Thomas Law Blog

CEQA Updates

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

Posts from July, 2016


NINTH CIRCUIT REJECTS NEPA CHALLENGE TO THE JAMUL INDIAN VILLAGE CASINO PROJECT

Friday, July 29th, 2016

In Jamul Action Committee v. Chaudhuri, 2016 U.S. App. LEXIS 13104, the Ninth Circuit held that the National Environmental Protection Act (NEPA) did not apply to the Jamul Indian Village Casino project in Jamul, California due to an irreconcilable timing conflict between NEPA and the Indian Gaming Regulatory Act (IGRA).

The Jamul Indian Village (Tribe), a federally-recognized Indian tribe, has been planning the Casino for more than fifteen years. In the late 1990s, the Tribe enacted a gaming ordinance (GO) describing how it would operate a high-stakes gaming facility in Jamul. In 2013, the National Indian Gaming Commission (Commission) approved a revised GO for the project under the IGRA.

The Casino has been opposed by many individuals and organizations, including the Jamul Action Committee, the Jamul Community Church, and four residents of rural Jamul. This lawsuit against the Commission was the most recent attempt to stop the project. The project opponents argued that NEPA review should have been conducted before the Commission approved the revised GO in 2013. The district court held that a NEPA review was not required because the Commission’s approval was not a major federal action within the meaning of NEPA.

The Ninth Circuit affirmed the district court’s decision, but on different grounds. The appellate court, citing Flint Ridge Development Company v. Scenic Rivers Association of Oklahoma (1976) 426 U.S. 776, held that a NEPA review was not required due to an irreconcilable and fundamental conflict between IGRA and NEPA. The court reasoned that it was impossible for the Commission to comply with both statutes. The shortest time frame in which an EIS could be prepared under the NEPA statutory scheme was 120 days. But under IGRA, the Commission was required to approve the revised GO within 90 days of receiving it, a timeline controlled by Congress and triggered by the action of the Tribe.

Key Point: An agency may not be required to prepare an EIS, even for a major federal action, if an irreconcilable and fundamental conflict exists between NEPA and another applicable substantive statute. Such a conflict exists when a statute mandates a fixed deadline that is too short to allow the agency to comply with NEPA and the deadline and action triggering the deadline are not within the agency’s control.

FEDERAL DISTRICT COURT HAS JURISDICTION OVER CORPS’ CEASE AND DESIST LETTER WHEN CONSTITUTIONAL CLAIMS ARE RAISED

Thursday, July 28th, 2016

In Duarte Nursery, Inc. v. United States Army Corps of Engineers, 2016 U.S. Dist. LEXIS 76037, the Eastern District of California granted the U.S. Army Corps of Engineers’ (“Corps”) motion for summary judgment, finding that Duarte Nursery (“Nursery”) had violated the federal Clean Water Act (“Act”) by moving dirt around its property as part of tilling activities. The Act generally prohibits the discharge of pollutants into “navigable waters,” or “waters of the U.S.,” without a permit.

The Nursery owned approximately 2,000 acres of land. Prior to purchasing the land, Nursery president John Duarte was aware of a draft delineation that had been prepared. The draft delineation noted that there were 40.78 acres of pre-jurisdictional waters of the U.S. on the property, including vernal pools, seasonal wetlands, and intermittent and ephemeral drainages that have physical connections to Coyote Creek, a tributary of the navigable Sacramento River. In 2012, the Nursery arranged to have wheat grown on the property. The planting process involved tilling the soil with a harvester with a ripper attachment.

An employee of the Army Corps observed the equipment and activities taking place on the property and informed John Duarte that the ripping activity potentially violated the Act. The Corps then sent a cease and desist letter (“C&D Letter”) to the Nursery in February 2013. In October 2013, the Nursery and its president sued the Corps, raising due process claims under the Fifth Amendment and the Corps asserted an enforcement action as a counterclaim.

In deciding the parties’ cross-motions for summary judgment, the court first rejected the government’s argument that the C&D Letter was not subject to judicial review under section 702 of the Administrative Procedure Act (“APA”) because it was not a final agency action. The court held that a party could seek judicial review of an agency action that was not a “final agency action” when a party raised constitutional challenges to the agency action. Additionally, the court noted that the Supreme Court found cease and desist orders issue under the Act to be sufficiently final to trigger APA review in Sackett v. EPA (2012) 132 S.Ct. 1367, 1374.

