Thomas Law Blog

CEQA Updates

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

Posts from March, 2015

Court Substantially Reduces Attorney Fees Following Limited Success on CEQA Challenge to Islamic Center in San Bernardino County

Tuesday, March 24th, 2015

In an unpublished opinion in Save Our Uniquely Rural Community Environment (SOURCE) v. County of San Bernardino, 2015 Cal. App. Unpub. LEXIS 1976, the Fourth District Court of Appeal affirmed the trial court decision and reduced petitioner’s attorney fees by 80 percent in a challenge under the California Environmental Quality Act (CEQA) to a proposed Islamic community center and mosque (project). Petitioner sought $231,098 in attorney fees, but the trial court awarded $19,176.

A key issue on appeal was petitioner’s degree of success at trial and whether the final judgment merited recovery of full attorney fees. Petitioner initially sought to vacate the Mitigated Negative Declaration (MND) and all related project approvals and enjoin further work on the project until an environmental impact report was completed. At trial, petitioner’s narrow relief was limited to setting aside the MND for the sole purpose of analyzing the project’s impact on wastewater treatment.

The court held petitioner failed to satisfy its burden of proving the trial court abused its discretion. Although compelling an analysis of waste water treatment was “not insignificant,” it was still reasonable for the trial to reduce the awarded fees because of the rejection of the majority of petitioner’s other contentions. As the court stated, “That a court might have exercised its discretion in the manner [petitioner] asserts, is not . . . sufficient to demonstrate that it was an abuse of discretion not to award the fees [petitioner] sought.”

The court also upheld the trial court’s reduction in the number of hours and hourly rates charged by petitioner’s attorney. The Los Angeles-based law firm for petitioner improperly billed at partner rates for clerical tasks and failed to provide evidence that experienced CEQA attorneys were not available in the San Bernardino market.

Finally, the court rejected petitioner’s argument that the trial court did not adequately explain how it arrived at the amount awarded. The trial court expressed its legitimate reasons for reducing the fee award, even if it “failed to make its arithmetic transparent.” Therefore, the trial court’s calculation was not an abuse of discretion

Appellate Court Finds No Cause of Action in Challenge to Private Street Modification in Benedict Canyon Neighborhood

Tuesday, March 24th, 2015

In an unpublished decision in Concerned Residents of Benedict Canyon v. City of L.A., 2015 Cal. App. Unpub. LEXIS 989, the California Second District Court of Appeal affirmed the trial court’s decision and held no actual case or controversy existed after the Los Angeles Fire Department (LAFD) recommended that the Los Angeles Planning Department determine a developer met a secondary access requirement for a private road and the Planning Department ignored the recommendation.

In the late 1990s, the owner of three parcels on the private Tower Lane sought to comply with Los Angeles (City) regulations requiring all lots front an approved street for at least 20 feet. The  owner adjusted the boundaries of the parcels accordingly and in 2000 the Planning Department approved the modification pending compliance with several conditions. According to the 2000 conditional approval, if the conditions were not satisfied in three years, the conditional approval would become void. However, in 2003 the City issued a Certificate of Compliance even though not all of the conditions were satisfied.

One of the conditions required secondary access to Tower Lane. After purchasing the three parcels in 2009, the developer proposed a staircase that would connect Tower Lane to the property below instead of developing a secondary access road. In 2012, LAFD recommended the Planning Department clear the condition. However, the Planning Department declined to follow the recommendation and informed the developer that the City would not issue any building permits until the condition was properly satisfied.

Petitioners challenged the LAFD recommendation alleging LAFD violated the City’s Fire Code and the California Environmental Quality Act. The court rejected the argument and held no actual controversy existed. The court explained there was no relief to grant because the Planning Department had already rejected the LAFD recommendation and put the project on hold until the developer satisfied the condition. Whether or not LAFD properly exercised its discretion to approve the alternative access method was inconsequential because the decision led to no action. As the court stated, “[a] communication between two city departments that results in no action gives rise to no duty and causes no hardship and no controversy.”

The court next rejected petitioner’s argument that the 2000 conditional approval expired in 2003 when the conditions were not satisfied after three years. The court held that to the extent the conditions were not satisfied, they were waived when the City issued a Certificate of Compliance in 2003. The right to challenge the approval did not extend with the subsequent implementation of the conditions.

The court lastly held that whether the project’s plans were sufficient for a complete plan check under the City’s Municipal Code was a matter within the City’s discretion. As a result, the court declined to compel the City to exercise its discretion in a particular way.

