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Negative Declarations Posts


Argument and Speculation that a Project will Violate Local Code Requirements is Insufficient to Support a Fair Argument that a Project may have a Potentially Significant Impact on the Environment

Friday, August 10th, 2018

A topigrahical map of riverside, California. (Ryan Niemi /Sunset Dynamics)

In Friends of Riverside’s Hills v. City of Riverside (2018) 26 Cal.App.5th 1137, the Fourth District Court of Appeal denied a neighborhood group’s petition to set aside the City of Riverside’s (City) approval of a six single-family housing development (Project) where there was no substantial evidence supporting a fair argument of a violation of the land use ordinances and no evidence of an abuse of discretion.

Before this controversy arose, the City established a residential conservation zone in order to protect the hills, canyons, and unique natural views of the area. Within this zone, planned residential developments (PRD) meeting eight criteria are permitted to deviate from conventional subdivisions requirements in specified ways. The purpose of this allowance is to provide more flexibility in site density and individual lot size for PRDs. A PRD applicant may also pursue a “density bonus.” To do this, the PRD plan must cluster residences in the less steep portions of the site, appoint a conservation group to maintain open space areas, and achieve at least six of eleven “superior design elements” that promote environmentally conscious design.

In November 2013, Real Parties in Interest Carlton and Raye Lofgren (the Lofgrens) submitted plans for a PRD with a density bonus to subdivide a 12-acre site into six lots with designated open space. The Planning Commission recommended the City Council approve the Project and adopt a negative declaration. The City Council ultimately approved the Project and adopted a negative declaration with a revised tract map showing the site as 11.6 acres with six lots clustered on the less steep parts of the site and the remainder of the site designated as open space.

Friends of Riverside’s Hills (FRH) brought suit challenging the City’s approval. FRH alleged the Project failed to properly cluster the residences as required to qualify as a PRD, and failed to seek a variance from the City’s standard lot size requirement. The trial court denied the petition in its entirety. FRH appealed.

On appeal, FRH advanced numerous arguments alleging that the Project violated the City’s code.  The Court concluded that the record established that the Project, as approved, did not violate the City’s code.

First, the Court explained that FRH’s claims that the Lofgrens would not comply with the Project’s conditions of approval and that the homes would be unlawfully placed in high grade portions of each lot were speculative.  The tract map approved by the City showed division of the site into lots but not where the residence would be on each lot. FRH’s claim that the Lofgrens would not build each residence in accordance with the municipal code was therefore speculative, absent any additional evidence.

Next, the Court rejected FRH’s argument that the City violated its code by failing to require the Lofgrens seek individual variances for each lot. The Court explained that, pursuant to the express requirements of the City’s code, individual lot variances are only required for conventional residential developments, not PRDs.

In reaching its holding, the court distinguished Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 (Pocket Protectors).  In Pocket Protectors, “ample” evidence supported the conclusion that the project violated the city’s land use provisions and those violations had the potential to result in significant environmental impacts. Here, while the Court concluded that the code provisions identified by FRH were adopted to potentially avoid or mitigate environmental impacts of development, the Court held that the City did not violate its code in approving the Project.  As a result, the Court necessarily concluded that FRH could not make a “fair argument” that an EIR was necessary in reliance on the alleged code violations.

FRH also argued that the City abused its discretion in approving the Project because the City’s conclusion that the natural slope of the lots was between 15 and 30 percent was not supported by substantial evidence and because it was improper for the City to allow developer to defer selection between design elements authorized by the City until the grading permit stage.  The Court quickly rejected the slope argument stating that it “borders on frivolous” because Lofgren’s engineer submitted many reports throughout the approval process demonstrating that the slope does not exceed 30 percent.

Finally, in rejecting, FRH’s deferred design element argument. The court first noted that at the time the City approved the Project the Lofgrens had already demonstrated in their proposed plans which designs they proposed to utilize. Thus, this information was before the City when it approved the Project. Moreover, per the municipal code, an applicant is not required to choose the design elements at this stage of the approval process because it is difficult, if not impossible, to know which building or landscaping elements are feasible at this stage.

