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CEQA Updates

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

Posts from November, 2019

Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165

Thursday, November 21st, 2019

Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165

In 2012, the County of Amador (County) certified a final EIR and approved the Newman Ridge Project, a quarry and related facilities near Ione (Project). The Ione Valley Land, Air, and Water Defense Alliance (LAWDA) filed a petition for writ of mandate, claiming that the approval violated CEQA, the State Mining and Reclamation Act, and the Planning and Zoning Law. In the first petition, LAWDA raised seven CEQA issues. The trial court granted the petition, but only insofar as traffic impacts related to surface street and rail lines were concerned. The trial court required the County to vacate certification of the EIR and recirculate the portion of the EIR pertaining to traffic impacts. LAWDA did not attempt to appeal the trial court’s denial of the remaining six CEQA issues it had raised.

The County, as instructed by the court, vacated its EIR certification and recirculated the portion of the EIR pertaining to traffic impacts. After responding to comments, the County certified the partially recirculated EIR and approved the Project. In June 2015, the County and project applicants filed an additional return certifying that they had complied with the writ. The County asked the trial court to uphold certification of the EIR and approval of the Project, and grant a motion to discharge the writ. The court granted the motion in August 2015.

Coterminously, LAWDA filed a second petition challenging the County’s certification of the partially recirculated EIR. LAWDA alleged eight violations of CEQA relating to water, traffic, biological resources, air, mitigation measures, recirculation principles, overriding considerations, and responses to public comment. The second petition alleged the County did not change any portions of the EIR in recirculation, even though the entire EIR would be affected by changes in the Project area including the official state drought and approval of significant expansion projects nearby. In response, the County demurred and argued that many of the issues raised in the second petition had already been litigated and resolved in the trial court’s judgment on the first petition. The County claimed that these issues were barred from being adjudicated in the second petition by the doctrine of res judicata. On that basis, the trial court denied the writ, and LAWDA appealed.

Relying on Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, the Court held that res judicata bars (1) relitigation of a previously litigated cause of action adjudicated in another proceeding between the same parties and (2) issues which could have been litigated, but a party failed to raise. Applying the doctrine to the facts at hand, the Court agreed with the County that LAWDA was barred from bringing arguments in the second petition other than those related to the recirculated traffic impact analysis.

LAWDA argued in their reply brief that the seven non-traffic issues should be litigated because “new and different circumstances render[ed] the newly certified EIR factually different from the prior EIR”. However, because LAWDA failed to include their counterargument to the application of res judicata in their opening brief, they forfeited the argument raised in their reply brief. Thus, the Court declined to consider the merits because “considerations of fairness in argument demand that the appellant present all of his points in the opening brief.”

The Court concluded that only those arguments concerning the recirculated traffic impact analysis could be raised and were not precluded. The Court rejected the remaining challenge to the traffic impact analysis in an unpublished portion of the opinion, upholding the trial court’s denial of the petition.

Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, 704.

Thursday, November 21st, 2019

Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698, 704.

The Yamanee project, a 10-story mixed-use condominium development in Midtown Sacramento, (Project) exceeded both the density and height limits of its parcel’s zone. A Sacramento General Plan provision allows the City Council to authorize projects at densities higher than the applicable zoning if they are found to provide a significant community benefit. The City found that the Project would create a number of such benefits, including a reduction of residents’ dependence on personal vehicles and the furtherance of the City’s goal to construct 10,000 new residential units in the downtown area. Sacramentans for Fair Planning filed a writ of mandate in the superior court, alleging the City violated zoning law and CEQA by approving the Project. The court denied the petition and Sacramentans appealed to the Third District Court of Appeal.

On appeal, the Court found that under SB 375, if a project is statutorily defined as a transit priority project, a lead agency may utilize a streamlined sustainable communities environmental assessment instead of typical CEQA review methods (an EIR or negative declaration). For a project to qualify as a transit priority project, it must, in part, be consistent with the use designation, density, building intensity, and applicable policies specified for the project area in the regional sustainable communities strategy (SCS).

Sacramentans challenged the City’s use of a Sustainable Communities Environmental Assessment (SCEA) to approve the Project on the basis that SCS development policies in the area were too vague. For instance, the SCS did not identify specific residential densities or building densities for the area. Sacramentans argued that the lack of specificity rendered the SCS unusable as a basis for justifying streamlined CEQA review with an SCEA.

The SCS forecasts a preferred growth scenario for the region which, if followed, would lead to reduced greenhouse gas emissions. To that end, the SCS divides the region into areas and subareas, each forecasted to receive specified amounts and types of development. The SCS designated the Project site as within the central city subarea of the Center and Corridor Community area. This designation allows for relatively dense mixed-use development. As the Court noted, the SCS forecast for the Project area includes a unique capacity for new office, residential, and mixed-use buildings exceeding 3-4 stories, with the potential to more than double the number of housing units in the subarea.

