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CEQA Updates

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

Posts from September, 2017

Court Rejects CEQA Lawsuit Challenging Approval of Planned Parenthood Clinic Premised on Potential Secondary Environmental Impacts Associated with Clinic Protests

Wednesday, September 27th, 2017

In Respect Life S. San Francisco v. City of South San Francisco, 2017 Cal. App. LEXIS 801, the First Appellate District held that the City of South San Francisco’s approval of a conditional-use permit allowing an office building to be converted to a medical clinic did not violate requirements imposed by the California Environmental Quality Act (CEQA). The City determined that the project fell within several categorical exemptions to CEQA, and thus, the permit did not require further CEQA review.

The case arose after the owner of an office building in downtown South San Francisco applied for a conditional-use permit to allow the building to be used as a medical clinic for a new tenant, Planned Parenthood. The physical changes to conversion of the building for use as a medical clinic were minor, and the City’s Planning Commission approved the permit after holding a public hearing.

Petitioner Respect Life South San Francisco (Respect Life) disagreed with the Planning Commission’s determination that the project fell into categorical exemptions and appealed to the City Council. Specifically, Respect Life alleged that the City ignored the “inherently noxious and controversial nature” of Planned Parenthood’s services which would cause protests leading to “environmental impacts… including traffic, parking, [and] public health and safety concerns,” thus necessitating an Environmental Impact Report (EIR) under CEQA.

The City Council affirmed the Planning Commission’s determination that the permit was exempt from CEQA under three categorical exemptions applying to (1) the operation of existing facilities (CEQA Guidelines section 15301); (2) the conversion of small structures (CEQA Guidelines section 15303); and (3) the development of urban in-fill projects (CEQA Guidelines section 15332). Thereafter, Respect Life filed a petition for a writ of mandate. The trial court upheld the City’s finding that the Project was exempt from CEQA and denied the petition. Respect Life subsequently appealed to the First District.

On appeal, Respect Life acknowledged that the project fell within at least one of CEQA’s categorical exemptions, but contended a full environmental review was still necessary due to the unusual-circumstances exception to those categorical exemptions. The “unusual-circumstances exception” provides that “a categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to the unusual circumstances.”

The Court of Appeal first noted the different standards of review: first the party seeking to establish the unusual-circumstances exception must show “that the project has some feature that distinguishes it from others in the exempt class, such as its size or location,” and second, that there is “a reasonable possibility of a significant effect [on the environment] due to that unusual circumstance.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086.) The Court elaborated that a deferential standard applies in reviewing the first element, and a non-deferential standard applies in reviewing the second.

Because the City Council did not directly address whether the Project would result in any unusual-circumstances, the Court concluded that to affirm such an implied municipal determination, the court must assume that the entity found the project involved unusual circumstances, but then consider whether a fair argument exists that the project will have significant effect on the environment. The Court then held that Respect Life failed to identify substantial evidence of any potentially significant environmental impact.

In reaching this holding, the Court explained that a “significant effect on the environment means a substantial or potentially substantial, adverse change in the environment.” (§ 21068.) The Court was unpersuaded by Respect Life’s argument that “the notoriety of [Planned Parenthood] and its activities,” would cause significant environmental impacts such as sidewalk obstruction, public safety concerns, parking congestion, business disruption and increases in noise levels. They found that there was no substantial evidence presented to support a fair argument that there was a reasonable possibility that these impacts will have a significant environmental impact, and conversely found evidence in the record showing the opposite. As a result, the Court of Appeal upheld the trial court’s decision denying Respect Life’s petition.

Key Point:

While the City ultimately prevailed in this litigation, the decision serves as an important reminder regarding the value of a lead agency making express findings addressing the exceptions to the categorical exemptions.  If the City had expressly concluded that the Project did not involve any unusual circumstances, then the Court could have upheld the City’s determination based on the much more deferential “substantial evidence” standard of review and not been required to consider whether a “fair argument” of a potentially significant environmental impact existed.

Certified Regulatory Program’s Environmental Documents Must Comply with CEQA’s Policy Goals and Substantive Requirements

Monday, September 25th, 2017

In Pesticide Action Network North America v. California Department of Pesticide Regulation, 2017 Cal. App. LEXIS 803, the First Appellate District reversed the trial court and set aside the Department of Pesticide Regulation’s (“DPR”) approval of amended labels for two pesticides, Dinotefuran 20SG and Venom Insecticide.  The purpose of the amended labels was to allow both pesticides to be used on additional crops, such as fruiting vegetables, onions, peaches, and nectarines.

