UPDATE ON LAND USE AND CEQA CASES (Cases Reported Between September 2002 and March 14, 2003)

Transcription

1 UPDATE ON LAND USE AND CEQA CASES (Cases Reported Between September 2002 and March 14, 2003) Thomas B. Brown City Attorney City Attorneys Department City of Napa League of California Cities P.O. Box 660 Spring Conference Napa, CA May 9, 2003 (707)

2 TABLE OF AUTHORITIES Calbeach Advocates v. City of Solana Beach (Oct. 9, 2002) 2002 D.J. D.A.R , 103 Cal.App.4th City of Half Moon Bay v. Superior Court (Feb. 28, 2003) 2003 D.J. D.A.R Cal.App.4th Communities For a Better Environment v. California Resources Agency (Oct. 28, 2002) 2002 D.J. D.A.R , 103 Cal.App.4th Gardner v. County of Sonoma (Feb. 6, 2003) 2003 D.J. D.A.R. 1429, 29 Cal.4th Kaahumanu v. County of Maui (Jan. 14, 2003) 315 Fed.3d Loewenstein v. City of Lafayette (Nov. 13, 2002) 2002 D.J. D.A.R 12897, 103 Cal.App.4th Magan v. County Kings (Dec. 12, 2002) 2003 D.J. D.A.R. 667, 105 Cal.App.4th Marine Forest Society v. California Coastal Commission (Dec. 30, 2002) 2002 D.J. D.A.R , 104 Cal.App.4th Natural Resources Defense Council, Inc. v. City of Los Angeles (Oct. 30, 2002) 2002 D.J. D.A.R , 103 Cal.App.4th Neighbors of Cavitt Ranch v. County of Placer (March 7, 2003) 2003 D.J. D.A.R Santa Clarita Organization for Planning the Environment v. County of Los Angeles (Feb. 27, 2003) 2003 D.J. D.A.R. 2219, Cal.App.4th Save Our NTC, Inc. v. City of San Diego (Jan. 14, 2003) 2003 D.J. D.A.R. 553, 105 Cal.App.4th Sprague v. County of San Diego (Jan. 21, 2003) 2003 D.J. D.A.R. 1614, 130 Cal.Rptr.2d The Legacy Group v. City of Wasco (March 13, 2003) 2003 D.J. D.A.R Travis v. County of Santa Cruz (Nov. 26, 2002) (2002) 100 Cal.App.4th 609, rev. granted (Nov. 26, 2002) 2002 D.J. D.A.R , 58 P.3d 928, 127 Cal.Rptr.2d

3 V. POLICE POWER B. LAND USE 1. General 2. Planning 3. Zoning a. General b. Public Agencies Save Our NTC, Inc. v. City of San Diego (Jan. 14, 2003) 2003 D.J. D.A.R. 553, 105 Cal.App.4th 285. A citizens group sought to have the City of San Diego apply an initiative zoning ordinance known as Proposition D to a property that was previously operated by the United States Navy as a naval training center, but that subsequently was transferred to the City for private development. Proposition D imposed a 30-foot height limitation on new construction within a coastal height limit overlay zone. When the City created a 26 member redevelopment committee to make recommendations to the City for development of the former navel property, the City concluded that Proposition D would not apply to the property because the measure was not intended to apply to, and specifically exempted, land owned by the federal government at the time of the measure s adoption. The citizens group filed suit seeking writ of mandate and injunctive relief. The Superior Court denied relief on the grounds that Proposition D did not apply to the site and the petition was untimely. The Court of Appeal affirmed. In so doing, it rejected the claim that the petition was untimely pursuant to Government Code Section 65009(c)(1)(B), because the city s approval of the project was conditioned on subsequent coastal commission certification, and thus not final for purposes of initiating the limitations period. However, the court affirmed the trial court s conclusion that Proposition D did not intend to include the subject property, and that any effort by the City to impose such local zoning control would be preempted by federal law. c. Conditional Use Permits 4. Growth Management 2

