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Third District Holds City’s Explanation and Substantial Evidence Supported Traffic Impact Conclusion, Discharge of Writ of Mandate Proper

Thursday, January 3rd, 2019

In reviewing whether the City of Sacramento complied with a peremptory writ of mandate issued by the Sacramento Superior Court (East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5Cal.App.5th 281 (ESPLC I)), the Third District Court of Appeal ruled that the City had explained and provided substantial evidence supporting both its traffic threshold and its conclusion that the traffic impact was less than significant. (East Sacramento Partnership for a Livable City v. City of Sacramento (2018) Cal.App. Case No. C085551.)  In ESPLC I, the Court faulted the City’s use of a General Plan threshold because, the Court concluded, the threshold was not supported by substantial evidence.

Real Parties in Interest, Encore McKinley Village, LLC, proposed a 328-unit residential development (Project), which is now 80% built out. As pertinent here, the Project EIR recognized that the Project potentially impacted four intersections in the core and, utilizing the level of service (LOS) standard from the City’s General Plan, concluded that there would be no significant impacts to traffic. The City of Sacramento (City) reviewed the Project application, certified the Project EIR, and approved the Project. East Sacramento Partnership for a Livable City (ESPLC) filed suit.

The trial court denied the petition for writ of mandate, finding the EIR sufficient. ESPLC appealed. In ESPLC I, the Court of Appeal held that the EIR was sufficient except for its reliance on the General Plan LOS standards without explanation. Specifically, the City was in error in relying on the LOS standards as an automatic determinant that traffic effects at the four intersections in the core were not significant. In doing so, the City failed to provide substantial evidence to support the finding of no significant traffic impact. “The fact that a particular environmental effect meets a particular threshold cannot be used as an automatic determinant that the effect was or was not significant.” Accordingly, the Court remanded the case.

The trial court then entered judgement in favor of ESPLC and issued a preemptory writ of mandate to rescind and set aside the EIR’s certification until the City brought the transportation and circulation sections of the EIR into compliance with CEQA. The City recirculated and certified a revised EIR. The trial court found the revised EIR was sufficient and discharged the writ. ESPLC appealed the order discharging the writ.

ESPLC alleged that the City failed to provide substantial evidence to support the conclusion that the Project’s impacts on traffic at the four intersections in the core are insignificant. ESPLC claimed that it was insufficient to merely provide evidence and an explanation to support the choice of threshold of significance for traffic impacts. ESPLC contended that the City was instead required to prepare a new traffic study to support its determination. The City responded that, among other things, the appeal should be dismissed as untimely.

Here, the Appellate Court held that ESPLC I only asked that the City provide an explanation and substantial evidence for the City’s determination to use the flexible LOS standards. The Court then found that it was to review for abuse of discretion because compliance with a writ is, for all practical purposes, an attempt to comply with CEQA.  

The Court found the revised EIR provided substantial evidence supporting the City’s determination that there would be no significant traffic impacts at the challenged intersections in the core. The revised EIR provided an explanation of how the flexible LOS policy promotes infill development and achieves environmental benefits by reducing vehicle miles traveled (VMT) and greenhouse gas emissions. Further, the revised EIR explained that vehicle delay is not a physical impact on the environment and is preferable to roadway expansion as the latter increases VMT. These conclusions were supported by staff opinions, legislation, studies of flexible LOS, evidence of VMT in the area, and comments from Regional Transit, the Air District, and Sacramento Area Council of Governments.

ESPLC contended that the revised EIR should have studied and quantified the alleged reductions in VMT and greenhouse gas emissions in the Project area. The Court held that it was only required that the City provide “sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action.” Because the City provided sufficient explanation and substantial evidence to support its selection of the threshold of significance for the traffic impacts, the Court affirmed the judgment.

The Court further established that the appeal was not untimely. A post judgment order, like that issued by the trial court discharging the writ, extends the time for filing a notice of appeal. Relying on City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, the Court held that an order relating to the enforcement of a judgment is appealable. Thus, the discharge order, finding the return to the writ adequate, was an appealable post judgement order and subject to reconsideration. As such, the appeal was timely.

