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First District Finds Design Review Does Not Make Entire Project Subject to Discretionary Review

Tuesday, January 15th, 2019

In McCorkle Eastside Neighborhood Group v. City of St. Helena (2018) 2018 Cal.App.LEXIS 1233, the First District Court of Appeal held that the City’s design review process did not require the separate invocation of CEQA; the City complied with CEQA where it was at its discretion to find the express content of the design review ordinance limited its review.

The City of St. Helena (City) approved a demolition permit and design review to demolish a single-family home and develop an eight-unit multifamily residential building (Project). The site’s zoning designation of “high density residential” established that multifamily housing was a permitted use, subject to design review. The Planning Commission found that the Project was a categorically-exempt infill project (CEQA Guidelines, § 15332) and approved it.  McCorkle Eastside Neighborhood Group (McCorkle) appealed the decision to the City Council.

The City Council found that the Project met the design standards under the applicable zoning designation and approved the Project. In doing so, the Council found that the Project met all 14 required design review factors and that the design review ordinance prevents the City from disapproving the Project for any non-design-related reasons. The Council also found that a Class 32 infill exemption to CEQA applied and the Project would not “result in any significant effects relating to traffic, noise, air quality or water quality.” The City’s resolution specifically stated that the exemption finding “was consistent with the City’s limited discretion to consider or address environmental impacts [where] ‘Multi-family residential land uses are permitted by right in the [zoning] District.’” The City thus concluded that “in the context of this design review approval, the [City’s] authority/discretion is limited to (design related) concerns stemming from the only discretionary actions required for project approval.” McCorkle filed suit.

McCorkle alleged that the City was incorrect to find that its design review process did not require the separate invocation of CEQA. Further, McCorkle alleged that the City improperly found the Project a categorically-exempt infill project and abused its discretion for not requiring the preparation of an EIR. McCorkle also alleged that the City Council improperly delegated CEQA authority to the Planning Commission. The trial court denied the petition for writ of mandate. McCorkle timely appealed.

The Appellate Court first held that there was no improper delegation of the City and City Council’s authority under CEQA. The Planning Commission was the initial reviewing agency, but that did not mean that the City Council had abdicated its project review duties to the Planning Commission. Instead, following an appeal of the Planning Commission’s decision, the City Council took independent action in finding the Project exempt and approving the Project. There was no improper delegation.

The Court then disagreed with McCorkle’s claim that, because the City had discretion to conduct design review, the entire Project was discretionary and subject to CEQA. McCorkle relied on the general rule that, where a project involves both discretionary and ministerial approvals, the entire project is deemed discretionary.  However, the Court concluded that the rule “applies only when the discretionary component of the project gives the agency the authority to mitigate environmental impacts.” Here, the design review process allowed the City to change the appearance of the Project, but the general plan and design review standards did not provide a means for the City to mitigate impacts to parking, traffic, safety and soil remediation. Thus, the City did not abuse its discretion in finding that the design review ordinance did not mandate that the City consider disapproving the Project for non-design related matters.

Echoing the holding in Friends of Davis v. City of Davis (2000) 83 Cal.App.4th 1004, the Court found that the City was not, pursuant to general law, required to have a design review ordinance. Where the City chose to impose an additional level of review, “it is for the City to determine the scope that such review will entail.” Thus, the City’s understanding of its own ordinance was afforded great deference as “the [CEQA] Guidelines recognize that the application of CEQA to a local ordinance is dependent upon the scope and interpretation of the local ordinance, rather than vice versa.” The Court found this explanation in line with CEQA Guidelines section 15040, which expressly limits an agency’s authority under CEQA to only powers expressly or impliedly granted to the agency by other laws. 

After finding that the City was not required to mitigate non-design related environmental impacts, the Court found it unnecessary to evaluate the City’s reliance on the CEQA exemption for infill projects. Because the Project was consistent with the general plan and the City addressed Appellants’ argument to the contrary “in great detail,” there was no need for the Court to continue its analysis.

The Court affirmed the trial court’s holding.

Key Point:

A municipality’s design review process does not always require the separate invocation of CEQA.


Note: This case was originally unpublished. January 11, 2019 the court ordered its publication on the request of the California Building Industry Association, California Infill Builders Federation, Treasury Wine Estates Americas LLC, and the California Chapter of the American Planning Association.

Third District Holds City’s Explanation and Substantial Evidence Supported Traffic Impact Conclusion, Discharge of Writ of Mandate Proper

Thursday, January 3rd, 2019

In reviewing whether the City of Sacramento complied with a peremptory writ of mandate issued by the Sacramento Superior Court (East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5Cal.App.5th 281 (ESPLC I)), the Third District Court of Appeal ruled that the City had explained and provided substantial evidence supporting both its traffic threshold and its conclusion that the traffic impact was less than significant. (East Sacramento Partnership for a Livable City v. City of Sacramento (2018) Cal.App. Case No. C085551.)  In ESPLC I, the Court faulted the City’s use of a General Plan threshold because, the Court concluded, the threshold was not supported by substantial evidence.