4 5. Subdivision Map Act Gardner v. County of Sonoma (Feb. 6, 2003) 2003 D.J. D.A.R. 1429, 29 Cal.4th 990. The Gardners owned approximately 158 acres of land in Sonoma County. The land was part of property consisting of more than 1000 acres for which a subdivision map had been recorded in The original 1865 map consisted of nearly 90 rectangular lots in a grid. These lots were divided into four different ranges with 15 to 28 lots per range. The Gardners property bore little resemblance to the rectangular lots depicted on the 1865 map, containing two of the original rectangular lots in full, but only fragments of 10 of the other original rectangular lots. In 1996, the Gardners applied to the county for 12 certificates of compliance under the Subdivision Map Act, Government Code Section , to establish that their property consisted of 12 lawfully created parcels. The county denied the application, with the Board of Supervisors ultimately finding that (1) the property had been repeatedly and consistently conveyed as a single unit of land since 1865, and generally described in metes and bounds since 1903, and (2) none of the 12 requested lots had ever been separately conveyed or separately described in a grant deed. The Gardners then sued seeking mandate to compel the county to issue the 12 certificates of compliance. The Superior Court denied the petition, and the Court of Appeal affirmed. The California Supreme Court affirmed. It held that the 1865 map was neither a recorded final map, a parcel map, an official map, or an approved certificate of exception for purposes of the certificate of compliance provision of the Subdivision Map Act, Section The 1865 map was not a recorded final map or a parcel map because those terms are statutorily defined to include only those maps that have been reviewed and approved for recordation by a local agency under the provisions of the Map Act or local ordinance adopted thereunder. The court concluded that the 1865 map did not qualify as an official map notwithstanding the fact that it had been included in the Thompson Atlas that had been approved by the Sonoma County Board of Supervisors in 1877, because the purpose of that Board s recognition of the atlas in 1877 had been unrelated to the purposes set forth under the Subdivision Map Act. The 1865 map finally did not constitute a certificate of exception under the Act because that term was limited to specified parcels in the County of Los Angeles. Finally, the court held that the parcels were not exempt from or grandfathered out of the Subdivision Map Act by either Section (d) or Section (a) (the anti-merger provision). Section (d) exempts from the Map Act s enforcement provisions parcels of a subdivision... exempt from any law... at the time the subdivision was established. The court ruled that the Gardners land was not part of an established subdivision because there had been no actual history of conveyance by deed or patent prior to the enactment of modern subdivision laws. The court further noted that the anti- 3

5 merger provisions of Section (a) is intended to prevent automatic mergers of parcels legally created under the Map Act and does not apply to the creation of parcels in the first instance. 6. Environmental Constraints 7. Building Regulations 8. Housing 9. Tidelands and Beaches City of Half Moon Bay v. Superior Court (Feb. 28, 2003) 2003 D.J. D.A.R. 2431, Cal.App.4th. The City of Half Moon Bay issued a coastal development permit (CDP) to the owner of property who sought to subdivide it within the city. The city s issuance of the CDP was done only in response to order of the Superior Court following the property owner s filing of a petition for writ of mandate to compel the issuance of the CDP following the city s previous denial of the CDP. After the city issued the CDP, four individuals, including two Coastal Commissioners, then appealed the city s action to the Commission. The Commission in turn determined that it had jurisdiction to hear the appeal under the Coastal Act, and after conducting a de novo hearing, approved the CDP subject to newly imposed conditions including the elimination of 58 of the 85 residential lots sought under the application, as well as corresponding roads and infrastructure improvements. The property owner sought a second writ of mandate which again was granted. The Commission and the city petitioned the Court of Appeal for a writ of mandate asking the court to stay enforcement of the Superior Court s order and to review the Superior Court s actions. The Court of Appeal denied the petition for extraordinary relief. In so doing, it concluded that the Commission did not have appellate jurisdiction under the Coastal Act to review a decision of a city granting a coastal development permit in response to a writ of mandate issued by a superior court. Marine Forest Society v. California Coastal Commission (Dec. 30, 2002) 2002 D.J. D.A.R , 104 Cal.App.4th The California Coastal Commission notified plaintiff Marine Forest Society that it intended to commence cease and desist proceedings regarding Marine Forest s experimental man-made reef on the ocean floor off of Newport Harbor. Marine Forest in turn filed an action seeking to enjoin the Coastal Commission from doing so, asserting that the Commission did not have the authority to issue cease and desist orders or to grant or deny permits for coastal development because the scheme for appointment of the Commission s voting members gives the legislative branch control over the Commission thus impermissibly interfering with the Commission s 4

