Thomas Law Blog

CEQA Updates

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

Posts Tagged ‘Michele Tong’


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
___________
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
___________
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
___________

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.

Constitutionality of AB 900 CEQA Streamlining Challenged in Court

Tuesday, May 8th, 2012

On April 23, 2012, the Planning and Conservation League (PCL) filed a lawsuit challenging the constitutionality of Assembly Bill No. 900 (2011-2012 Reg. Sess.) (see Conservation League v. State of California, RG12626904 (Alameda Sup. Ct.) available at http://www.cnsenvironmentallaw.com/2012/04/26/Conservation.pdf.) AB 900 requires CEQA litigation challenging eligible projects to skip over the superior court and be heard by the Court of Appeal. PCL argues AB 900 violates Article VI, section 10 of the California Constitution, which provides that “[t]he Supreme Court, courts of appeal, superior court, and their judges… have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.” The lawsuit states that “[b]y requiring CEQA petitioners to proceed with original actions in the courts of appeal alone, AB 900 unconstitutionally dispossesses the superior courts and the Supreme Court of their original jurisdiction over these proceedings. In so doing, despite article VI, section 10’s establishment of original mandamus jurisdiction in all California courts, the bill deprives those CEQA litigants who choose to pursue actions in superior court of the opportunity for merits-based appellate review in the courts of appeal. The bill also categorically denies CEQA litigants the opportunity to take their claims directly to the Supreme Court, should those claims qualify for the Supreme Court’s exercise of original jurisdiction.”

PCL’s lawsuit was filed approximately one month after the Judicial Council of California drafted a letter in opposition of Senate Bill No. 1214 (2011-2012 Reg. Sess.). SB 1214 proposed to expand the types of projects that qualify for the streamlining benefits established by AB 900. In its letter opposing SB 1214, the Judicial Council of California stated that it “did not take a position on AB 900 because of the speed with which the bill moved through the legislative process last year. A variety of concerns about this expedited judicial review process were conveyed informally to the Legislature, a number of which have been addressed. Significant concerns remain, however, which subsequently have been identified more fully during the council’s AB 900 rulemaking process.” Among the concerns identified by the Judicial Council of California in its letter is that “providing expedited review directly in the Court of Appeal for some cases while other cases are subject to original jurisdiction in the superior court… undermines equal access to justice. The courts are charged with dispensing equal access to justice for each and every case on their dockets, without regard to the economic position of the parties. Singling out this special category of cases for such preferential treatment appears at odds with how our justice system has historically functioned.”

In its lawsuit, PCL acknowledges that the Court of Appeal has the discretion to exercise original mandamus jurisdiction over CEQA lawsuits. Even if AB 900 is found to violate Article IV, Section 10, of the California Constitution, courts of appeal may be willing to exercise original mandamus jurisdiction over projects that pursue AB 900’s streamlining benefits prior to resolution of the pending PCL lawsuit.

Written By: Tina Thomas and Chris Butcher
___________

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.

Unpublished Decision Upholds State Water Resources Control Board’s Decision to Act as the Lead Agency

Tuesday, May 8th, 2012

In an unpublished decision, Outfitter Properties v. State Water Resources Control Board (2012) 2012 Cal.App.Unpub.LEXIS 1986, the Third Appellate District Court (Court) upheld a trial court’s rejection of petitioner’s consolidated petition for writ of mandate, which sought to put a stop to the “Battle Creek Salmon and Steelhead Restoration Project” (Project). Several agencies, including the California Department of Fish and Game (DFG), State Water Resources Control Board (Board), and U.S. Fish and Wildlife Service (FWS) entered into an agreement with PG&E and signed a memorandum of understanding (MOU) outlining the Project, exploring alternatives, and settling on a five-dam proposal so as to restore the fish habitat while minimizing the loss of clean, renewable hydropower.