Key Point:

Where a challenger alleges violations of local code as a basis for asserting a fair argument that a project may have a significant environmental impact, the challenger has the burden to both demonstrate a violation or conflict with the local code exists and that the local code provisions at issue were adopted for the purpose of avoiding or mitigating an environmental effect.

SIXTH DISTRICT CONFIRMS THAT SUBSTANTIAL EVIDENCE STANDARD OF REVIEW APPLIES TO AGENCY’S DETERMINATION OF WHETHER A RESOURCE IS HISTORICAL

Monday, August 22nd, 2016

In 2013, the City of San Jose proposed a project to demolish the Willow Glen Railroad Trestle (Trestle) and replace it with a new steel truss pedestrian bridge that would present less of a fire hazard and have a lower maintenance cost. The pedestrian bridge would service the City’s trail system. The Trestle was built in 1922, but according to two experts, the design was based on standard plans, parts of the Trestle were likely replaced during the last 30 to 40 years, and it was not associated with any important events or persons. Based on these reports, the City found that the Trestle was not an “historical resources” and therefore the project would not have a significant effect on the environment. Accordingly, the City adopted a mitigated negative declaration under CEQA.

Friends of the Willow Glen Trestle challenged the City’s approval of the project and argued that there was a fair argument that the Trestle was an historical resource. The trial court agreed and ordered the City to prepare an environmental impact report (EIR). In a published decision, Friends of the Willow Glen Trestle v. City of San Jose, 2016 Cal. App. LEXIS 676, the Sixth Appellate District determined that the correct standard of review is substantial evidence, not fair argument.

The crux of the opinion concerns the interpretation of Public Resources Code section 21084.1, which states that a project may have a significant effect on the environment if it “may cause a substantial adverse change in the significance of an historical resource.” A resource may be presumed to be historically or culturally significant if it is: (1) listed in, or determined to be eligible for listing in, the California Register of Historical Resources; (2) included in a local register of historical resources; or (3) deemed significant pursuant to criteria set forth in subdivision (g) of Section 5024.1. Even if a resource does not meet one of the above three standards, a lead agency is not precluded from “determining whether the resource may be an historical resource for purposes of this section.” This has been called the “discretionary” category of historical resources by the courts. In this case, the parties agreed that only the discretionary category could apply to the Trestle.

Pursuant to Public Resources Code section 21084.1, when a resource is presumed to be historically significant, a lead agency may still find that the resource is not historical if that decision is supported by “the preponderance of the evidence.” The Court held that this language necessarily establishes that the correct standard of review for a presumptively historical resource is substantial evidence. The Court then concluded that it would be inconceivable that the agency’s decision under the “discretionary” category would be subject to a less deferential standard of review than its decision regarding a resource that is presumed historical. This conclusion is supported by CEQA Guidelines section 15064.5, subdivision (a)(3) and two other appellate cases—Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039 and Citizens for Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340.  Thus, the Court concluded the trial court applied the wrong standard of review; the City’s conclusion that the Trestle is not historic is subject to the substantial evidence, and not the fair argument, standard of review.  The Court remanded for the trial court to apply the correct standard of review.

A remand to resolve additional substantive matters in CEQA litigation can take several years, particularly if a new appeal is filed after the remand. In enacting CEQA, the Legislature urged that CEQA review be completed “in the most efficient, expeditious manner in order to conserve the available financial, governmental, physical, and social resources with the objective that those resources may be better applied toward the mitigation of actual significant effects on the environment.” (Pub. Resources Code, § 21003, subd. (f).)  In certain circumstances, the Legislature also directed that “any court” reviewing a CEQA challenge “specifically address each of the alleged grounds for noncompliance” raised by a petitioner. (Pub. Resources Code, § 21005, subd. (c).)  Therefore, controlling statutes allow appellate courts to fully resolve the merits of a CEQA challenge.  By exercising such discretion courts can achieve CEQA’s objective to provide for expedited judicial review.

