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Pre-Commitment (Save Tara) Posts


IN UNPUBLISHED OPINION, COURT OF APPEAL UPHOLDS CEQA REVIEW FOR FRESNO’S FULTON MALL PROJECT

Monday, August 15th, 2016

The City of Fresno’s Fulton Street lies in the heart of its downtown and was once a bustling commerce center lined with numerous retailers. Suburbanization drew those retailers to the periphery of town in the 1950s. In the early 1960s, in an attempt to revive its urban core, the City turned Fulton Street into Fulton Mall, a 6-block pedestrian mall. Fulton Mall featured planting beds with shade trees, shrubs, and flowers; water fountains, pools, and streams; shade pavilions, siting areas, and playgrounds; and sculptures and mosaic artwork. Unfortunately, interest in Fulton Mall declined by the 1970s and it soon became plagued by high crime rates, deteriorating physical conditions, and low lease rates.

In 2011, the City of Fresno released a draft Fulton Corridor Specific Plan that identified three ways of improving Fulton Mall: (1) reintroduce two-way car traffic throughout the Mall; (2) reintroduce two-way car traffic but keep selected original features of the Mall; or (3) keep the Mall as pedestrian only and invest funding in restoring and repairing the original features. Option 2 was established as the City’s preference. Thereafter, the City began applying for (and receiving) various state and federal funds to put toward the Fulton Mall project (Project). In 2013, the City began preparing the environmental impact report (EIR) for the Project in compliance with CEQA. An initial study released with the Notice of Preparation determined that the Project may have significant impacts on aesthetics and historical resources, but would not significantly impact air quality, greenhouse gas emissions, parks, traffic, and utilities.

The City certified the final EIR in early 2014 and selected Option 1 as the preferred alternative due to its “straight street” design and the increased number of on-street parking spaces. The Downtown Fresno Coalition (Coalition) filed a petition for writ of mandate, alleging that the City pre-committed to Option 1 through its federal funding agreements and that the EIR inadequately analyzed certain impacts.  In Downtown Fresno Coalition v. City of Fresno, 2106 Cal. App. Unpub. LEXIS 5212, the Fifth District Court of Appeal rejected these claims and found that the City had complied with CEQA.

The Court first held that the Coalition was not collaterally estopped from bringing the CEQA suit even though it had previously brought a suit under the National Environmental Policy Act (NEPA) in federal court against the City, the Federal Highway Administration, Caltrans, and the federal Department of Transportation regarding federal funding that was given to the project without a NEPA review. The Court found the issues in the two cases to be distinct, despite the City’s arguments about the similarities between CEQA and NEPA.

Next, the Court addressed the Coalition’s argument that the federal funding had effectively precluded consideration of an alternative that featured full or partial restoration of the Mall. The Court noted that the grant funding was conditional on full compliance with CEQA and found that the City had fully complied by with the Supreme Court’s requirements in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 by not precluding consideration of any project alternative or mitigation.

Finally, the Court considered the Coalition’s claim that the EIR did not present a legally adequate analysis of the Project’s effects on certain resources. The City had narrowed the scope of the EIR to focus on the Project’s potentially significant effects on short-term visual character and historical resources. The Court found the analysis sufficient because impacts to air quality, greenhouse gas emissions, parks, traffic and utilities were determined to be less than significant; moreover, the initial study had presented extensive rational for that determination.  The Court concluded that the City had no legal obligation to analyze less than significant impacts in the EIR in the manner urged by Coalition.

FOURTH APPELLATE DISTRICT UPHOLDS MOJAVE DESERT GROUNDWATER EXTRACTION IN TWO PUBLISHED OPINIONS

Friday, June 10th, 2016

A proposal to pump fresh groundwater from an underground aquifer located in the Mojave Desert (“Project”) resulted in six related cases. On May 10, 2016, the Fourth Appellate District upheld the Project in all six cases: Delaware Tetra Technologies, Inc. v. County of San Bernardino, 2016 Cal. App. Lexis 380, 2016 Cal. App. Unpub. LEXIS 3434, 2016 Cal. App. Unpub. LEXIS 3438, 2016 Cal. App. Unpub. LEXIS 3439, and Center for Biological Diversity v. County of San Bernardino, 2016 Cal. App. Lexis 382 and 2016 Cal. App. Unpub. LEXIS 3441.