As a final point, the Court granted the City’s motion to strike ESPLC’s argument that the City admitted the traffic impacts were significant as defined by the 2030 General Plan because it could have been raised earlier and ESPLC failed to show why the issue was raised for the first time in their reply brief. The Court further noted that adoption of a 2035 General Plan mooted arguments based on the 2030 General Plan.

The Court affirmed the trial court’s discharge of the writ of mandate.

Note: This case is currently unpublished. Pursuant to California Rules of Court, the deadline to request publication is 20 days from filing –Wednesday, January 16, 2019.

Sixth District Finds “Substance and Effect” of “Preemptory Writ of Mandate” Decision A Final Judgment for Purposes of CEQA Appeal

Monday, December 17th, 2018

In Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista, (2018) 29 Cal.App.5th 424, the Sixth District Court of Appeal held that the “substance and effect” of a decision labeled by the trial court as a preemptory writ of mandate nonetheless constituted a final judgment.

The City of San Juan Bautista (City) approved a gas station, convenience store, and fast food restaurant (Project) and related permits with a mitigated negative declaration (MND). Alliance of Concerned Citizens Organized for Responsible Development (ACCORD) filed suit.

ACCORD alleged that the City violated CEQA by not preparing an EIR for the Project.  ACCORD also alleged that the Project conflicted with the City’s General Plan and that, in approving the Project, the City violated state planning and zoning laws, its own zoning code, and its municipal code.

In March 2016, the trial court issued a “Preemptory Writ of Mandate of Interlocutory Remand for Reconsideration of Potential Noise Impacts,” which directed the City to take specific action and then file a return to the preemptory writ no later than October 10, 2016. ACCORD did not appeal that decision. The City filed a return to the writ within the timeframe provided, and then a supplemental return advising the Court of the City’s compliance with the Writ.  In December 2016, the trial court issued a subsequent decision finding that the City had complied with the terms of the preemptory writ. ACCORD timely appealed this decision alleging that the City was required to prepare an EIR because there was substantial evidence of a fair argument that the Project would have noise and traffic impacts and the Project violated the City’s municipal code governing formula retail businesses.

In determining whether the issues raised on appeal were cognizable, the Appellate Court first considered whether the March 2016 decision was a final judgment, notwithstanding its title labeling it as an “Interlocutory Remand.” The Court reasoned it “is not the form of the decree but the substance and effect of the adjudication which is determinative” of whether it is a final judgment. “[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final.” Because “[t]he March 2016 decision disposed of all CEQA and non-CEQA issues raised by the petition and conclude[d] that respondents had not complied with CEQA with respect to the potential noise impacts of the project  . . . [t]he decision was not tentative or partial.”

The Court found that the March 2016 decree described specific instructions for the City to follow and the means for the City to comply with the Writ. It was inconsequential that additional proceedings were required as “a trial court has continuing jurisdiction to ensure compliance with a preemptory writ of mandate” and the scope of these proceedings was limited to whether the City complied with the decree. The trial court’s subjective intent was also inconsequential to the effect of the Court’s decision. It did not matter that the trial court titled the March 2016 decree an interlocutory remand and declared “nothing herein shall be construed as a final judgment,” the effect of the decree disposed of all issues raised by the petition thus, it was a final judgment.

The final judgment rule provides that an appeal may only be taken from the final judgment in an entire action; piecemeal disposition and multiple appeals in a single action are oppressive and costly. Here, the Court established that, in finding a final judgment, a court does not focus on the decision title or intent of the deciding court in issuing the decision but the “substance and effect” of the decision. Where the decision concludes matters between the parties, it is a final judgment for the purposes of an appeal.

