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Supreme Court Holds Inadequate Effort to Explain Nature and Magnitude of Significant Environmental Effect Subject to De Novo Review, Substitution Clause and Sufficient Guidance Make Mitigation Measures Not Vague

Friday, December 28th, 2018

In Sierra Club v. County of Fresno (2018) 2018 Cal.LEXIS 9831, the California Supreme Court held that, where the description of an environmental impact “lacks analysis or omits the magnitude of the [significant] impact,” the reviewing court applies the de novo standard of review.  The substantial evidence standard of review is reserved for wholly factual questions; where a question presented is both legal and factual, the issue shall be reviewed de novo. The Court also found that a substitution clause in a mitigation measure did not constitute deferred mitigation, a mitigation measure that only partially reduced a significant impact did not violate CEQA, and mitigation measures involving HVAC installation and tree selection were adequately enforceable.

The proposed project includes a specific plan and specific plan update covering 942-acres that together contemplate the construction of about 2,500 single and multifamily homes, commercial and recreation areas, and dedicated open space (Project) into a master-planned “pedestrian friendly” community near the unincorporated area of Friant in northern Fresno County (County). The County adopted Project alternative 3 (Northeast Development Configuration, the “environmentally superior alternative”), certified the EIR, and approved the Project.  At the same time, the County adopted a mitigation monitoring program, which noted compliance would be enforced through subsequent conditions on future discretionary actions, including use permits and tentative subdivision maps.

The Sierra Club, Revive San Joaquin, and League of Women Voters of Fresno filed suit alleging that the project approval violated CEQA. The trial court denied the petition for writ of mandate and noted that “it may not exercise its independent judgement on the evidence, but must determine only whether the act or decision is supported by substantial evidence.” Sierra Club timely appealed the decision pertinent to the air quality impacts and certain mitigation measures.

In May 2014, the Fifth District Court of Appeal held that the EIR was inadequate because it failed to include an analysis that “correlated the [P]roject’s emissions of air pollutants to its impact on human health,” only provided air quality impact mitigation measures that were “vague, unenforceable, and lack[ed] specific performance criteria,” and failed to support the claim that the mitigation measures would “substantially” reduce the Project’s significant air quality impacts. The Appellate Court reversed the trial court judgement on those grounds only and directed the preparation of a revised EIR. Real Party, Friant Ranch LP, appealed the Appellate Court decision.

The Supreme Court granted review on the issues of the air quality impact findings and conclusions in the EIR as well as the adequacy of certain mitigation measures.

The Court held that an EIR must (1) include “sufficient detail” to enable readers to understand and to “consider meaningfully” the issues that the proposed project raises, and, (2) make a “reasonable effort to substantively connect” the Project’s significant air quality impacts to likely health consequences.

Further, the Court held a lead agency has not impermissibly deferred mitigation measures where it leaves open the possibility of employing measures consistent with evolving technology nor are such measures impermissibly vague where it can be demonstrated in “good faith” that the measures will be at least partially effective.

The Court first recognized the familiar distinction between the standard of judicial review applicable to claims that the agency failed to proceed in the manner CEQA provides as compared to claims that the agency reached factual conclusions unsupported by substantial evidence: “[w]hile we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [ ] we accord greater deference to the agency’s substantive factual conclusions.” The Court then recognized that “the question whether an agency has followed proper procedures is not always so clear” especially when the issue is “whether the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.’”

Relying heavily on Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights I), the Court found that the standard of review for the adequacy of an EIR’s discussion of certain impacts is subject to de novo review where “a description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of the impact is not a substantial evidence question.”

The Court provided several examples and prior decisions addressing procedural issues subject to the de novo standard of review:

  • Did the agency provide sufficient notice and opportunity to comment on a draft EIR? (Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482, 491-493; Pub. Resources Code, § 21092; Guidelines, § 15087.)
  • Did the agency omit the required discussion of alternatives or consider a reasonable range of alternatives? (Guidelines, § 15126.6; Laurel Heights I.)
  • Did the agency fail to reasonably describe the nature and magnitude of a project’s significant environmental effect?  (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371; Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 514–515.)
  • Did the agency omit material necessary to informed decision making (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712; East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 174)
  • Did the agency respond to comments? (Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1021–1023.)