Real Parties in Interest, Encore McKinley Village, LLC, proposed a 328-unit residential development (Project), which is now 80% built out. As pertinent here, the Project EIR recognized that the Project potentially impacted four intersections in the core and, utilizing the level of service (LOS) standard from the City’s General Plan, concluded that there would be no significant impacts to traffic. The City of Sacramento (City) reviewed the Project application, certified the Project EIR, and approved the Project. East Sacramento Partnership for a Livable City (ESPLC) filed suit.

The trial court denied the petition for writ of mandate, finding the EIR sufficient. ESPLC appealed. In ESPLC I, the Court of Appeal held that the EIR was sufficient except for its reliance on the General Plan LOS standards without explanation. Specifically, the City was in error in relying on the LOS standards as an automatic determinant that traffic effects at the four intersections in the core were not significant. In doing so, the City failed to provide substantial evidence to support the finding of no significant traffic impact. “The fact that a particular environmental effect meets a particular threshold cannot be used as an automatic determinant that the effect was or was not significant.” Accordingly, the Court remanded the case.

The trial court then entered judgement in favor of ESPLC and issued a preemptory writ of mandate to rescind and set aside the EIR’s certification until the City brought the transportation and circulation sections of the EIR into compliance with CEQA. The City recirculated and certified a revised EIR. The trial court found the revised EIR was sufficient and discharged the writ. ESPLC appealed the order discharging the writ.

ESPLC alleged that the City failed to provide substantial evidence to support the conclusion that the Project’s impacts on traffic at the four intersections in the core are insignificant. ESPLC claimed that it was insufficient to merely provide evidence and an explanation to support the choice of threshold of significance for traffic impacts. ESPLC contended that the City was instead required to prepare a new traffic study to support its determination. The City responded that, among other things, the appeal should be dismissed as untimely.

Here, the Appellate Court held that ESPLC I only asked that the City provide an explanation and substantial evidence for the City’s determination to use the flexible LOS standards. The Court then found that it was to review for abuse of discretion because compliance with a writ is, for all practical purposes, an attempt to comply with CEQA.  

The Court found the revised EIR provided substantial evidence supporting the City’s determination that there would be no significant traffic impacts at the challenged intersections in the core. The revised EIR provided an explanation of how the flexible LOS policy promotes infill development and achieves environmental benefits by reducing vehicle miles traveled (VMT) and greenhouse gas emissions. Further, the revised EIR explained that vehicle delay is not a physical impact on the environment and is preferable to roadway expansion as the latter increases VMT. These conclusions were supported by staff opinions, legislation, studies of flexible LOS, evidence of VMT in the area, and comments from Regional Transit, the Air District, and Sacramento Area Council of Governments.

ESPLC contended that the revised EIR should have studied and quantified the alleged reductions in VMT and greenhouse gas emissions in the Project area. The Court held that it was only required that the City provide “sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action.” Because the City provided sufficient explanation and substantial evidence to support its selection of the threshold of significance for the traffic impacts, the Court affirmed the judgment.

The Court further established that the appeal was not untimely. A post judgment order, like that issued by the trial court discharging the writ, extends the time for filing a notice of appeal. Relying on City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, the Court held that an order relating to the enforcement of a judgment is appealable. Thus, the discharge order, finding the return to the writ adequate, was an appealable post judgement order and subject to reconsideration. As such, the appeal was timely.

As a final point, the Court granted the City’s motion to strike ESPLC’s argument that the City admitted the traffic impacts were significant as defined by the 2030 General Plan because it could have been raised earlier and ESPLC failed to show why the issue was raised for the first time in their reply brief. The Court further noted that adoption of a 2035 General Plan mooted arguments based on the 2030 General Plan.

The Court affirmed the trial court’s discharge of the writ of mandate.

Note: This case is currently unpublished. Pursuant to California Rules of Court, the deadline to request publication is 20 days from filing –Wednesday, January 16, 2019.

Supreme Court Holds Inadequate Effort to Explain Nature and Magnitude of Significant Environmental Effect Subject to De Novo Review, Substitution Clause and Sufficient Guidance Make Mitigation Measures Not Vague

Friday, December 28th, 2018

In Sierra Club v. County of Fresno (2018) 2018 Cal.LEXIS 9831, the California Supreme Court held that, where the description of an environmental impact “lacks analysis or omits the magnitude of the [significant] impact,” the reviewing court applies the de novo standard of review.  The substantial evidence standard of review is reserved for wholly factual questions; where a question presented is both legal and factual, the issue shall be reviewed de novo. The Court also found that a substitution clause in a mitigation measure did not constitute deferred mitigation, a mitigation measure that only partially reduced a significant impact did not violate CEQA, and mitigation measures involving HVAC installation and tree selection were adequately enforceable.

