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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.

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.

EIR Addendum to Previously Certified EIR Proper Where No New Significant Environmental Impacts Identified

Wednesday, October 24th, 2018

In Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, the Fourth District Court of Appeal held CEQA Guidelines section 15164 (Section 15164) validly establishes an addendum process that is consistent with the CEQA statute. Specifically, Section 15164 filled in gaps in Public Resources Code section 21166 and accurately implemented CEQA.

In 2012, the City of San Diego (City) approved the Plaza de Panama Project in Balboa Park (Project) and its accompanying EIR in order to restore pedestrian and park uses to the area. Save Our Heritage Organisation (SOHO) appealed the City’s actions related to this Project multiple times on many grounds, winning some and losing on others.

In 2016, the City adopted an addendum to the project EIR addressing several project modifications. These included: (1) bridge modifications to meet CalTrans requirements; (2) adding and redesigning storm water basins; (3) adding parking lot ventilation; (4) making energy efficiency upgrades; (5) increasing the elevation of the excavated soils landfill; and (6) refining construction design. The most significant aspect was that the modified project would add 93 more parking spaces than in the original Project and EIR.

The City reviewed the modified Project’s potential environmental impacts to land use, historical resources, aesthetics, transportation, air quality, biological resources, energy, geologic conditions, greenhouse gas (GHG) emissions, health and safety, and hazardous materials. The City concluded that there were: (1) no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects; (2) no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the EIR; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the EIR would substantially reduce significant effects. As such, the City approved the modifications with no additional EIR and on the basis of an addendum. SOHO filed suit. The trial court denied the petition. SOHO timely appealed.

Reviewing the agency’s action for abuse of discretion, the Court of Appeal affirmed the trial court’s holding. SOHO’s chief claim was that the addendum process, codified in Section 15164, was an invalid extension of the CEQA statute. Section 15164 provides, in pertinent part, “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guideline] 15162 calling for preparation of a subsequent EIR have occurred. …(c) An addendum need not be circulated for public review but can be included in or attached to the final EIR…. (d) The decision-making body shall consider the addendum with the final EIR… prior to making a decision on the project. (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guideline] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record.  The explanation must be supported by substantial evidence.”  The Resources Agency’s discussion of Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs… without recirculating the EIR” and that “[Section 15164] provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.”

The Court held that, under established case law, Section 15164, like any agency action, carries a presumption of validity and the challenging party has the burden of demonstrating its invalidity. Presented with the challenge, the Court is to consider “whether…[the regulation] is (1) consistent with and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.” This analysis depends on whether the regulation is a quasi-legislative regulation or an interpretive regulation. The Court pointed out that no Supreme Court case has definitively said that the CEQA Guidelines are quasi-legislative or interpretive and declined to say so itself. Instead, the Court held it need not decide the issue in order to resolve the case because SOHO had not met their burden to establish Section 15164 was invalid.

While the Court agreed that CEQA does not expressly authorize the addendum process described in Section 15164, the Court stated that the process “fills a gap” in the CEQA process for projects with a previously certified EIR. Further, “CEQA authorizes the Resources Agency to fill such gaps in the statutory scheme, so long as it does so in a manner consistent with the statute.” The Court held Section 15164 is consistent with and furthers the objectives of CEQA section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review. “The addendum process reasonably implements section 21166’s objective of balancing the consideration of environmental consequences in public decision making with interests of finality and efficiency.” After EIR certification, “the interests of finality are favored over the policy of encouraging public comment.” As such, the EIR addendum regulation was in line with the spirit of CEQA and a natural extension of the statutory scheme.

To this point, the Court noted that the Section 15164 was first promulgated in 1983 and the Legislature has never modified CEQA to eliminate it, strongly indicating consistency with legislative intent.

Lastly, the Court easily dismissed SOHO’s argument that additional findings were required for the City to approve the addendum. Such findings were already made in adopting the original EIR and “an addendum is only proper where no new significant environmental impacts are discovered.” Here, where no new significant environmental impacts were discovered, an addendum was proper and findings were not necessary.

The Court affirmed the trial court judgement finding the EIR addendum valid.

Key Point:

An addendum to a previously certified EIR is proper where there no new significant environmental impacts are discovered.

