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Posts Tagged ‘deference’


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

Thursday, August 23rd, 2018

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

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

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

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

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

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

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

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

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

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

Key Point:

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

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

Third District Court of Appeal Gives Great Deference in Quasi-Judicial Agency Decision Not to Delist Coho Salmon, Ending Decades-Long Dispute

Friday, January 5th, 2018

In Central Coast Forest Association v. Fish and Game Commission (2018) 18 Cal. App. 5th 1191, the California Third District Court of Appeal found the California Fish and Game Commission (Commission) was correct to deny a petition to delist coho salmon from state protection under the California Endangered Species Act (CESA). Deferring to the scientific expertise of the Commission, the Court held there was substantial evidence to support the decision where petitioner’s arguments rested purely on speculation.

To delist a species under CESA, the Commission must find a petition is warranted and, if so, determine if the action to list or delist is warranted. The Commission bases these initial and secondary findings on highly-technical and scientific information from the Department of Fish and Wildlife.

The coho salmon in southern San Francisco/Santa Cruz County have been a CESA-listed endangered species since 1995. In 2004, the Commission expanded the listing’s parameters and delineated coho salmon north of Punta Gorda as a threatened species and coho salmon south of Punta Gorda as an endangered species. Central Coast Forest Association and Big Creek Lumber Company (Petitioners) sought delisting of the southern coho salmon. Petitioners alleged the fish were not endangered species as there were never wild, native salmon in the region; and if there were, they were destroyed by unfavorable environmental conditions. Further, the salmon present are solely sustained by hatchery plants, and as such, are not wild or native to California.

The Commission considered and denied Petitioners’ delisting petition in 2005 and again in 2007 for failing to contain sufficient scientific information. Petitioners twice failed to gain an order from the Superior Court overturning the decisions. Upon appeal, the California Supreme Court remanded the matter to the Third District Court of Appeal.

In reviewing, the Court focused on the sufficiency of the evidence and the deference they award to such determinations. Petitioners were required to present sufficient information to indicate the delisting may be warranted, information that would lead a reasonable person to conclude that there was a “substantial possibility” delisting could occur. Evidence is sufficient only if it is material, credible, supports the petition, and, when weighed against the Commission’s written report and any comments received, is strong enough to indicate that delisting may be justified.

Where the Commission’s decision to delist species is quasi-judicial, a higher deference is awarded to Commission findings. Specifically, the Commission’s technical and scientific resources and its legally wide discretion in decision-making makes the Court affirm the decision where the weight of the evidence is clearly justified or unclear. The Court will only reverse the decision where the evidence clearly weighs against it.

The Court examined the Commission’s evidence and Petitioner’s evidence regarding coho salmon’s historical existence in the contested area; including archaeological Native American middens, historical newspaper articles, hatchery records, drought and flood records, historical environmental factors, and genetic evidence. The Court found the Commission’s evidence was sufficient to determine Petitioner’s delisting petition unwarranted. The Commission showed that coho salmon are native to the contested area by genetically sequencing and comparing extant salmon with salmon museum specimens collected in 1895 from four adjacent streams in Santa Cruz County.

The Commission’s evidence also showed the sustained coho salmon population is not the result of hatchery planting. Historic hatchery output was sporadic and small in the southern San Francisco region, therefore the current population was not likely descended from local stock and no genetic evidence showed the current population is descended from out-of-state stock. The Court noted that even if existing populations were bolstered by local non-wild hatchery fish, these fish would genetically be considered California-native hatchery fish, and thus would be protected by the CESA.

Ultimately, the Court dismissed Petitioners’ evidence for it was “circumstantial” where they were “pick[ing] out bits of information that appear to substantiate their claim.” Thus, the Commission’s decision was appropriate where Petitioners’ claims were the product of “no scientifically credible data” and “[w]hat the petitioners call ‘evidence’ is actually persuasive writing, not valid scientific evidence.”

Answering technical questions posed by the Supreme Court, the Court found that a species “range” for consideration, per the Department of the Interior interpretation, is wherever the species is found, not only where it is known or historically known to be. Further, a portion of a listed species may only be delisted where it is individually “carved out” as a separate species, unlike what was petitioned for here.

Because the Commission has highly technical knowledge and delegated authority to list and delist endangered species, the Court affirmed the Commission decision to deny the delisting petition.

Key Point:

Where a quasi-judicial agency decision is challenged, the Court will give great deference to the decision, affirming where evidence is sufficient or unclear to support the decision. Sufficient evidence to the contrary is where credible, scientific based evidence outweighs the agency’s evidence.

NINTH CIRCUIT REJECTS CHALLENGES TO UPDATE OF PRESIDIO TRUST MANAGEMENT PLAN

Tuesday, February 2nd, 2016

In Presidio Historical Association v. Presidio Trust, 2016 U.S. App. LEXIS 1287, the Ninth Circuit affirmed the district court’s grant of summary judgement in favor of the Presidio Trust and rejected challenges to a planned “lodge” adjacent to the Presidio’s Main Parade Ground.

The Presidio is managed by the Presidio Trust (“Trust”), a federal government corporation created by the Presidio Trust Act (“Act”) of 1996. The Trust’s actions are guided by the Act, the Golden Gate National Recreation Area Act, and the National Historic Preservation Act. These statutes charge the Trust with preserving the historic character of the Presidio while also becoming financially self-sustaining. To this end, the Trust created the Presidio Trust Management Plan in 2002. The 2011 formal plan update (“Update”) included plans to develop a 70,000 square-foot lodge, which was to be offset by the demolition of 94,000 square-feet of existing buildings.

Section 103(c) of the Act grants authority to the Trust to demolish structures that cannot be cost-effectively rehabilitated and provides for subsequent new construction that is “limited to replacement of existing structures of similar size in existing areas of development.” The Court’s decision centered on the interpretation of this provision. The Trust proffered that this provision unambiguously allowed “banking” of demolished building square-footage that could be used to offset new construction throughout the park. Conversely, the Historical Association asserted that the statute unambiguously requires a building-by-building approach—i.e., that a demolished building must be replaced by a building of roughly the same size in roughly the same place.

The Court applied Chevron deference to the Trust’s interpretation, holding the statutory provision’s plain text is ambiguous but that the Trust’s interpretation was not a permissible construction of the statute. As a backup argument on appeal, the Trust also advanced a narrower interpretation that would require new development to be in the same general area as any previously demolished buildings. The Court rejected this “banking lite” interpretation as a “litigation tactic” that was not entitled to Chevron deference and was unpersuasive under Skidmore deference.

As a result, the panel engaged in its own statutory interpretation and held “replacement of existing structures of similar size in existing areas of development” included the lodge building at issue, but refused to delineate the outer bounds of this statutory provision. It emphasized the importance of physical proximity of the new and old buildings, as well as the usefulness of the square-footage metric.

The Court also rejected a challenge arising under the National Historic Landmark Act’s section 110(f) mandate that the Trust “to the maximum extent possible undertake such planning and actions as may be necessary to minimize harm to the landmark.” The Court held that this provision was procedural only and did not impose any substantive restrictions on the Trust. Accordingly, the Trust’s extensive public outreach, meetings, consultations, and subsequent modifications to the project satisfied this mandate and served as evidence of a full and reasoned decision making process.

Key Point:

The weight of an agency interpretation will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all of those factors which give it power to persuade.