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Second District Court of Appeal Upholds Challenge to an MND for a Mixed-Use Project on Environmentally Sensitive Hillside and Award of Attorney Fees

Monday, April 6th, 2020

In Save the Agoura Cornell Knoll v. City of Agoura Hills (February 24, 2020) 2020 Cal. App. LEXIS 222, in a detailed decision, the Second District Court of Appeal affirmed the trial court’s judgement and concluded that a proposed mixed-use development project in Los Angeles County presented potentially significant impacts requiring the preparation of an EIR, not an MND.

In January 2017, the City of Agoura Hills’ (City’s) Planning Commission approved a development permit, conditional use permit, oak tree permit, and a tentative parcel map for the Cornerstone Mixed-Use Project (Project). The Project is an 8.2-acre mixed-use development including 35 residential apartment units, retail, restaurant, and office space. The majority of the site is located within the Agoura Village Specific Plan (AVSP), while the remaining portion is classified as a Significant Ecological Area. The site is currently an undeveloped hillside at the southeast corner of a confluence of roads within the City. Commercial retail uses are located to the west, northwest, and north of the property. The site includes native grasses and oaks, and contains three plant species considered rare, threatened, or endangered.

The California Native Plant Society (CNPS) appealed the Planning Commission’s decision. In March 2017, the Agoura Hills City Council held a public hearing on the appeal, approved the Project, and adopted the Project’s MND. The Council found, based on the record, there was no substantial evidence that the Project would have a significant effect on the environment because the MND incorporated feasible mitigation measures reducing potential environmental impacts to a less than significant level. On March 16, 2017, the City filed a notice of determination recording its approval and adoption of the MND. Following the City’s decision, Save the Agoura Cornell Knoll (STACK) filed a verified petition for writ of mandate alleging that the approval violated CEQA, planning and zoning law, and the City’s Oak Tree Ordinance. In an amended Petition, STACK joined CNPS as an additional petitioner (collectively, Petitioners).

The trial court found there was substantial evidence to support a fair argument that the Project may have significant environmental impacts on cultural resources, sensitive plant species, oak trees, and aesthetic resources and the proposed mitigation measures were inadequate to reduce impacts to a less than significant level. The trial court also found that the oak permit issued by the City violated a local ordinance prohibiting the removal of more than 10% of the total estimated oak tree canopy or root structure on a project site. Accordingly, the trial court entered judgement in favor of Petitioners and ordered the issuance of a peremptory writ of mandate directing the City to set aside its approval and the MND. In a post-judgement proceeding, the trial court awarded Petitioners attorneys fees totaling approximately $142,000.

Project owners and developers (Appellants) challenged the trial court’s decision and presented a variety of procedural and substantive claims related to standing, forfeiture, administrative exhaustion, cultural resources, sensitive plant species, and native oak trees. The Second District Court of Appeal rejected each allegation and affirmed the holding of the trial court in its entirety.


Appellants preliminarily argued that the trial court erred in considering evidence of administrative exhaustion because Petitioners forfeited the issue by failing to raise it in their opening brief. The Court rejected this argument because, in the first amended petition for writ of mandate (joining CNPS), Petitioners alleged that they had “performed all conditions precedent to filing this action, including exhaustion of all administrative remedies available to them.” Additionally, while Petitioners’ opening brief did not address the issue of exhaustion directly, it cited to public comments regarding the Project’s significant impacts and disputing the adequacy of the MND’s mitigation measures. Then, in their reply brief, Petitioners cited some of the same evidence to  demonstrate that they had exhausted administrative remedies. The Court held that Petitioners sufficiently addressed the issue in their reply and noted that the trial court gave the parties ample opportunity over the course of two hearings to argue whether administrative remedies had been exhausted. The Court held that under these circumstances, Petitioners’ failure to argue that they satisfied the exhaustion requirement in their opening brief did not forfeit the issue in subsequent briefs.

Throughout their substantive claims, Appellants argued that Petitioners had failed to exhaust administrative remedies during the administrative proceedings. In each instance, the Court held that administrative remedies had been exhausted through a combination of Petitioner and public comments presented during the administrative proceedings.

