Land Use and CEQA Litigation Update

Transcription

1 Land Use and CEQA Litigation Update Thursday, May 9, 2013 General Session; 10:45 a.m. Noon Margaret M. Sohagi, The Sohagi Law Group League of California Cities 2013 Spring Conference Meritage Hotel, Napa

2 Notes: League of California Cities 2013 Spring Conference Meritage Hotel, Napa

3 Land Use and CEQA Litigation Update Wednesday, May 8, 2013 General Session 1:00 p.m. 2:45 p.m. Cases Reported between September 2012 and April 8, 2013 Presented by: Margaret M. Sohagi The Sohagi Law Group, PLC San Vicente Boulevard, Suite 150 Los Angeles, California Telephone: (310) Facsimile: (310)

4 Cases Alliance for the Protection of the Auburn Community Environment v. County of Placer (2013) Cal.App.4th (2013 WL ) Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th Berkeley Hillside Preservation v. City of Berkeley (2012) Supreme Court Case No. S Browne v. County of Tehama (2013) 213 Cal.App.4th Central Basin Municipal Water District v. Water Replenishment District of Southern California (2012) 211 Cal.App.4th Chino MHC, LP v. City of Chino (2012) 210 Cal.App.4th Chung v. City of Monterey Park (2012) 210 Cal.App.4th City of Hayward v. Board of Trustees of the California State University (2012) Supreme Court Case No. S City of Huntington Beach v. Public Utilities Commission of California (2013) Cal.App.4th (2013 WL )... 6 City of Los Angeles v. County of Kern (2013) Cal.App.4th (2013 WL ) City of San Diego v. Board of Trustees of California State University (2012) Supreme Court Case No. S Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th Concerned Dublin Citizens v. City of Dublin (2013) Cal.App.4th (2013 WL ) Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) Cal.App.4th (2013 WL ) Friends of Aviara v. City of Carlsbad (2012) 210 Cal.App.4th i

5 Gila River Indian Community v. U.S. (2012) 697 F.3d Habitat and Watershed Caretakers v. City of Santa Cruz (2012) 213 Cal.App.4th Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th Laurel Park Community LLC v. City of Tumwater (9 th Cir. 2012) 698 F.3d Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) Supreme Court Case No. S Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th Prigmore v. City of Redding (2012) 211 Cal.App.4th Ralph s Grocery Company v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th Save Cuyama Valley v. County of Santa Barbara (2012) 213 Cal.App.4th Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (2012) Supreme Court Case No. S Voices for Rural Living v. El Dorado Irrigation District (2012) 209 Cal.App.4th ii

6 10. LAND USE II. GENERAL PLAN B. Basic Requirements 3. Housing Element Friends of Aviara v. City of Carlsbad (2012) 210 Cal.App.4th 1103 HOLDING A municipality may validly adopt a Housing Element which includes proposals for amendments to other elements of the general plan needed to implement Housing Element goals and policies, provided that the Housing Element also includes a timetable for adoption of the amendments. The identification of proposed future, but as yet unadopted, amendments to the general plan in the Housing Element does not violate Government Code , which generally requires that all elements of the general plan be internally consistent and consistent with other elements. SUMMARY The City adopted an updated general plan Housing Element in December Consistent with Government Code 65854(c), the Housing Element identified various properties that were suitable for affordable housing development, but which would require amendments to the land use element of the general plan before housing of suitably high densities could be approved. The City did not concurrently adopt the necessary land use plan amendments, nor establish a schedule for doing so. The petitioner sued on the ground that the new Housing Element was inconsistent with the land use element of the general plan, in violation of Government Code The trial court found that the Housing Element could validly identify required future changes to other general plans needed to implement the Housing Element, even if the changes were not concurrently adopted, but must include a schedule for making the necessary changes. The court, therefore, issued a writ of mandate requiring the City to add an implementation timetable to the Housing Element. The Court of Appeal affirmed. The Court concluded that: The Government Code expressly contemplates that in meeting its housing obligations a municipality will need to alter existing land use regulations, including existing limitations in other elements of an adopted general plan. Like the trial court, we find that inclusion of proposed changes to other land use regulations in a general plan was expressly contemplated by the Legislature and permitted on the condition the municipality sets forth a timeline for adoption of such proposed changes. 1

7 The Court relied on the language of Government Code 65583(c), which requires the Housing Element to include a program of actions, including proposed amendments to the general plan or other regulations, that the City will take to implement its Housing Element goals and policies, along with a schedule of [such] actions during the planning period, each with a timeline for implementation. The Court reasoned that although the listing of proposed future general plan amendments in the Housing Element may create arguable inconsistencies with other elements, the Legislature intended to create an exception to the general consistency requirement of Government Code for such temporary inconsistencies. Language authorizing this exception is found in Government Code 65583(c)(7), which requires that the Housing Element identify the means by which consistency will be achieved with other general plan elements and community goals. (Emphasis added.) DISCUSSION This holding affirms the special nature of the Housing Element in the general plan, and also highlights the practical accommodation the Legislature has made in reconciling the general requirement for consistency between general plan elements (Government Code ) and the practical reality that Housing Elements, unlike other elements of the general plan, must be updated on a regular basis, and are expected to operate dynamically to address changing housing needs and conditions. It should also be emphasized that although the City prevailed on the issues presented in the appeal, it originally lost in the trial court due to its failure to include a timetable for adopting implementing amendments to the land use element of the City s general plan. The Court of Appeal agreed with the trial court that such a timetable is specifically required by Government Code 65583(c). Many jurisdictions are historically reluctant to commit to specific timelines for further planning actions in their general plans and other planning documents for fiscal and other reasons. Failure to do so, however, is grounds for a successful lawsuit. C. Administration 3. Consistency Requirements for Land Use Decisions Ideal Boat & Camper Storage v. County of Alameda (2012) 208 Cal.App.4th 301 HOLDING Property owners could not expand existing legal nonconforming outdoor storage use where proposed expansion was inconsistent with adopted general plan and provisions of citizen initiative measure, even where zoning had not been amended to specifically preclude the expanded use. 2