The Court found that Sacramentans misunderstood the role of SCS in their argument when alleging that it was too vague. “The strategy’s purpose is to establish a regional pattern of development, not a site-specific zoning ordinance.” The Court clarified that nothing in SB 375 requires building intensity standards in the SCS more specific than what it contained.

With respect to Sacramentans’ allegation that the lack of specificity rendered streamlining improper, the Court clarified such concerns should be directed to the Legislature, not the Court. The Court stated there was no dispute that the City’s determination of project consistency with the SCS was supported by substantial evidence. Therefore, the Court held that the City was entitled to rely on its consistency determination when using the SCEA.

Sacramentans also asserted that the City erred by relying on EIRs prepared for the General Plan and SCS to avoid analyzing the Project’s cumulative impacts. Sacramentans claimed streamlined review was inappropriate because no prior environmental analysis “has ever considered the cumulative impacts of high-rise development in Midtown approved pursuant to the General Plan.” The Court rejected this argument, and found that CEQA authorized the City to rely on the prior reports as part of its streamlined review of the Project. CEQA required the City, before drafting its SCEA, to prepare an initial study identifying significant or potentially significant impacts, including cumulative impacts. The initial study had to identify any cumulative effects that had been adequately addressed and mitigated in prior applicable environmental impact reports. The Court held that the City’s initial study on the Project, included as part of the SCEA, properly complied with these requirements.

The Court denied the petition, and affirmed the decision of the superior court.

Center for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210

Thursday, November 21st, 2019

Center for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210

The Legislature passed Senate Bill 4 (SB 4) in 2013, requiring the Department of Conservation, Division of Oil, Gas, and Geothermal Resources (Department) to study the environmental effects of fracking and other types of oil and gas well stimulation in California. Specifically, the statute requires the preparation of an EIR pursuant to CEQA to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state. The Department prepared and certified a 5,500-page EIR and circulated it for an extended period of 62 days. The certification statement noted that the EIR was potentially unique due to a lack of any accompanying “proposed project,” such as fracking activities at particular wells. In part, the EIR provided a programmatic-level analysis of three oil and gas sites in the state. The certification stated, “‘well stimulation in the state,’ is not a pending ‘project’ in any ordinary sense.” The EIR also addressed a multitude of activities across the state, some of which had been ongoing for decades when SB 4 was passed.

Center for Biological Diversity (Petitioners) filed a writ of mandate challenging the adequacy of the EIR under SB 4 and CEQA. The trial court ruled that Petitioners’ CEQA claim was not ripe and sustained the Department’s demurrer on the basis that there was no project before the Department requiring approval.

Petitioners appealed to the Third District Court of Appeal. They preliminarily argued that the EIR defined “well stimulation in the state” as the project being analyzed. The Court held that this argument failed to address the ripeness issue raised by the trial court—e.g., the EIR did not describe a project requiring approval. Petitioners claimed that the Department was carrying out a “program” of regulating, overseeing, and permitting well stimulation, in reliance on the EIR, and that this regulatory “program” was itself a “project” within the meaning of CEQA. The Court rejected this argument as well. The Department’s regulation of well stimulation activities does not imply that the Department would directly undertake such activities. Because the Department would not directly undertake the activities, there was no project pursuant to Public Resources Code section 21065, subdivision (a). The Court concluded that the Department created the EIR in response to neither a proposed project, nor to a regulatory program constituting a project.

Petitioners alternatively argued that the Department violated both SB 4 and CEQA by failing to (1) adequately consider a fracking study available at the time the EIR was created; (2) analyze indirect impacts of well stimulation treatments; (3) adequately analyze certain area-specific well stimulation treatments; (4) adopt enforceable mitigation measures; and (5) make findings and adopt a mitigation monitoring and reporting plan.

Before reaching the merits, in the absence of any authority directly on point to assist their review, the Court analyzed the reasoning established in analogous “program” EIR cases. The Court found (1) program EIRs may defer discussion of site-specific impacts and mitigation measures to later project EIRs where the impacts or mitigation measures are not determined by first-tier approval, but are specific to later phases (2) the sufficiency of a program EIR must be reviewed in light of what is reasonably feasible, given the nature and scope of the project, and (3) when considering a challenge to a program EIR, courts must focus on whether the EIR includes enough detail to enable those who did not participate in its preparation to understand and meaningfully consider the issues raised in it.

Turning to Petitioners’ first argument, the Court found that the Department did not violate SB 4 or CEQA by failing to incorporate the fracking study into the EIR. The Court held that while SB 4 called for a staggered timeline which could allow for the study to be included in the EIR, nothing in SB 4 suggests that the Legislature intended to link the documents. The Court postulated that the Legislature could have intended for independent production of the fracking study and EIR to effectuate SB 4’s remedial purposes of increasing the overall level of existing public information regarding well stimulation treatments.