The proposed Project is a public/private partnership designed to prevent water waste caused by brine and evaporation, and to ultimately transport water to customers in Los Angeles, Orange, Riverside, San Bernardino, and Ventura Counties. Once in operation, the Project would appropriate an average of 50,000 acre feet of groundwater over a period of 50 years. The groundwater extraction would be subject to the County’s 2002 Groundwater Ordinance, which was designed to ensure that groundwater extractions maintain safe yield of affected aquifers.

In March 2011, the Santa Margarita Water District (“Santa Margarita”) posted a notice of preparation of a draft Environmental Impact Report (“EIR”) for the Project. Under a June 2011 agreement, Santa Margarita agreed to act as the lead agency and San Bernardino County (“County”) agreed to act as a responsible agency. The Draft EIR was released for public review and comment in December 2012. During the EIR process, Santa Margarita, the County, the landowner, and Fenner Valley executed a memorandum of understanding (“MOU”) in which the parties agreed that a groundwater management, monitoring and mitigation plan would be developed in connection with the finalization of the EIR. The Final EIR was certified in July 2012.

Delaware Tetra Technologies

In the first published case, Delaware Tetra Technologies, Inc. challenged the County’s resolution authorizing the execution of the 2012 MOU, arguing that the County should have completed an environmental review under CEQA prior to approving the MOU.

Applying the de novo standard of review, the Court concluded that environmental review was not required because establishing a groundwater management, monitoring and mitigation plan under the MOU would not cause a direct, or a reasonably foreseeable indirect, physical change in the environment. Moreover, the MOU did not foreclose alternatives or mitigation measures, nor commit the County to a particular course of action that would cause an environmental impact. Rather, the MOU established that the County still retained full discretion.

Center for Biological Diversity

In the second published case, the Center for Biological Diversity, the San Bernardino Valley Audubon Society, Sierra Club, and National Parks Conservation Association (collectively, “CBD”) filed a petition for writ of mandate challenging the approval of the Project under CEQA. The Court concluded that Santa Margarita did not abuse its direction when it approved the Project and certified the EIR.

The court first held that Santa Margarita was properly designated as a lead agency because it was jointly undertaking the Project with the landowner and because it was the agency with the principal authority to approve and supervise the Project. Next, the Court held that the Project description, which characterized the Project as “a means of conserving water,” was not misleading because the Project would conserve water otherwise lost to brine and evaporation.

Finally, the Court rejected CBD’s contentions that the EIR did not provide an accurate duration for pumping by the Project and would result in more water being withdrawn than was contemplated and discussed by the EIR. Although the EIR recognized that the parties may choose to extend pumping for an additional term after the stated completion date of the Project, the Court found that the additional term was not reasonably foreseeable and noted that any additional term would require additional environmental review. The court further noted that the EIR did not permit withdrawal of water in excess of the amounts identified.

Key Points:

In holding that the MOU was not a “project,” the Court reaffirmed the principles of Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 regarding when an activity constitutes a “project” subject to environmental review. Memoranda of Understanding will not require environmental review under CEQA where they do not commit a lead agency to a particular course of action, foreclose alternatives or mitigation measures, or result in environmental impacts.

In addition, the Court reaffirmed in several different contexts that a court’s role is not to “pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.”  Petitioners bear the burden of describing the lead agency’s supporting evidence and showing how it is lacking.