Next, the court rejected the plaintiffs’ procedural due process claim under the Fifth Amendment because the C&D Letter, which merely advised plaintiffs that their activity was in violation of the Act, did not deprive plaintiffs of their constitutionally protected interest. The court reasoned that a deprivation of a constitutionally protected interest could occur only after an enforcement action was brought by the DOJ or EPA; threatened enforcement of a deprivation of a liberty or property interest was not enough.

Finally, the court held that Nursery, including its president John Duarte, had violated the Act because they discharged soil into waters of the U.S. without a permit. The court held that a corporate officer who directs the activities could be subject to a civil enforcement action under the Act. The court also rejected the plaintiffs’ contention that the tilling activity was exempt under the Act’s farming exemption because there was no farming activity other than grazing on the property between 1998 and 2012 and the exception only applied to the continuation of established and ongoing farming activities. Moreover, the court found that the tilling activity impaired the flow of the waters of the U.S., necessitating a permit even if the farming exception did apply.

IN CENTRAL VALLEY SHOWDOWN OVER ANNEXATION, THE CITY OF KINGSBURG REIGNS (MOSTLY) SUPREME

Thursday, July 28th, 2016

In 2012, the City of Kingsburg began the process of annexing approximately 430 acres of land in Fresno County, including developed land that was home to three major facilities: a glass manufacturing plant, a grape processing facility, and a raisin processing plant. The land proposed for annexation separates the City of Kingsburg from the City of Selma, which is located approximately five miles to the north.

Before approving the annexation, Kingsburg concluded that the project would not cause any significant environmental impacts with mitigation and prepared a mitigated negative declaration (MND). When Kinsgburg certified the MND in September of 2012, it also requested that the Fresno County Local Area Formation Commission (LAFCo) initiate proceedings to approve the annexation. After continuing the annexation hearing several times, LAFCo approved the annexation on July 17, 2013.The City of Selma brought two actions challenging the decision: one against Kingsburg and one against LAFCo.

The court decided City of Selma v. City of Kingsburg, 2016 Cal. App. Unpub. LEXIS 5207 in an unpublished opinion. The City of Selma had challenged the CEQA process used by Kingsburg to approve the annexation and to repeal certain design standards applicable to the annexation area that concerned the large glass manufacturer, including a requirement to place electrical and telecommunications lines underground.

The court first held that written materials relevant to the agency’s compliance with CEQA must be included in the administrative record, even if the documents were prepared after the project was approved. Next, the court affirmed the trial court and held that Kingsburg had complied with CEQA for the annexation project by preparing an MND. In doing so, the court rejected Selma’s challenges to the adequacy and scope of the water supply analysis and Kingsburg’s ability to provide fire protection to the annexed area.

Finally, the court found that Kingsburg had failed to demonstrate that the common sense exception applied to the repeal of the design standards. The court rejected Kingsburg’s argument that the existence of other standards precluded the possibility that repealing the design standards could cause significant environmental impacts. The Court also held that Kingsburg erred by failing to reference the factual record in its notice of exemption.

The Fifth Appellate District partially published its opinion in City of Selma v. Fresno County Local Agency Formation Commission, 2016 Cal. App. LEXIS 581. For various reasons, the LAFCo hearing had originally been noticed for April 10, 2013 but was continued until July 17, 2013. Selma argued that this violated Government Code section 56666, subdivision (a)’s 70-day limitation for continuances. The court agreed, but concluded that the 70-day limitation is directory rather than mandatory pursuant to section 56106.

The court contrasted this provision with Government Code section (h), a mandatory provision which requires an annexation hearing to be scheduled for a date not more than 90 days after the annexation application was received. Because the continuance provision at issue was directory rather than mandatory, the remedy was not reversal of LAFCo’s determination.  The court acknowledged that this holding made the 70-day continuance limitation “relatively toothless.”

Key Point: Failure to comply with the continuance limitation, as opposed to the initial scheduling requirement, for LAFCo annexation proceedings will not result in a reversal of the LAFCo’s determination.

COURT OF APPEAL HOLDS “DISCOVERY RULE” DOES NOT EXTEND CEQA STATUTE OF LIMITATIONS

Tuesday, July 26th, 2016

In Communities for a Better Environment v. Bay Area Air Quality Management District, 2016 Cal. App. LEXIS 596, Petitioners challenged Bay Area Air Quality Management District’s (BAAQMD) July 2013 determination that the approval of the Richmond rail-to-truck facility to transload crude oil instead of ethanol was ministerial and therefore not subject to CEQA. BAAQMD did not provide the public with notice of its determination and Petitioners did not learn of the decision until January 31, 2014, when one of Communities for a Better Environment’s staff members received an email disclosing the change from ethanol to crude oil.

