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CEQA Updates

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

Posts from February, 2014

CEQA Challenge Barred by 35-Day Statute of Limitations for Categorically Exempt Infill Project

Monday, February 24th, 2014

In an unpublished decision, Friends of the Landmark Filbert Cottages v. City and County of San Francisco, 2014 Cal. App. LEXIS 564, the First District Court of Appeal rejected a CEQA challenge to an infill project near San Francisco’s Russian Hill. The court applied CEQA’s 35-day statute of limitations and affirmed that the public interest is best served by allowing projects to move forward once the statute of limitations period has expired, regardless of the merits of the project’s approval.

The project at issue involved renovation and remodeling of the historic Filbert Street Cottages.  The city planning commission approved the project on April 8, 2010 and relied on a categorical exemption from CEQA review for infill development projects.  This approval triggered a 30-day period for appeal to the city board of supervisors. After the 30 days expired, on May 10, 2010, the city posted a notice of exemption (NOE). Posting of the notice started the 35-day statute of limitations to challenge the project’s approval under CEQA.

On June 17, 2010, thirty-eight days after the planning commission posted the NOE, neighbors attempted to appeal the planning commission decision.  The city advised that the appeal was untimely.  In January, 2011, two additional permits were issued by the city building department. The neighbors again attempted to appeal, but the city advised that no appeal process was available for issuance of building permits for project that have already received authorization from the planning commission.  The neighbors, together with the Friends of the Landmark Filbert Cottages, thereafter filed a petition for writ of mandate.

Friends of the Landmark Filbert Cottages conceded that it missed both the 30-day deadline to appeal to the board of supervisors and the 35-day statute of limitations to challenge use of a categorical exemption to approve the project. However, they argued that the statute of limitations was tolled because the city had not adopted a formal process for administrative appeals, as required by Public Resources Code section 21151.

The court rejected this argument and found that the interim procedures the city had in place to process appeals satisfied the obligations under section 21151. Citing the California Supreme Court in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, the court held that flaws in the decision making process do not toll a facially-valid and properly filed NOE. Allowing “perceived defects” in an administrative appeal process to invalidate the NOE and toll the statute of limitations did not serve the public interest in resolving challenges quickly and allowing projects to go forward.

Friends of the Landmark Filbert Cottages also argued that the 2011 building permits created a second opportunity to appeal the project to the board of supervisors. The court disagreed, finding that issuance of these permits was a ministerial action that necessarily followed the city’s formal approval of the project in May 2010. As the subsequent issuance of permits is not material for CEQA purposes, the deadline to challenge the project in court remained 35 days from the original approval.   In rejecting their arguments, the court noted that the Friends were clearly trying to circumvent CEQA’s 35-day deadline and stop a project that had complied with every CEQA requirement.

Plaintiff’s LAFCO and CEQA Claims Dismissed on Procedural Grounds

Thursday, February 20th, 2014

In Protect Agricultural Land v. Stanislaus Local Agency Formation Commission, 2014 Cal. App. LEXIS 80, the court affirmed the requirement that challenges to annexation and sphere of influence decisions by Local Agency Formation Commissions (LAFCO) must be brought as reverse validation actions.

The case involved the Stanislaus County LAFCO’s approval of an application by the City of Ceres to modify the city’s sphere of influence and to annex 960 acres of farmland, as set forth in the West Landing Specific Plan. The City of Ceres acted as the lead agency under CEQA and prepared an EIR for the Specific Plan.  Protect Agricultural Land (PAL), a citizen group, challenged the approval claiming it violated CEQA and the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 (Reorganization Act). A final LAFCO decision may only be challenged by a validating action under Government Code section 56103 or by a quo warranto proceeding filed by the Attorney General. Section 56103 allows a public agency to test the validity of a LAFCO annexation or sphere of influence determination by filing an in rem validation action within 60 days of the approval. If a public agency does not file an in rem action, under section 51603, any interested individual may challenge the validity of the LAFCO decision following proper notice provided according to Code of Civil Procedure section 863.

Since the Stanislaus County LAFCO did not file an in rem validation action, PAL could challenge the validity of the LAFCO decision under section 56103.  However, PAL failed to publish and file proof of summons within 60 days of filing its complaint as required by the Code of Civil Procedure section 863.  The court agreed with the Stanislaus County LAFCO and dismissed the case because PAL failed to comply with the requirements of a reverse validation action.