Key Point: The lead agency’s determination under section 21084.1 that a resource is or is not historical is subject to the substantial evidence standard of review.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT URBAN DECAY MND CASE

Thursday, July 14th, 2016

On July 13, 2016, the Fourth Appellate District ordered the partial publication of its recent decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino. Thomas Law Group requested publication on behalf of the California Infill Builders Federation.

The opinion addresses challenges to a proposed retail store on the basis of alleged urban decay impacts and community plan inconsistencies. While these issues frequently arise in California Environmental Quality Act challenges to a Mitigated Negative Declaration (MND), existing published case law is sparse. Significantly, the opinion is the first published decision in nearly a decade to address an urban decay challenge in the context of an MND. In addition, the opinion articulates that the abuse of discretion standard of review, as opposed to the fair argument standard, is appropriate for land use plan consistency determinations relating to policies that “were not adopted to mitigate environmental impacts.”

The only portion of the opinion that was not published by the Court was Section IV, which addresses whether the County was required to disclose that the future occupant of the project was Dollar General.

For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH DISTRICT UPHOLDS COUNTY’S MITIGATED NEGATIVE DECLARATION FOR DOLLAR GENERAL STORE IN JOSHUA TREE

Friday, July 1st, 2016

In an unpublished opinion, Joshua Tree Downtown Business Alliance v. County of San Bernardino, 2016 Cal. App. Unpub. LEXIS 4405, the Fourth Appellate District rejected a challenge to the County’s approval of a 9,100-square-foot Dollar General store (“Project”) proposed by Dynamic Development (“Dynamic”) in Joshua Tree.

The County circulated an initial study and proposed negative declaration in August 2012. Many of the nearby property owners raised concerns that the Project would be out of character with the family-owned business community in Joshua Tree. In response to such concerns, the County changed its environmental determination from a negative declaration to a mitigated negative declaration and recirculated it in November 2012. After the County Board of Supervisors approved the Project in January 2013, the Joshua Tree Downtown Business Alliance (“Alliance”) filed a petition for writ of mandate, alleging that the County violated the California Environmental Quality Act (“CEQA”) by failing to analyze the Project’s potential for causing urban decay and blight. The Alliance also alleged that the County violated CEQA by attempting to hide the identity of the intended occupant and by approving a project that was inconsistent with the Joshua Tree Community Plan (“Community Plan”).

The trial court held that an EIR was required because there was substantial evidence to support a fair argument that the Project could cause urban decay. The trial court relied on the comments made by Ms. Doyle, a member of the Alliance and a lawyer who had previously counseled on land use issues as an Assistant Attorney General in the Oregon Department of Justice. The trial court reasoned that her experience demonstrated sufficient relevant personal observations that constituted substantial evidence under CEQA. Dynamic appealed and the Alliance cross-appealed on the remaining claims.

On appeal, the court reversed the trial court on the urban decay claim, holding that the mere fact that the Project may have potential economic impacts did not require an EIR where the economic impacts would not cause reasonably foreseeable indirect environmental impacts. The court found that the County properly considered that this was a “small box” retail project rather than the typical “big box” retail project analyzed in urban decay cases. The court also rejected the Alliance’s contention that Ms. Doyle’s opinions should have been considered substantial evidence. The court explained that Ms. Doyle was not qualified to opine on the Project’s economic impacts because she was not an economist and, moreover, her conclusions that urban decay would occur were speculative because they had no factual basis.

Next, the court rejected the Alliance’s allegation that the County violated CEQA by failing to identify the end user of the Project. The court recognized that CEQA does not require a lead agency to disclose an end user generally, but there may be times where the identity of the end user would be considered “environmentally relevant.” That was not the case here because Alliance did not produce any evidence that a Dollar General would have adverse environmental impacts beyond that of a “general retail store.”

