Posts from April, 2016
In a published opinion, San Diego Navy Broadway Complex Coalition v. United States Department of Defense, 2016 U.S. App. LEXIS 5813, the Ninth Circuit affirmed the district court and rejected a National Environmental Protection Act (NEPA) challenge to the redevelopment of the San Diego Navy Broadway Complex (Complex), a fifteen-acre waterfront site adjacent to downtown San Diego.
In 1987, the Navy and the City of San Diego (City) executed a Memorandum of Understanding (MOU) concerning redevelopment of the Complex, which would expand it from 861,000 square feet of Navy office, warehouse, and industrial space to 3.25 million square feet of mixed military and civilian facilities, including hotels, retail, and entertainment spaces. An Environmental Impact Statement (EIS) was prepared for the MOU in 1990, but adverse real estate conditions in the early 1990s caused the Navy and City to delay project implementation.
In 2006, the Navy began taking steps to implement the project, and conducted an Environmental Assessment (EA) and issued a Finding of No Significant Impact (FONSI). A citizen’s group called San Diego Navy Broadway Complex Coalition (Coalition) sued, claiming that the Navy provided insufficient notice about the EA and FONSI, resulting in a lack of public participation. The District Court agreed and granted partial summary judgement in favor of the Coalition.
In 2009, the Navy issued a new EA and FONSI, finding that there were not significant changes since the 1990 EIS to warrant further environmental review. The Coalition filed another challenge, this time arguing that the potential environmental impact of a terrorist attack warranted a supplemental EIS. The District Court granted summary judgment in favor of the Navy and the Coalition appealed.
The Ninth Circuit, citing San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission (9th Cir. 2006) 439 F.3d 1016, held that the risk of a possible terrorist attack must be analyzed under NEPA given the general risk of terrorism, the location of the project near downtown San Diego, and the military commands to be housed in the Complex. The fact that there was no specific threat against the Complex was irrelevant given the risks of terrorism are “constantly in flux.”
However, the Ninth Circuit held that the 2009 EA sufficiently analyzed the threat of terrorism, mainly by stating that the Navy’s Anti-Terrorism Force Protection requirements would apply to the Complex and incorporating by reference the Unified Facilities Criteria in the Defense Department’s Minimum Antiterrorism Standards for Buildings. The panel found that this was enough to foster informed decision-making and informed public participation, though it would have preferred a single, clear document that included more specific information about the potential environmental effects of terrorism.
Senior District Judge James Carr, sitting by designation, dissented and would have found the EIR’s analysis of a potential terrorist attack to be inadequate.
Recently, the California Court of Appeals issued two CEQA decisions concerning marijuana dispensary ordinances, specifically addressing whether the ordinances constitute projects under CEQA, and if so, whether the ordinances fall under the common sense exemption.
First, in a published opinion, Union of Medical Marijuana Patients, Inc. v. City of Upland, 2016 Cal. App. LEXIS 223, the Fourth Appellate District upheld the City’s determination that a 2013 ordinance prohibiting mobile medical marijuana dispensaries was not a project under CEQA. The City had previously adopted an ordinance in 2007 that prohibited both fixed and mobile medical marijuana dispensaries. The City’s use of a negative declaration for the 2007 ordinance was not challenged.
The Union of Medical Marijuana Patients (UMMP), a non-profit civil rights organization advocating the rights of medical cannabis patients, argued that the 2013 ordinance could have new environmental impacts that should be analyzed under CEQA. The court rejected this argument, finding that the 2013 ordinance merely restates the 2007 ordinance and thus does not constitute a project that is subject to CEQA.
Even if the ordinance did not merely restate existing law, the court still would have found that the ordinance did not constitute a project because the alleged impacts from the 2013 ordinance were too speculative.
Because the court concluded that the 2013 ordinance was not a project, it did not address the City’s claim that the ordinance was exempt under the common sense exemption.
The use of the common sense exemption was addressed in the unpublished opinion T.C. v. County of Kern, 2016 Cal. App. Unpub. LEXIS 2333 (TC). In TC, the Fifth Appellate District held an initiative measure (Measure G) placed on the ballot by Kern County, which authorized medical marijuana dispensaries but restricted them to areas zoned for industrial use, was not exempt from CEQA review pursuant to the common sense exemption.
Measure G went to the voters on June 5, 2012 and was approved with 69 percent of the vote. A lawsuit was subsequently filed alleging that the County failed to comply with CEQA.
On appeal, the court held that Measure G did not qualify for CEQA’s common sense exemption because the County’s own findings concerning Measure G explicitly identified “serious secondary effects,” including increased traffic, noise, and litter, that are caused by unregulated dispensaries. The court found that Measure G could force dispensaries currently located in non-industrial zones to relocate to unregulated areas outside of the County, causing these environmental impacts to occur.
The court also rejected contentions that Measure G qualified for two categorical exemptions set forth in sections 15308 (Class 8) and 150321 (Class 21) of the CEQA Guidelines because the adoption of Measure G by the voters did not constitute an action taken by a regulatory agency. The court further held that Measure G did not assure protection of the environment and would have caused a rebalancing and reallocation of environmental impacts.
Accordingly, the court upheld the trial court’s invalidation of Measure G.
Whether a particular activity constitutes a project is a question of law. Therefore, the court considers in the first instance whether the public agency’s activity will cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.
In comparison, whether a particular activity qualifies for the common sense exemption presents an issue of fact that is examined by the court for an abuse of discretion. The standard of review for the use of the common sense exemption is not entirely clear after the Supreme Court’s decision in Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372. Here, in the unpublished decision, the court applied the deferential substantial evidence standard but still found that the County’s use of the exemption was not supported by evidence in the record.