SIXTH APPELLATE DISTRICT REJECTS CEQA AND PARK ACT CHALLENGES TO SALE OF PUBLIC ACTIVITY CENTER

Wednesday, March 2nd, 2016

In an unpublished opinion, Save Sunnyvale Parks & Schools v. City of Sunnyvale, 2016 Cal. App. Unpub. LEXIS 1146, the Sixth Appellate District affirmed the trial court’s ruling and rejected challenges to the City’s approval of the sale of the Raynor Activity Center (“RAC”) to Stratford Schools, a private school.

The City had previously declared that the RAC was a surplus property and had begun a competitive bidding process for its sale. Negotiations with Stratford resulted in a proposed agreement to sell the property for $14,050,000, with a joint use agreement that gave Stratford priority use of certain areas in the adjacent, City-owned Raynor Park. The proposed sale agreement required the City to conduct an environmental analysis under CEQA as part of the permitting process. Petitioner Save Sunnyvale Parks (“Petitioner”) sought a writ of mandate to compel the City to rescind the sale and joint use agreements, arguing that the City approved the agreements without first complying with CEQA and that the agreements violated the Public Park Preservation Act of 1971 (“Park Act”).

First, the court held the City did not violate the Park Act, which requires that all the funds received by a local government from the sale of park land be used to obtain or provide substitute park land and facilities. The court held that under the “home rule” doctrine, the Park Act did not apply to a charter city like Sunnyvale because the preservation of public parks is not a matter of statewide concern.

Next, the court rejected Petitioner’s claim that the City approved the sale and joint use agreements before conducting CEQA review in violation of the principles articulated in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. The court found that Petitioner’s Save Tara claim was barred because it had not satisfied the “issue exhaustion requirement” of Public Resources Code section 21177(a), which prohibits a legal action from being commenced unless the grounds for noncompliance were presented to the public agency during the administrative process. The court found that the public comments submitted were far too general to satisfy the issue exhaustion requirement, and that the notices or staff reports prepared by the City sufficiently notified the public of the City’s conclusions regarding the timing of CEQA review and the proposed agreements.

Finally, the court rejected Petitioner’s claim that the issue exhaustion requirement impermissibly infringed its rights to petition the government for redress of grievances as guaranteed in California Constitution Article I, § 3. The court held that the right to petition does not excuse compliance with the issue exhaustion requirement and noted that Petitioner was not denied access to the courts in this case––its claims were considered by both the superior and appellate court.

SECOND APPELLATE DISTRICT UPHOLDS EIR FOR PROPOSED UCLA CONFERENCE CENTER

Monday, January 4th, 2016

In an unpublished opinion, Save Westwood Village v. Regents of the University of California, 2015 Cal. App. Unpub. LEXIS 9281, the Second Appellate District affirmed the trial court’s rulings and rejected several CEQA challenges to the UC Regents’ approval of the Meyer and Renee Luskin Conference and Guest Center on the UCLA campus. As noted by the appellate court, the petitioner’s opening brief could have been rejected due to its failure to provide an adequate statement of facts, its limited and inaccurate citations to the record for most of its factual assertions, and its legal analyses, which was supported by only four citations to legal authority. Despite these inadequacies, the court considered each of petitioner’s four legal argument in turn, finding each to be unpersuasive.

Specifically, the court found that the Regents did not improperly pre-commit to the proposed project when they accepted a $40 million gift from the Luskins. The court found that the Regents’ acceptance of the gift did not preclude the Regents from considering any alternatives or mitigation measures because the gift was conditioned only on the Regents using the donors’ names for the proposed conference center, providing annual reports on the status of the conference center, and using the gift for charitable purposes. Nor did the court find pre-commitment from the Regents’ approval of the project budget prior to the certification of the Final EIR because the Regents approved the project design on the same day they certified the Final EIR and the approval followed lengthy, interactive planning and review process.

The court quickly rejected petitioner’s remaining claims: (1) that there were differing project descriptions regarding the amount of square footage between the EIR and the document authorizing the expenditure of funds; (2) that the project was a legally infeasible alternative because the guest center would be used for “non-academic purposes” 25% of the time; and (3) that the EIR did not consider the impact of lost parking spaces. The court found the record did not support any of these additional claims.

