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Cumulative Impacts Posts

Supreme Court Rejects the California State University System’s Erroneous Interpretation of City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 Regarding its Duty to Mitigate Off-Campus Impacts

Tuesday, August 11th, 2015

After months of anticipation, the Supreme Court issued its ruling on City of San Diego v. Trustees of the California State University, S199557, affirming the appellate court’s ruling that the California State University (CSU) should have evaluated one or more possible project modifications to its Project to reduce or avoid unmitigated off-site traffic impacts.

The case centered on CSU’s plans to expand San Diego State University to accommodate more than 10,000 additional students – part of a statewide program to expand CSU’s statewide enrollment capacity by 107,000. Although CSU has budgeted substantial state and non-state funds to expand its campuses, CSU has repeatedly declined to use its financial resources to reimburse other public agencies for its self-determined fair share of mitigating its projects’ off-campus environmental effects. Instead, CSU argued  that pursuant to City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 (Marina) it may not lawfully pay to mitigate off-campus environmental effects of its projects unless the Legislature makes an appropriation for that specific purpose. CSU argued that, because the Legislature may not make appropriations for CSU’s off-site mitigation purposes, such mitigation was infeasible. Applying its interpretation of Marina, CSU certified the San Diego State University EIR based on a statement of overriding considerations, determining that the project’s benefits outweigh its unmitigated effects.

The Court rejected CSU’s interpretation of Marina, applying a de novo standard of review. The Court held that Marina did not justify CSU’s position that CSU may only contribute funds for off-campus mitigation if designated for that specific purpose. First, the Court held that CSU enjoys some discretion over the use of appropriations. (Citing Ed. Code, §§ 89770, 89771, 89771, 89773, 90083.) Second, neither Marina nor any other decision suggests that mitigation costs for a project funded by the Legislature cannot appropriately be included in the project’s budget and paid with the funds appropriated for the project; this is in-line with CEQA’s directive which requires that “[a]ll state agencies . . . shall request in their budgets the funds necessary to protect the environment in relation to the problems caused by their activities.” (Pub. Resources Code, § 21106; cf. County of San Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 101-105.) Third, no provision of CEQA conditions the duty of a state agency to mitigate its project’s environmental effects on the Legislature’s grant of an earmarked appropriation. Finally, the Board’s improper application of Marina depends on a legally unsupportable distinction between environmental impacts occurring on the project site and those off-site.

The Court stressed that CSU’s proposed interpretation of Marina would lead to unreasonable consequences. The Court recognized that such a holding would apply to all state agencies, effectively forcing the Legislature to sit as “a standing environmental review board to decide on a case-by-case basis whether state agencies’ projects will proceed despite unmitigated off-site environmental effects.” (Opinion, p. 19.) The Court also recognized that under CSU’s interpretation, if the responsible state agency were to proceed with a project without mitigation because the Legislature did not earmark funds, the cost of addressing a project’s contribution to cumulative impacts would place a financial burden on local and regional government agencies. Further, CSU’s interpretation would render off-site mitigation infeasible for many if not all state projects and more projects would proceed without mitigation pursuant to statements of overriding considerations. The Court also rejected CSU’s new arguments under Education Code section 67504, Government Code section 13332.15, and Education Code section 66202.5.

Ultimately, the Court held that its rejection of CSU’s interpretation of Marina would preclude the Board from finding mitigation infeasible due to unavailability of earmarked funding for future projects. While CSU’s core function may be education, it also has a duty to “avoid or mitigate the environmental effects of its projects.” (Opinion, p. 26-27.)

Key Point:

State agencies may not avoid their duty to avoid or mitigate the environmental effects of their projects simply because the Legislature has not earmarked funds for “mitigation.” Lead agencies have a duty to consider alternative mitigation measures or alternative funding measures for off-site impacts where its preferred mitigation is uncertain.

