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CEQA Updates

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

Posts Tagged ‘Land Use’


First District Court of Appeal Reverses Upper Truckee River Restoration and Golf Course Reconfiguration Project, Citing Lack of Identified Preferred Alternative

Thursday, February 8th, 2018

In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal reversed the California Department of Parks and Recreation’s (“Department”) approval of the Upper Truckee River Restoration and Golf Course Reconfiguration Project (“Project”), finding that the failure to identify a preferred alternative in the Draft EIR compromised the integrity of the EIR process.

In 1984, the State of California acquired a 777-acre parcel encompassing a 2.2-mile stretch of the Upper Truckee River. The parcel was later divided into two units: the Washoe Meadows State Park (“State Park”) created to protect a wetland meadow and the Lake Valley State Recreation Area (“Recreation Area”) created to allow the continuing operation of an existing golf course.

Since the 1990s, erosion of the river bed of the Upper Truckee River has raised environmental concerns. The layout of the golf course, which altered the course of the river, apparently contributed to a deterioration of the habitat and water quality. The Project was proposed to reduce the discharge of sediment that diminishes Lake Tahoe’s clarity and at the same time to provide public recreation opportunities in the State Park and Recreation Area.

The Department issued a scoping notice including four alternative projects and identified one of the alternatives – river restoration with reconfiguration of the golf course – as the preferred alternative. In August 2010, the Department circulated a draft EIR (“DEIR”) for the project. Although the DEIR analyzed five very different alternative projects, including the four alternative projects identified in the scoping notice, it did not identify a preferred alternative. The DEIR stated that the lead agency would determine which alternative or combinations of features from multiple alternatives was the preferred alternative in the final EIR (“FEIR”).

In September 2011, the Department issued the FEIR, identifying a version of the project as the preferred alternative. After the Department approved the preferred alternative project in January 2012, the plaintiff sued. The trial court held in favor of the plaintiff.

On appeal, the court held that the DEIR’s failure to provide the public with an “accurate, stable and finite” project description prejudicially impaired the public’s right to participate in the CEQA process, citing County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185. Noting that a broad range of possible projects presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives, the court found that the presentation of five very different alternative projects in the DEIR without a stable project was an obstacle to informed public participation.

Key Point:

When preparing multiple project alternatives in the course of drafting a DEIR, it is imperative to identify a preferred alternative to prevent prejudicially impairing the public’s ability to participate in the CEQA process.

California Supreme Court Holds Federal Regulation of State Owned Rail Lines Does Not Preempt CEQA

Monday, August 14th, 2017

In Friends of the Eel River v. North Coast Rail Road Authority, 2017 Cal. LEXIS 5650, the California Supreme Court addressed whether the federal Interstate Commerce Commission Termination Act (ICCTA) preempts the application of the California Environmental Quality Act (CEQA) for a California railroad project governed by the state’s North Coast Rail Authority (NCRA) and operated by a privately leased entity.

NCRA was sued under CEQA for inadequacies in its rail line project EIR. NCRA argued that the line was subject to federal ICCTA regulation instead of CEQA, removed the matter to the Ninth Circuit, and rescinded its EIR. The federal court remanded the matter to state court. The trial court held that the ICCTA preempted CEQA, and the First Appellate District affirmed. In December of 2014, the California Supreme Court granted petitioners’ petition for review as it related to the preemption issue.

The Court examined the ICCTA’s statutory construction and historical background, finding that although the ICCTA contains an express preemption provision and contemplates a unified national rail system, it was intended to combat rail monopolies while minimizing the need for federal regulatory control. The ICCTA expressly allows private rail owners to govern themselves internally via market-based self-correction and corporate bylaws, as long as those internal governances do not conflict with the ICCTA or other federal regulatory agencies. The Court concluded that this freedom to govern a private rail company translates to the freedom to govern state-controlled rail companies as well.

The Court held that the federal interest in railroads does not entirely sweep away the exercise of a state’s regulatory police powers when such regulation merely implicates rail transport, and that it does not follow that any and all state regulations touching on powers that may be federally regulated are preempted. The Court determined that application of CEQA to a public entity charged with developing state property is not a classic regulatory behavior, especially when there is no encroachment on the regulatory domain of the Surface Transportation Board or inconsistency with the ICCTA. Rather, application of CEQA constitutes self-governance on the part of a sovereign state. The Court presumed that Congress did not intend to preempt a state’s adoption and use of the tools of self-governance, or to leave the state without any means of establishing the basic principles under which it will undertake significant capital expenditures. The Court further concluded that ICCTA’s preemption of CEQA would be improper because it would allow the state to start and fund a rail line, but restrict how work is done on the line, unlike private owners.

The Court, relying on analyses of Gregory v. Ashcroft (1991) 501 U.S. 452, Garcia v. San Antonio Metro. Transit Auth. (1985) 469 U.S. 528, and Nixon v. Missouri Municipal League (2004) 541 U.S. 125, held that when interpreting Congressional legislation, there must be unmistakably clear language to establish an intrusive exercise of Congress’ commerce clause powers against a state. The Court explained that when there is the possibility of preemption, the law should be presumed as preserving a State’s chosen disposition of its own power, in the absence of a clear and plain statement from the legislature. The Court utilized the presumption argument to support the view that CEQA is not preempted in this case, and concluded that preemption would interpose improper federal authority between a State and its municipal subdivisions. Particularly, the Court found that it would be improper to preempt the state’s ability to dictate how its own subdivision addresses environmental concerns caused by the state’s own railroad business.