The Court addressed the second issue, finding the Department adequately addressed indirect impacts of well stimulation treatments. Petitioners contended that the EIR failed to analyze emissions caused by pumping and transporting oil and gas, traffic, and wastewater produced from stimulated wells. The Court found that the Department was not required to analyze these indirect impacts, but nonetheless did so on a programmatic basis, properly deferring in-depth analysis to later project-level EIRs. Nothing in SB 4 requires analysis of indirect impacts caused by additional oil and gas production made possible by well stimulation treatments. The Court refused to adopt a sweeping mandate implied from SB 4’s instruction to prepare an EIR “pursuant to CEQA.” Instead, the Court reiterated that the purpose of SB 4 was to address the dearth of information about the environmental effects of well stimulation treatments in particular, not oil and gas production in general.

The Center advanced their third and fourth arguments by alleging the Department failed to propose enforceable mitigation measures and failed to mitigate direct impacts of well stimulation treatments. The Court noted that they were “inclined to agree” with the Department that a lead agency has no obligation to adopt formal mitigation measures prior to the approval of a project, but did not conclusively establish as such. Instead, the Court found the Department had committed to specific performance criteria to mitigate direct effects of well stimulation treatments through adoption of its Mitigation Policy Manual and reasonably concluded that potential mitigation measures to remedy indirect effects of well stimulation treatments were infeasible.

Finally, the Court found that the Department did not have to make findings or adopt a mitigation monitoring and reporting plan. CEQA requires findings and mitigation monitoring and reporting plans when an agency approves or carries out a project. As established, there was no project before the Department requiring approval, and the Department was not carrying out a program of well stimulation treatments in the state.

The Court concluded that the Department’s EIR had adequately disclosed the conclusions of the study and analyzed indirect impacts on a programmatic basis. The Court found that the Department properly deferred further analysis to project-level EIRs. The EIR was created in response to a legislative mandate designed to further understand the effects of fracking. The Court found the EIR adequate under adequate under SB 4 and CEQA.

Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768, 772-773.

Thursday, November 21st, 2019

Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768, 772-773.

The owner of an occupied, 18-unit rent-stabilized apartment building sought to demolish and replace the structure with a condominium project. After the City adopted a mitigated negative declaration finding that the project would not have a significant effect on the environment, the owner withdrew the units from the rental housing market pursuant to the Ellis Act, leaving the building vacant. Shortly thereafter, the developer backed out of the project due to a lack of financing.

Roughly two years later, the owner filed a second application with the City to convert the vacant building into a 24-room boutique hotel (Project). An initial study concluded that the Project would not require further environmental review, as it did not displace housing units or residents. The initial study rationalized that the units had already been withdrawn from the market, so no displacement would result. Following a public hearing, the City adopted another MND and approved the Project.

Petitioners filed suit, alleging that the City was required to prepare an EIR analyzing the Project’s potentially significant impacts on the rent-stabilized housing supply and associated tenant displacement. Petitioners argued that the City prepared a legally inadequate initial study and MND by using the structure’s vacant status as a baseline for environmental review, rather than adopting a baseline from when it was occupied. The trial court rejected this argument, holding that the proper Project baseline was when environmental review began for the second application. This set the environmental baseline at the point where the building had been vacant for two years. The trial court found Petitioners’ entire CEQA claim deficient because it used the wrong baseline, and concluded that physical impacts trigger the preparation of an EIR, not socioeconomic impacts with no secondary physical impacts.

The Court of Appeal agreed, focusing its Opinion on the proper baseline. Petitioners argued that the decision to withdraw the rental units was not irreversible if, for example, the City were to have denied the application. The Court considered this to be a purely speculative argument, given the reality that the units had been withdrawn from the market and the building sat vacant for two years. The Court also rejected Petitioners’ argument that the Project should be viewed cumulatively with consideration of prior rental unit withdrawal. Thus, the Court upheld the use of the City’s baseline. v. City of Los Angeles (2019) 39 Cal. App. 5th 1

Thursday, November 21st, 2019 v. City of Los Angeles (2019) 39 Cal. App. 5th 1

Millennium Hollywood LLC, the City of Los Angeles, and the Los Angeles City Council (Appellants) challenged a trial court holding that a proposed four-and-a-half-acre mixed-use development failed to comply with the requirements of CEQA.

