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CEQA Updates

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

News Posts


AGENCY’S FAILURE TO PERFORM MAINTENANCE ON DETERIORATING HISTORIC RESOURCE IS NOT A “PROJECT” WITHIN THE MEANING OF CEQA.

Friday, September 20th, 2019

In Lake Norconian Club Found. v. Dep’t of Corr. & Rehab. (Sep. 13, 2019, No. A154917) ___Cal.App.5th___ [2019 Cal. App. LEXIS 866], the first district held that the Department of Corrections’ decision to allow the gradual deterioration of a historic hotel, which it had no duty to maintain, was not a project and could not be challenged for noncompliance with CEQA.

Since 1963, the California Department of Corrections (Department) has operated a prison next to the historic Lake Norconian Club, a former resort and hotel constructed in the 1920’s. The Department used the hotel building as a drug rehabilitation facility, and later, as the prison’s administrative offices. In 2012, the legislature decided that the prison would close and the Department prepared an EIR for the closure. The EIR stated that the Department could not allocate the necessary funds to maintain the building due to the Department’s other maintenance priorities. The legislature later changed its mind, allowing the Department to continue operating the prison, however the Department decided that it still would not maintain the former hotel.

The Lake Norconian Club Foundation (Petitioners) had repeatedly encouraged the Department to maintain the hotel since 2006. In 2014, they filed a petition alleging that the Department’s willful and ongoing failure to maintain the hotel was a continuous discretionary action with significant environmental impacts, and therefore a project under CEQA for which no environmental review had been conducted.

The trial court agreed with Petitioners that the Department’s actions and omissions constituted a project under CEQA, but nevertheless entered judgment in favor of the Department. The trial court concluded that the statute of limitation began to run when the 2013 EIR was certified, and that the 2014 petition was therefore untimely.

The Foundation appealed the judgment and the Department cross-appealed, arguing that its inaction was not a project.

No California case prior to this had yet addressed whether an agency’s failure to act could be considered a project under CEQA. However, the question had been addressed under NEPA in federal courts. In NEPA cases courts have repeatedly held that inaction does not constitute “action” (the NEPA term analogous to a “project” under CEQA). However, unlike CEQA, the federal NEPA guidelines do state that inaction may constitute action where the omission would be judicially reviewable under the APA, and case law has held that inaction in the face a mandatory duty to act would create such an omission.

However, the Court noted that CEQA contains no such guideline. Additionally, no statute was identified by Petitioners which created a duty for the Department to maintain the hotel.

The Court also stated that CEQA defines “project” by defining those activities which constitute projects. Here, it held that the failure to act was not an activity at all, even if the inactivity would lead to environmental consequences. It also noted the practical unworkability of deeming inactivity a project, particularly for attempting to determine when the project commences or receives approval for purposes of the CEQA statute of limitations.

Therefore, absent any statutory duty, the Court held that the Department’s failure to act could not be deemed a project or challenged for noncompliance with CEQA.

Key Point: Inaction is not a project under CEQA, at least where there is no affirmative duty to act.

PLAINTIFFS MAY NOT CHALLENGE RECIRCULATED EIR ON GROUNDS THAT THEY UNSUCCESSFULLY RAISED, OR COULD HAVE BUT DID NOT RAISE, IN THEIR CHALLENGE TO THE ORIGINAL EIR.

Friday, May 24th, 2019

In Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165, the Third District Court of Appeal held that res judicata barred objections to a partially recirculated environmental impact report (EIR) that were, or could have been, litigated and resolved during prior litigation between the parties over the original EIR.

The County of Amador (County) certified a final EIR and approved a quarry along with related facilities near Ione. The Ione Valley Land, Air, and Water Defense Alliance (LAWDA) filed a petition for writ of mandate, claiming that the approval violated CEQA, the State Mining and Reclamation Act, and the Planning and Zoning Law. In this first petition, LAWDA raised seven CEQA issues. The trial court granted the petition as to traffic impacts and required the County to vacate certification of the EIR and recirculate the portion of the EIR pertaining to traffic impacts. The trial court denied the remainder of the petition. LAWDA did not attempt to appeal the trial court’s denial of the remaining six CEQA issues it had raised.

The County, as instructed by the court, vacated its EIR certification and recirculated for public comment the portion of the EIR pertaining to traffic impacts. After certifying the partially recirculated EIR, the County filed a return to the court attesting that they had complied with the writ and asking the court to uphold the County’s EIR certification and project approval. The trial court agreed and granted the County’s motion to discharge the writ.