The lawsuit was filed in October 2012; the unfounded and barely articulated challenges entangled the project in CEQA litigation for more than three years.

SECOND APPELLATE DISTRICT REJECTS CHALLENGES TO THE CITY OF RIVERSIDE’S APPROVAL OF ELECTRIC POWER TRANSMISSION PROJECT

Monday, November 16th, 2015

In an unpublished opinion, City of Jurupa Valley v. City of Riverside, 2015 Cal. App. Unpub. LEXIS 7978 the Second Appellate District affirmed the trial court’s decision to deny the City of Jarupa Valley’s mandamus petition.  The project involved the creation of a transmission line, two substations, and several subtransmission lines to deliver power throughout Riverside.  Riverside had prepared and adopted an Environmental Impact Report (EIR) for the project. On appeal, the issues were whether Riverside violated CEQA by (1) failing to recirculate the Final EIR despite adding new information, (2) not fairly and in good faith analyzing Project alternatives, and (3) pre-committing to the Project.

First, the Court considered Riverside’s decision not to recirculating the Final EIR for public comment after minor alterations to transmission line routes. The Court held that substantial evidence supported Riverside’s decision not the recirculate, as the changes did not result in new or substantially increased environmental impacts. Rather, these changes resulted in reduced environmental impacts because they involved moving the transmission lines behind a store rather than cutting through the parking lot to avoid aesthetic and roadway impacts and burying the lines underground near the airport to avoid air traffic safety impacts.

Second, the Court upheld Riverside’s decision to reject underground transmission lines and an alternative routing option as infeasible because the decision was based on substantial evidence. The Court held that neither option had to be extensively analyzed as a project alternative because both options failed to satisfy the project objectives at the outset. Specifically, the high cost of underground transmission lines would not meet the project’s “cost effective” goal and the proposed alternative route would have greater environmental impacts than the chosen route and therefore failed the project’s objective of “minimizing environmental impacts.”

Third, the Court found Riverside did not impermissibly “pre-commit” to the project by including obtaining CAISO approval, pre-selecting a preferred route, committing funds to the project, and signing an Interconnection Facilities Agreement  with Southern California Edison.  The Court held that none of these steps obligated Riverside to approve the project, nor did they effectively precluded any alternatives or mitigation measures that CEQA would otherwise require to be considered. The Court also noted that modifications to the project in response to public comment showed that Riverside did not pre-commit.

Double Dribble: Court Rejects Second CEQA Lawsuit Over the Downtown Sacramento Arena

Thursday, March 5th, 2015

In Saltonstall v. City of Sacramento, 2015 Cal. App. LEXIS 150, the California Third District Court of Appeal affirmed the trial court’s denial of a writ of mandate challenging the environmental impact report (EIR) for an arena in downtown Sacramento (arena project) and held the City of Sacramento (City) did not prematurely commit itself to the downtown arena project before completing the EIR.

The case is the second time the Third District Court of Appeal ruled on the arena project in three months. (Summary of Saltonstall I by the Thomas Law Group available here: http://www.thomaslaw.com/blog/appellate-court-upholds-ceqa-amendments-streamlining-approval-sacramento-arena-project/) In that case, the court held the amendments to the California Environmental Quality Act (CEQA) streamlining the review of the arena project did not violate the constitutional separation of powers.

In the instant case, the court first rejected petitioners’ argument that the City violated CEQA by committing itself to the arena before completing the proper environmental review. The court explained the City’s nonbinding term sheet with the arena project developer expressly provided that all proposed terms of the development were subject to CEQA review. Also, the exercise of eminent domain to secure a site for the arena project did not constitute a commitment to the ultimate project site requiring prior CEQA review. The court reasoned that together CEQA Guidelines section 15004, which permits entering into land acquisition agreements as long as the public agency conditions the future use of the site on CEQA compliance, and Public Resources Code section 21168.6.6, which expressly authorized the City to prosecute the eminent domain action at issue prior to completing CEQA environmental review, demonstrated the City’s eminent domain action did not improperly commit it to the arena project.