GHG Guidance Document Containing Threshold of Significance Required to Undergo CEQA Review

Friday, September 28th, 2018

In Golden Door Properties, LLC v. County of San Diego (2018) Cal.App.5th 892, the Fourth District Court of Appeal held San Diego County’s (County) adoption of a guidance document for the evaluation of greenhouse gas (GHG) emissions established a threshold of significance for determining impacts. The County violated CEQA where it adopted the guidance document without first conducting CEQA review, sidestepped required public review and violated the Court’s prior writ.

The County adopted a Climate Action Plan (CAP) in 2012 and related guidelines in 2013. Following successful petitions from the Sierra Club, the County was directed by both the trial court and appellate court to set aside the documents for failing to make required findings and failing to adequately detail deadlines and enforceable measures, amongst other things. In 2016, the County adopted the “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (Guidance Document). Golden Door Properties, LLC and Sierra Club brought suit challenging the adoption.

The trial court consolidated the two suits, granted a writ of mandate and injunction against the County, and entered judgment prohibiting the County from using the Guidance Document. The trial court concluded (1) the claims were ripe; (2) the Guidance Document creates a threshold of significance under CEQA; (3) the Guidance Document violates the County’s general plan mitigation measures; and (4) the Guidance Document is not supported by substantial evidence. The County timely appealed.

The Appellate Court first addressed the ripeness of this action. Ripeness is “primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” However, the Court continued, the issues here are ripe where the Guidance Document provided a generally applicable threshold of significance and there is sufficient public interest in the matter, citing California Building Industry Assn. v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. The ultimate analysis of ripeness, the Court quoted, is “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

The Court then turned to the CEQA arguments. The Court concluded that the Guidance Document is a threshold of significance. CEQA Guidelines section 15064.7 defines a threshold of significance as “an identifiable, quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” The Court found that the Guidance Document provided a “recognized and recommended” efficiency metric for determining significance of GHG emissions, and therefore was a threshold of significance for the purposes of CEQA.

The Court then held that a threshold of significance for general use (as opposed to a project-specific threshold) is subject to CEQA public adoption guidelines, per Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059. The County conceded that the Guidance Document was not formally adopted through a public review process. Thus, the County violated the CEQA requirement that a threshold of significance be adopted “by ordinance, resolution, rule or regulation, and [be] developed through a public review process,” as mandated by CEQA Guidelines section 15064.7.

Further, the Court held, the County failed to provide substantial evidence to support its recommendations in the Guidance Document. Specifically, the County “reli[ed] on statewide data without evidence supporting its relationships to countywide [GHG] reductions.” This approach was legally flawed under the principles set forth in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204. The County failed to address why using the statewide data that did not specifically address the County was appropriate for the County and also failed to account for variations in different types of development.

Finally, the Court held that the County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of CEQA. The County argued that development of a CAP and thresholds of significance were proceeding in compliance with the schedule established in the writ issued after the Court’s prior decision in Sierra Club, and the Guidance Document therefore did not violate that decision.  However, the Court concluded that its earlier decision treated the CAP and thresholds of significance as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds. Considering this, the Court held the County’s 2016 adoption of the Guidance Document was improper piecemealing.

For these reasons, the Court affirmed the trial court’s holding.

Key Point:

A document that provides a threshold of significance is required to undergo CEQA review.

Population Projections Proper Baseline for San Francisco General Plan Housing Element Update

Wednesday, August 22nd, 2018

In San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, the First District Court of Appeal held the City of San Francisco (City) general plan housing element EIR satisfied CEQA in using 2025 population projections as a baseline for a growth-accommodating policy and adequately considered traffic impacts, water needs, and project alternatives.

In 2011, the City updated the housing element to the City’s general plan. The housing element EIR baseline was based on 2025 population projections. San Franciscans for Livable Neighborhoods (SFLN) filed suit alleging the EIR used an improper baseline and failed to adequately address various environmental impacts.

The trial court held that the City complied with CEQA in most respects. Specifically, the trial court agreed with Respondents that the general plan was not internally inconsistent, the City need not have recirculated the EIR after publication, and the EIR contained an adequate project description, sufficient impact analyses, and a reasonable range of project alternatives. However, the trial court found that the EIR was inadequate in its analysis of alternatives and findings regarding potentially feasible mitigation measures. Parties timely appealed.