The Court contrasted these with factual issues like the decision to use a particular methodology and reject another.

Similar to the facts in Laurel Heights I, the Court found that, while the EIR’s conclusion as to the impact may have been correct, the analysis and discussion of the significant impact was deficient as an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The core purpose of an EIR is to inform the public and decision-making body, regardless of the conclusion drawn. In certifying the EIR, the County failed to disclose the analytic route that it took in making its decision relating to the Project’s significant air quality impact. This was a CEQA procedural issue as the Court determined it resulted in noncompliance with CEQA’s information disclosure provisions. Thus, the Court held, de novo review was proper.  

Applying the de novo standard of review to the EIR’s analysis of the Project’s significant air quality impacts, the Court found that the EIR’s discussion failed to correlate health impacts with the Project’s air emissions as required by CEQA Guidelines section 15126.2. It was insufficient that the EIR provided a “general discussion of adverse health effects associated with certain Project-related pollutants,” recognized “Fresno County suffers from the ‘most severe’ ozone problems,” and acknowledged that a more detailed analysis on health impacts was “not possible at this early planning phase.” Critically, the EIR failed to indicate the anticipated ozone emission levels as a result of the Project. The analysis “[was] not meaningful …because the reader ha[d] no idea how much ozone [would] be produced.”  The Court held that the EIR’s discussion of the Project’s significant air quality impacts was deficient; it must give a sense of the “nature and magnitude of the health and safety problems…resulting from the Project as required by the CEQA Guidelines … [or] explain why it was not feasible to provide an analysis.”

The Court found that briefs from the County, the Real Party, and amici curiae clarifying the connection between air emissions information in the EIR and health impacts information in the EIR were “irrelevant.” Relying on Vineyard, the Court held that the question is not whether the Project’s impacts can be clearly explained, but whether they were at the time that the Project was approved. The County’s plan to require Health Risk Assessments as part of future development projects approved within the specific plan area was also irrelevant where the issue was the sufficiency of the EIR’s discussion of the Project’s significant air quality impacts, not the sufficiency of future studies.

Turning to the Project’s mitigation measures, the Court found that the EIR was incorrect to claim a mitigation measure would “substantially reduce air quality impacts” without factual support.

The Court next held that a mitigation measure is not deficient where it leaves open the opportunity to add or substitute other measures when they become technologically available. The Court established that this kind of substitution clause “should be encouraged….and [was] not an impermissible deferral.”

The Court also held that Project mitigation measures relating to HVAC systems and tree-planting were not impermissibly vague. The first identified the anticipated cost for a HVAC catalyst that was considered feasible and detailed the HVAC brand or equivalent that could be installed. The latter required tree varieties be planted that would shade 25% within 20 years of planting, which “provide[d] sufficient guidance for selecting appropriate shade trees.” Contrary to the Appellate Court’s holding, it was of no issue that the burden of enforcement of mitigation measures was on the County as the EIR and Specific Plan was not impermissibly vague on the means of enforcement.

Finally, the Court held that a lead agency does not violate CEQA for approving a project though the environmental impacts are not reduced to less than significant levels. CEQA is satisfied where a project’s mitigation measures only partially reduced significant impacts “as long as the public is able to identify any adverse health impacts clearly, and the EIR’s discussion of those impacts includes relevant specifics about the environmental changes attributable to the project.” In such a situation, unmitigated effects must be outweighed by the project’s benefits—whether economic, social, technological, or other, as documented in a statement of overriding considerations. 

Key Point:

“[A] sufficient discussion of significant impacts requires not merely a determination of whether an impact is significant, but some effort to explain the nature and magnitude of the impact.” The determination whether an EIR achieves its informational purpose by providing such details is subject to de novo review.


Thursday, December 29th, 2016

In The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency 2016 Cal. App. LEXIS ___ (originally filed as an unpublished decision and later certified for publication), the First Appellate District upheld the trial court and rejected Petitioners’ argument that further CEQA review was required before the San Francisco Municipal Transportation Agency (Muni) approved construction of a 900-foot segment of light rail track needed to complete a partially constructed loop on the T-Line.