ACCORD alleged that the March 2016 decision was an interlocutory remand and therefore unappealable, as discussed in Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499. In Voices, the California Supreme Court held that Code of Civil Procedure section 1094.5 does not impose an absolute bar on interlocutory remands in administrative mandamus actions. In a concurring opinion, Justice Werdegar, joined by Chief Justice Cantil-Sakauye, recognized the limited scope of the court’s decision and indicated that an interlocutory remand is not proper in a CEQA action. The California Supreme Court has not since decided the propriety of an interlocutory remand in a CEQA action. Here, the Court did not answer whether the Voices holding applied to CEQA actions pursuant to Public Resources Code section 21168.9 as “in substance and effect the March 2016 decision was a final judgment.” As such, the December 2016 decision was a post-judgment order.

ACCORD could not challenge the adequacy of the EIR as the group failed to timely appeal the March 2016 decision within the 60-day statutory deadline. ACCORD alleged that principles of fairness and due process support the grant of an extension. The Court held that it is immaterial that the trial court mislabeled the March 2016 decision and possibly mislead the parties, the Court is without statutory authorization to extend the time for appeal “even to relieve against mistake, inadvertence, accident, or misfortune.” Further, the timeline may not be extended by stipulation by the parties, estoppel, or waiver. Indeed, where no objection is made, a court “must dismiss the appeal of its own motion.”

Considering the above, the Court found the scope of its review limited to the December 2016 post-judgment order. The City’s response to the preemptory writ was adequate where it satisfied the conditions of the preemptory writ and timely filed a return on the preemptory writ.

The Court affirmed the trial court’s December 2016 holding.

Key Point:

Where a court’s decision disposes all issues raised by the petition, it is a final judgment from which an appeal must be filed within 60 days.

An appeal from a post-judgment decision limits the appellate court’s scope of review to only those issues addressed in the post-judgment decision, not the original judgment.

CEQA Claims Separate from Municipal Code Claims Subject to More-Specific Public Resources Code Timing

Tuesday, October 23rd, 2018

In Save Lafayette Trees v. City of Lafayette (2018) 28 Cal. App. 5th 622, the First District Court of Appeal held that a letter of agreement for removal of protected trees was the equivalent of a permit under the municipal code and, therefore, challenges to its approval were subject to the filing and service limitations of Government Code section 65009(c)(1)(E) (Section 65009). However, CEQA claims related to the approval were subject to the more specific filing and service limitations in Public Resources Code sections 21167 and 21167.6.

On March 27, 2017, the City of Lafayette (City) approved a letter of agreement for removal of up to 272 trees in the local natural gas pipeline right-of-way by Real Party in Interest PG&E. On June 26, 2017 petitioners Save Lafayette Trees, Michael Dawson, and David Kosters (collectively Save Lafayette) filed a petition challenging the City’s action. The petition was served on the City on the next day.

The petition alleged that the City (1) failed to comply with CEQA; (2) violated the substantive and procedural requirements of the planning and zoning law, the city’s general plan, and the City’s tree ordinances; (3) violated the due process rights of the individual petitioners by failing to provide sufficient notice of the agreement review hearing; and (4) proceeded in excess of its authority and abused its discretion in completing each action.

PG&E filed a demurrer to the petition on the grounds that it was barred by Section 65009, which requires that an action regarding a zoning permit be filed and served within 90 days of the decision. Save Lafayette failed to meet this requirement by serving the City on the 91st day. The trial court sustained the demurrer without leave to amend and dismissed the petition. Save Lafayette timely appealed.

Reviewing de novo, the Appellate Court affirmed the demurrer in part and reversed in part. First, the Court set out that the filing and service limitations in Section 65009 are “to provide certainty for property owners and local governments regarding decisions by local agencies made pursuant to [the] planning and zoning law.” Further, the statute applies to all matters listed in the Section, including permits and variances when the applicable zoning ordinance provides. This interpretation, the Court clarified, “is to be applied broadly to all types of challenges to permits and permit conditions, as long as the challenge rests on a ‘decision’ of a local authority.”