8 SUMMARY The plaintiffs in this action were the owners of an outdoor boat and vehicle storage operation that had been commenced in 1964 and expanded under various subsequent zoning ordinances. The last expansion occurred under a planned development zoning in In 1993 the County adopted the South Livermore Valley Area Plan (SLVAP) which was subsequently incorporated (in 1994) into the East County Area Plan (ECAP) as a component of the County s general plan. These plans generally limited new development in the subject area to development deemed compatible with viticulture and other agricultural uses. In 2000, County voters approved Measure D, which imposed further restrictions on new development, and expressly prohibited new discretionary approvals for development that was inconsistent with its provisions. The County rejected an application for further expansion of plaintiffs storage yard in The plaintiffs again applied for an expansion of the existing storage facilities (by 30 acres) under the planned development zoning in After the County rejected this application on the grounds that the development was inconsistent with the SLVAP, and thus the general plan, the plaintiffs sued. The trial court denied relief, and the Court of Appeal affirmed. The Court of Appeal found that the County had correctly determined that the expansion was not permitted by the general plan and Measure D. Outdoor storage uses were no longer an authorized use of the plaintiffs property under the general plan. Plaintiffs outdoor storage use was, therefore, a legal nonconforming use, and there is no right to expand an existing legal nonconforming use under basic principles of zoning law. The expansion also could not be allowed because it was inconsistent with the general plan. The fact that the expansion was allegedly consistent with the applicable planned development zoning was immaterial because under California law, zoning ordinances are subordinate to, and must be consistent with, the general plan. A landowner is not exempted from compliance with the general plan consistency requirement simply because a local government has not yet brought its zoning ordinances into full conformity with the general plan. The Court also rejected several subordinate arguments by the plaintiffs. First, the Court found that the plaintiffs had no vested right to expand, based on alleged past expenditures in reliance on the existing zoning. Although the zoning ordinance provided that applications for expansion or other changes under the Site Development Review ordinance would be reviewed subject to the same procedure and regulations as those applicable to the original application, the zoning ordinance did not override the general plan nor prevent the County from changing the general plan. The Court next rejected an argument that the County had failed to exercise its discretion in reviewing the application based on a faulty interpretation of Measure D. The record, however, showed that the application had been fully considered on its merits and not summarily rejected based on Measure D. Finally, the Court rejected an apparently incoherent argument that Measure D had somehow improperly delegated discretion over administrative permit determinations to the electorate. Measure D was clearly legislative in nature; it established standards for reviewing development proposals, but did not reserve any power over individual applications to the electorate. 3

9 DISCUSSION For the most part, this case involves a garden-variety application of basic principles governing general plan consistency requirements and traditional restrictions on the expansion of legal non-conforming uses. This case also confirms the expected answer to the question of whether projects may be denied for inconsistency with applicable general plan policies or land use designations even if the local government has failed to amend the applicable zoning ordinance to bring it into consistency with the general plan. III. ZONING C. Zoning Ordinances 6. Limitations of Challenges Stockton Citizens for Sensible Planning v. City of Stockton (2012) 210 Cal.App.4th 1484 HOLDING The 90-day statute of limitations period of Government Code 65009(c)(1)(E) may be triggered by a letter of approval for a site plan or similar local development review device, regardless of the fact that no public hearing has been conducted or is required, and regardless of whether the approval is granted by a formal legislative body or a single zoning official who has been delegated approval authority under local ordinances. SUMMARY The petitioners challenged approval of a Site Plan, Conceptual Landscaping Plan and architectural plans for a Wal-Mart Supercenter. Under the City s ordinances, City approval took the form of a letter from the Director of the City s Community Development Department advising the applicant that the project was, subject to five minor corrections, in substantial conformity with City regulations. Under the City s ordinances, no public hearing was required for this determination. The trial court initially granted the petition on the basis of petitioners CEQA claims, but that decision was ultimately reversed by the California Supreme Court on statute of limitations ground in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481. On remand, the trial court entered judgment for the City on the grounds that the petitioners remaining claims were time-barred under Government Code 65009(c)(1)(E), which generally imposes a 90-day statute of limitations on challenges to conditional use permits, variances and other land use permit decisions. The Court of Appeal affirmed, holding that under the law of the case established by the Supreme Court decision, the substantial conformity determination letter from the planning director was the project approval which triggered the 90-day limitations period of Government Code 65009(c). The Court rejected arguments that the approval at issue was outside the scope 4

10 of Government Code 65009(c)(1)(E), which governs decisions on the matters listed in [Government Code] Sections and Government Code 65901, in turn, authorizes local governments to empower boards of zoning adjustment or zoning administrators to approve applications for conditional use permits, variances or other permits, and also authorizes zoning boards or designated administrators to exercise any other powers granted by local ordinance. The latter broad language was deemed to include administrative approvals of the type at issue in this case, and would seemingly apply to virtually every other permit decision, conformity determination or other approval delegated to local planning directors or other zoning officials by local ordinance. The Court also rejected a claim that Government Code 65009(c) was not applicable because the planning director was not a legislative body as specified in the statute. The Court held that the term legislative body in the statute must be construed in context with other terms and in light of the declared intent of the statute, which is to promote finality of land use decisions. Accordingly, the decisions of the governing legislative body for purposes of the statute included decisions delegated to zoning boards or administrators under Finally, the Court rejected an argument that 65009(c)(1)(E) applied only to decisions that involved a public hearing. Although the matters listed in Section (and, therefore, subject to 65009(c)(1)(E)) include matters subject to public hearings, Government Code also authorizes local governments to authorize administrative review procedures that do not require public hearings. Government Code 65009(c)(1)(E), therefore, does not, expressly or impliedly, require a public hearing to make the statutory limitations period applicable. DISCUSSION The case answers the question of whether the short (90 day) limitations period of Government Code 65009(c), which expressly applies to challenges to most types of land use and zoning decisions, also applies to the more informal development review procedures often delegated to planning department directors or designated zoning hearing officers by local ordinances, e.g., site plan reviews, some architectural reviews, landscape plan reviews, and conformity determinations in planned development zones or specific plan areas. Given the express applicability of 65009(c)(1)(E) to matters listed in [Government Code] section and the general reference to other powers granted by local ordinance, in Government Code itself, there are likely to be few planning or zoning decisions that are outside the scope of the statute. This is consistent with the often-stated purpose of to provide certainty for property owners and local governments regarding land use decisions. (210 Cal.App.4th at 1491; Government Code 65009(a)(3).) 5

11 I. Special Issues City of Huntington Beach v. Public Utilities Commission of California (2013) Cal.App.4th (2013 WL ) HOLDING A telecommunications company that owns it own networks, but does not directly serve individual customers is a telephone corporation for purposes of regulation under the Public Utilities Code The Public Utilities Commission cannot preempt local ordinances through the approval of a project when, through stipulation of the parties, the validity of the local ordinances was to be adjudicated by a court. SUMMARY NextG is a builder and owner of fiber-optic networks. NextG does not directly serve individual customers whose calls are carried over its network, rather it sells network capacity to other companies. The proposed project was a communications network, consisting of aerial and underground fiber cable, to transmit wireless communications to clients within the City of Huntington Beach (City). NextG formally applied for authorization to conduct business as a telecommunications company, including the installation, operation, and maintenance of associated facilities. The City and NextG, however, reached an impasse during negotiations. The City posited that pertinent local ordinances precluded some aspects of the project, specifically construction of new utility poles and aerial communication lines. The parties engaged in an onerous litigation process, including federal and state litigation beyond the action discussed here. However, the details of those proceedings are immaterial to the holdings of this decision, which reviewed the appropriateness of the Public Utilities Commission s (PUC) (1) October 2010 Initial Decision, and (2) January 2011 Rehearing Decision. 1 In the October 2010 Initial Decision (Initial Decision), the PUC found, among other things, that NextG was telephone corporation under Public Utilities Code Public Utilities Code 7901 permits telegraph or telephone corporations to construct communications lines and equipment on a public right-of-way. The PUC also approved the project, concluding that the project would not have a significant impact on the environment and was consistent with and authorized by previously issued certificates of public necessity and convenience. In November 2010, the City challenged the findings of the Initial Decision, reiterating its previous arguments, including that (1) NextG was not a telephone company under the Section 1 The parties engaged in federal and state litigation beyond the action discussed here. 6

