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Monday, January 4th, 2016

In an unpublished opinion, Cal. Clean Energy Comm. V. County of Placer, 2015 Cal. App. Unpub. LEXIS 9360, the Third Appellate District granted California Clean Energy Committee’s (Clean Energy) petition for writ of mandate challenging the County of Placer’s (County) approval of a proposal to expand an existing ski resort on the West Shore of Lake Tahoe.

Real Party in Interest, Homewood Village Resorts, LLC, proposed improvements to the Homewood Mountain Resort (Project), which would include: the redevelopment of the “North Base” for mixed-use; the “South Base” for residences; and the “Mid-Mountain area” for a lodge and beginner ski area. After a comprehensive Environmental Impact Report (EIR) process, the County Board of Supervisors approved the Project and certified the EIR. The County concluded that the Project’s social and economic “benefits outweigh the Project’s significant and unmitigated adverse impacts,” and “the adverse environmental impacts of the Project that are not fully mitigated are acceptable.” On review, the trial court issued a written ruling concluding the General Plan substantially complied with the statutory mandate to “address” wildfire evacuation routes; the County had broad discretion to determine the appropriate “threshold” for evaluating environmental impacts; and substantial evidence supported the County’s findings.

On appeal, Clean Energy contended that the County’s approval of the Project involved defects in the Placer County General Plan (General Plan) in violation of the Planning and Zoning laws (Gov. Code, § 65000 et seq.), because the General Plan does not “address evacuation routes” for the Project area, a high-risk wildlife area, as required by Government Code, Section 65302. Clean Energy also contended that the County violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) because the EIR for the Project failed to consider: (1) increased wildfire evacuation risks; (2) energy impacts for expanded snowmaking; (3) other energy impacts; (4) world travel impacts; and (5) because the evidence is insufficient to support the findings of infeasibility of carbon offsets and rail packages as climate disruption mitigation measures.

The Court first addressed alleged procedural defects in Clean Energy’s General Plan claims, concluding that Clean Energy’s Subdivision Map Act claim was neither forfeited nor barred by any statute of limitations. The Court then found that even though Clean Energy did not file a direct attack on the General Plan within the specified time period after its approval, Clean Energy had filed a timely lawsuit challenging the Board’s approval of a specific project; there was a nexus between the Project and General Plan to address contentions related to wildfire evacuation routes. Turning to Clean Energy’s substantive claim that the General Plan failed to “address” wildlife evacuation routes as required by Government Code, Section 65302, subdivision (g)(1), the Court applied a deferential standard of review and rejected Clean Energy’s argument. The Court concluded that the County’s General Plan is in substantial compliance with the former Government Code, Section 65302, subdivision (g) requirement to “address evacuation routes” related to “identified fire hazards.”

The Court then turned to Clean Energy’s CEQA claims. Clean Energy argued that the EIR failed to evaluate both components of wildlife evacuation risk – evacuation by residents, workers, and visitors, and the impact of that evacuation on access by emergency entities responding to wildfire. The Court concluded the EIR failed to adequately identify, describe, and analyze the wildfire evacuation risk associated with residents, workers, and visitors fleeing the area and the impact that evacuation will have on emergency response access.   The court explained that the EIR too narrowly focused the public safety discussion on emergency vehicle access, but even then, did so without discussing how emergency responders could share the same inadequate roads with vehicles occupied by residents, workers, and visitors evacuating the area.

Next, the Court rejected Clean Energy’s remaining CEQA claims involving energy impacts, world travel impacts, and climate impacts because Clean Energy failed to establish that any of those arguments are grounds for reversal. Specifically, the Court found that Clean Energy failed to exhaust on its claims related to transportation and equipment energy impacts, renewable energy resources, worldwide tourism impacts, and climate disruption mitigation. The Court rejected Clean Energy’s remaining energy claims and found that the EIR’s treatment of energy impacts complied with CEQA.

The Court reversed the judgment based on Clean Energy’s wildfire evacuation hazard CEQA claim and remanded the matter to the trial court with directions to enter a new judgment granting the petition for writ of mandate.


Thursday, November 12th, 2015

In an unpublished opinon, Friends of Highland Park v. City of L.A., 2015 Cal. App. Unpub. LEXIS 8002, the Second Appellate District reversed the trial court, holding that the initial study prepared by the City of Los Angeles for an affordable housing project in Highland Park was inadequate because the study lacked quantified greenhouse gas emission data and failed to report or analyze known soil contamination from a hazardous material.  Based on the initial study, the City had determined that the project would not have a significant effect on the environment and had approved the projected after adopting a mitigated negative declaration (MND).

As a preliminary matter, the Court held that Friends of Highland Park’s CEQA claims were not time-barred by the Subdivision Map Act (SMA), Government Code Section 66499.37, which requires challenges to subdivision map approvals to be filed within 90-days. The Court held the CEQA challenges at issue here do not fall within the SMA filing requirements because the adequacy of an initial study could not have been challenged under the SMA.

Turning to greenhouse gas emissions, the Court found the City’s initial study inadequate because it contained no evidence to support its claim that the potentially significant greenhouse gas emission impacts could be mitigated below a level of significance by using “low and non-VOC containing paints, sealants, adhesives, and solvents” during construction of the project. The Court relied in part on section 15064.4 of the CEQA Guidelines, which requires the use of “a model or methodology to quantify greenhouse gas emissions.” The Court held that the City had not selected a threshold for determining the significance of greenhouse gas emissions and thus there was “no vehicle for judicial review.”

The Court also found the initial study inadequate because it failed to address known lead contamination on the project site. An earlier development agreement acknowledged the existence of lead, but the initial study made no specific mention of lead contamination. However, adoption of the MND was subject to future environmental analyses, which were to be done prior to grading. The Court held that because the lead contamination was known at the time of approval, it should have been analyzed in the initial study.

