Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Cultural Resources Posts

Two Wins for the Railyards Development in Third District Court of Appeal

Tuesday, October 20th, 2015

This month, the Third District Court of Appeal issued two unpublished opinions on pending CEQA suits challenging the Railyards development in Sacramento. Both opinions affirm the decisions of the trial court and conclude that the City of Sacramento complied with CEQA when it adopted the Railyards Specific Plan and the Railyards Redevelopment Plan.

In Sacramento Citizens Concerned About the Railyards v. City of Sacramento (C065220, Oct. 7, 2015), the Court held that the program EIR for the Railyards Specific Plan adequately described historic and archaeological resources, provided adequate information regarding water quality impacts, appropriately described the project, did not improperly segment review of the project’s cistern, and adequately analyzed traffic and air quality impacts.

In the second case, Castro v. City of Sacramento (C062091, Oct. 9, 2015), the petitioners challenged the City’s decision to amend the 1990 Richards Boulevard Plan to remove 300 acres from its boundaries and rename it the River District Redevelopment Plan. Those 300 acres then became the new Railyards Redevelopment Plan. Petitioners challenged the City’s adoption of the Railyards Redevelopment Plan under CEQA, arguing that the EIR improperly tiered from the Railyards Specific Plan EIR, the environmental review was improperly segmented, and the EIR failed to analyze and mitigate toxic air contaminants. The Court disagreed and affirmed the trial court’s judgment in the City’s favor.

OPR Released Discussion Draft Technical Advisory: AB 52 and Tribal Cultural Resources in CEQA

Tuesday, June 23rd, 2015

On September 25, 2014, Governor Edmond G. Brown, Jr., signed Assembly Bill (AB) 52, which expands the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000, et seq.)[1] to include a new category of resources that must be evaluated – “tribal cultural resources.” To shed some light on AB 52’s implementation, the Governor’s Office of Planning and Research (OPR) released a Discussion Draft Technical Advisory: AB 52 and Tribal Cultural Resources in CEQA, on May 1, 2015, for 30 days of public comment. The document is intended to provide guidance to lead agencies regarding the substantive and procedural requirements that go into effect on July 1, 2015.

The law requires lead agencies to consider tribal cultural values in their environmental documents, in addition to the scientific and archaeological values that must be evaluated under preexisting provisions of CEQA, when determining impacts and mitigation.  The requirements of AB 52 apply to a project that has a notice of preparation of an environmental impact report (EIR) or a notice of negative declaration or mitigated negative declaration filed on or after July 1, 2015. (Pub. Resources Code, § 21084.3 (c).) Other key amendments to CEQA include:

  • Mandating early tribal consultation prior to and during CEQA review with a requirement to formally conclude consultation. (Pub. Resources Code, §§ 21080.3.1, subd. (b), 21080.3.2.)
  • Establishing tribal cultural resources, a new CEQA category of resources (Pub. Resources Code, § 21074), for which tribes may have expertise. (Pub. Resources Code, § 21080.3.1, subd. (a).)
  • Establishing that a significant impact on tribal cultural resources is a significant effect on the environment. (Pub. Resources Code, § 21084.2.)
  • Requiring OPR to revise the CEQA checklist, to make consideration of tribal impacts separate from consideration of impacts to other cultural resources. (Pub. Resources Code, § 21083.09.) The regulatory process for the adoption of its updates must occur on or before July 1, 2016.

One of the most significant implications of AB 52 is that the lead agency cannot commit to preparation of a negative declaration or a mitigated negative declaration until the newly required tribal cultural resource consultation has occurred since the consultation could result in the need for more detailed analysis appropriate to an EIR. (Pub. Resources Code, § 21080.3.1, subd. (b) [consultation process must be undertaken “prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project”]; see also Pub. Resources Code, § 21080.3.2 [“consultation may include discussion concerning the type of environmental review necessary”].) Because tribes may be considered experts on tribal cultural resources under AB 52, a tribe’s conclusion that a project has the potential to significantly impact a tribal resource may be considered a “fair argument” that the project may have significant environmental impacts. Accordingly, a tribe’s opinion during the consultation process may necessitate the preparation of an EIR.

[1] AB 52 amends Public Resources Code Section 5097.94, and adds Public Resources Code Sections 1073, 21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3.

City Violated its Municipal Code by Delegating CEQA Approval to its Preservation Commission

Thursday, September 11th, 2014

In Citizens for the Restoration of L Street v. City of Fresno, 2014 Cal. App. LEXIS 786,the Fifth Appellate District affirmed a judgment granting a writ of mandate challenging the City of Fresno’s (City) approval of an infill development project. The court upheld the trial court’s ruling that the City violated the California Environmental Quality Act (CEQA) by improperly delegating its approval authority to the City’s Historical Preservation Commission (Commission).

