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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.

Private Attorney General Doctrine Attorney’s Fee Award Proper Where Financial Burden Disproportionate to Financial Stake

Friday, January 12th, 2018

In Heron Bay Home Owner’s Association v. City of San Leandro (2018) 19 Cal.App.5th 376, the First District Court of Appeal affirmed a trial court judgement awarding partial attorneys’ fees where the financial burden of enforcement made an award appropriate pursuant to Code of Civil Procedure section 1021.5. The Heron Bay Homeowners’ Association (Heron Bay) was successful in their CEQA suit and while a “pecuniary interest in the outcome of the litigation [was] not disqualifying…the issue [was] whether the financial burden placed on the party is out of proportion to its personal stake in the lawsuit.”

Real Party in Interest Halus Power Systems manufactures wind turbines on a five-acre parcel in the City of San Leandro’s (City) industrial zone. Halus Power proposed to build a single 100-foot tall wind turbine on its property for renewable power generation and on-site research and development (Project). During the public comment period, Heron Bay expressed concern regarding the Project’s impacts on views, wildlife, aircraft navigational radar, noise and vibration levels, and property values. The City approved the Project, granted a height restriction variance, and issued a mitigated negative declaration. Heron Bay filed suit.

The trial court found there was substantial evidence supporting a fair argument that the Project as mitigated would have significant environmental impacts and directed the City to set aside its approval until the City had prepared an EIR. Halus Power ultimately decided not to proceed with the Project.

Heron Bay moved for an award of attorneys’ fees under Code of Civil Procedure section 1021.5 (Section 1021.5), the private attorney general doctrine. The trial court determined that the value of the suit to Heron Bay was approximately $5.8 million, and reasonably anticipated legal costs should have totaled approximately $240,000. The trial court also noted that Section 1021.5 was intended to address the problem of affordability in public interest litigation, and pointed out that a lawsuit aimed at avoiding financial loss, such as an anticipated harm to property values, may be especially hard to finance. Balancing these findings, the trial court awarded Heron Bay $181,471.70 in attorneys’ fees. The City timely appealed.

The Court found that to qualify for Section 1021.5 attorneys’ fees, a plaintiff must establish: (1) that the suit resulted in enforcement of an important right affecting the public interest; (2) that a significant benefit was conferred on the public or a large class of persons; and (3) that the necessity and financial burden of enforcement are such as to make the award appropriate. The City disputed Heron Bay’s claim that they met the third requirement.

The Court found that, contrary to the City’s assertions, Heron Bay faced a substantial financial burden compared to the potential benefit at stake in the litigation. Membership in the homeowners’ association was mandatory, each member had a vote, and only a few properties in the 629-unit development were likely to be within view of the Project. Accordingly, the Court reasoned that many members likely did not have sufficient individual financial motivation to retain counsel for CEQA litigation absent the possibility of Section 1021.5 fees.

The Court pointed out Heron Bay retained counsel on a “partially contingent fee basis,” allowing it to initially pay less than a third of the amount that retained-counsel actually billed. This “indicated Heron Bay and its members did not actually value the ‘benefit’ here sufficiently to undertake the litigation absent the incentive of a potential fee award under [S]ection 1021.5.” Further, the benefit Heron Bay sought was not “immediately bankable” and could not be used to pay counsel. The Court agreed with the trial court that the CEQA litigation costs would be a “much larger financial commitment” than the previous administrative proceeding they had been through. A court must evaluate these factors when determining whether the personal interests of Heron Bay “transcended the litigation costs.”

The Court then held some amount of pecuniary interest does not disqualify a party from being awarded attorneys’ fees. Heron Bay demonstrably was not solely motivated by a desire to avoid a loss in property values where its members submitted comments during the public comment period regarding not only property values, but also impacts on wildlife, aesthetics, health, and noise levels. The City’s argument that Heron Bay was ineligible for attorneys’ fee awards because it acted purely out of self-interest was unfounded. The City’s alternative argument—that Heron Bay was not authorized by its governing documents to pursue a purely altruistic action—was similarly dismissed.