Court Holds County’s Abandonment of Rights-of-Way is Not a Project Under CEQA

Wednesday, January 28th, 2015

In an unpublished decision, Delucchi v. County of Colusa, 2015 Cal. App. Unpub. LEXIS 231, the California Third District Court of Appeal denied a petition for a writ of mandate challenging Colusa County’s abandonment of purported public rights-of-way and held the abandonment did not constitute a project under the California Environmental Quality Act (CEQA).

The rights-of-way at issue provided access to petitioner’s sixty-acre, landlocked private duck hunting club. Petitioner initially entered into private easements with neighbors to cross the neighbors’ land and access the parcel. When disputes arose with the neighbors, petitioner sued the neighbors and the County, seeking to protect access to his property purportedly as public rights-of-way. Petitioner based his claim on a 1910 subdivision map, which recorded miles of public rights-of-way dedicated by the then-owner and arguably accepted by the County as providing access to the mapped area.

In response to the lawsuit, the County adopted a resolution abandoning the purported public rights-of-way and stating the abandonment was exempt from CEQA.

Petitioner first contended the abandonment was void on its face because the Count did not expressly find the public rights-of-way could not be used for non-motorized transportation. The court rejected this argument explaining the County was only required to consider the evidence presented to it and petitioner failed to satisfy his burden of presenting evidence at the administrative level that the rights-of-way could be used for non-motorized transportation.

To abandon a public right-of-way, the County must find: (1) the right-of-way is unnecessary for present and prospective public use; and (2) the abandonment is in the public interest. Petitioner contended neither element was satisfied. However, the court disagreed and found substantial evidence supported the County’s findings. The court reasoned the rights-of-way were unnecessary because they did not lead to any public land, many ran through irrigation ditches and did not connect to county-maintained roads, and landowners relied of private easements for property access. The court also held abandonment was in the public interest because it avoided litigation costs and promoted the public safety.

The court also rejected petitioner’s contention that the abandonment constituted a project under CEQA. An action is a project only if “the activity may cause a direct, or reasonably foreseeable indirect, physical change in the environment.” The court held there was no direct change because the abandonment did not involve any construction or maintenance activity and any benefit to the environment came from maintaining the status quo. Further, there was no indirect change because petitioner’s speculative claims of landowner’s future conduct did not constitute a “necessary step in a chain of events which would culminate in physical impact on the environment.”

Finally, the court stated that even if the abandonment was a project under CEQA, the common sense exception applied because there was no possibility that maintaining the status quo would have a significant effect on the environment.

Appellate Court Upholds EIR for Perris Dam Remediation Project in Riverside County

Tuesday, November 18th, 2014

In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”


The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.

Appellate Court Upholds CEQA Exemption for New Fiber-Optic Cable Utility Boxes in San Francisco

Tuesday, May 13th, 2014

In an unpublished decision in San Francisco Beautiful v. City and County of San Francisco, 2014 Cal. App. Unpub. LEXIS 3108, the First District Court of Appeal affirmed the denial of a writ of mandate challenging the City and County of San Francisco’s decision to approve AT&T’s installation of 726 metal utility boxes without requiring an Environmental Impact Report (EIR).

The utility boxes would be used to expand AT&T’s fiber-optic cable network in the city.  The utility boxes would be approximately two feet tall and two feet wide and one foot deep, and be placed on public sidewalks throughout the city. The San Francisco Planning Commission found that the project could rely on CEQA’s Class 3 categorical exemption for “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures . . . .”  Neighborhood groups San Francisco Beautiful and the Planning Association for the Richmond challenged the Planning Commission determination, arguing that the utility boxes presented “unusual circumstances” and would have cumulative significant effects on the environment that required preparation of an EIR.

San Francisco Beautiful first argued that the Class 3 exemption only applied to “previously existing” small structures.  The court rejected this argument, stating that it did not matter whether the structures were previously built and that if the Legislature had intended that, it would have said so.