In 1998, an EIR was prepared to analyze the impacts of the Third Street Light Rail Project. The EIR divided the project into two phases: the Initial Operating Segment, and a New Central Subway. The EIR analyzed the Initial Operating Segment at the project-level and the New Central Subway at the program-level.  The bulk of the Initial Operating Segment was completed by 2003, however, the loop connection at issue in this litigation was deferred until demand warranted its completion.  In 2012, Muni pursued federal grant funding to complete the loop and, as part of that process, it considered whether further CEQA review was required before the loop project was approved. Muni and the San Francisco Planning Department (Department) agreed that the 1998 EIR adequately analyzed impacts of the loop and that no further CEQA review was required.  However, further NEPA review was conducted and a “Finding of No Significant Impact” was issued by the Federal Transit Administration. Once again, in 2014, when Muni was prepared to move forward with the loop project, Muni and the Department considered whether any changed circumstances required further CEQA review.  They again concluded no further review was required pursuant to CEQA Guidelines sections 15162-15164. Thereafter, Muni approved construction of the missing 900-foot link in the T-Line loop.

Petitioners filed suit alleging that the loop project was not covered by the 1998 EIR and that, even if it was, Muni was required to conduct supplemental review pursuant to Public Resources Code section 21166. After holding that both of Petitioners’ challenges are subject to the substantial evidence, and not fair argument, standard of review, the Court quickly rejected Petitioners’ arguments.

Citing extensively to the 1998 EIR, the Court held that substantial evidence in the record demonstrates that the loop project was part of the project described in the 1998 EIR. The Court also held that the loop was part of the Initial Operating Segment as defined in the 1998 EIR and not the New Central Subway. Thus, the loop was analyzed at the project-level in the 1998 EIR.  The Court also noted that, to the extent Petitioners desired to challenge the adequacy of the analysis in the 1998 EIR, that challenge is untimely and should have been advanced when the 1998 EIR was adopted.

Next, the Court held that Muni’s and the Department’s 2012 and 2014 determinations, and supporting evidence, that no further review was required pursuant to Public Resources Code section 21166 constituted substantial evidence supporting that conclusion. Furthermore, the Court stated that the 2013 NEPA analysis constituted additional substantial evidence supporting Muni’s decision. The Court was also unpersuaded by Petitioners’ counterarguments noting that “mere delay in completing construction [does not] constitute[] a substantial change in a project under section 21166” and “changes in a neighborhood do not constitute a change in circumstances that requires a new EIR under section 21166, unless the changes require ‘major revisions’ to an existing EIR.”  The neighborhood changes at issue did not require ‘major revisions’ because the 1998 EIR expressly contemplated and analyzed cumulative impacts associated with potential future changes to the neighborhood.

Finally, the Court rejected Petitioners’ claim that Muni failed to comply with required procedures in deciding no further CEQA review was required. The Court stated that “CEQA does not set forth any particular procedure to support an agency’s decision that a new EIR is not required.” Specifically, “CEQA does not require an initial study or public hearing” before an agency concludes no further CEQA review is required pursuant to Public Resources Code section 21166.

Key Point:

After a lead agency prepares an EIR for a project, the substantial evidence standard of review is applicable both the lead agency’s decision whether (1) future approvals are within the scope of the previously approved project, and (2) additional CEQA review is required pursuant to Public Resources Code section 21166.


Monday, August 22nd, 2016

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

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

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

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

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

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


Thursday, July 14th, 2016

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

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

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

For a complete summary of the case, please see our previous blog post at:


Wednesday, November 4th, 2015

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

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

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

Key Point:

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

Supreme Court Issues Ruling Clarifying “Unusual Circumstances” Exception

Tuesday, March 3rd, 2015

In Berkeley Hillside Preservation v. City of Berkeley, (March 2, 2015, S201116) __ Cal.4th __ (Berkeley Hillside), in a Majority Opinion joined by five Justices the California Supreme Court provided long awaited guidance on the standards applicable to both lead agencies and courts tasked with interpreting and applying the “unusual circumstances” exception to categorical exemptions set forth in the CEQA Guidelines.