Typically, CEQA requires an EIR baseline to employ present environmental conditions for the baseline analysis. However, the Appellate Court held that the use of an alternative baseline was permissible under CEQA so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach. An agency may adjust its baseline conditions at its own discretion and in appropriate circumstances in order to account for a major change in environmental conditions expected to occur before project implementation. For instance, where an amendment to a general plan takes a long view of city planning, the analysis of the amendment’s impacts may do so as well. Here, the City used a hypothetical baseline—population projections for 2025—in order to measure resulting traffic and water impacts related to the housing element. Recognizing “it would be absurd to ask the City to hypothesize the impacts of a long-term housing plan taking hold immediately,” the Court held the City acted within its discretion to define the baseline with 2025 population projections and forecast traffic and water impacts in 2025 rather than compare the existing conditions with and without the housing element.

The Court determined that the housing element sought to accommodate housing needs in response to a growing population, growth that would happen regardless of the housing element, therefore it was a growth-accommodating policy rather than a growth-inducing policy. Cases relied on by SFLN were unconvincing as they analyzed project approvals that would result in population growth in previously undeveloped areas.

With the baseline properly defined, the Court then held the EIR’s analysis of environmental impacts was sufficient. The EIR reasonably concluded that the housing element would not have a substantial impact on visual resources or neighborhood character as it encouraged residential uses in areas that were already allotted or existing and did not change any zoning.

Then focusing on the EIR traffic impact analysis, the Court held the City was not required to study in-the-pipeline projects with potential traffic impacts as they are subject to their own CEQA review and EIR process. Nonetheless, the City did so at sixty intersections and properly relied on 2025 population projections in their analysis for the above reasons.

The Court then held the EIR’s water supply impact analysis was sufficient where it acknowledged the “degree of uncertainty involved, discuss[ed] the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and disclos[ed] the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

Finally, the Court held the EIR’s analysis of alternatives complied with CEQA where it identified and provided “extensive information and analysis regarding the alternatives” for at least three alternatives. SFLN failed to meet their burden to show the range of alternatives are “manifestly unreasonable or deprive[] the decision-makers and the public of information they need to evaluate the project and its impacts.” Where the EIR’s alternatives allowed decision makers a meaningful context to weigh the project’s objective against its environmental impacts, it complied with CEQA.

The Court affirmed the trial court’s holding on these issues.

Key Point:

An alternative project baseline for CEQA purposes may be proper so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach in utilizing it.

Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

Tuesday, June 12th, 2018

In County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, the Second Appellate District upheld a CEQA statutory exemption applied to a project undertaken by the State-created Broad Beach Geologic Hazard Abatement District (BBGHAD) and clarified that a “project” for CEQA consideration may be two separate activities if they serve a single purpose, have the same proponent, and are “inextricably linked.” Further, settlement agreement restrictions were not preempted by state law and do not constitute extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper and therefore void.

The State created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was obliged to restore and restock sand at the beach. The project would involve shipments of 300,000 cubic yards of sand, four subsequent deposits of equal size at five year intervals, and additional shipments of 75,000 cubic yards on an as-needed basis (Project). The sand was to be collected from quarries 30-40 miles away from Broad Beach and transported by trucks to the beach. The initial deposit alone was estimated to require 44,000 one-way truck trips. Possible truck routes from the quarries to the beach required either traveling through the City of Moorpark (City) or on roads adjacent to the community.

In the Project’s planning stages, City officials expressed concern that hauling sand on these routes would negatively impact residents, and therefore entered into a settlement agreement with BBGHAD to manage traffic. BBGHAD agreed to specific haul routes, truck staging requirements, and changes in routes in response to settlement-defined road emergencies. Additionally, the settlement agreement could only be modified with the consent of all parties. Thereafter, the Coastal Commission approved a coastal development permit for the Project, incorporating the settlement agreement.

The County of Ventura (County) filed suit alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by the City to regulate traffic outside of the City limits, and represents an abdication of BBGHAD’s state-granted police power.

The trial court found that the Project was statutorily exempt from CEQA, held that the settlement agreement was not preempted by the state’s Vehicle Code, and was not an improper attempt by the City to regulate traffic outside City limits. However, BBGHAD improperly contracted away its ability to amend the settlement agreement, therefore the trial court struck down the agreement’s mutual assent provision and held that BBGHAD must be able to modify the agreement in response to changed circumstances. The County timely appealed.