Petitioners filed their petition in March 2014 and it was subsequently dismissed by the trial court as untimely. Petitioners appealed, arguing that the so called “discovery rule” applied. In the typical case, the discovery rule postpones the accrual of an action from the date an injury occurs until the date the plaintiff has actual or constructive notice of the facts constituting the injury. Petitioners argued that the discovery rule should apply in this case because there was no way to discover that the approval had taken place—they claimed that the transloading operation is entirely enclosed, making any changes invisible to the public.

The appellate court held that the discovery rule did not extend the statute of limitations in this case because the legislature created the applicable triggering dates when drafting the statute and those dates, providing constructive notice to Petitioners, had occurred. Specifically, an action to challenge a determination that a project is not subject to CEQA accrues on one of three alternative dates set forth in Public Resources Code section 21167, subdivision (d): (1) filing of a notice that the project is not subject to CEQA, which triggers a 35 day statute of limitations; (2) if no notice is filed, then within 180 days of the agency’s formal decision to carry out or approve the project; or (3) if there is no formal determination, then within 180 days from the commencement of the project.

The court distinguished the situation from Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929, where the Supreme Court held that an action accrues on the date a plaintiff knew or reasonably should have known of the project only if no statutory triggering date has occurred. Here, the court held that the triggering dates had occurred, even if they were not apparent to Petitioners.

While the court acknowledged that public participation may be served by applying the discovery rule in cases such as this, where no notice is given and there is virtually no indication to the public that the project has been approved and commenced, it concluded that it could not read such an exception into the statutory text, such a change would have to be initiated by the Legislature.

PROJECT PROPONENTS SCORE A DECISIVE VICTORY IN GOLDEN STATE WARRIORS ARENA CASES

Thursday, July 21st, 2016

On July 18, 2016, in a 54-page opinion, Judge Wong of the San Francisco Superior Court delivered a decisive victory to the respondents and real parties in interest in the litigation concerning the proposed Golden State Warriors arena in Mission Bay Alliance v. Office of Community Investment and Infrastructure. Thomas Law Group represented the Office of Community Investment and Infrastructure (OCII).

For years, the Warriors have been planning to relocate to San Francisco from their current stadium in Oakland. The Project involves constructing a multi-purpose event center and mixed uses, including office, retail, and open space, on an 11-acre site in the Mission Bay South Redevelopment Plan (Plan) area. In April 2015, the Governor certified the Project as an Environmental Leadership Development Project under AB 900. A subsequent environmental impact report (SEIR) was prepared for the Project, tiering from the 1998 Mission Bay EIR.

OCII, the successor agency to the San Francisco Redevelopment Agency, certified the Final SEIR and approved the Project on November 3, 2015. That same day, OCII’s executive director determined that the Project qualified as a “secondary use” permitted under the Plan. Acting as responsible agencies under CEQA, various local agencies and departments of the City and County of San Francisco (City) subsequently granted additional approvals for the Project. Petitioners challenged these actions on numerous fronts in two actions that were later consolidated.

The court first held that OCII did not abuse its discretion in finding that the event center is an authorized secondary use under the Plan because the Project qualifies as a nighttime entertainment use, a recreation building use, and as “public structures or uses of nonindustrial character.”

Next, the court held that OCII complied with CEQA, specifically finding that the SEIR addresses all impacts of the Project at the appropriate level of detail and adequately analyzes impacts relating to land use, hazards and hazardous materials, recreation, biological resources, transportation and transit, toxic air contaminants, noise, wastewater facilities, greenhouse gas emissions, and wind. The court also held that the SEIR analyzes a reasonable range of potentially feasible alternatives.

Finally, the court addressed the remaining non-CEQA claims, finding that the City did not abuse its discretion when it determined that the event center complies with Prop M and when it approved the Place of Entertainment permit. The court further held that the Project did not include an economic development subsidy.

Accordingly, the court denied both of Petitioners’ petitions for writ of mandate. Pursuant to the accelerated litigation timeline under AB 900, the Court of Appeal would hear any appeal filed by Petitioners by the end of this year.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT URBAN DECAY MND CASE

Thursday, July 14th, 2016

On July 13, 2016, the Fourth Appellate District ordered the partial publication of its recent decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino. Thomas Law Group requested publication on behalf of the California Infill Builders Federation.

The opinion addresses challenges to a proposed retail store on the basis of alleged urban decay impacts and community plan inconsistencies. While these issues frequently arise in California Environmental Quality Act challenges to a Mitigated Negative Declaration (MND), existing published case law is sparse. Significantly, the opinion is the first published decision in nearly a decade to address an urban decay challenge in the context of an MND. In addition, the opinion articulates that the abuse of discretion standard of review, as opposed to the fair argument standard, is appropriate for land use plan consistency determinations relating to policies that “were not adopted to mitigate environmental impacts.”

