Client Alert

Summary of 2018 Court Decisions Involving the California Environmental Quality Act

by Mike Zischke

I.          OVERVIEW OF CEQA CASE LAW DEVELOPMENTS IN 2018

A.The Supreme Court issued its decision in Sierra Club v. County of Fresno, which decided issues related to standard of review, requirements to connect analysis of air quality impacts with health effects of those impacts, and deferred mitigation. The Court held that whether an EIR analysis of impacts sufficiently performs the function of facilitating informed agency decision-making and public participation is generally subject to independent judicial review. The Court found that the EIR failed to provide sufficient information connecting the project’s air emissions to health impacts or explain why such information could not be ascertained. On the final issue, court held that a mitigation measure is not improperly deferred if it includes a substitution clause permitting the lead agency to substitute measures with other measures that are equally effective or superior as new technology becomes available.

B.The Supreme Court granted review of a case that held county well permits were discretionary.Protecting Our Water and Environmental Resources v. Stanislaus CountyOne other CEQA case is still pending in the Supreme Court - Union of Medical Marijuana Patients, Inc. v City of San Diego –

C.25 decisions from the various Courts of Appeal (26 if we include one case in which rehearing was granted).In chronological order, some of the key rulings are that well permits in at least one county ruled to be ministerial (California Water Impact Network), incompatibility with a historic district can trigger EIR even if the project does not affect any of the historic buildings (Protect Niles), and per capita efficiency metric as significance threshold for GHG analysis set aside (Golden Door).

D.One Court of Appeal decision is particularly troubling – Golden Door v. County of San Diego, because it set aside GHG guidance document and held that an efficiency metric based on state standards must justify using those state standards for impacts of county projects.

II.        SUPREME COURT DECISION

Sierra Club v. County of Fresno (2018) ___ Cal.5th ___ (2018 Cal. LEXIS 9831, Supreme Court Case No. S219783, December 24, 2018).  Adequacy of EIR disclosures generally is a mixed question of law and fact; air quality analysis must include meaningful analysis of health impacts from project emissions.

  • Petitioners challenged an EIR for a specific plan for a 942-acre master planned community; this case had been pending at the Supreme Court for almost four years
  •  The court held that review of an EIR analysis of impacts, and whether that analysis is sufficient to meaningfully inform the public and decisionmakers, presents a mixed question of law and fact.  Thus, to the extent this question requires a determination whether statutory criteria were satisfied, independent or de novo review by the court is appropriate, but when factual questions predominate (such as a choice of methodology), a more deferential standard is warranted, such as whether the EIR decision is supported by substantial evidence.
  • The court held that disclosing only general health impacts from air pollutants and the amount a project’s air pollutants would exceed applicable thresholds is insufficient to provide meaningful disclosure.  An EIR must make a reasonable effort to substantively connect a project’s air quality impacts to likely health consequences or explain in meaningful detail why it is not feasible to provide such an analysis.
  • The court upheld a mitigation measure that permitted the lead agency to substitute different air pollution control measures that are equally effective or superior to those proposed in the EIR, as new technology and/or other feasible measures become available during project build-out, holding that this type of substitution clause is not improper deferral
  • Finally, the court held that an EIR may include mitigation measures that reduce a project’s impacts, even though the measures do not fully mitigate the impact to a less than significant level.

III.       COURT OF APPEAL DECISIONS

            A.        Does CEQA Apply?  Is the Activity a “Project”?

California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th 666 (petition for review granted and held, November 15, Supreme Court Case No. S251056).  County well permits are ministerial and not subject to CEQA.

