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CEQA Updates

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

Public Interest Standing Not Automatically Precluded by Commercial Interest, Private Attorney General Doctrine Fee Award Upheld

dateNovember 7th, 2018 byby


No billboards are visible from one of the City of Pomona’s busiest highway interchanges. (AARoads)

In Citizens for Amending Proposition L. v. City of Pomona, (2018) Cal.App.LEXIS 1014, the Second District Court of Appeal held an attorneys’ fees award, pursuant to Code of Civil Procedure section 1021.5, was appropriate where a residents’ group’s action to enforce a voter-approved proposition prohibiting additional billboards in the City of Pomona (City) had standing and conferred an important public interest of significant benefit, was necessary, and was financially burdensome for the group.

In May 1993, the City entered into an agreement with Regency Outdoor Advertising, Inc. (Regency) to erect and manage billboards along a City highway. In November 1993, City voters passed a ballot initiative, Proposition L, which prohibited the construction of additional billboards and grandfathered in already-existing agreements. In June 2014, the City’s agreement with Regency expired by its terms while the City was negotiating to extend it. In July 2014, the City and Regency entered into an agreement purporting to amend the 1992 agreement, including construction of digital billboards. Citizens for Amending Proposition L and Vernon Price (Citizens) filed suit against the City alleging that the July agreement was passed in violation of Proposition L.

The trial court held that the July agreement was in fact a new agreement enacted in violation of Proposition L. Because the City did not adopt the agreement until after the original agreement had expired, it was a new agreement subject to the rules, regulations, and official policies in effect at the time of its execution, July 2014.

Citizens moved for attorney’s fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general doctrine. They asked for $189,990, representing 389.8 hours of work at a rate of $500 per hour. They also requested that a multiplier of three be employed in the calculation to account for the complexity of the case, their complete victory, and other factors. Thus, the total fee request was for $569,700. At its discretion, the trial court found that Citizens met the statutory criteria for Section 1021.5 and granted the motion. However, the number of hours billed and the billing rate were found to be excessive. Accordingly, the trial court reduced the award to 250.67 hours at a rate of $300 per hour. The trial court further found that there was no basis for enhancing the fees with a multiplier. As such, the trial court awarded $75,200.40 to Citizens. The City timely appealed the award.

On appeal, the Court reviewed the City’s claim that Citizens lacked standing to bring the mandamus action. The City claimed that Citizens lacked a beneficial interest in the litigation, equivalent to the Federal “injury in fact” test. This must be “direct and substantial.” The Court found no evidence that Citizens experienced any actual, imminent, or particularized invasion of a legally protected interest as a result of the City’s adoption of the ordinance.

The City then claimed that the public interest exception to the beneficial interest requirement did not apply to Citizens’ mandamus action. Public interest standing is established where “the object of the mandamus is to procure the enforcement of a public duty.” Reviewing the trial court’s decision for an abuse of discretion, the Court found that Citizens indeed had public interest standing where “the duty is sharp and the public need [for enforcement] is weighty.” Citizens specifically alleged that the City violated its own municipal law, a claim with a “sharp” public interest. Further, the record showed that, absent Citizens’ intervention in the negotiations, billboards might have been constructed without broad public awareness of any potential issue, thus demonstrating a “weighty public need.”

The Court specifically dismissed the City’s claim that Citizens’ personal interest in the suit precluded standing, as it did for the plaintiffs in Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223. First, there was no evidence that Vernon Price or Citizens for Amending Proposition L advanced a commercial interest in bringing the suit. Vernon Price was an individual living within the City and the group was an unincorporated association of City residents; neither situation demonstrated an individualized interest. Even so, following the holding in SJJC Aviation Services, LLC v. City of San Jose (2017) 12 Cal.App.5th 1043, 1058, the Court held that “a personal objective is one factor the court may consider when weighing the propriety of public interest.” The Court warned that to rule otherwise would be impractical as “truly neutral parties are unlikely to bring citizen suits.”

The Court separately held Citizens for Amending Proposition L had organizational standing. Following the holding in San Francisco Apartment Association v. City and County of San Francisco (2016) 3 Cal.App.5th 463, the Court held that the group had demonstrated “(1) its members otherwise would have standing to sue in their own right; (2) the interests it [sought] to protect [were] pertinent to the association’s purpose; and (3) neither the claim asserted nor the relief requested require[d] participation of the association’s individual members.” Vernon Price, a member of the group, had demonstrated his personal standing, the group’s purpose was to enforce Proposition L, as it did here, and compliance with Proposition L did not require the participation of other group members. Both Vernon Price and Citizens for Amending Proposition L had adequate standing.