The only portion of the opinion that was not published by the Court was Section IV, which addresses whether the County was required to disclose that the future occupant of the project was Dollar General.

For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH APPELLATE DISTRICT MODIFIES PUBLISHED OPINION ON THE UNUSUAL CIRCUMSTANCES EXCEPTION TO CATEGORICAL EXEMPTIONS

Thursday, July 7th, 2016

Note: the Supreme Court granted a request for depublication of this opinion on August 22, 2016. See http://www.thomaslaw.com/blog/supreme-court-depublishes-people-proper-planning-v-city-palm-springs/ 

On June 17, 2016, the Fourth Appellate District modified its recently published opinion, People for Proper Planning v. City of Palm Springs. As modified, the opinion now cites to last year’s Supreme Court decision Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside), which articulated the standard of review for the unusual circumstances exception to CEQA’s categorical exemptions.

As stated by the Supreme Court in Berkeley Hillside, the determination of whether the unusual circumstances exception to a categorical exemption applies to a project consists of a two-step analysis. The first step is to determine whether the project exhibits any unusual circumstances; an inquiry reviewed under the substantial evidence standard of review. The second step is to consider whether an unusual circumstances, if present, give rise to a potentially significant environmental impact; an inquiry reviewed under the fair argument standard of review.

Before the decision was modified, it was unclear whether the court applied the two-part test in Berkeley Hillside. The modified opinion includes a footnote explaining that the City of Palm Springs did not dispute that the case presents an unusual circumstance. As a result, the focus of the decision is on the second prong – whether petitioners presented a fair argument of a potentially significant environmental impact resulting from the unusual circumstances. Because the court concluded petitioners presented a fair argument of a potentially significant land use impact, the court granted the writ. For a complete summary of the court’s analysis, please see our previous blog post at: http://www.thomaslaw.com/blog/fourth-district-holds-that-palm-springs-general-plan-amendment-is-not-categorically-exempt-in-published-opinion/

Key Point: Because the first prong of unusual circumstances analysis applies the deferential substantial evidence standard of review, to increase the defensibility of using a categorical exemption it is integral that lead agencies adopt findings that explain why a proposed project does not involve unusual circumstances.

FIRST APPELLATE DISTRICT UPHOLDS MTC AND ABAG’S APPROVAL OF PLAN BAY AREA

Wednesday, July 6th, 2016

In a recently published opinion, Bay Area Citizens v. Association of Bay Area Governments, 2016 Cal. App. LEXIS 531, the First Appellate District affirmed the trial court’s judgment and upheld the approval of Plan Bay Area by the Bay Area Metropolitan Transportation Commission (“MTC”) and the Association of Bay Area Governments (“ABAG”) (collectively, “Agencies”). Thomas Law Group represented the Agencies in successfully defending against the suit.

Plan Bay Area is the regional transportation plan and sustainable communities strategy for the nine-county Bay Area region, adopted by the Agencies pursuant to SB 375. It establishes a plan for reducing greenhouse gas emissions by reducing vehicle miles traveled through combined land use and transportation strategies. Bay Area Citizens (“Citizens”) filed a petition in August 2013, challenging certification of the environmental impact report (“EIR”) prepared for Plan Bay Area under the requirements of the California Environmental Quality Act.

Citizens’ primary contention was that the Agencies failed to consider greenhouse gas emission reductions expected from existing statewide mandates, such as clean car and low carbon fuel standards. Due to this omission, Citizens contended that the Agencies unnecessarily imposed “draconian” high-density land use patterns to reduce vehicle miles traveled (“VMT”) to satisfy the California Air Resources Board’s (“CARB”) greenhouse gas emissions targets. The trial court rejected Citizens’ argument, holding that reliance on the statewide mandates to meet CARB’s targets under SB 375 was expressly prohibited by the legislation and would constitute improper double-counting of greenhouse gas emissions reductions.

The appellate court also rejected Citizens’ argument, calling its interpretation of SB 375 “absurd.” The court held that Citizens’ interpretation effectively made SB 375 superfluous because it would allow the Agencies to rely on reductions already expected from the statewide mandates without achieving additional SB 375 emission reductions through land use and transportation strategies. Pointing to CARB’s interpretation – that SB 375 calls for such strategies in addition to emissions reductions expected from the statewide mandates – the court concluded that Citizens’ interpretation was incorrect.

