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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.

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

Friday, December 28th, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Key Point:

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

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

Friday, December 21st, 2018

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

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

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

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

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

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

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

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

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

Tuesday, December 18th, 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

The Court affirmed the trial court’s holding.

Key Point:

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

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

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

CEQA Claims Separate from Municipal Code Claims Subject to More-Specific Public Resources Code Timing

Tuesday, October 23rd, 2018

In Save Lafayette Trees v. City of Lafayette (2018) 28 Cal. App. 5th 622, the First District Court of Appeal held that a letter of agreement for removal of protected trees was the equivalent of a permit under the municipal code and, therefore, challenges to its approval were subject to the filing and service limitations of Government Code section 65009(c)(1)(E) (Section 65009). However, CEQA claims related to the approval were subject to the more specific filing and service limitations in Public Resources Code sections 21167 and 21167.6.

On March 27, 2017, the City of Lafayette (City) approved a letter of agreement for removal of up to 272 trees in the local natural gas pipeline right-of-way by Real Party in Interest PG&E. On June 26, 2017 petitioners Save Lafayette Trees, Michael Dawson, and David Kosters (collectively Save Lafayette) filed a petition challenging the City’s action. The petition was served on the City on the next day.

The petition alleged that the City (1) failed to comply with CEQA; (2) violated the substantive and procedural requirements of the planning and zoning law, the city’s general plan, and the City’s tree ordinances; (3) violated the due process rights of the individual petitioners by failing to provide sufficient notice of the agreement review hearing; and (4) proceeded in excess of its authority and abused its discretion in completing each action.

PG&E filed a demurrer to the petition on the grounds that it was barred by Section 65009, which requires that an action regarding a zoning permit be filed and served within 90 days of the decision. Save Lafayette failed to meet this requirement by serving the City on the 91st day. The trial court sustained the demurrer without leave to amend and dismissed the petition. Save Lafayette timely appealed.

Reviewing de novo, the Appellate Court affirmed the demurrer in part and reversed in part. First, the Court set out that the filing and service limitations in Section 65009 are “to provide certainty for property owners and local governments regarding decisions by local agencies made pursuant to [the] planning and zoning law.” Further, the statute applies to all matters listed in the Section, including permits and variances when the applicable zoning ordinance provides. This interpretation, the Court clarified, “is to be applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests on a ‘decision’ of a local authority.”

Next, the Court outlined that, under the City’s municipal code, a permit is required for the removal of protected trees. An applicant may seek an exception when the tree must be removed “to protect the health, safety, and general welfare of the community.” The agreement approved by the City is to remove trees thus there is “no meaningful difference between [the agreement and a permit] in this instance.” Therefore, contrary to Save Lafayette’s contentions, the agreement “falls squarely within the scope of [Section 65009].”

Save Lafayette claimed that Section 65009 was only intended to apply to permits and variances related to relieving the state housing crisis and, thus, did not apply. The Court disagreed because courts have applied the statute to challenges in a broad range of local zoning and planning decisions.

The Court also dismissed Save Lafayette’s claim that the City was not the proper reviewing body for the statute. Save Lafayette claimed that the City was not explicitly listed as a legislative body whose actions were subject to Section 65009. Citing relevant precedent, the Court held that it is “the underlying decision being reviewed [that] determines the applicability of Section 65009,” not the body deciding it.

Save Lafayette claimed that the 180-day statute of limitations provided in the City’s Municipal Code applies here. The Court disagreed because “[i]nsofar as Section 65009 applies to the present action and expressly conflicts with the local ordinance, it preempts the local ordinance.”

Save Lafayette also argued that it should be excused from compliance with Section 65009 as the City failed to provide written notice of the approval prior to the meeting, as required by Government Code section 65905 and the due process clause of the Constitution. The Court held that the City complied with the Brown Act and provided adequate notice as Save Lafayette failed to present any facts to support a conclusion that they were entitled to personal service.