PAL acknowledged that it did not comply with the notice requirements, but argued that it should be excused for showing good cause for noncompliance. The court rejected the good cause argument noting that PAL’s legal research was inadequate as it relied on only one legal treatise. Had PAL done more thorough research, it would have found several cases and other prominent legal treatises that specifically state the need to comply with validation statutes when challenging the validity of an annexation.

The court also found that the reverse validation procedures applied to PAL’s CEQA claim because PAL’s CEQA claim was a challenge to the validity of the Stanislaus County LAFCO’s decision. The court cited Hills for Everyone v. Local Agency Formation Commission (1980) 105 Cal.App.3d 461 as precedent for requiring CEQA claims to comply with the requirements for reverse validation actions provided in Government Code section 56103.

In dismissing both the CEQA and Reorganization Act claims, the court noted that it was not deciding whether PAL had stated a cause of action under CEQA and assuming that PAL had stated a CEQA cause of action, it was not deciding the merits of that claim.


When an annexation or sphere of influence action by a Local Agency Formation Commission is challenged under the Reorganization Act and CEQA, the challenge must be brought as a reverse agency action, which includes compliance with all of the notice requirements of the Code of Civil Procedure section 863. If not, the case will be dismissed before reaching the merits.

Supreme Court Provides Broad Interpretation Of Exactions Under Protest Provision Of Mitigation Fee Act

Tuesday, February 18th, 2014

In Sterling Park, L.P. v. City of Palo Alto, a developer agreed to provide below-market rate units and pay an in-lieu fee as a condition of the City’s approval of its condominium development. Over a year later, the City asked the developer to convey the below-market rate units to the City per the agreement. The developer responded with a notice of protest, contending the below-market rate requirement was invalid. The developer subsequently filed suit under section 66020 of the California Government Code (“§ 66020”), requesting relief from “the compelled conveyance of houses under restrictive terms.” The trial court granted City’s motion for summary judgment, finding that § 66020 did not govern the suit and that the suit was untimely under the governing statute—§ 66499.37. The court of appeal later affirmed the lower court’s dismissal.

The California Supreme Court reversed. The only question it addressed was which of the two statutes governed this action. Section 66499.37 (part of the Subdivision Map) provides that any action to attack the conditions attached to a subdivision approval must be commenced within 90 days after the date of the decision. Section 66020 (part of the Mitigation Fee Act) allows a party to protest “the imposition of any fees, dedications, reservations, or other exactions imposed on a development project…by a local agency” by complying with specified procedural requirements at the time of approval or within 90 days of the imposition of fees. Significantly, the limitations period does not begin to run until the local agency provides the applicant with a written notice of his right to protest within a 90-day period. A party can then file an action to set aside the challenged fees or exactions within 180 days of the delivery of the notice.

Under § 66499.37, plaintiff’s suit would be barred since the 90-day limitations period would have run. However, under § 66020, plaintiff’s suit would not be barred on limitations grounds because plaintiff alleged City had never sent him the required written notice that triggers the running of the limitations period. Therefore, determining which statute controlled plaintiff’s action was vitally important in this case.

The Court considered the legislative purpose behind § 66020 to ensure that developers could pay fees or agree to other exactions in the present and proceed with their projects, while retaining the ability to challenge those fees or exactions after project approval. Without this option, developers would have to halt all progress on their development in order to challenge these exactions, which might jeopardize their ability to complete the project in a timely fashion. The Court found that those circumstances applied to the developer in this case; by agreeing to the below-market rate housing requirement, the developer was able to proceed with construction of the condominiums, yet still challenge the legality of the City-imposed exaction.

DC Circuit Applies FOIA Exemption to High-Speed Rail Communications

Tuesday, February 18th, 2014

The United States District Court for the District of Columbia has protected discussions between California’s High Speed Rail Authority (CHSRA) and the Federal Rail Authority (FRA) from a Freedom of Information Act (FOIA) request filed by Judicial Watch. Judicial Watch v. U.S. Dept. of Trans. (D.D.C. 2013) 950 F. Supp.2d 213. The protected discussions concerned the development of environmental impact reports for different proposed California High Speed Rail (CHSR) routes and ensuring CHSR properly complied with state and federal environmental laws including CEQA and NEPA.  CHSRA and FRA are “co-lead” agencies on the CHSR project jointly developing the required environmental impact reports. FRA is responsible for ensuring the project complies with NEPA and CHSRA is responsible for compliance with CEQA.