California Supreme Court Grants Review of Decision Invalidating SANDAG Regional Transportation Plan

Wednesday, March 18th, 2015

On March 11, 2015, the California Supreme Court unanimously granted the San Diego Association of Governments’ (SANDAG) petition for review of the Fourth District Court of Appeal’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (2014) 180 Cal.Rptr.3d 548. A complete summary of the case is available here:, in which a majority of the three-judge panel held SANDAG was required to consider the consistency of its 2050 Regional Transportation Plan/Sustainable Communities Strategy with a 2005 executive order requiring a statewide reduction of greenhouse gas emissions.

The issue on appeal is limited to the following: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. 5-3-05 to comply with the California Environmental Quality Act?”

Double Dribble: Court Rejects Second CEQA Lawsuit Over the Downtown Sacramento Arena

Thursday, March 5th, 2015

In Saltonstall v. City of Sacramento, 2015 Cal. App. LEXIS 150, the California Third District Court of Appeal affirmed the trial court’s denial of a writ of mandate challenging the environmental impact report (EIR) for an arena in downtown Sacramento (arena project) and held the City of Sacramento (City) did not prematurely commit itself to the downtown arena project before completing the EIR.

The case is the second time the Third District Court of Appeal ruled on the arena project in three months. (Summary of Saltonstall I by the Thomas Law Group available here: In that case, the court held the amendments to the California Environmental Quality Act (CEQA) streamlining the review of the arena project did not violate the constitutional separation of powers.

In the instant case, the court first rejected petitioners’ argument that the City violated CEQA by committing itself to the arena before completing the proper environmental review. The court explained the City’s nonbinding term sheet with the arena project developer expressly provided that all proposed terms of the development were subject to CEQA review. Also, the exercise of eminent domain to secure a site for the arena project did not constitute a commitment to the ultimate project site requiring prior CEQA review. The court reasoned that together CEQA Guidelines section 15004, which permits entering into land acquisition agreements as long as the public agency conditions the future use of the site on CEQA compliance, and Public Resources Code section 21168.6.6, which expressly authorized the City to prosecute the eminent domain action at issue prior to completing CEQA environmental review, demonstrated the City’s eminent domain action did not improperly commit it to the arena project.

Next, the court held the EIR was not deficient for failing to include a remodel of the City’s current basketball arena as a project alternative. The City’s objectives for the arena project included the revitalization of downtown and building a state-of-the-art entertainment venue. Even if remodeling the existing arena might be environmentally superior, the court concluded a remodeled arena would not meet the City’s downtown redevelopment objectives.


The court also rejected petitioners’ other challenges to the arena project. The court held substantial evidence supported the City’s traffic analysis conclusions and the City was under no obligation to conduct further studies simply because petitioners desired a more thorough review. The court also rejected petitioners’ argument that the EIR was deficient for not including an analysis of crowd safety impacts. The court reasoned CEQA was limited to impacts to the physical environment, which did not include crowd safety. Finally, the court stated petitioners forfeited their request to introduce certain material into the administrative record by failing to offer any meaningful analysis on the issue.


The CEQA objectives for a project are critical when courts review the alternatives analysis in an EIR. Because the City established its objectives as requiring revitalization of downtown, other alternatives outside of the downtown area that may have had less of an environmental impact could properly be rejected.

Supreme Court Issues Ruling Clarifying “Unusual Circumstances” Exception

Tuesday, March 3rd, 2015

In Berkeley Hillside Preservation v. City of Berkeley, (March 2, 2015, S201116) __ Cal.4th __ (Berkeley Hillside), in a Majority Opinion joined by five Justices the California Supreme Court provided long awaited guidance on the standards applicable to both lead agencies and courts tasked with interpreting and applying the “unusual circumstances” exception to categorical exemptions set forth in the CEQA Guidelines.

In Berkeley Hillside, a property owner filed an application to build a large home (6,478 sq.ft. house with a 3,394 sq.ft. garage) on a lot with a steep grade in a heavily wooded area in the Berkeley hills (Project).  The City of Berkeley (City) approved the Project and concluded it was exempt from CEQA review based on two separate categorical exemptions: (1) the Class 3 exemption, which exempts small facilities or structures including “[o]ne single-family residence, or a second dwelling unit in a residential zone,” and “up to three single-family residences” “[i]n urbanized areas” (CEQA Guidelines, § 15303, subd. (a)), and (2) the Class 32 exemption, which exemptions in-fill development meeting certain criteria. (CEQA Guidelines, § 15332.)