Next, the Court outlined that, under the City’s municipal code, a permit is required for the removal of protected trees. An applicant may seek an exception when the tree must be removed “to protect the health, safety, and general welfare of the community.” The agreement approved by the City is to remove trees thus there is “no meaningful difference between [the agreement and a permit] in this instance.” Therefore, contrary to Save Lafayette’s contentions, the agreement “falls squarely within the scope of [Section 65009].”

Save Lafayette claimed that Section 65009 was only intended to apply to permits and variances related to relieving the state housing crisis and, thus, did not apply. The Court disagreed because courts have applied the statute to challenges in a broad range of local zoning and planning decisions.

The Court also dismissed Save Lafayette’s claim that the City was not the proper reviewing body for the statute. Save Lafayette claimed that the City was not explicitly listed as a legislative body whose actions were subject to Section 65009. Citing relevant precedent, the Court held that it is “the underlying decision being reviewed [that] determines the applicability of Section 65009,” not the body deciding it.

Save Lafayette claimed that the 180-day statute of limitations provided in the City’s Municipal Code applies here. The Court disagreed because “[i]nsofar as Section 65009 applies to the present action and expressly conflicts with the local ordinance, it preempts the local ordinance.”

Save Lafayette also argued that it should be excused from compliance with Section 65009 as the City failed to provide written notice of the approval prior to the meeting, as required by Government Code section 65905 and the due process clause of the Constitution. The Court held that the City complied with the Brown Act and provided adequate notice as Save Lafayette failed to present any facts to support a conclusion that they were entitled to personal service.

Finally, the Court held that the CEQA cause of action was timely filed and served and therefore reversed and remanded as to the CEQA cause of action. Relying on Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, the Court held “when two statutes relate to the same subject, the more specific one will control unless they can be reconciled.” Section 65009 and Public Resources Code sections 21167 and 21167.6 relate to the same subject, the time period for service. In Royalty Carpet, the court held that the shorter statute of limitation and service requirement set forth in Public Resources Code sections 21167(b) and 21167.6(a) do not require automatic dismissal and, therefore, can be harmonized with the 90-day service requirement set forth in Section 65009(c)(1)(E). Here, however, the Court concluded the longer 180-day requirement set forth in Public Resources Code section 21167(a) applied and that requirement could not be reconciled with Section 65009(c)(1)(E)’s shorter 90-day service requirement. As a result, unlike in Royalty Carpet, the two applicable statutory provisions could not be reconciled. Because the applicable statutory provisions could not be reconciled, the more specific Public Resources Code provisions set forth in Public Resources Code sections 21167(b) and 21167.6(a) prevailed.  Therefore, the Court concluded that Save Lafayette’s CEQA claims were timely.

The Court affirmed the trial court ruling in part, sustaining the demurrer as to the second, third, and fourth causes of action, and reversed in part, finding the demurrer improper as the CEQA cause of action.

Key Point:

The more-specific filing and service timing requirements of the Public Resources Code apply to CEQA claims rather than the service and timing requirements in the Government Code.

Petition by Collective Citizens Groups Barred by Res Judicata and Collateral Estoppel Where Individual Group Received Previous Final Judgement on Same Project Issues

Friday, September 14th, 2018

In The Inland Oversight Committee v. City of San Bernardino (2018) 27 Cal.App.5th 771, the Fourth District Court of Appeal affirmed a judgement entered by the trial court sustaining a demurrer without leave to amend, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and the Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata based on the final judgment in the HOA’s prior related CEQA action and failure to state a claim.

The Court’s opinion involved challenges to modifications to the Highland Hills Project (Project), a 541-acre mixed use development in the City of San Bernardino (City). The specific plan and associated EIR were originally approved in 1982. Subsequent amendments to the Project and challenges to those amendments resulted in an agreement. As relevant here, the agreement’s second addendum (Second Addendum) permitted “minor modifications” to the Project, defined as those resulting in development with the same or less intense environmental impacts from a CEQA standpoint, could be approved as “ministerial acts” by the City’s development director without further planning commission involvement.