Appellants also argued, for the first time on appeal, that the entire action must be dismissed based on Petitioners’ lack of standing. According to Appellants, STACK failed to prove that either the organization or any of its members objected to the approval prior to the close of public hearing. They further alleged that CNPS was barred from serving as a substitute petitioner by the statute of limitations because it was not named as a petitioner until after the statute of limitations ran. While standing may be raised at any time—including for the first time on appeal—statute of limitations claims are forfeited if not properly asserted in a general demurrer or pleaded in an answer. Having failed to plead the statute of limitations in its answer or a demurrer, Appellants were barred from doing so on appeal, and there was no dispute that CNPS had standing. Because one petitioner had unequivocal standing under CEQA, jurisdiction was proper. The Court also noted that attempting to determine STACK’s standing would fall outside the proper scope of review because it would require consideration of factual issues not included in the record (such as when STACK was formed and whether any of its members objected to approval of the Project during the administrative proceedings).


The Project site includes an identified prehistoric archaeological site of cultural significance to the Chumash Native American tribes. A 2011 peer review study determined the site was eligible for listing in the California Register of Historical Resources and recommended that the site be avoided or fully excavated and recovered. In adopting the MND, the City reviewed the site studies and concluded that, because it would involve extensive grading, Project impacts were likely significant and required mitigation. The MND set forth measures requiring site monitoring during ground-disturbing activities, notification processes if human remains were discovered on the site, and an excavation program if the site could not be avoided.

Appellants argued that the trial court erred in concluding that an EIR required consideration of the Project’s impacts on tribal cultural resources. The Court found that the MND’s measures improperly deferred mitigation of Project-related impacts and were insufficient to avoid or reduce those impacts to a less than significant level. While monitoring and work stoppages were contemplated, the MND failed to analyze whether the site could be avoided or specify performance criteria evaluating the feasibility of avoidance as an alternative to excavation. Prior studies failed to define the boundaries of the archaeological site, and the City made no attempts to define its boundaries in determining if the site could be avoided, nor did the record establish that it was infeasible for the City to make that determination in its initial review. Instead, the record contained substantial evidence to support a fair argument that avoiding the site was not feasible based on the Project’s footprint.

The excavation measure suffered from similar deficiencies as the avoidance measure. The Court found that the measure improperly deferred mitigation of a recovery plan and simply provided a generalized list of measures to be undertaken by a qualified archaeologist and Native American monitor. It failed to set performance standards or guidelines to ensure that the measures would actually be effective. The program called for the future preparation of a technical report including a mitigation monitoring and reporting plan, but it failed to explain how this plan would mitigate potentially significant effects on the site’s cultural resources. It also failed to specify criteria for evaluating the efficacy of the plan. There was no indication in the record that it was impractical or infeasible for the City to articulate specific performance criteria for the data recovery measures at the time of the Project approval.

Appellants alternatively argued that an EIR was not required because expert testimony opposing the decision did not have evidentiary value and that the City was entitled to rely on the expertise of its own consultants. The Court held that the testimony did have evidentiary value and that there was no disagreement between the Petitioners’ expert and the City’s consultant. Rather, both agreed that the archaeological site should be avoided and that an excavation recovery program should be conducted if avoidance was not feasible. The Petitioners’ expert simply opined that the excavation measure did not provide for an adequate data recovery program to mitigate the site’s loss. To the extent there was conflicting expert testimony, the Court held that neither the lead agency nor the court may “weigh” conflicting substantial evidence to determine if an EIR must be prepared. Since the record contained substantial evidence supporting a fair argument that the MND’s measures are inadequate to avoid or mitigate the impacts to the archaeological site to a less than significant level, an EIR was required.


Appellants argued that the trial court erred because the MND included three measures reducing adverse Project impacts and offseting individual plant loss through restoration, preservation, and enhancement efforts. The Project site contains three special status species that may be impacted by grading activities and would be impacted by fuel modification activities (including mowing, pruning, and brush-clearing). In adopting the MND, the City concluded that the Project’s potential impacts were significant but mitigatable through species-specific preservation efforts and monitoring.