Finally, the Court held that the CEQA cause of action was timely filed and served and therefore reversed and remanded as to the CEQA cause of action. Relying on Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, the Court held “when two statutes relate to the same subject, the more specific one will control unless they can be reconciled.” Section 65009 and Public Resources Code sections 21167 and 21167.6 relate to the same subject, the time period for service. In Royalty Carpet, the court held that the shorter statute of limitation and service requirement set forth in Public Resources Code sections 21167(b) and 21167.6(a) do not require automatic dismissal and, therefore, can be harmonized with the 90-day service requirement set forth in Section 65009(c)(1)(E). Here, however, the Court concluded the longer 180-day requirement set forth in Public Resources Code section 21167(a) applied and that requirement could not be reconciled with Section 65009(c)(1)(E)’s shorter 90-day service requirement. As a result, unlike in Royalty Carpet, the two applicable statutory provisions could not be reconciled. Because the applicable statutory provisions could not be reconciled, the more specific Public Resources Code provisions set forth in Public Resources Code sections 21167(b) and 21167.6(a) prevailed.  Therefore, the Court concluded that Save Lafayette’s CEQA claims were timely.

The Court affirmed the trial court ruling in part, sustaining the demurrer as to the second, third, and fourth causes of action, and reversed in part, finding the demurrer improper as the CEQA cause of action.

Key Point:

The more-specific filing and service timing requirements of the Public Resources Code apply to CEQA claims rather than the service and timing requirements in the Government Code.

Governor Brown Signs Pro-Density, Pro-Housing Bills to Close Legislative Session

Sunday, September 30th, 2018

In the last evening of the last legislative session of his governorship, California Governor Jerry Brown signed two bills directed at increasing housing availability in the State. He signed each September 30, 2018 with no instructive message.

Senate Bill 828, proposed by San Francisco Democratic Senator Scott Wiener, requires local governments to report more data to the State in order to determine local housing needs pursuant to the Regional Housing Need Allocation (RHNA) law, including percentages of people spending more than 30 percent of their income on housing. The bill sets a minimum target vacancy rate of 5 percent as “healthy.” Areas that fail to meet this goal will need to zone for more housing.

Localities will also be required to zone for housing based on both projected needs and current shortages. Previously, the law only required local governments to zone for projected needs and, therefore, allowed shortages already prevalent in the community to be overlooked. As originally proposed, the bill required localities to zone for 200 percent of projected housing needs in order to boost housing production statewide. However, this figure was reduced to 100 percent in committee review and floor debates.

Developers around the State could see more dense residential zoning in cities that previously had few development opportunities. Opponents of the bill argued that the bill transfers too much planning power away from local governments and into the hands of the State.

Assembly Bill 1771, proposed by Santa Monica Democratic Assemblymember Richard Bloom, amends RHNA requirements by focusing more on job-housing balance metrics. RHNA previously required local governments to plan for an increase of the overall housing supply in a way that includes a mix of housing types and affordability across the region “in an equitable manner.” AB 1771 added that this must be done to “avoid displacement,” increase access of “high opportunity” jobs for low-income residents, and “affirmatively further fair housing.”

Proponents of the bill see it as forcing affluent municipalities to build their fair share of affordable housing. Specifically, the bill represents an effort to force wealthy cities like Beverly Hills and those surrounding San Francisco to plan for additional affordable housing so that existing low-income communities are not solely saddled with the burden of producing more housing.

Both bills support the Legislature’s recent push to use housing supply laws to make it harder for cities to say no to projects that would help alleviate the housing crisis in California.

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Other housing bills that the governor signed include the following

SB 1227 – Provides density bonuses for developments to be occupied by college students

AB 829 — Prohibits any letter of acknowledge requirement for state-assisted projects

AB 2238—Requires LAFCOs to consider regional housing need, fire hazard and other emergencies in project proposals

AB 2372—Allows city or county to award floor area ratio bonus by ordinance, upon developer request

AB 2753 –Requires city or county provide project applicant determination of density and parking bonus

AB 2797— Provides density, parking, and other bonuses be permitted in a manner consistent with the Coastal Act

AB 2923 –BART required to adopt transit oriented development (TOD) standards for each station

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.