In 2014, Real Party in Interest First American Title Insurance Company (First American), the developer’s successor in interest, applied for modified construction plans that (1) further reduced the total number of units; (2) eliminated commercial uses, including a convenience store and golf course; (3) increased park acreage and protected an important ridge line by eliminating higher-elevation development; and (4) substantially reduced the Project’s  footprint and impact on jurisdictional streams and wetlands. The City’s development director adopted and made findings from an independent environmental consultant’s report that these were “minor modifications” in line with the Second Addendum. The City rejected appeals by the HOA and approved the modifications. The City filed a motion in the trial court requesting confirmation the proposed changes complied with the terms of the Second Addendum. The trial court granted the motion. The HOA timely appealed.

In an unpublished 2017 decision, the Court of Appeal held that the HOA “failed to demonstrate either that the City eliminated any mitigation measures without due consideration or that there was a lack of substantial evidence supporting the City’s conclusion that the [Project modifications] would have equally intense or less intense environmental impacts than the unmodified [Project].”

The IOC, joined by CREED-21 and the HOA, filed suit in 2015 challenging the approval of the minor modifications by the City for being illegal under CEQA and the Water Code. The trial court sustained the City and First American’s demurrer without leave to amend on the grounds that the issues were moot by the principle of res judicata. The IOC, CREED-21, and the HOA collectively appealed.

Addressing the doctrine of res judicata, the Appellate Court found that a valid final judgement on the merits bars subsequent action by the parties “or their privities on the same cause of action.” Identical causes of action are those that involve the same “primary right.” For CEQA cases, res judicata is limited; “if two actions involve the same general subject matter but involve two distinct episodes of purported noncompliance, the doctrine of res judicata does not apply.” Applying these principles, the Court held that the IOC, CREED-21, and the HOA’s CEQA claim was the same one asserted in the related action brought only by the HOA and resolved in 2017. Specifically, the claims in both are that the City violated CEQA by failing to conduct further environmental review by treating First American’s proposal as “minor modifications” under the Second Addendum. The HOA litigated the claim and lost, receiving a final judgement on arguments that were specifically alleged in the action brought by the three groups together.

The Court then turned to principles of collateral estoppel. Privity is found where “a relationship between the party to be estopped and the unsuccessful party in the prior litigation is “sufficiently close” so as to justify application of collateral estoppel. Thus, the Court likewise barred the same CEQA claim as asserted by the IOC, CREED-21, and the HOA together because the entities are in privity with the HOA. Such a relationship renders the losing litigant a “virtual representative” of the new plaintiffs where it has the “same interest” as them and a “strong motive” to assert it. The IOC, CREED-21, and the HOA shared the same interest in “promoting responsible land use and planning” and sought to invalidate the minor modifications. Since there was no evidence the HOA failed to zealously litigate the related matter, the IOC, CREED-21, and the HOA’s collective interests were adequately represented in the previous case.

The Court also dismissed appellants Water Code claim that asserted a Water Supply Assessment (WSA) was required for the Project modifications. While a WSA is required for certain discretionary development approvals, the Project modifications, as held above, were ministerial.

The Court affirmed the trial court’s judgement; the demurrer was sustained.

Key Point:

The doctrines of res judicata and collateral estoppel prevent citizens’ groups from collectively filing a lawsuit with the same issues that one of the groups had previously received a final judgment on.

COURT OF APPEAL HOLDS “DISCOVERY RULE” DOES NOT EXTEND CEQA STATUTE OF LIMITATIONS

Tuesday, July 26th, 2016

In Communities for a Better Environment v. Bay Area Air Quality Management District, 2016 Cal. App. LEXIS 596, Petitioners challenged Bay Area Air Quality Management District’s (BAAQMD) July 2013 determination that the approval of the Richmond rail-to-truck facility to transload crude oil instead of ethanol was ministerial and therefore not subject to CEQA. BAAQMD did not provide the public with notice of its determination and Petitioners did not learn of the decision until January 31, 2014, when one of Communities for a Better Environment’s staff members received an email disclosing the change from ethanol to crude oil.