The proposed project includes a specific plan and specific plan update covering 942-acres that together contemplate the construction of about 2,500 single and multifamily homes, commercial and recreation areas, and dedicated open space (Project) into a master-planned “pedestrian friendly” community near the unincorporated area of Friant in northern Fresno County (County). The County adopted Project alternative 3 (Northeast Development Configuration, the “environmentally superior alternative”), certified the EIR, and approved the Project.  At the same time, the County adopted a mitigation monitoring program, which noted compliance would be enforced through subsequent conditions on future discretionary actions, including use permits and tentative subdivision maps.

The Sierra Club, Revive San Joaquin, and League of Women Voters of Fresno filed suit alleging that the project approval violated CEQA. The trial court denied the petition for writ of mandate and noted that “it may not exercise its independent judgement on the evidence, but must determine only whether the act or decision is supported by substantial evidence.” Sierra Club timely appealed the decision pertinent to the air quality impacts and certain mitigation measures.

In May 2014, the Fifth District Court of Appeal held that the EIR was inadequate because it failed to include an analysis that “correlated the [P]roject’s emissions of air pollutants to its impact on human health,” only provided air quality impact mitigation measures that were “vague, unenforceable, and lack[ed] specific performance criteria,” and failed to support the claim that the mitigation measures would “substantially” reduce the Project’s significant air quality impacts. The Appellate Court reversed the trial court judgement on those grounds only and directed the preparation of a revised EIR. Real Party, Friant Ranch LP, appealed the Appellate Court decision.

The Supreme Court granted review on the issues of the air quality impact findings and conclusions in the EIR as well as the adequacy of certain mitigation measures.

The Court held that an EIR must (1) include “sufficient detail” to enable readers to understand and to “consider meaningfully” the issues that the proposed project raises, and, (2) make a “reasonable effort to substantively connect” the Project’s significant air quality impacts to likely health consequences.

Further, the Court held a lead agency has not impermissibly deferred mitigation measures where it leaves open the possibility of employing measures consistent with evolving technology nor are such measures impermissibly vague where it can be demonstrated in “good faith” that the measures will be at least partially effective.

The Court first recognized the familiar distinction between the standard of judicial review applicable to claims that the agency failed to proceed in the manner CEQA provides as compared to claims that the agency reached factual conclusions unsupported by substantial evidence: “[w]hile we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [ ] we accord greater deference to the agency’s substantive factual conclusions.” The Court then recognized that “the question whether an agency has followed proper procedures is not always so clear” especially when the issue is “whether the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.’”

Relying heavily on Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights I), the Court found that the standard of review for the adequacy of an EIR’s discussion of certain impacts is subject to de novo review where “a description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of the impact is not a substantial evidence question.”

The Court provided several examples and prior decisions addressing procedural issues subject to the de novo standard of review:

  • Did the agency provide sufficient notice and opportunity to comment on a draft EIR? (Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482, 491-493; Pub. Resources Code, § 21092; Guidelines, § 15087.)
  • Did the agency omit the required discussion of alternatives or consider a reasonable range of alternatives? (Guidelines, § 15126.6; Laurel Heights I.)
  • Did the agency fail to reasonably describe the nature and magnitude of a project’s significant environmental effect?  (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371; Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 514–515.)
  • Did the agency omit material necessary to informed decision making (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712; East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 174)
  • Did the agency respond to comments? (Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1021–1023.)

The Court contrasted these with factual issues like the decision to use a particular methodology and reject another.

Similar to the facts in Laurel Heights I, the Court found that, while the EIR’s conclusion as to the impact may have been correct, the analysis and discussion of the significant impact was deficient as an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The core purpose of an EIR is to inform the public and decision-making body, regardless of the conclusion drawn. In certifying the EIR, the County failed to disclose the analytic route that it took in making its decision relating to the Project’s significant air quality impact. This was a CEQA procedural issue as the Court determined it resulted in noncompliance with CEQA’s information disclosure provisions. Thus, the Court held, de novo review was proper.  

Applying the de novo standard of review to the EIR’s analysis of the Project’s significant air quality impacts, the Court found that the EIR’s discussion failed to correlate health impacts with the Project’s air emissions as required by CEQA Guidelines section 15126.2. It was insufficient that the EIR provided a “general discussion of adverse health effects associated with certain Project-related pollutants,” recognized “Fresno County suffers from the ‘most severe’ ozone problems,” and acknowledged that a more detailed analysis on health impacts was “not possible at this early planning phase.” Critically, the EIR failed to indicate the anticipated ozone emission levels as a result of the Project. The analysis “[was] not meaningful …because the reader ha[d] no idea how much ozone [would] be produced.”  The Court held that the EIR’s discussion of the Project’s significant air quality impacts was deficient; it must give a sense of the “nature and magnitude of the health and safety problems…resulting from the Project as required by the CEQA Guidelines … [or] explain why it was not feasible to provide an analysis.”

