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CEQA Updates

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

Categorical Exemption Applies to Single Family Residence Project on Demolished Historical Resource Site

dateSeptember 18th, 2018 byby


Windemere Cottage as it existed in La Jolla, CA. (La Jolla Historical Society)

In Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, the Fourth District Court of Appeal held that the City of San Diego (City) violated CEQA where it refused to rely on a categorical exemption and instead required that an EIR be prepared for a single family residence project (Project) on a vacant lot. Invoking the unusual circumstances exception, the City rejected the categorical exemption based on adverse impacts to a historical resource.  Earlier, the project applicant/property owner had lawfully demolished the Victorian-era cottage on the Project site. The Court concluded it was improper for the City to conduct retroactive environmental review premised on the cottage’s existence, and established that the baseline was the Project site without the cottage.

In 2011, the Bottini family bought the Project lot, the cottage on the site, and acquired the rights to a pending historical resource nomination in front of the City’s Historical Resources Board (Board). The Bottinis withdrew the nomination and asked the Board to issue a determination on the cottage’s eligibility for a historic designation. The Board initially found that the cottage ineligible for listing because the cottage had undergone too many alterations to meet applicable criteria. Following a public hearing and receipt of public comments, the Board declined to grant the cottage historical status. Local groups appealed this decision but those appeals were dismissed as untimely.

Later that year, the Bottinis requested that the City’s Neighborhood Code Compliance Division determine that the cottage was a nuisance under the City municipal code. The Division determined the cottage was uninhabitable to the point that no one should be allowed to occupy it and found it was a public nuisance in accordance with criteria set out in the City’s municipal code. As such, it was required to be demolished. The Bottinis bulldozed the cottage leaving an empty lot in its place.

In 2012, the Bottinis applied for a coastal development permit (CDP) to build a single-family home. City environmental staff determined the Project was categorically exempt from CEQA review as a new residential construction on a vacant lot. The La Jolla Community Planning Association and La Jolla Historical Society appealed the decision. The City Council, despite being informed by staff and the City Attorney that the Bottinis had followed the municipal code, remanded the project to the Planning Department to evaluate the Project with a January 2010 baseline—before the Bottinis owned the property and the cottage was demolished. The City Council further concluded that the Project was not categorically exempt from environmental analysis because, with the new baseline, the Project would have a significant effect on the environment due to unusual circumstances and adverse changes to a historical resource. The Bottinis filed suit alleging, among other things, that the City violated CEQA in this determination.

The trial court held that the Project was the construction of a single family home, not the demolition of the cottage. The trial court further determined that the baseline should have been set at the point when the application was submitted and the lot was vacant. On that basis, the trial court found the City abused its discretion in concluding the Project was not categorically exempt from CEQA review. The City appealed this decision.

The Appellate Court first addressed baseline standards as they apply to CEQA; “the baseline ‘normally’ consists of the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental analysis is commenced.” Here, the already-demolished and non-existent cottage was not part of the existing conditions that would be affected by the Project. The Court also concluded that the Bottinis’ demolition of the cottage was permitted by the City’s municipal code.

The Court then held that a “project” for the purposes of CEQA is the “whole of an action” and may not be segmented to avoid review. With this in mind, the demolition permit was still a separate project because it served a separate purpose than the Project—to preserve the health and safety of the City by removing a nuisance. Neither the demolition permit nor the Project application referred to or relied on one another.

The Court highlighted that all parties conceded that the City’s issuance of the demolition permit is a ministerial action not subject to CEQA. CEQA specifically provides that it only applies to discretionary projects—projects over which the lead agency may influence the plans and environmental impacts. The demolition permit was therefore outside the scope of the City Council’s CEQA review.

Finally, the Court established that no exception to the categorical exemption applied here. With properly defined Project parameters and a properly considered Project baseline, it was clear that substantial evidence did not support the City Council’s conclusion. There was no historical resource to be affected and no unusual circumstances making the categorical exemption improper.

Considering the above, the Court affirmed the trial court’s holding.

Key Point:

A categorical exception is properly applied to a single family home construction project where a historical resource on the site has been demolished prior to project application.