6 executive branch responsibility to execute the laws under the separation of powers clause of the California Constitution, Article III, Section 3. The Superior Court granted the relief sought, and the Commission appealed. Note: The Court of Appeal affirmed. It concluded that the Coastal Commission s interpretation and implementation of the California Coastal Act of 1976 is an executive function, and that the appointment structure giving the Senate Committee on Rules and the Speaker of the Assembly the power not only to appoint a majority of the Commission s voting members but also to remove them at will contravenes the separation of powers clause of the California Constitution. The defect addressed by the Court has been addressed by the Legislature. Commission appointments now are for specified terms, without any right of removal by the Legislature. 10. Historic Preservation 11. Dedications and Exactions 12. Challenges a. General Kaahumanu v. County of Maui (Jan. 14, 2003) 315 Fed.3d In Maui County, conditional use permits are issued by ordinance. The county denied a CUP to an applicant seeking to use her beachfront property as a venue for performing wedding ceremonies. The county denied the CUP, and the applicants sued, claiming the denial was a violation of the Religious Land Use and Institutionalized Persons Act ( RLUIPA ). The county argued that because its CUP decisions required issuance of an ordinance, typically legislative as opposed to adjudicative or administrative act, its decision was subject to absolute legislative immunity. The Ninth Circuit rejected the county s defense. It ruled that even though the CUPs are issued by ordinance, that alone did not qualify the decision as legislative. Rather, the court focused on the nature and quality of the decision, which appeared more adjudicative and administrative than legislative because it involved the application of a general law to a specific property owner and applicant. Sprague v. County of San Diego (Jan. 21, 2003) 2003 D.J. D.A.R. 1614, 130 Cal.Rptr.2d 517. Sprague owned approximately 64 acres of undeveloped hillside property in San Diego County. In 1987, Sprague submitted to the county an application for approval of a specific plan and related permits for a proposed 5

7 development of 146 residential units. He then revised the project in 1988 and submitted to the county applications for a specific plan, tentative map, major use permit and site plan. County staff requested further site-specific review on issues. In August 2000, the county board of supervisors denied the application without a hearing. In October 2000, about two months after the county issued its decision, Sprague challenged the decision by filing a complaint for administrative mandamus, ordinary mandamus, inverse condemnation, violation of civil rights, declaratory relief, and injunctive relief. He did not, however, serve the county with a copy of the summons until December 4, 2000, 117 days after the county s August 9 decision and 27 days after the expiration of the 90 day time limit for service of the summons. The county s motion to dismiss based on the statute of limitations was granted. The Court of Appeal affirmed, noting that the limitation period under the Subdivision Map Act, Government Code Section , and its explicit requirement that service of summons be effected within 90 days after the date of the challenged decision, controlled. The court distinguished the decision in Kriebel v. City Council (1980) 112 Cal.App.3d 693, in which the court concluded that a city which appeared generally (by answering) within the limitations period had waived the statute by submitting to the jurisdiction of the court. Here, by contrast, the county made its initial appearance after the applicable 90-day limitations period expired. The court also ruled that relief under Code of Civil Procedure Section 473 (for mistake, inadvertence, surprise or neglect) does not apply where the judgment of dismissal is for failure to comply with the 90-day limitations period for commencement of suit and service of summons set forth in Section Finally, the court ruled that Section applies with equal force to challenges to project denials as well as approvals. The Legacy Group v. City of Wasco (March 13, 2003) 2003 D.J. D.A.R The developers of a subdivision sued the City of Wasco for breach of a development agreement, indemnification, equitable estoppel and declaratory relief alleging that the city wrongfully stopped acquired infrastructure constructed by the developers for the subdivision. Under the agreements, the city was to form an assessment district to fund the acquisition of the improvements. Under the acquisition agreement, the maximum amount of total project costs for the improvements was to be 5.2 Million Dollars. Later, a disagreement arose as to what the project costs were, and because of this decision and others, the developers sued. In substance, the developers alleged that the city wrongfully withdrew funding for the acquisition of the infrastructure for the subdivision. The Superior Court ruled in favor of the city on several grounds including one that concluded that all of the developers causes of action were barred by the statute of limitations set forth in the Subdivision Map Act, Government Code Section In addition, the trial court interpreted the agreements to preclude any recovery 6

