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California Judicial Council Issues New Emergency Rules of Court in Light of COVID-19 and Freezes Civil Statutes of Limitation

Monday, April 27th, 2020

The Judicial Council of California met on April 6, 2020 to adopt a series of emergency court rules. Emergency Rule 9 tolls civil statutes of limitations (SOL)—including those found in CEQA—from April 6, 2020 to 90 days after the Governor lifts the state of emergency.

When a statute of limitation is tolled, the limitations period stops running and begins to run again when the tolling event has concluded. (See Woods v. Young (1991) 53 Cal.3d 315, 326, fn. 3 [“Tolling may be analogized to a clock that is stopped and then restarted. Whatever period of time that remained when the clock is stopped is available when the clock is restarted, that is, when the tolling period has ended.”].) This means, once the COVID-19 suspension is lifted via Governor proclamation (proclamation), careful calculation will be required ensure that procedural mishaps do not occur. For projects approved prior to the issuance of Emergency Rule 9, the statute of limitations period will include the days prior to April 6th, then the remaining days after the tolling period expires.

For example: If an NOE (with a 35-day CEQA statute of limitations) was issued on March 10th and the Governor lifts the state of emergency on June 2nd, the statute of limitations will run on September 9th. This credits the 26 days leading up to April 6th  against the 35 day SOL, accounts for the 90 days following the June 2nd lifting of the state of emergency and the remaining 9 days of the 35 non-tolled days.

For projects approved after the proclamation, but before the 90-day suspension expires, the statute of limitations will not begin until the remaining portion of the 90-day period concludes.

For example: If the Governor issues the proclamation on June 2nd, and an agency approves a project and posts an NOD (with a 30-day CEQA statute of limitations) on June 4th, the statute of limitations will run on September 30th. This accounts for the remaining 88 days of the 90-day suspension plus the ordinary 30-day statute of limitations.

The Governor must lift the state of emergency via proclamation at the “earliest possible date that conditions warrant”. (See Gov. Code 8629.) As of April 27, 2020, there have been 43,784 confirmed cases in California, with many more asymptomatic and low-grade cases evading identification. It has been speculated that the number of cases in California will reach their peak this month, although the country’s total cases are not expected to peak until (at least) the end of the month, with additional infections and deaths projected through the summer. In short, no one knows when cases will decline to the level that the Governor will issue a proclamation restarting the clock on civil statutes of limitations.


Wednesday, April 22nd, 2020

CEQA states California’s policy to take all action necessary to provide people with enjoyment of the state’s many aesthetic, natural, scenic, and historicenvironmental qualities. (Pub. Resources Code, § 21001, subd. (b).) Aesthetic impacts occur when a project has the potential to substantially degrade the existing visual character or quality of a site, its surroundings, or scenic views. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 363, 374–375; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 936-937 (Pocket Protectors).)

Aesthetic impacts are unique among CEQA impacts in that they are inherently subjective. I like Monet, you like Mapplethorpe. Ultimately, no statewide definition exists of what is or is not aesthetically acceptable. Rather, aesthetic determinations are informed by local ordinances, zoning codes, the project’s setting, public comment, and the discretion of local decisionmakers.

The significance of an aesthetics impact is measured in light of the context where it occurs. (See Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 589-593 (Bowman).) Aesthetic analyses consider whether a project is in an urban or undeveloped rural area, or if a project impacts a public view, park, trail, or historical resource. (See San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1026; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 903 (Porterville Citizens); Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402.) An aesthetic impact will only be considered significant if it affects the environment of persons in general—impacts to particular persons do not suffice. (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1041-1042; Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-494.)