The court granted summary judgment for the Department of the Interior finding that certain records reflecting discussions between CHSRA and FRA were properly withheld from disclosure under FOIA’s Exemption 5. Exemption 5 protects from disclosure “inter-agency and intra-agency” documents relating to the “deliberative process” by which the government makes policy decisions. Dept. of Interior v. Klamath Water Users (2001) 532 U.S. 1, 8. The exemption exists to allow government officials to speak candidly in formulating policy, to prevent the untimely disclosure of proposals before adoption, and to avoid the confusion that would result from disclosing interim rationales that did not form a basis for the agency’s eventual action.

While a strict reading of “intra-agency” would only include employees within the same agency, the D.C. Circuit had expanded the term to include communications with outside consultants, Senators, and former Presidents, so long as the communication aided the agency’s decision-making process. The U.S. Supreme Court in Klamath, supra, set a limit on this expansive view.  Specifically, Klamath  stated that “intra-agency” could not include communications between an agency and non-agency parties with an outside interest in a government benefit adverse to its competitors, even if those communications relate to the agency’s decision-making process.

Here, Judicial Watch contended that CHSRA had an outside interest independent of FRA in seeking large amounts of limited federal funds to support the CHSR and complying with state law requirements that did not overlap with NEPA.

The court rejected these arguments for several reasons. First, even though some interests of CHSRA were distinct from FRA, those interests were too remote from the actual communications at issue in the case. Specifically, the communications did not advocate for funding for California, rather they related to helping FRA satisfy its obligations under NEPA. Second, the benefits that CHSRA sought were not at the expense of other parties. There was not a finite amount of funds available with California vying for a benefit at the expense of other states. Finally, the court noted that the relationship between CHSRA and FRA was created by statute. As a result, the communication between the agency and non-agency deserved greater support.

Because Judicial Watch could not show that CHSRA sought a benefit outside of complying with environmental laws, the court granted summary judgment for the government agencies and protected the discussions between CHSRA and FRA.


This decision affirms that the D.C. Circuit will continue to apply a broad interpretation of the “intra-agency” component of FOIA Exemption 5 even after the Supreme Court’s decision in Klamath, so long as the communications do not relate to an outside party’s interest in obtaining a government benefit at the expense of others

Court Holds EIR’s Inadequacy Is Rooted In Its Failure to set Forth A Significance Threshold For Impacts To Old Growth Redwoods And To Properly Disclose Related Impacts And Mitigation Measures

Tuesday, February 18th, 2014

In Lotus v. Department of Transportation, 2014 Cal. App. LEXIS 97, the California Court of Appeal, First Appellate District, reversed the trial court’s denial of appellants’ petition for writ of mandate challenging the adequacy of the EIR for a highway realignment project.

The California Department of Transportation (Caltrans) sought to realign and widen portions of Highway 101 traversing Richardson Grove State Park in Humboldt County. The existing highway could not accommodate industry standard-sized trucks. Caltrans noted that this lack of access affected the competitiveness and profitability of Humboldt County businesses. The primary environmental impact from the highway realignment identified in the EIR was the removal of redwoods and the excavation and filling within in the root zone of old growth redwoods.

In the published portion of its decision, the court held the EIR was inadequate in that it failed to properly evaluate the significance of impacts on old growth redwoods from the excavation and filling operations within the trees’ root systems. The fundamental problem with the EIR was that it failed to include a clearly defined significance threshold for these potential impacts.  Instead, the EIR merely identified a series of special construction techniques that were treated as part of the project (rather than mitigation) and the EIR concluded that in consideration of the special construction techniques all potential impacts, including impacts to the trees’ root system, would be less than significant.  The court was very critical of this approach.  Because Caltrans had not identified a standard for measuring the significance of impacts and had not explained what impacts would occur in the absence of mitigation measures, it was impossible to know which of the mitigation measures identified were necessary to avoid significant impacts or whether alternative measures might be more effective.

The court observed that “[b]y compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregards the requirements of CEQA.” Caltrans, for example, appears not to have adopted a formal monitoring or reporting program as required by CEQA because Caltrans treated the proposed special construction techniques as part of the project.  The trial court questioned whether this was proper but concluded the record demonstrated that Caltrans had a method to track the project specific environmental commitments and that the special construction techniques would also be incorporated into contract plans and specifications. While the trial court found this to be sufficient, the First District Court of Appeal disagreed finding that notwithstanding these commitments Caltrans failure to fully comply with CEQA could not be considered harmless.  Therefore, the court reversed the trial court’s decision and remanded.