8 for monetary damages against the city arising from the city s alleged breach of the agreements. The court of appeal reversed. In the published portion of its decision, the court concluded that the 90-day limitations period mandated by Government Code Section does not apply to contract claims. Rather, the court concluded that causes of action for breach of a development agreement is governed by the statute of limitations normally applicable to all other contract claims. In its unpublished portions of the decision, the court also concluded, inter alia, that the development agreement did not unambiguously preclude recovery of monetary damages. Travis v. County of Santa Cruz (2002) 100 Cal.App.4th 609, rev. granted (Nov. 26, 2002) 2002 D.J. D.A.R , 58 P.3d 928, 127 Cal.Rptr.2d 799. Property owners in Santa Cruz County petitioned for writ of mandamus alleging that the county s occupancy and rent restrictions on second units were unconstitutional and preempted by state law. The Superior Court denied the petition, concluding that the petitioners facial challenges to the county s second unit ordinance were untimely, despite petitioners argument that its challenges were both facial and as applied. The Court of Appeal affirmed, agreeing that all of the claims brought by petitioners were facial and were not as applied, and that as result the limitations period under Government Code Section govern. Because the ordinance was last amended in November 1997, and the petitioners did not file their petition until 1999, the case was time-barred by the 90 day statute of limitations. The California Supreme Court has granted review. In addition to the issues specified in the petition for review, the court asked the parties to brief the following questions: Was the petition for writ of mandate, or any claim for relief therein, subject to the limitation periods in Code of Civil Procedure Section and/or Government Code Section 65009(c)(1)(E)? If so, what the petition or claim timely under those statutes? b. Regulatory Taking Loewenstein v. City of Lafayette (Nov. 13, 2002) 2002 D.J. D.A.R 12897, 103 Cal.App.4th 718 The Loewensteins were the owners of a roughly three acre lot that had been created as a part of a prior four lot subdivision that prohibited the creation of further lots. To create an additional lot, and to comply with the city s hillside minimum lot size requirements, the Loewensteins purchased two nearby parcels and applied to the city for a three-way lot line adjustment merging the two adjacent parcels into the Loewensteins lot and dividing that lot into two parcels. The City, relying both on the legislative history of the lot line adjustment exception to the Subdivision Map Act (Gov. Code 66412(d)), and on the fact that the Loewensteins original lot had been part 7

