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CEQA Updates

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

Posts Tagged ‘CEQA reform’


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.

Court Disagrees with Sunnyvale and Madera Decisions and Holds that use of Projected Future Conditions as a Baseline for Analyzing Environmental Impacts is Proper where Supported by Substantial Evidence

Wednesday, April 18th, 2012

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012 Cal.App. LEXIS 434), the Second Appellate District upheld the lead agency’s determination that a future 2030 baseline was proper for determining the significance of traffic and air quality impacts caused by a proposed light rail project in Los Angeles. The EIR at issue used the existing physical environmental conditions as the baseline conditions for most environmental topics; but for traffic and air quality impacts, the agency elected to utilize the future baseline conditions that consisted of existing transit services and improvements that the Regional Transportation Plan explicitly identified as projects to be constructed by the year 2030.

Petitioners objected to the agency’s approach, stating that the 2030 conditions represented a “hypothetical scenario” not unlike the scenario struck down by the Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 (CBE). Petitioners also relied on Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale) and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (Madera), both of which held that projected future conditions provided an improper baseline for determining traffic impacts.

In CBE, the Supreme Court rejected the use of “hypothetical allowable conditions” when those conditions did not provide a “realistic description of the existing conditions” without the project. There, the agency’s baseline assumed maximum operation of an oil refinery. Because the refinery did not operate at maximum capacity under normal circumstances, the Court determined that the EIR’s baseline was not a realistic description of the existing conditions without the project and concluded that using such a baseline provided an illusory basis for analyzing the significance of environmental impacts.  In Neighbors for Smart Rail, the court distinguished CBE and found that “there is nothing ‘illusory’ about population growth and its inevitable impacts on traffic and air quality: population is growing, and population increases do affect traffic and air quality, with or without the project.” Thus, using a 20-year planning horizon to measure traffic and air quality impacts of a long-term rail infrastructure project is “eminently realistic.” The court found nothing to the contrary in CBE.

The court also stated that “to the extent Sunnyvale and Madera purport to eliminate a lead agency’s discretion to adopt a baseline that uses projected future conditions under any circumstances, we disagree with those cases.” According to the court, “[a]n analysis of the project’s impacts on anachronistic 2009 traffic and air quality conditions would rest on the false hypothesis that everything will be the same 20 years later.” The court explained that the proposed light rail project would not commence operation until 2015 at the earliest, therefore its “impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public” and “does nothing to promote CEQA’s purpose of informed decisionmaking on a project designed to serve a future population.” The court therefore rejected the notion that CEQA forbids use of projected conditions as a baseline, and held that “an agency’s use of a projected future baseline, when supported by substantial evidence, is an appropriate means to analyze the traffic and air quality effects of a long-term infrastructure project.”

Key Point:

Depending on the type of project at issue, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air quality and greenhouse gas emissions.  If a future baseline is selected, lead agencies are advised to carefully document the reliability of the projected future conditions as well as the inevitability of the changes on which those conditions are based.  As is true in CEQA cases generally, substantial evidence in the record must support the agency’s selected baseline.

Until the Supreme Court addresses this issue, Madera and Sunnyvale remain good law. Thus, courts faced with this issue – especially in the Fifth District – may elect to follow Madera and Sunnyvale rather than Neighbors for Smart Rail. Until this issue is settled, agencies may wish to consider using multiple baselines, each supported by substantial evidence, for a “belt and suspenders” approach to their analyses.

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.

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.

 

Court Awards Agency’s Costs of Preparing Administrative Record Despite Petitioner Electing to Prepare the Record

Tuesday, March 6th, 2012

In an unpublished decision, Landwatch San Luis Obispo v. Cambria Community Serv. Dist., 2d Civil No. B229545 (2012), the Court upheld a trial court’s cost award of $14,615.41 to the Cambria Community Service District for time spent preparing the administrative record.  The District initially sought almost $24,000.  In reaching the amount awarded, the trial court denied the majority of the costs claimed for work performed by the District’s general manager, its engineer and its attorney in preparing the transcript and granted the full amount of costs sought for work performed by the District’s clerk and three administrative assistants.

Petitioner appealed arguing that no costs should have been awarded because it elected to prepare the administrative record and the District never informed the Petitioner how much it would cost to prepare the transcripts for the administrative record.   The Court acknowledged that the Petitioner requested the District provide it with a cost estimate to prepare the transcripts.  However, the Court concluded that nothing in CEQA requires the public agency to provide a cost estimate for preparing the record.  The Court also rejected Petitioner’s claim that the costs were not reasonable and necessary.  The Court instead deferred to the trial court’s determination of reasonableness.

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.

Governor Brown Releases CEQA Reforms in an Effort to Simplify the Approval Process for Infill Projects

Wednesday, January 25th, 2012

Sacramento, January 25, 2012.  Today Governor Brown released a package of CEQA reforms designed to simplify and expedite the approval process for key job-creating projects in California.  The package of CEQA reforms provide the regulatory changes necessary to implement SB 226 (Simitian), which the Governor signed October.

Upon finalization, these reforms will simplify the approval process for infill projects by eliminating repetitive studies of environmental effects already addressed in other planning documents, such as general plans and zoning codes.  This will help reduce the time and cost often associated with infill projects, while also allowing cities to focus on new or unique projects that help create jobs, revitalize cities and promote transit.  SB 226 also removes hurdles to harnessing solar energy and growing green-collar jobs by exempting solar projects located on existing rooftops and parking lots.

Earlier this month, Governor Brown issued proposed implementation guidelines for AB 900 (Buchanan), signed last September.  AB 900 sends CEQA litigation for certain large projects directly to the Court of Appeal and requires a decision on the merits in a short time frame.  The law also offers immediate help to projects that provide California with the most economic and environmental benefit.

The SB 226 guidelines, released today, can be found at http://www.opr.ca.gov/s_sb226.php.  The AB 900 guidelines, released last month, can be found at http://opr.ca.gov/s_californiajobs.php.

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.