Expert opinion is generally needed to provide substantial evidence of a significant environmental impact under CEQA, but an aesthetics challenge may be supported by lay opinion. (See, e.g., Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358, 363 (Georgetown); Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129; Bowman, supra, 122 Cal.App.4th at pp. 587-588.) Therefore, lead agencies should avoid dismissing public comments on aesthetics impacts—particularly where relying on negative declarations—because a court may find reasoned public opinion amounts to substantial evidence of a fair argument of a significant impact. (See Pocket Protectors, supra,124 Cal. App. 4th at p. 939.) Nonetheless, public concern or complaints about the aesthetic impacts of a project do not automatically satisfy the low threshold of the fair argument standard. Aesthetic claims raised under the guise of preserving “community character” or “subjective psychological feelings or social impacts” are insufficient. (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560; City of Pasadena v. State of California (1993) 14 Cal.App.4th 810-829.) Aesthetics challenges premised on economic concerns similarly do not suffice. (E.g., Porterville Citizens, supra,157 Cal.App.4th at pp. 903-904; Guidelines, § 15131, subd. (a).) And, as mentioned, context counts. The Legislature did not intend to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area, for example. (Bowman, supra, 122 Cal.App.4th at p. 592.) Otherwise, an EIR would be required for every urban building project unexempt from CEQA “if enough people could be marshaled to complain about how it will look.” (Ibid.)   In conjunction with the statewide push to close the housing needs gap, the Legislature specified that aesthetic impacts need not be analyzed when a lead agency considers a housing project involving the refurbishing, converting, repurposing, or replacing an existing, dilapidated or vacant building, unless that housing project impacts the aesthetics of a state scenic highway or cultural resource. (Pub. Resources Code, § 21081.3(a).) Additionally, Senate Bill 743 bars project opponents from bringing aesthetics challenges under CEQA to residential, mixed-use residential, or employment center infill projects in a transit priority area. (Pub. Resources Code, § 21099, subd. (d).)

Second District Court of Appeal Upholds Challenge to an MND for a Mixed-Use Project on Environmentally Sensitive Hillside and Award of Attorney Fees

Monday, April 6th, 2020

In Save the Agoura Cornell Knoll v. City of Agoura Hills (February 24, 2020) 2020 Cal. App. LEXIS 222, in a detailed decision, the Second District Court of Appeal affirmed the trial court’s judgement and concluded that a proposed mixed-use development project in Los Angeles County presented potentially significant impacts requiring the preparation of an EIR, not an MND.

In January 2017, the City of Agoura Hills’ (City’s) Planning Commission approved a development permit, conditional use permit, oak tree permit, and a tentative parcel map for the Cornerstone Mixed-Use Project (Project). The Project is an 8.2-acre mixed-use development including 35 residential apartment units, retail, restaurant, and office space. The majority of the site is located within the Agoura Village Specific Plan (AVSP), while the remaining portion is classified as a Significant Ecological Area. The site is currently an undeveloped hillside at the southeast corner of a confluence of roads within the City. Commercial retail uses are located to the west, northwest, and north of the property. The site includes native grasses and oaks, and contains three plant species considered rare, threatened, or endangered.

The California Native Plant Society (CNPS) appealed the Planning Commission’s decision. In March 2017, the Agoura Hills City Council held a public hearing on the appeal, approved the Project, and adopted the Project’s MND. The Council found, based on the record, there was no substantial evidence that the Project would have a significant effect on the environment because the MND incorporated feasible mitigation measures reducing potential environmental impacts to a less than significant level. On March 16, 2017, the City filed a notice of determination recording its approval and adoption of the MND. Following the City’s decision, Save the Agoura Cornell Knoll (STACK) filed a verified petition for writ of mandate alleging that the approval violated CEQA, planning and zoning law, and the City’s Oak Tree Ordinance. In an amended Petition, STACK joined CNPS as an additional petitioner (collectively, Petitioners).

The trial court found there was substantial evidence to support a fair argument that the Project may have significant environmental impacts on cultural resources, sensitive plant species, oak trees, and aesthetic resources and the proposed mitigation measures were inadequate to reduce impacts to a less than significant level. The trial court also found that the oak permit issued by the City violated a local ordinance prohibiting the removal of more than 10% of the total estimated oak tree canopy or root structure on a project site. Accordingly, the trial court entered judgement in favor of Petitioners and ordered the issuance of a peremptory writ of mandate directing the City to set aside its approval and the MND. In a post-judgement proceeding, the trial court awarded Petitioners attorneys fees totaling approximately $142,000.