The City’s final argument was that the trial court contradicted itself by concluding that Heron Bay’s “financial incentive” was “mitigated by the uncertain value of the benefit sought,” because the trial court assigned a subjective value, informed by Heron Bay’s claims, of $5.8 million to Heron Bay’s avoided property value loss. The Court stated that the trial court erred in applying an arbitrary evaluation, but found this did not affect the question of whether Heron Bay’s financial incentive was so large and the benefit so certain that it precluded any award. Since the City gave no credible evidence for a specific valuation of the projected loss, the Court could not agree that Heron Bay’s financial stake made Heron Bay ineligible for attorneys’ fees—the trial court conclusion was supported by substantial evidence.

Finally, the Court rejected speculative evidence regarding the Project’s projected harm to property values. The trial court’s ruling could not guarantee the City would refuse the requested variance or require Halus Power to make changes to the project following adoption of an EIR, or that Halus Power would abandon the project.

Accordingly, the Court affirmed the trial court’s ruling and awarded Heron Bay its costs on appeal, including attorneys’ fees, in an amount to be determined by the trial court.

Key Point:

A financial interest in the litigation does not automatically preclude an award of attorney’s fees under the private attorney general doctrine. Where the financial burden of bringing the lawsuit is disproportionate to a party’s financial stake in the lawsuit, fees may be awarded.

Third District Court of Appeal Gives Great Deference in Quasi-Judicial Agency Decision Not to Delist Coho Salmon, Ending Decades-Long Dispute

Friday, January 5th, 2018

In Central Coast Forest Association v. Fish and Game Commission (2018) 18 Cal. App. 5th 1191, the California Third District Court of Appeal found the California Fish and Game Commission (Commission) was correct to deny a petition to delist coho salmon from state protection under the California Endangered Species Act (CESA). Deferring to the scientific expertise of the Commission, the Court held there was substantial evidence to support the decision where petitioner’s arguments rested purely on speculation.

To delist a species under CESA, the Commission must find a petition is warranted and, if so, determine if the action to list or delist is warranted. The Commission bases these initial and secondary findings on highly-technical and scientific information from the Department of Fish and Wildlife.

The coho salmon in southern San Francisco/Santa Cruz County have been a CESA-listed endangered species since 1995. In 2004, the Commission expanded the listing’s parameters and delineated coho salmon north of Punta Gorda as a threatened species and coho salmon south of Punta Gorda as an endangered species. Central Coast Forest Association and Big Creek Lumber Company (Petitioners) sought delisting of the southern coho salmon. Petitioners alleged the fish were not endangered species as there were never wild, native salmon in the region; and if there were, they were destroyed by unfavorable environmental conditions. Further, the salmon present are solely sustained by hatchery plants, and as such, are not wild or native to California.

The Commission considered and denied Petitioners’ delisting petition in 2005 and again in 2007 for failing to contain sufficient scientific information. Petitioners twice failed to gain an order from the Superior Court overturning the decisions. Upon appeal, the California Supreme Court remanded the matter to the Third District Court of Appeal.

In reviewing, the Court focused on the sufficiency of the evidence and the deference they award to such determinations. Petitioners were required to present sufficient information to indicate the delisting may be warranted, information that would lead a reasonable person to conclude that there was a “substantial possibility” delisting could occur. Evidence is sufficient only if it is material, credible, supports the petition, and, when weighed against the Commission’s written report and any comments received, is strong enough to indicate that delisting may be justified.

Where the Commission’s decision to delist species is quasi-judicial, a higher deference is awarded to Commission findings. Specifically, the Commission’s technical and scientific resources and its legally wide discretion in decision-making makes the Court affirm the decision where the weight of the evidence is clearly justified or unclear. The Court will only reverse the decision where the evidence clearly weighs against it.

The Court examined the Commission’s evidence and Petitioner’s evidence regarding coho salmon’s historical existence in the contested area; including archaeological Native American middens, historical newspaper articles, hatchery records, drought and flood records, historical environmental factors, and genetic evidence. The Court found the Commission’s evidence was sufficient to determine Petitioner’s delisting petition unwarranted. The Commission showed that coho salmon are native to the contested area by genetically sequencing and comparing extant salmon with salmon museum specimens collected in 1895 from four adjacent streams in Santa Cruz County.

