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CEQA Updates

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

Posts from July, 2014


Appellate Court Finds No CEQA or Brown Act Violations For Demolition of Buildings by School District

Wednesday, July 23rd, 2014

In an unpublished decision in Civilian Conservation Corps Camp Interest Group v. Valley Center Pauma Unified School District, (2014) Cal. App. Unpub. LEXIS 4760, the Court of Appeal for the Fourth Appellate District, Division One, upheld the trial court’s denial of a writ of mandate seeking to compel Valley Center Pauma Unified School District (the District) to prepare an environmental impact report for the demolition of buildings adjacent to an elementary school.  The court also upheld the trial court’s dismissal of alleged Brown Act violations for purportedly deciding to approve the demolition outside of a public meeting, failing to make certain documents available to the public, and failing to provide adequate notice of a public meeting.

The case stems from the 2011 acquisition by the District of a small parcel of land adjacent to an elementary school in the District.  There were seven Depression-era buildings on the parcel that the District determined were hazardous due to structural issues, lead paint, and asbestos.   Over the objection of Civilian Conservation Corps Camp Interest Group (Petitioner) at a public meeting, the District approved demolition of the buildings and within a few days of approval the buildings were removed except for the foundations and footings.

The court first rejected Petitioner’s claim that the demolition of the buildings violated the California Environmental Quality Act (CEQA).  In Petitioner’s complaint, Petitioner had asserted the project requiring CEQA review was all approvals and work related to the demolition of the buildings.  However, the demolition of the buildings was already complete.  Citing Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, the court held that Petitioner’s CEQA claim was moot because the court was “unable to provide Petitioner with effectual relief and any order would have no practical impact.”

Petitioner argued that the demolition project was not complete because the buildings’ foundations were still in place and further, the demolition should be included in the District’s larger project to build a sports field on the parcel.  However, the court rejected this argument as premature.  The Petitioner had alleged only that the work related to demolition violated CEQA and not the planned sports field project that Petitioner now sought to add.  Also, the foundations were not part of the hazard on the parcel, so the project that Petitioner alleged in the complaint was complete and the alleged CEQA violation was moot.

Next, the court considered the alleged Brown Act violations and held that there were insufficient facts alleged to support the claim.  The Brown Act allows the public to seek an injunction or declaratory relief to stop ongoing violations and prevent threatened future violations.  Plaintiffs must support the alleged ongoing violations or threatened future violations with “competent allegations of fact” demonstrating a pattern or ongoing practice of Brown Act violations.  In this case, Petitioner’s allegations of improper deliberations  by members of the District’s Board of Trustees and a failure to provide certain documents to the public were made purely  on “information and belief” with no supporting facts.  While the Petitioner did sufficiently support the allegation of inadequate notice of the demolition on the Board’s agenda, there was no allegation of a historical pattern of doing so.  The Brown Act was established to stop ongoing violations and prevent future violation; it is not a remedy for past actions.  As a result, the court held that Petitioner had failed to allege adequate facts and did not state a sufficient claim for declaratory or injunctive relief under the Brown Act.

Key Points

CEQA claims in a petition can be moot if there is no practical relief that can be granted.  Brown Act claims must be supported by facts showing a pattern or practice of ongoing violations.

Renewal of Interim Water Contracts Exempt from CEQA Review

Monday, July 21st, 2014

In North Coast Rivers Alliance v. Westlands Water District, (2014) Cal. App. LEXIS 590, the Court of Appeal for the Fifth District upheld the trial court’s denial of a petition for a writ of mandate challenging the renewal of interim water contracts between the Bureau of Reclamation (the Bureau) and Westlands Water District along with several other related water distribution districts (Water Districts).   The court held that the Water Districts properly exempted the interim contract renewals from California Environmental Quality Act (CEQA) review as 1) pre-CEQA ongoing projects and 2) continued operation of an existing facility.

The interim water contracts were extensions of a 40-year agreement signed in 1963 between the Bureau and Westlands Water District, which required the Bureau to deliver water to Westlands through Central Valley Project (CVP) facilities.  In 1992, the Central Valley Project Improvement Act (CVPIA) provided for extension of the water service contracts in up to 25-year increments. After two previous series of interim contracts expired, the Water Districts approved another series of interim contracts in 2012 and North Coast Rivers Alliance along with other community groups (Petitioners) challenged the interim contracts as improperly exempted from CEQA review.

