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CEQA Updates

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

Posts Tagged ‘CEQA history’


Court of Appeal Views Appellants’ Failure to Present and Discredit Evidence favorable to the Agency as a Concession that Substantial Evidence Does In Fact Support Agency

Tuesday, July 17th, 2012

In an unpublished decision, El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984, Greenaction for Health and Environmental Justice and El Pueblo Para El Aire y Agua Limpio (collectively appellants) sued the Kings County Board of Supervisors (County) alleging that the County’s approval of a project to expand an existing hazardous waste disposal facility violated the California Environmental Quality Act (CEQA). Appellants also presented civil rights causes of action under Government Code sections 11135, 12955, and 65008. The Fifth Appellate District Court of Appeal agreed with the trial court, finding that the CEQA claim was properly rejected and upholding demurrers to the civil rights causes of action.

The court first concluded that appellants’ claims of CEQA noncompliance were not persuasive. Appellants attacked the County’s final subsequent environmental impact report (FSEIR) in three respects: (1) the health-related impacts were not sufficiently analyzed; (2) the daily truck traffic baseline used was inflated; and (3) the cumulative impacts analysis did not include all the relevant information and was thus underestimated. Pertaining to the first claim, appellants alleged that the County did not have sufficient information to judge the project’s true impacts on public health, the County should have conducted an additional health survey, and the County had an obligation to reexamine the project’s impacts due to new information brought to light by the Greenaction health study.

The court first explained that appellants had waived their claims by failing to adhere to the well-established principle that when an appellant is challenging an EIR for insufficient evidence, the appellant must lay out the evidence favorable to the other side and then show why it is lacking. Appellants’ failure to present all the evidence was viewed by the court as a “concession” that there was, in fact, substantial evidence to support the County’s findings.

The court next held that the County properly refused to conduct an additional health test as requested by appellants. “CEQA does not require a lead agency to conduct every test … recommended or demanded by commentors” (El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984 at 47). Since the court found that the FSEIR reflected an adequate, good faith effort to ascertain the project’s potential impacts on public health, the court concluded that the County did not need to conduct an additional test. The court further explained that the county’s response to the requests for an additional test adequately explained why the County had refused to conduct another test, supporting the County’s decision with substantial evidence.

Lastly, the court explained that the County did not need to recirculate its EIR. Appellants’ argument rested on their belief that the Greenaction health survey presented new information, thus changing the environmental setting of the project from the one analyzed in the FSEIR. However, using the CEQA definition of “environmental setting,” which is “the surrounding physical conditions such as topography, air quality, plant life and water resources,” the court concluded that since the information from the survey was about birth defects, there was no change in the project’s environmental setting. (Id. at 61-62). There was no new information presented, therefore the County’s decision not to recirculate the DSEIR was supported by substantial evidence as well.

Appellants’ second and third claims that the truck traffic baseline and the cumulative impacts analyses were inadequate under CEQA were both rejected by the court under the exhaustion doctrine. By failing to raise the two claims either during the administrative proceedings or in the appeal letter, the court explained that these claims were forfeited due to appellants’ failure to exhaust all the available administrative remedies before bringing the suit to court.

The court also addressed non-CEQA, civil rights causes of action under Government Code sections 11135, 12955, and 65008. All three of these causes of action were rejected. The court explained that the appellants were trying to use the statutes in situations that were beyond their scope as defined by each statute itself along with interpretations used by other courts in previous cases. Therefore, the trial court’s holding and the County’s approval of the expansion of the hazardous waste site were reaffirmed.

Written By: Tina Thomas, Ashle Crocker and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Denies Attorney’s Fees Where Successful Petitioner Does Not Confer a Significant Benefit to Public and Discharges Writ of Mandate After Compliance

Wednesday, June 6th, 2012

In an unpublished opinion, California Oak Foundation v. County of Tehama (2012) 2012 Cal. App. Unpub. Lexis 3970, the California Third District Court of Appeal affirmed a decision denying petitioner’s request for attorney’s fees on the basis that their successful challenge to a golf course community project, which Tehama County approved in 2006, did not significantly benefit the general public. The court also affirmed the order to discharge a writ of mandate requiring Tehama County to consider certain evidence as it related to I-5 mitigation fees to be imposed on the project.