The Commission’s evidence also showed the sustained coho salmon population is not the result of hatchery planting. Historic hatchery output was sporadic and small in the southern San Francisco region, therefore the current population was not likely descended from local stock and no genetic evidence showed the current population is descended from out-of-state stock. The Court noted that even if existing populations were bolstered by local non-wild hatchery fish, these fish would genetically be considered California-native hatchery fish, and thus would be protected by the CESA.

Ultimately, the Court dismissed Petitioners’ evidence for it was “circumstantial” where they were “pick[ing] out bits of information that appear to substantiate their claim.” Thus, the Commission’s decision was appropriate where Petitioners’ claims were the product of “no scientifically credible data” and “[w]hat the petitioners call ‘evidence’ is actually persuasive writing, not valid scientific evidence.”

Answering technical questions posed by the Supreme Court, the Court found that a species “range” for consideration, per the Department of the Interior interpretation, is wherever the species is found, not only where it is known or historically known to be. Further, a portion of a listed species may only be delisted where it is individually “carved out” as a separate species, unlike what was petitioned for here.

Because the Commission has highly technical knowledge and delegated authority to list and delist endangered species, the Court affirmed the Commission decision to deny the delisting petition.

Key Point:

Where a quasi-judicial agency decision is challenged, the Court will give great deference to the decision, affirming where evidence is sufficient or unclear to support the decision. Sufficient evidence to the contrary is where credible, scientific based evidence outweighs the agency’s evidence.

FOURTH APPELLATE DISTRICT REJECTS CHALLENGE TO MITIGATED NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT PROJECT

Monday, November 2nd, 2015

In an unpublished decision, Save Desert Rose v. City of Encinitas, 2015 Cal. App. Unpub. LEXIS 7685, the Fourth Appellate District reversed the judgment of the trial court and held Save Desert Rose (Petitioner) failed to demonstrate that substantial evidence supported a fair argument that a proposed 16 single-family home subdivision project (Project) may have a significant effect on the environment.  As a result, the Court found the Encinitas City Council’s reliance on a mitigated negative declaration (MND), rather than an environmental impact report (EIR), to approve the Project complied with the California Environmental Quality Act (CEQA).

In reaching this decision, the Court conducted an independent review of the record to determine if substantial evidence supported a fair argument with respect to any of the nine claims raised by Petitioners. In doing so, the court clarified that the fair argument standard is a question of law and therefore did not defer to either the lead agency’s or trail court’s determination on the issue. However, the Court noted that the Petitioner bore the burden of proof in demonstrating that a fair argument of a potentially significant impact could be made from substantial evidence on the record.

In conducting its independent review, the court undertook a comprehensive analysis of Petitioner’s nine challenges including alleged potentially significant impacts to raptors, wetland habitat, aesthetics and views, community character, stormwater management, erosion during construction, traffic, vehicular safety hazards, and parking. With respect to each, the Court concluded no substantial evidence in the administrative record supported a fair argument the Project may have a significant effect on the environment within the meaning of CEQA.

Notably, the court determined that a traffic study cited by the challengers did not support a fair argument because it was found to be flawed by the City’s traffic engineering division and other independent experts in the field. Further, the court found no fair argument that impacts on biological resources (including riparian habitat and the possible existence of raptors) within the proposed development site could not be mitigated below significance, relying in part on statements from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service in support of the proposed mitigation measures.

Additionally, the court found no fair argument in support of impacts to water quality and drainage because additional permits and conditions for approval were required before the applicant could proceed. Specifically, before issuing a grading permit the City requires compliance with stormwater quality regulations as set forth in its Stormwater Manual and Best Management Practices Manual, as well as preparation of a Stormwater Pollution Prevention Plan as required by the State Water Resources Control Board. Therefore, the court held that no fair argument existed even though precise mitigation details would not be available until the applicant applied for a grading permit.