Petitioners filed their petition in March 2014 and it was subsequently dismissed by the trial court as untimely. Petitioners appealed, arguing that the so called “discovery rule” applied. In the typical case, the discovery rule postpones the accrual of an action from the date an injury occurs until the date the plaintiff has actual or constructive notice of the facts constituting the injury. Petitioners argued that the discovery rule should apply in this case because there was no way to discover that the approval had taken place—they claimed that the transloading operation is entirely enclosed, making any changes invisible to the public.

The appellate court held that the discovery rule did not extend the statute of limitations in this case because the legislature created the applicable triggering dates when drafting the statute and those dates, providing constructive notice to Petitioners, had occurred. Specifically, an action to challenge a determination that a project is not subject to CEQA accrues on one of three alternative dates set forth in Public Resources Code section 21167, subdivision (d): (1) filing of a notice that the project is not subject to CEQA, which triggers a 35 day statute of limitations; (2) if no notice is filed, then within 180 days of the agency’s formal decision to carry out or approve the project; or (3) if there is no formal determination, then within 180 days from the commencement of the project.

The court distinguished the situation from Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929, where the Supreme Court held that an action accrues on the date a plaintiff knew or reasonably should have known of the project only if no statutory triggering date has occurred. Here, the court held that the triggering dates had occurred, even if they were not apparent to Petitioners.

While the court acknowledged that public participation may be served by applying the discovery rule in cases such as this, where no notice is given and there is virtually no indication to the public that the project has been approved and commenced, it concluded that it could not read such an exception into the statutory text, such a change would have to be initiated by the Legislature.

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.

“No one ever said it was easy to build a project in San Francisco”

Monday, September 28th, 2015

On September 17, 2015, the California First District Court of Appeal struck another blow to the beleaguered 8 Washington Street Project in Defend Our Waterfront v. California State Lands Commission, 2015 Cal. App. LEXIS 817, when it upheld the trial court’s ruling that a necessary land transfer between the State Lands Commission and the City of San Francisco did not qualify for an obscure CEQA exemption.

Developers San Francisco Waterfront Partners II, LLC and Pacific Waterfront Properties LLC have been attempting to build luxury condominiums on waterfront land near the San Francisco Ferry Building for almost a decade. In 2012, the project seemed to be on track. The Planning Commission certified the project’s FEIR, the Board of Supervisors affirmed the certification, and the developers were issued a conditional use authorization. At that point, only one hurdle remained—removing the public trust restrictions from the waterfront land.

The site for the project includes a parcel of property commonly referred to as “Seawall Lot 351,” which includes a public trust restriction due to the fact that the area was previously submerged land under the San Francisco Bay. To allow the development to proceed on Seawall Lot 351, the developer and the City devised a plan to transfer the lot out of the public trust and replace it with a different parcel of property pursuant to a land exchange agreement with the State Lands Commission. In August 2012, the State Lands Commission approved the land exchange agreement and found that the agreement is a statutorily exempt activity under CEQA pursuant to Public Resource Code section 21080.11.

Defend Our Waterfront (DOW) challenged the State Lands Commission’s reliance on the exemption. In early 2014, the trial court held the exemption was inapplicable and invalidated the land transfer.

On appeal, the First District upheld the lower court’s ruling. The Court began by rejecting State Lands Commission’s argument that DOW failed to exhaust their administrative remedies. DOW formed after the State Land Commission’s decision to approve the land swap. The State Lands Commission argued that Public Resources Code section 21177, subdivision (c), requires that a member of the after-formed organization must have raised the CEQA issue during the agency proceeding. The Court did not reach the merits of this argument because it determined that the State Lands Commission had provided inadequate notice of the meeting in violation of section 21177, subdivision (e), excusing DOW from the exhaustion requirement.