San Francisco Beautiful further argued that, even if the Class 3 exemption applied, the project fell within an exception. First, San Francisco Beautiful argued that the “unusual circumstances” exception in CEQA Guidelines section 15300.2, subdivision (c) applied, which states that no CEQA exemption applies where there is a reasonable possibility the activity will have a significant environmental effect due to unusual circumstances. The court disagreed, holding that the utility boxes: 1) did not present unusual circumstances because they did not differ from the general circumstances of other sidewalk structures, and 2) the circumstances did not create an environmental risk that did not exist for all other sidewalk structures.

San Francisco Beautiful also argued that the cumulative impacts of the project took it out of the Class 3 exemption. CEQA Guidelines section 15300.2, subdivision (b) provides that an exemption does not apply “when the cumulative impact of successive projects for the same type in the same place, over time is significant.”  The court found this exception inapplicable because the utility boxes were not in the “same place” as required by the express language of the exception. Cumulative effects are limited to the effects of each utility box, not the net effect of all boxes throughout the city. The court stated that the exception would swallow the rule if the court found otherwise as agencies would always be required to consider the impacts of successive similar projects, which would almost always result in significant impacts over time.

San Francisco Beautiful finally argued that the city imposed mitigation measures and, as a result, the project could not qualify for an exemption. San Francisco Beautiful pointed to a memorandum of understanding between the city and AT&T in which AT&T agreed to, among other things, pay the cost of graffiti removal, provide for additional notice for each cabinet site, and consider non-sidewalk locations for the cabinets. The court found that this agreement was not the basis of the city’s approval of the project. As a result, the memorandum of understanding did not constitute a mitigation measure and the plaintiffs’ writ of mandate was denied.

Key Point:  The court acknowledges a continuing split in authority regarding the proper standard of review for determining whether the “unusual circumstances” exception applies to use of a categorical exception.  The court dodges the issue, however, finding that it would reach the same result whether it reviewed the record for substantial evidence to support the city’s determination or for evidence to support a fair argument of a significant impact.

City Properly Analyzed Community Park Project Separately from Adjacent Housing Development

Wednesday, January 2nd, 2013

In Banning Ranch Conservancy v. City of Newport Beach (2012) 2012 Cal.App.LEXIS 1259, the Fourth District Court of Appeal issued a decision upholding the trial court’s denial of Banning Ranch Conservancy’s challenge to the City of Newport Beach’s (City) environmental impact report (EIR) for Sunset Ridge Park (Park Project).  Petitioner alleged that the Park EIR failed to comply with the California Environmental Quality Act (CEQA) because, to avoid improper piecemealing, the Park Project should have been evaluated in conjunction with a pending residential and commercial development project proposed on an adjacent property (Housing Project).  Petitioner also alleged the EIR inadequately analyzed five issues relating to the Park Project: (1) the cumulative traffic impact, (2) the growth-inducing impact, (3) the cumulative biological impact, (4) the impact on habitat for the California gnatcatcher, and (5) its consistency with the Coastal Act.  The court rejected each of Petitioner’s arguments.

In reviewing case law concerning piecemealing the court identified three potential categories.  First, there may be improper piecemealing when the purpose of the reviewed project is to be the first step toward future development. Second, there may be improper piecemealing when the reviewed project legally compels or practically presumes completion of another action.  Third, an agency may not be guilty of piecemealing when the projects have different proponents, serve different purposes, or can be implemented independently.

Here, the court concluded the Park Project and the Housing Project most closely fit into the third category.  The court acknowledged that the Housing Project may make reasonably foreseeable changes to the scope and nature of the Park Project due to the fact that the access road to the Park may be designed in a manner that anticipates the potential construction of the Housing Project. However, to constitute piecemealing the court stated that the Housing Project must be a reasonably foreseeable consequence of the Park Project.  While the roadway would ease the way for the Housing Project, the court found that “the park’s access road is only a baby step toward the [Housing] project.”  In light of its relatively small benefit, and the facts that the projects have different proponents, serve different purposes, and may be constructed independently of each other, the court held that the City did not improperly piecemeal the projects by analyzing them separately.