12 7901, and (2) the project violated local ordinances and should be prohibited because it was required to comply with local ordinances. The PUC disagreed with the City, but modified parts of the Initial Decision. The January 2011 Rehearing Decision (Rehearing Decision) concluded that, regarding the previous project approval, any local ordinances were preempted to the extent they were inconsistent with the project approval. The City filed a petition for a writ of review of the Initial Decision and Rehearing Decision. In its petition, the City argued (1) NextG was not a telephone corporation, and that (2) PUC s approval and preemption determination were invalid. Whether NextG is a Telephone Corporation After considering the legislative history and applicable regulations, the court found that the definition of a telephone corporation, for purposes of the Public Utilities Code 7901, should be broadly construed. If an entity owns, controls, operates, or manages telephone lines in connection with telephone communications, the entity is a telephone corporation under section The court also found that the PUC made sufficient findings and had sufficient evidence when it concluded that NextG was a telephone corporation. It did not matter that NextG did not directly service individual customers, but instead provided services to wireless companies. The City argued that federal law, which prohibits state and local governments from regulating the entry of any commercial mobile service or any private mobile service (i.e., wireless carrier), preempted any regulation of NextG. The court disagreed with this contention, noting that the PUC specifically found that NextG was not a wireless carrier. The PUC, therefore, distinguished between wireless carriers (i.e., commercial mobile services ) and a carrier s carrier like NextG. Approval of the Application and Preemption The City s final argument related to whether the PUC properly preempted the City s local ordinances to the extent they conflicted with the PUC s approval. Before the PUC proceeding, the parties entered into a stipulation stating that the PUC would not address the validity of the City s local ordinances. The parties agreed that the validity of the local ordinances, under Sections 7901 and of the Public Utilities Code, was to be addressed by a court. The court found that, despite these agreements, the PUC concluded that its decisions and order preempted the City s ordinances. The PUC apparently takes the position that validity and preemption are distinct issues. However, as the court held, Next G did not initiate proceedings designed to ascertain whether the City s ordinances should be invalid or preempted. Taking these procedural constraints into consideration, the court found that the PUC could not bootstrap a limited, conditional approval of NextG s public right-of-way project into an order that preempted the City s local ordinances. The stipulation specifically stated that a court would determine how to balance the right of a NextG to use the public right-of-way and the City s right to regulate the time, place, and manner of infrastructure installation in the public 7

13 right-of-way. Therefore, in reaching its conclusions, the PUC violated the procedural rights of the City, and thereby abused its discretion in preempting the City s ordinances through its approval of the project. DISCUSSION The decision clarifies that a builder and owner of fiber-optic networks that sells network capacity to other companies is still a telephone corporation under the Public Utilities Code. It is, therefore, entitled to the privileges of Public Utilities Code section 7901, namely the construction of infrastructure along a public right-of-way. While the Public Utilities Commission has the authority to approve proposed projects, it cannot use the approval process to preempt local ordinances when the validity of those ordinances was not an issue before the PUC. Under the PUC s procedural rules, the PUC cannot expand the scope of the underlying proceeding to the detriment of a party. Prigmore v. City of Redding (2012) 211 Cal.App.4th 1322 HOLDING The Third Appellate District reached several holdings: Entrance area and grounds of municipally owned public library were a traditional public forum area for First Amendment activities under the U.S. and California Constitutions. City could not confine peaceful leafleting and other First Amendment activities to a small designated limited outdoor public forum area on public library grounds. City could not constitutionally require advance reservations for use of public forum area by individuals or small groups. City restriction on verbal or written solicitation of funds on library grounds was overbroad; City could ban only solicitations requesting immediate payment of funds. City could ban windshield leafleting in library parking lot, where plaintiffs failed to rebut declaration evidence submitted by City that ban served legitimate public safety purposes. City policy prohibiting offensively coarse speech and abusive language in public forum area was unconstitutional. Handbill ordinance which purported to outlaw all windshield leafleting in City could not be upheld as a valid litter control measure. Handbill ordinance also could not constitutionally require distributed materials to identify sponsor or distributor, nor ban offensive or blasphemous, obscene, libelous or scurrilous language on written materials. 8

14 Preliminary injunction was overbroad in barring potentially valid restrictions on direct solicitations for immediate payment of funds. SUMMARY After local political organizations began to set up literature tables near the entrance to the Redding Municipal Library, the City Council, acting as the library s board of trustees, enacted a new Outdoor Public Forum Policy to regulate tables, leafleting and other First Amendment activities on the Library grounds. The Policy, among other things: Restricted leafleting, literature tables, and related activities to a designated limited outdoor public forum area of about 42 square feet near the entrance to the library; Required reservations not less than 72 hours in advance to use the designated public forum area; Banned leafleting of windshields on parked cars in library parking lot; Authorized City personal to terminate offensively course speech or displays and abusive language on library grounds; and Banned all solicitation of funds. The City Council subsequently adopted an ordinance making violation of the Policy a violation of the City municipal code. In response, the ACLU and representatives of the local Tea Party filed separate lawsuits challenging various provisions of the Policy. The Tea Party also challenged various provisions of the City s longstanding, but seldom enforced, Handbill Ordinance on constitutional grounds. The trial court determined that the plaintiffs had a strong probability of prevailing on the merits and issued a preliminary injunction enjoining enforcement of all challenged provisions of the Policy and Handbill Ordinance. The Court of Appeal affirmed, except as to the prohibition on leafleting windshields in the library parking lot, and to the extent the preliminary injunction was overbroad in barring all City regulation of solicitation activities. The Court of Appeal, like the trial court, found that the outdoor entrance areas, public open space and parking lot on the municipally owned library grounds (but not the interior areas of the library) were a traditional public forum, i.e., the type of public area historically open to free public access, communicative activity and discourse. Consequently, the City could generally enforce only reasonable time, place and manner restrictions that did not unduly restrict speech and other First Amendment activities. Such regulations must be content-neutral, i.e., not intended to restrict expression based on disagreement with the message; narrowly tailored to advance legitimate public interests; and must leave open ample alternative channels of communication. Applying these standards, the Court found that the restriction on solicitation on library grounds was overbroad, i.e., not narrowly tailored, because it prohibited all types of 9