The Court directed the City to set aside the MND and prepare a new initial study that complies with CEQA.

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.

Appellate Court Does Not Review City’s Nonpecuniary Interests to Determine If City Qualifies for Attorney Fees, But Rather Bases Award of Fees on Number of Issues Won

Tuesday, August 7th, 2012

In City of Maywood v. Los Angeles Unified School District (2012) __ Cal.App.4th __ (Case No. B233739), the City of Maywood (City) filed a petition for writ of mandate to overturn the Los Angeles Unified School District’s (LAUSD) certification of a final environmental impact report (FEIR) prepared for a high school. The Second District Court of Appeal upheld the FEIR, with the exception of the pedestrian safety analysis, and addressed the issue of attorney fees in the published portion of the decision.

City’s petition for writ of mandate challenged the FEIR as deficient under the California Environmental Quality Act (CEQA) on a number of grounds, and alleged also that the FEIR violated the Education Code. While the trial court rejected the majority of City’s claims, it found that the FEIR was deficient by failing to adequately assess pedestrian safety, discuss project alternatives, investigate potential impacts from hazardous materials, and comply with Education Code Sections 17211 and 17213.1. The trial court issued a peremptory writ and awarded City approximately $670,000.00 in attorney fees under Code of Civil Procedure section 1021.5. The Appellate Court affirmed the section of the writ addressing pedestrian safety, and reversed the remainder, including the award of attorney fees.

In the unpublished portion of the opinion, the court began by affirming that LAUSD must revise its FEIR to include an analysis of potential pedestrian safety impacts caused by the proposed project design, specifically the continued use of the roadway bisecting the campus, and how a pedestrian bridge traversing the road would alleviate those impacts.

The remainder of the writ was reversed. The court concluded that LAUSD was not required to analyze the cumulative impacts of the I-710 corridor project. Because the I-710 corridor project was still in the planning stages, City had to prove that the project was a “reasonably foreseeable probable future” project. City failed to do so; therefore the court ruled that the FEIR’s impact analysis was adequate.

The court also upheld LAUSD’s discussion of environmental impacts from hazardous materials. Even though LAUSD certified the FEIR and approved the project site before completing a remediation plan, the court explained that if an agency determined the impacts, examined various mitigation measures, and committed itself to mitigating those impacts, then choosing the specific mitigation measure can be deferred.

Next, the court concluded that the FEIR contained a meaningful analysis of alternatives and provided reasonable explanation for electing not to include alternatives recommended by City. The court concluded that substantial evidence in the record supported LAUSD’s determination that the alternative proposed by City was infeasible and that the FEIR’s assessment of alternatives was adequate. Therefore, the court upheld the alternatives analysis.

The court also upheld the FEIR as compliant with the Education Code. Education Code sections 17211 and 17213.1 require school districts to fulfill certain requirements before acquiring a school site. LAUSD only certified a FEIR and approved a school site; it did not violate the Education Code because it had yet to acquire the project site.

In the only published portion of the opinion, the court reversed the award of attorney fees. On appeal, LAUSD argued that City failed to satisfy the “necessity and financial burden” criteria of section 1021.5 because the lawsuit was self-serving. City responded that its non-financial interests should not play a role in determining whether it qualifies for fees. To resolve this issue, the court turned to the California Supreme Court’s decision in Conservatorship of Whitley (2010) 50 Cal.4th 1214 (Whitley), which clarified that a party’s personal, nonpecuniary interests may not be used to disqualify the party from obtaining fees under Section 1021.5. Whitley involved a private enforcement action; however, the court extrapolated the holding to apply to public entities as well. Based on the court’s application of the Whitley holding to this case, the court concluded that an award was proper but explained that the award should be adjusted to the new judgment. Therefore, the court ordered the trial court to reassess whether fees are appropriate given the new judgment, and if so, to determine the appropriate amount of fees.

Key Point:

Nonpecuniary interests do not prevent a petitioner from obtaining attorney fees under Section 1021.5. However, where an appellate court overturns some of the issues upon which a petitioner prevailed at trial, the court may remand the award for the trial court to reconsider the amount of the award based on the new judgment.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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.

Citizens for Responsible Equitable Environmental Developments v. City of Chula Vista (2011) 197 Cal.App.4th 327

Tuesday, May 22nd, 2012

The City of Chula Vista (City) approved a proposed Target retail store in reliance on a mitigated negative declaration (MND). Petitioner filed a petition for writ of mandate challenging the MND and claiming that the project may have significant impacts relating to hazardous materials, air pollution, particulate matter and ozone, and greenhouse gas emissions. The trial court denied the writ. The Petitioners appealed to the Fourth District Court of Appeal, which reversed the lower court’s decision on hazardous materials, but affirmed its decision on the other three points. Examining first the hazardous materials issue, the Court determined that evidence in the record established that the project was proposed on a former gas station site with contaminated soil, and that this contaminated soil may be disturbed during construction. While the MND established that measures in an adopted corrected action plan had to be implemented, the plan was not included in the record. Therefore, the Court held that the record contained a “fair argument” that the project may result in significant impacts related to hazardous materials. With respect to the project’s contribution to greenhouse gas emissions (“GHG”), the Court held that the project would not have a significant impact because the emissions from project construction would not exceed air quality thresholds set forth in AB 32. Lastly, the Court found that potential air quality impacts on sensitive receptors were adequately analyzed using a screening-level health risk assessment based on guidance issued by the South Coast Air Quality Management District.

Key Point:

Lead agencies have discretion to decide the appropriate threshold of significance to use. Reliance on a state standard, such as those set forth in AB 32 for GHG emissions, should be sufficient under CEQA.