Millennium filed a master land use permit with the City’s Planning Department in 2008. In an attachment, Millennium described what it proposed to build and the objectives for the project. Development was abandoned (following a finding that the project violated FAR requirements) until 2011, when Millennium filed another master land use permit, this time lacking any description or detail regarding what they intended to build. The initial study did not include any drawings or renderings; the number of buildings; or their shape, or size, or purpose. The only finite information was the development’s size, location, and purposes of existing buildings nearby. The DEIR identified it as a “mixed use development” and stated that the massing characteristics and specific land uses were left vague to allow for flexibility. The DEIR included a conceptual plan (along with two alternatives of similar detail) to illustrate potential scenarios following approval of the development agreement. The FEIR maintained the same project description, and, over public comment noting it would be difficult to “respond to a project that does not include a specific proposal”, the Council approved the project. filed a petition seeking a peremptory writ of mandate directing the City to set aside approval of the Project and EIR certification. The petition set forth three CEQA causes of actions, two of which were granted by the trial court. The trial court found that the City abused its discretion by (1) failing to provide an accurate, stable, and finite project description, and (2) declining to conduct a traffic study. The trial court found the project description was inconsistent and failed to describe essential requirements under CEQA: siting, size, mass, or appearance of proposed building. The DEIR didn’t describe a stable or finite building development project—rather, it presented conceptual scenarios that Millennium or future developers could follow at the site.

Appellants filed an appeal with the Second District Court of Appeal. The Court upheld the decision of the trial court in full.

First, the Court established that the project description was not “accurate, stable and finite” as required under CEQA. The Court explained that the informative purpose of CEQA is not served through “incessant shifts among different project descriptions”, and that vagueness could result in vitiation of the EIR process as a vehicle for public participation. The Court held that the project description provided the public and decision makers little by way of actual information regarding “design features” or a “final development scenario.” Rather, they constituted vague and ambiguous regulations which simply limited the range of options for future developers.

The Court rejected the argument that the conceptual “impacts envelope” contemplated in the project alternatives complied with CEQA because it assumed, analyzed, and mitigated worst-case-scenario environmental effects; noting that this exact argument was “made and roundly rejected in County of Inyo [v. City of Los Angeles (1977) 71 Cal. App. 3d 185]and Washoe Meadows [Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277].”

Rather, the Court directed developers to follow the project description requirements enumerated in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal. App. 5th 321 (South of Market) and the Guidelines, which require a general description of a project’s technical, economic, and environmental characteristics. In South of Market, the DEIR’s project description met Guidelines standards through inclusion of site plans, illustrative massing, building elevations, cross-sections, and representative floor plans for multiple schemes—even though the project would ultimately result in one scheme.

The Court found that unlike South of Market,the project description at issue failed to meet basic Guidelines requirements. Technical characteristics—such as those provided in South of Market for multiple schemes—were absent. The DEIR did not contain site plans, cross-sections, building elevations, or illustrative massing to show what buildings would be built, where they would be sited, what they would look like, and how many there would be.

Moreover, as noted by the trial court, there were no practical impediments as to why Millennium could not have provided an accurate, stable, and finite description of what it intended to build. The Court found this case distinguishable from Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal. App. 4th 1036, which held that there may be times when a project description setting forth only the physical parameters and maximum environmental impacts may be reasonable—such as when conditions on the site interfere with making any firm commitment as to whether development would be possible and, if so, what type of development would occur. Instead, the Court agreed with the trial court’s assessment that those circumstances were not present in this case. In the earliest proposals for the project, prior to temporary abandonment, Millennium could clearly describe what they intended to build on the two parcels. Further, unlike Treasure Island, Millennium’s future configuration would not be subject to supplemental review before implementing the final Project design. The Court concluded that Treasure Island’s environmental review process provided for subsequent review when actual projects were proposed. Here, no subsequent review was contemplated.

Identifying that there were no extenuating circumstances on the site which would prevent Millennium’s preparation of an accurate, stable, and finite description, the Court found that the City’s actions constituted an impermissible impairment of the public’s ability to participate in the CEQA process. The Court concluded that because the project description is at the heart of the EIR process, it was not necessary to reach the other allegations of the appeal. Accordingly, the Court affirmed the judgement of the trial court in full.

South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal. App. 5th 321

Thursday, November 21st, 2019

South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal. App. 5th 321

In 2014, Forest City California Residential Development, Inc. proposed a mixed-use business and residential project known as “5M” in the area bounded by Mission, Fifth, Howard, and Sixth Streets in San Francisco. The 5M site included seven parking lots and eight buildings with office and commercial uses. The San Francisco Planning Department released a DEIR on October 15, 2014, which described two “options” for 5M—an “office scheme” and a “residential scheme”. Under both, 5M would result in new active ground floor space, office use, residential dwelling units, and open space. Both schemes would reserve and rehabilitate two of the existing buildings on the site, and demolish the six remaining structures. The DEIR discussed nine alternatives to 5M, and rejected five as infeasible.