 

 

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

dateSeptember 14th, 2018 byby


Highland Hills, San Bernardino and site of the Highland Hills Project (Jim Nunn)

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.

 

 

Public Trust Doctrine Applies to Groundwater, Sustainable Groundwater Management Act Exists Concurrently with Common Law and Did Not “Occupy the Field”

dateAugust 29th, 2018 byby


The Scott River appears to be dry sand in October of the 2014 California Drought.

In Environmental Law Foundation v. State Water Resources Control Board (2018) 26 Cal.App.5th 844, the Third District Court of Appeal held that the public trust doctrine applies to groundwater basin management where groundwater may effect “navigable waters” and the Sustainable Groundwater Management Act (SGMA), Water Code section 10720 et seq., did not change this.

The parties stipulated to the facts and issues for the Court to address. The Scott River is a tributary of the Klamath River and a navigable waterway located in the northwest California. The Scott River has historically been used for water recreation and serves as habitat for salmon species listed in the Endangered Species Act. Groundwater aquifers adjacent to the Scott River in Siskiyou County (County) are hydrologically connected to the surface flows of the Scott River. Local farmers drilled groundwater wells and, in some summers and early fall months, the River was dewatered due to the groundwater pumping.

Environmental groups petitioned the County and the State Water Resources Control Board (SWRCB) to take administrative action to limit pumping in the Scott River watershed based on the public trust doctrine. When both refused, Environmental Law Foundation (ELF) filed suit.

ELF alleged that groundwater resources, which are interconnected with the surface water flows of the Scott River, are subject to and protected by the State’s public trust doctrine. The SWRCB reconsidered and adopted ELF’s position before the litigation concluded. The County claimed that it had no duty to limit groundwater pumping or consider its environmental impacts. The County further claimed that SGMA, which created a statewide system of groundwater management, was a comprehensive statutory scheme that displaced common law principles like the public trust doctrine. The trial court held that the public trust doctrine applies to groundwater in this case and SGMA did not effect this. The County timely appealed.

The Appellate Court, with Presiding Justice Raye writing for a unanimous Court, relied heavily on National Audubon Society v. Superior Court (1983) 33 Cal.3d 419 and held that groundwater in the Scott River Valley is subject to the public trust doctrine. In National Audubon, the Supreme Court held that the public trust doctrine fully applies to the State’s complex water rights system. Specifically, the City of Los Angeles’ diversion of water from the non-navigable, freshwater streams flowing into Mono Lake, which were reducing the lake level and causing environmental damage to the lake ecosystem, could be limited by state water regulators under the public trust doctrine. The Court held that the Scott River facts were analogous to those in National Audubon as the pumping was similarly effecting the water level of the river. However, there was a heightened duty to protect the Scott River where it is a navigable waterway. “The analysis begins and ends with whether the challenged activity harms a navigable waterway and thereby violate the public trust.” Accordingly, the Court concluded that the public trust doctrine fully applies to extractions of groundwater that effect a navigable waterway.

The Court then held that, by enacting the SGMA, the Legislature did not intend to “occupy the field” of groundwater management and thereby abolish the public trust doctrine. Definitively, the Court held, “the enactment of SGMA does not, as the County maintains, occupy the field, replace or fulfill public trust duties, or scuttle decades of decisions upholding, defending, and expanding the public trust doctrine.”

The Court affirmed the trial court’s decision.

Key Point:                                                            

The State and its legal subdivisions must concurrently consider public trust principles and the Sustainable Groundwater Management Act in monitoring groundwater resources. Further, only where the Legislature intended to “occupy the field” will common law principles be superseded by Legislative acts.

 

 

California Supreme Court Allows Referendum Vote That Would Make Zoning Ordinance Inconsistent with General Plan for “Reasonable Time”

dateAugust 23rd, 2018 byby


The notable hillside El Toro raises behind the prominent community of Morgan Hill. (Phillip Stoffer/Paula Messina)

In City of Morgan Hill v. Bushey (2018) 5 Cal.5th 1068, the California Supreme Court held that a local referendum challenging a zoning ordinance amendment in the City of Morgan Hill (a general law city) was valid even where the referendum, if adopted by the local electorate, would be inconsistent with the general plan, so long as the city has the means to make the two consistent within a “reasonable amount” of time.