Second District Court of Appeal Upholds EIR for Development Along Santa Clara River

Monday, January 26th, 2015

In an unpublished opinion in Santa Clarita Organization for Planning and the Environment v. City of Santa Clarita, 2014 Cal. App. Unpub. LEXIS 8998, the California Second District Court of Appeal reversed the trial court and denied a petition for a writ of mandate challenging a 185-acre development (the Project) along the Santa Clara River near the City of Santa Clarita (the City). The court also rejected SCOPE’s cross appeals, allowing the mixed use development project to move forward.

The City owns a portion of the dry Santa Clara River corridor running through the Project site and the Project provides that the City will sell four of the acres to the developer for installation of buried bank stabilization. The Project also preserves a corridor of the dry riverbed, and results in dedication of all developer-owned river corridor property to the City.

The court reversed the trial court in two respects. First, the court held the City did not improperly incorporate by reference other documents into the environmental impact report (EIR). The court rejected SCOPE’s argument that the description or summary of the incorporated document must appear at the precise point in the EIR where the document was incorporated, and rejected all of SCOPE’s examples of alleged inadequate discussion of the documents incorporated by reference. Additionally, while the EIR may not have included an adequate description or summary for a few documents incorporated by reference, the court held SCOPE failed to show any prejudicial error.

Second, the court held the EIR adequately analyzed the cumulative biological effects of the Project. SCOPE contended the analysis was too broad because the EIR relied upon an analysis of the entire 1,036,571-acre Santa Clara River Watershed, while the Project was only 185 acres. However, the court noted a preference by the EPA for watershed-wide analyses and held the City did not abuse its discretion in considering the watershed-wide analysis of the Project’s cumulative impacts.

As to the cross appeals, the court held the Project was consistent with the City’s general plan. The court found the general plan amendment’s description of the preserved river corridor was not vague and the City did not abuse its discretion in finding the Project was consistent with the General Plan’s goal of promoting preservation of the river as open space.

The court also declined to question the correctness of the EIR’s environmental conclusions and found substantial evidence supported the City’s finding that the Project would not have a significant water quality impact related to chloride in the river.

Finally, the court held the trial court properly sustained the City’s demurrer to SCOPE’s claims regarding the Santa Monica Mountains Conservancy Act (the Act), focusing primarily on the lack of a private right of enforcement of the Act..

Addendum Upheld: Amendments to San Jose Airport Master Plan Cleared For Landing

Monday, July 21st, 2014

In Citizens Against Airport Pollution v. City of San Jose (2014) Cal. App. LEXIS 588, the Court of Appeal for the Sixth District upheld the trial court’s denial of a writ of mandate challenging the City of San Jose’s (the City) approval of an addendum to an EIR analyzing the environmental impacts of amendments to San Jose Airport’s Master Plan (Airport Master Plan).

The City began updating the Airport Master Plan in 1988 to accommodate the projected growth at the airport.  The City approved the final environmental impact report (EIR) for the update in 1997.  From 1997 to 2010 eight addenda to the Airport Master Plan EIR were approved, with the eighth addendum considering the impacts changes to the size and location of planned air cargo facilities and modifications to the taxiing area of the runway.

Citizens Against Airport Pollution (CAAP) contended that the City violated the California Environmental Quality Act (CEQA) in approving the eighth addendum because the amendments to the Airport Master Plan were so significant that they constituted a new project for purposes of CEQA.  CAAP further contended that the 1997 EIR was a program EIR, as opposed to a narrower project EIR, and that a new EIR should be completed.  The court declined to determine whether the 1997 EIR was a project-level EIR or a broader program EIR, but held that there was substantial evidence to support the City’s finding that the amendments to the Airport Master Plan would not have a significant effect on noise, air quality, or the burrowing owl habitat as CAAP contended.

Relying on an analysis in the addendum that showed a decrease in daily aircraft operations and improved airplane technology resulting in quieter aircraft, the court found that there was substantial evidence that the amendments to the Airport Master Plan would not result in significant noise impacts.

Similarly, the projected decrease in aircraft operations resulted in no significant impact to air quality.  CAAP did not dispute the projected decrease in aircraft operations, thus the court found that there was substantial evidence to support the City’s findings that the impact on air quality was sufficiently analyzed in the 1997 EIR.