Meanwhile, LAWDA filed a second petition challenging the County’s certification of the partially recirculated EIR, raising eight alleged deficiencies. In response, the County demurred and argued that many of the issues raised in this second petition had already been litigated and resolved in the trial court’s judgment on the first petition and hence were barred from being adjudicated in the second petition by the doctrine of res judicata. The trial court denied the writ, and LAWDA appealed.

Relying on Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, the Court held that res judicata, or claim preclusion, bars not just relitigation of a cause of action that previously was adjudicated in another proceeding between the same parties, but also bars issues which could have been litigated but which a party failed to raise. Applying the doctrine to the facts at hand, the Court agreed with the County that LAWDA was barred from bringing all arguments in the second petition but the one related to the recirculated traffic impact analysis.

LAWDA argued that it was not an aggrieved party of the first adjudication, and hence could not appeal the decision, citing its success in forcing the County to vacate the EIR certification. However, the Court disagreed, holding that this did not account for the six other grounds on which the trial court denied the petition. According to the Court, LAWDA could have appealed the trial court’s denial as to each of its other issues notwithstanding its success on the traffic impact analysis argument and that its failure to pursue the issues through appeal foreclosed its ability to raise them subsequently.

LAWDA additionally argued that “new and different circumstances render[ed] the newly certified EIR factually different from the prior EIR,” as regards to the seven issues unrelated to traffic analysis. However, because LAWDA only raised the argument in its reply brief, not in its opening brief, the Court declined to consider the merits of the argument because “considerations of fairness in argument demand that the appellant present all of his points in the opening brief.”

As such, the Court concluded that only those arguments concerning the recirculated traffic impact analysis were being raised for the first time. The Court then rejected the remaining challenge to the traffic impact analysis in an unpublished portion of the opinion, upholding the trial court’s denial of the petition.

Key Point:

When a party successfully challenges an EIR on a particular issue, forcing a recirculation, but either does not succeed on or does not raise other issues, that party will be barred by res judicata from raising those other issues in a challenge to the recirculated EIR.

Thomas Law Group Receives “High 5 Award” at First 5 Sacramento 20th Anniversary Event

Saturday, December 1st, 2018

Thomas Law Group is honored to accept the High 5 Award at the Rise Up Sacramento event on January 8, 2019 at the Golden 1 Center’s Assembly Lounge. This award, granted on behalf of First 5 Sacramento and Sacramento County Supervisor Phil Serna, recognizes a business that incorporates family-friendly policies into the workplace. Hope to see you there!

The Rise Up Sacramento Event is put on by First 5 Sacramento. The group invests in critical programs for children and families in the Sacramento region. This event will celebrate the group’s 20th year of spearheading this work.

This event is free for anyone to attend, kindly register here: www.eventbrite.com/e/raise-up-sacramento-registration-52314641501

 

this event is free to attend. Kindly register by visiting https://www.eventbrite.com/e/raise-up-sacramento-registration-52314641501

Tina Thomas Hosts CEQA 2018: A Year In Review Panel at 33rd Annual Land Use Law and Planning Conference

Thursday, November 29th, 2018

On Friday, January 18, 2019 at the Millennium Biltmore Hotel in downtown Los Angeles, Thomas Law Group founder Tina Thomas will host the panel CEQA 2018: A Year in Review as part of UCLA Extension’s 33rd Annual Land Use Law and Planning Conference. 

The conference it presented by UCLA Extension’s Public Policy Program. It focuses on providing practical, timely, and useful information relating to the practice of land use and environmental law, planning and development, and key policy decisions in these areas.

For more information visit: www.uclaextension.edu/33rdLandUseConference 

 

Thomas Law Group Annual Retreat

Monday, October 1st, 2018

In October 2018, Thomas Law Group team members and guests gathered for the firm retreat in the San Francisco Bay Area, including a tour of the Bay by sea in the Osprey, a 50 foot sailing yacht. This annual trip provided all participants an opportunity to relax and socialize together as well as strategize for the next business year as, “a team without a goal is like a ship without a rudder.” (Thomas Carlyle)

 

Thomas Law Group team members and guests gather at the Osprey’s bow before casting away!

 

Thomas Law Group wishes to thank all who helped make the day a great success, including TLG team members involved in planning the event and the crew of the Osprey, part of Captain Kirk’s San Francisco Sailing.

Tina Thomas and Thomas Law Group Attorneys Named Top Environmental and Land Use/Zoning Lawyers

Saturday, September 1st, 2018

Tina Thomas and Thomas Law Group attorneys have been recognized anew in 2018 as top attorneys in environmental, land use, and zoning law and litigation.