Developers sought to build 28 two-story townhouses on a vacant lot in downtown Fresno. The project site included two homes built in the early 20th century, which petitioners contended were historical resources under CEQA.

After the City conducted an initial study and filed a “Notice of Intent to Adopt a Mitigated Negative Declaration,” the Commission held a public hearing and determined that the buildings were not historical resources. The Commission also approved demolition permits for the buildings and adopted a motion approving the mitigated negative declaration. The City then unanimously adopted the findings of the Commission.

The court first affirmed the trial court’s finding that the Commission was not authorized to act as the City’s decisionmaking body by approving the mitigated negative declaration. The court explained that CEQA Guidelines section 21151, subdivision (c) allows the lead agency to delegate the authority to approve the project and the relevant CEQA review document. However, the Commission’s authority was limited by the City’s Municipal Code, which only provided the Commission the authority to “participate in environmental review procedures” and “provide review and comments on permit actions.” The court held these clauses suggested a secondary role and were too vague to grant the authority to conduct an environmental review and approve a final CEQA document.

Second, the court found the City’s subsequent project approval and adoption of the Commission’s findings did not cure the defects in the proceedings before the Commission. The City did not provide the proper notice nor show that it used its own independent judgment and analysis to determine that the project would not have a significant effect on the environment.  

Finally, the court denied petitioner’s appeal challenging the application of the substantial evidence test to the determination that no historical resources were impacted by the project. Citing Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, the court affirmed that the substantial evidence test, not the fair argument standard, applies to a lead agency’s discretionary determination of whether a building or district is a historical resource for purposes of CEQA.


CEQA allows lead agencies to delegate their authority to approve environmental review documents such as the Mitigated Negative Declaration, subject to an appeal to the elected decisionmaking body. However, this authority must be expressly authorized and will not be implied. Additionally, the court reiterated that a lead agency’s determination of whether a resource is historic under CEQA is governed by the substantial evidence standard of review. 

Appellate Court Upholds EIR for Treasure Island Development in San Francisco Bay

Tuesday, July 15th, 2014

In Citizens for a Sustainable Treasure Island v. City and County of San Francisco, (2014) Cal. App. LEXIS 595, the Court of Appeal for the First District affirmed the trial court’s denial of a petition for a writ of mandate challenging the City and County of San Francisco’s (the City) approval of an environmental impact report (EIR) for a major development on Treasure Island and Yerba Buena Island in San Francisco Bay (the Project).

The Project includes up to 8,000 residential units, 500 hotel rooms, and other developments on the former Naval Station Treasure Island.  The City’s board of supervisors unanimously approved the Project in 2011 after more than a decade of studies and community input.

Citizens for a Sustainable Treasure Island (CSTI) opposed the Project arguing that the EIR was improperly prepared as a project-level EIR and did not contain sufficient detail. However, the court held that regardless of the EIR label as a project-level or program EIR, CEQA would require supplemental review over the 15- to 20-year buildout for any aspects of the Project where the environmental impacts were not fully examined in the original EIR.  (Pub. Resources Code section 21166.)  As the court stated, the focus for determining the adequacy of an EIR is whether the decision makers have sufficient information to analyze the environmental impacts given the nature of the project, not the label of the EIR.

The court also rejected CSTI’s argument that the EIR was inadequate because the project description was too abstract and only included conceptual descriptions of building and street layouts subject to change.  The court emphasized that the EIR and planning documents did contain concrete information about the main features of the Project, which remained consistent throughout the EIR process, and the EIR “cannot be faulted for not providing detail that, due to the nature of the Project, simply does not now exist.”

Next, the court held that the EIR’s discussion about the presence and remediation of hazardous substances on the former Navy base was sufficient.  CSTI contended that the EIR was inadequate because it did not specify precisely where and to what extent remediation would be required after development began.  Citing the California Supreme Court in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, the court stressed that a CEQA analysis may be postponed when project details are not “reasonably foreseeable” at the time that the lead agency approves the project.  In this case, the Navy was in the process of cleaning up the contaminated portions of the project site, and intended to complete the cleanup prior to transferring the land for development.  Thus, the developer could not be expected to know the precise role that it would play in the investigation and clean up of specific portions of the Project.  The EIR identified all of the regulatory standards that would apply should additional remediation be necessary, and as a result, the discussion of hazardous substances on the project site was sufficient.