The court had previously issued a writ of mandate requiring the county to comply with CEQA by considering evidence brought forth by the county’s economic consultant pertaining to I-5 traffic mitigation fees. In 2010, the county reapproved the project without any changes, on the apparent basis that the decline in home prices between 2006 and 2010 made higher fees to mitigate I-5 traffic infeasible.

After the county reapproved the project, petitioner brought suit seeking attorney’s fees incurred during the first case, and also arguing that the trial court improperly discharged the writ because the county employed flawed reasoning when it considered I-5 mitigation fees. The court denied petitioner’s attorney’s fees request. Because the county reapproved the project without any changes, petitioner’s lawsuit conferred no significant benefit to the general public. Because no significant benefit to the general public resulted from their lawsuit, petitioner failed to satisfy a requirement for attorney’s fees to be awarded in such a case. Next, the court held the county acted reasonably when it concluded the lower home prices in 2010 made higher I-5 traffic mitigation fees infeasible. Because the county articulated reasonable grounds for its conclusion that higher I-5 mitigation fees were infeasible, the county complied with CEQA and the writ of mandate was properly discharged.

Written By: Tina Thomas, Chris Butcher and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

California’s Highest Court Grants Review of Berkeley Hillside Preservation Decision

Thursday, May 31st, 2012

On May 23, 2012, the California Supreme Court unanimously agreed to grant review of Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656. The issue before the court will be whether the City of Berkeley must prepare an environmental impact report (EIR) before approving the construction of a 10,000-square-foot single-family home. The trial court upheld the City’s approval and determination that the project fell within two CEQA exemptions: (1) the Infill Development Exemption and (2) the New Construction/Conversion of a Small Structure Exemption. The First Appellate District reversed the lower court’s holding, ruling that based on a “fair argument,” the “unusual circumstances” exception prohibited the City from relying on the categorical exemptions, thus requiring the City to conduct an EIR. The City of Berkeley and Real Party in Interest petitioned for review. The court’s review is estimated to take 12 to 18 months.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Contents of an Administrative Record: Who is in “Control”?

Tuesday, May 22nd, 2012

Preparation of the administrative record for CEQA litigation is governed by Public Resources Code section 21167.6, subdivision (e).  In Consolidated Irrigation District v. The Superior Court of Fresno County, (2012) ___ Cal.App.4th_____, the court provided important guidance regarding the proper contents of the record and sets some limitations on an agency’s responsibility to respond to Public Records Act requests.

The court first considered whether the files of subconsultants retained to prepare an EIR for a lead agency are (1) “public records” that the lead agency must provide in response to a Public Records Act request and/or (2) part of the administrative record for purposes of CEQA litigation.  In both instances, the court looked to the contract between the lead agency and the primary EIR consultant and determined that the City’s “control” over the consultant was contractually limited and did not extend to the services performed by subconsultants.  Thus, for purposes of the Public Record Act, the subconsultant’s files were not “in the possession of the agency” and therefore did not need to be included in the City’s response to petitioner’s Public Records Act request.  For purposes of CEQA, the contract established that the subconsultant’s files were not owned, controlled or in the possession of the City.  The court held such files were not considered part of the record under Public Resources Code section 21167.6, subdivision (e)(10) which requires inclusion of documents “included in the …public agency’s files on the project….”

Importantly, however, the court did not establish a bright line rule that subconsultant files never qualify for inclusion in the record; if a subconsultant’s documents were made available consistent with CEQA’s requirements, such documents would properly be in the record (e.g., documents cited or referenced in the EIR and made available for public review).  In this case, where the subconsultant’s documents were not made available to the City, the court found that it was improper to compel production of such documents for inclusion in the record.

The court next considered whether the City was required to include transcripts of hearings and/or audio files of public hearings in the record.  Although transcripts are clearly “written” materials and should generally be included in the record, in this case the City had not prepared written transcripts of several hearings and therefore could not produce such documents. The court held that Public Resources Code section 21167.6, subdivision (e)(4)’s requirement that the administrative record include “[a]ny transcript or minutes” does not compel a lead agency to prepare transcripts that do not otherwise exist.  However, the court held that audio recordings of the hearings constitute “other written materials” under subdivision (e)(4) and therefore must be included in the administrative record if transcripts are not available.  The court explained that this broad interpretation of the words “written materials” best promotes CEQA’s purposes of accountability and informed self-government.