Public Trust Doctrine Applies to Groundwater, Sustainable Groundwater Management Act Exists Concurrently with Common Law and Did Not “Occupy the Field”

Wednesday, August 29th, 2018

In Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 844, the Third District Court of Appeal held that the public trust doctrine applies to groundwater basin management where groundwater may effect “navigable waters” and the Sustainable Groundwater Management Act (SGMA), Water Code section 10720 et seq., did not change this.

The parties stipulated to the facts and issues for the Court to address. The Scott River is a tributary of the Klamath River and a navigable waterway located in the northwest California. The Scott River has historically been used for water recreation and serves as habitat for salmon species listed in the Endangered Species Act. Groundwater aquifers adjacent to the Scott River in Siskiyou County (County) are hydrologically connected to the surface flows of the Scott River. Local farmers drilled groundwater wells and, in some summers and early fall months, the River was dewatered due to the groundwater pumping.

Environmental groups petitioned the County and the State Water Resources Control Board (SWRCB) to take administrative action to limit pumping in the Scott River watershed based on the public trust doctrine. When both refused, Environmental Law Foundation (ELF) filed suit.

ELF alleged that groundwater resources, which are interconnected with the surface water flows of the Scott River, are subject to and protected by the State’s public trust doctrine. The SWRCB reconsidered and adopted ELF’s position before the litigation concluded. The County claimed that it had no duty to limit groundwater pumping or consider its environmental impacts. The County further claimed that SGMA, which created a statewide system of groundwater management, was a comprehensive statutory scheme that displaced common law principles like the public trust doctrine. The trial court held that the public trust doctrine applies to groundwater in this case and SGMA did not effect this. The County timely appealed.

The Appellate Court, with Presiding Justice Raye writing for a unanimous Court, relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 and held that groundwater in the Scott River Valley is subject to the public trust doctrine. In National Audubon, the Supreme Court held that the public trust doctrine fully applies to the State’s complex water rights system. Specifically, the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine. The Court held that the Scott River facts were analogous to those in National Audubon as the pumping was similarly effecting the water level of the river. However, there was a heightened duty to protect the Scott River where it is a navigable waterway. “The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violate the public trust.” Accordingly, the Court concluded that the public trust doctrine fully applies to extractions of groundwater that effect a navigable waterway.

The Court then held that, by enacting the SGMA, the Legislature did not intend to “occupy the field” of groundwater management and thereby abolish the public trust doctrine. Definitively, the Court held, “the enactment of SGMA does not, as the County maintains, occupy the field, replace or fulfill public trust duties, or scuttle decades of decisions upholding, defending, and expanding the public trust doctrine.”

The Court affirmed the trial court’s decision.

Key Point:                                                            

The State and its legal subdivisions must concurrently consider public trust principles and the Sustainable Groundwater Management Act in monitoring groundwater resources. Further, only where the Legislature intended to “occupy the field” will common law principles be superseded by Legislative acts.

Endangered Species Act Proposed Rules Lighten Required Considerations for Threatened Species, Narrows Agency Responsibilities for Critical Habitats

Friday, July 20th, 2018

On Thursday, July 19, 2018 the U.S. Fish and Wildlife Service (USDFW) and the National Oceanic Atmospheric Administration (NOAA) released proposed revisions to the federal Endangered Species Act (ESA). These proposals amend procedures for species protection by changing requisite considerations and protections afforded “threatened” species, limiting the time scope for such considerations, and streamlining agency consultation.

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out any action that would jeopardize a critical habitat that an endangered or threatened species relies on. Specifically, it is prohibited that any project “take,” or harm, any plants, animals or invertebrates that are listed as threatened or protected. Originally passed in 1973, the Act has been significantly amended in 1978, 1982, and 1988 to meet modern demands.