The San Francisco Planning Commission held an informal hearing on the DEIR, accepted public comment until January 2015, and published the FEIR. Following certification of the EIR, South of Market Community Action Network, Save Our SOMA, and Friends of Boeddeker Park (collectively, Plaintiffs) appealed the decision to the San Francisco Board of Supervisors. The Board of Supervisors denied the appeal. Plaintiffs filed a petition for writ of mandate in superior court alleging CEQA violations. The court heard arguments and denied the writ. Plaintiffs appealed to the Fifth District Court of Appeal, arguing deficiencies in the EIR’s discussion of the project description, cumulative impacts, traffic and circulation impacts, wind impacts, open space impacts, shade and shadow impacts, area plan consistency, and statement of overriding considerations. (For the purposes of this outline, only the project description portion of the Opinion is analyzed in detail.)

Plaintiffs alleged the EIR failed to provide a stable and accurate project description. They argued that the “office scheme” and “residential scheme” alternatives were “confusing” and hampered commenters’ ability to understand the project that was actually proposed and analyzed. The Court found Plaintiffs’ claim that the DEIR presented multiple possible Projects (rather than a description of a single project with two possible buildout schemes) “specious”. The Court noted that Plaintiffs failed to attack the project description on grounds related to CEQA’s technical requirements, or point to erroneously omitted information.

The DEIR’s project description stated that 5M is a mixed-use project on a four-acre site in downtown San Francisco featuring two project options with substantially the same overall gross square footage but with a varying mix of residential and office uses. It set forth measurements of gross square footage for each scheme along with site plans, illustrative massing, building elevations, cross sections, and representative floor plans. The DEIR also evaluated the environmental impacts of each scheme independently. The Court found that this level of detail, along with response to public comment when contentions of confusion arose, constituted an appropriate project description and served the informational nature of the document to allow for public participation.

The Court dispensed with Plaintiff’s reliance on County of Inyo v. City of Los Angeles (1977) 71 Cal. App. 3d 185and Washoe Meadows Community v. Department of Parks and recreation (2017) 17 Cal.App.5th 277, noting that unlike those cases, here, there were no fluctuations in the project description during the EIR process, the initial project description was not misleading and a small fragment of the ultimately approved project, and the project description clearly identified what was going to be built in either proposed scheme.

Plaintiffs alternatively alleged the 5M project description was deficient because the FEIR ultimately adopted a proposed plan based not on the two described schemes, but rather, based on a “revised” variant of the preservation alternative identified in the DEIR. The Court found Plaintiffs failed to identify any component of the revised project unaddressed in the DEIR, and stated that the CEQA reporting process is intended to be flexible to allow for the implementation of “unforeseen insights” gained during the project consideration. The Court stated that the whole point of requiring evaluation of alternatives in a DEIR is to allow thoughtful consideration and public participation regarding other options that may be less harmful to the environment. If the approved action must be a blanket approval of the entire project as initially described in the EIR, the informational value of the document would be “sacrificed”. The Court concluded that although the project description did not include a verbatim description of the ultimately approved Project, the adopted characteristics came from one of the proposed alternatives; satisfying “one of the key purposes of the CEQA process”.

The First District similarly dismissed Plaintiffs’ remaining arguments relating to cumulative impacts, traffic and circulation, wind, open space, shade and shadow, area plan consistency, and statement of overriding considerations. Accordingly, the Court upheld the judgement of the superior court in full.

Maacama Watershed Alliance v. County of Sonoma (2019) Cal.App.5th 1007

Thursday, November 21st, 2019

Maacama Watershed Alliance v. County of Sonoma (2019) Cal.App.5th 1007

In 2015, Knight Bridge Vineyards LLC sought approval from the County of Sonoma to develop a two-story, 5,500 square foot winery, a 17,500 square foot wine cave, tasting room, wastewater treatment and water storage facility, fire protection facility, and mechanical area on an 86-acre parcel zoned for “extensive agriculture” (Project). The extensive agriculture zone allows wineries and tasting rooms as conditional uses. County staff reviewed reports considering effects of the Project on geology, groundwater, wastewater, and biological resources. Staff concluded that, with recommended mitigation, the Project would not have a significant effect on the environment, and recommended the County adopt an MND and approve the Project. On September 17, 2016, the County approved the CUP and adopted the “2015 MND” and mitigation monitoring program.

Maacama Watershed Alliance and Friends of Spencer Lane (collectively, Petitioners) appealed the decision to the County. In response, County staff prepared a revised “2016 MND”. After comments were submitted identifying potential groundwater and water quality impacts, the County engaged in further environmental review and subjected their conclusions to two rounds of peer review by independent investigators. The County then adopted the revised “2017 MND” and approved the Project.