The Court then turned to the merits of the appeal and established that Section 1021.5 allows for an award of attorneys’ fees at the discretion of the court where an action has resulted in “the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement …are such to make the award appropriate, and (c) such fees should not, in the interest of justice, be paid out of the recovery, if any.”

Considering this, the moving party must establish “(1) he or she is a ‘successful party,’ (2) the action has resulted in the enforcement of an important right affecting the public interest, (3) the action has conferred a significant benefit on the public or a large class of persons, and (4) an attorney fees award is appropriate in light of the necessity and financial burden of private enforcement.”

Reviewing the trial court decision for an abuse of discretion, and noting the broad deference conferred on the trail court, the Court affirmed the award.

The City contended that Citizens did not vindicate an important public interest, as required under 1021.5. The City argued that the trial court failed to analyze the benefit of the case “from a practical perspective” and did not evaluate the “significance of the benefit to the public.” The Court held that Citizens vindicated an important public right in ensuring that Proposition L was properly enforced, a benefit to the entire City. As such, Citizens conferred an important public interest of significant benefit.

Next, the City contended that the necessity and financial burden requirement was not met, that private enforcement was not necessary, and that the financial burden of private enforcement did not warrant subsidizing the successful party. The Court found that there was “ample” evidence in the record that Citizens’ goal of enforcing Proposition L was not self-serving, but benefitted all City residents. Further, there was no evidence in the record demonstrating that either Vernon Price or Citizens for Amending Proposition L would personally benefit from the July agreement being invalidated. Relying on Arnold v. California Exposition and State Fair (2004) 125 Cal.App.4th 498, a financial interest must be “specific, concrete, and significant and based on objective evidence.” Here, the Court found none. Even if one or both Respondents were competitors of Regency, the Court found there was no financial benefit in seeking the enforcement of the Proposition L prohibition.

The Court affirmed the trial court holding.

Key Point:

Public interest standing is not precluded by a petitioner’s commercial interest in a case where a sharp public interest and weighty public need outweigh an individual interest.

An award of attorney’s fees under the private attorney general doctrine is appropriate where a party conferred an important public interest of significant benefit, the action was necessary, and to bring the action was financially burdensome for the group.

 

 

EIR Addendum to Previously Certified EIR Proper Where No New Significant Environmental Impacts Identified

dateOctober 24th, 2018 byby


An artist’s rendering of the Plaza de Panama, Balboa Park, San Diego, as it would appear at the conclusion of the project. (KCM Group)

In Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, the Fourth District Court of Appeal held CEQA Guidelines section 15164 (Section 15164) validly establishes an addendum process that is consistent with the CEQA statute. Specifically, Section 15164 filled in gaps in Public Resources Code section 21166 and accurately implemented CEQA.

In 2012, the City of San Diego (City) approved the Plaza de Panama Project in Balboa Park (Project) and its accompanying EIR in order to restore pedestrian and park uses to the area. Save Our Heritage Organisation (SOHO) appealed the City’s actions related to this Project multiple times on many grounds, winning some and losing on others.

In 2016, the City adopted an addendum to the project EIR addressing several project modifications. These included: (1) bridge modifications to meet CalTrans requirements; (2) adding and redesigning storm water basins; (3) adding parking lot ventilation; (4) making energy efficiency upgrades; (5) increasing the elevation of the excavated soils landfill; and (6) refining construction design. The most significant aspect was that the modified project would add 93 more parking spaces than in the original Project and EIR.

The City reviewed the modified Project’s potential environmental impacts to land use, historical resources, aesthetics, transportation, air quality, biological resources, energy, geologic conditions, greenhouse gas (GHG) emissions, health and safety, and hazardous materials. The City concluded that there were: (1) no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects; (2) no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the EIR; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the EIR would substantially reduce significant effects. As such, the City approved the modifications with no additional EIR and on the basis of an addendum. SOHO filed suit. The trial court denied the petition. SOHO timely appealed.

Reviewing the agency’s action for abuse of discretion, the Court of Appeal affirmed the trial court’s holding. SOHO’s chief claim was that the addendum process, codified in Section 15164, was an invalid extension of the CEQA statute. Section 15164 provides, in pertinent part, “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guideline] 15162 calling for preparation of a subsequent EIR have occurred. …(c) An addendum need not be circulated for public review but can be included in or attached to the final EIR…. (d) The decision-making body shall consider the addendum with the final EIR… prior to making a decision on the project. (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guideline] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record.  The explanation must be supported by substantial evidence.”  The Resources Agency’s discussion of Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs… without recirculating the EIR” and that “[Section 15164] provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.”