In Berkeley Hillside, a property owner filed an application to build a large home (6,478 sq.ft. house with a 3,394 sq.ft. garage) on a lot with a steep grade in a heavily wooded area in the Berkeley hills (Project).  The City of Berkeley (City) approved the Project and concluded it was exempt from CEQA review based on two separate categorical exemptions: (1) the Class 3 exemption, which exempts small facilities or structures including “[o]ne single-family residence, or a second dwelling unit in a residential zone,” and “up to three single-family residences” “[i]n urbanized areas” (CEQA Guidelines, § 15303, subd. (a)), and (2) the Class 32 exemption, which exemptions in-fill development meeting certain criteria. (CEQA Guidelines, § 15332.)

Berkeley Hillside Preservation et al. (Petitioners) challenged the City’s approval arguing that the City was prohibited from relying on the Class 3 and 32 categorical exemptions.  Petitioners argued the unusual circumstances exception prohibits a lead agency from relying on a categorical exemption where there is a fair argument that a project may have a significant effect on the environment.  Petitioners asserted they established a fair argument that, due to the Project’s unusual size, location, nature and scope, it could cause significant environmental impacts.

At trial, the court found that while the Project may result in a significant environmental impact, the Project did not present any unusual circumstances and, therefore, the exception did not apply.  On appeal, the court reversed the trial court, holding evidence demonstrating a project may have a significant effect on the environment is itself an unusual circumstance that renders use of a categorical exemption improper.

In Berkeley Hillsides, the Majority Opinion rejected the Court of Appeal’s interpretation of the “unusual circumstances” exception and set forth a new approach to interpreting and applying the exception.  Specifically, the court explained:

[T]o establish the unusual circumstances exception, it is not enough for a challenger merely to provide substantial evidence that the project may have a significant effect on the environment, because that is the inquiry CEQA requires absent an exemption. (§ 21151.) Such a showing is inadequate to overcome the Secretary‘s determination that the typical effects of a project within an exempt class are not significant for CEQA purposes. On the other hand, evidence that the project will have a significant effect does tend to prove that some circumstance of the project is unusual. An agency presented with such evidence must determine, based on the entire record before it — including contrary evidence regarding significant environmental effects — whether there is an unusual circumstance that justifies removing the project from the exempt class.


The determination as to whether there are ‘unusual circumstances’ (Guidelines, § 15300.2, subd. (c)) is reviewed under… [the] substantial evidence prong.  However, an agency’s finding as to whether unusual circumstances give rise to ‘a reasonable possibility that the activity will have a significant effect on the environment (Guidelines, § 15300.2, subd. (c)) is reviewed to determine whether the agency, in applying the fair argument standard, ‘proceeded in [the] manner required by law.’

In a Concurring Opinion, Justice Liu joined by Justice Werdegar agreed with the Majority that the Court of Appeal’s decision must be reversed and remanded for further proceedings.  However, the Concurring Opinion rejects the test set forth in the Majority Opinion above.  Instead, the Concurring Opinion concludes, similar to the Court of Appeal, that “[w]hen there is a reasonable possibility that a project otherwise covered by a categorical exemption will have a significant environmental effect, it necessarily follows that the project presents unusual circumstances.”

Notwithstanding the test clearly articulated in the Majority Opinion, the Concurring Opinion concludes that “[e]ven under the cumbersome rules set forth today, it is hard to imagine that any court, upon finding a reasonable possibility of significant effects under the fair argument standard, will ever be compelled to find no unusual circumstances and thereby uphold the applicability of a categorical exemption.”  Because “after today’s decision, as before, courts reviewing agency determinations under section 15300.2(c) will be guided by that guideline‘s basic purpose, which echoes the statutory mandate: to ensure that projects with a reasonable possibility of significant environmental effects are not exempted from CEQA review.”  Therefore, the Concurring Opinion questions whether the new test established in the Majority Opinion will lead to meaningful differences in the outcome of future CEQA litigation.