  • Petitioners challenged county issuance of well permits to 4 agricultural enterprises, mostly vineyards, without CEQA compliance
  • County code states well permits “shall be issued” if the wells comply with county and state standards – court stated these are all fixed technical requirements
  • Note: The Supreme Court granted review of an unpublished decision in Protecting Our Water and Environmental Resources v. County of Stanislaus, Fifth District Case No. F073634 (August 24, 2018, petition for review granted November 15, Supreme Court Case No. S251709), in which the Court of Appeal found certain well permits in Stanislaus County to be discretionary.  In California Water Impact Network, the Supreme Court issued a “grant and hold” order, so this case is on hold pending the Court’s resolution of the Protecting Our Water decision.
  • Reminder that, under Rules of Court 8.1105(e)(1)(B) and 8.1115(e)(1), as amended in 2016, California Water Impact Network remains citable as persuasive authority, but not as binding precedent.

B.        Statutory and Categorical Exemptions

Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal.App.5th 1039.  System of 13 microcell transmitters properly determined to be exempt under the “small structures” categorical exemption.

  • 13 microcell transmitters approved with separate permits at same hearing, all under the Guideline 15303 categorical exemption for construction of limited numbers of small structures
  • No improper segmenting – all were evaluated together
  • Cumulative impact exception (15300.2(b)) did not defeat the use of the exemption, as any evidence of possible future projects by another company was speculative
  • Location exception (15300.2(a) did not defeat the use of the exemption, that exception applies if the project affects an officially mapped and designated environmental resource of hazardous or critical concern, and nothing in the cited ag zoning stated the area was so designated.

Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338.  Wireless telecom facility properly determined to be exempt under the “small structures” categorical exemption.

  • City approved wireless telecom facility in public park, using Guideline 15303 small structure exemption
  • Opponents did not exhaust remedies by raising CEQA objections, but exhaustion not required because no hearing or other opportunity to exhaust remedies was provided.
  • Substantial evidence supported the determination that the project fit within the exemption
  • There was no evidence of an unusual circumstance, and the city had affirmative evidence of no significant impacts
  • No evidence that the site was officially designated as environmentally sensitive, so the location exception (15300.2(a) did not defeat the use of the exemption

County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377.  GHAD beach restoration project statutorily exempt as emergency action.

  • A geologic hazard abatement district (GHAD) approved a beach restoration project and related settlement agreement
  • Court held that both the settlement agreement and restoration work were part of the same overall project – the broad definition of “project” applies in statutory exemption context as well
  • Improvement projects by GHADs are defined by statute as emergency actions exempt from CEQA, and this fit within that definition. Pub. Res Code §§26601 (GHAD actions are emergency actions), 21080(b)(4) (emergency exemption)

World Business Academy v. State Lands Commission (2018) 24 Cal.App.5th 476.  Existing facilities exemption applies to new leases for Diablo Canyon nuclear plant intakes.

  • Commission approved new leases for existing water intake facilities at Diablo Canyon nuclear plant, under Guideline 15301 exemption for existing facilities
  • Guideline 15301(b) includes existing power facilities as example of exemption; opponents argued this was never meant to apply to nuclear power plants, court held under plain language they are power facilities
  • Court rejects a variety of arguments that the unusual circumstances exception applied – primarily because the existing baseline included the operation of the nuclear plant

Bottini v City of San Diego (2018) 27 Cal.App.5th 281 (petition for review granted on regulatory takings issue, December 19, 2018, Supreme Court Case No. S252217).  Overturning city council decision that home construction not categorically exempt; prior demolition not part of home construction project.

  • Planning Commission approved new home construction as categorically exempt under the exemption for construction of small structures (Guideline 15303) which specifically lists construction of a single family home as an example
  • City council upheld an appeal and reversed the Commission decision, asserting that a previously approved demolition was part of the overall project – court said no, that demolition was already approved (as removal of a nuisance) and completed when the house was approved
  • Exceptions for impacts to historical resources and unusual circumstances did not apply, based on the court’s determination that the baseline was a vacant lot with the prior house demolished

C.        Negative Declaration Case Law

Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712.  Tiered mitigated negative declaration for in-fill project upheld; parking impacts exempt from CEQA.