The Court held that, under established case law, Section 15164, like any agency action, carries a presumption of validity and the challenging party has the burden of demonstrating its invalidity. Presented with the challenge, the Court is to consider “whether…[the regulation] is (1) consistent with and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.” This analysis depends on whether the regulation is a quasi-legislative regulation or an interpretive regulation. The Court pointed out that no Supreme Court case has definitively said that the CEQA Guidelines are quasi-legislative or interpretive and declined to say so itself. Instead, the Court held it need not decide the issue in order to resolve the case because SOHO had not met their burden to establish Section 15164 was invalid.

While the Court agreed that CEQA does not expressly authorize the addendum process described in Section 15164, the Court stated that the process “fills a gap” in the CEQA process for projects with a previously certified EIR. Further, “CEQA authorizes the Resources Agency to fill such gaps in the statutory scheme, so long as it does so in a manner consistent with the statute.” The Court held Section 15164 is consistent with and furthers the objectives of CEQA section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review. “The addendum process reasonably implements section 21166’s objective of balancing the consideration of environmental consequences in public decision making with interests of finality and efficiency.” After EIR certification, “the interests of finality are favored over the policy of encouraging public comment.” As such, the EIR addendum regulation was in line with the spirit of CEQA and a natural extension of the statutory scheme.

To this point, the Court noted that the Section 15164 was first promulgated in 1983 and the Legislature has never modified CEQA to eliminate it, strongly indicating consistency with legislative intent.

Lastly, the Court easily dismissed SOHO’s argument that additional findings were required for the City to approve the addendum. Such findings were already made in adopting the original EIR and “an addendum is only proper where no new significant environmental impacts are discovered.” Here, where no new significant environmental impacts were discovered, an addendum was proper and findings were not necessary.

The Court affirmed the trial court judgement finding the EIR addendum valid.

Key Point:

An addendum to a previously certified EIR is proper where there no new significant environmental impacts are discovered.

 

 

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

dateOctober 23rd, 2018 byby


California Oak trees, like those to be removed by PG&E in the project at issue, are pictured in the City of Lafayette, California. (Lisa White/East Bay Times)

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

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

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

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

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

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

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

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

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

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

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

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

Key Point:

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

 

 

City Charter Must Explicitly Limit Municipal Power to Approve General Plan Amendment of Single Parcel Initiated with Project Proposal, Los Angeles Auto Mall Conversion Project Valid

dateOctober 1st, 2018 byby


Plans for the Martin Expo Town Center in West Los Angeles show residential, retail, and office space. (Martin Town Expo Center)

In Westsiders Opposed to Overdevelopment v. City of Los Angeles (2018) 27 Cal.App.5th 1079, the Second District Court of Appeal held that a charter city may approve a general plan amendment for a single project site, even if initially requested by a project applicant, so long as the city’s charter did not “clearly and explicitly” limit or restrict such an action.

In 2013, Real Party in Interest Philena Property Management, LLC (Philena) filed for a land use permit with the City of Los Angeles (City), a charter city, to convert an auto mall into residential, retail, and office space close to a new light rail station and other transit (Project). The Project required preparation of an EIR, a development agreement between Philena and the City, several conditional use permits, and, of chief concern here, an amendment to the City’s general plan to change the project site land use designation. The City reviewed the proposal, granted the project requirements, and approved the Project in September 2016. Westsiders Opposed to Overdevelopment (Westsiders), an association of neighborhood residents, filed suit.

Westsiders alleged that the City exceeded its authority in the Los Angeles City Charter section 555 subdivisions (a) and (b) (Sections 555(a) and 555(b)) by approving a general plan amendment for a single parcel and allowing Philena to effectively initiate the amendment. The trial court held that the City did not exceed its authority or abuse its discretion in amending the general plan. Further, the trial court denied Westsiders’ request for judicial notice of early drafts and proposed amendments to Section 555 where interpreting the statute did not require review of its legislative history. Westsiders timely appealed.

The Appellate Court first addressed whether it is proper to seek a writ of mandate or administrative mandamus for relief in this situation. Westsiders contended that Code of Civil Procedure section 1094.5 applied and the award of an administrative mandamus is appropriate here “to review the final adjudicative action of an administrative body.” The Court found that this claim misplaced as a general plan amendment is a legislative action and Government Code section 65301.5 explicitly says that a legislative action is to be reviewed for a writ of mandate, pursuant to Code of Civil Procedure section 1085.