The Court found that briefs from the County, the Real Party, and amici curiae clarifying the connection between air emissions information in the EIR and health impacts information in the EIR were “irrelevant.” Relying on Vineyard, the Court held that the question is not whether the Project’s impacts can be clearly explained, but whether they were at the time that the Project was approved. The County’s plan to require Health Risk Assessments as part of future development projects approved within the specific plan area was also irrelevant where the issue was the sufficiency of the EIR’s discussion of the Project’s significant air quality impacts, not the sufficiency of future studies.

Turning to the Project’s mitigation measures, the Court found that the EIR was incorrect to claim a mitigation measure would “substantially reduce air quality impacts” without factual support.

The Court next held that a mitigation measure is not deficient where it leaves open the opportunity to add or substitute other measures when they become technologically available. The Court established that this kind of substitution clause “should be encouraged….and [was] not an impermissible deferral.”

The Court also held that Project mitigation measures relating to HVAC systems and tree-planting were not impermissibly vague. The first identified the anticipated cost for a HVAC catalyst that was considered feasible and detailed the HVAC brand or equivalent that could be installed. The latter required tree varieties be planted that would shade 25% within 20 years of planting, which “provide[d] sufficient guidance for selecting appropriate shade trees.” Contrary to the Appellate Court’s holding, it was of no issue that the burden of enforcement of mitigation measures was on the County as the EIR and Specific Plan was not impermissibly vague on the means of enforcement.

Finally, the Court held that a lead agency does not violate CEQA for approving a project though the environmental impacts are not reduced to less than significant levels. CEQA is satisfied where a project’s mitigation measures only partially reduced significant impacts “as long as the public is able to identify any adverse health impacts clearly, and the EIR’s discussion of those impacts includes relevant specifics about the environmental changes attributable to the project.” In such a situation, unmitigated effects must be outweighed by the project’s benefits—whether economic, social, technological, or other, as documented in a statement of overriding considerations. 

Key Point:

“[A] sufficient discussion of significant impacts requires not merely a determination of whether an impact is significant, but some effort to explain the nature and magnitude of the impact.” The determination whether an EIR achieves its informational purpose by providing such details is subject to de novo review.

SB 50 “Equitable Communities Incentive” Would Exempt Affordable Housing Developments in “Job-Rich” and “Transit-Rich” Areas from Certain Zoning Standards

Friday, December 21st, 2018

California State Senator Scott Wiener (D–San Francisco) has introduced Senate Bill 50, the More Housing Opportunity, Mobility, Equity, and Stability (“HOMES”) Act, which establishes the “equitable communities incentive.” This incentive would allow developers to bypass certain local zoning restrictions when building multi-family units that are near transit or employment opportunities in exchange for allocating a portion of the units as affordable.

The Bill exempts multi-family developments from specified zoning restrictions if the project is located either (a) within a half mile of a rail transit station; (b) within a quarter-mile of a high-frequency bus stop; or (c) within a “job-rich” neighborhood. In these special zones, parking minimums would be sharply reduced and zoning codes could not impose height limits lower than 45 or 55 feet, depending on local factors. In exchange, developers who use this incentive will be required to designate an as-yet-undefined portion of new units as affordable housing.

While recent housing policy employs the term “transit-rich” neighborhood, SB 50 adds the concept of a “job-rich” neighborhood. This is defined as a “residential development within an area identified by the Department of Housing and Community Development and the Office of Planning and Research, based on indicators such as proximity to jobs, high area median income relative to the relevant region, and high-quality public schools.” In short, a “job-rich” neighborhood is a residential area with a short commute to jobs, high median incomes, and superior schools. This marks an effort to push development into areas that may have previously resisted it by not being “transit-rich” neighborhoods.

Wiener proposed a similar bill last session, SB 827, which perished in committee review amid opposition from cities and vocal labor, building, and environmental groups largely for failing to provide adequate protections to existing renters. The renewed and revised bill, SB 50, provides a specific protection against the risk of displacement by prohibiting projects on a site that had a housing tenant within the last seven years. Key components of SB 50 include the following proposals:

  • Establishes the “equitable communities incentive” for developers that meet the following criteria:
    • Project must be in a job-rich or transit-rich area (Gov. Code, § 65918.52(a).)
    • Project must be on a site already zoned to allow for housing (Gov. Code, § 65918.52(b).)
    • Project meets SB 50’s affordable housing requirements and, if applicable, the heightened local inclusionary housing ordinance (Gov. Code, § 65918.52(c).)
    • Project site was not occupied by tenants within seven years preceding the date of application, including housing that was vacated or demolished, nor was the site withdrawn from lists as a home for rent within fifteen years (Gov. Code, § 65918.52(d).)
  • Exempts eligible projects from maximum density controls, maximum parking requirements greater than 0.5 spaces per unit, and includes the following:
    • Waiver from maximum height requirements less than 45 feet and FAR less than 2.5, for projects 0.25-0.5 miles from a major transit stop
    • Waiver from maximum height requirements less than 55 feet and FAR requirements less than  3.25, for projects within 0.25 miles from a major transit stop
    • Provides each eligible project up to three incentives and concessions pursuant to the Density Bonus Law (Gov. Code, § 65915.)
  • Permits local governments to modify or expand the terms of the incentive “provided that the equitable communities incentive is consistent with, and meets the minimum standards specific in, this chapter”
  • Delays implementation of SB 50 until July 2020 for “sensitive communities,” areas vulnerable to displacement pressures