15 fundraising appeals rather than the type of demand for immediate, on-site contributions. (See International Society for Krishna Consciousness v. City of Los Angeles (2010) 48 Cal.4th 446.) The Court similarly found that the restriction of activities to the small designated limited outdoor public forum area was overbroad because there was no evidence that this drastic a restriction was necessary to serve the policy s alleged goal of preventing interference with ingress and egress to the library. Because this spatial limitation was invalid, the requirement for reserving the area in advance was also invalid. Further, requirements for advance registration or permits for expressive activities by individuals or small groups in a traditional public forum are also generally unconstitutional absent evidence that the particular individual or small group activity in question may significantly interfere with other public uses. (See, e.g., Berger v. City of Seattle (9 th Cir. 2009) 569 F.3d 1029, 1039.) Based on the limited evidence in the record, the Court upheld the City s restriction on leafleting in the form of leaving written materials on car windshields on library grounds. It found that the trial court had erred by ignoring an unrebutted declaration submitted by the City indicating that the parking lot ban was based on public safety concerns. The Court distinguished cases which have found that a vehicle leafleting ban based on litter control concerns alone may not be constitutionally valid. The ACLU challenged only one aspect of the anti- harassment provisions of the Policy, specifically a provision which authorized library personnel to halt activity deemed to involve an offensively coarse utterance or abusive language directed toward another person. The Court found that such restrictions on speech were per se unconstitutional because the First Amendment does not allow the suppression of speech merely because it is offensive. The Court did not review the trial court s determination that these provisions were also unconstitutionally vague. With respect to the Tea Party s challenge to the Handbill Ordinance, the Court found that even though the ordinance had not been seriously enforced for many years, the City had not formally rescinded or otherwise abandoned it. The Tea Party thus faced a realistic danger that the ordinance might be applied to its representatives in the future, and, therefore, had standing to challenge the ordinance. On the merits, the ordinance violated the constitution in several respects. the City wide ban on leafleting of automobiles was overbroad and could not be justified by its purported purpose of controlling litter. A provision that required leaflets and handbills to disclose the identity of the distributor was also unconstitutional, as was a provision purporting to prohibit distribution of materials that were offensive to public morals or decency or contain [ ] blasphemous, obscene, libelous or scurrilous language. In the final section of its opinion, the Court found that the preliminary injunction imposed by the trial court was itself overbroad in that it appeared to prohibit the City from imposing or enforcing additional regulations on certain activities even if these alternate regulations were sufficiently narrowly drawn to pass constitutional muster, or were unrelated to the subject matter of the case. In particular, the injunction, literally construed, would prohibit the City from 10

16 adopting and enforcing a policy against direct, aggressive solicitation of immediate contributions even though such a restriction on solicitation activity would be constitutional. DISCUSSION A detailed reading of this case is necessary to fully review the nuances of First Amendment jurisprudence that apply to regulation of the particular types of activities addressed in the opinion. The case confirms that the catchphrase the devil is in the details applies more fully to such regulations than to virtually any other area of municipal law. Ralph s Grocery Company v. United Food & Commercial Workers Union Local 8 (2012) 55 Cal.4th 1083 HOLDING California courts are barred by the Moscone Act (Code of Civil Procedure 527.3) and Labor Code from enjoining peaceful labor picketing and leafleting activities on sidewalks and entrance areas of privately owned shopping centers, even where these areas are not a public forum for First Amendment activities under California or federal law. SUMMARY The Ralph s Grocery Company brought an action to enjoin labor picketing on a privately owned sidewalk area outside one of its Foods Co warehouse grocery stores in Sacramento. The trial court denied the injunction, but the Court of Appeal reversed with instructions to issue a preliminary injunction. The Supreme Court granted review and reversed the Court of Appeal. The Supreme Court first determined that privately owned sidewalk and entrance areas to supermarkets were not a public forum area. While California law recognizes that some areas of privately owned shopping centers are considered public forums under the free-speech clause of the California constitution (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899), this status applies only to areas intended to foster social gathering, conversation or relaxation and not entrance areas or passageways intended simply to provide access or promote viewing of merchandise. Thus, there was no general public right to conduct First Amendment activities on the grocery store entrance area or sidewalks subject only to reasonable time, place and manner restrictions imposed by the property owner or other authorities. However, although there is no constitutional protection for labor-related picketing and speech activities on ordinary privately owned sidewalks or entrance areas under either the state or federal constitution, the Moscone Act (Code of Civil Procedure 527.3) and Labor Code impose statutory limitations on the injunctive relief which may be obtained in California courts against picketing and speech activities related to labor disputes. The Moscone Act generally declares specified activities undertaken in connection with labor disputes to be lawful and provides that no court nor any judge shall have jurisdiction to issue any restraining order 11

17 or preliminary or permanent injunction against these specified acts. Protected activity includes peaceful picketing and patrolling, and giving publicity to, and obtaining or communicating information regarding a labor dispute unless violence, fraud or a breach of the peace is involved. Labor Code bars issuance of an injunction in a labor dispute unless the plaintiff establishes by direct testimony subject to examination in open court that five specified criteria have been met. These criteria include whether unlawful acts have been or will be committed, whether substantial or irreparable injury to the plaintiff s property will occur, and whether local law enforcement officials are unable or unwilling to furnish adequate protection. The Court also rejected claims by the plaintiff that the Moscone Act and Labor Code violated the First Amendment and Equal Protection clauses of the U.S. Constitution because they gave labor-related speech greater protection than other speech. The Court distinguished cases involving traditional public forums (public streets and sidewalks), noting that government has little or no discretion to distinguish between labor-related and other types of public issues in public forum areas, but has greater discretion in non-forum areas. DISCUSSION This decision provides guidance to local jurisdictions that may be called to respond to labor activity in local shopping malls or other commercial centers. The provisions of the Moscone Act defining peaceful actions related to labor disputes as lawful are binding on local law enforcement authorities as well as the Courts, and, therefore, limit police intervention to cases involving threatened or actual violence, actual interference with ingress and egress from stores, or other breaches of the peace. In some cases, local law enforcement officials also could become embroiled in labor disputes if subpoenaed to provide testimony for either side in a labor dispute as to whether they are unwilling or unable to provide adequate protection for a store owner seeking an injunction under Labor Code Medical Marijuana Dispensaries Browne v. County of Tehama (2013) 213 Cal.App.4th 704 HOLDING County ordinances strictly regulating marijuana cultivation was not preempted by Compassionate Use Act (CUA) (Health & Safety Code ) or state Medical Marijuana Program (MMP) (Health & Safety Code et seq.). SUMMARY In response to concerns over unregulated marijuana cultivation, the County of Tehama enacted an ordinance severely restricting the locations and quantities of marijuana that could be cultivated in the County. Among other things, the Ordinance declared it a nuisance to cultivate marijuana anywhere within 1,000 feet of any school, school bus stop, church, park, child care 12