  • 68-unit mixed use/residential project approved on basis of both a mitigated negative declaration and Guideline 15332 exemption for infill projects
  • Parking claims for in-fill projects in transit priority areas are outside CEQA per Public Resources Code §21099(d)(1)
  • MND was also properly tiered from prior specific plan EIR, with mitigation measures incorporated into the project

Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877.  Negative declaration for youth center upheld against noise claims.

  • Negative declaration evaluated use of a defunct hospital building for 63-bed youth support facility
  • Neighbor’s noise arguments did not constitute substantial evidence supporting a fair argument of environmental impact because they were based on non-expert opinions, they were speculative given the parking restrictions on the site, and they were based on misinterpretation of the local noise ordinance

Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129.  Mitigated negative declaration rejected based on claims of impact to historic district.

  • Mixed use project of townhomes and residential/retail center on vacant six acre parcel within historical overlay district
  • Visual impact of a project on surrounding historical district properly considered an aesthetic impact under CEQA, even if no direct impact on historical buildings in district
  • Opinions of architectural review board members about aesthetic impacts constituted substantial evidence to support fair argument
  • Resident’s observations of traffic likewise constituted supporting substantial evidence (despite contradicting a professional traffic study)

Friends of Riverside’s Hills v City of Riverside (2018) 26 Cal.App.5th 1137.  No evidence that project violated land use regulations, so no fair argument for EIR based on claimed violations.

  • Negative declaration for six homes in “residential conservation zone”
  • Issue was whether there were violations of land use regulations adopted to avoid environmental impacts, such as in Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903.
  • No evidence of land use violations – petitioners either misconstrued the land use provisions in making their argument, or cited possible future violations

Georgetown Preservation Society v. County of El Dorado (2018) ___ Cal.App.5th ___ (2018 Cal.App. LEXIS 1167, Third District Case No. C084872, December 17, 2018).  Lay testimony of significant aesthetic impact supported fair argument of impact from chain store in historic gold rush downtown.

  • The project at issue was a Dollar General store proposed for a lot adjacent to historic buildings in a downtown area; project was reviewed in a negative declaration.
  • Court found that lay opinion constituted substantial evidence of a fair argument that the project would have an adverse aesthetic impact, and that design review findings that the project would comply with the county’s Historic Design Guide did not change the fact that there was substantial evidence of an adverse aesthetic impact.   
  • County made no credibility findings regarding comments about the project’s aesthetic impacts so court had an inadequate basis for deferring to county’s determination that rejected the evidence; this is an extension of Pocket Protectors.

D.        EIR Decisions

Los Angeles Conservancy v. City of West Hollywood (2018) 18 Cal.App.5th 1031.  EIR alternatives analysis and findings rejecting a preservation alternative upheld.

  • EIR for Melrose Triangle project, mixed use development including demolition of 1928 building not designated as historic, EIR analysis indicated that preservation alternative for 1928 building could not feasibly be incorporated into project
  • EIR did not include any conceptual design of the alternative, but petitioners did not recite any case law requiring that such be provided
  • City’s general responses to general comments were sufficient
  • Court found that agency feasibility findings entitled to great deference, substantial evidence including architect and planning staff testimony, supported finding that preservation alternative would not feasibly attain several project objectives

City of Long Beach v. City of Los Angeles (2018) 19 Cal.App.5th 465.  Upholding project description and GHG analysis in port rail terminal EIR, but air quality analysis rejected as too general.