Specifically, the Court held that a meeting agenda posted on the State Lands Commission’s website stating that the land exchange agreement would be discussed, with no mention of CEQA, was insufficient to give the required notice that the project would be approved based on a statutory exemption. A hyperlink to a staff report that mentioned the CEQA exemption was added prior to the meeting; however, the Court found the extra step of clicking on the hyperlink to be inadequate notice and regardless, the link to the staff report was not added at least 10-days’ prior to the meeting as required under Government Code section 11125, subdivision (a). The Court further held that actual notice of the meeting/staff report did not satisfy CEQA’s notice requirement, nor was the notice requirement waived when one of DOW’s members’ failed to object to the exemption at the meeting.

On the merits of the challenge, the Court held that the Public Resource Code section 21080.11’s exemption for “settlements of title and boundary problems by the State Lands Commission and to exchanges or leases in connection with those settlements” applied only to instances where the State Lands Commission exercised its authority to settle land disputes. The Court rejected the State Lands Commission’s argument that it applied to title “problems” generally, finding that it was not required to defer to the State Lands Commission’s interpretation of the exemption because construing the scope of the CEQA exemption was a matter of “statutory interpretation” subject to de novo review.

Key Point:

The public must have sufficient notice under section 21177, subdivision (e), to trigger the exhaustion requirements. The notice must clearly state if any CEQA determinations will be discussed at the meeting and that statement must be in the notice itself, not in a hyperlinked document. This case also made clear that actual notice or waiver is no substitute for those notice requirements.

Supplement to 16 year old EIR is Acceptable, Project Proponents Need Not Address Every Comment Following Public Review.

Tuesday, July 7th, 2015

In City of Irvine v. County of Orange, (July 6, 2015, G049527)__Cal.App.4th__, the Fourth District Court of Appeal affirmed the adequacy of a Supplemental Environmental Impact Report (SEIR) prepared approximately 16 years after the original EIR was adopted. The court granted publication on July 7, 2015.

The dispute began in 1996 when the City of Irvine (Irvine) challenged the County of Orange’s (County’s) certification of an Environmental Impact Report (EIR) involving the expansion of the Musick Facility (Musick). The Musick facility is a 1,200 inmate jail, and the proposed expansion would make it a 7,584 inmate jail. In Musick I, the court held that the 1996 EIR was adequate, but the project fell through for financial reasons.

In 2011, newly available state funding revived the Musick project. Irvine immediately challenged the County’s application for state funding, alleging that the application for funding itself required an EIR. In Musick II, the court held that there was no need for a new EIR just to apply for state funds.

The County then prepared an SEIR to the 1996 EIR.  The SEIR reflects major changes that have taken place in the area surrounding Musick over the 16 years separating the two documents. First, a proposed airport that was supposed to be built next to the facility was scrapped in favor of a large park. Second, agricultural land around the facility and in the County almost entirely disappeared. Following the County’s certification of the SEIR, Irvine immediately sued, seeking a writ of mandate to invalidate the SEIR, but the trial court denied Irvine’s petition.

On appeal, Irvine raised four arguments: (1) the changes since the 1996 EIR warranted a new EIR, (2) the EIR’s traffic study was inadequate, (3) the mitigation measures for the loss of agricultural land were inadequate, and (4) the County’s responses to comments on SEIR were inadequate. The court of appeal disagreed with Irvine on all its arguments and held for the County.

Irvine argued that the significant changes between the 1996 EIR and SEIR warranted a new EIR altogether. The court disagreed.  While the CEQA Guidelines state that a lead agency “may” prepare a supplemental EIR where “[o]nly minor additions or changes would be necessary to make the previous EIR adequate to apply to the project in the changed situation” (CEQA Guidelines, § 15163), the court noted that a “subsequent” EIR and a “supplemental” EIR are statutorily similar in their requirements.   Moreover, the court explained that the appropriate judicial approach is to look to the substance of the EIR, not its nominal title.

Next, Irvine challenged the SEIR’s traffic study. It alleged that the SEIR is inconsistent in its descriptions of project phasing because it uses 2014 as the date an initial phase of the prison expansion would be completed when the evidence demonstrates the initial phase will not be completed until 2018.  While the court acknowledged an accurate, stable and finite project description is critical, the court explained that evaluation of interim traffic impacts based on anticipated future construction necessarily cannot be predicted with certainty.  Furthermore, the court concluded even if delays in the start of construction resulted in discrepancies, it was nothing more than an “insubstantial and technical error.”