Project owners and developers (Appellants) challenged the trial court’s decision and presented a variety of procedural and substantive claims related to standing, forfeiture, administrative exhaustion, cultural resources, sensitive plant species, and native oak trees. The Second District Court of Appeal rejected each allegation and affirmed the holding of the trial court in its entirety.


Appellants preliminarily argued that the trial court erred in considering evidence of administrative exhaustion because Petitioners forfeited the issue by failing to raise it in their opening brief. The Court rejected this argument because, in the first amended petition for writ of mandate (joining CNPS), Petitioners alleged that they had “performed all conditions precedent to filing this action, including exhaustion of all administrative remedies available to them.” Additionally, while Petitioners’ opening brief did not address the issue of exhaustion directly, it cited to public comments regarding the Project’s significant impacts and disputing the adequacy of the MND’s mitigation measures. Then, in their reply brief, Petitioners cited some of the same evidence to  demonstrate that they had exhausted administrative remedies. The Court held that Petitioners sufficiently addressed the issue in their reply and noted that the trial court gave the parties ample opportunity over the course of two hearings to argue whether administrative remedies had been exhausted. The Court held that under these circumstances, Petitioners’ failure to argue that they satisfied the exhaustion requirement in their opening brief did not forfeit the issue in subsequent briefs.

Throughout their substantive claims, Appellants argued that Petitioners had failed to exhaust administrative remedies during the administrative proceedings. In each instance, the Court held that administrative remedies had been exhausted through a combination of Petitioner and public comments presented during the administrative proceedings.

Appellants also argued, for the first time on appeal, that the entire action must be dismissed based on Petitioners’ lack of standing. According to Appellants, STACK failed to prove that either the organization or any of its members objected to the approval prior to the close of public hearing. They further alleged that CNPS was barred from serving as a substitute petitioner by the statute of limitations because it was not named as a petitioner until after the statute of limitations ran. While standing may be raised at any time—including for the first time on appeal—statute of limitations claims are forfeited if not properly asserted in a general demurrer or pleaded in an answer. Having failed to plead the statute of limitations in its answer or a demurrer, Appellants were barred from doing so on appeal, and there was no dispute that CNPS had standing. Because one petitioner had unequivocal standing under CEQA, jurisdiction was proper. The Court also noted that attempting to determine STACK’s standing would fall outside the proper scope of review because it would require consideration of factual issues not included in the record (such as when STACK was formed and whether any of its members objected to approval of the Project during the administrative proceedings).


The Project site includes an identified prehistoric archaeological site of cultural significance to the Chumash Native American tribes. A 2011 peer review study determined the site was eligible for listing in the California Register of Historical Resources and recommended that the site be avoided or fully excavated and recovered. In adopting the MND, the City reviewed the site studies and concluded that, because it would involve extensive grading, Project impacts were likely significant and required mitigation. The MND set forth measures requiring site monitoring during ground-disturbing activities, notification processes if human remains were discovered on the site, and an excavation program if the site could not be avoided.

Appellants argued that the trial court erred in concluding that an EIR required consideration of the Project’s impacts on tribal cultural resources. The Court found that the MND’s measures improperly deferred mitigation of Project-related impacts and were insufficient to avoid or reduce those impacts to a less than significant level. While monitoring and work stoppages were contemplated, the MND failed to analyze whether the site could be avoided or specify performance criteria evaluating the feasibility of avoidance as an alternative to excavation. Prior studies failed to define the boundaries of the archaeological site, and the City made no attempts to define its boundaries in determining if the site could be avoided, nor did the record establish that it was infeasible for the City to make that determination in its initial review. Instead, the record contained substantial evidence to support a fair argument that avoiding the site was not feasible based on the Project’s footprint.