9 of a subdivision prohibiting further division of the lots, denied the proposed lot line adjustment. The Loewensteins sued, seeking mandamus and declaratory relief, as well as damages for inverse condemnation under the takings clause of the Fifth Amendment of the United States Constitution. The Superior Court granted the petition for writ of mandate, concluding that the City improperly denied the lot line adjustment application. Then, following trial on the takings claim, the court concluded that the city had denied the Loewensteins substantially all economically viable use of their property and on that basis awarded damages in just compensation in excess of $610, The Court of Appeal reversed. Citing the decision in Landgate, Inc. v. California Coastal Comm. (1998) 17 Cal.4th 1006, and noting that the city, following the trial, had rescinded its prior action and granted the lot line adjustment, the court held that the city s expressed reasons for rejecting the lot line adjustment application, namely, assuring compliance with the Subdivision Map Act and local zoning requirements, were part of a reasonable regulatory process designed to advance legitimate government interest. The court further confirmed that the legitimacy of the city s interest in land use planning was to be determined in the official actions of the city council (i.e., its resolutions), and not on the testimony of individual planners and staff members. The court also noted that, again under Landgate, evidence of the fact that the city had granted exceptions to similar applications in the past would not have negated the City s showing that its policy actions were legitimate in the instant case. c. Civil Rights C. REDEVELOPMENT D. RELOCATION ASSISTANCE VI. ENVIRONMENTAL QUALITY A. GENERAL B. CEQA Calbeach Advocates v. City of Solana Beach (Oct. 9, 2002) 2002 D.J. D.A.R , 103 Cal.App.4th 529. A notch developed in a 74 foot stretch of coastal bluff between two existing sea walls in Solana Beach, California. An overhang immediately north of the area collapsed, fracturing part of the bluff and deepening the notch. The real parties in interest, the adjoining property owners, applied to the city for permission to fill the notch. Based on information received from real parties engineer that the bluff was in imminent danger of collapse, the City Council issued a special use permit concluding that the permit was subject to CEQA s emergency exception (specific actions necessary to prevent or 8

10 mitigate an emergency are exempt from CEQA; Public Recourses Code 21080(b)(4).) That determination was challenged, and the Superior Court granted the city s motion for summary adjudication. The Court of Appeal affirmed. The court rejected the contention that the emergency exception under CEQA was inapplicable because there was no sudden, unexpected occurrence, and therefore no need for immediate action because the bluff erosion was an ongoing process. Rather, the court ruled that the collapse of the sandstone base of the bluff, like an earthquake or forest fire, is an occurrence that happens suddenly. The court also ruled that such a sudden occurrence need not be unanticipated in order to invoke the emergency exception under CEQA. The court also ruled that the applicable test was whether substantial evidence in the record supported the existence of each element of the definition of the term emergency under CEQA. Finally, the court concluded that the review of the matter was subject to the requirements of Public Resources Code Section , applying to nonadjudicatory decisions, and that as a result the city was not required to issue findings in support of its decision. Communities For a Better Environment v. California Resources Agency (Oct. 28, 2002) 2002 D.J. D.A.R , 103 Cal.App.4th 98. Three community environmental organizations, including CBE, challenged certain provisions of the CEQA Guidelines, 14 Cal. Code of Regs , et seq., as inconsistent with CEQA statutory and decisional authority. The Superior Court invalidated those challenged guidelines. The Court of Appeal affirmed in part and reversed in part. This ruling affected the following CEQA Guidelines: Section 15064(h) Thresholds of Significance: Use of regulatory standards to determine significant environmental affect. The court invalidated Section 15064(h). That section provides for thresholds of significance under CEQA to be based on regulatory standards meeting certain criteria. The court concluded that Section 15064(h) improperly directed agencies to effectively avoid the so called fair argument standard for the preparation of EIRs where a proposed project has an environmental effect that complies with a specified regulatory standard. The court concluded that applying an established regulatory standard in a way that forecloses the consideration of any other substantial evidence showing that there may be a significant environmental effect violates the fair argument test. Section 15064(i)(3) Cumulative Impacts: Incremental Cumulative Affect and Cumulative Mitigation Plan. The court upheld Section 15064(i)(3). That section allows agencies to determine that a project s incremental contribution to a cumulative effect is not cumulatively considerable if the project will comply with the requirements in a previously approved plan or mitigation program which provides specific requirements that will avoid or substantially lessen the cumulative problem (e.g., water quality control plan, 9

