Thomas Law Blog

CEQA Updates

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

Posts from October, 2015


NEW GUIDANCE ON BASELINES WHEN PROJECT IS REUSING OR REPLACING AN EXISTING BUILDING

Wednesday, October 28th, 2015

On October 9, 2015, the Court of Appeal partially published the Fourth Appellate District’s opinion in North County Advocates v. City of Carlsbad (2015) 2015 Cal.App.LEXIS 891 (North County).

The published portion of the opinion discusses an important exception to the traditional baseline determination under the California Environmental Quality Act (CEQA). Generally, the baseline consists of “the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental review is commenced.”  (CEQA Guidelines, § 1525, subd. (a).)  However, there is an alternative approach in which the lead agency may look back to historic conditions to establish a baseline.  (See Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 327-328; Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 337-338.)

In North County, the City of Carlsbad applied this approach to a commonly occurring situation—renovation or replacement of an existing building that was previously fully occupied and is now vacant or minimally occupied.  The project at issue was the demolition and reconstruction of an existing department store that had been vacated in 2006 and was now only periodically occupied by seasonal retail.  Despite that fact, the City established a traffic baseline using data from when the store was fully occupied.  The Court found this decision was within the City’s discretion and that the selected baseline was supported by substantial evidence.

Because the building had previously been occupied and had generated significant amounts of traffic, the Court distinguished this situation from cases in which the baseline was based on hypothetical conditions that were permissible pursuant to an existing plan or regulation but had not actually occurred “on the ground.” The Court held that due to the fluctuating occupancy of the building, the City had discretion “to consider conditions over a range of time periods” to account for a “temporary lull or spike in operations.”

Key Point:

A lead agency has the discretion to consider conditions over a range of time periods when determining baseline conditions for an existing facility with variable levels of historic operations. The lead agency’s determination should be upheld if supported by substantial evidence.

SIXTH APPELLATE DISTRICT FINDS THAT CITY OF SANTA CRUZ FAILED TO DEMONSTRATE SUBSTANTIAL EVIDENCE SUPPORTING THE APPLICATION OF CLASS 7 AND CLASS 8 CATEGORICAL EXEMPTIONS

Tuesday, October 27th, 2015

In Save Our Big Trees v. City of Santa Cruz, 2015 Cal. App. LEXIS 942, the Sixth Appellate District held that the City of Santa Cruz (City) failed to carry its burden of demonstrating with substantial evidence that the amendment of its Heritage Tree Ordinance and Heritage Tree Removal Resolution (Project) were categorically exempt from the California Environmental Quality Act (CEQA).

To avoid having to undertake costly environmental review, City staff recommended revising the Heritage Tree Ordinance to only allow for the removal of: (1) non-native invasive heritage trees growing outside biotic resource areas; and (2) non-native invasive heritage trees growing inside biotic resource areas, following confirmation from a qualified biologist that removal would not adversely impact or degrade the existing habitat. Staff also proposed amending the Heritage Tree Removal Resolution to permit the removal of a heritage tree that “has created or is likely to create an unreasonable and substantial hardship for a private property owner such as, excessive degradation or damage to real property, an unreasonable financial or economic burden, or an adverse effect on personal health such as allergies or physical mobility.”

Staff concluded that, as modified, the Project was exempt from CEQA under the categorical exemptions set forth in sections 15307 (Class 7) and 15308 (Class 8) of the CEQA Guidelines. These exemptions apply to actions taken to assure the maintenance, restoration, or enhancement of a natural resource or the environment. In support of that conclusion, Staff noted that while the proposed revisions to the Heritage Tree Removal Resolution “may allow for the removal of additional non-native trees,” they “would not necessarily have the potential for causing a cumulative impact or significant effect on the environment” because “[t]he City is not requiring the removal of non-native invasive tree species[,] . . . [and] removing large trees is frequently financially limiting [such that] it is unlikely that the probability of large numbers of trees being removed would increase.”

In January 2013, the City’s Parks and Recreation Commission voted to recommend the proposed Heritage Tree Ordinance amendments and the Heritage Tree Removal Resolution amendments to the City Council. The Project was considered by the City Council in October 2013. One councilmember expressed concerns that the amendments would allow people to cut down more trees, rendering the Project subject to CEQA review. Regardless, the City Council approved the amendments and adopted and approved the staff’s determination that the Project was exempt from CEQA.

On review, the Court of Appeal indicated that the case centers on the first tier of CEQA review, which requires an agency to conduct a preliminary review to determine whether CEQA applies to a proposed project. Relying on Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court noted that the standard for determining whether a project falls within a Class 7 and/or Class 8 categorical exemption is not whether the project will have a significant effect on the environment, but whether substantial evidence supports the determination that the project will assure the maintenance, restoration, or enhancement of the environment. The Court also noted that the lead agency bears the burden of demonstrating substantial evidence.