Petitioners filed a petition for writ of mandate in the superior court, contending the County should have prepared an EIR instead of an MND. Petitioners alleged there was a fair argument that construction and operation of the winery would cause significant environmental effects. The superior court denied the writ of mandate, and Petitioners appealed to the First District Court of Appeal. The Opinion examined the adequacy of the County’s environmental review; focusing on geology and erosion, biological resources, water quality, fire hazards, and visual impacts.

The 2017 MND’s geology, water quality, and biological resources sections noted the presence of a large, ancient, and inactive landslide on the Project site; but determined that the winery and caves were outside the landslide area. The study recommended (1) a variety of mitigation measures to ensure that the Project would not result in erosion or landslides and (2) best management practices during construction to minimize erosion and sediment deposits impacting water quality and steelhead or coho habitat in the nearby Bidwell Creek. These measures would result in less than significant impacts to special status species and would prevent substantial erosion by protecting existing drainage patterns on the site.

Petitioners retained a variety of independent researchers to support the argument that the County’s review was inadequate and failed to accurately report site conditions. Petitioners’ researchers disagreed with the County’s geotechnical investigator, and claimed the report did not support the conclusions regarding landslide risk and slope stability. The Court outlined each of researchers’ opinions, and determined that the County was entitled to rely on their report. Petitioners also suggested that the County improperly deferred geological impact mitigation by relying on best management practices and the County’s grading ordinance. The Court disagreed and found that this was not a case of post-hoc mitigation formulation. Rather, there is “nothing improper” about adopting measures to reduce the Project’s expected environmental effects while requiring monitoring and adjusting in the event of unanticipated conditions.

Petitioners contended substantial evidence supported a fair argument that the Project’s groundwater use would significantly affect the salmonid population in Bidwell Creek and ground water supply in nearby wells. The Court disagreed. The original Project, as proposed in 2013, would result in increased groundwater use of 5.5 acre-feet a year. The Project, as approved in the 2017 MND, would result in no net increase in groundwater use over current conditions through implementation of water reduction measures, documentation of water use, ongoing monitoring, and corrective measures. Petitioners again employed outside experts to challenge the County’s reports. After weighing the veracity of their arguments, the Court held that while evidence would support a finding that the Project will not cause significant effects on groundwater supplying Bidwell Creek and neighboring wells, that was not the question presented to the Court. Instead, the question before the Court was whether there was substantial evidence to support a fair argument that the Project will have significant effects. The Court held that the Project will not have significant effects, and upheld the County’s decision making.

The Court similarly dismissed Petitioners’ challenge to the adequacy of aesthetic considerations. The 2017 MND stated that the site was not designated as a scenic resource, and that the Project would not cause significant visual impacts. Petitioners claimed that a light-colored unvegetated 10-bedroom residence on the ridgeline near the Project site was visible from scenic highways, and argued that the Project would have similar visual impacts. The Court disagreed on the basis that the Project would not be on the ridgeline, and that to the extent that the roof could be seen from scenic highways, it would be surrounded by vegetation and designed with low-reflective, earthy tones. The Court recognized that while comments from laypersons may constitute substantial evidence supporting a fair argument of significant aesthetic effects, in this case, the opinions of local residents “based largely on the views of a different structure” were not sufficient to show that the Project would have significant aesthetic impacts.

Finally, Petitioners claimed a fair argument existed that the MND improperly concluded that the Project’s wildland fire risk was less than significant. The Court found that the Project was consistent with the General Plan’s Public Safety Element and the County’s Fire Marshal’s Fire Safe Standards. Although the site is within a very high fire hazard severity zone, the Project would be subject to the County’s permit requirements and robust fire suppression measures. The Court concluded that Petitioners failed to point to substantial evidence supporting a fair argument that the Project would significantly increase the risk of wildfires.

The Court concluded that the MND properly analyzed potential environmental effects, and noted that while Petitioners did not “obtain the relief they have sought”, they achieved success by forcing Project modifications and extensive analysis of its environmental effects through litigation.

Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 885

Thursday, November 21st, 2019

Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880, 885

The City of Berkeley approved development of three single-family homes on adjacent parcels. The landowner submitted applications for use permits, including two geotechnical and geological hazard reports. These reports, though they recommended approval, revealed that the western portion of the site was within an earthquake fault zone and potential earthquake-induced landslide area. The zoning adjustments board approved the permits, finding them categorically exempt from CEQA under the class 3 categorical exemption for new construction of small structures, which includes up to three single-family residences in urbanized areas.

Berkeley Hills Watershed Coalition (“Coalition”) filed a petition for writ of mandate alleging two exceptions to the class 3 exemption applied: the “location” exception under Guidelines section 15300.2(a), and the “unusual circumstances” exception under Guidelines section 15300.2(c). The trial court denied the petition, and this appeal followed. The First District affirmed the trial court on both counts, holding that the Coalition did not meet its burden showing that the exception to the exemption applied.