Wiener reasons that existing voluntary programs are not strong enough; they allow cities to evade state housing production goals, which causes rent prices to rise beyond affordable levels. Supporters of SB 50 expect that it will increase the pace of construction and add millions of units to help relieve the State’s housing crisis, a key goal for Governor-elect Gavin Newsom. Mayors from many of California’s largest cities have already indicated their support, including San Francisco Mayor London Breed, Oakland Mayor Libby Schaff, and Sacramento Mayor Darrell Steinberg.

Senate Bills 5 and 6, proposed by State Senators James Beall (D –San Jose) and Michael McGuire (D –Healdsburg), appear to be aimed at getting ahead of SB 50’s spur for high-density housing by reviving tax increment financing for housing development near jobs and transit. That approach, using a portion of property tax growth for housing, was employed by more than 400 redevelopment agencies before Governor Jerry Brown and then-State Senator Darrell Steinberg eliminated it in 2011. According to the Senators, SB 50 is too rigid, communities need flexibility to relieve the housing crisis. In response to such concerns, SB 50 allows economically vulnerable communities to obtain a delay in implementing the zoning changes.

The biggest short-term impact of SB 50 will likely be felt in neighborhoods that are already gentrifying and have a significant amount of housing turnover. Lots with owner-occupied, single-family homes that may have been “flipped” will now be bought by developers who will use the lot to build apartments.

County General Plan EIR Need Only Address “Reasonably Foreseeable Development” Outside the Planning Area, Population Reports in the Record Showed Possible Subdivision Unlikely

Thursday, December 20th, 2018

In High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, the Third District Court of Appeal held a general plan update and EIR were valid where evidence in the record supported the County of Plumas’ (County) determination that there was no “reasonably foreseeable development” outside the planning area. The Court also held that adding building intensity standards and a comprehensive map to the EIR did not require recirculation after close of the comment period where the specific zones were not likely to be developed and the map information was otherwise available during the public comment period.

The County certified a final EIR and approved a general plan update (Project) in December 2013. The update focused on new population growth and housing construction in the “planning area” in order to preclude urban sprawl and degradation of natural resources. The planning area boundary encompassed the existing developed land area and the potential expansion area directly surrounding it. In contrast, rural areas were those “defined as having little to no public infrastructure and services.” High Sierra Rural Alliance (High Sierra) filed suit alleging that the County violated CEQA by failing to consider growth and subdivision development outside the planning area and failing to recirculate the final EIR once adding maps and building intensity standards after the close of the public comment period.

The trial court held that the EIR was a “reasonably crafted…first-tier environmental document that assesses and documents broad environmental impacts of a program with the understanding that a more detailed site-specific review may be required to assess future projects.” Further, substantial evidence supported that the County’s policies and mitigation measures contained in the EIR were sufficient to reduce the severity of any environmental impacts of future projects. Lastly, the addition of building intensity standards and cumulative maps, while possibly in error, was not prejudicial error under CEQA meriting recirculation. High Sierra timely appealed.

The Appellate Court confirmed that its role is not to determine “the correctness of the EIR’s environmental conclusion, but only its sufficiency as an informative document.” Applying these principles, the Court affirmed the judgment.

The Court first addressed High Sierra’s claim that the EIR was functionally deficient for failing to assess the impacts of development, especially subdivision development, outside of the planning area. The Court clarified that CEQA only required the County to address “reasonably foreseeable development” within the County. It is of no consequence to the Court’s determination if this excludes rural areas within the County.

The record showed that the County consulted population and economic data from the Department of Finance and CalTrans and determined that the County growth rate over the planning period would be minimal. This data supported the County’s determination that all reasonably foreseeable growth was to occur almost exclusively in the planning area. Further, sections of the general plan specifically provided restrictions on development in rural areas by requiring adequate, independent fire protection for each new development. Finally, the EIR specifically provided that the minimal amount of development that may occur will be best addressed in a site-specific manner. Thus, the EIR was a proper first-tier environmental document. The Court held that the County adequately addressed development outside of the planning area.

The Court then turned to High Sierra’s argument that the County failed to recirculate the EIR. The Court confirmed that recirculation is required when “significant new information is added…in a way that deprives the public of meaningful opportunity to comment upon a substantial adverse environmental effect.” (CEQA Guidelines 15088.5.)