In dicta the court stated further that some tipping point exists at which the Park Project would do so much of the work needed by the Housing Project that the two projects would become one. Their implementation would be sufficiently interdependent in practice, even if theoretically separable, and a piecemealing challenge would be well founded.  But, the court found that the “baby steps taken here fall short of that point.”

Turning to Petitioner’s additional CEQA arguments, the court dismissed each quickly.  First, Petitioner argued that the EIR failed to properly evaluate the cumulative impacts of the Park and Housing Projects.  The court concluded substantial evidence in the record demonstrated these cumulative impacts were considered in the EIR.   The court acknowledged that the impact analysis “could have been set forth more directly.”  However, an EIR need not achieve “perfection” and the analysis was adequate.

Second, Petitioner argued that the EIR improperly concludes the Park Project will have no growth inducing impacts.  The court concluded that the need for additional park facilities is documented in the City’s General Plan.  Moreover, the Housing Project was proposed by the developer before the Park Project was proposed by the City.  The court found that the Park Project could not induce a project that was already being planned.

Third, Petitioner alleged that the draft EIR was inadequate because the cumulative biological impact analysis did not mention the Housing Project.  However, the final EIR clarified the manner in which the draft EIR accounted for the Housing Project and listed five reasons the projects would not cumulatively result in a significant biological impact.  The court held that, with the clarifications in the final EIR, the EIR sufficiently satisfied its dual role as an informational document and a document of accountability.

Fourth, Petitioner asserted the EIR downplayed the Park Project’s impact on California gnatcatcher habitat.  The court found that no case law supports the conclusion that where critical habitat is impacted by a project, the project’s impact is per se significant.  Instead, the court explained that to determine if the impact is significant the question is whether the project as mitigated will have a “potential substantial impact on endangered, rare or threatened species…”  If a potential impact is not found to be substantial, then it is not a significant impact.  The court explained that the determination of substantiality is a question of fact reviewed under the substantial evidence test.  Applying the substantial evidence test, the court held that the “observations and opinions of the City’s biologist” sufficiently supported the determination that the project’s impact to California gnatcatcher habitat was less than significant.  Although Petitioner contended the two to one ratio proposed to mitigate impacts to California gnatcatcher habitat was insufficient, the court stated that “this is the type of second-guessing that [a court] will not do on appeal.”  The court also noted that in developing mitigation a lead agency is not required to “acquiesce to different mitigation measures proposed by the United States Army Corps of Engineers or anyone else.”

Finally, Petitioner argued that the EIR failed to disclose the Project’s inconsistency with the Coastal Act of 1976 (Pub. Resources Code, § 30000 et seq.).  Petitioner’s argument was premised on two theories.  First, Petitioner alleged the Coastal Commission intended to designate the project area as environmentally sensitive habitat areas (ESHAs).  The court rejected that this potential change in designation was relevant.  The court explained that there are no inconsistencies at the moment.  Second, Petitioner alleged that the project area included wetlands.  The biological technical report prepared for the EIR determined that the site did not include wetlands as defined by the Coastal Act.  To contradict the technical report, Petitioner pointed to a comment by a City Planner acknowledging that coastal staff may determine the site contains wetlands.  But the court stated that the question is whether substantial evidence supports the City’s approval of the EIR, not whether “an opposite conclusion would have been equally or more reasonable.”  Because under the substantial evidence standard of review the court was not permitted to “weigh conflicting evidence and determine who has the better argument” the court held that the biological technical report sufficiently supported the conclusion in the EIR.

Key Point:

Projects with different proponents, different purposes, and which can be implemented independently, typically can be analyzed separately for the purposes of CEQA without violating the rule against piecemealed review.