Seeking the construction of a hotel, the City of Morgan Hill, amended the city’s general plan to change a parcel designation from industrial use to commercial use in 2014; the zoning ordinance remained unchanged. Subsequently, in early 2015, the city approved rezoning the parcel from “ML-Light Industrial” to “CG-General Commercial.” Local hotel owners established the Morgan Hill Hotel Coalition (Coalition) to challenge the city’s approval of the rezone by referendum. The city declined to place the referendum on the ballot concluding that it was invalid because, if adopted by the local electorate, it would result in an inconsistency between the city’s current general plan and zoning ordinance. Coalition brought suit challenging the city’s decision not to place the referendum on the ballot.

The trial court, following the holding in deBottari v. City of Norco (1985) 171 Cal.App.3d 1204 (deBottari) that a referendum that “enacts” a zoning ordinance inconsistent with the general plan is invalid, held in favor of the city. Coalition filed an appeal.

The appellate court disagreed with the holding in deBottari and reversed the trial court, holding that referendums are not per se invalid if they contradict the general plan. Citing Government Code section 65860, subsection (c), the appellate court held, where a city could adopt a new designation within a “reasonable time,” a referendum may be valid. (City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34.) The California Supreme Court granted review.

The Court first emphasized the importance of the referendum power to alter local government policy, subject to preemption by the state legislature in only a few cases. At a local level, this power may only be preempted where there is a “definite indication” or “clear showing” that it was within the ambit of the Legislature’s purpose to restrict those rights. For instance, the Court elaborated, there is no reason to maintain the referendum power over ministerial or administrative tasks of local governments, they have no discretion. In addition, the Legislature maintains some power over local government authority to guide land use where it is an issue of “statewide concern,” for example the mandate to have a general plan.

Turning to the issue at hand, the City claimed that the referendum was invalid because it was “essentially an initiative causing the zoning ordinance and general plan to conflict.” The Court held that a referendum is not null simply because of an inconsistency with the general plan. Relying on Government Code section 65860, subdivision (a), the Court explained that such a referendum is not the final imposition where a local government “can use other means to bring consistency to the zoning ordinance and the general plan.” Here, the Court found that, if the referendum passed, the city was at liberty to change the zoning ordinance to another conforming use that was in line with the general plan. Essentially, the city was not without options.

The Court clarified that the referendum power should not be viewed as the power to repeal an ordinance or revive another, instead it provides the ability of the electorate to weigh in on a local government decision. Thus, the trial court was wrong to say the referendum would “enact” an ordinance. A referendum, rather than rewriting and establishing a specific ordinance, merely prevents a certain type of change from happening and directs the local government to take a different direction.

The Court concluded:

Given our duty to protect the referendum power, we conclude the Court of Appeal was correct to hold that a referendum can be used to challenge a zoning ordinance amendment that attempts to make the zoning ordinance consistent with an amended general plan. But it is not clear if other zoning designations were available for the property here, or whether the City has other means to comply with a successful referendum while making the zoning ordinance and the general plan consistent with one another. So we vacate the judgment of the Court of Appeal and remand the case to the Court of Appeal with directions to remand to the trial court to address these questions.

 

Key Point:

A referendum that results in a zoning ordinance inconsistent with the general plan may be valid so long as the local government may be able to bring them in to congruence with one another within a “reasonable time.”  In reaching its holding, the Court focused on Government Code section 65860, which applies to general law cities and certain charter cities (pursuant to subdivision (d) of the statute).  Therefore, the Court’s holding does not directly apply to charter cities that are not subject to Government Code section 65860.