High Sierra alleged that the County violated CEQA by failing to recirculate the EIR after adding maps and building intensity standards to the final EIR. The Court held that evidence in the record showed that the addition of comprehensive maps to the final EIR was not “significant new information” as the public had access to maps with land use designations for the County throughout the comment period. Further, the addition of building intensity standards for certain rural zones did not constitute “significant new information” where the additions did not change the scope of the Project. Also, the record supported a finding that even fewer structures in those zones would be built during the planning period than the small number in the past decade. Thus, the building intensity standards were nearly inconsequential and not “significant.” Considering these findings, the Court held that the scope of the Project did not change between the draft EIR and final EIR in a manner that requires recirculation.

The Court affirmed the trial court’s judgment and upheld the EIR.

Key Point:

A general plan EIR is only required to address “reasonably foreseeable development,” supported by evidence in the record, outside of the planning area to be sufficient under CEQA.

“Significant new information” meriting recirculation of an EIR does not include maps whose information was available elsewhere during the comment period nor standards that did not change the scope of the project.

Third District Echoes Pocket Protectors, Holds “Large Number” of Public Comments on Nontechnical Aesthetic Impacts Support Fair Argument

Tuesday, December 18th, 2018

In Georgetown Preservation Society v. County of El Dorado (2018) 2018 Cal.App.LEXIS 1167, the Third District Court of Appeal held that conformity with the general plan does not insulate a project from CEQA review. Where a“large number” of public comments objected to the project for “nontechnical” aesthetic issues, there was a fair argument that the project could have a significant effect on the environment and the County improperly relied on a mitigated negative declaration (MND).

The project plans proposed to build a chain discount store in the historically registered Gold Rush-era town of Georgetown in El Dorado County (County) described by the court as a “quaint. . . hamlet.” The project consisted of a 9,100 square-foot Dollar General store and 12,400 square foot parking lot across three parcels on the unincorporated town’s main street (Project).

Comments from various community members, including a licensed architect, a city planner, a registered architect, and a landscape architect and restoration ecologist objected to the Project’s lack of conformity with the town’s aesthetic. Nonetheless, the County found that the Project would not impact the surrounding aesthetics “in ways not anticipated for lands designated by the General Plan” and was “substantially”consistent with the Historic Design Guide. The County further found that “[a]s designed and conditioned, project impacts would be less than significant” and approved the Project based on an MND. The Georgetown Preservation Society (Society) filed suit challenging this action.

The Society alleged that the County’s reliance on a MND was improper where public comments in the record supported a fair argument that the Project may have a significant aesthetic effect on the environment. The trial court, relying on Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903(Pocket Protectors), found that the Society’s evidence supported this claim but rejected the Society’s claims about traffic impacts, pedestrian safety, and “planning and zoning norms.”Accordingly, the trial court issued a writ of mandate compelling the County to require an EIR be prepared for the Project. The County timely appealed the decision.

Specifically, the County alleged that (1) the County’s finding that the Project complied with the planning and zoning rules via historic design review is entitled to deference and should be reviewed under a substantial evidence standard; (2) layperson public commentary does not establish a fair argument that the Project may cause substantial environmental impacts; and (3) the County’s failure to explicitly find the public comments unreliable should not preclude challenging the comments.

The Appellate Court first addressed the effect of historic design review and held that a planning or zoning finding conducted outside the requirements of CEQA does not provide a substitute for CEQA review. Instead, “the two different kinds of findings—a negative declaration under CEQA [and] a zoning or planning finding—answer[ed]different questions.” Following the rationale in Pocket Protectors, the Court held that design review does not always mitigate aesthetics, but instead is an independent decision that may aid the CEQA determination or “be entitled to greater deference…, but such [a] determination is no more than it purports to be and is not a CEQA determination.” Thus, “design review does not supplant or supersede CEQA.”

The Court dismissed the County’s argument analogizing this case to Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572. Opponents of the Bowman project, a four-story, low-income housing project with retail on the ground floor and located on a busy street, requested that the project be reduced to three stories to better match the surrounding building heights. The court held that, because the construction of the project was subject to design review and approval prior to the issuance of building permits, the project would not result in aesthetic impacts.

Here, the Court dismissed the County’s claim that Bowman supported their position. Instead, the Court clarified, echoing Pocket Protectors, that the Bowman courtdid not hold a zoning determination about aesthetics obviates CEQA review nor that design review necessarily or always adequately addresses aesthetic impacts . . . it depends on the facts.” Further contrary to the County’s position, the facts of Bowman–changing a four-story building to three-stories in a busy area –were not analogous to the case here –placing a large chain store in a small, historic,and unincorporated town with a distinct character.

The Court then addressed the public comments submitted in opposition to the Project. While layperson comments lacking factual foundation or corroboration are generally dismissed,here the Court differentiated the facts from other cases. First, the evidence was not “a few stray comments” but “a large number of negative opinions”therefore “undermine[d] the argument that only a few individualized complainants [were] 
trying to thwart the [P]roject for personal reasons.” Specifically, the comments were from “interested people” and consistently said that the Project is “too big,” “too boxy,” or “monolithic” to blend in and its presence will damage the look and feel of the historic center.