The Appellate Court affirmed the trial court’s ruling. In addition to its original claims, the County contended that the settlement agreement is an action distinct from the Broad Beach restoration project, thus beyond the scope of the exemption and subject to CEQA review. The Court disagreed, and found that the settlement agreement between the City and BBGHAD was part of the whole beach restoration effort and one project. The Court stated that when two activities are a coordinated endeavor to obtain an objective or are otherwise related to each other, they constitute a single project for purposes of CEQA. Here, the actions served the single purpose of abating a geologic hazard and were inextricably linked in achieving that goal. Only when the second activity is independent of and not a contemplated future part of the first activity may the two activities be reviewed separately.

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in the City’s settlement agreement. Vehicle Code section 21 prohibits local authorities from enacting resolutions or ordinances which affect state traffic restrictions. The Court found that because the agreement did not involve an ordinance or resolution (rather, it was the City acting under its contracting power), it was not preempted by Vehicle Code section 21. The Court further found that the agreement merely dictated the routes BBGHAD’s contractors and subcontractors must use when delivering on behalf of the Project. The agreement did not amount to a physical barrier which would redirect traffic, did not close roads, and did not restrict non-project related hauling.

The Court then addressed the extraterritorial regulation claim and held the City was within its contracting rights to further its implied necessary function of preventing public nuisances on their roads—like thousands of sand shipments. Additionally, the Court found the traffic restrictions on BBGHAD shipments were valid, as they only affected activity within the City limits.

Turning to the issue of infringements on BBGHAD’s police power, the Court found that as an entity of the State, BBGHAD was entitled to exercise a portion of the state’s police power. However, BBGHAD erred in part by contracting away its right to exercise its police power in the future. The agreement bound BBGHAD to surrender its discretion to haul routes in the future unless mutual assent was achieved between BBGHAD and the City. The Court found that this grant of veto power infringed upon the State’s police power therefore was invalid. In examining if this error was sufficient to render the entire agreement void, the Court weighed the agreement’s impact on the public and the expressed intentions of the parties, and determined that the aspects of the agreement which infringed on BBGHAD’s State-granted police power were severable from the rest of the agreement. Accordingly, the Court upheld the agreement in part and struck the agreement in part.

The Court affirmed the trial court’s judgement.

Key Point:

While incorporated settlement agreements with local authorities in project planning is allowable as part of one CEQA-defined “project”, when contracting with state entities, it is important to not infringe upon state police powers through the creation of modification clauses requiring assent from all parties.

First District Court of Appeal Finds Project Description, Downstream GHG Emissions Analysis, and Existing Train Hazards Analysis Sufficient, Upholds Oil Recovery Project RFEIR

Tuesday, March 20th, 2018

In Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214, the First District Court of Appeal held the project description, greenhouse gas (GHG) emissions analysis, and hazard impact analyses for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) properly approved the project. Despite this, the trial court writ of mandate setting aside the project remained intact until certain air quality analyses were complete.

Phillips 66 Company (Phillips) applied for a permit to upgrade the facility and operations at an existing oil refinery propane recovery plant (Project). Specifically, the Project would add to and modify existing facilities to enable Phillips to recover butane and propane from its refinery and ship it by rail. After circulating the draft EIR and responding to comments, the County approved a recirculated final EIR (RFEIR).

Rodeo Citizens Association (Petitioners) challenged the approval on the grounds that the project description was inaccurate for failing to address future projects and imports, the analysis of cumulative impacts, air quality and GHG impacts were insufficient, and the RFEIR overlooked the increased risk of accidents from train derailments or explosions at project completion.

Relying on San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, Petitioners alleged the project approval was improper because the project description was not “accurate, stable, and finite” where Phillips executives had made public comments about future projects whose impacts would run seemingly contrary to the RFEIR. The Appellate Court held even if a project applicant’s statements indicate an anticipated or potential future change to a site, petitioners must also present evidence showing a connection between the project and any intended change. None of the statements established the future projects were dependent on a change or intended change in the proposed Project.

Petitioners also claimed that the project description and RFEIR were insufficient for failing to detail the Project’s environmental impacts from purported changes to the crude oil feedstock, specifically the refining of heavier oils. The Court found that the RFEIR laid out that the Project is not dependent on a change in feedstocks and the Project only plans to utilize existing steam without any additional imports or modifications to the refinery. Thus, substantial evidence in the record supported the conclusion that the Project was independent of any purported change in the crude oil feedstock used at the refinery and would not increase its present capacity to refine heavier oils.