The court first agreed with Petitioners that the statutory exemption for rate-setting did not apply.  According to the court, the rate-setting exemption contemplates a situation in which an agency provides a service to the public and the agency decides it must increase a rate or begin to impose a rate.  The rate-setting exemption did not apply in this case though because the service was being provided between government entities (the Bureau and Water Districts) rather than between an agency and the public.

Next, the court held that the statutory exemption for pre-CEQA ongoing projects applied to the 2012 interim contracts. The court considered whether the interim contracts were a “normal, intrinsic part of the ongoing operation of a project approved prior to CEQA, rather than an expansion or modification.” In examining the nature and scope of the pre-CEQA activity, the court found that the interim contracts renewed water delivery in the same quantity, using the same facilities that had been contracted for prior to 1970 when CEQA was enacted.  Even though the new water distribution districts were established more recently, the renewal of these contracts did not expand the “underlying activity” at issue because they did not compel a greater allocation than the pre-CEQA contracts.  The contracts only offered flexibility in years when normal water allocation was reduced.  As a result, the court held that substantial evidence supported the Water Districts’ conclusion that the water contracted for in the interim contracts could be traced back to commitments made before the enactment of CEQA.

The court also held that the interim contracts satisfied the class 1 categorical exemption for continued operation of an existing facility because the interim contracts continued without any change to the arrangement between the Bureau and Water Districts. The court found that the unusual circumstances exception to a categorical exemption did not apply because the nature of renewing a contract with the same terms implies that whatever environmental impacts existed prior to the renewal would continue unchanged. Similarly, the court held that the cumulative impact exception did not apply because each interim contract is just a continuance of the previous environmental impacts.

KEY POINT

The court held that the pre-CEQA statutory exemption for ongoing projects applied in this case even though the 1963 contract between the Bureau and Westlands Water District had expired.  The court reasoned that the interim renewal contracts continuing the terms of the original agreement did not allocate any more water to the water districts than had already been contracted for.  As a result, the size and scope of the pre-CEQA project and the nature of the “underlying activity” are critical in applying the statutory exemption for pre-CEQA projects.

Addendum Upheld: Amendments to San Jose Airport Master Plan Cleared For Landing

Monday, July 21st, 2014

In Citizens Against Airport Pollution v. City of San Jose (2014) Cal. App. LEXIS 588, the Court of Appeal for the Sixth District upheld the trial court’s denial of a writ of mandate challenging the City of San Jose’s (the City) approval of an addendum to an EIR analyzing the environmental impacts of amendments to San Jose Airport’s Master Plan (Airport Master Plan).

The City began updating the Airport Master Plan in 1988 to accommodate the projected growth at the airport.  The City approved the final environmental impact report (EIR) for the update in 1997.  From 1997 to 2010 eight addenda to the Airport Master Plan EIR were approved, with the eighth addendum considering the impacts changes to the size and location of planned air cargo facilities and modifications to the taxiing area of the runway.

Citizens Against Airport Pollution (CAAP) contended that the City violated the California Environmental Quality Act (CEQA) in approving the eighth addendum because the amendments to the Airport Master Plan were so significant that they constituted a new project for purposes of CEQA.  CAAP further contended that the 1997 EIR was a program EIR, as opposed to a narrower project EIR, and that a new EIR should be completed.  The court declined to determine whether the 1997 EIR was a project-level EIR or a broader program EIR, but held that there was substantial evidence to support the City’s finding that the amendments to the Airport Master Plan would not have a significant effect on noise, air quality, or the burrowing owl habitat as CAAP contended.

Relying on an analysis in the addendum that showed a decrease in daily aircraft operations and improved airplane technology resulting in quieter aircraft, the court found that there was substantial evidence that the amendments to the Airport Master Plan would not result in significant noise impacts.

Similarly, the projected decrease in aircraft operations resulted in no significant impact to air quality.  CAAP did not dispute the projected decrease in aircraft operations, thus the court found that there was substantial evidence to support the City’s findings that the impact on air quality was sufficiently analyzed in the 1997 EIR.

The court also found that there was substantial evidence to support the City’s findings that the amendments to the Airport Master Plan would not have a significant impact on the burrowing owls nesting in the unpaved portions of the airfield.  The 1997 EIR had concluded that implementation of the Airport Master Plan would impact the burrowing owl, which is a species of concern in California.  However, the EIR also included a Burrowing Owl Management Plan that established protected sections of the airfield and required biologists to monitor the burrowing owls in the area among other measures.  The eighth addendum included mitigation measures that were consistent with the Burrow Owl Management Plan and even provided for the construction of one-way doors to ensure that no burrowing owls would be trapped in their burrows when construction began.  As a result, the court held that the impact on the burrowing owl population at the airport was not substantially different than the impact considered in the 1997 EIR.