Notwithstanding the conclusion in the Concurring Opinion, the rules established in the Majority Opinion set forth a clear test for applying the unusual circumstances exception.  The test provides substantially more deference to the lead agency than the test proffered by the Court of Appeal or in the Concurring Opinion.  Specifically, as the Majority Opinion explains:

While evidence of a significant effect may be offered to prove unusual circumstances, circumstances do not become unusual merely because a fair argument can be made that they might have a significant effect. Evidence that a project may have a significant effect is not alone enough to remove it from a class consisting of similar projects that the Secretary has found ‘do not have a significant effect on the environment. [Citations.]  Therefore, an agency must weigh the evidence of environmental effects along with all the other evidence relevant to the unusual circumstances determination, and make a finding of fact.   Judicial review of such determinations is limited to ascertaining whether they are ‘supported by substantial evidence.’‖(§ 21168.5.)…. On the other hand, when unusual circumstances are established, ….. [a]n agency must evaluate potential environmental effects under the fair argument standard, and judicial review is limited to determining whether the agency applied the standard ‘in [the] manner required by law.’‖ (§ 21168.5.)

The Concurring Opinion maintains that even under the Majority’s test, courts should still find projects with a “reasonable possibility of significant environmental effects are not exempted from CEQA review.” This suggests the Concurring Opinion takes the position that it would be unreasonable for a lead agency to conclude a project with a “reasonable possibility of significant environmental effects” is not unusual.   But, under the Majority’s test, the traditional substantial evidence standard of review applies to a lead agency’s determination whether a project is unusual.  As such:

[a]gencies must weigh the evidence and determine ‘which way the scales tip,’‖while courts conducting [traditional] substantial evidence . . . review generally do not.” [Citation.]  Instead, reviewing courts, after resolving all evidentiary conflicts in the agency‘s favor and indulging in all legitimate and reasonable inferences to uphold the agency‘s finding, must affirm that finding if there is any substantial evidence, contradicted or uncontradicted, to support it. [Citations.]

Therefore, notwithstanding the Concurring Opinion’s effort to diminish the impact of the Majority’s test, the new test provides deference to a lead agency’s decision based on all the facts before it, including but not limited to evidence of potential environmental impacts, that a project is not unusual.  Furthermore, “[i]n determining whether the environmental effects of a proposed project are unusual or typical, local agencies have discretion to consider conditions in the vicinity of the proposed project.”  Only if a lead agency concludes unusual circumstances are present is the fair argument standard implicated.  In that event, “it is appropriate for agencies to apply the fair argument standard in determining whether ‘there is a reasonable possibility of a significant effect on the environment due to unusual circumstances.’ (Guidelines, § 15300.2, subd. (c).)”

While both the Majority and Concurring Opinions disagree on the proper test applicable to the unusual circumstances exception, both agree remand is required because the trial court and Court of Appeal improperly considered evidence submitted by the Petitioners relating to Project elements not approved.  Specifically, Petitioners argued the Project required side-hill fill with the potential to cause a significant impact despite the fact that the Project as proposed did not contemplate side-hill fill.  As explained in the Majority Opinion, “a finding of environmental impacts must be based on the proposed project as actually approved and may not be based on unapproved activities that opponents assert will be necessary because the project as approved, cannot be built.”   A lead agency and court need not speculate on impacts caused by unapproved activities because, as stated by the City, if a project as proposed cannot be built “and the applicants want to build a different project, then ‘they must return to the City for approval of a different project and the City could issue a stop-work notice to prevent unauthorized construction.’”

Finally, the Majority Opinion explains that, on remand, the Court of Appeal may only direct the City to prepare an EIR if it determines the categorical exemptions are inapplicable and that the City would lack discretion to apply another exemption or to issue a negative declaration, mitigated or otherwise.

Key Point

Under the “unusual circumstances” exception to CEQA’s categorical exemptions, a court must first determine whether substantial evidence supports a lead agency’s conclusion that an unusual circumstance is not present.  In making its determination, the lead agency should consider evidence relating to environmental impacts as well as other evidence relating to the typicality of the proposed project. The lead agency also has discretion to consider the conditions in the immediate vicinity of the project.  If the lead agency concludes based on substantial evidence that unusual circumstances exist, then the “unusual circumstances” exception prohibits use of a categorical exemption where there is a fair argument that the project may result in a significant environmental impact.

Court Holds County’s Abandonment of Rights-of-Way is Not a Project Under CEQA

Wednesday, January 28th, 2015

In an unpublished decision, Delucchi v. County of Colusa, 2015 Cal. App. Unpub. LEXIS 231, the California Third District Court of Appeal denied a petition for a writ of mandate challenging Colusa County’s abandonment of purported public rights-of-way and held the abandonment did not constitute a project under the California Environmental Quality Act (CEQA).