  • EIR for Southern California International Gateway rail terminal proposed by Port of LA and BNSF across roadway from Long Beach homes and schools
  • EIR project description was adequate, was not required to include potential changes at another railyard that opponents argued were likely to result from the new railyard project
  • Court rejected claim that EIR did not adequately evaluate indirect impacts from overall growth in local railyard capacity, finding that substantial evidence supported the finding that cargo volume would increase with or without the project
  • Air quality analysis in EIR was incomplete, because the composite analysis did not disclose the magnitude of local exceedances of particulate standards, and this was of particular relevance given the location of the project across the road from homes and schools – EIR needed to disclose “how frequently and for what length of time” particulate standards would be exceeded
  • Court waffled on how much quantification of cumulative air impacts was required, but held that the analysis of cumulative air impacts from the project plus another proposed railyard was too general and further disclosure was required
  • Cumulative analysis of non-cancer risk was adequate and based on calculations shown in EIR charts
  • Analysis of consistency with GHG reduction plans was adequate – did not use state numeric targets without justifying them for local use as in CBD v. CDFW, instead the plan consistency analysis was based on qualitative factors, in addition to a separate discussion identifying a significance impact due to increased emissions.  Court held this analysis was particularly apt in this case because both the project and no project scenarios result in significant impacts

Visalia Retail, LP v. City of Visalia (2018) 20 Cal.App.5th 1.  General plan update EIR upheld, no substantial evidence supporting claims of urban decay.

  • Retail owner challenged general plan update EIR based on claim that a new policy limiting retail in neighborhood commercial areas to 40,000 square feet would cause retailers not to locate in neighborhood commercial areas, leading to urban decay
  • There was no substantial evidence, however, supporting the claim of urban decay – so no basis for rejecting EIR on that basis

Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214.  EIR for refinery propane/butane recovery project upheld against project description and GHG analysis claims.

  • EIR evaluated project to recover propane and butane from refinery fuel gas, so it can be shipped and sold to third-party users
  • Opponents claimed project description masked the true nature of the project as making more use of heavier oil feedstocks; court found the propane recovery was independent of feedstock selection, and EIR fully disclosed ability of refinery to accept wide variety of feedstocks, including heavier crude oil
  • GHG analysis did not quantify emissions from downstream uses of propane and butane, based on information showing that such uses were highly variable, including non-fuel uses that reduced emissions.  Court held given this uncertainty that quantification was not required; court also noted that air district that had originally raised this concern was satisfied with the EIR response
  • EIR information showed that the zone of risk from explosions did not extend to nearby sensitive receptor, so further disclosure of that risk issue not required
  • EIR adequately responded to comments on cumulative transportation risks

San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.  EIR for housing element update upheld.

  • An association of neighborhood associations challenged housing element update, arguing city improperly used future baseline based on population projections and that future baseline masked the impacts of the housing element revisions
  • Court held analysis was adequate; under case law baseline is not rigid, and “it would be absurd” to ask city to hypothesize impacts of a long-term housing plan as if they took place immediately

Golden Door Properties v County of San Diego (2018) 27 Cal.App.5th 892. Use of efficiency metric based on state standards as a GHG threshold set aside.

  • County adopted a climate action plan pursuant to its 2011 general plan update, and that CAP was set aside in Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152; County begin work on a new CAP, and in the interim published a 2016 “guidance document” with recommended guidelines for determining significance based on an efficiency metric of 4.9 metric tons of carbon dioxide equivalent per service population
  • County argued case was not ripe, and the guidance was not a formal significance threshold; court rejected both arguments, finding the metric was a quantified measure intended to determine significance
  • As a significance threshold, the guidance document was required to be adopted through a public process, per Guideline §15064.7, and it was not
  • Court also found that the metric was not supported by substantial evidence, because it was based on statewide standards with no explanation why those standards were sufficient for use in the county

High Sierra Rural Alliance v County of Plumas (2018) 29 Cal.App.5th 102.  General Plan update EIR upheld against rural growth and recirculation claims.