The preservation measures included species-specific surveys and on- and offsite restoration. Specifically, prior to issuing Project-related grading permits, a qualified plant ecologist would perform surveys for each species, and, if found during their blooming period, avoidance would be required unless the Project applicant provided “substantial documentation” that a minimum avoidance setback would be infeasible or would compromise the objectives of the AVSP. If avoidance was found to be infeasible, the ecologist would prepare a restoration plan and implement a five-year monitoring program focused on salvaging and replanting individual plants.

Petitioners alleged that these measures were inadequate due to improper deferral and the failure to set performance criteria ensuring effectiveness. The Court agreed with the Petitioners because the City relied on outdated site surveys and because the most recent survey was conducted during an ongoing drought. While the measure called for future surveys during the blooming period, the MND did not establish that it was infeasible for the City to perform the surveys prior to Project approval (which would allow for an accurate assessment of impacted plant populations). The Court also found that the salvaging and replanting plan was inadequate because substantial evidence demonstrated restoration may not effectively mitigate impacts to listed species due to transplant failure. The Court also held that the MND improperly deferred performance criteria formulation. The MND provided that the setback measure would be implemented unless “avoidance would not be feasible” or if a maintenance plan was implemented. However, the MND did not specify performance standards determining the feasibility of avoidance or whether the maintenance plan would be effective. While the measure set standards for measuring the success of the restoration plan, it did not provide for feasible alternatives if salvaging and replanting efforts failed. Thus, there was a fair argument that the measure may be ineffective in offsetting the loss of the listed plants at the Project site.

Appellants argued that the failure to perform updated surveys prior to Project approval did not reflect a deficiency in the MND. The Court recognized that an agency is not required to conduct all possible tests or exhaust all research methodologies to evaluate impacts, but clarified it must undertake additional testing “if initial testing is insufficient.” Here, the MND was based on a series of outdated surveys conducted during an ongoing drought. Thus, there was a fair argument that an updated survey would be necessary to formulate adequate mitigation measures.

Appellants asserted that restoration would be feasible with an active management and maintenance plan, but the Court found that replanting would only be successful as long as the transplants were actively maintained in perpetuity. While the MND required a five-year annual reporting and monitoring program, it did not provide for active transplant maintenance in perpetuity or alternative measures if the transplants failed.

An additional measure addressing impacts to a CNPS-designated rare plant species (as opposed to a federal-listed species) was similarly rejected because there was substantial evidence that transplanting efforts may fail, plus active management would only be provided for 5 years though required in perpetuity to reduce impacts to less than significant under the AVSP EIR. Additionally, no field surveys were required prior to or following the issuance of a grading permit, so it was unclear whether any future studies would be done to provide accurate information about the extent of the impacts. The Court rejected Appellants’ argument that the City’s decision was owed deference and found an EIR was required to analyze the actual impacts to rare plants.

The Court similarly rejected the efficacy of mitigation related to the fuel modification activities because there was a fair argument that clearing wildfire fuel is disruptive to the special status species’ ecosystem and likely to result in incidental take of and direct adverse effects to the species.

The Court next addressed the trial court’s conclusion that impacts to oak trees would be arguably significant, so an EIR was warranted. The Project would remove 29 of the 59 oaks on the Project site, while an additional six would experience encroachment within their protected zones. The Project would also remove approximately 21,000 square feetof scrub oak habitat. The MND required four oak trees to be planted to replace each tree approved for removal. To mitigate theloss of scrub oak habitat, at least 213 scrub oaks would need to be planted onsite. If City staff determined that this would be infeasible (which they likely would), an equivalent in-lieu fee would need to be paid into the City’s Oak Tree Mitigation Fund.