The court also rejected CAAP’s argument that a supplemental EIR was required to analyze greenhouse gas emissions.  A 2010 CEQA amendment requires lead agencies to make a “good-faith effort” to estimate the amount of greenhouse gas emissions from a project.  (CEQA Guidelines section 15064.4.)  However, CEQA does not require a supplemental EIR unless new information becomes available that was not known when the original EIR was completed.  The court held that the potential impact of greenhouse gas emissions was widely known in 1997 when the EIR was completed and in 2003 when a supplemental EIR was completed.  Therefore, the potential impact of greenhouse gases did not constitute new information and a supplemental EIR was not required.

KEY POINT

Once an EIR is completed for a project, a court applies the substantial evidence standard of review to determining whether project changes require a supplemental EIR.  If the lead agency can show there is substantial evidence to support a finding that there will be no significant impacts, the court will permit an addendum to the original EIR instead of a supplemental EIR.

Court Grounds Lawsuits Challenging Wind Farm’s Impacts on Airport in Kern County

Monday, July 21st, 2014

In Citizens Opposing a Dangerous Environment v. County of Kern, 2014 Cal. App. LEXIS 679, the Court of Appeal for the Fifth District upheld the trial court’s denial of a writ of mandate challenging Kern County’s (the County) approval a wind farm near a private airport east of Tehachapi.

The proposed wind farm would include 116 wind turbine generators (WTGs) and be 1.2 miles away from the Kelso Valley Airport (the Airport).  The airport is often used to land gliders, which lack an engine and require a greater distance than an airplane to properly descend for landing.  Citizens Opposing A Dangerous Environment (CODE) (whose membership included the owner of the Airport) claimed that construction of the 400-foot tall WTGs in such close proximity to the Airport, left glider pilots with only one safe landing route and created a significant risk of collision.

The court first rejected CODE’s argument that the County violated the California Environmental Quality Act (CEQA) by approving mitigation measures in the environmental impact report (EIR) that were not legally feasible.  The EIR mitigated the impacts on air navigation safety by requiring the developer to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each proposed WTG (Mitigation Measure 4.8-8).  However, CODE contended Mitigation Measure 4.8-8 was inadequate because the FAA had no authority to enforce its determinations.  Noting that the FAA is the only government agency with jurisdiction over air safety, the court found that even though the FAA could not directly stop construction of the WTGs, the County only approved building permits for the WTGs if the developer obtained the proper FAA determination.  As a result, Mitigation Measure 4.8-8 was feasible because the County had the necessary authority and means to stop construction and prevent any of the adverse impacts on air navigation safety.

CODE also contended that the County violated CEQA because it did not respond to a comment submitted after the public comment period had ended.  Citing Gray v. County of Madera (2008) 167 Cal.App.4th 1110, the court held that the County “may, but is not required, to respond to late comments.” Because the County had discretion to respond to the late comment, the court found no CEQA violation.

The court also rejected CODE’s argument that Mitigation Measure 4.8-8 would not be effective.  The court emphasized that the burden was on CODE to show that there was no substantial evidence to support the County’s approval of Mitigation Measure 4.8-8.  CODE argued that the FAA investigators did not receive all of the information regarding the Airport, improperly failed to contact the Airport owner, and only conducted a cursory investigation before making its determination. While declining to question the judgment of the County, the court noted that the FAA had received the EIR during its investigation and held that there was substantial evidence to support the County’s approval of Mitigation Measure 4.8-8.

Lastly, the court held that the County was not required to adopt CODE’s proposed mitigation measures or the alternative in the EIR that lessened the impacts on aviation safety by reducing the number of WTGs on the wind farm.  Mitigation Measure 4.8-8 significantly reduced the environmental impacts on air navigation safety and the County was not required to do more even if other, arguably more effective, alternatives were available.

Appellate Court Upholds EIR for Treasure Island Development in San Francisco Bay

Tuesday, July 15th, 2014

In Citizens for a Sustainable Treasure Island v. City and County of San Francisco, (2014) Cal. App. LEXIS 595, the Court of Appeal for the First District affirmed the trial court’s denial of a petition for a writ of mandate challenging the City and County of San Francisco’s (the City) approval of an environmental impact report (EIR) for a major development on Treasure Island and Yerba Buena Island in San Francisco Bay (the Project).