The excavation measure suffered from similar deficiencies as the avoidance measure. The Court found that the measure improperly deferred mitigation of a recovery plan and simply provided a generalized list of measures to be undertaken by a qualified archaeologist and Native American monitor. It failed to set performance standards or guidelines to ensure that the measures would actually be effective. The program called for the future preparation of a technical report including a mitigation monitoring and reporting plan, but it failed to explain how this plan would mitigate potentially significant effects on the site’s cultural resources. It also failed to specify criteria for evaluating the efficacy of the plan. There was no indication in the record that it was impractical or infeasible for the City to articulate specific performance criteria for the data recovery measures at the time of the Project approval.

Appellants alternatively argued that an EIR was not required because expert testimony opposing the decision did not have evidentiary value and that the City was entitled to rely on the expertise of its own consultants. The Court held that the testimony did have evidentiary value and that there was no disagreement between the Petitioners’ expert and the City’s consultant. Rather, both agreed that the archaeological site should be avoided and that an excavation recovery program should be conducted if avoidance was not feasible. The Petitioners’ expert simply opined that the excavation measure did not provide for an adequate data recovery program to mitigate the site’s loss. To the extent there was conflicting expert testimony, the Court held that neither the lead agency nor the court may “weigh” conflicting substantial evidence to determine if an EIR must be prepared. Since the record contained substantial evidence supporting a fair argument that the MND’s measures are inadequate to avoid or mitigate the impacts to the archaeological site to a less than significant level, an EIR was required.


Appellants argued that the trial court erred because the MND included three measures reducing adverse Project impacts and offseting individual plant loss through restoration, preservation, and enhancement efforts. The Project site contains three special status species that may be impacted by grading activities and would be impacted by fuel modification activities (including mowing, pruning, and brush-clearing). In adopting the MND, the City concluded that the Project’s potential impacts were significant but mitigatable through species-specific preservation efforts and monitoring.

The preservation measures included species-specific surveys and on- and offsite restoration. Specifically, prior to issuing Project-related grading permits, a qualified plant ecologist would perform surveys for each species, and, if found during their blooming period, avoidance would be required unless the Project applicant provided “substantial documentation” that a minimum avoidance setback would be infeasible or would compromise the objectives of the AVSP. If avoidance was found to be infeasible, the ecologist would prepare a restoration plan and implement a five-year monitoring program focused on salvaging and replanting individual plants.

Petitioners alleged that these measures were inadequate due to improper deferral and the failure to set performance criteria ensuring effectiveness. The Court agreed with the Petitioners because the City relied on outdated site surveys and because the most recent survey was conducted during an ongoing drought. While the measure called for future surveys during the blooming period, the MND did not establish that it was infeasible for the City to perform the surveys prior to Project approval (which would allow for an accurate assessment of impacted plant populations). The Court also found that the salvaging and replanting plan was inadequate because substantial evidence demonstrated restoration may not effectively mitigate impacts to listed species due to transplant failure. The Court also held that the MND improperly deferred performance criteria formulation. The MND provided that the setback measure would be implemented unless “avoidance would not be feasible” or if a maintenance plan was implemented. However, the MND did not specify performance standards determining the feasibility of avoidance or whether the maintenance plan would be effective. While the measure set standards for measuring the success of the restoration plan, it did not provide for feasible alternatives if salvaging and replanting efforts failed. Thus, there was a fair argument that the measure may be ineffective in offsetting the loss of the listed plants at the Project site.

Appellants argued that the failure to perform updated surveys prior to Project approval did not reflect a deficiency in the MND. The Court recognized that an agency is not required to conduct all possible tests or exhaust all research methodologies to evaluate impacts, but clarified it must undertake additional testing “if initial testing is insufficient.” Here, the MND was based on a series of outdated surveys conducted during an ongoing drought. Thus, there was a fair argument that an updated survey would be necessary to formulate adequate mitigation measures.

Appellants asserted that restoration would be feasible with an active management and maintenance plan, but the Court found that replanting would only be successful as long as the transplants were actively maintained in perpetuity. While the MND required a five-year annual reporting and monitoring program, it did not provide for active transplant maintenance in perpetuity or alternative measures if the transplants failed.