18 center, youth-oriented facility and certain other areas. Where allowed, cultivation was limited to 12 mature plants or 24 immature plants on any parcel less than 20 acres; 30 mature plants or 60 immature plants on parcels between 20 and 160 acres, and 99 plants (mature or immature) on parcels larger than 160 acres. The Ordinance also established requirements for setbacks and fencing of cultivation sites, and registration requirements for any person growing marijuana. Medical marijuana users filed a petition for writ of mandate and declaratory relief, contending that the Ordinance was preempted by state law. The trial court sustained a demurrer to the petition and complaint. The Court of Appeal affirmed. The Court of Appeal found that the Ordinance was not preempted by the voter-approved CUA and state implementing regulations (the MMP), which govern medical marijuana use. The core rational of the Court is that the CUA creates an immunity from prosecution for medical marijuana growers and users, but not an affirmative right to grow, possess or use marijuana. Consequently, there was no direct conflict between state law and the Ordinance, and the state and local governments retain the power to regulate medical marijuana cultivation. Local governments are free to adopt more stringent restrictions than those found in the state MMP, and also have the power to enforce reasonable regulations on marijuana cultivation through nuisance abatement proceedings, although such proceedings have traditionally been considered quasicriminal in nature. The Court reasoned that although marijuana growers could not be prosecuted solely on the basis of actions immunized from criminal liability by state law, such activities could be abated where they also conflicted with local regulations governing the location or other aspects of cultivation or use. The Court did not, however, address the question of whether local governments could impose direct criminal penalties on otherwise immunized activities based on non-compliance with local ordinances, because this issue was not properly raised by the petitioners in their pleadings or in their briefs on appeal. DISCUSSION This case does not resolve the question of whether local jurisdictions may impose direct criminal penalties for violation of regulations that restrict activity that is otherwise immunized from criminal liability by the CUA and MMP. The argument for preemption would appear stronger in such cases. Also, this decision involves a facial attack on the ordinance which was decided by demurrer. The decision, therefore, does not necessarily preclude a successful asapplied challenge based on an implied preemption theory by individuals contending that application of overly severe restrictions (e.g., the ban on cultivation of small quantities of marijuana within 1,000 feet of any school bus stop) in particular circumstances conflicts with specific goals of the CUA and MMP. (See Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, ) 13

19 Conejo Wellness Center, Inc. v. City of Agoura Hills (2013) Cal.App.4th (2013 WL ) HOLDING The Second Appellate District upheld two municipal ordinances that expressly prohibited medical marijuana dispensaries from operating within the City. The Court made the following specific holdings: Government Code and 65850, which require specific procedures for the adoption or amending of zoning ordinances, did not apply to an ordinance that prevented medical marijuana dispensaries from obtaining business registration permits because it (1) did not move property between zones, and (2) did not impose regulations covered by and The Compassionate Use Act (CUA) (Health & Safety Code ) or state Medical Marijuana Program (MMP) (Health & Safety Code et seq.) did not preempt local ordinances prohibiting marijuana dispensaries because neither law limits the right of local governments to regulate marijuana dispensaries. A marijuana dispensary owner did not have a vested property right, and thus any substantive due process rights, when the dispensary was never a permitted use. The dispensary s procedural due process rights were also not abridged because the ordinance s permit requirements did not deprive the owner of any statutorily conferred benefit. SUMMARY Conejo Wellness Center (Conejo) is a nonprofit collective engaged in the distribution of medical marijuana, located in a manufacturing district in the City of Agoura Hills (Agoura or the City). The Agoura Municipal Code (AHMC) prohibits from the Manufacturing District any use not expressly authorized or interpreted by the City planning commission to be similar to an authorized use. The AHMC does not identify a medical marijuana dispensary as a permitted use, nor has the City planning commission recognized it as similar to an expressly authorized use. In September 2008, Agoura adopted Ordinance No , which explicitly provided that medical marijuana dispensaries were not a use permitted anywhere in the City. Ordinance No , by way of other provisions of the AHMC, also makes any violation a public nuisance and a misdemeanor. In 2009 and 2010, after the adoption of Ordinance No , Conejo applied for a business registration permit from the City. The permit applications were denied on both occasions. In October 2010, Agoura adopted Ordinance No , which expressly prohibits any medical marijuana dispensary from receiving compensation for the distribution of marijuana. 14

20 The ordinance also requires an annual business permit prior to the operation of any business or non-profit, prohibits the City from issuing a business registration permit to any business that is not a permitted use, and further identifies a medical marijuana dispensary as a nonpermitted use. After adoption of Ordinance No , Conejo again applied for a business registration permit, but was denied. Conejo challenged Ordinances No and No on numerous grounds, including that the ordinances violate Government Code 65853, are preempted by state law, and violate the procedural and substantive due process rights of Conejo. Government Code Sections and Government Code and confer legislative power upon local governments to regulate zoning, and mandates specific public notice and hearing requirements before the adoption or amending of a zoning ordinance. When adopting Ordinance No , Conjeo argued, the City failed to comply with the noticing and hearing requirements under Government Code The Court held that Ordinance No was not a zoning ordinance and not subject to the noticing requirements of Government Code Ordinance No prohibits marijuana dispensaries from receiving compensation, precludes the issuance of permits for nonpermitted uses, and identifies marijuana dispensaries as a nonpermitted use. Ordinance No was not a zoning ordinance because it did not move property between zones and did not impose regulations that are subject to Government Code Conejo argues that Ordinance No modifies or amends the definition of a medical marijuana dispensary established by Ordinance No , thus bringing it within the scope of Government Code The Court rejected this argument, holding that Ordinance No did not redefine medical marijuana dispensaries for zoning purposes. What [Ordinance] No does is expressly prohibit an already banned dispensary from receiving compensation, an issue not addressed by [Ordinance] No Conejo also argued that Ordinance No was within the scope of Government Code and because it effectively prohibits, through its new permitting scheme, nonprofit dispensaries such as Conejo. The Court again disagreed with Conejo. Requiring a business registration permit for all entities, whether for profit or otherwise, does not impose or amend any regulation governed by Government Code and Ordinance No had already declared dispensaries a nonpermitted use, and [Ordinance] No s restatement of that fact does not add a regulation that did not already exist or modify an existing one. Preemption by State Law In its third cause of action, Conejo contended that the ordinances were preempted by the CUA and MMPA. The CUA, among other things, immunizes patients and primary caregivers 15

21 from prosecution related to the possession and cultivation of medical marijuana. Similarly, the MMPA significantly expands the list of state offenses to which the defense of medical marijuana use applies, and specifically includes the sale of marijuana. As to Conejo s preemption claims, the Court held that the CUA did not preempt the City s ordinances. The CUA, the Court reasoned, does not create a right to use medical marijuana without hindrance or inconvenience, does not expressly prohibit further legislation regarding medical marijuana use, and expressly acknowledges that the potential validity of other legislation intended to prevent or regulate related conduct that might endanger the general citizenry. The MMPA also did not preempt the City s ordinances. The Court found that, like the CUA, the MMPA provides only limited criminal immunity for particular offenses to specific groups of people, and only if the solitary basis for prosecution is conduct specifically described in the MMPA. The Court held, while the MMPA limits certain prosecutions, it does not mandate that local governments allow the collective or cooperative distribution of medical marijuana. Substantive and Procedural Due Process Ordinance No requires nonprofit entities to obtain a business registration permit and categorically prohibits the city manager from approving such a permit for a medical marijuana dispensary. Conejo contended that because it lawfully operated as a medical marijuana facility prior to adoption of the ordinance, it had a vested property right. That right, Conejo argued, was deprived by Ordinance No , and thus violates substantive and procedural due process. The Court disagreed with Conejo, holding that it did not have a vested property right through its continued operation of a medical marijuana dispensary because the dispensary was never a lawful use under the City s municipal code. When Conejo opened, and throughout its continued operation thereafter, a medical marijuana dispensary was not a permitted use within the Manufacturing District, nor was it found to be similar to a permitted use. Conejo, the Court held, was, therefore, not entitled to the constitutional protections afforded to owners and lessees of permitted uses. Under California law, a procedural due process violation only exists if there is a deprivation of some statutorily conferred benefit. Considering this requirement, the Court held that Conejo s procedural due process claim failed because the permit requirements did not deprive it of any statutorily conferred benefit. The Court again looked to the CUA and the MMPA, holding that neither create a right to operate a collective marijuana dispensary. Right to Privacy Finally, Conejo argued that the City s ban violated its members rights to privacy and association under the California Constitution. The Court noted that there are three elements of a privacy violation: (1) the existence of a legally protected privacy interest, (2) a reasonable 16