11 air quality plan, integrated waste management plan) within the geographic area in which the project is located. The court concluded that this guideline is consistent with CEQA, to the extent that it is read to incorporate the fair argument standard for EIR preparation. In other words, the guidelines is valid only because it permits agencies on a case-by-case basis to require the preparation of an EIR where there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding that the project complies with the specified plan or mitigation program. Section 15064(i)(4) and Section 15130(a)(4) Cumulative Impacts: De Minimis Incremental Contributions to Cumulative Impacts. The court invalidated Sections 15064(i)(4) and 15130(a)(4). Those sections involve the subject of cumulative impacts in the EIR process. Section 15064(i)(4) governs whether a cumulative effect requires an EIR to be prepared; Section 15130(a)(4) governs an EIR s discussion of cumulative impacts. Specifically, both sections address the issue of whether and to what extent a cumulative impact analysis must be undertaken where a given project makes only de minimis contribution to an already impacted environment. Citing the decisions in two earlier CEQA cases, the court concluded that the cumulative impact analysis required under CEQA may not be avoided by focusing solely on whether the specific project at hand has impacts that viewed alone are minor. Essentially, the Court ruled that the guideline must reflect the principle that the worse the baseline conditions in a community are, the more CEQA requires some environmental analysis for incremental aggravations to those conditions, even though such incremental aggravations may be minor. Section 15130(b)(1)(B)(2) Cumulative Impacts: Defining Probable Future Projects for Cumulative Impact Purposes. The court invalidated Section 15130(b)(1)(B)(2) to the extent that the list of probable future projects for which cumulative impacts analysis must be undertaken was constrained by the use of the disjunctive term or rather than the conjunctive term and. In other words, the court concluded that all categories of projects must be included within that cumulative impact analysis. Section 15152(f)(3)(C) Tiering: When Significant Environmental Effects Have Been Adequately Addressed for EIR Tiering Purposes. The court invalidated Section 15152(f)(3)(C). That section involves the subject of tiering, which allows a project to rely upon a previously prepared EIR certified for a program, plan, policy or ordinance. Section 15152(f)(3)(C) allowed a later project to tier off an earlier EIR by artificially concluding that the earlier EIR adequately addressed the later projects significant environmental effects where such effects cannot be mitigated to avoid or substantially lessen the significant impacts despite the project proponent s willingness to accept all feasible mitigation measures, and the only purpose of including analysis of such effects in another EIR would be to put the agency in a position to adopt a statement of overriding considerations with 10

12 respect to the effects. Although the court was willing to assume that subsection (f)(3)(c) implicitly was intended to include the concept that the significant effects had been examined at a sufficient level of detail in the prior EIR, the court held that the guideline under Section 15152(f)(3)(C) nevertheless suffered because it allowed agencies, in approving later projects that have significant unavoidable impacts, to forego making a statement of overriding considerations specifically tied to that project. Section 15378(b)(5) Definition of Project: Organizational Activities Which Are Political or Not Physical Changes Excluded From Definition of Project. The court invalidated Section 15378(b)(5), which excludes from the definition of the term project organizational or administrative activities of governments which are political and which are not physical changes in the environment, such as reorganization of a school district or detachment of park land. The court first expressed concern with the use of the disjunctive or between organizational and administrative. The court noted that the use of this disjunctive term could broadly be argued as allowing almost any project approval to exempt itself from CEQA. Second, the court concluded that the guideline improperly departed from CEQA precedent requiring analysis for projects which not only are physical changes in the environment, but also those which cause physical changes. Section Categorical Exemption: Infill Development Projects. The court upheld Section 15332, which creates a categorical exemption for infill development projects that (a) are consistent with applicable general plan designations and zoning, (b) occur within city limits on sites of no more than five acres substantially surrounded by urban uses, (c) the site has no value as habitat for endangered, rare or threatened species, (d) approval of the project would not result in any significant effects relating to traffic, noise, air quality or water quality, and (e) the site can be adequately served by all required utilities and public services. Magan v. County Kings (Dec. 12, 2002) 2003 D.J. D.A.R. 667, 105 Cal.App.4th 468. Kings County adopted an ordinance regulating and ultimately phasing land application of sewage sludge. In adopting the ordinance, the Board of Supervisors approved the filing of a notice of exemption determining that the adoption of the ordinance was categorically exempt from CEQA review under Section of the CEQA Guidelines as an action taken by a regulatory agency for the protection of the environment. The holder of certain permits to apply sewage sludge on approximately 1,800 acres of land (owned by the Orange County Sanitation District) filed a petition for writ of mandate challenging the county s adoption of the ordinance and specifically its use of the categorical exemption. The Superior Court denied the petition, finding that the record contained substantial evidence to support the determination that the ordinance was adopted to protect and preserve the environment and was therefore exempt from CEQA. 11