An additional measure addressing impacts to a CNPS-designated rare plant species (as opposed to a federal-listed species) was similarly rejected because there was substantial evidence that transplanting efforts may fail, plus active management would only be provided for 5 years though required in perpetuity to reduce impacts to less than significant under the AVSP EIR. Additionally, no field surveys were required prior to or following the issuance of a grading permit, so it was unclear whether any future studies would be done to provide accurate information about the extent of the impacts. The Court rejected Appellants’ argument that the City’s decision was owed deference and found an EIR was required to analyze the actual impacts to rare plants.

The Court similarly rejected the efficacy of mitigation related to the fuel modification activities because there was a fair argument that clearing wildfire fuel is disruptive to the special status species’ ecosystem and likely to result in incidental take of and direct adverse effects to the species.

The Court next addressed the trial court’s conclusion that impacts to oak trees would be arguably significant, so an EIR was warranted. The Project would remove 29 of the 59 oaks on the Project site, while an additional six would experience encroachment within their protected zones. The Project would also remove approximately 21,000 square feetof scrub oak habitat. The MND required four oak trees to be planted to replace each tree approved for removal. To mitigate theloss of scrub oak habitat, at least 213 scrub oaks would need to be planted onsite. If City staff determined that this would be infeasible (which they likely would), an equivalent in-lieu fee would need to be paid into the City’s Oak Tree Mitigation Fund.

The Court found a fair argument that replacement mitigation would be inadequate because the remaining oaks would suffer a water deficit due to mass grading, which would disrupt and reduce subsurface water flow. Additionally, substantial evidence demonstrated that there have been no successful restorations of oak woodlands due to the extensive ecological network required to support an oak grove. The Court also found that the measure would improperly defer formulation of in-lieu fee programs as an alternative to onsite tree replacement because such programs must be evaluated under CEQA. The MND provided that in-lieu fee payments would be used by the City to acquire land or plant oak trees on another site; but it failed to specify the fees to be paid or the number of trees to be planted offsite, identify whether other sites were available for planting, or analyze the feasibility of an offsite tree replacement program. The Court concluded that it cannot be presumed that offsite oak planting through an in-lieu fee payment was a feasible alternative to the onsite replacement of oak trees in their native habitat.

Appellants also challenged the trial court’s ruling regarding aesthetics violations and violation of the City’s Oak Tree Ordinance. However, the Court found Appellants only made conclusory assertions lacking reasoned argument and held the issues were forfeited.


Appellants challenged the trial court’s fee award based on a failure to provide notice of the CEQA action to the Attorney General in accordance with section 21167.7 and Code of Civil Procedure section 388, and based on an improper apportionment of liability on the real party in interest.

The Court noted that Petitioners had sent timely notice to the Attorney General upon filing their original petition and ruled their failure to strictly comply with the 10-day requirement in section 21167.7 and Code of Civil Procedure section 388 did not bar them from recovering attorney’s fees.  The Court explained that the statutes do not make recovery contingent upon timely notification. Rather, the trial court is tasked with exercising its equitable discretion in light of all relevant circumstances to determine whether private enforcement is sufficiently necessary to justify a fee award. The Court distinguished Schwartz v. City of Rosemead (1984) 155 Cal. App. 3d 547, which Appellants relied on, explaining that in that case the petitioner’s delay in notifying the Attorney General of the action precluded the Attorney General from intervening and possibly making private enforcement unnecessary. Here, the Attorney General had eleven months to review the original petition and a month and a half to review the amended petition before the writ hearing. The Court held that this provided “ample time” to the Attorney General to intervene, which it failed to do, making private enforcement of the action necessary.

Appellants asserted that, even if Petitioners were entitled to recover their attorney’s fees, the real party in interest and property owner should not be held jointly and severally liable for half of the fee award, particularly as an individual. The Court found that the fee allocation was properly apportioned because the property owner had a direct interest in the Project that gave rise to the action, he actively participated in the litigation, he was identified as the sole applicant in the notice of determination, and he had held himself out as the property owner and/or applicant throughout the application and administrative processes. 