The court also found that there was substantial evidence to support the City’s findings that the amendments to the Airport Master Plan would not have a significant impact on the burrowing owls nesting in the unpaved portions of the airfield.  The 1997 EIR had concluded that implementation of the Airport Master Plan would impact the burrowing owl, which is a species of concern in California.  However, the EIR also included a Burrowing Owl Management Plan that established protected sections of the airfield and required biologists to monitor the burrowing owls in the area among other measures.  The eighth addendum included mitigation measures that were consistent with the Burrow Owl Management Plan and even provided for the construction of one-way doors to ensure that no burrowing owls would be trapped in their burrows when construction began.  As a result, the court held that the impact on the burrowing owl population at the airport was not substantially different than the impact considered in the 1997 EIR.

The court also rejected CAAP’s argument that a supplemental EIR was required to analyze greenhouse gas emissions.  A 2010 CEQA amendment requires lead agencies to make a “good-faith effort” to estimate the amount of greenhouse gas emissions from a project.  (CEQA Guidelines section 15064.4.)  However, CEQA does not require a supplemental EIR unless new information becomes available that was not known when the original EIR was completed.  The court held that the potential impact of greenhouse gas emissions was widely known in 1997 when the EIR was completed and in 2003 when a supplemental EIR was completed.  Therefore, the potential impact of greenhouse gases did not constitute new information and a supplemental EIR was not required.

KEY POINT

Once an EIR is completed for a project, a court applies the substantial evidence standard of review to determining whether project changes require a supplemental EIR.  If the lead agency can show there is substantial evidence to support a finding that there will be no significant impacts, the court will permit an addendum to the original EIR instead of a supplemental EIR.

Mining the Administrative Record for Answers: Appellate Court Reverses Trial Court for Ignoring Substantial Evidence and Making Improper De Novo Determinations on Quarry Project

Thursday, June 12th, 2014

In an unpublished decision, Citizens Advocating for Roblar Rural Community v. County of Sonoma, 2014 Cal. App. Unpub. LEXIS 3393, the Court of Appeal for the First District reversed the trial court’s decision granting a petition for writ of mandate that challenged County certification of a final environmental impact report (EIR) and issuance of necessary land use permits for an aggregate quarry.

In December 2010, the County of Sonoma certified an EIR for development of a 65-acre quarry pit for mining and processing of approximately 570,000 cubic yards of aggregate material annually.  Petitioner filed a petition for a writ of mandate challenging the county’s quarry project approvals in January 2011. The trial court granted the petition in part, finding that failure to study potential water quality contamination from a neighboring landfill resulted in factual conclusions unsupported by substantial evidence.  The trial court also found that mitigation measures were inadequate or constituted a prohibited deferral of mitigation, and that the EIR’s analysis of the impact of widening an access road on an adjacent creek was inadequate.

On appeal, the court reversed, finding that the trial court improperly ignored substantial evidence supporting the county’s actions and made improper de novo determinations.  First, with respect to petitioner’s argument that the EIR did not adequately study potential groundwater quality impacts, the EIR acknowledged the risk that contaminants from the landfill could seep into the quarry site as a result of mining operations.  Petitioner contended that the county should have conducted testing to determine the risk posed to regional water quality.  Instead, the county relied on groundwater monitoring well data and subsurface exploration to support its finding that the risk to groundwater quality was less than significant.  The court of appeal found substantial evidence supported the county’s conclusion, which must be upheld even if another conclusion could have been reached.

Next, the court addressed allegations that the EIR failed to properly analyze traffic mitigation.  The County concluded that roadway improvements on Roblar Road , which were required to mitigate traffic impacts, would have less than significant secondary impacts on the adjacent Americano Creek. The court found that the secondary environmental impacts of offsite mitigation measures, including widening of access roadways, were catalogued and discussed in significant detail in the EIR. Petitioner argued that the road widening was an integral aspect of the project as a whole requiring complete analysis. The court rejected this argument since this would eliminate any distinction between primary and secondary environmental impacts by making all proposed mitigation a “project component.”