Berkeley Hillside Preservation et al. (Petitioners) challenged the City’s approval arguing that the City was prohibited from relying on the Class 3 and 32 categorical exemptions.  Petitioners argued the unusual circumstances exception prohibits a lead agency from relying on a categorical exemption where there is a fair argument that a project may have a significant effect on the environment.  Petitioners asserted they established a fair argument that, due to the Project’s unusual size, location, nature and scope, it could cause significant environmental impacts.

At trial, the court found that while the Project may result in a significant environmental impact, the Project did not present any unusual circumstances and, therefore, the exception did not apply.  On appeal, the court reversed the trial court, holding evidence demonstrating a project may have a significant effect on the environment is itself an unusual circumstance that renders use of a categorical exemption improper.

In Berkeley Hillsides, the Majority Opinion rejected the Court of Appeal’s interpretation of the “unusual circumstances” exception and set forth a new approach to interpreting and applying the exception.  Specifically, the court explained:

[T]o establish the unusual circumstances exception, it is not enough for a challenger merely to provide substantial evidence that the project may have a significant effect on the environment, because that is the inquiry CEQA requires absent an exemption. (§ 21151.) Such a showing is inadequate to overcome the Secretary‘s determination that the typical effects of a project within an exempt class are not significant for CEQA purposes. On the other hand, evidence that the project will have a significant effect does tend to prove that some circumstance of the project is unusual. An agency presented with such evidence must determine, based on the entire record before it — including contrary evidence regarding significant environmental effects — whether there is an unusual circumstance that justifies removing the project from the exempt class.


The determination as to whether there are ‘unusual circumstances’ (Guidelines, § 15300.2, subd. (c)) is reviewed under… [the] substantial evidence prong.  However, an agency’s finding as to whether unusual circumstances give rise to ‘a reasonable possibility that the activity will have a significant effect on the environment (Guidelines, § 15300.2, subd. (c)) is reviewed to determine whether the agency, in applying the fair argument standard, ‘proceeded in [the] manner required by law.’

In a Concurring Opinion, Justice Liu joined by Justice Werdegar agreed with the Majority that the Court of Appeal’s decision must be reversed and remanded for further proceedings.  However, the Concurring Opinion rejects the test set forth in the Majority Opinion above.  Instead, the Concurring Opinion concludes, similar to the Court of Appeal, that “[w]hen there is a reasonable possibility that a project otherwise covered by a categorical exemption will have a significant environmental effect, it necessarily follows that the project presents unusual circumstances.”

Notwithstanding the test clearly articulated in the Majority Opinion, the Concurring Opinion concludes that “[e]ven under the cumbersome rules set forth today, it is hard to imagine that any court, upon finding a reasonable possibility of significant effects under the fair argument standard, will ever be compelled to find no unusual circumstances and thereby uphold the applicability of a categorical exemption.”  Because “after today’s decision, as before, courts reviewing agency determinations under section 15300.2(c) will be guided by that guideline‘s basic purpose, which echoes the statutory mandate: to ensure that projects with a reasonable possibility of significant environmental effects are not exempted from CEQA review.”  Therefore, the Concurring Opinion questions whether the new test established in the Majority Opinion will lead to meaningful differences in the outcome of future CEQA litigation.

Notwithstanding the conclusion in the Concurring Opinion, the rules established in the Majority Opinion set forth a clear test for applying the unusual circumstances exception.  The test provides substantially more deference to the lead agency than the test proffered by the Court of Appeal or in the Concurring Opinion.  Specifically, as the Majority Opinion explains:

While evidence of a significant effect may be offered to prove unusual circumstances, circumstances do not become unusual merely because a fair argument can be made that they might have a significant effect. Evidence that a project may have a significant effect is not alone enough to remove it from a class consisting of similar projects that the Secretary has found ‘do not have a significant effect on the environment. [Citations.]  Therefore, an agency must weigh the evidence of environmental effects along with all the other evidence relevant to the unusual circumstances determination, and make a finding of fact.   Judicial review of such determinations is limited to ascertaining whether they are ‘supported by substantial evidence.’‖(§ 21168.5.)…. On the other hand, when unusual circumstances are established, ….. [a]n agency must evaluate potential environmental effects under the fair argument standard, and judicial review is limited to determining whether the agency applied the standard ‘in [the] manner required by law.’‖ (§ 21168.5.)