Finally, the court considered whether certain documents cited within a comment letter constitute “written comments received” by the agency and/or “written evidence submitted” to the agency and thus warrant inclusion in the record under section 21167.6, subdivisions (e)(6) and (e)(7).  As to the first issue, the court concluded that the term “comment” does not include documents cited to support the assertions made in the letter.  While these documents are considered evidence supporting the contentions in the letter, they “cannot be bootstrapped into the record of proceedings using the language in section 21167.6, subdivision (e)(6) that covers ‘written comments received.’”

As to the next issue, the court determined that “written evidence” has been “submitted to” a lead agency for purposes of section 21167.6, subdivision (e)(7) when the commenter has made the document readily available for use or study by lead agency personnel.  The court applied this test to four categories of “evidence”:

(1)   documents named in a comment letter and previously delivered to the City in connection with another project were made “readily available” for City personnel and therefore were part of the record under subdivision (e)(7);

(2)   documents named in the comment letter along with a reference to a general Web site through which the document could be located were too general in nature and would subject lead agency personnel to potentially time-consuming efforts to locate the specific Web page where the document is located; therefore, citations to general Web pages and home pages are not considered “readily available” to the City and are not part of the record under subdivision (e)(7);

(3)   documents named in a comment letter along with a citation to the specific Web page or URL containing the document were made “readily available to the City personnel” and therefore are part of the record under subdivision (e)(7);

(4)   documents named in comment letters without a citation to a Web site or Web page are too difficult to identify or obtain and therefore have not been “submitted to” the lead agency for purposes of subdivision (e)(7) and need not be included in the record.

Key Point:

This case confirms that, with limited exception, the scope of the administrative record in a CEQA case is very broad and agencies should be careful to include: (1) the materials in the EIR consultant’s project files, and subconsultant’s files to the extent the agency owns or exercises control over those files, (2) audio tapes of public hearings where no transcripts are available, and (3) all documents received by or submitted to the agency, including documents “submitted” as URL citations in comment letters.

Written By: Tina Thomas and Ashle Crocker
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Substantial Evidence Test Applies to Subsequent Environmental Review After a Negative Declaration Has Been Adopted for a Project

Tuesday, May 22nd, 2012

In Abatti v. Imperial Irrigation District (2012) 2012 Cal.App. LEXIS 496, the court considered whether the substantial evidence, rather than the “fair argument,” test applies to determine whether further environmental review is warranted for a subsequent approval where the agency has initially adopted a negative declaration for the project.

In 2006, the irrigation district adopted an “Equitable Distribution Plan” to address the allocation of water in times of shortage, and concurrently approved a negative declaration, which concluded that the plan would not have a significant effect on the environment. The irrigation district then adopted implementing regulations in 2007, and adopted additional regulations in 2008, along with an environmental compliance report, which relied on CEQA Guidelines section 15162 to find that the 2006 negative declaration adequately addressed impacts, and no further CEQA review was required. A group of property owners challenged the 2008 regulations, arguing that an EIR should have been prepared because the regulations substantially changed the way water would be allocated. They asserted that the regulations specifically gave higher priority to geothermal users as opposed to agricultural users.

The court first considered whether it had jurisdiction in light of the fact that appellants had dismissed several non-CEQA claims without prejudice prior to the trial court’s decision on the CEQA claim. The court concluded in the affirmative, finding that a party may appeal from a judgment rendered on a particular claim on a case, regardless of whether certain other claims have been dismissed without prejudice, provided no claims remain pending between the parties.

On the merits, the court first rejected the petitioners’ argument that CEQA Guidelines section 15162 was an invalid regulation. Section 15162 provides that, after an agency has certified an EIR or negative declaration, no subsequent EIR is required unless certain circumstances occur. This section of the Guidelines implements Public Resources Code section 21166, which refers to EIRs, but not negative declarations. The appellate court rejected the petitioners’ challenge, relying on Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, which upheld application of the standards for determining when a subsequent EIR is required for a project that has previously been reviewed when the original CEQA document was a negative declaration.

The appellate court proceeded to apply the substantial evidence test to assess the irrigation district’s determination that the 2008 regulations did not represent a substantial change in the project requiring additional CEQA review. The court found that substantial evidence supported the irrigation district’s determination. A comparison of the 2008 regulations with the pre-existing regulations showed that they were substantially similar and would not, in fact, change the priority preferences in case of water shortage, as petitioners had claimed.