The Court found that the Project removes, rather than secures protections for heritage trees and that the City offered no evidence that the required replacement of trees would contribute beneficially to the urban environment in the same way as the removed heritage trees. The Court held that the City failed to carry its burden of demonstrating with substantial evidence that the Project will assure the maintenance, restoration, or enhancement of the environment and that, as such, substantial evidence does not support the application of the Class 7 or Class 8 exemptions.

Key Point:

Lead agencies have the burden of providing substantial evidence to demonstrate that their projects fall within a categorical exemption to CEQA. This case stresses the need for lead agencies to prepare robust findings with specific facts serving as the legal basis in support of their determination that a categorical exemption applies.

Two Wins for the Railyards Development in Third District Court of Appeal

Tuesday, October 20th, 2015

This month, the Third District Court of Appeal issued two unpublished opinions on pending CEQA suits challenging the Railyards development in Sacramento. Both opinions affirm the decisions of the trial court and conclude that the City of Sacramento complied with CEQA when it adopted the Railyards Specific Plan and the Railyards Redevelopment Plan.

In Sacramento Citizens Concerned About the Railyards v. City of Sacramento (C065220, Oct. 7, 2015), the Court held that the program EIR for the Railyards Specific Plan adequately described historic and archaeological resources, provided adequate information regarding water quality impacts, appropriately described the project, did not improperly segment review of the project’s cistern, and adequately analyzed traffic and air quality impacts.

In the second case, Castro v. City of Sacramento (C062091, Oct. 9, 2015), the petitioners challenged the City’s decision to amend the 1990 Richards Boulevard Plan to remove 300 acres from its boundaries and rename it the River District Redevelopment Plan. Those 300 acres then became the new Railyards Redevelopment Plan. Petitioners challenged the City’s adoption of the Railyards Redevelopment Plan under CEQA, arguing that the EIR improperly tiered from the Railyards Specific Plan EIR, the environmental review was improperly segmented, and the EIR failed to analyze and mitigate toxic air contaminants. The Court disagreed and affirmed the trial court’s judgment in the City’s favor.

The Sixth District Court of Appeal Upholds $750/hour Fee in Unpublished Decision

Tuesday, October 20th, 2015

In Habitat and Watershed Caretakers v. City of Santa Cruz (H040762, Oct. 6, 2015), the petitioner successfully challenged the trial court’s application of a negative multiplier to its fees on the merits and a “downward adjustment” to its fees for the fee litigation. The Sixth District Court of Appeal held that the trial court abused its discretion and consequently reversed and remanded the case for further proceedings.

After a partial success in litigation regarding the City of Santa Cruz’s EIR to amend the City’s sphere of influence to include an undeveloped portion of UC Santa Cruz, petitioner had sought $486,800 in merit fees for 837.3 hours of attorney time, with hourly rates ranging from $300 per hour for its associates to $750 per hour for its lead attorney. Petitioner also sought compensation for an additional 131.8 hours of attorney time for the fees litigation. The trial court did not take issue with the hourly fees or the number of hours billed, finding both to be reasonable. However, because the result achieved was only “a 50 percent success,” the trial court had adjusted the merit fee downward by half to reflect petitioner’s “partial success in litigation.” The trial court also reduced the fee for the fees litigation by 60 percent because the City and UC Regents “did not create any extraordinary difficulties in this case.”

On appeal, the City and UC Regents challenged the trial court’s calculation of the lodestar and petitioner challenged the negative downward adjustment.

The Court of Appeal upheld the trial court’s determination that the lodestar was reasonable because local counsel was unavailable; the hourly rates were within the range of market rates for attorneys of comparable experience in the San Francisco Bay Area; and the case was taken on a contingency fee basis. The Court was unpersuaded by the City and UC Regent’s argument that the Bay Area rates were not limited to environmental attorneys and that the lead attorney had submitted no evidence that he had ever charged or been awarded fees at a rate of $750 per hour. The Court held that the purpose of the private attorney general statute is to provide adequate financial incentive to encourage attorneys to take on the litigation, and thus “no valid comparison can be made between public interest attorneys who work on a contingent fee basis and land use defense attorneys who can expect timely recompense for all of their work regardless of the outcome of the litigation.”

The Court then held that the trial court had abused its discretion by applying negative downward adjustments to petitioner’s merit fees. A negative adjustment based on a “partial success” theory is only appropriate if the petitioner did not achieve their requested relief. In other words, it is the result that matters, not the outcome on individual theories. Here, petitioner had achieved both of its objectives because the City was required to vacate its certification of the EIR and its approval of the project. In regard to the fee for the fee litigation, the Court held that the trial court abused its discretion by reducing the amount by 60 percent due to defendant’s compliance, finding that fees for fee litigation may be enhanced due to the defendant creating difficulties but not reduced due to compliance.

Key Point:

When calculating the lodestar, the court looks at the attorney’s legal market (not the market where the case originates) and does not limit its review to the attorney’s specialty or what that particular attorney has charged in the past. Higher attorney’s fees can be requested when the work was done on a contingency basis.