The Court then laid out that such legislative acts are presumed valid per San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498. Further, the Court must be “[m]indful of the rule that [it] cannot construe a charter to restrict municipal power without a clear mandate in the charter itself.” Such a restraint requires “clear and explicit limitations or restrictions” in the charter itself. This standard is in addition to principles of statutory construction which require the Court to, in the first instance, rely on the plain language of the statute. If clear, the Court need not go any further in its inquiry. Ultimately, the City’s interpretation of its own charter is “entitled to great weight and respect unless shown to be clearly erroneous and must be upheld if it has a reasonable basis.”

With this in mind, the Court turned to Westsiders’ arguments that the City exceeded its authority in approving the general plan amendment. Section 555(a) permits general plan amendments for, as pertinent here, “geographic areas, provided that the part or area involved has significant social, economic, or physical identity.” Westsiders claimed that a single parcel of land could not qualify as a geographic area. Relying on the dictionary definitions for each word, the Court determined that “geographic area” means any physical region. The parcel was indeed a physical region that satisfied this definition despite its singularity and small size. Second, Westsiders claimed that the parcel did not have “significant social, economic, or physical identity” as it was a car lot in a busy area with no distinctive features. The Court held that the City had no “clear and explicit” categorical limits on what it could and could not determine to be significant. Consequentially, the Court held in favor of not restricting municipal power.

Westsiders alleged that the City was required to make explicit findings that the project site qualified as a geographic area of significant economic or physical identity. The Court, after pointing out that Westsiders did not cite any authority for this claim, held that the City was not required to make explicit findings for a legislative act per San Francisco Tomorrow. The City did find that the project site had a significant physical and economic identity near a transit-oriented area and was one of the largest underutilized parcels in the area. These findings, though unnecessary, supported the City’s decision to issue a general plan amendment for the site.

The Court then addressed Westsiders’ argument that the City violated Section 555(b) by allowing Philena to initiate a general plan amendment with a project proposal. The Section provides “[t]he Council, the City Planning Commission, or the Director of the Planning Commission may propose amendments to the General Plan.” The Court found that, while the Charter outlined certain permissions for initiating an amendment, it did not provide any “clear and explicit limitation” to do so. The Court held that, absent such a limitation, the City did not violate Section 555(b) in responding to Philena’s request for the amendment.

Finally, the Court addressed Westsiders’ contention that the City’s action constituted impermissible spot zoning where there was no “substantial public need.” Since Westsiders did not raise this claim at the trial level, they waived their right to appeal the issue.

The Court affirmed the trial court’s denial of the petition.

Key Point:

Claims against a charter city’s legislative action must be supported by “clear and explicit” limitations in the plain language of the city’s charter.

 

 

Thomas Law Group Annual Retreat

dateOctober 1st, 2018 byby


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

 

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

 

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

 

 

Governor Brown Signs Pro-Density, Pro-Housing Bills to Close Legislative Session

dateSeptember 30th, 2018 byby


Housing shortages in the State have inspired the Legislature to readjust the regulatory framework. (Joakim Lloyd Raboff)

In the last evening of the last legislative session of his governorship, California Governor Jerry Brown signed two bills directed at increasing housing availability in the State. He signed each September 30, 2018 with no instructive message.

Senate Bill 828, proposed by San Francisco Democratic Senator Scott Wiener, requires local governments to report more data to the State in order to determine local housing needs pursuant to the Regional Housing Need Allocation (RHNA) law, including percentages of people spending more than 30 percent of their income on housing. The bill sets a minimum target vacancy rate of 5 percent as “healthy.” Areas that fail to meet this goal will need to zone for more housing.

Localities will also be required to zone for housing based on both projected needs and current shortages. Previously, the law only required local governments to zone for projected needs and, therefore, allowed shortages already prevalent in the community to be overlooked. As originally proposed, the bill required localities to zone for 200 percent of projected housing needs in order to boost housing production statewide. However, this figure was reduced to 100 percent in committee review and floor debates.

Developers around the State could see more dense residential zoning in cities that previously had few development opportunities. Opponents of the bill argued that the bill transfers too much planning power away from local governments and into the hands of the State.

Assembly Bill 1771, proposed by Santa Monica Democratic Assemblymember Richard Bloom, amends RHNA requirements by focusing more on job-housing balance metrics. RHNA previously required local governments to plan for an increase of the overall housing supply in a way that includes a mix of housing types and affordability across the region “in an equitable manner.” AB 1771 added that this must be done to “avoid displacement,” increase access of “high opportunity” jobs for low-income residents, and “affirmatively further fair housing.”

