project.

Stahovich alleged the proposed project had the potential to cause significant noise, land use and planning, drainage, and traffic impacts, necessitating preparation of an Environmental Impact Report (EIR).

In regard to Stahovich’s noise and traffic arguments, the court found that Stahovich could not rely on statements from neighbors to meet his burden of proof.  In addition, the court found the City could not be faulted for electing to prepare a noise study required by the municipal code after environmental review was completed; Stahovich had the burden to prepare a noise study or to submit some other substantial evidence supporting a fair argument.

Second, Stahovich argued the project would have significant impacts on land use and planning because it conflicted with the City’s general plan and zoning requirements.  The court determined Stahovich’s arguments were inconsistent with the City’s interpretation of its own municipal code and largely relied on opinions of neighbors; as a result, the court held the record lacked substantial evidence supporting a fair argument of a negative impact on planning or land use.

Third, Stahovich argued the City’s conclusion that the project would have a less than significant impact on drainage was in error.  The administrative record included comments by an engineering consultant hired by Stahovich addressing the project’s drainage impacts.  The court explained that in order “for expert opinion to rise to the level of substantial evidence it cannot be an unsubstantiated opinion … [or] evidence that is clearly inaccurate or erroneous.”  Here, Stahovich’s expert stated that the project would result in increased ponding effects in the project area; however, Stahovich’s expert “failed to explain the duration of the ponding, i.e., a matter of minutes or longer or its severity, and thus did not support the claim it may be significant.”  Because other expert evidence in the record demonstrated that any temporary ponding that may occur would be minimal, the court concluded the record lacked substantial evidence of a fair argument of a potentially significant drainage impact.

Finally, Stahovich argued that “even if an EIR was not required … [the City] abused their discretion by not requiring a mitigated negative declaration.”  A mitigated negative declaration is needed when an initial study of a project identifies potential significant impacts on the environment.  Stahovich argued that the mitigation measures included in the negative declaration pointed to the need for a mitigated negative declaration.  The court rejected this argument, reasoning that the project features that Stahovich complained of were incorporated as components of the project within the conditions of approval and did not constitute mitigation measures.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (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.