Key Point:

This case affirms an agency’s ability to rely on a negative declaration for subsequent actions related to the project where substantial evidence supports the agency determination that the subsequent action has no new environmental impacts. Of particular note, the court rejected the petitioners’ attempt to characterize Benton as an “outlier” case. Instead the court upheld Benton, noting that numerous courts have agreed with that court’s conclusion that Guidelines section 15162 applies in determining whether further environmental review is warranted where the agency has initially adopted a negative declaration.

Written By: Tina Thomas and Amy Higuera
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Defers to Local Agency Characterization of Lot Line Adjustments as Ministerial Actions Not Subject to CEQA

Tuesday, May 22nd, 2012

In Sierra Club v. Napa County Board of Supervisors (2012) 2012 Cal.App. LEXIS 454, the Sierra Club challenged a lot line adjustment ordinance adopted by Napa County, which allowed lot line adjustments under the Subdivision Map Act on parcels that had previously been adjusted, as long as the prior lot line adjustment has been completed and recorded.  The court held that the county’s approval of this provision, which allowed sequential lot line adjustments, was consistent with both the Subdivision Map Act and CEQA.

The court began by considering whether Sierra Club’s petition was time-barred by provisions of the Subdivision Map Act that require a summons be effected within 90 days of the challenged agency decision.  The county demurred on these grounds, and the trial court overruled the demurrer.  On appeal, the court found that, because the county had entered into a stipulation for a court order extending its time to prepare the administrative record pursuant to Public Resources Code section 21167.6, the county had made a general appearance before the court, and had thus waived it ability to challenge irregularities in the service of summons.

On the merits, Sierra Club argued that the county’s ordinance violated section 66412 of the Subdivision Map Act, which limits use of lot line adjustments to four or fewer adjacent parcels, essentially claiming that this provision preempted the county’s ordinance.  The court considered the legislative history of section 66412 and ultimately disagreed with the Sierra Club’s argument that this provision evidenced a legislative intent to ban all sequential lot line adjustments.

Under CEQA, the court held that the lot line adjustments allowed by the county’s ordinance would be ministerial, noting that the county had classified them as such, and that the CEQA Guidelines authorize agencies to make such classifications.  Citing prior case law, the court noted that, in considering an application for a lot line adjustment, the local agency considers only whether the application meets specified criteria, and there is no discretion to impose conditions to mitigate environmental impacts.  The court also noted that the ordinance continued the county’s pre-existing practices, and did not authorize any increased level of development.

Key point:

This case confirms the ministerial nature of lot line adjustments under the Subdivision Map Act, and further acknowledges that the local public agency is the most appropriate entity (as opposed to a challenger or the court) to determine what is a ministerial action under CEQA.  This case also serves as a reminder that, in order to preserve the ability to demur to a complaint based on irregularities in service of the action, the party wishing to file a demurrer must avoid making a prior general appearance, which could arise by taking any action that in some manner recognizes the authority of the court to proceed.  Stipulations to extend the time for record preparation are common in CEQA litigation, and it should be remembered that such a stipulation, which acknowledges the court’s authority and the necessity of an administrative record as a precondition to hearing, amounts to a waiver of the ability to challenge the court’s jurisdiction.

Written By: Tina Thomas and Amy Higuera
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Where a Local Government Does Not Endorse Amendments to its Certified Local Coastal Program, the Coastal Commission’s Authority to Adopt such Amendments is Very Narrow

Tuesday, May 22nd, 2012

In City of Malibu v. California Coastal Commission (2012) ___ Cal.App.4th ___, the California Court of Appeal, Second District, considered whether California Public Resources Code section 30515, known as the override provision of the Coastal Act, allows a public works agency to apply to the Coastal Commission to override policies and standards in a locality’s local coastal program merely because it is a public works agency.

The Santa Monica Mountains Conservancy and the Mountains Recreation and Conservation Authority, a joint powers agency of which the conservancy is a constituent member, (collectively, the Conservancy) requested the City of Malibu (City) amend its local coastal program in part to facilitate the Conservancy’s future plans to develop four park properties. In response to the Conservancy’s request, the City amended its local coastal program and submitted it to the Coastal Commission for review. The amendments, however, were not satisfactory to the Conservancy and the Conservancy proposed its own alternative amendments to the Coastal Commission. The Conservancy asserted that section 30515 allows it, as a “person authorized to undertake a public works project,” to request, and for Coastal Commission to adopt, proposed amendments to the City’s certified local coastal program even over the City’s objection. The Coastal Commission agreed with the Conservancy’s interpretation of section 30515 and approved the Conservancy’s amendments instead of those proposed by the City. The City responded by filing a lawsuit arguing that the Coastal Commission abused its discretion by adopting the amendments proposed by the Conservancy over the City’s objections. The trial court agreed and the Conservancy appealed.