Finally, petitioner contended that the EIR was inadequate because mitigation measures to address impacts to protected species did not describe, analyze, or mention the site of a required offsite mitigation preserve, precluding the county from determining if the mitigation was even feasible. The court found that the county did not defer mitigation because it properly identified a specific means of mitigating for the loss of habitat through the creation of habitat or preservation of existing habitat at a ratio consistent with state and federal law. The county could rely on future study to identify the particular details of mitigation measure implementation, including habitat location.

Key Point:

This case highlights the deferential treatment that courts give to lead agencies in reviewing EIR adequacy; despite the potential to arrive to alternate conclusions, the lead agency’s determination will be upheld as long as it is supported by substantial evidence. In addition, this case upholds reliance on later approvals from responsible agencies to mitigate for loss of habitat where the EIR species the impact and requires replacement of lost habitat in a manner consistent with state and federal law.

Sixth District Thirsty for a More Robust Alternatives Analysis

Wednesday, February 27th, 2013

In Habitat v. City of Santa Cruz (Feb. 19, 2013) 2013 Cal.App.LEXIS 128, the Sixth District Court of Appeal reversed the trial court decision and ordered the City of Santa Cruz (City) to vacate its certification of the final EIR and approval of a project because the EIR failed to discuss any feasible project alternatives that could avoid or lessen the significant environmental impact of the project on the City’s water supply.

The City certified an environmental impact report (EIR) for an amendment of the City’s sphere of influence (SOI) in order to include an undeveloped portion of the University of California, Santa Cruz (UCSC) campus known as “North Campus” so as to permit the City to provide extraterritorial water and sewer services to proposed new development in North Campus.

Habitat and Watershed Caretakers (Habitat) filed suit alleging the EIR failed to comply with the California Environmental Quality Act (CEQA) because the EIR (1) did not adequately discuss and analyze the impacts of the project on water supply, watershed resources, biological resources, and indirect growth, (2) misdescribed the project’s objectives, (3) failed to provide adequate mitigation measures, (4) failed to make sufficient findings,  (5) failed to provide an adequate statement of overriding considerations, and (6) failed to consider and analyze a reasonable range of alternatives.

The court held the EIR’s analysis of water supply impacts was adequate.  The EIR disclosed the City’s inadequate water supplies and projected that this imbalance could be dealt with through conservation and curtailment, and, hopefully, the future development of a desalination facility. The court concluded the analysis satisfied CEQA and separately considered the sufficiency of the proposed water supply mitigation measures.

Habitat argued the EIR failed to provide “specific, certain and enforceable mitigation measures for the Project’s significant and allegedly unavoidable impacts on water supply.”  In Habitat’s view, the sole mitigation proposed in the EIR was the potential construction of a desalination facility which would not solve the City’s water issues.  The court disagreed finding the EIR contained numerous mitigation measures, including using water from existing supply wells, feasibility studies on measures for utilization of reclaimed water, water conservation strategies, and water audits to identify feasible measures that could be implemented.  The court held that these mitigation measures were adequate, explaining an EIR did not have to present mitigation measures to solve the City’s longstanding water supply deficit, it only had to address the impact of the project being analyzed.

Furthermore, the court held the EIR’s analysis of cumulative impacts on the City’s water supply caused by indirect growth inducement was adequate because the EIR acknowledge and considered the impacts of off-campus growth and secondary off-campus growth.  The court explained, although there “may be a legitimate basis for disagreement” they must defer to the conclusions found in the EIR because substantial evidence existed in support of the conclusions found.

Additionally, the court held the EIR’s analysis of the project’s impact on watershed resources was adequate.  Habitat alleged the EIR was inadequate because it relied on a Storm Water Management Plan (SWMP) that was not included in the EIR.  The court disagreed.  The Draft EIR adequately analyzed potential impacts on watershed resources and concluded those impacts were less than significant after mitigation.  The Final EIR’s discussion of the SWMP only served to buttress the conclusion reached in the Draft EIR and, therefore, did not render the EIR inadequate.  The court also upheld the City’s decision not to delineate all the wetlands within the project area.  In recognition of the fact that wetlands are dynamic resources, the EIR adopted mitigation that, among other things, required wetland delineations to occur during future project-level environmental review as specific projects are proposed within the North Campus.