CSTI also claimed that the EIR had to be recirculated because of new information regarding the Project’s potential interference with the U.S. Coast Guard’s regulation of ship traffic in the San Francisco Bay.  A meeting occurred after the public comment period on the Draft EIR that resulted in several potential solutions preventing any impact on Coast Guard operations.  The court stated that new information is only significant and requires recirculation of the EIR if the adding of the new information deprives the public of a meaningful opportunity to comment on substantial adverse environmental impacts.  In this case though, multiple potential solutions prevented any impact at all and therefore, there was no reason to recirculate the EIR.  The court also highlighted CSTI’s failure to set forth the evidence supporting the City’s findings, and then to show why the evidence is lacking.

The court lastly addressed CSTI’s contentions that the EIR’s discussions of historical resource preservation and consistency with tideland trusts were insufficient.  In rejecting both arguments, the court emphasized that the EIR was adequate even though the future uses for certain buildings and tidal areas were not yet fully defined, and therefore the EIR could not fully articulate how specific project components would ensure preservation of historical resources and compliance with tidal trust laws.  The EIR stated the regulations and processes that the Project would comply with, and the court held that was sufficient for the decision makers to analyze the environmental impacts of the Project.


In several different contexts, the Court reaffirmed that “CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive.”  The Court also reaffirmed that Petitioners bear the burden of describing the lead agency’s supporting evidence and showing how it is lacking.

A Dark Day for Hoover High School – Court Finds Mitigated Negative Declaration for Stadium Improvements Inadequate

Tuesday, May 7th, 2013

In a decision that was ordered published on April 25, 2013, Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (March 26, 2013) 2013 Cal.App.LEXIS 324, the Court of Appeal, Fourth Appellate District, held that a high school could not use general obligation bond revenue to pay for new stadium lighting because the bond measure approved by voters did not specifically include new stadium lighting. The court further held that, under the California Environmental Quality Act (CEQA), the School District (District) improperly relied on a Mitigated Negative Declaration (MND) and instead was required to prepare an Environmental Impact Report. The court found evidence in the record sufficient to constitute a fair argument that the project may have significant environmental impacts due to increased traffic and parking demand. In reaching its conclusion regarding parking, the court disagreed with the Second Appellate District’s holding in San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656 that parking need only be considered a secondary impact under CEQA. In addition, the court upheld the MND’s project description and its analysis of aesthetics and historic resources. Lastly, the court upheld the District’s action exempting its 12 high schools from local zoning and land use laws, and held that such an action was not a “project” under CEQA.

On July 23, 2008, the District Board of Education (Board) approved Proposition S, authorizing the District to sell up to $2.1 billion in general obligation bonds for the construction, reconstruction, or replacement of school facilities, including a project to upgrade Hoover High School athletics facilities (project). The project would include football stadium bleacher replacement and new lighting for the football field. The District completed an initial study and the Board adopted a mitigated negative declaration (MND) finding there was no substantial evidence the project, as mitigated, would have a significant effect on the environment. Additionally, the Board adopted a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws.

The court first looked at whether the District could use Proposition S funds to provide new stadium lighting at Hoover High School. The voters’ pamphlet description of Proposition S enumerated specific projects that would be funded by the bonds. The pamphlet included the words “field lighting,” however, the court held that the measure only provided lighting costs that were necessary for the completion of the enumerated projects, which did not include new stadium lights.

Regarding the CEQA claims, Taxpayers alleged the project description was misleading and caused the District to underestimate the project’s potential environmental impacts. Specifically, Taxpayers argued the description of the anticipated number of evening events to be held at the football stadium after project completion was misleading. The court disagreed, explaining that CEQA only required the District to make a “fair assessment or “estimate” of the number of evening events and that the District’s estimate was adequate. Additionally, the court held CEQA does not require the District to limit evening events to a finite number in the project description.

Taxpayers also argued the MND was flawed because it improperly calculated evening event attendance. The District used zero as a baseline for attendance at evening events because no evening events currently existed. The District then calculated the expected attendance after completion of the project based on the average attendance at football games at five of the District’s 16 high schools. The court found this methodology flawed because the baseline should have taken into consideration attendance of afternoon games at Hoover High School and the record lacked evidence to support the estimated attendance. The court held the District was therefore unable to adequately compare the baseline attendance to expected attendance in determining whether there was a fair argument that the project may have significant impact on traffic and/or parking.