Petitioner presented seven claims under the California Environmental Quality Act (CEQA), all of which were rejected. The Court first declined to reach the issue of exhaustion because it determined it was more efficient to address the CEQA claims on their merits. In a footnote, however, the court recommended that the Board review its regulations to ensure parties have a clearly defined administrative remedy to address CEQA claims to leave no doubt that a petitioner must appeal a determination of the Executive Director to the Board. Second, the Court held that the Board, and not DFG, was properly designated as lead agency of the Project for CEQA purposes. While the Board does not have the primary authority to “carry out” the Project, it does have the primary authority to “approve of” the Project, and according to CEQA, the lead agency only needs to have the primary authority over one or the other. Moreover, the administrative record included an interagency agreement between DFG and the Board naming the Board as the lead agency. Third, the Court held that petitioner failed to show that changes to Project implementation caused any significant changes to the Project itself. The Court explained that even though the EIR was for a unified project, the later decision to develop the Project in phases did not substantially change the Project to the point where a supplemental EIR was required. Concerning petitioner’s fourth and fifth arguments, the Court found that the Board did not violate CEQA by failing to adopt a Statement of Overriding Considerations or by approving the Project before EIR was completed. The Court explained that the Board’s execution of the MOU was not a project approval pursuant to CEQA for two reasons: 1) it was conditioned on CEQA approval; 2) the EIR exhaustively discussed and considered alternatives, including no project. Because the Board had not yet approved the project pursuant to CEQA, the Board was not yet required to adopt a Statement of Overriding Considerations. Sixth, the Court explained that the Board as a whole did not need to certify the EIR, but could employ personnel necessary to exercise its duties as authorized by the Water Code. Thus, the certification of the EIR by the executive director alone was sufficient. And lastly, the Court held that DFG’s findings were adequate because the petitioner’s challenge simply repeated its unlawful project phasing argument.

Written By: Tina Thomas and Chris Butcher
___________

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 holds the Integrated Waste Management Act Does Not Vest a County with Any Authority Over Issuance of a Solid Waste Facilities Permit and, Therefore, the County is Not the Decisionmaking Body for the Purposes of CEQA

Tuesday, May 8th, 2012

In No Wetlands Landfill Expansion v. County of Marin (2012) 2012 Cal.App.LEXIS 330, the First Appellate District reversed the trial court’s determination that CEQA required the Marin County Board of Supervisors to hear an administrative appeal from the Marin County Environmental Health Services’s (Marin EHS) approval of a solid waste facilities permit for the expansion of a landfill. Petitioners argued the Board of Supervisors was the decisionmaking body for the purposes of CEQA because Marin County Guidelines required the Planning Commission to review the EIR and Planning Commission decisions are reviewable by the Board of Supervisors. Petitioners also argued the Board of Supervisors was the decisionmaking body because the Integrated Waste Management Act authorizes the Board of Supervisors to appoint a hearing panel or officer in the event a non-mandatory administrative appeal is filed, and that the Board of Supervisors may even appoint three of its own members as the panel.

The Court was not persuaded and concluded that because the Board of Supervisors is not the entity with the ultimate decisionmaking power to approve the EIR it was of no consequence that the Planning Commission reviewed, and provided recommendation on, the EIR. The Court also explained that the existence of an appeal panel that may include some, but not all, members of the Board of Supervisors, did not provide the Board as a whole with some form of decisionmaking power concerning the EIR or permit. Therefore, the Court remanded the matter to the trial court and directed the court to address the petitioners’ challenges to the EIR on its merits.

Key Points:

The Court declined the City’s request for the Court to address the merits of the petitioners’ CEQA claims because the Court concluded the causes of action challenging the adequacy of the EIR are properly committed to the trial court for its resolution. Article VI, Section 10, of the California Constitution provides the Supreme Court, courts of appeal, and superior courts with original jurisdiction in proceedings for extraordinary relief in the nature of mandamus. Therefore, a court of appeal could elect to resolve substantive CEQA claims that a trial court has not previously addressed. Such review by a court of appeal would serve to facilitate the Legislature’s goal that CEQA litigation “be quickly heard and determined.” (Pub. Resources Code, § 21167.1, subd. (a).)

Written By: Tina Thomas and Chris Butcher
___________
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 Upholds Lower Court Ruling Barring Petitioner from Prevailing on CEQA Merits For Failure to Request a Hearing Within Statutory 90-day Period

Tuesday, May 8th, 2012

In an unpublished decision, North County Watch v. County of San Luis Obispo (2012) 2012 Cal.App. Unpub. LEXIS 2312, the Second Appellate District upheld the trial court’s determination that a petitioner was barred as a matter of law from prevailing on its CEQA challenges because petitioner failed to request a hearing within 90 days of filing its petition. The appellate court, however, reversed the trial court’s ruling imposing sanctions against the petitioner for failing to comply with local court rules and court orders thereby causing undue delay in the proceeding. While the court agreed that the petitioner failed to timely pay for the administrative record, failed to timely raise challenges to the adequacy of the administrative record, failed to file its opening brief on time, and even acknowledged the petitioner failed to comply with the court rules on appeal, the Court nevertheless concluded that counsel is entitled to due process which requires adequate notice and opportunity to be heard on a motion for sanctions. The notice of motion for sanctions only identified the petitioner, not its counsel, and, therefore, due process required reversal of the sanctions imposed on their counsel.