Finally, the court rejected the Alliance’s argument that Project required an EIR because it was inconsistent with the Community Plan. The court declined Alliance’s request to view this as a CEQA issue that should be reviewed under the fair argument standard. Instead, the court applied the usual standard for a claim of inconsistency with a land use plan: abuse of discretion. The court held that the mere fact that the Project might compete with established local businesses did not make it inconsistent with the Community Plan’s provisions encouraging small businesses, and found that the terms “encourage” and “support” to be amorphous policy terms that gave the County discretion when making its consistency determination. Accordingly, the court found that the County had not abused its discretion.

FOURTH APPELLATE DISTRICT UPHOLDS MND, FINDS ALLEGED IMPACTS TO COMMUNITY CHARACTER BASED SOLELY ON SOCIAL AND PSYCHOLOGICAL CONCERNS

Friday, March 18th, 2016

In a published opinion, Preserve Poway v. City of Poway, 2016 Cal. App. LEXIS 177, the Fourth Appellate District upheld a mitigated negative declaration (MND) for a project that proposed to close the Stock Farm, a privately-owned horse boarding and training facility, and subdivide the site into twelve one-acre residential lots, a legally permissible use for the property.

The potential loss of the Stock Farm drew the ire of the community, especially members of the Poway Valley Riders Association (PVRA), which operated rodeo and polo grounds across the street from Stock Farm. If the project was approved, members would no longer be able to conveniently keep their horses near the PVRA facility. Because of this, PVRA contended that Poway’s “City in the Country” character would be harmed by the closing of this “long-standing community resource,” which it called “one of the Poway’s finest assets.” Interestingly, PVRA has the acreage to board horses on its property but had declined to do so in the past due to perceived liability issues associated with boarding horses.

After the City Council unanimously approved the MND, project opponents formed Preserve Poway and filed suit alleging that an environmental impact report (EIR) was required under CEQA for numerous reasons. After dismissing most of the arguments due to Preserve Poway’s failure to exhaust, the trial court agreed that an EIR was necessary because there was substantial evidence that the closing of the Stock Farm may have a significant impact on community character.

On appeal, the Fourth District disagreed, finding that there was no evidence that the project violated any land use regulations or would have any significant aesthetic impacts given that there was other similar residential areas nearby. Rather, the community character issue raised here concerned the local youth’s access to horse riding and the additional transportation time it would take to bring horses to the PVRA site. According to the court, these impacts were social and psychological, not environmental. Therefore, whether to approve the project was “a political and policy decision entrusted to Poway’s elected officials” and not “an environmental issue for courts under CEQA.”

Importantly, this case also represents the first published appellate decision to address the Supreme Court’s recent holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369. In a brief discussion, the court rejected an argument that the existing horses, trucks, and horse trailers on the road could have a negative impact on the future residents of the project. The court held that this issue was outside the scope of CEQA after the Supreme Court’s decision because it concerned the impact of the existing environmental conditions on a proposed project’s future users or residents.

Finally, the court rejected Preserve Poway’s remaining arguments about the inadequacy of the MND because Preserve Poway had not appealed from the trial court’s judgment, thus forfeiting its right to bring these arguments before the appellate court.

Key Point:

A project’s social and psychological impact on community character need not be analyzed during an environmental review under CEQA. Any issues associated with these impacts are policy issues that should be decided during the political process. While the court here seemed to imply that community character should be discussed only in relation to aesthetic impacts, we note that a land use plan could contain policies on preserving community character and that the environmental review would need to consider whether the project was consistent with those policies.

SECOND APPELLATE DISTRICT FINDS INITIAL STUDY INADEQUATE FOR AFFORDABLE HOUSING PROJECT IN LOS ANGELES

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.