The Project includes up to 8,000 residential units, 500 hotel rooms, and other developments on the former Naval Station Treasure Island.  The City’s board of supervisors unanimously approved the Project in 2011 after more than a decade of studies and community input.

Citizens for a Sustainable Treasure Island (CSTI) opposed the Project arguing that the EIR was improperly prepared as a project-level EIR and did not contain sufficient detail. However, the court held that regardless of the EIR label as a project-level or program EIR, CEQA would require supplemental review over the 15- to 20-year buildout for any aspects of the Project where the environmental impacts were not fully examined in the original EIR.  (Pub. Resources Code section 21166.)  As the court stated, the focus for determining the adequacy of an EIR is whether the decision makers have sufficient information to analyze the environmental impacts given the nature of the project, not the label of the EIR.

The court also rejected CSTI’s argument that the EIR was inadequate because the project description was too abstract and only included conceptual descriptions of building and street layouts subject to change.  The court emphasized that the EIR and planning documents did contain concrete information about the main features of the Project, which remained consistent throughout the EIR process, and the EIR “cannot be faulted for not providing detail that, due to the nature of the Project, simply does not now exist.”

Next, the court held that the EIR’s discussion about the presence and remediation of hazardous substances on the former Navy base was sufficient.  CSTI contended that the EIR was inadequate because it did not specify precisely where and to what extent remediation would be required after development began.  Citing the California Supreme Court in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the court stressed that a CEQA analysis may be postponed when project details are not “reasonably foreseeable” at the time that the lead agency approves the project.  In this case, the Navy was in the process of cleaning up the contaminated portions of the project site, and intended to complete the cleanup prior to transferring the land for development.  Thus, the developer could not be expected to know the precise role that it would play in the investigation and clean up of specific portions of the Project.  The EIR identified all of the regulatory standards that would apply should additional remediation be necessary, and as a result, the discussion of hazardous substances on the project site was sufficient.

CSTI also claimed that the EIR had to be recirculated because of new information regarding the Project’s potential interference with the U.S. Coast Guard’s regulation of ship traffic in the San Francisco Bay.  A meeting occurred after the public comment period on the Draft EIR that resulted in several potential solutions preventing any impact on Coast Guard operations.  The court stated that new information is only significant and requires recirculation of the EIR if the adding of the new information deprives the public of a meaningful opportunity to comment on substantial adverse environmental impacts.  In this case though, multiple potential solutions prevented any impact at all and therefore, there was no reason to recirculate the EIR.  The court also highlighted CSTI’s failure to set forth the evidence supporting the City’s findings, and then to show why the evidence is lacking.

The court lastly addressed CSTI’s contentions that the EIR’s discussions of historical resource preservation and consistency with tideland trusts were insufficient.  In rejecting both arguments, the court emphasized that the EIR was adequate even though the future uses for certain buildings and tidal areas were not yet fully defined, and therefore the EIR could not fully articulate how specific project components would ensure preservation of historical resources and compliance with tidal trust laws.  The EIR stated the regulations and processes that the Project would comply with, and the court held that was sufficient for the decision makers to analyze the environmental impacts of the Project.

KEY POINT

In several different contexts, the Court reaffirmed that “CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.”  The Court also reaffirmed that Petitioners bear the burden of describing the lead agency’s supporting evidence and showing how it is lacking.

Trial Court Upholds Approval of Plan Bay Area

Thursday, July 3rd, 2014

On July 2, 2014, Judge Evelio Grillo of the Alameda County Superior Court issued a 30-page decision in Bay Area Citizens v. Assn. of Bay Area Governments, et al (Case No. RG13690631), upholding approval of Plan Bay Area by the Association of Bay Area Governments and Metropolitan Transportation Commission.

Plan Bay Area is the regional transportation plan and sustainable communities strategy for the Bay Area adopted by MTC and ABAG pursuant to SB 375, which establishes a process for reducing greenhouse gas emissions by reducing vehicle miles traveled.  Bay Area Citizens, represented by Pacific Legal Foundation, filed a petition in August, 2013 challenging certification of the environmental impact report prepared for Plan Bay Area under the requirements of the California Environmental Quality Act.

Bay Area Citizens claimed that the Agencies improperly ignored statewide efforts to reduce greenhouse gas emissions through improved fuel technologies and increased vehicle efficiency for cars and light duty trucks in calculating the greenhouse gas emission reductions to be achieved by Plan Bay Area. The court found, however, that the plain language of SB 375 required the Agencies to develop the Plan independent of the reductions attributable to other statewide measures.  Given the emphasis in the statute on regional planning, the court stated that it would be inconsistent to include benefits of statewide initiatives in Plan Bay Area.