  • County prepared general plan update and first-tier EIR, plan and EIR stated future growth would largely be limited to planning areas
  • Court held plan was consistent with Timberland Productivity Act, and reflected its requirement that residences on timber production land only allowed if compatible with timber production use
  • Court upheld EIR against claim that it ignored likely growth outside planning areas, and County experience and data showed growth outside planning areas was unlikely, County overall has had declining population
  • EIR was not required to speculate on a worst case scenario (3rd CEQA decision to reject “worst case” analysis)
  • Recirculation not required, because additional maps and building intensity standards for open space parcels added after the close of public comment on the draft EIR were not “significant new information”

E.         Certified Regulatory Programs

John R. Lawson Rock & Oil, Inc. v. State Air Resources Board (2018) 20 Cal.App.5th 77.  Air Board set proper existing conditions baseline in evaluating revised truck and bus rule, but ignored evidence of potential impacts.

  • Air Board, through a certified regulatory program under CEQA, adopted modifications to its 2008 Truck and Bus Regulation requiring reduced emissions; the modifications were intended to give small fleet operators more time to comply with the required reductions
  • Board initially announced the modifications in a regulatory advisory, a year prior to Board action; Court of Appeal held this constituted an “approval” under Save Tara (2008, 45 Cal.4th 116), requiring the court to void the modifications
  • Following the initial advisory announcement, the Board formally approved the modifications, and the lawsuit was amended to include that action, which was upheld in part and rejected in part
  • Court upheld the Air Board’s baseline, based on existing conditions, and rejected argument that the baseline had to account for emissions reductions from regulations
  • But the Board ignored evidence that the regulations would increase emissions, and that evidence supported a fair argument of impact, so an EIR-equivalent document was required.

F.         Subsequent Review Decisions

Save Our Heritage Organisation v. City of San Diego (2018) 28 Cal.App.5th 656 (Petition for review filed December 3, 2018, Supreme Court Case No. S252882).  Upholding use of CEQA addenda in general, no findings required for addenda.

  • Project to add pedestrian spaces within Balboa Park previously upheld, Save Our Heritage Organisation v. City of San Diego (2015) 237 Cal.App.4th 163
  • While prior appeal pending, project was revised with various minor changes, including some additional parking; petitioners challenged the use of addendum
  • Court rejected a claim that the addendum Guideline, 15164, inconsistent with CEQA.
  • New findings under PRC §21081 not required, because no new impacts

G.        CEQA Litigation Cases (including litigation holdings in cases above)

Heron Bay Homeowners Ass’n v. City of San Leandro (2018) 19 Cal.App.5th 376.  Upholding proportional award of attorney’s fees to prevailing homeowners association partly motivated by pecuniary interest.

  • Trial court set aside the mitigated negative declaration for zoning variance to allow a 100-foot tall wind turbine, and awarded attorneys’ fees to homeowners association as prevailing party – but reduced those fees because the litigation was partly motivated by homeowners interest in preserving value, and partly by public interest
  • Court of Appeal held that this apportionment of the claimed fee was appropriate under Conservatorship of Whitley (2010) 50 Cal.4th 1206

City of Long Beach v. City of Los Angeles (2018) 19 Cal.App.5th 465.  Attorney General may litigate CEQA issues even if no party exhausted remedies as to those issues.

  • Proponents of the LA railyard project at issue in this case argued that Public Resources Code 21177(d), which exempts the AG from exhaustion requirements, applies only to “identity exhaustion” – the requirement that a litigant object to the project, but did not extend to “issue exhaustion” – the requirement that some party exhaust remedies on the issues to be litigated
  • Court of Appeal rejected that holding, holding that the statute exempts the AG from all exhaustion of remedies requirements

Landwatch San Luis Obispo County v. Cambria Community Services Dist.  (2018) 25 Cal.App.5th 638.  Record preparation costs awarded to public agency which prepared record following petitioners’ delay.

  • Petitioners elected to prepare administrative record, but failed to do so within 60-day period set by Public Resources Code §21167.6(b).
  • Agency then proceeded to prepare record, filed a memorandum of costs for $38,836, reduced by trial court to $21,160.
  • Petitioners argued they were not liable for costs because they had elected to prepare the record; Court of Appeal held that agency may prepare the record and be awarded costs when petitioner elects but then unreasonably delays preparation

The Inland Oversight Committee v City of San Bernardino (2018) 27 Cal.App.5th 771.  Previously litigated CEQA claims barred by res judicata.