Sacramento Magazine named a number of Thomas Law Group attorneys as “Top Lawyers,” an honor given only to a handful of attorneys with the highest number of peers’ votes. Tina Thomas was recognized as a top lawyer in both the environmental law and land use and zoning law categories. Nicholas Avdis, Of Counsel, and Chris Butcher were each recognized as top lawyers in land use and zoning law. Leslie Z. Walker, Of Counsel, was named a top lawyer in state, local, and municipal law.

U.S. News and World Report again ranked Tina Thomas as a “Best Lawyer” in environmental law, land use and zoning law, and land use and zoning litigation. She has consistently achieved this honor since 2008. The publication further announced Thomas Law Group as a top law firm in Sacramento for Environmental Law, Land Use and Zoning Law, and Land Use and Zoning Litigation.

Super Lawyers, a national publication of attorneys who exhibit excellence in practice, named Tina Thomas as a Super Lawyer in Environmental Law, a ranking she has consistently held since 2005. Nicholas Avdis was named as a top rated attorney in Land Use and Zoning Law. He was previously named as a rising star from 2009 to 2015.

Sacramento Business Journal named Tina Thomas as part of the “Best of the Bar” in 2018 for her work in environmental land use and natural resource litigation, including issues related to CEQA, NEPA, the Subdivision Map Act, and the California Endangered Species Act. Nicholas Avdis was also recognized for his work in land use, government affairs, regulatory law and entitlement processing. Nominations were vetted by a panel of peers, awarding points for expertise in the field, community reputation in the legal profession, and other factors.

We congratulate these Thomas Law Group attorneys on their accomplishments!

The Rose Foundation Releases Report on CEQA Economic Impact

Thursday, August 18th, 2016

CEQA has been in effect since 1970, when it was signed into law by Governor Ronald Regan. Over the past 46 years, there have been many debates about the effect CEQA has on the California economy. In response to recent analyses that link CEQA to economic challenges in the State, the Rose Foundation for Communities and the Environment released a report on August 15, 2016 entitled “CEQA in the 21st Century: Environmental Quality, Economic Prosperity, and Sustainable Development in California.”

Key findings of the report include:

  • Since 2002, the state has averaged 195 CEQA lawsuits a year.
  • Lawsuits were filed for less than 1 out of every 100 projects reviewed under CEQA that were not considered exempt.
  • In San Francisco, only 14 environmental impact reports (EIRs) were prepared in the past three years (less than 5 EIRs per year).
  • Because California consistently ranks among the top states in terms of economic prosperity and development, the report concludes that the State’s environmental protections, including CEQA, have not constrained growth.

The full report can be accessed at: https://www.pcl.org/media/CEQA-in-the-21st-Century.pdf

Thomas Law Group Associates Present “CEQA Streamlining” to Association of Environmental Professionals at May 2016 Program

Wednesday, April 27th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining at the Superior California Chapter of the Association of Environmental Professionals May 2016 Program on May 17, 2015 from 11:30 to 1:00 pm.

The program will be at Blue Prynt Restaurant, 815 11th Street, Sacramento, CA 95814 and include a networking session, full lunch service, and a speaker presentation.

For more information, visit: http://superior.califaep.org/ or email Marieka at marieka@gpaconsulting-us.com

2016 May AEP Program

For more information, email the link in the poster.

Thomas Law Group Associates Present “CEQA Streamlining” to Professionals Involved in the Environmental Review Process

Friday, March 18th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining as part of the curriculum developed specifically for professionals involved in the Environmental Review Process on May 17, 2015 from 8:00 to 9:30 am.

The program will be at North Coast Builders Exchange, 1030 Apollo Way, Santa Rosa.

For more information, call the North Coast Builders’ Association headquarters at 542-9502 or email receptionist@ncbeonline.com. We look forward to seeing you there!

CEQA seminar flyer

CEQA Streamlining Panel Friday, April 22, 2016.

Please Join AEP & APA North Bay For A Workshop CEQA Streamlining Processes

Thursday, February 18th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining Process for the Association of Environmental Professionals and the California chapter of the American Planning Association on Thursday, April 7, 2016.

The program will be at 2235 Mercury Way, Suite 150, Santa Rosa, California. Lunch will be provided.

For more information and to RSVP contact Carrie Lukacic at carrie@pcz.com

00186608

Join us! Contact Carrie at carrie@pcz.com