 

 

Second District Prohibits Preparation of Subsequent EIR Where Project-level EIR Covered All “Reasonably Foreseeable Consequences” of Later Plan-level Project; Spot-Zoned Target Store Permissible Where in Public Interest

dateAugust 23rd, 2018 byby


The partially-completed Target Superstore sits dormant on the corner of Sunset Boulevard and Western Avenue in the Hollywood Neighborhood of Los Angeles. (Edwin Folven)

In Citizens Coalition Los Angeles v. City of Los Angeles, (2018) 26 Cal. App. 5th 561, the Second District Court of Appeal held that the City of Los Angeles’s (City) reliance on an addendum to a prior project-level EIR prepared for a Target store was legally sufficient environmental review for the approval of a later ordinance amending a specific plan applicable to the area containing the Target store. The City’s reliance on the Target EIR and addendum was permissible where the new ordinance did not present “reasonably foreseeable consequences” beyond those presented in the Target EIR.

The City completed an EIR for a Target store and then later passed an ordinance that amended its neighborhood-based specific plan to create a new subzone for large commercial development, and placed the half-built Target store into that new subzone. In passing the ordinance, the City relied on an addendum to the Target store EIR. Citizens Coalition Los Angeles (Citizens) filed suit.

Citizens alleged that the City’s actions violated CEQA by failing to conduct subsequent environmental review when creating the new subzone. The trial court held that the City violated CEQA for treating the action as a follow-on to its prior, initial approval of the Target store. The City and Real Party in Interest, Target Corporation, timely appealed.

The Appellate Court outlined that, where an EIR has been prepared, Public Resource Code section 21166 provides a supplemental EIR may only be required where new information comes to light or there is a substantial change to the project plans or project circumstances that requires a “major revision” to the EIR. Relying on Friends of College of San Mateo Gardens v. San Mateo County Community College District, (2016) 1 Cal. 5th 937, the Court found that only where one of the exceptions of Public Resources Code section 21166 applies may a new EIR be required. If an EIR “retains any relevance in light of the proposed changes,” then an addendum is proper, not a subsequent EIR.

The Court, relying on CEQA Guidelines section 15162 for direction, asked “[did] the existing CEQA document encapsulate all of the environmentally significant impacts of the project?” Further environmental review was only required if the later action was not a “reasonably foreseeable consequence” of the original project-level EIR. The Court awarded “greater deference to a public agency’s determination … than they [would for] whether initial CEQA review is required.”

The Court clarified that a “reasonably foreseeable consequence” is where “that consequence is, as a practical matter, sufficiently certain to happen.” The Court then outlined five such situations: (1) where an agency has already committed itself to undertake the consequence; (2) where a project presupposes the occurrence of consequence – where a consequence is a necessary and essential component of the project itself; (3) where a consequence is already under environmental review; (4) where an agency subjectively intends or anticipates the consequence; and (5) where an agency creates an incentive that is all but certain to result in a consequence.

Here, the Court found that substantial evidence supported the City’s finding that the sole reasonably foreseeable consequence of the ordinance was the construction of the Target store. Evidence in the administrative record showed that the City had not committed to any other large-scale commercial development on parcels meeting the ordinance criteria.  As such, Public Resources Code section 21166 did not merit subsequent or supplemental EIR as all of the reasonably foreseeable consequences of the ordinance had been addressed in the prior EIR and addendum. The Court further clarified that it did not matter that, though unconventional, the plan-level project relied on a project-level EIR.

Having settled the adequacy of the City’s environmental review, the Court then determined that the ordinance did not constitute impermissible spot zoning because extensive evidence in the record showed that the location of the store was in the public interest. Relying on Foothill Communities Coalition v. County of Orange, (2014) 222 Cal.App.4th 1302, the Court defined an island or spot zoning as where a parcel of land is rezoned to give it fewer or greater rights than parcels around it. In reviewing such claims, the Court’s focus is on if the City’s discretionary action is in the public interest. Only where an island is arbitrary, irrational, or unreasonable will it be impermissible. Here, record evidence showed demonstrated numerous benefits of the store being part of a shopping complex near pedestrian walkways and public transportation. Thus, the City’s action was in the public interest.

The Appellate Court reversed the trial court holding. In a separate holding, the Appellate Court awarded attorneys fees to Citizens’ co-petitioners, La Mirada Neighborhood Association. Read more about that in our blog post “Private Attorney General Doctrine Attorney’s Fees Proper For Party Successful in Invalidating Specific Plan Variances”

Note that this case was originally published by the Appellate Court and then depublished by the Supreme Court at the same time that the Supreme Court denied review.