Written By: Tina Thomas and Chris Butcher
___________
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 Rules in Favor of Forest Service’s Approval of Post-Fire Logging and Restoration Project

Tuesday, May 8th, 2012

In Earth Island Institute v. Carlton, (2012) 2012 U.S. Dist. LEXIS 44177, petitioner challenged a logging and restoration project under the National Forest Management Act (“NFMA”) and the National Environmental Policy Act (“NEPA”). The district court granted defendants’ motion for summary judgment. Plaintiff makes four central arguments for why Defendants violated NEPA in the preparation of the Revised Final Environmental Impact Statement: (1) the USFS failed to ensure the scientific accuracy and integrity of the Environmental Impact Statement (EIS) and failed to disclose its methodology; (2) the USFS failed to meaningfully respond to dissenting scientific opinion in the EIS; (3) the USFS failed to take a hard look at the impacts of the project on the Black-Backed Woodpecker; and (4) the USFS failed to prepare a supplemental EIS in light of a new study on Black-Backed Woodpecker viability. The court found no clear error that rendered the decision arbitrary and capricious. The court also found that including a response to a comment in an appendix to the EIS rather than the body of the EIS did not violate NEPA.

With respect to the NFMA challenge, although the court acknowledged that a plan relied on by USFS was somewhat ambiguous, but because the court is required to defer to USFS interpretation of its own plans found USFS’s actions were not arbitrary and capricious.

Written By: Tina Thomas and Chris Butcher
___________
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 Rules Forest Service’s Categorical Exclusion Memos are Arbitrary and Capricious Regarding Livestock Grazing

Tuesday, May 8th, 2012

In Western Watersheds v. United States Forest Service, (2012) 2012 U.S. Dist. LEXIS 45573, petitioners challenged the Forest Service’s alleged practice of reauthorizing livestock grazing on federal land without conducting the proper environmental review under the National Environmental Policy Act (“NEPA”). The court concluded that the actions by the Forest Service in connection with the Big Ridge categorical exclusion and Mendocino categorical exclusion decision memos were arbitrary and capricious in certain respects and failed to take the “hard look” required by NEPA. Rather than entering summary judgment, the court directed the parties to confer regarding whether it would be more appropriate for the court to retain jurisdiction while the Forest Service complied with NEPA.

Written By: Tina Thomas and Chris Butcher
___________
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.

Unpublished Decision Holds that a Comparative Analysis is Required to Support the Conclusion that an Alternative is Economically Infeasible

Tuesday, May 8th, 2012

In an unpublished decision, Quartz Hill Cares v. City of Lancaster (2012) 2012 Cal.App.Unpub. LEXIS 2026, petitioner sought a writ of administrative mandate to overturn the City of Lancaster’s (City) approval of a 395,000-square-foot commercial project on land previously zoned for residential use under the Planning and Zoning Law and the California Environmental Quality Act (CEQA).  The Second Appellate District Court (Court) held that the City erred in certifying its Final Environmental Impact Report (FEIR).  Pertaining to the Planning and Zoning Law, the Court dismissed the petitioner’s procedural issues, holding that the errors committed by the City were not prejudicial.  The Court dismissed all of the petitioner’s substantive issues under the Planning and Zoning Law as well, explaining that the petitioner had failed to carry its burden of providing sufficient evidence to show that the City violated Article 10.6 of the Planning and Zoning Law by rezoning property previously designated for residential uses to commercial uses.  The Court found that the City still had four times the amount of residentially-zoned land to meet its need for low to moderate-income housing.

However, under CEQA, the Court found that the City failed to provide sufficient evidence in its FEIR to support its conclusion that the Reduced Commission Density Alternative (RCDA) was “not economically viable.”  The Court explained that an EIR must include sufficient information about each alternative to allow for a meaningful evaluation and comparison in connection with a proposed project.  While the discussion of alternatives does not need to be exhaustive, it does need to include the “analytic route” the agency took to reach a conclusion on the alternatives.  The Court explained that the FEIR should have included comparative economic data and analysis between the project and the reduced size alternative. Therefore, despite concluding that the EIR included a reasonable range of alternatives, the Court held that the analysis of alternatives lacked sufficient information.

Written By: Tina Thomas and Chris Butcher

___________

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.