The Court noted that Courts of Appeal have historically disagreed on the applicable standard of review applied to the exceptions to categorical exemptions enumerated in CEQA Guidelines section 15300.2(a)-(c). The Court stated that confusion regarding the unusual circumstances exception to the exemption was resolved by the Supreme Court in Berkeley Hillside. There, the Supreme Court held that a bifurcated approach applies to the evaluation of an agency’s decision: (1) determine, under section 21168.5’s substantial evidence standard of review, if there are unusual circumstances (a factual inquiry deferential to the agency’s determination); and (2) if the agency finds unusual circumstances, determine if there is a reasonable possibility that the unusual circumstances would produce a significant effect on the environment under the fair argument standard. In Aptos Residents Assn. v. County of Santa Cruz (2018) 20 Cal.App.5th 1039—decided after Berkeley Hillside but before Berkeley Hills Watershed Coalition—the Court noted that the standard of review applicable to cumulative impact and location exceptions was not as well-settled, but concluded that a similar standard of judicial review applies to all three exceptions. Aptos implicated the cumulative impacts exception, and held that cumulative impacts must contain more than mere speculation.

The First District extended this interpretation, and held that the Berkeley Hillside bifurcated standard of review applies to the “location” exception to a class 3 categorical exemption, as well.

With the standard of review established, the Court examined Coalition’s claim that, under the plain language of the location exception, earthquake-induced landslide areas were “environmental resources of hazardous or critical concern.” The Court stressed that the plain meaning of “environmental resource” in the location exception does not encompass possible earthquake or landslide zones. Instead, a “resource” is a “natural source of wealth or revenue,” or a “natural feature or phenomenon that enhances the quality of human life.” Earthquakes and landslides are geologic events that—while hazardous—are not “resources.” In giving plain meaning to the phrase “environmental resource,” the Court found the location exception does not cover all areas subject to potential natural disasters as a matter of law. The Court found the guideline “clear and unambiguous”, and stated that the location exception does not apply based solely on Coalition’s “undisputed” claim that the project’s location rests on a potential earthquake and landslide zone. Instead, the Court granted deference to the City’s determination that the site is not located in an environmentally sensitive area.

To satisfy the first prong of the extended Berkeley Hillside bifurcated approach, the Court upheld the City’s determination that the project is not in an environmentally sensitive area, and noted that the determination was properly supported by substantial evidence. Accordingly, the Court declined to address the second prong of the location exception involving the determination of whether substantial evidence supports a “fair argument” that the project “may impact” the environment. The Court stated that even if they did reach the second prong, they would still affirm the agency’s location exemption finding, based on the Coalition’s failure to identify substantial evidence to support a fair argument that the project would exacerbate existing hazardous conditions or harm the environment.

Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal. 5th 1171

Thursday, November 21st, 2019

Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal. 5th 1171

In 2014, the City of San Diego adopted an ordinance amending its zoning code to allow for medical marijuana dispensaries. The ordinance capped the number of dispensaries allowed in each city council district, placed restrictions on where the dispensaries could be located, and required conditional use permits for all dispensaries. The City found that adopting the ordinance was not a project, and therefore, was not subject to CEQA. The findings stated that the ordinance did not have the potential to cause environmental impacts, and noted that future dispensaries would require a discretionary permit and environmental review.

The Union of Medical Marijuana Patients (UMMP) filed a petition, arguing the ordinance should have been considered a project subject to environmental review. The trial court disagreed and denied the petition. On appeal, UMMP reiterated their argument and asserted that section 21080 requires zoning amendments be considered projects under CEQA as a matter of law. The appellate court disagreed, holding that the statute did not require such a finding; and rejected the argument that the City should have found the ordinance to be a project. Thereafter, the California Supreme Court accepted the case for review.

The Court first addressed the question of whether an agency amendment of a zoning ordinance constitutes a project as a matter of law. The Court reiterated the significance of California Public Resources Code section 21065, which defines a ‘project’ under CEQA. Under section 21065, an activity is a project if it “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment” and is subject to agency control in some way (e.g., undertaken by the agency itself, funded by the agency, or subject to licensing or permitting by the agency).

UUMP relied on section 21080’s definition of statutory exemptions from CEQA, which states, “[e]xcept as otherwise provided, [CEQA] shall apply to discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances … unless the project is exempt from this division.” UMMP argued that section 21080’s statutory reference to zoning amendments means that such ordinances, as a matter of law, are projects under CEQA. This argument was supported by Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, a case concerning the approval of a tentative subdivision map (which is also listed in section 21080).