In three unpublished portions of the opinion, the court rejected appellants’ other challenges to the EIR’s sufficiency. First, the court found the EIR provided an adequate description of the project’s environmental setting. The EIR described the redwoods as the predominant plant community in the park and included tables setting forth the size and type of individual trees, as well as a map depicting the location of these trees and the proposed realignment of the highway. Second, the court determined the project’s scope was adequately described. The technical information sought by appellants relating to the software used in the project’s design would have constituted “extensive detail beyond that needed for evaluation and review of the environmental impact,” contrary to the directive of CEQA Guideline 15124. Lastly, the court held that a cumulative traffic impacts analysis was unnecessary here. Various studies supported Caltrans’ conclusion that the project would not divert traffic from I-5 and would not lead to a significant increase in commercial truck traffic in Humboldt County, even factoring in other regional highway realignment projects.


Significance thresholds must be clearly defined for all potential impacts analyzed in an EIR.  It is not uncommon for project features to play a role in mitigating potential impacts of a project.  However, where project features resemble mitigation measures it would be prudent to treat them as such including listing them in an adopted monitoring or reporting program as required by CEQA.


Tuesday, February 18th, 2014

Following the overwhelming majority of courts that have upheld local laws regulating plastic bags, California’s First District Court of Appeal unanimously upheld San Francisco’s ban on plastic bags in Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4th 863.  The court found that the city complied with CEQA in enacting the law, and that the plastic bag ban was not preempted by California’s food safety laws.

In 2012, San Francisco enacted an ordinance imposing a 10-cent charge on single-use bags in all retail stores. In enacting the ordinance, the city relied on a categorical exemption from further CEQA review for regulatory actions to protect natural resources and the environment.

The Save the Plastic Bag Coalition filed suit, contending that the categorical exemptions did not apply, and even if they did, the unusual circumstances exception compelled the city to complete an EIR. The Coalition further contended that California’s Retail Food Code occupied the entire field of food safety laws including single-use plastic bags.


Relying on a footnote in the California Supreme Court case Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, the Coalition claimed that the categorical exemptions could not apply to plastic bag bans in cities as large as San Francisco. The court rejected the argument, stating that the Coalition’s argument “stretched the bounds of reasonable advocacy.”  The footnote merely mentioned the hypothetical argument of the plaintiff in that case, and was in no way binding on all larger cities to require a comprehensive environmental review.

Additionally, the Coalition claimed that the categorical exemptions only applied to regulatory bodies, and not legislative bodies such as the city of San Francisco. The court rejected this argument, citing Save the Plastic Bag Coalition v. County of Marin (2013) Cal.App.4th 209, which resolved a similar argument by holding that legislative and regulatory actions are not always mutually exclusive.

Even if the categorical exemption applied, the Coalition claimed the exception for unusual circumstances that create a reasonable possibility an activity will have a significant effect on the environment applied. The court explicitly declined to determine whether the “substantial evidence” or “fair argument” standard of review applies to determine application of the unusual circumstances exception (a question currently being considered by the California Supreme Court). Instead, the court applied the lower “fair argument” standard and found that the Coalition did not even pass that test.

The Coalition first argued that millions of people travel and commute into San Francisco each day, only a small fraction of those people will carry a reusable bag, and the ones that do will underuse the bag and create greater harm to the environment by throwing it away prematurely.  The court rejected this possibility, stating that the Coalition’s unsupported conjecture about certain people not carrying bags and throwing away bags prematurely did not meet the Coalition’s burden.

The Coalition also relied on studies to argue that, over the life cycle of a bag, the plastic bag is actually better for the environment than paper or reusable cloth bags.  The court found that the studies did not constitute substantial evidence of a fair argument that the ordinance would have a negative impact on the environment. The court found that the global studies cited by the Coalition were too indirect and uncertain; the studies assumed that the ordinance would result in harm from an increase in the use of certain types of bags, and failed to examine with precision an ordinance adopted to address specific environmental goals in a specific locality.


The court also rejected the Coalition’s argument that the Retail Food Code preempted the city from adopting the plastic bag ordinance. The Retail Food Code states that only the Legislature can adopt health and sanitation standards for retail food facilities. The court noted that the plastic bag ordinance was not a food safety ordinance, and that the Legislature did not intend to preempt local regulation of every subject mentioned in the Retail Food Code. Although the Retail Food Code addresses single-use articles including bags, it does not occupy the field on environmental standards for bags.


Courts continue to uphold the validity of plastic bag bans in municipalities of all sizes in California. The court resolved the question left open by the California Supreme Court in Save the Plastic Bag Coalition v. City of Manhattan Beach regarding the significance under CEQA of a large city enacting a plastic bag ban, holding that the categorical exemptions for regulatory actions to protect natural resources and the environment apply regardless of the city’s size.