Next, the court held the EIR’s discussion of the project’s impact on biological resources was adequate.  Habitat asserted that the EIR was required to disclose and analyze the project’s impact on the San Lorenzo River and the North Coast Streams resulting from its water supply demands.  However, the EIR did not propose relying on increased water consumption from existing water resources.  Instead, it proposed meeting the project’s needs through conservation, curtailment, and the possible construction of a desalination facility.  Thus, substantial evidence demonstrated the project would not impact the existing water resources identified by Habitat.

With respect to Habitat’s challenge to the project objectives, the court agreed the draft EIR originally misstated the project objective as: “implementation of the settlement agreement as related to submission of applications for an SOI amendment and to facilitate the provision of water and sewer service.” The court explained that the purpose of the project was not to fulfill the settlement agreement requirements, since those were satisfied when the applications were filed.  The court held the final EIR described the project objective properly.  The true objective, as disclosed in the Final EIR, was to provide the Regents with the water necessary to develop the North Campus.  The court concluded, “[w]hile the draft EIR did fail to adequately delineate the project’s objectives, the final EIR corrected this problem.”

Additionally, Habitat argued the EIR’s findings and statement of overriding considerations were inadequate. The court held there was no independent merit to Habitat’s challenge to the findings because the argument was essentially a repeat of the challenges to the EIR.  However, the court agreed with Habitat that three of the six reasons stated in the City’s statement of overriding considerations were inadequate.  Nevertheless, the City found that each of the six reasons stated was individually sufficient to outweigh the significant impact on the City’s water supply.  Therefore, “[u]nder the abuse of discretion standard, the City’s decision to favor the identified benefits over the significant environmental impacts of the project must be upheld.”

Finally, Habitat argued the EIR failed to consider and analyze a reasonable range of potentially feasible alternatives. The court rejected Habitat’s argument that the EIR was required to include a reduced-development alternative because “LAFCO lacks the power to impose conditions that would directly restrict the Regents’ development of North Campus…”  However, the court agreed that the EIR should have included a “limited-water” alternative.

The City argued that a limited-water use alternative was properly omitted because (1) it would not “meet the basic Project objective,” (2) it would not avoid the significant impact on water supply because the Regents could develop areas already within the City’s water service area, and (3) “the City has no jurisdiction to limit UCSC’s on-campus development.”  The court rejected these arguments in turn.  First, the court explained an alternative cannot be eliminated from consideration only because it would interfere to some extent with project objectives.  Second, the court concluded the EIR failed to explain how a limited-water alternative would not avoid the significant impact on water supply stating: “to facilitate CEQA’s informational role, the EIR must contain facts and analysis, not just the agency’s bare conclusions or opinions.”  Third, the court found that the limitation on LAFCO’s power to directly regulate land use did not prohibit it from conditioning the provision of water and sewer services for North Campus development on water supply availability by imposing a limited-water condition.  Therefore, the City’s failure to analyze any potentially feasible alternative that could avoid or lessen the significant environmental impact of the project on the City’s water supply rendered the EIR inadequate.

Key Point:

Feasibility of alternatives must be considered at two phases in the EIR process.  At the outset, the lead agency must identify and analyze potentially feasible alternatives within the EIR.  Then, in certifying an EIR and adopting a project, the lead agency must determine whether the potentially feasible alternatives that will reduce or avoid a project’s significant and unavoidable impacts are actually feasible.  Here, the court faulted the City for improperly rejecting potentially feasible alternatives during the first step in the CEQA process for analyzing alternatives.