In 2006, a phenomenon called “colony collapse disorder” began, where many honey bees disappeared from managed hives in the United States. According to the 2012 Report on the National Stakeholders Conference on Honey Bee Health (“NSC Report”), approximately 28 to 33 percent of honeybee colonies had failed each year since 2006, while a normal loss rate was ten percent.  The NSC Report noted that colony collapse disorder was being caused by several factors, including pesticides.  In February 2009, the Department initiated a reevaluation of the two pesticides at issue in this case along with 280 other pesticide products.  In September 2014, the Department was granted by the California Legislature until July 1, 2018 to complete a thorough reevaluation of the pesticides on pollinator health.

In January 2014, before the Department completed the reevaluation, it released public reports concerning its proposed decisions to approve amended labels for Dinotefuran 20SG and Venom Insecticide. Subsequently, the Department approved the label amendments.  The plaintiff sued to set aside the Department’s approval, contending that the Department violated CEQA in approving the label amendments.  The trial court ruled in favor of the Department.

On appeal, the court rejected the Department’s argument that the environmental review was exempt from CEQA because it was conducted pursuant to the Department’s pesticide registration program certified under Public Resources Code (“PRC”) section 21080.5, which allowed the Department’s environmental documents to serve as the “functional equivalent” of CEQA documents. Based on the plain language of PRC section 21080.5 and case law, the court concluded that the Department’s registration program was subject to the broad policy goals and substantive requirements of CEQA while exempt from the CEQA procedural requirements set forth in CEQA Chapters 3 and 4 and PRC section 21167.

Next, the court identified the broad policy goals and substantive requirements of CEQA applicable to certified regulatory programs and found that the Department did not comply with these requirements. First, citing PRC section 21001(g), the court held that the Department must consider alternatives to registering the proposed new uses for the two pesticides.  Accordingly, the court found that the reports “glaringly” failed to address any feasible alternative.  Second, finding that the Department’s environmental documents must provide an adequate baseline, given the CEQA’s goal of informing the public of the potential impacts of a proposal, the court concluded that the Department failed to provide adequate baseline information.  Third, relying on case law, the court also found that the Department must consider the project’s cumulative impacts, but failed to so.  Finally, finding that the Department was required to recirculate any new significant information about the project, the court held that because the Department’s initial public reports were “so inadequate and conclusory … public comment on the draft was effectively meaningless” its effort to explain its decision in response to comments required recirculation.

Key Point:

While exempt from the CEQA procedural requirements set forth in CEQA Chapters 3 and 4 and PRC section 21167, environmental documents prepared under a certified regulatory program pursuant to PRC section 21080.5 must comply with the policy goals and substantive requirements of CEQA.

Fourth District Court of Appeal Upholds Environmental Review of Master-Planned Community, Finds Project Changes After Tentative Approval Non-Actionable

Friday, September 15th, 2017

In Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941, the Fourth District Court of Appeal affirmed the trial court and upheld the County’s approval of the Keller Crossing Specific Plan Project (“Project”), a master-planned community proposed by Hanna Marital Trust (“Trust”). The Project proposed residential, mixed-use, commercial and open space components on approximately 200 acres of undeveloped land in the French Valley region of the County. The Project included a general plan amendment, a zoning amendment, and a specific plan (Specific Plan 380).

After finding that the Project’s air quality and noise impacts could not be reduced below the level of significance after mitigation, the County approved the Project and the plaintiffs sued, asserting the County failed to comply with procedural, informational, and substantive provisions of CEQA. The trial court held in favor of the County and the Trust.

On appeal, the court rejected the plaintiff’s argument that the Trust and the County substantially modified the Project after the Board of Supervisors certified an EIR for the Project and approved the Project on December 18, 2012. The court explained that the administrative record clearly showed that the Board only tentatively approved the Project on December 18, 2012 and the Board approved the final version of the Project on November 5, 2013 after planning staff and the Trust had codified the plan changes discussed at the December 18, 2012 hearing.

Second, the court held that errors contained in the notice of determination did not justify unwinding the County’s approval. These errors were related to the description of the Project, such as the number of planning areas, the size of commercial office development, the number of residential units, and the acreage for residential, commercial, and mixed uses. Finding that much of the Project description in the notice was accurate, the court concluded the notice substantially complied with CEQA’s informational requirements by providing the public with the information it needed to weigh the environmental consequences of the County’s determination.