The CEQA Guidelines provide that CEQA “must not be subverted into an instrument for the oppression and delay of social, economic, or recreational development or advancement.” (CEQA Guidelines, § 15003, subd. (j).)  In Banning Ranch, supra, Petitioner’s attempted to derail the Housing Project before it got off the ground by attacking a Park Project that, once developed, would preserve open space and provide recreational activities for the general public.  CEQA reform is necessary to provide consistency and clarity in interpreting the statute and to discourage litigation where the statute has been carefully complied with.

Written By: Tina Thomas and Christopher Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Appellate Court Upholds EIR Given its Discrepancies Are Minor and Present No Risk of Prejudice to the Environmental Review Process

Wednesday, November 7th, 2012

In Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, Siskiyou County (County) approved a project to expand an existing wood veneer manufacturing facility for the cogeneration of electricity for resale.  The Mount Shasta Bioregional Ecology Center and the Weed Concerned Citizens (Plaintiffs) sought a writ of mandate against County claiming the project approval violated the California Environmental Quality Act (CEQA) because the project environmental impact report (EIR): (1) failed to adequately analyze alternatives and (2) failed to fully disclose, analyze, and mitigate air quality, noise, and water quality impacts.  The Third District Court of Appeal upheld the EIR upon finding its minor deficiencies did not prejudice the environmental review process.

CEQA requires an EIR to analyze a range of project alternatives that would reduce adverse environmental impacts and could be successfully accomplished within a reasonable period of time and attain the basic objectives of the project.  Plaintiffs contended the EIR’s analysis of the project and the “No Project” alternatives alone were not enough.  The court explained under CEQA, there is no magic number of alternatives the County must consider.  Given the circumstances of the case and the basic project objectives, the court found the alternatives analysis sufficient under CEQA.  The court also explained Plaintiffs had a burden to show the EIR failed to include a particular alternative that was potentially feasible under the circumstances, which Plaintiffs failed to meet.

Plaintiffs next contended the EIR failed to analyze and mitigate air quality, noise, and water impacts of the project.  Plaintiffs’ first claim targeted the EIR’s baseline.  CEQA guidelines require an EIR to include a description of the project’s environmental setting, which is then used as the baseline to determine whether a project’s impact is significant.  Plaintiffs claimed the EIR incorrectly relied on an approximation of emissions as opposed to actual emissions.  County responded the baseline used data representative of actual operations at the existing facility and not the maximum permitted or hypothetical rates.  Upon finding the actual and approximate emissions were nearly identical, the court concluded the seven percent difference would not “have precluded informed decision-making or … public participation,” and was therefore adequate under CEQA.

Plaintiffs’ complaint regarding noise impacts consisted of several separate issues, all of which were rejected, mostly due to no substantial evidence and legal support.  One claim was the EIR lacked evidence supporting its conclusion that project noise impacts will be less than significant.  Plaintiffs claimed the EIR should have included a 24-hour noise study to determine if outdoor noise is already excessively loud, instead of “just a few 15-minute noise level measurements.”  The court explained there is nothing requiring a 24-hour measurement rather than periodic sampling during a 24-hour period.  Plaintiffs also alleged a failure to look at the cumulative noise impacts in Weed.  Given a significant cumulative noise impact already existed in Weed, and the project would add very little noise to that total, the court upheld the EIR’s determination that the Project’s cumulative noise impacts would be less than significant.  Lastly, Plaintiffs argued the County should have recirculated the EIR after two “significant new noise reports” were added to it.  If new information is added to an EIR after completion of the public comment period, the lead agency must recirculate the EIR with a new comment period.  The court noticed while the Draft EIR did not include the studies, it did identify both reports and include a summary of the findings.  Inclusion of the two reports in their entirety thus did not constitute adding significant new information.  Recirculation was not necessary.