Next, the objections to the Project’s aesthetic impacts concerned “nontechnical issues that [did] not require special expertise.” The Court reasoned that a “rational layperson familiar with the area could conclude a 9,100 square foot chain store spanning three lots may negatively impact the central district’s aesthetics” and it would be an “unduly narrow prism” if only comments that incorporated specific design standards into their text were considered. Thus, there was “sufficient evidence[] adduced to show this project in this location might significantly impair the central district’s unique and treasured Gold Rush character.”

Indeed, even where expert opinion is presented to the contrary of the lay person opinions, “public comments contradicted by undisputed experts does not eliminate the need for an EIR.”“Whether it likely will or will not have such an impact is a question that an EIR is designed to answer.” Thus, as was the case in Pocket Protectors, the Court’s consideration of layperson opinions only pertains to the question of if the“low-threshold fair argument test” is met.

The Court then turned to the County’s contention that it implicitly rejected the commenters’ credibility therefore the comments should be removed from the Court’s consideration. Again relying on Pocket Protectors and echoing the trial court, the Court held that public comments may not be categorically disregarded where the County made no determination as to their credibility. The Court held that “if there were grounds for rejecting commenter’s credibility,the County should have made explicit findings thereon.”

Notably, in a footnote the Court distinguished as inapplicable the recent holding of Jensenv. City of Santa Rosa (2018) 23 Cal.App.5th 877 for being factually distinguishable. That case involved non-expert opinion on technical noise studies. See our blog post on the holding here.

The Court affirmed the trial court’s holding.

Key Point:

Layperson comments on an aesthetic impact may support a fair argument where the impact involves nontechnical issues.

Conformity with the general plan and application of design guidelines does not insulate a project from CEQA review.

Layperson comments on a nontechnical impact may not be categorically disregarded without a specific finding as to their credibility.

Sixth District Finds “Substance and Effect” of “Preemptory Writ of Mandate” Decision A Final Judgment for Purposes of CEQA Appeal

Monday, December 17th, 2018

In Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista, (2018) 29 Cal.App.5th 424, the Sixth District Court of Appeal held that the “substance and effect” of a decision labeled by the trial court as a preemptory writ of mandate nonetheless constituted a final judgment.

The City of San Juan Bautista (City) approved a gas station, convenience store, and fast food restaurant (Project) and related permits with a mitigated negative declaration (MND). Alliance of Concerned Citizens Organized for Responsible Development (ACCORD) filed suit.

ACCORD alleged that the City violated CEQA by not preparing an EIR for the Project.  ACCORD also alleged that the Project conflicted with the City’s General Plan and that, in approving the Project, the City violated state planning and zoning laws, its own zoning code, and its municipal code.

In March 2016, the trial court issued a “Preemptory Writ of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts,” which directed the City to take specific action and then file a return to the preemptory writ no later than October 10, 2016. ACCORD did not appeal that decision. The City filed a return to the writ within the timeframe provided, and then a supplemental return advising the Court of the City’s compliance with the Writ.  In December 2016, the trial court issued a subsequent decision finding that the City had complied with the terms of the preemptory writ. ACCORD timely appealed this decision alleging that the City was required to prepare an EIR because there was substantial evidence of a fair argument that the Project would have noise and traffic impacts and the Project violated the City’s municipal code governing formula retail businesses.

In determining whether the issues raised on appeal were cognizable, the Appellate Court first considered whether the March 2016 decision was a final judgment, notwithstanding its title labeling it as an “Interlocutory Remand.” The Court reasoned it “is not the form of the decree but the substance and effect of the adjudication which is determinative” of whether it is a final judgment. “[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final.” Because “[t]he March 2016 decision disposed of all CEQA and non-CEQA issues raised by the petition and conclude[d] that respondents had not complied with CEQA with respect to the potential noise impacts of the project  . . . [t]he decision was not tentative or partial.”

The Court found that the March 2016 decree described specific instructions for the City to follow and the means for the City to comply with the Writ. It was inconsequential that additional proceedings were required as “a trial court has continuing jurisdiction to ensure compliance with a preemptory writ of mandate” and the scope of these proceedings was limited to whether the City complied with the decree. The trial court’s subjective intent was also inconsequential to the effect of the Court’s decision. It did not matter that the trial court titled the March 2016 decree an interlocutory remand and declared “nothing herein shall be construed as a final judgment,” the effect of the decree disposed of all issues raised by the petition thus, it was a final judgment.

The final judgment rule provides that an appeal may only be taken from the final judgment in an entire action; piecemeal disposition and multiple appeals in a single action are oppressive and costly. Here, the Court established that, in finding a final judgment, a court does not focus on the decision title or intent of the deciding court in issuing the decision but the “substance and effect” of the decision. Where the decision concludes matters between the parties, it is a final judgment for the purposes of an appeal.