Third, the court rejected the plaintiff’s argument that the County failed to revise and recirculate the EIR after changes were made to Specific Plan 380. The plaintiff contended these changes might cause significant traffic, biological, and noise impacts. Finding these changes related to the details of the allocation and arrangement of uses within the Project site, the court held the EIR adequately addressed potential impacts that might result from the changes to the plan.

Fourth, the court rejected the plaintiff’s argument that the EIR failed to adequately analyze the air quality, noise, and traffic impacts from the mixed-use planning area in the Project. Specifically, the plaintiff contended that, although the EIR analyzed the impacts of development of a continuing care retirement community (“CCRC”) in the mixed-use planning area, the EIR failed to analyze the impact of higher-impact uses that could be allowed. Because the plan included a provision that uses other than a CCRC are allowed only if such uses are compatible with the adjacent planning areas and no additional environmental impacts would occur (based on review by the County) the court held that the County did not improperly defer environmental analysis of other uses.

Finally, the court held that the EIR adequately considered specific suggestions for mitigating the impact of the Project on air quality and noise levels. The court found that the Planning Department properly determined that an air quality mitigation measure proposed by the South Coast Air Quality Management District – requiring all off-road diesel-powered construction equipment greater than 50 horsepower to meet Tier 3 off-road emissions standards – was not feasible because the applicant provided evidence that such equipment would not be available at the time of construction. Further, the court held that the County was not required to respond to the plaintiff’s comments in which it proposed several noise mitigation measures because they were submitted more than 14 months after the comment period ended.

Key Point:

Changes made to a project do not constitute legally actionable substantial modifications when approvals made on the project prior to modification were tentative in nature.

First District Court of Appeal Rejects Urban Decay Claim Against Courthouse Relocation Project for Failure to Show a Substantial Environmental Impact

Friday, September 15th, 2017

In Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal. App. 5th 187, the First District Court of Appeal affirmed the trial court and upheld the Judicial Council of California’s (“Judicial Council”) certification of an EIR analyzing the relocation of a courthouse (“Project”) in the City of Placerville (“City”). The Project involves the consolidation of trial court operations from the historic downtown Main Street courthouse and a County administrative complex into a new three-story building on undeveloped land adjacent to the County jail, located less than two miles from downtown Placerville. Plaintiffs challenged Project approval and filed a writ of mandate alleging that the Project would create substantial urban decay. The trial and appellate court reasoned that although the courthouse would impact some businesses in the area, that plaintiffs had not met the evidentiary burden to establish a substantial impact satisfying CEQA.

After the Judicial Council certified the final EIR in June 2015, the plaintiff, a group of County citizens with “a particular interest in the protection of El Dorado County’s environment,” sued the Judicial Council. Although the plaintiff’s petition alleged four deficiencies in the EIR, only one of them, the failure to treat the potential for urban decay resulting from relocation of courthouse operations as a significant environmental impact, was ultimately argued at the trial court. The trial court found in favor of the Judicial Council.

On appeal, the court concluded that under CEQA urban decay is defined as “physical deterioration of properties or structures that is so prevalent, substantial, and lasting a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community.” Citing Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 685, the court further provided that physical deterioration includes “abnormally high business vacancies, abandoned buildings, boarded doors and windows, parked trucks and long-term unauthorized use of the properties and parking lots, extensive or offensive graffiti painted on buildings, dumping of reuse or overturned dumpsters on properties, dead trees and shrubbery, and uncontrolled weed growth or homeless encampments.”

In applying the definition of urban decay to the facts of this case, the court held that physical deterioration was not a reasonably foreseeable consequence of terminating judicial functions at the Main Street courthouse.

Finally, the court found that an informal survey submitted by a local resident that suggested that some businesses would lose revenue as a result of the Project, is little more than anecdotal evidence where the nature of the survey is not explained, including the manner in which participants were selected, the proportion of businesses participating, and the number responding that there would be no effect on their businesses. Distinguishing this case from Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, the court found that the administrative record in this case did not contain sufficient evidence supporting the validity of concerns about the Project impacts, such as an economic study and articles related to the risk of urban decay.

Key Point:

The First District elaborated on and applied the definitions of environmentally significant “urban decay”, and reinforced the level of evidence required to conclude that project-related physical deterioration is a significant and reasonably foreseeable consequence of a project.