The Court upheld the lead agency’s description of the Project and concluded that Petitioners failed to provide evidence that the lead agency’s approval of the Project inappropriately approved any potential future changes not included in the Project description.

Next, the Court found the GHG considerations detailed in the RFEIR were “reasonable” under the circumstances; environmental review documents may find a project’s contribution to GHG emissions will be less than cumulatively considerable if there is sufficient showing that the Project is part of the State’s solution to climate change. While Petitioners claimed that the RFEIR failed to consider GHG emissions resulting from the combustion of project-captured propane and butane sold to downstream users, such a claim misconstrued the situation. Phillips considered downstream users in the RFEIR but was unable to definitively pinpoint the buyers’ uses. Indeed, the Court highlighted, propane and butane are low-GHG emitting gasolines mostly used in place of high-GHG emitting gasolines therefore reducing overall GHG emissions. An agency’s inability to quantify all down-stream emissions from project-related activities does not compel the agency to conclude that the project creates a significant and detrimental contribution to GHG impacts. Any possible negative environmental impacts were too speculative for evaluation; investigating these possibilities were beyond the County and Phillips’ responsibilities.

Finally, the Court rejected Petitioners’ allegations that the RFEIR overlooked the increased risk of accidents from train derailments or explosions as a result of the Project. In the RFEIR, Phillips properly addressed significance of the Project’s impacts without reference to existing risks posed by operation of the refinery, reasonably determined that the potential impacts were less than significant, and underscored that comparative worst case scenario analyses may reasonably consider only those impacts that have moderate or high consequence of occurrence.

The Court affirmed the trial court holding on each of these issues.

Key Point:

Project descriptions are sufficient where not misleading or inaccurate. Greenhouse gas emission considerations under CEQA may be sufficient where the project emissions are downstream and evidence supports the project aligns with statewide solutions to climate change.

Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

Wednesday, February 28th, 2018

In Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, the Second District Court of Appeal held that parking impacts caused by a project are exempt from CEQA review, per Public Resources Code section 21099. Additionally, the Court found that the City of Covina (City) properly tiered from a prior EIR for a specific plan where potential project-specific impacts were addressed in a project-specific analysis and mitigation measures were imposed to address identified impacts. Further, where impacts are statutorily exempt, as they were here for parking impacts, no further analysis is required in the tiered document. Finally, approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

In 2012, project applicants submitted a proposal to the City of Covina (City) for the construction of a mixed-used urban residential infill project (Project) near the Covina Metrolink commuter rail station. The Project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site. Ultimately, the City approved the Project and issued a mitigated negative declaration (MND). Covina Residents for Responsible Development (CRRD) filed suit alleging the City was required to prepare an EIR, improperly tiered the MND from the specific plan EIR, and violated the Subdivision Map Act by failing to make necessary findings. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence supported CRRD’s claim that the parking shortage would result in environmental impacts; (b) parking impacts from the Project were exempt from environmental review under Public Resources Code section 21099; (c) the City properly tiered its environmental review from the specific plan EIR; and (d) the City did not violate the Subdivision Map Act. CRRD timely appealed.

The Appellate Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “[a]esthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court concluded that parking impacts need not be addressed in the City’s environmental analysis because Section 21099 specifically exempted such analysis for infill sites within a transit priority area. The Court established that the Project was within a transit priority area and that the City had no obligation to analyze parking impacts caused by the Project.

The Court noted that the statutory intent of the bill was to address climate change and the state’s long term environmental goals and to build on prior statutes, including AB 32 and SB 375.

The Court then dismissed Petitioner’s claim that the MND improperly tiered from the specific plan EIR. Traffic impacts from a parking shortage related to an infill project, as discussed above, are exempt from CEQA review though were nevertheless adequately considered in the specific plan EIR.

Finally, the Court dismissed CRRD’s claim that the City’s findings relating to the consistency of the Project’s tentative map were not supported by substantial evidence. Government Code sections 66473.5 and 66474 require local agencies to make findings related to consistency with the specific plan and design of the project. Here, the Court determined the City adopted all necessary findings and CRRD failed to identify evidence in the record that the Project was incompatible with the specific plan.

Key Point:

Public Resources Code section 21099 exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting.

Where impacts are statutorily exempt, no further analysis is required in a tiered EIR.

Approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

Sixth District Court of Appeal Upholds Application of CEQA Exemption for Small Facility —Utility Extension In the Absence of Petitioner Carrying Its Burden to Demonstrate the Location, Cumulative Impact, or Unusual Circumstances Exceptions Applied

Monday, February 5th, 2018

In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039, the Sixth District Court of Appeal found a Class 3 categorical exemption for “small structures” applied to multiple small projects considered as a group. The Court held the County of Santa Cruz (County) acted properly in reviewing a series of CEQA-exempt utility pole installations individually and as an aggregate project.

Real Party in Interest Crown Castle Inc.’s (Crown) project application proposed installation of multiple microcell distributed antenna systems (DAS) in rural County areas (Project). These installations are two-foot by one-foot antennas attached to existing utility poles operated by a single wireless carrier. Crown submitted each microcell system proposal in a separate permit application. However, Crown presented, and the County considered, the installations together as a single project. The County approved the Project, finding the DAS systems exempt from CEQA as categorically exempt “small facilities.” Aptos Resident Association (ARA) filed suit against the County.

ARA contended that the Project was not exempt from CEQA because the County improperly segmented the Project and the Project fell within multiple exceptions to the exemption based on its location (CEQA Guidelines, § 15300.2(a)), cumulative impact (CEQA Guidelines, § 15300.2 (b)), and unusual circumstances (CEQA Guidelines, § 15300.2(c)). The trial court disagreed and upheld the County’s approval of the Project. ARA timely appealed the decision.

The Appellate Court held the County properly found the project to be categorically exempt from CEQA as a Class 3 exemption (CEQA Guidelines, § 15303) and thus, no environmental review was required. Class 3 exemptions include projects that propose the construction of limited small facilities or structures, as well as the installation of small equipment and facilities in small structures, incorporating electrical, gas, and utility extensions. Relying on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, the Court found that substantial evidence supported the County’s Class 3 exemption because the Project constituted “the installation of small new equipment on numerous existing small structures in scattered locations.”

The Court then found ARA’s segmenting claim lacked merit where the County “considered the entire group of microcell units to be the Project.” Although Crown filed separate permit applications for the individual microcell units and the County issued separate permits and exemptions for each unit, the Project was considered as a group. Rejecting the segmentation argument, the Court noted that “[t]he nature of the paperwork required for approval of the project is immaterial.”

The Court also denied ARA’s claim that the Project would fall within a cumulative impact exception (CEQA Guidelines, § 15300.2(b)) because other cell carriers would mirror Crown’s microcell project’s approval within the County, thus increasing the visual impact. The court found ARA’s argument baseless and speculative where evidence in the record suggested to the contrary. The Northern California Joint Pole Association controlled access to the utility poles; access was only available if all of those using the pole agreed and the pole would not be overloaded by additional equipment. Thus, the possibility of additional installations on the same poles was remote.

The Court then found the location exception (CEQA Guidelines, § 15300.2(a)) to the Class 3 exemption did not apply. The location exception is restricted to projects that “may impact an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” The County Code designating the area as “rural” and “residential agricultural” did not have any language in the statement of purpose designating the area as an environmental resource of hazardous or critical concern. ARA presented no evidence that Project site qualified.

Finally, the Court found that the County did not abuse its discretion by finding no exception based on unusual circumstances. (CEQA Guidelines, § 15300.2(c).) Relying on Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court held ARA did not meet the burden of showing a reasonable possibility the activity would have a significant effect on the environment due to unusual circumstances. ARA produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area, or in areas zoned residential agricultural.

Having dismissed each of ARA’s contentions on appeal, the Court affirmed the trial court and found the DAS installations were properly exempt from CEQA.

Key Point:

When challenging CEQA exemptions, the burden lies on petitioners to show clear and unrefuted evidence that the classification was improper; speculation and hearsay are insufficient.

Further, CEQA allows the exemption for small facilities to apply to multiple small facilities at once within a project. Agriculture zoning is inadequate to successfully claim the location exception, facts must show that the project site is actually “an environmental resource of hazardous or critical concern.”