22 expectation of privacy, and (3) a serious invasion of that privacy interest. The Court quickly dispensed the claim, holding that (1) none of the City s ordinances required the disclosure of private information, and (2) the ordinances did not infringe on the rights of members to associate and discuss medical marijuana cultivation, storage, and use with anyone they please. DISCUSSION This decision provides greater support for the proposition that a local government has the authority to adopt ordinances that prohibit medical marijuana dispensaries within its borders. Importantly, the ordinances discussed in the decision did not constitute a zoning ordinance under the Government Code, and, therefore, were not subject to the procedural limitations provided therein. IV. SUBDIVISIONS A. Basic Requirements 1. Map Approval Chino MHC, LP v. City of Chino (2012) 210 Cal.App.4th 1049 HOLDING Absent a showing that a proposed conversion of a mobilehome park to resident ownership is merely a sham intended to circumvent local rent control regulations, a municipality may not deny an application to convert to resident ownership under Government Code based on the results of a survey of resident support or other evidence showing resident opposition to the conversion. Once a municipality has accepted an application for conversion of a mobilehome park to resident ownership under Government Code , it is barred by the Permit Streamlining Act from rejecting the application on the ground that the survey of resident support (Government Code (d)) submitted with the application is insufficient. SUMMARY Government Code , a section of the Subdivision Map Act, establishes a mandatory procedure for local government approval of conversions of mobilehome parks from tenant occupancy to optional resident ownership of individual park spaces. Conversion to resident ownership results in a partial exemption from local rent control for park tenants who cannot or choose not to purchase their space. Among other steps, the applicant for a park conversion must conduct and submit a survey of resident support for the conversion. (Government Code (d).) The survey must be conducted under an agreement negotiated 17

23 with an independent homeowners association representing park residents if one exists in the park. (Government Code (d)(2).) The owners of the Lamplighter Chino Mobile Home Park in Chino initiated discussions about a park conversion with residents in The meetings were attended by a minority of park residents. The owners concluded, based on conflicting claims from residents, that there was no active homeowners association representing the residents, and, thus, conducted a survey of resident support without negotiating any agreement with a homeowners association. Only 36 of 260 households in the park responded to the survey; 58% of the respondents opposed the conversion. The City subsequently rejected the owner s conversion application as incomplete on the ground that the owner had not shown that the survey was conducted in cooperation with a park homeowners association, or that there was no homeowners association. The City, however, subsequently entered into a stipulated judgment deeming the application complete after the owner filed suit. In the meantime, the owner s representatives also attempted to negotiate an agreement for a new survey with several individuals claiming to represent a homeowners association in the park, but received only, in the court s words, a good, old-fashioned runaround which resulted in no agreement or additional survey. The City Planning Commission subsequently approved the conversion application, but on appeal, the City Council denied the application based on both the results of the survey and the absence of evidence that the survey had been conducted pursuant to an agreement with a homeowners association. The trial court granted a petition for writ of mandate, finding that (1) Government Code does not authorize a municipality to deny a residential conversion application based on tenant opposition alone; and (2) the City was estopped from rejecting the survey as insufficient by the stipulated judgment accepting the owner s application as complete. The Court of Appeal affirmed. Although Government Code (d)(5) requires a municipality to consider the results of any survey conducted for the conversion, subsection (e) of the statute provides that the scope of the hearing on the application shall be limited to the issue of compliance with this section. Based on the legislative history of , the Court construed these seemingly conflicting provisions to mean that the survey may be considered only as evidence of whether the conversion application is a sham, i.e., the conversion is being proposed primarily for the purpose of escaping local mobilehome rent control regulations rather than with the expectation that substantial numbers of park residents would purchase their lots following approval. The fact that the survey and other evidence indicated that a majority of residents opposed the conversion did not go to the issue of compliance with the procedural requirements of , and was thus not lawful grounds for denying the application. The Court of Appeal also found that the City was barred by the Permit Streamlining Act (PSA) from rejecting the application on the grounds of an insufficient survey once it had accepted the conversion application as complete. (See Government Code 65943, ) Although the PSA would not necessarily prevent the City from requesting supplemental information regarding the survey or considering independent evidence submitted by the applicant 18

24 or project opponents regarding the sufficiency of the survey, the City had done neither, and, therefore, could not deny the application for incomplete information. Finally, the Court determined that no remand was necessary on the facts of the case to determine whether the survey should have been conducted under an agreement with a resident homeowners association as required by (d)(2). The facts showed that attempts to negotiate an agreement with the representatives of the only known purported homeowners association had been futile, and (d)(2) does not require a park owner to perform impossible acts, nor empower a homeowners association to veto a conversion through non-cooperation. DISCUSSION Aside from its direct holdings, this case highlights but does not resolve some of the ambiguities and practical difficulties local governments may face in applying Government Code Government Code (d)(2) requires the park owner to conduct a survey of resident support in accordance with an agreement between the subdivider and a resident homeowners association, if any, that is independent of the subdivider or mobilehome park owner. (Emphasis added.) The statute does not, however, specify any qualifications or criteria for determining whether an alleged homeowners association is actually an independent bona fide organization, or whether the association is actually representative of park residents. In this case, the purported homeowners association appeared to consist only of a few activist individuals with no formal organization, election process or accountability to a larger membership. The Court also found it unnecessary to resolve the issue of what options are available to a public agency if it accepts a conversion application as complete, but subsequently determines that a seemingly adequate survey of resident support is actual deficient, e.g., based on faked data or undisclosed faulty methods. Presumably the local government may request further information to clarify, amplify, correct or otherwise supplement the information required for the application, but it is unclear how far such requests may go in light of the competing limitation in Government Code 65944(a) that after acceptance of an application, a public agency may not request any new or additional information that is not on its published list of required application components. Presumably the agency may also consider additional information provided voluntarily by the applicant or obtained from project opponents or other sources, but it is also unclear how much additional information would be required to reject an application on the grounds that the survey was inadequate. 19