THIRD DISTRICT AFFIRMS FOLSOM’S USE OF A MITIGATED NEGATIVE DECLARATION

Wednesday, November 4th, 2015

On October 29, 2015, in Save the American River Association v. City of Folsom, 2015 Cal. App. Unpub. LEXIS 7827, the Third District Court of Appeals affirmed the City of Folsom’s use of a mitigated negative declaration for a project to develop dedicated ADA paths to the waterfront of Lake Natoma; create scenic overlooks; provide landing access for kayaks; remove invasive species; and re-establish native plants.  In an unpublished opinion, the court held that petitioner Save the American River Association (“SARA”) was unable to point to substantial evidence that gave rise to a fair argument that the project was inconsistent with the Folsom Lake State Recreation Area & Folsom Powerhouse State Historic Park General Plan/Resource Management Plan (“General Plan”) and the American River Parkway Plan (“Parkway Plan”).  The decision upholds the trial court’s order dismissing SARA’s petition for a writ of mandate.

The parties and the court agreed that the two plans were adopted, at least in part, for the purpose of avoiding or mitigating an environmental effect—the development and use of the Lake Natoma Area of the American River Parkway. The General Plan classified the project area with a land use designation of low intensity recreation/conservation.   SARA argued that the project’s construction of paved trails, a paved stairway, and non-motorized boating facilities conflicted with this land use designation by changing the area from mostly natural to more developed.

While the court did not disagree that paved trails are “more developed” than unpaved trails, it rejected SARA’s argument due to the lack of citations to substantial evidence in the administrative record. The court disregarded petitioner’s evidence that the City intended to increase use of the area in order to realize an economic benefit in the nearby Folsom Historic District because the City’s supposed intent was not substantial evidence but mere speculation.  Petitioner’s argument that the project conflicted with the Parkway Plan was rejected for the same reason.

Key Point:

Although the fair argument standard is a “low threshold” test for requiring the preparation of an EIR, petitioner groups challenging a negative declaration on the basis of plan consistency must still cite to substantial evidence in the record that supports a fair argument that the proposed project conflicts with an applicable plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect.

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

Monday, November 2nd, 2015

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

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

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

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

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

When is Agency Action Considered a Project under CEQA? When the Legislature Says So.

Wednesday, October 1st, 2014

In Rominger v. County of Colusa, 2014 Cal. App. LEXIS 813, the Court of Appeal for the Third District overturned the trial court and held a proposed subdivision approved by Colusa County was a project under the California Environmental Quality Act (CEQA), even though the proposal did not include any specific plans for development. The appellate court went on to find that substantial evidence in the record supported a fair argument that the project may have a significant unmitigated impact on traffic at a particular intersection adjacent to the project site. Accordingly, the appellate court reversed and remanded for the preparation of an environmental impact report (EIR).

In 2009, real party in interest, Adams Group Inc., filed an application for a tentative subdivision map to divide four parcels into sixteen parcels. The application included no specific plan for future use of the property. The County conducted an initial study and then a revised study, and eventually adopted a mitigated negative declaration, concluding that impacts of the project could be mitigated to a less-than-significant level. Neighbors opposed the project throughout the review process and sought to compel preparation of an EIR for the subdivision.

The court first reversed the trial court and determined that the subdivision was a project under CEQA. Section 21080 of the Public Resources Code specifically includes approval of a tentative subdivision map as a project under CEQA. The court also found that the common sense exemption to CEQA review did not apply because the County could not show there was no possibility that approval of the subdivision could lead to a significant effect on the environment at some point in the future.  

The court then considered each of the seven environmental areas that the petitioners contended would be significantly impacted by the subdivision. The petitioners’ traffic expert showed the County improperly relied on a continued agricultural use for the subdivision when the County conducted its analysis. The court considered the traffic expert’s specific facts, such as the subdivision’s proximity to a major highway, and concluded substantial evidence supported a fair argument that the subdivision may have a significant environmental impact on traffic.