CARB Regulatory Advisory “Project Approval” Triggers CEQA Review Despite Agency Certified Regulatory Program, Public Testimony Must Be Adequately Addressed to Meet Cal APA Standards

Wednesday, January 31st, 2018

In John R. Lawson Rock & Oil, Inc. v. State Air Resource Board (2018) 20 Cal. App. 5th 77, the Fifth District Court of Appeal found the California Air Resources Board’s (CARB) issuance of a regulatory advisory was “project approval” triggering CEQA review. Doing so prior to completion of environmental review violated CEQA timing requirements. Later, CARB relied on a negative declaration, which the Court also set aside. Further, CARB failed to comply with the California Administrative Procedures Act (CalAPA). As such, the Court directed CARB to comply with CEQA in modifying a set of 2008 regulations known as the Truck and Bus Regulations (Regulations).

CARB issued the Regulations to reduce greenhouse gas emissions from large vehicles by, as pertinent here, requiring vehicle owners to retrofit and upgrade existing vehicles by January 2014. In mid-2013, CARB staff found the global recession substantially reduced trucking activity making compliance with the Regulations financially difficult, especially for those in rural areas and small business settings. CARB responded by delaying reporting deadlines and requesting modification proposals. In November 2013, CARB issued a regulatory advisory stating a handful of modifications to the Regulations would be implemented. Specific changes included: delaying compliance dates, eliminating filter replacement requirements for certain light trucks, and providing a 10-year window where only engines less than 20-years-old would require modernization. After circulating a staff report and proposed modifications in March 2014, CARB issued its final approval in December 2014. Plaintiffs and Respondents filed suit on behalf of fleets that had already incurred significant cost in complying with the unmodified regulations, alleging CARB failed to comply with CEQA and CalAPA requirements.

The Appellate Court found agencies that operate under a certified regulatory program are exempt from certain elements of CEQA review yet still subject to the “functional equivalent” of CEQA environmental review, per the Court’s holding in POET, LLC v. State Air Resources Control Board (2013) 218 Cal.App.4th 681. CARB’s regulatory program requires the preparation of a public staff report at least 45 days before public hearing on a proposed regulation, discussion of environmental alternatives, response to public comment, and compliance with CEQA. Within the regulatory scheme, documents like the CARB staff report are expected to be analyzed and considered before project approval in the same way that CEQA documents are considered.

Applying CEQA principles, the Court determined that project approval triggering CEQA or its equivalent occurred where the regulatory advisory “opened the way” for a project to proceed. CARB conduct following the advisory was “detrimental to further fair environmental analysis.” That the final approval was not to be until 2014 and there was stated CARB authority to change the modifications before that time was insufficient to show the regulatory advisory was not project approval. Language in the advisory that truckers could immediately take advantage of certain programs and the subsequent CARB reliance on the advisory “foreclosed alternatives” to the proposed modifications. Because the advisory was issued before environmental review was complete, CARB failed to comply with CEQA timing requirements.

Next, the Court held the proper baseline for CEQA consideration in this case is the actual environmental conditions at the time of review, not those allowable by the current regulations. As such, CARB acted within its discretion to use a baseline that recognized some trucks and buses were not yet in compliance

Despite this, substantial evidence supported a fair argument that modifications to the Regulations would negatively and significantly impact air quality therefore CARB was incorrect to rely on a negative declaration. CARB failed to address that the modifications, while continuing to decrease emissions in the long term, would increase emissions in the short term. CARB also failed to address the inconsistencies between the proposed project’s emissions and applicable general plans, specific plans, and regional plans.

Notwithstanding these findings, the Court held that the trial court incorrectly directed CARB to prepare an EIR, or its functional equivalent. Such a remedy is only appropriate where the agency no longer has discretion to act in compliance with CEQA. Here, CARB still retained such discretion so the proper remedy is to simply direct CARB to comply with CEQA.

Lastly, CARB failed to comply with CalAPA where it did not adequately address economic impacts to intrastate commerce. While the Court usually gives deference to the agency on determinations of economic impacts, there is no deference for improperly adopted regulations. Here, CARB heard public testimony that relaxing the regulations would impact intrastate competition where those in compliance took on a large expense to be so and others would be able to undercut them. The Court held that testimony, while not written in a formal letter or report, nonetheless put CARB on notice of such issues. While CARB claimed it answered this issue in other comment answers, the Court found that its responses were not supported by any record evidence or meaningful analysis.

Key Point:

A regulatory advisory may be “project approval” triggering CEQA where it forecloses project alternatives therefore environmental review must be complete before its issuance. This standard applies to partially-exempt regulatory bodies and state agencies when their certified regulatory programs are intended to be CEQA-compliant.