The rights-of-way at issue provided access to petitioner’s sixty-acre, landlocked private duck hunting club. Petitioner initially entered into private easements with neighbors to cross the neighbors’ land and access the parcel. When disputes arose with the neighbors, petitioner sued the neighbors and the County, seeking to protect access to his property purportedly as public rights-of-way. Petitioner based his claim on a 1910 subdivision map, which recorded miles of public rights-of-way dedicated by the then-owner and arguably accepted by the County as providing access to the mapped area.

In response to the lawsuit, the County adopted a resolution abandoning the purported public rights-of-way and stating the abandonment was exempt from CEQA.

Petitioner first contended the abandonment was void on its face because the Count did not expressly find the public rights-of-way could not be used for non-motorized transportation. The court rejected this argument explaining the County was only required to consider the evidence presented to it and petitioner failed to satisfy his burden of presenting evidence at the administrative level that the rights-of-way could be used for non-motorized transportation.

To abandon a public right-of-way, the County must find: (1) the right-of-way is unnecessary for present and prospective public use; and (2) the abandonment is in the public interest. Petitioner contended neither element was satisfied. However, the court disagreed and found substantial evidence supported the County’s findings. The court reasoned the rights-of-way were unnecessary because they did not lead to any public land, many ran through irrigation ditches and did not connect to county-maintained roads, and landowners relied of private easements for property access. The court also held abandonment was in the public interest because it avoided litigation costs and promoted the public safety.

The court also rejected petitioner’s contention that the abandonment constituted a project under CEQA. An action is a project only if “the activity may cause a direct, or reasonably foreseeable indirect, physical change in the environment.” The court held there was no direct change because the abandonment did not involve any construction or maintenance activity and any benefit to the environment came from maintaining the status quo. Further, there was no indirect change because petitioner’s speculative claims of landowner’s future conduct did not constitute a “necessary step in a chain of events which would culminate in physical impact on the environment.”

Finally, the court stated that even if the abandonment was a project under CEQA, the common sense exception applied because there was no possibility that maintaining the status quo would have a significant effect on the environment.

City Violated its Municipal Code by Delegating CEQA Approval to its Preservation Commission

Thursday, September 11th, 2014

In Citizens for the Restoration of L Street v. City of Fresno, 2014 Cal. App. LEXIS 786,the Fifth Appellate District affirmed a judgment granting a writ of mandate challenging the City of Fresno’s (City) approval of an infill development project. The court upheld the trial court’s ruling that the City violated the California Environmental Quality Act (CEQA) by improperly delegating its approval authority to the City’s Historical Preservation Commission (Commission).

Developers sought to build 28 two-story townhouses on a vacant lot in downtown Fresno. The project site included two homes built in the early 20th century, which petitioners contended were historical resources under CEQA.

After the City conducted an initial study and filed a “Notice of Intent to Adopt a Mitigated Negative Declaration,” the Commission held a public hearing and determined that the buildings were not historical resources. The Commission also approved demolition permits for the buildings and adopted a motion approving the mitigated negative declaration. The City then unanimously adopted the findings of the Commission.

The court first affirmed the trial court’s finding that the Commission was not authorized to act as the City’s decisionmaking body by approving the mitigated negative declaration. The court explained that CEQA Guidelines section 21151, subdivision (c) allows the lead agency to delegate the authority to approve the project and the relevant CEQA review document. However, the Commission’s authority was limited by the City’s Municipal Code, which only provided the Commission the authority to “participate in environmental review procedures” and “provide review and comments on permit actions.” The court held these clauses suggested a secondary role and were too vague to grant the authority to conduct an environmental review and approve a final CEQA document.

Second, the court found the City’s subsequent project approval and adoption of the Commission’s findings did not cure the defects in the proceedings before the Commission. The City did not provide the proper notice nor show that it used its own independent judgment and analysis to determine that the project would not have a significant effect on the environment.  

Finally, the court denied petitioner’s appeal challenging the application of the substantial evidence test to the determination that no historical resources were impacted by the project. Citing Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, the court affirmed that the substantial evidence test, not the fair argument standard, applies to a lead agency’s discretionary determination of whether a building or district is a historical resource for purposes of CEQA.