Next, the court held the EIR was not deficient for failing to include a remodel of the City’s current basketball arena as a project alternative. The City’s objectives for the arena project included the revitalization of downtown and building a state-of-the-art entertainment venue. Even if remodeling the existing arena might be environmentally superior, the court concluded a remodeled arena would not meet the City’s downtown redevelopment objectives.

 

The court also rejected petitioners’ other challenges to the arena project. The court held substantial evidence supported the City’s traffic analysis conclusions and the City was under no obligation to conduct further studies simply because petitioners desired a more thorough review. The court also rejected petitioners’ argument that the EIR was deficient for not including an analysis of crowd safety impacts. The court reasoned CEQA was limited to impacts to the physical environment, which did not include crowd safety. Finally, the court stated petitioners forfeited their request to introduce certain material into the administrative record by failing to offer any meaningful analysis on the issue.

KEY POINT

The CEQA objectives for a project are critical when courts review the alternatives analysis in an EIR. Because the City established its objectives as requiring revitalization of downtown, other alternatives outside of the downtown area that may have had less of an environmental impact could properly be rejected.

Court Allows ARB’S LCFS Regulations to Remain In Effect Pending Outcome of New Proceedings

Thursday, August 8th, 2013

In POET, LLC v. California Air Resources Board, 2013 Cal. App. LEXIS 554, the Fifth District Court of Appeal reversed the trial court’s decision denying plaintiffs’ petition for a writ of mandate seeking invalidation of California Air Resources Board (“ARB”) approval of low carbon fuel standards (“LCFS”) regulations for non-compliance with CEQA. In an unpublished part of its opinion, the court further ruled that ARB violated the Administrative Procedures Act (“APA”) by failing to include consultant e-mails in the rulemaking file. Nevertheless, the court allowed the regulations to remain in effect, pending completion of CEQA- and APA-compliant proceedings.

The Global Warming Solutions Act of 2006 (“AB 32”) directed ARB to devise and implement strategies to reduce carbon emissions. As part of its compliance with this mandate, ARB developed LCFS performance standards imposing a limit on the annual average carbon intensity of fuels used by regulated parties. In approving the LCFS standards, ARB’s Board delegated to the Executive Officer the duty to respond to environmental issues.

Plaintiffs filed a petition for writ of mandate to set aside the LCFS regulations, alleging the Board had violated CEQA by: (1) approving the regulations prior to completion of environmental review; (2) delegating partial decision-making authority to its Executive Officer; and (3) improperly deferring mitigation for increased NOx emissions. The trial court denied plaintiffs’ petition and plaintiffs appealed. On appeal, plaintiffs raised an additional argument that ARB had violated the APA by failing to include relevant consultant e-mails in the rulemaking file.

The court first held an environmental document prepared pursuant to certified regulatory program must be completed before a lead agency may approve a project. The court then determined that the principles regarding the timing of project approval enunciated in Save Tara v. City of West Hollywood, 45 Cal. 4th 116 (2008), applied to ARB’s actions. A review of the language of the Board’s resolution, agency press releases, and subsequent notices of decision led the court to conclude that ARB had approved the regulations for CEQA purposes at the Board hearing, having committed itself to a particular course of action that foreclosed the Executive Officer’s ability to consider the full range of alternatives.

Next, the court considered whether the Board had improperly delegated decision-making authority to the Executive Officer. The court observed that CEQA’s basic purpose of informing decision-makers about possible environmental effects would be frustrated if the two functions—project review and environmental review—could be performed by different people. The court therefore held that, while delegation may be authorized, splitting the decision-making authority was improper.