The court also agreed with Taxpayers that an EIR was required for the project because a fair argument could be made that the project may result in significant parking and traffic impacts. The court disagreed with the District’s assertion that parking impacts do not constitute a significant impact on the environment under CEQA. In doing so, the court expressly disagreed with a Second Circuit opinion, San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656, which held that parking was merely a social inconvenience that could only be addressed under CEQA as a secondary impact, if at all. The court pointed to CEQA Guidelines explaining that while the guidelines do not set forth an exclusive list of all potential impacts that must be addressed if “substantial evidence of potential impacts that are not listed . . . must also be considered.” (Guidelines, append. G.) The Court held that parked cars are physical objects and can therefore have a direct impact on the physical environment. The court explained personal observations and opinions of local residents constituted substantial evidence that the project may have a significant impact on parking and therefore parking impacts should have been treated as a direct physical impact.

The court also found there was substantial evidence to support a fair argument that the project may have significant traffic impacts. The court explained that, despite the District’s faulty attendance analysis (discussed above), consensus was the project would cause evening attendance to increase, and therefore a fair argument existed that the project may have significant impacts on traffic and circulation.

Lastly, the court held the Board’s adoption of a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws was proper and was not a “project” within the meaning of CEQA. The court held the adoption of the resolution was neither an “approval” nor a “project.” It was not an “approval” because it did not commit the District to “a definite course of action in regard to a project.” (Guidelines, § 15352, subd. (a).) It was not a “project” because it was not itself “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code, § 21065.) The term project does not mean each separate governmental approval. (CEQA Guidelines, § 15378, subd (c).) However, the actual approval of each of the 12 projects, which the resolution makes exempt from city zoning and land use laws, are considered projects under CEQA. Each will require CEQA review before approval.

Key Point:

The decision creates a split in authority concerning the requirement to analyze parking shortages pursuant to CEQA. Until the Supreme Court addresses this disagreement between First and Fourth District Courts of Appeal, the cautious approach would be to analyze potential impacts to parking as part of the environmental analysis for projects.

Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48

Tuesday, May 22nd, 2012

Petitioner claimed the County of Madera’s (County) approval of a development project failed to comply with CEQA, Planning and Zoning Law, and the California Water Code. The Superior Court found for the Petitioner, holding that the EIR’s discussion of the water supply was inadequate. The Petitioner appealed to the Fifth District Court of Appeal claiming there were other issues with the EIR, especially regarding its analysis of traffic impacts and historical resources. The County cross-appealed. With respect to the water supply analysis, the Court upheld the trial court’s decision that the EIR was inadequate. The EIR explained that on-site demands will be met with water from the San Joaquin River, but it failed to include all the circumstances that could affect the likelihood of availability of water. In addressing the traffic impacts, the Court explained that an agency may not use projected future events as a baseline for EIR analysis. The County should use a baseline for traffic analysis that reflects conditions as they exist at the time the County announced that it would prepare an EIR for its project. In addressing petitioner’s challenge to the historical resources analysis, the Court held that determination of a site’s historical significance must be made before certification of the final EIR. The court also explained that an EIR must include feasible mitigation measures to help preserve archaeological historical resources.

Key Point:

An EIR must disclose and adopt adequate mitigation to address the potential for a project to impact historically significant archaeological resources. Additionally, as determined in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, a traffic analysis cannot be based on a hypothetical future-conditions environmental baseline.

Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200

Tuesday, May 22nd, 2012

The City of Rocklin (City) certified an EIR for a developer to build a 622-acre residential project. Petitioners sued, claiming the EIR was insufficient. The trial court found for the City. The Third District Court of Appeal affirmed the lower court’s decision, upholding the City’s approval of the project and the EIR. In challenging the certified EIR, the Petitioner presented several arguments, all of which the Court of Appeal rejected. First, the Court held that the City adequately described the conditions and the Native American cultural resources on the project site, sufficiently balancing the disclosure required by CEQA, and the federal and state law requirements prohibiting full disclosure. Second, the Court explained that recirculation of the revised EIR was not required. Recirculation is required only if there is new information added. In this case, the Court explained that the new information only adds a narrative detail; it does not change any of the EIR’s conclusions or analysis. Third, the Court held that an EIR is only required to provide a general description of a project’s growth-inducing effects. Fourth, the Court found that substantial evidence supported the EIR’s analysis and mitigation measures adopted for impacts to oak trees, aesthetics, California black rail, traffic, and water supply. Lastly, on a non-CEQA claim, the Court held that a project does not need to be in line with every policy in a City’s general plan. Thus, the Court upheld the trial court’s decision and denied the appeal.

Key Point:

CEQA does not require a lead agency to disclose confidential information regarding the location and nature of sites containing cultural resources. In consideration of state policy to protect sensitive cultural resource information, a lead agency is required only to provide a good faith discussion of these issues in an EIR.