ACCORD alleged that the March 2016 decision was an interlocutory remand and therefore unappealable, as discussed in Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499. In Voices, the California Supreme Court held that Code of Civil Procedure section 1094.5 does not impose an absolute bar on interlocutory remands in administrative mandamus actions. In a concurring opinion, Justice Werdegar, joined by Chief Justice Cantil-Sakauye, recognized the limited scope of the court’s decision and indicated that an interlocutory remand is not proper in a CEQA action. The California Supreme Court has not since decided the propriety of an interlocutory remand in a CEQA action. Here, the Court did not answer whether the Voices holding applied to CEQA actions pursuant to Public Resources Code section 21168.9 as “in substance and effect the March 2016 decision was a final judgment.” As such, the December 2016 decision was a post-judgment order.

ACCORD could not challenge the adequacy of the EIR as the group failed to timely appeal the March 2016 decision within the 60-day statutory deadline. ACCORD alleged that principles of fairness and due process support the grant of an extension. The Court held that it is immaterial that the trial court mislabeled the March 2016 decision and possibly mislead the parties, the Court is without statutory authorization to extend the time for appeal “even to relieve against mistake, inadvertence, accident, or misfortune.” Further, the timeline may not be extended by stipulation by the parties, estoppel, or waiver. Indeed, where no objection is made, a court “must dismiss the appeal of its own motion.”

Considering the above, the Court found the scope of its review limited to the December 2016 post-judgment order. The City’s response to the preemptory writ was adequate where it satisfied the conditions of the preemptory writ and timely filed a return on the preemptory writ.

The Court affirmed the trial court’s December 2016 holding.

Key Point:

Where a court’s decision disposes all issues raised by the petition, it is a final judgment from which an appeal must be filed within 60 days.

An appeal from a post-judgment decision limits the appellate court’s scope of review to only those issues addressed in the post-judgment decision, not the original judgment.

OPR Accepts Comments on General Plan Guidelines Environmental Justice Chapter

Monday, December 17th, 2018

The Governor’s Office of Planning and Research is accepting comments on a revised Environmental Justice Chapter in the General Plan Guidelines until Thursday, December 20. Senate Bill 1000, proposed by California State Senator Connie Leyva (D –Chino), requires that local jurisdictions with disadvantaged communities incorporate an environmental justice element into their General Plan or, in the alternative, integrate goals, policies, and objectives into other elements of their General Plan to achieve similar goals.

Following significant outreach across the state with environmental justice groups, city and county planning departments, state agencies, and many other stakeholders to provide guidance, OPR distributed a draft of the Environmental Justice Chapter on November 20. This draft contains: (1) a process by which to determine if a local jurisdiction is subject to the SB 1000 requirements; (2) new considerations regarding private-public entity partnerships; (3) additional information about updates when cities and/or counties have some policies for SB 1000; (4) example policy language and data sources; and (5) updated discussions on thematic areas to include under SB 1000.

To view the draft chapter, visit http://opr.ca.gov/docs/20181120-EJ_Chapter_Public_Comment.pdf 

Comments must be submitted by 5:00 on December 20, 2018 to SB1000@opr.gov 

Thomas Law Group Receives “High 5 Award” at First 5 Sacramento 20th Anniversary Event

Saturday, December 1st, 2018

Thomas Law Group is honored to accept the High 5 Award at the Rise Up Sacramento event on January 8, 2019 at the Golden 1 Center’s Assembly Lounge. This award, granted on behalf of First 5 Sacramento and Sacramento County Supervisor Phil Serna, recognizes a business that incorporates family-friendly policies into the workplace. Hope to see you there!

The Rise Up Sacramento Event is put on by First 5 Sacramento. The group invests in critical programs for children and families in the Sacramento region. This event will celebrate the group’s 20th year of spearheading this work.

This event is free for anyone to attend, kindly register here: www.eventbrite.com/e/raise-up-sacramento-registration-52314641501

 

this event is free to attend. Kindly register by visiting https://www.eventbrite.com/e/raise-up-sacramento-registration-52314641501

Tina Thomas Hosts CEQA 2018: A Year In Review Panel at 33rd Annual Land Use Law and Planning Conference

Thursday, November 29th, 2018

On Friday, January 18, 2019 at the Millennium Biltmore Hotel in downtown Los Angeles, Thomas Law Group founder Tina Thomas will host the panel CEQA 2018: A Year in Review as part of UCLA Extension’s 33rd Annual Land Use Law and Planning Conference. 

The conference it presented by UCLA Extension’s Public Policy Program. It focuses on providing practical, timely, and useful information relating to the practice of land use and environmental law, planning and development, and key policy decisions in these areas.

For more information visit: www.uclaextension.edu/33rdLandUseConference