Plaintiffs’ last claim alleged the EIR failed to include an adequate description and analysis of the impacts on water quality and usage.  Plaintiffs did not provide legal or factual bases to show future water use will change, and presented nothing to refute the Final EIR’s conclusion that the Project’s water use would be consistent with historical practice and adjudicated water rights.  The court also held Plaintiffs’ argument regarding the Project’s water usage was a difference of opinion as to how the project’s cooling tower will operate, which is no ground for setting aside County’s approval of the EIR.

Key Point:

When examining an EIR, the court will generally defer to the lead agency and refuse to overturn an EIR if its minor discrepancies don’t cause prejudice to the environmental review process.  As seen in this case, the court will also refuse to set aside an EIR if the opposing party either fails to present substantial evidence of CEQA violations or fails to present evidence other than a difference of opinion.

Written By: Tina Thomas, Christopher Butcher and Holly McMannes (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Appellate Court Does Not Review City’s Nonpecuniary Interests to Determine If City Qualifies for Attorney Fees, But Rather Bases Award of Fees on Number of Issues Won

Tuesday, August 7th, 2012

In City of Maywood v. Los Angeles Unified School District (2012) __ Cal.App.4th __ (Case No. B233739), the City of Maywood (City) filed a petition for writ of mandate to overturn the Los Angeles Unified School District’s (LAUSD) certification of a final environmental impact report (FEIR) prepared for a high school. The Second District Court of Appeal upheld the FEIR, with the exception of the pedestrian safety analysis, and addressed the issue of attorney fees in the published portion of the decision.

City’s petition for writ of mandate challenged the FEIR as deficient under the California Environmental Quality Act (CEQA) on a number of grounds, and alleged also that the FEIR violated the Education Code. While the trial court rejected the majority of City’s claims, it found that the FEIR was deficient by failing to adequately assess pedestrian safety, discuss project alternatives, investigate potential impacts from hazardous materials, and comply with Education Code Sections 17211 and 17213.1. The trial court issued a peremptory writ and awarded City approximately $670,000.00 in attorney fees under Code of Civil Procedure section 1021.5. The Appellate Court affirmed the section of the writ addressing pedestrian safety, and reversed the remainder, including the award of attorney fees.

In the unpublished portion of the opinion, the court began by affirming that LAUSD must revise its FEIR to include an analysis of potential pedestrian safety impacts caused by the proposed project design, specifically the continued use of the roadway bisecting the campus, and how a pedestrian bridge traversing the road would alleviate those impacts.

The remainder of the writ was reversed. The court concluded that LAUSD was not required to analyze the cumulative impacts of the I-710 corridor project. Because the I-710 corridor project was still in the planning stages, City had to prove that the project was a “reasonably foreseeable probable future” project. City failed to do so; therefore the court ruled that the FEIR’s impact analysis was adequate.

The court also upheld LAUSD’s discussion of environmental impacts from hazardous materials. Even though LAUSD certified the FEIR and approved the project site before completing a remediation plan, the court explained that if an agency determined the impacts, examined various mitigation measures, and committed itself to mitigating those impacts, then choosing the specific mitigation measure can be deferred.

Next, the court concluded that the FEIR contained a meaningful analysis of alternatives and provided reasonable explanation for electing not to include alternatives recommended by City. The court concluded that substantial evidence in the record supported LAUSD’s determination that the alternative proposed by City was infeasible and that the FEIR’s assessment of alternatives was adequate. Therefore, the court upheld the alternatives analysis.

The court also upheld the FEIR as compliant with the Education Code. Education Code sections 17211 and 17213.1 require school districts to fulfill certain requirements before acquiring a school site. LAUSD only certified a FEIR and approved a school site; it did not violate the Education Code because it had yet to acquire the project site.