25 XI. CALIFORNIA COASTAL ACT C. Coastal Development Permits 3. Effect of Local Coastal Program (LCP) Certificating Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55 Cal.4th 783 HOLDING Mobilehome park conversions to residential ownership under Government Code are not exempt from the requirements of the California Coastal Act for a coastal development permit or from the requirements of the Mello Act (Government Code 65590, ) governing demolition or conversion of low cost housing units in the coastal zone. SUMMARY The owners of the Pacific Palisades Bowl Mobile Estates mobilehome park applied for city approval of a conversion of their park to residential ownership pursuant to Government Code Government Code provides a mandatory procedure for residential park conversions which has been found to preempt inconsistent local regulations. (See Sequoia Park Associates v. County of Sonoma (2009) 176 Cal.App.4th 1270; Colony Cove Properties, LLC v. City of Carson (2010) 187 Cal.App.4th 1487.) [In this case, the Supreme Court declined to opine as to whether the statute generally regulates all purely local regulations.] Government Code (f) also provides for a partial exemption from local mobilehome rent control ordinances for park residents who choose not to (or are unable to) purchase their lot after conversion of the park to resident ownership. The City refused to accept the application on the grounds that although the property was located in the California coastal zone, the owner had not concurrently submitted an application for a coastal development permit (Public Resources Code et seq.) or approval under the Mello Act. The owner then sued, contending that Government Code exempts park conversions under the statute from the requirements of the Coastal Act and Mello Act. The trial court agreed but the Court of Appeal reversed. The Supreme Court granted review, and then affirmed the decision of the Court of Appeal. The Supreme Court held that a mobilehome park conversion is development within the meaning of Public Resources Code 30106, and, therefore, subject to the requirement for a coastal development permit for any development in the coastal zone (Public Resources Code 30600). The Court also found that the owner could not generally avoid the requirement for a coastal development permit by claiming that the conversion would not change the density or intensity of existing use. At most, park owners could, in a proper case, apply for a waiver of the 20

26 coastal development permit requirement under Public Resources Code upon a showing that the conversion would have de minimus impacts on coastal resources. The Court also found that the Mello Act generally applies to mobilehome park conversions. While the Mello Act does not require local governments to adopt specific implementation ordinances or programs, it does prohibit[] local governments from authorizing [t]he conversion or demolition of existing residential dwelling units occupied by persons and families of low or moderate income.. unless provision has been made for the replacement of those dwelling units with units for persons and families of low or moderate income. (55 Cal.4th at 798.) After finding the Coastal Act and Mello Act generally applicable, the Court rejected arguments that Government Code impliedly exempts park conversions from these statutory schemes by limiting the scope of local hearings on conversion applications to the issue of compliance with this section. (Government Code (e).) The Supreme Court found nothing in the apparent intent, purposes or legislative history of Government Code which justified an override of the equally important purposes of the Coastal Act and Mello Act. Thus, under the principle that statutes must be construed to avoid conflicts and harmonized where possible, and the general presumption against implied repeals, there was no basis for finding that Government Code created an implied exemption from the other statutes. DISCUSSION The holdings of this case are straightforward. Consistent with these holdings, local governments may presumably deny or condition approvals of mobilehome park conversions in the coastal zone through the coastal development permit process where valid Coastal Act grounds exist for doing so. Such grounds should include restrictions in an applicable certified local coastal program (Public Resources Code et seq.), or impacts on specified coastal resources such as public access. It may be noted that the Supreme Court in this case expressly declined to approve (or disapprove) the holdings of prior Court of Appeal cases which have held that Government Code preempts inconsistent or more stringent local regulations pertaining to mobilehome park conversions to residential ownership. (55 Cal.4th at 803 and 810.) 21

27 XIII. CHALLENGES TO LAND USE DECISIONS A. Regulatory and Physical Takings Laurel Park Community LLC v. City of Tumwater (9 th Cir. 2012) 698 F.3d 1180 HOLDING Enactment of zoning ordinances restricting use of existing mobilehome parks to continued mobilehome park use or other limited alternate uses was not a taking of property under United States or Washington state constitutions, or violation of substantive due process under the state constitution. SUMMARY In response to a trend of converting mobilehome parks to other uses, thus diminishing the supply of affordable housing, the City of Tumwater enacted amendments to its Comprehensive Plan (the equivalent of a general plan) and zoning ordinances to create a new Manufactured Home Park (MHP) land use designation and zoning which were applied to six existing mobilehome parks in the City. The MHP land use designation and zoning allowed continued mobilehome park use and a number of other less intensive uses (e.g., a single family home, open space and certain recreational uses) as a matter of right. They also allowed various additional uses with a conditional use permit, e.g., churches, group homes, agriculture, bed and breakfast establishments. Finally, the regulations allowed a use variance (something generally not available under California law) if the owner demonstrated that none of the authorized uses were economically viable. Three of the six park owners sued, alleging, among other claims, that the zoning and land use changes constituted a taking of property without just compensation under the United States and Washington constitutions, and a violation of substantive due process under the Washington constitution. The federal district court granted summary judgment for the City on all claims. The Ninth Circuit affirmed. The taking claim asserted by the park owners was a facial taking claim, since it was based on the mere enactment of the new regulations rather than their application to any specific property. Although noting that the Ninth Circuit has not decided whether the multi-factor or ad hoc taking test articulated by the U.S. Supreme Court in Penn Central Transportation Co. v. City of New York (1978) 438 U.S. 104, 125 may be applied to facial taking claims, the court found that the regulations survived scrutiny under Penn-Central, and, therefore, would necessarily survive under the more lenient standard historically applied to facial taking claims. The evidence showed that only one of the parks would suffer a loss in current market value of 15% due to the ordinances, and the other parks would not be significantly affected at all. Consequently, the economic impact factor of Penn-Central did not favor a taking claim. Although the regulations restricted possible speculative future changes of uses, they did not 22

28 impair any immediate, investment-backed plans or expectations of the owners nor substantially reduce their overall property value. The second Penn-Central factor, denial of reasonable investment-backed expectations, therefore, also did not favor a taking. The final Penn-Central factor the character of the regulations did slightly favor a taking claim, since the purpose of the regulations was essentially to force property owners to bear a disproportionate share of the public burden of supplying affordable housing. However, the regulations did not prevent the owners from selling the properties or converting to other authorized uses. Consequently, this factor was insufficient to make the regulations a taking in spite of their minimal effect on the owners property values and investment-backed expectations. The Ninth Circuit also found that the regulations did not constitute a taking or violation of substantive due process under the Washington state constitution. In general, Washington state law is considerably more stringent than California law on takings and substantive due process claims. It, therefore, can be safely assumed that Court would have reached the same results had it been applying California law. DISCUSSION The case reaffirms that federal courts, as well as California courts, are reluctant to find a taking of property in the absence of very substantial economic impacts or other aggravating factors, such as an actual physical invasion or appropriation of property. The Ninth Circuit continued to postpone a decision on the question of whether the Penn-Central multi-factor test can be applied to facial regulatory taking claims, which are easier to bring than as-applied taking claims, since the final decision ripeness requirement that governs the latter cases generally means that the local government must have rejected at least one, and often more than one, formal development application before the case can be filed. (See, e.g., Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, ) The test traditionally applied to facial claims, and so far applied by California courts to facial taking claims, is the more stringent denial of economically viable use test, meaning that the regulations that allow even minimal development will usually be proof against a facial taking claim. (Shea Homes, 110 Cal.App.4th 1246, ) 23