The court then examined whether ARB had improperly deferred mitigation for increased NOx emissions from biodiesel. ARB stated it would conduct rulemaking at the end of a test program to ensure no NOx increase and would partially mitigate this impact by promulgating fuel specifications. But because ARB had not established objective performance criteria to measure whether the stated goal would be achieved, the court held it had improperly deferred mitigation.

The court concluded that ARB’s approval of the LCFS regulations should be set aside, but that, on balance, the environment would be better served by allowing the regulations to remain in effect pending ARB’s compliance with CEQA. However, the court prohibited ARB from stepping up enforcement beyond the 2013 levels until it complies with its legal obligations.

KEY POINTS:
The decision-making body of the lead agency cannot delegate authority to certify an EIR pursuant to CEQA while retaining approval authority for a project.
Certified regulatory programs remain subject to the limitations set forth in Save Tara related to timing of project approval.
Courts can, and should, consider the consequences of setting aside a project when crafting the remedy for a CEQA violation.

Actions by a City, Including Granting of a Loan, Did Not Commit the City to a Project prior to Approval in Violation of Save Tara

Tuesday, July 16th, 2013

In Neighbors for Fair Planning v. City and County of San Francisco, 2013 Cal. App. LEXIS 506, the Court of Appeal, First District, affirmed a trial court’s decision denying a petition for writ of mandate to set aside defendant’s EIR certification and approval of a project involving a community center and affordable housing.

Real party in interest, a local nonprofit organization, owned and operated an existing community center. The project involved replacing the existing one-story community center with a new, larger community services facility, and building a new five-story building containing 48 units of affordable housing. Plaintiff, an association of local residents, opposed the project based on its proposed height and density, and potential traffic impacts.

After defendant City and County of San Francisco (City) certified the EIR and approved the project, plaintiff filed its petition for writ of mandate, alleging the City had approved the project long before EIR certification in violation of CEQA Guidelines sections 15004 and 15352. Relying heavily on Save Tara v. City of West Hollywood, 45 Cal. 4th 116 (2008), plaintiff alleged City had improperly committed itself to the project as proposed through multiple actions prior to EIR certification. First, the City had issued a loan to nonprofit real party in interest for predevelopment activities. Second, a City supervisor had introduced an ordinance to allow for greater density on the site. Third, City officials made statements in support of the project.

In its opinion, the Court of Appeal distinguished the circumstances of this case from those in Save Tara. The Court first observed the loan issued by the City here only funded predevelopment activities; the loan agreement expressly stated the City’s lack of commitment to the project; and the loan amount was due in full if the project was denied by the City. All of these factors stood in contrast to the loan agreement in Save Tara. Second, the Court noted the introduction of an ordinance by an elected official for the consideration of the decision-making body does not constitute a decision by a public agency; here, the ordinance was only approved by the Board of Supervisors following EIR certification. Lastly, the Court distinguished the public statements made by the City of West Hollywood in Save Tara and those made by the City here. In the former case, the city manager and mayor publicly used language demonstrating a firm commitment to the project as proposed, while here one County Supervisor expressed her general support for the project.

Key Point: The facts in Save Tara were particularly egregious. Neighbors for Fair Planning joins the line of cases distinguishing Save Tara and provides further guidance on the types of actions a lead agency may take in connection with a project prior to completing CEQA review.

Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150

Tuesday, May 22nd, 2012

The City of Santa Clara (City) approved a long and detailed “term sheet” for the development of a professional football stadium. The Petitioner challenged the approvals claiming the “term sheet” constituted approval of a project as defined by CEQA. The trial court found for the City, holding that no EIR was required because approval of the “term sheet” was not approval of the project. The Petitioner appealed to the Sixth District Court of Appeal, arguing that based on the details in the “term sheet,” the statements made by the city council, and the amount of money already invested in the project, the “term sheet” was an approval of the project. The Appellate Court rejected that argument. In affirming the lower court’s decision, the Court of Appeal looked to Save Tara v. City of West Hollywood (2008) 45 Cal.App.4th 116, which directs a court to consider whether an action “viewed in light of all the surrounding circumstances,” commits a lead agency to a project “as a practical matter,” requiring action under CEQA. The Court held the term sheet did not constitute such a commitment. The Court found that the “term sheet” clearly expressed that the parties were only bound to continue negotiating; no binding contractual obligations were made as to the development of the stadium. The Court also explained that the statements by the city council reinforced the language of the term sheet itself, but did not commit the City to the project. Lastly, the Court concluded that the money invested by the City did not create a legal obligation to build the project.