The Court found a fair argument that replacement mitigation would be inadequate because the remaining oaks would suffer a water deficit due to mass grading, which would disrupt and reduce subsurface water flow. Additionally, substantial evidence demonstrated that there have been no successful restorations of oak woodlands due to the extensive ecological network required to support an oak grove. The Court also found that the measure would improperly defer formulation of in-lieu fee programs as an alternative to onsite tree replacement because such programs must be evaluated under CEQA. The MND provided that in-lieu fee payments would be used by the City to acquire land or plant oak trees on another site; but it failed to specify the fees to be paid or the number of trees to be planted offsite, identify whether other sites were available for planting, or analyze the feasibility of an offsite tree replacement program. The Court concluded that it cannot be presumed that offsite oak planting through an in-lieu fee payment was a feasible alternative to the onsite replacement of oak trees in their native habitat.

Appellants also challenged the trial court’s ruling regarding aesthetics violations and violation of the City’s Oak Tree Ordinance. However, the Court found Appellants only made conclusory assertions lacking reasoned argument and held the issues were forfeited.


Appellants challenged the trial court’s fee award based on a failure to provide notice of the CEQA action to the Attorney General in accordance with section 21167.7 and Code of Civil Procedure section 388, and based on an improper apportionment of liability on the real party in interest.

The Court noted that Petitioners had sent timely notice to the Attorney General upon filing their original petition and ruled their failure to strictly comply with the 10-day requirement in section 21167.7 and Code of Civil Procedure section 388 did not bar them from recovering attorney’s fees.  The Court explained that the statutes do not make recovery contingent upon timely notification. Rather, the trial court is tasked with exercising its equitable discretion in light of all relevant circumstances to determine whether private enforcement is sufficiently necessary to justify a fee award. The Court distinguished Schwartz v. City of Rosemead (1984) 155 Cal. App. 3d 547, which Appellants relied on, explaining that in that case the petitioner’s delay in notifying the Attorney General of the action precluded the Attorney General from intervening and possibly making private enforcement unnecessary. Here, the Attorney General had eleven months to review the original petition and a month and a half to review the amended petition before the writ hearing. The Court held that this provided “ample time” to the Attorney General to intervene, which it failed to do, making private enforcement of the action necessary.

Appellants asserted that, even if Petitioners were entitled to recover their attorney’s fees, the real party in interest and property owner should not be held jointly and severally liable for half of the fee award, particularly as an individual. The Court found that the fee allocation was properly apportioned because the property owner had a direct interest in the Project that gave rise to the action, he actively participated in the litigation, he was identified as the sole applicant in the notice of determination, and he had held himself out as the property owner and/or applicant throughout the application and administrative processes. 


When preparing an MND, the chosen mitigation measures must clearly reduce project impacts to a less than significant level. If substantial evidence in the record supports a fair argument that a project may have significant environmental impacts because mitigation measures may not be effective, an EIR will be required.

Attorneys fees under Code of Civil Procedure 1021.5 may still be recoverable even if the Petitioner fails to timely file the notice with the Attorney General as required by 21167.7.  The Court will examine the facts to determine whether the Attorney General had sufficient time to intervene and eliminate the need for private enforcement.

Maacama Watershed Alliance v. County of Sonoma (2019) Cal.App.5th 1007

Thursday, November 21st, 2019

Maacama Watershed Alliance v. County of Sonoma (2019) Cal.App.5th 1007

In 2015, Knight Bridge Vineyards LLC sought approval from the County of Sonoma to develop a two-story, 5,500 square foot winery, a 17,500 square foot wine cave, tasting room, wastewater treatment and water storage facility, fire protection facility, and mechanical area on an 86-acre parcel zoned for “extensive agriculture” (Project). The extensive agriculture zone allows wineries and tasting rooms as conditional uses. County staff reviewed reports considering effects of the Project on geology, groundwater, wastewater, and biological resources. Staff concluded that, with recommended mitigation, the Project would not have a significant effect on the environment, and recommended the County adopt an MND and approve the Project. On September 17, 2016, the County approved the CUP and adopted the “2015 MND” and mitigation monitoring program.

Maacama Watershed Alliance and Friends of Spencer Lane (collectively, Petitioners) appealed the decision to the County. In response, County staff prepared a revised “2016 MND”. After comments were submitted identifying potential groundwater and water quality impacts, the County engaged in further environmental review and subjected their conclusions to two rounds of peer review by independent investigators. The County then adopted the revised “2017 MND” and approved the Project.