In the only published portion of the opinion, the court reversed the award of attorney fees. On appeal, LAUSD argued that City failed to satisfy the “necessity and financial burden” criteria of section 1021.5 because the lawsuit was self-serving. City responded that its non-financial interests should not play a role in determining whether it qualifies for fees. To resolve this issue, the court turned to the California Supreme Court’s decision in Conservatorship of Whitley (2010) 50 Cal.4th 1214 (Whitley), which clarified that a party’s personal, nonpecuniary interests may not be used to disqualify the party from obtaining fees under Section 1021.5. Whitley involved a private enforcement action; however, the court extrapolated the holding to apply to public entities as well. Based on the court’s application of the Whitley holding to this case, the court concluded that an award was proper but explained that the award should be adjusted to the new judgment. Therefore, the court ordered the trial court to reassess whether fees are appropriate given the new judgment, and if so, to determine the appropriate amount of fees.

Key Point:

Nonpecuniary interests do not prevent a petitioner from obtaining attorney fees under Section 1021.5. However, where an appellate court overturns some of the issues upon which a petitioner prevailed at trial, the court may remand the award for the trial court to reconsider the amount of the award based on the new judgment.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Appellate Court Upholds City’s Approval of Large Commercial Project Even with Unknown Impacts on Greenhouse Gas Emissions, Deferred Mitigation, and Rejected Alternative

Monday, August 6th, 2012

UPDATE: On August 27, 2012, the Fourth Appellate District Court certified Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849 for full publication.

In a decision certified for partial publication, Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849, the Fourth Appellate District Court upheld the City of Rialto’s (City) approval of a 230,000 square-foot commercial retail center with a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth (Citizens) challenged the City’s certification of the environmental impact report (EIR) and approval of the project alleging violations of the Planning and Zoning Law and the California Environmental Quality Act (CEQA). After reviewing the City’s actions, the appellate court found no prejudicial abuse of discretion and overturned the lower court’s judgment in its entirety.

In the published portion of the opinion, Citizens argued the City violated the Planning and Zoning Law by releasing a notice of public hearing omitting the planning commission’s recommendations, and by approving the development agreement without expressly making a finding that the agreement was consistent with the general and specific plans of the project site. The court agreed with Citizens on both counts. However, due to Citizens’ failure to show prejudice, substantial injury, or probability of a different result, the court concluded the errors were harmless and upheld the City’s actions.

In the unpublished portion of the decision, Citizens alleged that the City had violated CEQA; the court upheld the City’s actions and the EIR on all counts. First, the court found the project description was incomplete because it did not include the development agreement in a listing of “permits and other approvals required to implement the project.” However, the omission did not prevent informed decision-making and therefore the purposes of CEQA were still fulfilled.

Second, the court held the EIR had adequately analyzed the project’s cumulative impacts on both traffic and air quality. The court explained that the traffic analysis complied with CEQA by relying on a summary of projections contained in a prior environmental document. With regard to air quality, the EIR concluded the project would have a significant cumulative impact since the project alone would release emissions beyond the recommended threshold. The court therefore affirmed the City’s decision to analyze the project’s cumulative impacts on air quality based on the project’s emissions alone, as opposed to in relation to other nearby projects.

Third, the court upheld the EIR’s discussion on the project’s cumulative impacts on greenhouse gas emissions and global climate change, as well as its conclusion that the impacts were too speculative to determine. According to CEQA, if an agency conducts a thorough investigation and finds that an impact is too speculative for evaluation, “the agency should note its conclusion and terminate discussion of the impact.” The court found the City had conducted a thorough investigation and researched the methodologies that were available. Given the absence of established guidelines or methodologies with which to measure the project’s individual impact on greenhouse gases, the court held the City did not abuse its discretion in concluding the impacts were too speculative to determine.

Fourth, the court found the EIR’s mitigation measures to reduce biological impacts on potentially occurring “special status” plant and animal species were sufficiently definite and did not constitute improper deferral. The court explained that the mitigation measures incorporated specific performance criteria, such as “formal consultation” with either the U.S. Fish and Wildlife Services or the California Department of Fish and Game, and therefore were not so open-ended as to allow potential impacts on the species to remain significant.