Having found that the Agencies properly interpreted the requirements of SB 375, the court rejected Bay Area Citizens’ related arguments challenging the Plan objectives, as well as the analysis of alternatives.  With respect to the Bay Area Citizens’ challenge to the assessment of the No Project Alternative, the court found that, while CEQA “normally” requires use of conditions existing at the time the notice of preparation is filed, this was not a normal situation. SB 375 required the Agencies to develop a plan to achieve the greenhouse gas reduction targets set by the California Air Resources Board, which had used a baseline of 2005. As a result, the court agreed with the MTC’s use of a baseline of 2005 for its analysis of greenhouse gas emissions.

The court also rejected Bay Area Citizens’ argument that Plan Bay Area was flawed because it assumed emission levels would continue to rise in the Bay Area while nationwide data showed emission rates would level off. The court stated this argument improperly assumed the Bay Area would follow the national trend and ignored substantial evidence that emissions would continue to rise in the Bay Area.

Finally, the court found the Agencies had adequately considered an alternative proposed by Bay Area Citizens during the administrative process. The draft EIR included analysis of five alternatives, including alternatives from other advocacy groups that incorporated many of the same elements as the Bay Area Citizens’ alternative. Furthermore, the proposed alternative assumed it could meet the greenhouse gas emission reduction targets in conjunction with other statewide initiatives, which the court found SB 375 did not allow. As CEQA only requires an analysis of feasible alternatives, the Bay Area Citizens’ proposed alternative was properly excluded from the EIR’s list of alternatives.

Appellate Court Upholds Lot Merger in Newport Beach Neighborhood

Tuesday, July 1st, 2014

In an unpublished decision, Lookout Point Alliance v. City of Newport Beach, (2014) Cal. App. Unpub. LEXIS 4214, the Court of Appeal for the Fourth District upheld the trial court’s denial of a petition for a writ of mandamus challenging the City of Newport Beach’s approval of a merger of two residential lots.

In July 2011, John and Julie Guida applied to merge two lots in the Corona Del Mar community of Newport Beach. The Guidas sought to demolish the existing two homes on the lots and construct a single new home on the merged lot. The City Council approved the lot merger and found that the merger qualified for three separate CEQA exemptions. Petitioner Lookout Point Alliance opposed the merger.

Petitioner first contended that the merger violated the density requirements of the City’s Coastal Land Use Plan (CLUP), which required a population density for the community between 6.0 and 9.9 dwelling units per acre. Petitioner argued that the CLUP therefore limited the maximum lot size to 7,260 square feet and because the proposed lot merger would result in a 13,678 square-foot lot, approval of the merger violated the CLUP. The court, however, agreed with the City’s interpretation that density is not determined on a lot-by-lot basis, but rather applied over the entire area. The court explained that it would be illogical if the density requirements were enforced on a lot-by-lot basis because doing so would result in maximum lot sizes in some neighborhoods that violated the Newport Beach’s zoning ordinance.

The court next addressed the City’s finding that the lot merger satisfied the Class 5 exemption for minor alterations in land use, Class 15 exemption for division of property in urban areas zoned for residential use, and Class 3 exemption for construction of limited numbers of small structures, including single-family residences in a residential zone. Petitioner argued the Class 5 exemption was inapplicable because the merger significantly changed the population density.  The court explained that the density was within permissible limits, and even if the Class 5 exemption did not apply, the other exemptions were unchallenged and could be relied upon.

Notwithstanding the applicability of the categorical exemptions, Petitioner claimed that the historical resources exception applied and that CEQA review was required to address potential impacts to two historic structures on the lots. While declining to address the appropriate standard of review for exceptions to CEQA exemptions, the court found that Petitioner could not even make a fair argument based on substantial evidence that the exception applied. The court found the issue was moot because the houses had already been demolished under a valid demolition permit. Further, the only support for Petitioner’s argument was a statement by its attorney that the structures were “Eichler style” and a statement by a hired archeologist that one of the structures “was likely the work of a quality designer or architect.” The court found these statements insufficient to support even a fair argument that the historical resources exception applied.

Finally, the court rejected Petitioner’s arguments that the lot merger violated the City’s lot merger ordinance and the California Coastal Act. The court stated that the lot merger ordinance claim was “completely unsupported by any citation to legal authorities or any cogent analysis” and that the Coastal Act claim was “devoid of any legal analysis or citation to authority.” As a result, the court found the City had properly allowed the merger of the two lots and upheld the trial court’s denial of the petition.