Proponents of the bill see it as forcing affluent municipalities to build their fair share of affordable housing. Specifically, the bill represents an effort to force wealthy cities like Beverly Hills and those surrounding San Francisco to plan for additional affordable housing so that existing low-income communities are not solely saddled with the burden of producing more housing.

Both bills support the Legislature’s recent push to use housing supply laws to make it harder for cities to say no to projects that would help alleviate the housing crisis in California.

*****

Other housing bills that the governor signed include the following

SB 1227 – Provides density bonuses for developments to be occupied by college students

AB 829 — Prohibits any letter of acknowledge requirement for state-assisted projects

AB 2238—Requires LAFCOs to consider regional housing need, fire hazard and other emergencies in project proposals

AB 2372—Allows city or county to award floor area ratio bonus by ordinance, upon developer request

AB 2753 –Requires city or county provide project applicant determination of density and parking bonus

AB 2797— Provides density, parking, and other bonuses be permitted in a manner consistent with the Coastal Act

AB 2923 –BART required to adopt transit oriented development (TOD) standards for each station

 

 

GHG Guidance Document Containing Threshold of Significance Required to Undergo CEQA Review

dateSeptember 28th, 2018 byby


The San Diego skyline is shown on a clear day.

In Golden Door Properties, LLC v. County of San Diego (2018) Cal.App.5th 892, the Fourth District Court of Appeal held San Diego County’s (County) adoption of a guidance document for the evaluation of greenhouse gas (GHG) emissions established a threshold of significance for determining impacts. The County violated CEQA where it adopted the guidance document without first conducting CEQA review, sidestepped required public review and violated the Court’s prior writ.

The County adopted a Climate Action Plan (CAP) in 2012 and related guidelines in 2013. Following successful petitions from the Sierra Club, the County was directed by both the trial court and appellate court to set aside the documents for failing to make required findings and failing to adequately detail deadlines and enforceable measures, amongst other things. In 2016, the County adopted the “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (Guidance Document). Golden Door Properties, LLC and Sierra Club brought suit challenging the adoption.

The trial court consolidated the two suits, granted a writ of mandate and injunction against the County, and entered judgment prohibiting the County from using the Guidance Document. The trial court concluded (1) the claims were ripe; (2) the Guidance Document creates a threshold of significance under CEQA; (3) the Guidance Document violates the County’s general plan mitigation measures; and (4) the Guidance Document is not supported by substantial evidence. The County timely appealed.

The Appellate Court first addressed the ripeness of this action. Ripeness is “primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” However, the Court continued, the issues here are ripe where the Guidance Document provided a generally applicable threshold of significance and there is sufficient public interest in the matter, citing California Building Industry Assn. v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. The ultimate analysis of ripeness, the Court quoted, is “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

The Court then turned to the CEQA arguments. The Court concluded that the Guidance Document is a threshold of significance. CEQA Guidelines section 15064.7 defines a threshold of significance as “an identifiable, quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” The Court found that the Guidance Document provided a “recognized and recommended” efficiency metric for determining significance of GHG emissions, and therefore was a threshold of significance for the purposes of CEQA.

The Court then held that a threshold of significance for general use (as opposed to a project-specific threshold) is subject to CEQA public adoption guidelines, per Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059. The County conceded that the Guidance Document was not formally adopted through a public review process. Thus, the County violated the CEQA requirement that a threshold of significance be adopted “by ordinance, resolution, rule or regulation, and [be] developed through a public review process,” as mandated by CEQA Guidelines section 15064.7.

Further, the Court held, the County failed to provide substantial evidence to support its recommendations in the Guidance Document. Specifically, the County “reli[ed] on statewide data without evidence supporting its relationships to countywide [GHG] reductions.” This approach was legally flawed under the principles set forth in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204. The County failed to address why using the statewide data that did not specifically address the County was appropriate for the County and also failed to account for variations in different types of development.

Finally, the Court held that the County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of CEQA. The County argued that development of a CAP and thresholds of significance were proceeding in compliance with the schedule established in the writ issued after the Court’s prior decision in Sierra Club, and the Guidance Document therefore did not violate that decision.  However, the Court concluded that its earlier decision treated the CAP and thresholds of significance as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds. Considering this, the Court held the County’s 2016 adoption of the Guidance Document was improper piecemealing.

For these reasons, the Court affirmed the trial court’s holding.

Key Point:

A document that provides a threshold of significance is required to undergo CEQA review.

 

 

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.

 

 

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

dateSeptember 1st, 2018 byby


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

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

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

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

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

We congratulate these Thomas Law Group attorneys on their accomplishments!

 

 

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