The Supreme Court disagreed and disapproved the ruling in Rominger, holding that section 21080 did not classify all zoning code amendments as projects. Rather, the Court evaluated the plain language of 21080 and 21065 and concluded that, when read together, the language unambiguously allows for zoning amendments that do not meet the definition of a ‘project’ to be deemed ‘not a project’. These zoning code amendments would fall outside of CEQA’s obligations. The Court supported this conclusion by noting the needless costs involved in subjecting an ordinance which did not have the potential to impact the environment to additional environmental review.

In other words, the language of 21080, which lists various types of approvals, does not create a list of projects mandating CEQA review. Rather, 21080 must be read together with 21065 and the listed activities in 21080 must have the potential to result in a direct or indirect physical change in the environment, as described in 21065.

The Court addressed whether the City had properly concluded the zoning ordinance was not a project. The Court’s analysis largely centered on Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372. Muzzy Ranch involved two issues: whether approval of a transportation and land use plan was a project, and if so, whether the project was exempt under the commonsense exemption. The commonsense exemption states that a project is exempt, “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.” (CEQA Guidelines, §15061(b)(3).) Despite similar language between the commonsense exemption and section 21065’s definition of a ‘project’, the Court in Muzzy Ranch held that the approval was a project, yet was exempt from CEQA under the commonsense exemption.

Here, the Court underscored its decision in Muzzy, finding that the initial determination of whether an action constitutes a project is a legal inquiry to determine if the “activity’s potential for causing environmental change is sufficient to justify the further inquiry into its actual effects”. The Court concluded that the somewhat “abstract” nature of defining ‘project’ was appropriate to the “preliminary role” in “CEQA’s three-tiered decision tree”. The Court concluded that prior to the ordinance, dispensaries were not allowed, but illegal businesses did operate within the City. New retail and closure of prior illegal dispensaries creating different patterns of traffic are sufficiently plausible impacts to find the ordinance may result in a “reasonably foreseeable indirect physical change in the environment.” But whether the ordinance will result in “actual” impacts on the environment is a determination best left to later tiers in the CEQA decision tree.

While the Court acknowledged certain impacts alleged by UMMP could turn out to be minimal or nonexistent, it held that both the City and Court of Appeal improperly attempted an evaluation of the actual impacts. The Court held that there were potential impacts of the ordinance, such as construction related to new dispensaries and changes in traffic patterns. On that basis, the Court found that the ordinance was a project.

Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation, 39 Cal. App. 5th 1044

Thursday, November 21st, 2019

Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation, 39 Cal. App. 5th 1044

The California Department of Corrections (Department) operates a prison next to the historic Lake Norconian Club, a former resort and hotel constructed in the 1920’s. The Department used the building as a drug rehabilitation facility, and later, as prison administrative offices. In 2012, the legislature decided to close the prison, and the Department prepared an EIR for the planned closure. The EIR stated that the Department could not allocate necessary funds to maintain the building due to the Department’s other maintenance priorities. The legislature later changed its mind, allowing the Department to continue operating the prison, however, the Department decided that it would not maintain the former hotel.

Beginning in 2006, Lake Norconian Club Foundation (Petitioners) repeatedly advocated for the Department to maintain the hotel. Petitioners sued in 2014, alleging that the Department’s willful and ongoing failure to maintain the hotel was a continuous discretionary action with significant environmental impacts, and therefore, was a project under CEQA for which no environmental review was conducted. The trial court agreed with Petitioners and found the Department’s actions and omissions constituted a project under CEQA, but nevertheless entered judgment in favor of the Department. The trial court concluded that the statute of limitation began to run when the 2013 EIR was certified, rendering the 2014 petition untimely.

Petitioners appealed the judgment, and the Department cross-appealed, arguing that its inaction was not a project under CEQA.

No prior California case has addressed whether an agency’s failure to act could be considered a project. In federal NEPA cases, courts have often held that inaction does not constitute ‘action’ (the NEPA term analogous to a ‘project’ under CEQA). NEPA guidelines state that inaction may constitute action where the omission would be judicially reviewable under the APA, and case law has held that inaction in the face of a mandatory duty to act creates an omission.

The Court noted that CEQA contains no such guideline and Petitioners failed to identify a statute which created a duty for the Department to maintain the hotel. The Court stated that CEQA defines “project” by describing activities which constitute projects—failure to act is not a project, even if the inactivity would lead to environmental consequences. The Court noted the practical unworkability of deeming inactivity a project, particularly when attempting to determine when the ‘inactivity project’ commences or receives approval for purposes of CEQA’s statute of limitations.

Absent any statutory duty, the Court held that the Department’s failure to act could not be deemed a project, nor challenged for noncompliance with CEQA; and that inaction is not a project under CEQA, at least where there is no affirmative duty to act.