Petitioners filed a petition for writ of mandate in the superior court, contending the County should have prepared an EIR instead of an MND. Petitioners alleged there was a fair argument that construction and operation of the winery would cause significant environmental effects. The superior court denied the writ of mandate, and Petitioners appealed to the First District Court of Appeal. The Opinion examined the adequacy of the County’s environmental review; focusing on geology and erosion, biological resources, water quality, fire hazards, and visual impacts.

The 2017 MND’s geology, water quality, and biological resources sections noted the presence of a large, ancient, and inactive landslide on the Project site; but determined that the winery and caves were outside the landslide area. The study recommended (1) a variety of mitigation measures to ensure that the Project would not result in erosion or landslides and (2) best management practices during construction to minimize erosion and sediment deposits impacting water quality and steelhead or coho habitat in the nearby Bidwell Creek. These measures would result in less than significant impacts to special status species and would prevent substantial erosion by protecting existing drainage patterns on the site.

Petitioners retained a variety of independent researchers to support the argument that the County’s review was inadequate and failed to accurately report site conditions. Petitioners’ researchers disagreed with the County’s geotechnical investigator, and claimed the report did not support the conclusions regarding landslide risk and slope stability. The Court outlined each of researchers’ opinions, and determined that the County was entitled to rely on their report. Petitioners also suggested that the County improperly deferred geological impact mitigation by relying on best management practices and the County’s grading ordinance. The Court disagreed and found that this was not a case of post-hoc mitigation formulation. Rather, there is “nothing improper” about adopting measures to reduce the Project’s expected environmental effects while requiring monitoring and adjusting in the event of unanticipated conditions.

Petitioners contended substantial evidence supported a fair argument that the Project’s groundwater use would significantly affect the salmonid population in Bidwell Creek and ground water supply in nearby wells. The Court disagreed. The original Project, as proposed in 2013, would result in increased groundwater use of 5.5 acre-feet a year. The Project, as approved in the 2017 MND, would result in no net increase in groundwater use over current conditions through implementation of water reduction measures, documentation of water use, ongoing monitoring, and corrective measures. Petitioners again employed outside experts to challenge the County’s reports. After weighing the veracity of their arguments, the Court held that while evidence would support a finding that the Project will not cause significant effects on groundwater supplying Bidwell Creek and neighboring wells, that was not the question presented to the Court. Instead, the question before the Court was whether there was substantial evidence to support a fair argument that the Project will have significant effects. The Court held that the Project will not have significant effects, and upheld the County’s decision making.

The Court similarly dismissed Petitioners’ challenge to the adequacy of aesthetic considerations. The 2017 MND stated that the site was not designated as a scenic resource, and that the Project would not cause significant visual impacts. Petitioners claimed that a light-colored unvegetated 10-bedroom residence on the ridgeline near the Project site was visible from scenic highways, and argued that the Project would have similar visual impacts. The Court disagreed on the basis that the Project would not be on the ridgeline, and that to the extent that the roof could be seen from scenic highways, it would be surrounded by vegetation and designed with low-reflective, earthy tones. The Court recognized that while comments from laypersons may constitute substantial evidence supporting a fair argument of significant aesthetic effects, in this case, the opinions of local residents “based largely on the views of a different structure” were not sufficient to show that the Project would have significant aesthetic impacts.

Finally, Petitioners claimed a fair argument existed that the MND improperly concluded that the Project’s wildland fire risk was less than significant. The Court found that the Project was consistent with the General Plan’s Public Safety Element and the County’s Fire Marshal’s Fire Safe Standards. Although the site is within a very high fire hazard severity zone, the Project would be subject to the County’s permit requirements and robust fire suppression measures. The Court concluded that Petitioners failed to point to substantial evidence supporting a fair argument that the Project would significantly increase the risk of wildfires.

The Court concluded that the MND properly analyzed potential environmental effects, and noted that while Petitioners did not “obtain the relief they have sought”, they achieved success by forcing Project modifications and extensive analysis of its environmental effects through litigation.

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.


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.


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
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.