When preparing an MND, the chosen mitigation measures must clearly reduce project impacts to a less than significant level. If substantial evidence in the record supports a fair argument that a project may have significant environmental impacts because mitigation measures may not be effective, an EIR will be required.

Attorneys fees under Code of Civil Procedure 1021.5 may still be recoverable even if the Petitioner fails to timely file the notice with the Attorney General as required by 21167.7.  The Court will examine the facts to determine whether the Attorney General had sufficient time to intervene and eliminate the need for private enforcement.

Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 2019 Cal. App. LEXIS 1274

Monday, December 30th, 2019

In 2009, the City of Sacramento (City) adopted its 2030 General Plan. In October 2012, the City initiated its five-year technical update to the 2030 General Plan (hereafter referred to as “2035 General Plan” or “Plan”). The City released the draft Plan and draft EIR for public review in August 2014. Changes from the 2030 General Plan included a revised traffic threshold of significance from LOS to VMT. On March 3, 2015, the City approved the Plan and certified the EIR with the proposed changes. On April 1, 2015, Citizens for Positive Growth and Preservation (Citizens) filed suit challenging the facial validity of the Plan and raised numerous challenges to the adequacy of the 2035 General Plan EIR including challenges to the impacts analyses related to traffic, greenhouse gas emissions, air quality, cyclist safety, and the “no project alternative”. The superior court denied the petition and Citizens timely appealed.

Citizens contended that the Plan was insufficient due to internal inconsistencies between its introductory language and policies. The Third District noted that because the adoption of a general plan is a presumptively valid legislative act, Citizens were required to demonstrate that the City’s action was an abuse of discretion. The Court found that Citizens failed to cite evidence sufficient to meet this standard. Even if the City were to “create a hierarchy of General Plan elements, or to approve projects inconsistent with any policy of the General Plan” in the future it would not render the Plan invalid because a determination made separate from the approval of a general plan cannot render the general plan internally inconsistent.

Citizens also challenged the Plan based on its use of the level of service (LOS) metric instead of the vehicle miles traveled (VMT) metric in the transportation impacts section. In enacting Public Resources Code section 21099, the Legislature directed that traffic analyses prepared to comply with CEQA move away from LOS to encourage infill development and focus CEQA’s traffic analysis on potential traffic-related environmental impacts, rather than inconvenience associated with traffic congestion. Section 21099(b)(2) defines automobile delay as described solely by LOS as not “a significant impact on the environment pursuant to [CEQA] except in locations specifically identified in the guidelines”. In 2018, the Secretary of the Natural Resources Agency promulgated and certified CEQA Guidelines section 15064.3 to implement Public Resources Code section 21099(b)(2). Citizens argued that because CEQA Guidelines section 15064.3 applies prospectively, and because the EIR was certified before the guideline was certified, a LOS impact still constitutes a potentially significant traffic impact of the Plan for the purposes of CEQA.

The Court rejected this interpretation, and held that the plain language of Public Resources Code section 21099(b)(2) provides that “[u]pon certification of the guidelines by the Secretary of the Natural Resources Agency pursuant to this section, automobile delay, as described solely by level of service or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment pursuant to this division, except in locations specifically identified in the guidelines, if any.” The Court held that, in mandamus proceedings, “the law to be applied is that which is current at the time of judgment in the appellate court”. On that basis, the Court concluded that the Plan’s LOS determinations could not constitute a significant environmental impact.

Citizens also argued that if potential automobile delay caused by the Plan’s LOS determinations did not constitute a significant impact pursuant to Public Resources Code section 21099(b)(2), then the City should have been required to conduct a VMT analysis pursuant to CEQA Guidelines section 15064.3. The Court disagreed because the City’s EIR was certified before CEQA Guidelines section 15064.3 was enacted, and the criteria set forth therein only apply prospectively. In addition, the Court rejected Citizens’ challenge to the no project alterative, greenhouse gas emissions, air quality, and cyclist safety because Citizens failed to cite to substantial evidence to support those arguments. Similarly, the Court rejected Citizens’ argument that recirculation was required because Citizens did not cite to substantial evidence of significant new information requiring recirculation.

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.