  • Latest in a series of challenges to development in Highland Hills pursuant to a 1982 specific plan and 1989 settlement agreement (resolving litigation over a plan amendment) that established expedited, ministerial process for minor changes to the plan
  • Various plan changes were approved in 2014, reducing units, uses and development footprint; trial court ruled in 2015 that the changes were properly approved under ministerial process, upheld on appeal in 2017
  • Petitioners brought a second claim raising the same CEQA issue, barred by res judicata, and this bar applied to two new parties as petitioners, because they were in privity with the original petitioner

Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista (2018) 29 Cal.App.5th 424.  Writ of mandate was a final appealable order; in challenging adequacy of return to writ, petitioners were limited to writ compliance issues and could not litigate previously decided CEQA issues.

  • Petitioners challenged approvals for a gas station, convenience store and quick service restaurant. Court in March 2016 found that noise analysis inadequate and issued April 2016 writ finding noise analysis severable from other issues under Public Resources Code §21168.9, directing City to comply with CEQA.  No appeal from that trial court order.
  • When city filed supplemental return with revised mitigated negative declaration and new noise analysis, trial court upheld that analysis against a further challenge.
  • On appeal, petitioners argued the April 2016 order was interlocutory order and not appealable; Court of Appeal rejected this argument, held that the April 2016 order was final order disposing of all CEQA claims, so the only cognizable CEQA claims on this appeal were claims about the adequacy of the revised noise analysis
  • In unpublished part of the opinion, the court upheld the MND noise analysis

H.        Cases Not Citable as Precedent

The following two cases were initially published, but are no longer citable as precedent, due to either being depublished by the Supreme Court, or a petition for rehearing being granted.  They are included here for reference and clarity, given that they were published at one point during the year.

Citizens Coalition Los Angeles v. City of Los Angeles (depublished by the California Supreme Court, November 20, 2018, Supreme Court Case No. S251687).  Upholding EIR addendum for amendments to area plan to allow retail store.

  • Addendum evaluated an ordinance creating a new sub-zone within previously approved area plan, for a Target store
  • Court rejected argument that addendum to a plan-level EIR could not be used for a specific project

Save Lafayette Trees v. City of Lafayette (2018) First District Case No. A154168.  Planning & Zoning Law statute of limitations governs over CEQA statute when longer 180 day CEQA statute running (real party’s petition for rehearing granted, November 26, 2018).

  • Letter agreement for tree removal over gas pipelines was challenged under planning law and CEQA.  Letter agreement resolved dispute between PG&E and city as to whether any permits required at all.  No CEQA review done, no notice of determination posted.
  • Generally, if a CEQA claim is brought against a planning or subdivision approval, the lawsuit must be filed and served within the 90-day statutory time under the Government Code, in addition to meeting the CEQA statute 30-day time. Royalty Carpet Mills (2005) 125 Cal.App.4th 1110 (planning); Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743 (map).
  • When CEQA’s 180-day statute is running, however, the Government Code limitations period does not cut off the longer CEQA statute.

IV.       CEQA CASES PENDING AT THE CALIFORNIA SUPREME COURT

Union of Medical Marijuana Patients, Inc. v. City of San Diego, Supreme Court Case No. S238563

Supreme Court Case Summary: This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of [CEQA]? (2) Is the enactment of zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect change in the environment?

Case Status: Review granted January 11, 2017, case is fully briefed, and awaiting assignment for oral argument.

Protecting Our Water & Environmental Resources v. Stanislaus County, No. S251709

Supreme Court Case Summary:  This case presents the following issue: Is the issuance of a well permit pursuant to state groundwater well-drilling standards a discretionary decision subject to review under [CEQA] or a ministerial action not subject to review?

Case Status: Review granted November 15, 2018, merits briefing underway.

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