On appeal, the Court looked to the plain language of section 30515 and concluded that the statutory interpretation proposed by the Conservancy and Coastal Commission would lead to absurd results. If the conservancy’s interpretation were correct, any public works agency in California would be on “equal footing” with a city to seek Coastal Commission certification of amendments to its local coastal program over the city’s objections. Instead, the Court held section 30515 permits the Coastal Commission to override a locality’s local coastal program where a person applies to the Coastal Commission to actually “undertake a public works project or an energy facility development that would otherwise be prohibited by the local government’s certified [local coastal program.]” The interpretation proposed by the Conservancy and Coastal Commission would permit public works agencies to circumvent the local land use process by rendering the Coastal Commission as the land use decision maker; an interpretation that is not countenanced by the statute. Accordingly, the Coastal Commission lacked jurisdiction to approve the Conservancy’s proposed amendments to the City’s local coastal program because the Conservancy was not proposing to undertake a public works project.

Key Point:

Section 30515 provides a public agency with a procedural recourse to override a local coastal plan only where a public works project or energy facility development is actually undertaken and other very narrow criteria are met.

Written By: Tina Thomas, Chris Butcher and Grant Taylor (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Tolling Agreements to Extend CEQA’s Statute of Limitations during Settlement Discussions are Valid

Tuesday, May 8th, 2012

In Salmon Protection and Watershed Network v. County of Marin (2102) 2012 Cal.App. LEXIS 458, the court considered whether a public agency and a party disputing the adequacy of an EIR could enter into an agreement to toll the statute of limitations setting the time period for filing a CEQA lawsuit to challenge the EIR.

In 2010, Salmon Protection and Watershed Network (SPAWN) filed a petition for writ of mandate alleging the EIR certified by Marin County for the county’s general plan update violated CEQA. The county had certified the EIR three years earlier, in 2007, and subsequently, SPAWN and the county entered into a series of tolling agreements, extending the thirty-day limitation period for filing a challenge to the sufficiency of the EIR. Following filing of the petition in 2010, a group of property owners with interests that could be affected by the outcome of the lawsuit intervened and moved to dismiss the lawsuit, arguing that SPAWN’s 2010 petition was untimely because tolling agreements are invalid under CEQA, and the 30-day limitation period had expired in 2007.

Interveners argued that CEQA provisions requiring the prompt filing of complaints alleging noncompliance, and setting forth shortened time limits for the conduct of litigation evidence a legislative intent that the 30-day limitations period set forth in the Public Resources Code is mandatory and jurisdictional. Interveners therefore argued that any agreement to extend the statutory limitations period was ineffective.

While the court agreed that the CEQA limitations period serves a key policy in favor of prompt resolution of lawsuits alleging noncompliance, the court found that an equally strong public policy favoring settlement of lawsuits. The court further noted that these two policies were not irreconcilable, since in many cases, settlement will resolve the controversy much sooner than could be accomplished by following through with a full trial and appeal. The court therefore held that the tolling agreements were valid and effectively extended the CEQA limitations period.

Key Point:

Tolling agreements have been recognized as an effective tool in resolving litigation by all sides of a typical CEQA dispute, as evidenced by the amicus briefs filed by the League of California Cities, California State Association of Counties, California Building Industry, and Sierra Club, all arguing that the validity of tolling agreements should be upheld. This opinion decides a question that some CEQA practitioners have nonetheless considered uncertain. By answering in the affirmative, parties to a CEQA dispute may now enter into a tolling agreement during settlement negotiations with more assurance that the terms of the agreement extending the limitations period will be upheld.

Written By: Tina Thomas and Amy Higuera
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Third Appellate District Grants Partial Publication of CEQA Decision Relating to Agricultural Mitigation, Urban Decay, Res Judicata, and the Deliberative Process Privilege

Wednesday, April 25th, 2012

In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit for a proposed shopping center to be anchored by a Wal-Mart Supercenter (Project) after the original EIR for the Project was revised and recertified. The trial court denied Petitioners’ writ and the Third Appellate District affirmed.