CEQA allows lead agencies to delegate their authority to approve environmental review documents such as the Mitigated Negative Declaration, subject to an appeal to the elected decisionmaking body. However, this authority must be expressly authorized and will not be implied. Additionally, the court reiterated that a lead agency’s determination of whether a resource is historic under CEQA is governed by the substantial evidence standard of review. 

Mining the Administrative Record for Answers: Appellate Court Reverses Trial Court for Ignoring Substantial Evidence and Making Improper De Novo Determinations on Quarry Project

Thursday, June 12th, 2014

In an unpublished decision, Citizens Advocating for Roblar Rural Community v. County of Sonoma, 2014 Cal. App. Unpub. LEXIS 3393, the Court of Appeal for the First District reversed the trial court’s decision granting a petition for writ of mandate that challenged County certification of a final environmental impact report (EIR) and issuance of necessary land use permits for an aggregate quarry.

In December 2010, the County of Sonoma certified an EIR for development of a 65-acre quarry pit for mining and processing of approximately 570,000 cubic yards of aggregate material annually.  Petitioner filed a petition for a writ of mandate challenging the county’s quarry project approvals in January 2011. The trial court granted the petition in part, finding that failure to study potential water quality contamination from a neighboring landfill resulted in factual conclusions unsupported by substantial evidence.  The trial court also found that mitigation measures were inadequate or constituted a prohibited deferral of mitigation, and that the EIR’s analysis of the impact of widening an access road on an adjacent creek was inadequate.

On appeal, the court reversed, finding that the trial court improperly ignored substantial evidence supporting the county’s actions and made improper de novo determinations.  First, with respect to petitioner’s argument that the EIR did not adequately study potential groundwater quality impacts, the EIR acknowledged the risk that contaminants from the landfill could seep into the quarry site as a result of mining operations.  Petitioner contended that the county should have conducted testing to determine the risk posed to regional water quality.  Instead, the county relied on groundwater monitoring well data and subsurface exploration to support its finding that the risk to groundwater quality was less than significant.  The court of appeal found substantial evidence supported the county’s conclusion, which must be upheld even if another conclusion could have been reached.

Next, the court addressed allegations that the EIR failed to properly analyze traffic mitigation.  The County concluded that roadway improvements on Roblar Road , which were required to mitigate traffic impacts, would have less than significant secondary impacts on the adjacent Americano Creek. The court found that the secondary environmental impacts of offsite mitigation measures, including widening of access roadways, were catalogued and discussed in significant detail in the EIR. Petitioner argued that the road widening was an integral aspect of the project as a whole requiring complete analysis. The court rejected this argument since this would eliminate any distinction between primary and secondary environmental impacts by making all proposed mitigation a “project component.”

Finally, petitioner contended that the EIR was inadequate because mitigation measures to address impacts to protected species did not describe, analyze, or mention the site of a required offsite mitigation preserve, precluding the county from determining if the mitigation was even feasible. The court found that the county did not defer mitigation because it properly identified a specific means of mitigating for the loss of habitat through the creation of habitat or preservation of existing habitat at a ratio consistent with state and federal law. The county could rely on future study to identify the particular details of mitigation measure implementation, including habitat location.

Key Point:

This case highlights the deferential treatment that courts give to lead agencies in reviewing EIR adequacy; despite the potential to arrive to alternate conclusions, the lead agency’s determination will be upheld as long as it is supported by substantial evidence. In addition, this case upholds reliance on later approvals from responsible agencies to mitigate for loss of habitat where the EIR species the impact and requires replacement of lost habitat in a manner consistent with state and federal law.

Third District Court of Appeal Holds “Fair Argument” Standard of Review Applies to Determine Whether there is a Reasonable Possibility of Significant Effect to Trigger the Unusual Circumstances Exception to a CEQA Categorical Exemption

Friday, October 19th, 2012

In a showing of solidarity with the First District Court of Appeal in its recent ruling in the Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656 case (currently pending review by the Supreme Court), the Third District Court of Appeal slapped the hand of the El Dorado Irrigation District (EID) for increasing water supplies to the Shingle Springs Rancheria (Rancheria) area for development of the Red Hawk Casino without first conducting CEQA review.  On October 4, 2012, the court in Voices for Rural Living v. El Dorado Irrigation District (2012) Cal.App. LEXIS 1046, upheld the trial court’s decision to void EID’s approval of an agreement to provide the Shingle Springs Band of Miwok Indians (Tribe) significantly more water than it had previously provided under the terms of an annexation agreement because EID erred in concluding the agreement was exempt from CEQA.  The appellate court upheld the trial court’s finding that unusual circumstances triggered an exception to the small projects categorical exemption under CEQA, which EID had relied upon.