The Concurring Opinion maintains that even under the Majority’s test, courts should still find projects with a “reasonable possibility of significant environmental effects are not exempted from CEQA review.” This suggests the Concurring Opinion takes the position that it would be unreasonable for a lead agency to conclude a project with a “reasonable possibility of significant environmental effects” is not unusual.   But, under the Majority’s test, the traditional substantial evidence standard of review applies to a lead agency’s determination whether a project is unusual.  As such:

[a]gencies must weigh the evidence and determine ‘which way the scales tip,’‖while courts conducting [traditional] substantial evidence . . . review generally do not.” [Citation.]  Instead, reviewing courts, after resolving all evidentiary conflicts in the agency‘s favor and indulging in all legitimate and reasonable inferences to uphold the agency‘s finding, must affirm that finding if there is any substantial evidence, contradicted or uncontradicted, to support it. [Citations.]

Therefore, notwithstanding the Concurring Opinion’s effort to diminish the impact of the Majority’s test, the new test provides deference to a lead agency’s decision based on all the facts before it, including but not limited to evidence of potential environmental impacts, that a project is not unusual.  Furthermore, “[i]n determining whether the environmental effects of a proposed project are unusual or typical, local agencies have discretion to consider conditions in the vicinity of the proposed project.”  Only if a lead agency concludes unusual circumstances are present is the fair argument standard implicated.  In that event, “it is appropriate for agencies to apply the fair argument standard in determining whether ‘there is a reasonable possibility of a significant effect on the environment due to unusual circumstances.’ (Guidelines, § 15300.2, subd. (c).)”

While both the Majority and Concurring Opinions disagree on the proper test applicable to the unusual circumstances exception, both agree remand is required because the trial court and Court of Appeal improperly considered evidence submitted by the Petitioners relating to Project elements not approved.  Specifically, Petitioners argued the Project required side-hill fill with the potential to cause a significant impact despite the fact that the Project as proposed did not contemplate side-hill fill.  As explained in the Majority Opinion, “a finding of environmental impacts must be based on the proposed project as actually approved and may not be based on unapproved activities that opponents assert will be necessary because the project as approved, cannot be built.”   A lead agency and court need not speculate on impacts caused by unapproved activities because, as stated by the City, if a project as proposed cannot be built “and the applicants want to build a different project, then ‘they must return to the City for approval of a different project and the City could issue a stop-work notice to prevent unauthorized construction.’”

Finally, the Majority Opinion explains that, on remand, the Court of Appeal may only direct the City to prepare an EIR if it determines the categorical exemptions are inapplicable and that the City would lack discretion to apply another exemption or to issue a negative declaration, mitigated or otherwise.

Key Point

Under the “unusual circumstances” exception to CEQA’s categorical exemptions, a court must first determine whether substantial evidence supports a lead agency’s conclusion that an unusual circumstance is not present.  In making its determination, the lead agency should consider evidence relating to environmental impacts as well as other evidence relating to the typicality of the proposed project. The lead agency also has discretion to consider the conditions in the immediate vicinity of the project.  If the lead agency concludes based on substantial evidence that unusual circumstances exist, then the “unusual circumstances” exception prohibits use of a categorical exemption where there is a fair argument that the project may result in a significant environmental impact.

Fourth Appellate District Publishes Opinion Reversing Injunction for La Jolla Hillside Revegetation Project

Tuesday, March 3rd, 2015

On February 18, 2015, the California Court of Appeal for the Fourth District granted the City of San Diego’s (City) request to publish the recent case CREED-21 v. City of San Diego, 2015 Cal. App. LEXIS 17. In the decision, the appellate court reversed the trial court in large part and denied an injunction stopping the restoration of native plants on a hillside near a storm drain in La Jolla.

The key point in the decision involved the baseline environmental conditions to be used in determining whether the project qualified for an exemption from the California Environmental Quality Act (CEQA). The storm drain and hillside at issue in the case were previously damaged in a storm requiring immediate repair and an emergency exemption from CEQA. The court held the relevant baseline conditions for the subsequent revegetation project to stabilize and improve the hillside were the conditions existing after the emergency repair, not at the time prior to the emergency repair. This was true even though the City was considering a comprehensive storm drain repair project before the emergency repair became necessary. As the court stated, the key baseline for lead agencies to consider are the physical conditions that “will be affected by the proposed project.” In this case, the barren hillside was the existing condition, and that baseline allowed the project to qualify for the common sense CEQA exemption because there was no chance improving the condition of the hillside would have a significant adverse effect on the environment.

A complete summary of the case is available here: /.