Key Point:

Term sheets are common preliminary agreements entered into between agencies and project developers during project formulation. An agency may enter into such agreements, without CEQA review, so long as it does not commit itself to a project as a whole or to any particular features, thereby effectively precluding from consideration any alternatives or mitigation measures that CEQA would otherwise require the agency consider.

Court Rejects Use of a Demurrer to Dispose of a Save Tara-Style CEQA Lawsuit

Tuesday, May 8th, 2012

In Jamulians Against the Casino v. Iwasaki (2012) ___ Cal.App.4th ___, petitioner alleged that a settlement agreement entered between Jamul Indian Village and Caltrans constituted a discretionary approval of a CEQA project by Caltrans.  The settlement agreement at issue disposed of a federal lawsuit between those parties relating to the application of CEQA to the Tribe’s efforts to upgrade its interchange on State Route 94 to allow for access to a proposed casino.  Petitioner argued that the settlement agreement committed Caltrans to grant a permit for the interchange upgrade.

At trial, Caltrans filed a demurrer to the petition.  In conjunction with the demurrer, Caltrans requested and the trial court granted judicial notice of the settlement agreement.  Based on the trial court’s review of the settlement agreement, the court concluded that Caltrans had not committed itself to a project subject to CEQA and sustained Caltrans’ demurrer.  Although no party alleged it was improper for the trial court to grant judicial notice of the settlement agreement, the Third Appellate District requested the parties conduct supplemental briefing on the issue of whether judicial notice was proper.

After considering the supplemental briefs, the Court concluded that the trial court erred in granting judicial notice of the settlement agreement.  The Court explained that in ruling on a demurrer, a court may properly take judicial notice of the existence of a relevant document, but can take judicial notice only of the truth of the contents of documents such as findings of fact, conclusions of law, orders, and judgments.  As the settlement agreement did not constitute findings of fact, conclusions of law, orders, and judgments issued by a court, the Court concluded it was improper for the trial court to consider the truth of the contents of the settlement agreement.

While the last two published appellate decisions to address a Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 style pre-commitment challenge, Cedar Fair, L.P. v. City of Santa Clara (2011) 194 Cal.App.4th 1150, 1156 and City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55, 60, resolved the litigation on demurrer, the Court here concluded neither decision directly addressed the propriety of granting judicial notice of the agreements at issue in those challenges.  The Court thus concluded that those holdings do not stand for the proposition that it is proper on demurrer for a court to consider the truth of the contents of documents at issue in Save Tara-style litigation.  As a result, the Court reversed the trial court’s judgment dismissing the action and overruling the demurrer.

Key Points:

Save Tara establishes an amorphous fact-specific test that, as a result, has become a commonly litigated CEQA issue.  In Save Tara, the California Supreme Court stated that CEQA is not intended to place unneeded obstacles in the path of project formulation and development.  Early CEQA litigation, such as a Save Tara-style challenge, can itself be an obstacle to project development.  Quick resolution of this early litigation is often critical to maintaining the potential viability of projects.  Use of a demurrer, as seemingly endorsed by the courts in Cedar Fair and City of Santee, has the potential to reduce the length of time, and associated costs, to dispose of Save Tara-style CEQA litigation.  With publication of Jamulians Against the Casino, use of a demurrer as a procedural response to a Save Tara-style challenge appears that it may be considered improper in all but a few limited circumstances.

Written By: Tina Thomas and Chris Butcher
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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.