In the early 1980’s, EID provided water to the Tribe for residents living on the Rancheria property at out-of-district rates.  In 1987, EID and the Tribe entered into an annexation agreement which brought the Tribe’s property into EID’s service area.  The agreement was subject to approval by the El Dorado County Local Agency Formation Commission (LAFCO), which approved the agreement with some conditions.  Specifically, LAFCO authorized EID to supply water to the Tribe’s property for residential uses to serve no more than a community of 40 residential lots.  Many years later, following the Tribe’s decision to build Red Hawk Casino, EID entered into an agreement with the Tribe to provide more water than authorized under the annexation agreement.

EID determined that the water agreement was exempt from CEQA under the categorical exemption for small construction projects because the only necessary physical project improvements would be relocating an existing three-inch water meter and installing a short section of pipeline linking the meter to an existing water main.  EID made this determination even though it would be providing significantly more water to the Tribe than it previously had.  EID also determined that the agreement was not subject to the LAFCO conditions of approval limiting the amount of water it could provide to the Tribe because those annexation conditions were unconstitutional, and on that basis, approved the agreement. Petitioner, Voices for Rural Living, filed a petition for writ of mandate to vacate EID’s approval of the agreement, arguing the project was not exempt under CEQA’s small projects categorical exemption and that EID failed to comply with the LAFCO conditions of approval.

The appellate court used a two prong test to determine if the project triggered the unusual circumstances exception to the categorical exemptions. First, the court asked whether the project “presents unusual circumstances” and second “whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances.”  The court acknowledged a split of authority regarding the correct standard of review to apply to the second question of the test.  In Banker’s Hill, et al. v. City of San Diego (1996) 139 Cal.App.4th 249, the court applied the fair argument standard.  However, in Association for Protection etc. Values v. City of Ukiah (1991) 2Cal.App.4th 720, the court used the substantial evidence standard. After weighing the evidence, the court was persuaded that a fair argument standard applies.  Applying that standard, the court determined that the unusual circumstance of a substantial change in demand for municipal services was evidence on which a fair argument could be made that the project may have a significant effect on the environment.  The project’s scope – providing an amount equal to 216 additional residences – “obviously is a fact that distinguishes [it] from the type of projects contemplated by the exemption.”

The appellate court, however, overturned the trial court’s ruling that directed EID to prepare an environmental impact report (EIR), finding that this ruling was in excess of the trial court’s authority. The appellate court held that the trial court, having found that the project was not exempt from CEQA, should have instead simply ordered EID to comply with CEQA; “[h]ow an agency complies with CEQA is a matter first left to the agency’s discretion.”  This holding is in contrast to the Berkeley Hillside decision, which ordered the property owner to prepare an EIR.

As to Petitioner’s argument regarding violation of the LAFCO conditions to the annexation agreement, the court held that “EID had no authority to adjudicate the conditions’ constitutionality or disregard their application to the proposed agreement.”  The court noted that the Legislature has vested LAFCOs “with the sole and exclusive authority to approve annexations of territory into special districts. This authority includes the power to impose conditions of approval on an annexation.”  California law makes these conditions enforceable and a public agency “has no discretion to disregard them.”

Key Point:

Until the Supreme Court issues its ruling in the Berkeley Hillside case, applicants and lead agencies should proceed with caution when relying on a categorical exemption.  Under Berkeley Hillside and this most recent ruling from the Third District, proceeding under a categorical exemption would be subject to the less deferential “fair argument” standard of review.  Under that standard, if a project challenger can present evidence to support a “fair argument” that the project may result in significant environmental impacts, then the “unusual circumstances” exception applies and use of a CEQA exemption is improper.

Written By: Tina Thomas and Michele Tong
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.