Key Point:

Public Resources Code section 21166 prohibits an agency from preparing a subsequent EIR where a project-level EIR covered all “reasonably foreseeable consequences” of a later plan-level project.

A city’s action to spot zone is evaluated by the court for being in the public interest, with great deference given to the city’s determination.

 

 

Population Projections Proper Baseline for San Francisco General Plan Housing Element Update

dateAugust 22nd, 2018 byby


San Francisco residential areas are shown with the commercial district in the background. (Jeremy Brooks)

In San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, the First District Court of Appeal held the City of San Francisco (City) general plan housing element EIR satisfied CEQA in using 2025 population projections as a baseline for a growth-accommodating policy and adequately considered traffic impacts, water needs, and project alternatives.

In 2011, the City updated the housing element to the City’s general plan. The housing element EIR baseline was based on 2025 population projections. San Franciscans for Livable Neighborhoods (SFLN) filed suit alleging the EIR used an improper baseline and failed to adequately address various environmental impacts.

The trial court held that the City complied with CEQA in most respects. Specifically, the trial court agreed with Respondents that the general plan was not internally inconsistent, the City need not have recirculated the EIR after publication, and the EIR contained an adequate project description, sufficient impact analyses, and a reasonable range of project alternatives. However, the trial court found that the EIR was inadequate in its analysis of alternatives and findings regarding potentially feasible mitigation measures. Parties timely appealed.

Typically, CEQA requires an EIR baseline to employ present environmental conditions for the baseline analysis. However, the Appellate Court held that the use of an alternative baseline was permissible under CEQA so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach. An agency may adjust its baseline conditions at its own discretion and in appropriate circumstances in order to account for a major change in environmental conditions expected to occur before project implementation. For instance, where an amendment to a general plan takes a long view of city planning, the analysis of the amendment’s impacts may do so as well. Here, the City used a hypothetical baseline—population projections for 2025—in order to measure resulting traffic and water impacts related to the housing element. Recognizing “it would be absurd to ask the City to hypothesize the impacts of a long-term housing plan taking hold immediately,” the Court held the City acted within its discretion to define the baseline with 2025 population projections and forecast traffic and water impacts in 2025 rather than compare the existing conditions with and without the housing element.

The Court determined that the housing element sought to accommodate housing needs in response to a growing population, growth that would happen regardless of the housing element, therefore it was a growth-accommodating policy rather than a growth-inducing policy. Cases relied on by SFLN were unconvincing as they analyzed project approvals that would result in population growth in previously undeveloped areas.

With the baseline properly defined, the Court then held the EIR’s analysis of environmental impacts was sufficient. The EIR reasonably concluded that the housing element would not have a substantial impact on visual resources or neighborhood character as it encouraged residential uses in areas that were already allotted or existing and did not change any zoning.

Then focusing on the EIR traffic impact analysis, the Court held the City was not required to study in-the-pipeline projects with potential traffic impacts as they are subject to their own CEQA review and EIR process. Nonetheless, the City did so at sixty intersections and properly relied on 2025 population projections in their analysis for the above reasons.

The Court then held the EIR’s water supply impact analysis was sufficient where it acknowledged the “degree of uncertainty involved, discuss[ed] the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and disclos[ed] the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

Finally, the Court held the EIR’s analysis of alternatives complied with CEQA where it identified and provided “extensive information and analysis regarding the alternatives” for at least three alternatives. SFLN failed to meet their burden to show the range of alternatives are “manifestly unreasonable or deprive[] the decision-makers and the public of information they need to evaluate the project and its impacts.” Where the EIR’s alternatives allowed decision makers a meaningful context to weigh the project’s objective against its environmental impacts, it complied with CEQA.

The Court affirmed the trial court’s holding on these issues.

Key Point:

An alternative project baseline for CEQA purposes may be proper so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach in utilizing it.