The court dismissed arguments related to impacts on agriculture, odor, noise, air quality, greenhouse gas emissions, and water supply. The mitigation measures the County required to address these areas adequately addressed any significant environmental impacts and no substantial evidence to the contrary had been provided.

The court also found the County abused its discretion by failing to provide a full thirty-day public review period for the mitigated negative declaration. The County issued notice that the public comment period would be August 7 to September 5.  Since September 5 was a holiday, the comment period was only twenty-nine days. However, the court ultimately concluded this was not a prejudicial error

KEY POINT

Whether an approval is considered a project for purposes of CEQA review is not a fact-based inquiry when the type of activity is expressly listed in Public Resources Code section 21080 subdivision (a). The Legislature determined that certain activities always have the potential to impact the environment and a lead agency’s determination of no significant impact does not alter this conclusion.

CEQA Document Adoption is a Distinct “Item of Business” to be Listed on Agency Meeting Agenda

Monday, June 3rd, 2013

The Merced County Planning Commission (the Commission) posted an agenda for an upcoming meeting that set forth, as one item of business, the Commission’s potential approval of a subdivision application to divide 380.45 acres into nine parcels (the project). The agenda failed to mention that the Commission would also be considering whether to adopt a California Environmental Quality Act (CEQA) mitigated negative declaration (MND). At the meeting, the Commission approved the project and adopted the MND. San Joaquin Raptor Rescue Center and Protect Our Water filed a petition for writ of mandate against the County of Merced and the Commission (together the County) seeking to set aside the approval of the project and the adoption of the MND on the ground that the Commission’s adoption of the MND violated the agenda requirements of the Brown Act and failed to comply with the CEQA notice provision.

In a partially published decision, San Joaquin Raptor Rescue v. County of Merced (May 2013) 2013 Cal.App.LEXIS 431, the Fifth District Court of Appeal held the Commission’s failure to mention the consideration of the CEQA document on the agenda violated the Brown Act. The Brown Act requires the legislative body of a local agency to post before a regular meeting, “an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting . . .” and “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda . . . .” (§ 54954.2, subd. (a)(1)-(2).) The court held the consideration of whether to adopt a MND was a distinct “item of business” and not a mere component of the underlying project approval. The court based its determination on two factors. First, the MND adoption involved a separate action or determination by the Commission. Second, the MND adoption concerned discrete, significant issues of CEQA compliance and the project’s environmental impact. Because the CEQA adoption was a distinct “item of business” the failure to expressly disclose it on the agenda was a violation of the Brown Act. It was not sufficient for the agency to merely reference the project in general.

The County argued the agenda requirements of the Brown Act were satisfied because the public could implicitly understand that CEQA documents, if any, would likely be considered at the same time of the project approval. The court disagreed, explaining that nothing in CEQA prevents an agency from holding a separate hearing on a CEQA document and then approving the project at a later meeting.

The County also argued the inclusion of CEQA documents in meeting agendas would make the agendas lengthy, cumbersome, and no longer useful. The court disagreed, explaining a brief, general statement indicating the public agency would be considering the adoption or certification of a CEQA document would not be lengthy or cumbersome. However, even if it were, the Brown Act would require it.

In further support of its holding the court explained “a public agency’s decision to adopt or certify a CEQA document . . . is always a matter of at least potential public interest . . .,” motivating members of the public to participate in the decision making process. The purpose of the Brown Act is to facilitate public participation. Thus, the County violated the Brown Act when it failed to disclose in its meeting agenda that it would be considering approval of a CEQA document.

The court of appeal addressed the CEQA cause of action in an unpublished portion of the case.

Key Point: The adoption of a CEQA document, such as a mitigated negative declaration, is a distinct “item of business” from the approval of an underlying project because it involves a separate action or determination by the agency, and it concerns significant issues of CEQA compliance. The failure to expressly disclose it on a meeting agenda was found to violate the Brown Act.