Lastly, the court concluded the City properly rejected the “reduced density alternative.” Pursuant to CEQA, an agency cannot approve a project with significant environmental impacts unless it looks at alternatives, but it can reject an alternative as infeasible if the alternative does not meet the project’s objectives. While the City’s project has significant impacts and is environmentally inferior to the “reduced density alternative,” the court found substantial evidence supporting the City’s infeasibility determination.

Key Point:

Pursuant to Government Code section 65010, a party challenging an agency’s actions based on violations of the Planning and Zoning Law must establish that such errors were prejudicial. The CEQA portion of the decision was not published. The decision addresses a number of reoccurring CEQA issues. If published, the decision would provide important guidance concerning analysis of cumulative impacts, greenhouse gas emissions, alternatives, and deferred mitigation.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues

Citizens for East Shore Parks v. California State Lands Commission (2011) 202 Cal. App. 4th 549

Tuesday, May 22nd, 2012

Petitioner petitioned for a writ of mandate, claiming that the California State Lands Commission (Commission) failed to comply with CEQA and the public trust doctrine in approving Chevron’s lease renewal for a marine terminal. The Superior Court denied the petition. Petitioner appealed to the First District Court of Appeal, which upheld the lower court’s decision. The Appellate Court determined de novo whether the Commission complied with CEQA requirements and gave great deference to the Commission’s substantive factual conclusions. In addressing the adequacy of the environmental baseline used in the EIR, the Court held the Commission correctly included the current and operative conditions of the terminal in the baseline even though those existing conditions had not previously been evaluated under CEQA. The Court further held that during the CEQA process, agencies can and should be allowed to make adjustments to its CEQA determinations, including determinations concerning the baseline. The Petitioner raised other issues with the Commission’s EIR, all of which the Court struck down.

Key Points:

The decision reiterates that prior illegal development is properly included as part of the environmental baseline because “[h]ow present conditions come to exist… is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.”

Agencies Can Make Adjustments to Environmental Baseline Early in the Review Process

Sunday, January 22nd, 2012

In Citizens for East Shore Parks v. California State Lands Commission (Dec. 30, 2011) 202 Cal.App.4th 549, a citizen group challenged the California State Lands Commission’s (Commission) approval of a lease renewal for Chevron’s marine terminal in the San Francisco Bay near its refinery in Richmond, California.  At the onset of the review process, the Commission stated it would analyze the lease renewal project in relation to an environmental baseline that assumed no terminal operations ever existed.  After release of the notice of preparation, but prior to release of the Draft EIR, the Commission changed its position and concluded that the environmental baseline must consider existing conditions, including existing terminal operations.

The court upheld the Commission’s revised baseline, explaining that Chevron’s terminal was a valid existing condition and the baseline should consider all existing conditions, even when those conditions have never been reviewed previously.  The court rejected petitioner’s argument that the Commission improperly changed its position concerning the appropriate baseline, finding that agencies not only can, but should make appropriate adjustments as the environmental review process unfolds.

Petitioners also challenged the adequacy of the project description, alternatives analysis, cumulative analysis, and land use compatibility.  The court rejected each of these arguments in short order, emphasizing that petitioner’s arguments were premised on a misunderstanding of the scope of the lease renewal project and an inappropriate baseline.  The court also found that the Commission complied with its responsibility to consult trustee agencies and to adequately respond to public comments.   The court declined to consider petitioner’s attack on the Commission’s CEQA findings because the arguments constituted nothing more than “a recycled medley” of their challenges to the EIR.

The court also disagreed with petitioner’s argument that the lease renewal violated the public trust doctrine, explaining that because the lease renewal simply continued a permissible and long-standing trust use, there was no violation.

Key Points:  

The decision demonstrates that a lead agency does not violate CEQA by reconsidering methodologies utilized during the environmental review process.  The adjustments in this case occurred prior to the release of the Draft EIR; therefore, a lead agency must still consider whether recirculation is required when changes in methodology occur after the release of the Draft or Final EIR.

Written By: Tina Thomas and Chris Butcher

For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.