 

 

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

dateAugust 10th, 2018 byby


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

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

Before this controversy arose, the City established a residential conservation zone to protect the hills, canyons, and unique natural views of the area. Within the residential zone, planned residential developments (PRD) projects meeting certain criteria were permitted to deviate from conventional subdivisions requirements. A PRD applicant could also achieve a “density bonus” if the map and conditions clustered residences in the less steep portions of the site, appointed a conservation group to maintain open space areas, and achieved at least six of eleven “superior design elements” that promote environmentally-conscious design.

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

FRH brought suit challenging the City’s approval. FRH alleged land use violations because the plan failed to properly cluster the residences and failed to seek a variance for each lot. The trial court denied the petition in its entirety. FRH timely appealed.

The Appellate Court held in favor of the City, finding there were no land use violations and no substantial evidence supporting a fair argument of significant environmental impacts. Such evidence, the Court elaborated, must be founded in facts in the administrative record, not speculation or theory. Here, FRH’s claim that the homes would be unlawfully placed in high grade portions of each lot was merely speculative.  The tract map approved by the City showed division of the site into lots but not where the residence would be on each lot. FRH’s claim that the Lofgrens would not build each residence in accordance with the municipal code was therefore speculative, absent any additional evidence.

FRH claimed the Lofgrens would not comply with the additional conditions required to achieve the “density bonus.” The Court found this claim also to be speculative where there was no evidence the Lofgrens would not comply with the conditions. Indeed, the Court pointed out that to hold differently would absurdly necessitate any project with future conditions be required to complete an EIR. In short, the potential to violate the municipal code is not grounds to mandate the preparation of an EIR.

The Court went on to rule that FRH was incorrect to draw similarities between this case and Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903 as the administrative record in that case had “ample” evidence the project violated the city’s land use provisions. Here, the administrative record lacked any similar evidence. As a result, FRH’s claims were speculative and thus rejected.

The Court then turned to FRH’s claim that the City abused its discretion and violated its own municipal code. The Lofgren’s engineer submitted numerous reports throughout the approval process to support the City’s decision to approve the Project. Applying a deferential standard of review, the City was entitled to rely on evidence submitted by the Lofgrens and the Court found substantial evidence supported the City’s determination.

The Court found that there was also no abuse of discretion where the City allowed the Lofgrens to choose which of the eleven design elements to incorporate into the plans. Per the municipal code, this is to be determined by the applicant upon issuance of building permits and the Lofgrens need not have chosen the elements yet because “it is difficult, if not impossible, to know which building or landscaping elements are feasible until later phases of the project like grading or construction.” Despite this, the Lofgrens had already demonstrated in the plans which designs they were to utilize, a fact FRH failed to notice.

The Court affirmed the trial court holding; the negative declaration was sufficient.

Key Point:

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

 

 

Endangered Species Act Proposed Rules Lighten Required Considerations for Threatened Species, Narrows Agency Responsibilities for Critical Habitats

dateJuly 20th, 2018 byby


Island Foxes, a species no longer listed as endangered, in the Channel Islands National Park in California. (U.S. Fish and Wildlife Service)

On Thursday, July 19, 2018 the U.S. Fish and Wildlife Service (USDFW) and the National Oceanic Atmospheric Administration (NOAA) released proposed revisions to the federal Endangered Species Act (ESA). These proposals amend procedures for species protection by changing requisite considerations and protections afforded “threatened” species, limiting the time scope for such considerations, and streamlining agency consultation.

The Endangered Species Act prohibits federal agencies from authorizing, funding, or carrying out any action that would jeopardize a critical habitat that an endangered or threatened species relies on. Specifically, it is prohibited that any project “take,” or harm, any plants, animals or invertebrates that are listed as threatened or protected. Originally passed in 1973, the Act has been significantly amended in 1978, 1982, and 1988 to meet modern demands.

The proposed rules would extinguish the “blanket rule” under section 4(d) of the ESA, which provides the same level of consideration and protection to threatened species as it does to endangered species. Threatened species are those that are likely to become endangered but are not currently endangered, at risk of extinction. Currently, protections that shield threatened species mirror those for endangered species unless otherwise specified. The proposed rules would permit USDFW to craft specific plans for each threatened species determination that are “necessary and advisable for the conservation of the species,” according to the USDFW press release. While NOAA currently employs a similar practice, it may make it more difficult to shield species.