Irvine also alleged that the mitigation measures for the loss of agricultural land were inadequate. But, the court noted that the price of land in the County had far outgrown any feasible level for agriculture to remain profitable. The court noted that a land price of $60,000 per acre is approximately the break-even point for agricultural profitability, and land in the County was averaging $2 million per acre in 2012.

Finally, Irvine argued that the County’s allegedly deficient responses to their comments on the SEIR required a new EIR. Irvine had submitted 88 comments on SEIR, and challenged eight of the responses given by the County. The court noted that the CEQA Guidelines do not specifically require responses to comments, only responses to “significant environmental issues raised.” The court explained:

When a comment raises a “significant” environmental issue, there must be some genuine confrontation with the issue; it can’t be swept under the rug. Responses that leave big gaps in the analysis of environmental impact are obviously inadequate. By the same token comments that bring some new issue to the table need genuine confrontation. And comments that are only objections to the merits of the project itself may be addressed with cursory responses.

The court held that many of Irvine’s comments were “objections to the merits of the project” that the County adequately addressed with cursory responses. For the remaining comments, the court found the County’s responses to be adequate.  The court noted further that the case was “drowning in ‘paperwork’” and Irvine failed to demonstrate any prejudice resulting from the alleged inadequate responses.

Key Point

Age does not automatically render an EIR invalid.  Additionally, the appropriate judicial approach to evaluating an EIR is to look to its substance, not its nominal title.  Furthermore, CEQA Guidelines only require responses to “significant environmental issues raised.”  Comments that do nothing but object to the project’s merits may be addressed with cursory responses.

Appellate Court Reverses Injunction for La Jolla Hillside Revegetation Project

Tuesday, February 17th, 2015

In an unpublished opinion in CREED-21 v. City of San Diego, the California Fourth District Court of Appeal reversed in large part the trial court decision granting an injunction and other relief for violation of the California Environmental Quality Act (CEQA) relating to emergency repair and subsequent revegetation of a hillside and storm drain in La Jolla.

The City of San Diego (City) initially proposed a project that included replacing a damaged storm drain pipe and revegetating of the surrounding hillside. Before the environmental review was complete, the storm drain failed, causing significant erosion of the hillside. Due to public health and safety concerns and the need for immediate repairs, the City issued an emergency determination of environmental exemption.

The emergency repair of the storm drain did not include revegetation of the steep hillside. The City concluded the revegetation project would result in no significant environmental impacts and therefore qualified for the common sense exemption from CEQA. CREED filed a writ petition alleging the project was not exempt from CEQA, and the trial court granted an injunction stopping the revegetation project pending further environmental review.

The appellate court held that baseline conditions existed at the point in time after the emergency repair, not at the time the City initially proposed the storm drain repair project. The court reasoned the emergency repair was an “intervening and superseding event” and the existing environment under CEQA is comprised of the physical conditions that “will be affected by the proposed project.” Because the emergency repair project was exempt from CEQA, any future work on the site was required to consider the environment the project would actually affect, which in this case was the post-repair hillside.

After holding CREED only had standing to challenge the CEQA exemption for the revegetation project and not the storm drain repair project, the court held substantial evidence supported the City’s determination that the common sense CEQA exemption applied to the revegetation project. The revegetation project consisted of planting native plants on an otherwise bare hillside. As a result, there was no possibility the revegetation project would have a significant adverse effect on the environment. The court also held CREED did not meet its burden of showing the unusual circumstances exception applied to the CEQA exemption in this case.

In the final portions of the court’s opinion, the court held the City did not violate CREED’s due process right when responding to its California Public Records Act request. The court upheld the trial court’s denial of the City’s untimely and incomplete request for judicial notice of a City ordinance authorizing an appeal fee and required the City refund CREED’s $100 appeal fee.  The court also declined to impose sanctions on the City.