The proposed rules would extinguish the “blanket rule” under section 4(d) of the ESA, which provides the same level of consideration and protection to threatened species as it does to endangered species. Threatened species are those that are likely to become endangered but are not currently endangered, at risk of extinction. Currently, protections that shield threatened species mirror those for endangered species unless otherwise specified. The proposed rules would permit USDFW to craft specific plans for each threatened species determination that are “necessary and advisable for the conservation of the species,” according to the USDFW press release. While NOAA currently employs a similar practice, it may make it more difficult to shield species.

The proposed rules would shorten the requisite timeline for species endangerment considerations. Currently, “threatened” means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The vagueness of “foreseeable future” has been useful for environmental advocates to promote consideration of how climate change may affect the species. The proposed rules would change this section to mean only so far as can be “reasonably determined” that both the future threats and the species’ responses to those threats are foreseeable. This means that climate change considerations may not be required.

In the same vein, the proposed rules would repeal the prohibition on considering economic factors when deciding whether or not a species should be protected and the procedure to delist a species will now be the same standard as decisions to list the species.

Section 4 also deals with the procedures for listing, recovery and designating of critical habitats, or areas essential to support the conservation of a species. The proposed rules would revise the procedure for designating critical habitat by incorporating a non-exhaustive list of circumstances where they may find that designation of a critical habitat for a particular species would not be prudent. The agency will first evaluate areas currently occupied by the species before considering unoccupied areas. Additionally, the proposed changes would clarify when they may determine unoccupied areas are essential or not to the conservation of the species.

While none of these changes will be retroactive, they are part of the Trump Administration’s refocusing of federal environmental laws. Last month the administration began the process of overhauling the National Environmental Policy Act (NEPA). The Environmental Protection Agency, meanwhile, has used industry guidance documents and policy memos to dial back its oversight of air pollution under the Clean Air Act.

Deputy Secretary of the Interior Department described the ESA rule proposals as streamlining and improving the regulatory process. Indeed, per the USDFW press release, the changes are meant to narrow consultation requirements and allow federal agencies to simplify their actions with shorter ESA consideration. Opponents are concerned the changes will vacate protections for threatened species and weaken USDFW and NOAA’s abilities to address climate change.

The public has 60 days to issue comments on the proposed rules before the Interior Department and the Department of Commerce finalizes them.

Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review

Monday, July 16th, 2018

In Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, the First District Court of Appeal held that the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont (City) subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the City Council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six-acre lot (Project). HARB recommended that the Project be denied because it “would be incompatible in terms of siting, massing, materials, textures, and colors with existing development in the Niles [HOD].” Amidst critical comments, the City approved the Project with a mitigated negative declaration (MND). Protect Niles, a community action group, filed suit alleging the City improperly relied on the MND.

The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic and set aside the Project approval until an EIR was completed. Valley Oak timely appealed.

The Appellate Court first established that, despite Protect Niles’ claims to the contrary, the appeal was not moot. Valley Oak had already submitted a revised Project application and the City had published a draft EIR therefore “voluntarily complied” with CEQA. However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims.

The Court reiterated extensive precedent that CEQA must be interpreted to afford the fullest possible protection to the environment. Further, the Court held that an EIR is required where there is substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact exists where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Aesthetic impacts are context-specific. Here the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in observations of inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of a potential adverse aesthetic impact on the Niles HOD. The City’s reliance on a MND was improper.

The Court also criticized the traffic impact analysis and determined that substantial evidence of a fair argument required preparation of an EIR. The City had conducted a professional traffic study concluding the impacts would fall below the City’s threshold of significance. Despite this, the Court found the study was shortsighted for presuming that drivers follow the speed limit and criticized the City for failing to implement the study’s mitigation measure recommending a left-turn pocket lane. The record contained critical comments by residents, City officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument that the Project will have significant adverse traffic impacts.

The Court affirmed, directing the City to prepare an EIR if it were to go through with the original Project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.