13 The Court of Appeal affirmed. Citing Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, the court held that (1) an agency s finding that a particular proposed project falls within one of the exempt classes necessarily includes an implied finding that the project has no significant effect on the environment; (2) the agency s categorical exemption determination will be affirmed by the court if supported by substantial evidence that the project fell within the exempt category of projects; (3) the burden in challenges to the use of such an exemption shifts to the party challenging the exemption to show that the project is not exempt because it falls within one of the exceptions listed in CEQA, including the so called unusual circumstances exception; and (4) that the challenger must produce substantial evidence showing a reasonable possibility of adverse environmental impact sufficient to remove the project from the categorically class of projects. The court concluded that the record was replete with evidence describing the obvious hazards in applying sewage sludge to agricultural land and the need to adopt the ordinance and that the petitioner failed to meet his burden of producing substantial evidence to support the so called unusual circumstances exception to the exemption. Natural Resources Defense Council, Inc. v. City of Los Angeles (Oct. 30, 2002) 2002 D.J. D.A.R , 103 Cal.App.4th 268. The City of Los Angeles entered into a lease, and issued a permit, for the construction of a container terminal project for which the Port of Los Angeles granted a coastal development permit. A program EIR for what had been described as an improvements program for the Port of Los Angeles was certified in The 1997 EIR addressed some, but not all, of the impacts of the specific project. A subsequent EIR in 2000 covered additional phases of the project. An environmental organization sued the city over the approval of the project, seeking mandamus. The superior court denied the writ. The court of appeal reversed. It concluded that neither the 1997 EIR nor the 2002 supplemental EIR adequately addressed the site s specific environmental concerns of the actual project. Neighbors of Cavitt Ranch v. County of Placer (March 7, 2003) 2003 D.J. D.A.R The County of Placer certified a final environmental impact report and approved a conditional use permit allowing real party in interest Bayside Covenant Church to proceed with construction of church facilities on 34.6 acres of unimproved property. The church construction was one of two undertakings reviewed in the draft environmental impact reports prepared by the county. The petitioners, and association of nearby property owners and individual property owner, sought relief by way of writ of mandate in the Superior Court, which denied their petition. Specifically, petitioners argued that the county did not comply with the procedural requirements of CEQA because, inter alia, the county considered the environmental effects of two projects submitted by one applicant on parcels located near to one another 12

14 (one involving 31 residential/agricultural lots; the other involving the development of church facilities) in one EIR. The court of appeal affirmed the denial of the petition for writ of mandate. In the published portion of the opinion, the court concluded that the county did not violate CEQA by considering both projects within a single EIR. The court explained in this regard that nothing in CEQA expressly precludes such an approach; that the approach did not deprive the public or local agencies of information relevant to either project; that considering both projects was consistent with CEQA s requirement that agencies consider the whole of a project; and that at worst, the inclusion of both elements in a single EIR resulted in too much information regarding the environmental effects, not too little. Santa Clarita Organization for Planning the Environment v. County of Los Angeles (Feb. 27, 2003) 2003 D.J. D.A.R. 2219, Cal.App.4th. A neighborhood organization sued the County of Los Angeles over its certification of an EIR for, and approval of, a project including over 2,500 housing units, 180,000 square feet of commercial retail space, and 46 acres of community facilities. Specifically, the petition challenged the manner by which the county addressed anticipated water need and use associated with the project, and that the projected needs of the project would be met by anticipated new water entitlements from the state water project. The superior court denied the writ, and the petitioners appealed. The court of appeal reversed. It concluded that the EIR was inadequate because it relied heavily on anticipated SWP entitlements in calculating the total available water supply for the project without calculating or discussing the differences between entitlements and actual supply. C. AIR QUALITY D. WATER QUALITY 13