The proposed rules would shorten the requisite timeline for species endangerment considerations. Currently, “threatened” means “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The vagueness of “foreseeable future” has been useful for environmental advocates to promote consideration of how climate change may affect the species. The proposed rules would change this section to mean only so far as can be “reasonably determined” that both the future threats and the species’ responses to those threats are foreseeable. This means that climate change considerations may not be required.

In the same vein, the proposed rules would repeal the prohibition on considering economic factors when deciding whether or not a species should be protected and the procedure to delist a species will now be the same standard as decisions to list the species.

Section 4 also deals with the procedures for listing, recovery and designating of critical habitats, or areas essential to support the conservation of a species. The proposed rules would revise the procedure for designating critical habitat by incorporating a non-exhaustive list of circumstances where they may find that designation of a critical habitat for a particular species would not be prudent. The agency will first evaluate areas currently occupied by the species before considering unoccupied areas. Additionally, the proposed changes would clarify when they may determine unoccupied areas are essential or not to the conservation of the species.

While none of these changes will be retroactive, they are part of the Trump Administration’s refocusing of federal environmental laws. Last month the administration began the process of overhauling the National Environmental Policy Act (NEPA). The Environmental Protection Agency, meanwhile, has used industry guidance documents and policy memos to dial back its oversight of air pollution under the Clean Air Act.

Deputy Secretary of the Interior Department described the ESA rule proposals as streamlining and improving the regulatory process. Indeed, per the USDFW press release, the changes are meant to narrow consultation requirements and allow federal agencies to simplify their actions with shorter ESA consideration. Opponents are concerned the changes will vacate protections for threatened species and weaken USDFW and NOAA’s abilities to address climate change.

The public has 60 days to issue comments on the proposed rules before the Interior Department and the Department of Commerce finalizes them.

 

 

Fact-Based Residents’ Comments Substantial Evidence Meriting CEQA Review, Special Commission’s Findings Substantial Evidence Meriting CEQA Review

dateJuly 16th, 2018 byby


The Niles Historic District’s distinctive style is clear on the building facades of the District’s downtown area. (Craig Miyamoto)

In Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129, the First District Court of Appeal held that the Niles Historical Architectural Review Board’s (HARB) factual findings and members’ collective opinions about the compatibility of a project with the Niles Historic Overlay District rose to the level of substantial evidence. Further, fact-based comments in the record by residents, city officials and staff, and professional consultants, notwithstanding a traffic impact study to the contrary, amounted to substantial evidence supporting a fair argument of a significant traffic impact.

Niles Historic Overlay District (HOD) is an officially-designated historic district within the City of Fremont (City) subject to guidelines and regulations to maintain the distinctive look and character of the area. Projects in the HOD area are initially proposed to HARB for review in light of HOD guidelines. HARB then recommends approval or denial of the project to the City Council.

In 2014, Real Parties in Interest Doug Rich and Valley Oak Partners (Valley Oak) submitted an application to build 80-90 residential townhouses on a vacant six-acre lot (Project). HARB recommended that the Project be denied because it “would be incompatible in terms of siting, massing, materials, textures, and colors with existing development in the Niles [HOD].” Amidst critical comments, the City approved the Project with a mitigated negative declaration (MND). Protect Niles, a community action group, filed suit alleging the City improperly relied on the MND.

The trial court found substantial evidence in the record supported a fair argument of significant impacts on community aesthetics and traffic and set aside the Project approval until an EIR was completed. Valley Oak timely appealed.

The Appellate Court first established that, despite Protect Niles’ claims to the contrary, the appeal was not moot. Valley Oak had already submitted a revised Project application and the City had published a draft EIR therefore “voluntarily complied” with CEQA. However, this was not tantamount to Valley Oak withdrawing the original Project or abandoning its claims.

The Court reiterated extensive precedent that CEQA must be interpreted to afford the fullest possible protection to the environment. Further, the Court held that an EIR is required where there is substantial evidence in the record, contradicted or not, supporting a fair argument that a project may have a significant effect.