Turning to Citizens’ EIR contentions, the court found that because the Agencies properly interpreted the requirements of SB 375, Citizens’ challenge of Plan Bay Area’s EIR objectives was without merit. The court similarly rejected Citizens’ alternatives analysis arguments. Specifically, the court found that the “no project” alternative appropriately captured the continuation of existing regional policy. With regard to the Citizens’ proposed alternative, the court found that many of the aspects of the Citizens’ alternative were already captured in the other alternatives considered by the Agencies. Moreover, because the Citizens’ proposed alternative double-counted statewide emissions mandates, it was not feasible in light of the emission reduction requirements of SB 375.

Key Point: The court affirmed that metropolitan planning organizations may not rely on emissions reductions expected from pre-existing statewide mandates in order to meet CARB’s regional greenhouse gas emissions targets when preparing plans required under SB 375.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT GENERAL PLAN CONSISTENCY CASE

Tuesday, July 5th, 2016

On July 1, 2016, the Fifth Appellate District granted Thomas Law Group’s request to publish the general plan consistency argument in Naraghi Lakes Neighborhood Preservation Association v. City of Modesto. This newly published discussion is a useful aid to practitioners and local governments, providing clarification on when general plan policies should be treated as “mandatory development standards.” The sections on the rezoning findings and CEQA arguments remain unpublished. For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH DISTRICT UPHOLDS COUNTY’S MITIGATED NEGATIVE DECLARATION FOR DOLLAR GENERAL STORE IN JOSHUA TREE

Friday, July 1st, 2016

In an unpublished opinion, Joshua Tree Downtown Business Alliance v. County of San Bernardino, 2016 Cal. App. Unpub. LEXIS 4405, the Fourth Appellate District rejected a challenge to the County’s approval of a 9,100-square-foot Dollar General store (“Project”) proposed by Dynamic Development (“Dynamic”) in Joshua Tree.

The County circulated an initial study and proposed negative declaration in August 2012. Many of the nearby property owners raised concerns that the Project would be out of character with the family-owned business community in Joshua Tree. In response to such concerns, the County changed its environmental determination from a negative declaration to a mitigated negative declaration and recirculated it in November 2012. After the County Board of Supervisors approved the Project in January 2013, the Joshua Tree Downtown Business Alliance (“Alliance”) filed a petition for writ of mandate, alleging that the County violated the California Environmental Quality Act (“CEQA”) by failing to analyze the Project’s potential for causing urban decay and blight. The Alliance also alleged that the County violated CEQA by attempting to hide the identity of the intended occupant and by approving a project that was inconsistent with the Joshua Tree Community Plan (“Community Plan”).

The trial court held that an EIR was required because there was substantial evidence to support a fair argument that the Project could cause urban decay. The trial court relied on the comments made by Ms. Doyle, a member of the Alliance and a lawyer who had previously counseled on land use issues as an Assistant Attorney General in the Oregon Department of Justice. The trial court reasoned that her experience demonstrated sufficient relevant personal observations that constituted substantial evidence under CEQA. Dynamic appealed and the Alliance cross-appealed on the remaining claims.

On appeal, the court reversed the trial court on the urban decay claim, holding that the mere fact that the Project may have potential economic impacts did not require an EIR where the economic impacts would not cause reasonably foreseeable indirect environmental impacts. The court found that the County properly considered that this was a “small box” retail project rather than the typical “big box” retail project analyzed in urban decay cases. The court also rejected the Alliance’s contention that Ms. Doyle’s opinions should have been considered substantial evidence. The court explained that Ms. Doyle was not qualified to opine on the Project’s economic impacts because she was not an economist and, moreover, her conclusions that urban decay would occur were speculative because they had no factual basis.

Next, the court rejected the Alliance’s allegation that the County violated CEQA by failing to identify the end user of the Project. The court recognized that CEQA does not require a lead agency to disclose an end user generally, but there may be times where the identity of the end user would be considered “environmentally relevant.” That was not the case here because Alliance did not produce any evidence that a Dollar General would have adverse environmental impacts beyond that of a “general retail store.”

Finally, the court rejected the Alliance’s argument that Project required an EIR because it was inconsistent with the Community Plan. The court declined Alliance’s request to view this as a CEQA issue that should be reviewed under the fair argument standard. Instead, the court applied the usual standard for a claim of inconsistency with a land use plan: abuse of discretion. The court held that the mere fact that the Project might compete with established local businesses did not make it inconsistent with the Community Plan’s provisions encouraging small businesses, and found that the terms “encourage” and “support” to be amorphous policy terms that gave the County discretion when making its consistency determination. Accordingly, the court found that the County had not abused its discretion.