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

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

City Properly Analyzed Community Park Project Separately from Adjacent Housing Development

Wednesday, January 2nd, 2013

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

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

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

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

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

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

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

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

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

Key Point:

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

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

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

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

EIR Found Deficient With Regard to Water Supply Impacts and Deferred Butterfly Mitigation

Wednesday, October 24th, 2012

In Preserve Wild Santee v. City of Santee (2012) 2012 Cal. App. LEXIS 1091, petitioners challenged the City of Santee’s (City) certification of a final environmental impact report (EIR) for a development project in the City, claiming the project violated the California Environmental Quality Act (CEQA) in several ways.  The trial court found merit in one of petitioners’ claims – the EIR contained insufficient evidence to support its conclusion the project’s fire safety impacts were less than significant.  Petitioners nevertheless appealed, arguing that the EIR was deficient in several other respects.  The Fourth Appellate District agreed with Petitioners in two respects.  First, the court agreed that the EIR improperly deferred mitigation of impacts to the Quino checkerspot butterfly.  Second, the court held the EIR inadequately analyzed the project’s water supply impacts.  The court also affirmed the lower court’s award of attorneys’ fees and costs.

Petitioners raised three claims related to the project’s biological resources impacts.  First, they alleged the EIR’s cumulative biological resources impacts analysis improperly relied on the draft subarea plan.  CEQA requires an EIR to discuss a project’s cumulative impacts when the project, combined with the effects of other development, would cause a significant environmental impact.  In this case, the court upheld the EIR’s conclusion that the project’s cumulative impacts on biological resources were not cumulatively considerable because “potential development surrounding the project was in the early planning stages” and “the project will not interfere with the potential development’s attainment of its share of the goals [of the existing Multiple Species Conservation Program].”  Second, petitioners argued the EIR violated CEQA because a mitigation measure requiring the developer to obtain an offsite mitigation property was infeasible.  The court disagreed.  The court explained that an agency does not generally need to identify the exact location of offsite mitigation for such a measure to be adequate.  The court also found substantial evidence in the record showing the mitigation measure was in fact feasible.  Third, petitioners contended the EIR improperly deferred mitigation measures regarding the active management of the Quino chekerspot butterfly within the preserve.  The court concluded that while the EIR contained measures to mitigate the loss of Quino butterfly habitat, it did not contain performance standards or guidelines for active management of the Quino butterfly within the preserve, which constituted an improper deferral of mitigation under CEQA.

With regard to the project’s water supply impacts, the court determined the ultimate question was whether the EIR adequately addressed the reasonably foreseeable impacts of water supply to the project, not whether it established a likely source of water.  The court explained long-term water supply inherently contains uncertainties however, to satisfy CEQA, an EIR must identify those uncertainties and discuss reasonably foreseeable alternatives.  More specifically, the EIR should have addressed the impacts of likely future water supplies and included circumstances affecting the likelihood of the water’s availability, to provide decision makers with facts to evaluate the project’s water needs.  Since the EIR did not include such a discussion in its water supply analysis, it did not meet CEQA requirements.

Petitioners also argued the trial court should have ordered a complete decertification of the EIR as opposed to a limited writ.  The court first held the trial court had correctly determined it had the authority under CEQA guidelines to issue a limited writ.  Although the court suggests a limited writ may not have been proper in this case, the court did not decide the issue since the trial court had recently ordered the City to decertify the EIR.

The last issue concerned whether petitioners were the prevailing parties and if the award of attorneys’ fees and costs was proper.  City argued the costs and attorney fees should be reversed since petitioners were erroneously determined to be the prevailing parties and the trial court did not explain the basis for the fee award amount.  The court explained the trial court was not required to provide a detailed explanation of how it arrived at the fee award since the City did not file a request for a statement of decision.  The court also concluded the prevailing party in an action is generally entitled to recover its costs as a matter of right.  The court therefore upheld the trial court’s determination and remanded the case to the trial court to determine the award amount for petitioners’ costs and attorneys’ fees on appeal.

Key Point:

The decision reiterates case law addressing three key issues: (1) Mitigation measures requiring development of future mitigation plans must set forth performance standards or guidelines to comply with CEQA.  (2) Where it is impossible to confidently determine the availability of anticipated future water sources an EIR must acknowledge water supply uncertainties and discuss possible alternative water sources. (3) Where a trial court awards attorneys’ fees without setting forth a detailed explanation, the opposing party must request a statement of decision before challenging the merits of the award on appeal.

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

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