The appellate court found the trial court abused its discretion in permitting the City of Lodi to withhold various emails pursuant to the deliberative process privilege because the City did not meet its burden of proof that the doctrine was applicable. However, the Court concluded that Petitioners failed to meet their burden to show that the City’s improper exclusion of the emails from the administrative record constituted prejudicial error. The Court explained that to show prejudice Petitioners should have sought writ review of the trial court’s decision to exclude the emails. Because it failed to do so, Petitioners were not entitled to reversal on appeal for this error.

In an unpublished portion of the decision, Petitioners argued that other documents withheld as attorney-client privilege lost such privileged status after the City shared the documents with the Real Parties. The Court disagreed. The Court explained that it did not matter whether the documents were shared with the Real Parties’ attorneys or the Real Parties directly: “It was still communication between parties on the same side of the litigation aimed at sharing information with one another to produce an EIR that would withstand a legal challenge for noncompliance with CEQA.”

Turning to the substantive adequacy of the revised EIR, Petitioners alleged that the EIR failed to adequately address urban decay, agricultural, climate change, and water supply impacts, and that the EIR failed to include a reasonable range of alternatives. The Court did not publish the portions of its decision addressing the substantive merits of Petitioners climate change and water supply claims. The Court did, however, publish the portion of its decision addressing the relationship of the Doctrine of Res Judicata to Petitioner Lodi First’s challenge to the water supply analysis. Each of the published portions of the decision is addressed below.

The Court held that the record contained sufficient evidence to support the conclusion that the revised EIR included a reasonable range of alternative. Based on the rule of reason and an understanding that CEQA provides no ironclad rule governing the nature or scope of alternatives, the Court concluded the City’s failure to identify a feasible alternative that could achieve most of the project objectives and avoid or significantly reduce the Project’s significant and unavoidable impacts was not error. The EIR considered five alternatives (no project, alternative land use, reduced density, reduced size, and alternative location). Reduced density and alternative land use alternatives were rejected from detailed consideration in the revised EIR. The Court upheld the City’s decision to reject these alternatives from detailed consideration. The Court explained, based on the facts in this case, that the City was not required to analyze an alternative that was inconsistent with the zoning for a project site and that substantial evidence supported the conclusion that the reduced density alternative was not economically feasible. The Court also held that the three alternatives that were analyzed in detail within the EIR (no project, reduced size, and alternative location) constituted a reasonable range of alternatives. Lastly, the court determined that substantial evidence supported the City’s rejection of the environmentally superior alternatives (no project and reduced size) because the record demonstrated that neither alternative would entirely fulfill the applicant’s or City’s objectives.

In the published portion of the opinion addressing urban decay, the Court held that the revised EIR did not need to address urban “blight” conditions. The Court concluded that the record demonstrated that urban decay and urban blight are two separate phenomena. The record demonstrated that deteriorated homes and other existing blighted properties in the Project area have no relationship to the condition of the retail environment, which needed to be evaluated to consider the Project’s potential urban decay impact. Therefore, the Court concluded that the baseline used to analyze potential urban decay impacts of the Project was not required to disclose urban blight within the Project vicinity.

The Court also affirmed the trial court’s ruling that it was proper for the City to rely on the economic baseline from 2006 and 2007 (the baseline at the time the NOP was published) in evaluating urban decay impacts in the revised EIR. The court reviewed the City’s determination not to update the baseline for an abuse of discretion. Based on this standard, the Court concluded the City was not required to update the baseline because evidence in the record demonstrated that updating the baseline was problematic as economic conditions are rapidly changing and these rapidly changing conditions did not affect the urban decay findings. Therefore, the Court held the City did not abuse its discretion in declining to update the economic baseline.

With respect to Petitioners’ challenge to the adequacy of the agricultural mitigation ratio adopted by the City, the Court concluded Petitioners’ argument demonstrated a misunderstanding of CEQA. The City concluded that no feasible mitigation could reduce impacts to agriculture to a less than significant level. Specifically, the EIR explained that because agricultural conservation is not true mitigation no level of conservation can be scientifically justified as correct and the level of mitigation is a matter of local concern. For this reason, the Court explained that the question is not whether substantial evidence supported the determination that a greater mitigation ratio was infeasible. The question is whether substantial evidence supported the conclusion that no feasible mitigation was available. The Court found the record included such evidence.