There were numerous comments within the record that the Project did not fit the aesthetic of the neighborhood. Per the CEQA Guidelines, an aesthetic impact exists where a project has the potential to substantially degrade the existing visual character or quality of the site and its surroundings. Aesthetic impacts are context-specific. Here the record contained opinions of the HARB commissioners and Niles residents that the Project’s height, density, and architectural style were inconsistent with the Niles HOD. These comments “differed sharply as to the Project’s aesthetic compatibility with the historic district.” The comments were not conjecture or speculative but grounded in observations of inconsistencies with the prevailing building heights and architectural styles of the HOD. Thus, the Court found there was substantial evidence of a potential adverse aesthetic impact on the Niles HOD. The City’s reliance on a MND was improper.

The Court also criticized the traffic impact analysis and determined that substantial evidence of a fair argument required preparation of an EIR. The City had conducted a professional traffic study concluding the impacts would fall below the City’s threshold of significance. Despite this, the Court found the study was shortsighted for presuming that drivers follow the speed limit and criticized the City for failing to implement the study’s mitigation measure recommending a left-turn pocket lane. The record contained critical comments by residents, City officials and staff, and professional consultants based on their personal experiences driving in the area. The Court found, notwithstanding the traffic study, these fact-based comments constituted substantial evidence supporting a fair argument that the Project will have significant adverse traffic impacts.

The Court affirmed, directing the City to prepare an EIR if it were to go through with the original Project design.

Key Point:

Personal observations on nontechnical issues can constitute substantial evidence of a fair argument of a significant environmental impact. Specifically, residents’ observations of environmental conditions where they live and commute may constitute substantial evidence even if they contradict the conclusions of a professional study.

 

 

Second District Court of Appeal Finds County Well Permit Approval is “Ministerial,” Exempt from CEQA Review Absent Showing of Discretion, SGMA Absent Agency Law Incorporation

dateJune 28th, 2018 byby


An agricultural groundwater well is inspected in California (Kelly Grow/CADFW)

In California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal. App. 5th 666, the Second District Court of Appeal held that the approval of groundwater well permits was a ministerial act and not subject to CEQA environmental review because no discretion was exercised when such permits were issued.

County of San Luis Obispo (County) staff, after finding that four groundwater well permit applications were complete and complied with County and state standards, approved each well permit without conducting CEQA review. Specifically, staff alleged the wells met the standards outlined in the San Luis Obispo County Code Chapter 8.40, incorporating the state well standards set by the Department of Water Resources.

California Water Impact Network (Network) filed suit claiming that the County improperly failed to conduct CEQA review and, in doing so, “bypassed public disclosure of potentially significant impacts to groundwater resources.” The trial court agreed with the County that no CEQA review was necessary for ministerial actions and granted the County’s demurrer.

The Appellate Court agreed with the trial court and the County that no CEQA review was required where such permit approvals were exempt as “ministerial projects” under Public Resources Code section 21080(b)(1). The Court described where a ministerial project does and does not exist and rejected Petitioners’ argument that the recently enacted Sustainable Groundwater Management Act altered the County Code.

The Court clarified that a ministerial act is where “little or no personal judgement” is used by the public official; the law is applied to the facts and no individualized or special consideration is required. The Court noted that well permits are a type of building permit which are “presumed to be [a] ministerial [act].” In contrast, a discretionary act involves judgement or deliberation. The Court reviewed the legislative intent, stated that agencies conducting ministerial acts have no ability to influence the project, and concluded that such acts are excluded from CEQA review.

Citing rules on judicial statutory interpretation, the Court rejected appellant’s argument that the County had some discretionary powers under Chapter 8.40 to impose additional conditions on well permits. The Chapter was clear: a well permit “shall be issued” so long as the listed conditions are met. The Court affirmed the trial court’s decision to uphold the permits.

Key Point:

The issuance of groundwater well permits are ministerial duties exempt from CEQA review. Therein, SGMA considerations need not be addressed in agency decisions unless the guiding agency law specifically incorporates it.

 

 

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