Examining the market participant doctrine, the Court found that the while the doctrine ordinarily is used to analyze preemption when a state interacts with private parties as a participant in a private marketplace for goods, labor, or services, it does not address a state’s ability to govern its own governmental subsidiary. Nevertheless, the Court continued its analysis of the doctrine, and found that because states operating in a private marketplace are subject to the same burdens imposed by Congress on private owners, courts will presume that Congress would afford states, as owners, the same freedoms as private parties. The Court held that the state’s application of CEQA to NCRA’s proceedings can be analogized to a private corporation enforcing its bylaws.

The Court concluded that Congress did not intend to intrude upon state self-governance in this context. The Court found that affirming preemption would commit the state to a one-way ratchet—able to enter the rail business, but unable to require anything of the subordinate agency it set up to carry out the state’s rail initiative.

The Court was careful to establish that CEQA actions might cross the line into preempted regulation if the review process imposes unreasonable burdens outside the particular market in which the state is the owner and developer of a railroad enterprise. The Court also acknowledged that its holding does not mean that the ICCTA has no power to govern state-owned rail lines. State-owned rail lines, like private ones, clearly must comply with STB and ICCTA, and state regulation of rail carriers is preempted by these provisions.

Key Point:

The California Supreme Court found that Congress did not pen the ICCTA to infringe upon state self-governance in a manner dissimilar from private railway owners. Preempting the state’s ability to adopt laws governing its own development schemes would leave the state without the tools necessary to govern its own subdivision. This preemption would deprive the state of the ability to make decisions to carry out the goals the state embraced concerning development projects, including undertaking environmental mitigation or deciding not to undertake a project at all because of its environmental hazards. Although CEQA may be preempted by federal law when it imposes unreasonable burdens on rail line owners, when addressing the competing interests surrounding governance over NCRA’s contested railway, enforcing environmental procedures which California has imposed on itself does not constitute grounds for ICCTA preemption.

Second District Court of Appeal Upholds Interlocutory Remand in Shopping Center Project Challenge, Clarifies General Plan Relationship with Projects

Monday, July 31st, 2017

In The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, the Sixth District Court of Appeal affirmed the trial court and upheld the County’s approval of a shopping center proposed by Omni Resources LLC (“Omni”), known as the Corral de Tierra Neighborhood Retail Village (“Project”).

The Project, proposed for construction on eleven acres of land located at the intersection of Highway 68 and Corral de Tierra Road in Monterey County, consists of ten retail buildings, including a grocery store, a two-story office building, and other retail spaces for a sporting goods store, bank, florist, mail store, post office branch, or a barber/beauty salon.

After the Board of Supervisors certified an EIR and approved the project in February 2012, the plaintiff sued the County, alleging failure to comply with CEQA. The trial court rejected the plaintiff’s claims of CEQA violations, but issued an order of interlocutory remand to allow the County to clarify whether the Project was consistent with the County’s general plan requirement that the Project have a long-term, sustainable water supply.

On remand, the Board adopted a resolution finding that the Project was consistent with the County’s general plan. In March 2015, the plaintiff filed its opening brief, contending that the County violated both CEQA and procedural due process during the remand proceedings. In 2015, the trial court again held for the County and Omni.

In the published portion of the opinion, the court rejected the plaintiff’s argument that the trial court erred in issuing an interlocutory remand. According to plaintiff, where an agency abused its discretion, the only allowable procedure, as provided by Public Resources Code (“PRC”) section 21168.9, was an order compelling compliance with CEQA. The court found that the mandate procedures in PRC section 21168.9 did not apply because the issue of whether a proposed project was consistent with a county’s general plan was not a CEQA issue. Citing Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499, the court concluded that the trial court’s choice to issue an interlocutory remand was eminently practical and well within the court’s inherent power. Because there was a single, discrete non-CEQA issue of general plan consistency that required clarification before the County’s approval of the Project could be upheld, the court concluded interlocutory remand was proper in this case.

The court rejected the plaintiff’s contention that the EIR failed to analyze whether the project was consistent with the County’s 2010 general plan. The court found that, although CEQA requires an analysis of general plan inconsistency, CEQA does not require an analysis of general plan consistency. The court also rejected the plaintiff’s argument that the County’s finding on interlocutory remand that the project was consistent with the County’s general plan and had a long-term sustainable water supply was not supported by substantial evidence.

Key Point:

The Sixth District Court of Appeal found that PRC section 21168.9 addresses CEQA issues, and is not applicable to an inquiry into whether or not a proposed project is consistent with a county’s general plan. The Court also held that interlocutory remand is proper where there is a single, discrete, non-CEQA issue of general plan consistency that the trial court determined required clarification before approval of a proposed project.