In rejecting the water supply arguments advanced by one of the Petitioners, the Court held that the claim was barred by the doctrine of res judicata. As explained by the Court, res judicata applies and bars a petitioner from re-litigating issues that were or could have been previously litigated where the prior proceeding is final on the merits and the present proceeding is on the same cause of action as the prior proceeding. Here, there was no dispute that the prior proceeding was final on the merits and the conditions and facts upon which the new proceeding was based were not materially different from the original proceeding. Therefore, because Petitioner could have raised its water supply claims in the prior proceeding, res judicata barred the claim in this proceeding.

Lastly, in the unpublished portion of the opinion addressing climate change, the Court found that the revised EIR failed to properly analyze potential climate change impacts. The Court stated that an EIR cannot refuse to analyze an impact based on the conclusion that it would be speculative. Rather, an EIR must disclose after thorough analysis of an issue the reasons further analysis is considered too speculative for evaluation. However, the Court found that the City prepared the required climate change analysis after the FEIR was released to the public. While this approach violated CEQA, a CEQA violation only invalidates an EIR if it is prejudicial. The Court concluded that CEQA Guidelines section 15088.5, subdivision (a)(4), only requires recirculation when an EIR is fundamentally and basically inadequate and conclusory. Here, only a portion of the EIR was fundamentally and basically inadequate. The Court concluded this flawed portion was not significant because the climate change analysis prepared after the FEIR was released demonstrated that the Project would not have a significant impact on climate change. The record included no evidence submitted before or after the study was produced to support the conclusion that climate change impacts were significant. Therefore, the City’s failure to analyze climate change impacts in the EIR was not prejudicial.

Key Points:

Where no level of mitigation will reduce an impact to less than significant, the mitigation measure(s) adopted by the lead agency to reduce the impact to the extent possible constitutes a policy determination that will be upheld if supported by substantial evidence.

To utilize the deliberative process doctrine to withhold documents from inclusion in the administrative record, the lead agency must ensure that the record supports the conclusion that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Lastly, in CEQA litigation in which a petitioner challenges both an original EIR and revised EIR, res judicata bars the litigation not only of issues that were actually litigated in the original lawsuit but also issues that could have been litigated.

Written By: Tina Thomas and Chris Butcher
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Thomas Law Group Research Supports Conclusions in San Francisco Chronicle Highlighting the Need for CEQA Reform

Monday, March 19th, 2012

On March 6, 2012, the San Francisco Chronicle published an article entitled “Costly, lengthy appeals part of S.F.’s culture.” (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/06/MNB21N1TA9.DTL.)  The article highlights how San Francisco’s environmental appeal process and environmental litigation are often used to stall and kill projects within San Francisco.  The article noted that in 2011, eleven CEQA lawsuits were filed challenging projects proposed within the City.

Research conducted by the Thomas Law Group illustrates that CEQA challenges are common not just in San Francisco, but throughout the state.  In 2011, over 25 published CEQA decisions were decided by the Court of Appeal of California in addition to dozens of other unpublished CEQA decisions.  The flood of CEQA litigation in the state can at least, in part, be traced back to statutory provisions allowing petitioners to obtain attorney’s fees where they are the prevailing party.  In addition, the regularity with which courts overturn CEQA determinations made by public agencies, even in cases involving the deferential substantial evidence standard of review, provides more incentive for petitioners to challenge development.  As Thomas Law Group’s research demonstrates, over the last 15 years, the appellate court concluded that the lead agency violated CEQA in nearly 50% of all published CEQA appellate decisions evaluating the substantive merits of Environmental Impact Reports.  (CEQA Litigation History.)

The California Supreme Court has stated that there is a presumption that government agencies will comply with the law. (See, e.g., City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 365.)  Nevertheless, published CEQA appellate decisions suggest that government agencies striving to comply with the law and equipped with staff and consultants to assist them in doing so fail to develop adequate Environmental Impact Reports nearly 50% of the time.  Thomas Law Group believes CEQA reform is necessary to provide more bright line standards to facilitate compliance and to avoid lawsuits intended to stall controversial projects rather than to protect the environment.

Written By: Tina Thomas and Chris Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.