29 1. NATURE OF MUNICIPAL CORPORATIONS I. INTRODUCTION D. Constitutional Limits on Municipal Authority 2. Federal Preemption Doctrine c. Preemption Due to Conflict with State General Law City of Los Angeles v. County of Kern (2013) Cal.App.4th (2013 WL ) HOLDING A preliminary injunction was properly granted against enforcement of a local initiative measure banning use of biosolids in unincorporated territory of the County, as (1) the plaintiffs showed a probability of success on claims that initiative was preempted by California Integrated Waste Management Act (CIWMA, Public Resources Code et seq.) and invalid under the regional welfare doctrine; and (2) defendant failed to show that any significant interim harm to itself or the public would result from suspension of the measure. SUMMARY In 2006 Kern County voters enacted the Keep Kern Clean Ordinance of 2006 which banned the surface application of biosolids produced from municipal sewage sludge (generally used as an agricultural fertilizer) in the unincorporated territory of the County. A coalition of municipal, agricultural and commercial plaintiffs filed suit against the measure in federal courts, but the federal litigation resulted in a dismissal for lack of standing to pursue the federal claims. The plaintiffs re-filed their state law claims in state court, alleging that the Ordinance was preempted by state law and violated the regional welfare standard set forth in Associated Home Builders, 18 Cal.3d 582. The trial court issued a preliminary injunction against enforcement of the Ordinance, based on its findings that the plaintiffs had shown a probability of success on the merits on their claims, and that Kern County had failed to show that it or its residents would suffer any actual detriment from suspension of the Ordinance, while the plaintiffs had shown that they would suffer considerable actual economic and other harm. The Court of Appeal affirmed. On the merits, the Ordinance strongly appeared to be preempted by the CIWMA. Public Resources Code and establish a statewide policy of encouraging recycling of solid wastes, including biosolids. While Public Resources Code also authorizes municipal governments to adopt additional local regulations that do not conflict with or impose lesser requirements than the policies, standards and requirements of this division, a complete ban on use of biosolids could not be reconciled with this language or the policies of Sections and

30 The Court of Appeal also found that the plaintiffs had shown a probability of success on their regional welfare claim. Under Associated Home Builders v. City of Livermore, 18 Cal.3d 582, , local legislation which has effects beyond local boundaries must reasonably relate to the regional welfare. (Emphasis added.) The evidence presented showed that the ban on biosolids would have substantial adverse regional effects, and no significant offsetting local or regional benefits. Consequently the Ordinance did not appear to strike a reasonable accommodation of competing interests and would likely be found invalid on this ground at trial, albeit subject to consideration of further evidence. In a collateral procedural issue, the Court also found that the plaintiffs action was not barred by the statute of limitations because they had waited more than 30 days after dismissal of their federal lawsuit to refile in state court. There is a split of authority in both federal courts and California courts as to the effect of 42 U.S.C. 1367(d) on the state statute of limitations for cases first brought in federal courts. This Court found that 1367(d) acts as a tolling provision which suspends the running of a state statute of limitations from the time a federal complaint is filed until 30 days after its dismissal, at which point the state limitations period begins to run again, and did not necessarily require the state claims to be re-filed within 30 days. This issue has not at this time been addressed by either the California Supreme Court or United States Supreme Court. DISCUSSION It was significant in this case for purposes of granting the preliminary injunction and for purposes of the regional welfare analysis that the County failed to present any substantial evidence that use of biosolids as permitted by state law would have significant adverse effects, whether on public health, the environment, or otherwise. However, it seems extremely likely that the ban on use of biosolids would be found to be preempted by state law, and, therefore, invalid, regardless of such impacts. The case does not eliminate the possibility that less drastic local restrictions on use of biosolids could be upheld, but underscores that solid evidence that the restrictions were justified by public health or environmental concerns would be required if the measure also adversely affects waste producers ability to dispose of biosolids. Thank you to Philip A. Seymour, Of Counsel The Sohagi Law Group, PLC for his contributions to the land use summaries 25

31 I. MUNICIPAL ORGANIZATION AND REORGANIZATION B. Incorporation Gila River Indian Community v. U.S. (2012) 697 F.3d 886 HOLDING The acreage limits contained in Section 6(c) of the Gila Bend Indian Reservations Lands Replacement Act (Act), enacted to facilitate the replacement of lost reservation lands, pertain only to those lands designated to be held in trust, not lands owned in fee status. Also, unincorporated land that was a county island surrounded by a city s boundaries was not within the corporate limits of any city for purposes of including the lands in a trust for an Indian Tribe. SUMMARY The Nation (formerly the Papago Tribe of Arizona), a federally recognized Indian Tribe, acquired a parcel of land and applied to have it held in trust under the (Act). The parcel at issue was a county island, surrounded entirely by lands incorporated into the City of Glendale, Arizona. The Act sought to replace reservation lands lost during flooding and to promote the economic self-sufficiency of the Nation. Among its numerous provisions, the Act requires the Secretary of the Interior (Secretary) to accept up to 9,880 acres of land into trust for the benefit of the Nation. Additionally, the following sections govern the inclusion of land into the trust: Section 6(a) of the Act permits the Nation to use of funds for numerous purposes, including the purchase of land. Section 6(c) authorizes the Nation to purchase private lands in an amount not to exceed 9,880 acres. Section 6(d) establishes that trust land refers to land under subsection (c), and that such land cannot be taken into trust as reservation if it is (i) outside certain counties, or (ii) within the corporate limits of any city or town. In response to the proposed acquisition and trust application, the City of Glendale (City) argued that the parcel fell within its corporate limits and was, therefore, ineligible for trust status under Section 6(d) of the Act. After reviewing the trust application, the Secretary concluded that the parcel was wholly unincorporated and outside the City s corporate limits. Thus, the Secretary determined, the parcel must be held in trust for the Nation. 26

32 The issues on appeal were questions of statutory interpretation, namely: (1) whether the Act s trust acreage limitations, i.e., Section 6(c), are implicated, and (2) whether the parcel is within the corporate limits of the City. Acreage Limitations in Section 6(c) Section 6(d), describes trust land as being land acquired pursuant to subsection (c). The City argued that subsection (c) prevents the Nation from acquiring more than 9,880 acres and that the Nation had already exceeded the acreage limitation. The Nation, in turn, argued that the limitation applied only to land held in trust and not to land owned in fee status. First, the Court looked to the determination made by the Secretary. The Court found that, in deciding whether the trustee requirements were met under Section 6(d), the Secretary read the statute as creating an acreage limitation on lands that could be held in trust, not on the total acreage that could be acquired. The Court then held that the statute, when read a whole, was unambiguous. It created a limitation only on land held in trust for the Nation, not on the total acreage of land that could be acquired. In reaching this conclusion, the Court reasoned that reading the statute to impose a limit on the total acreage of land that could be acquired was problematic. Most notably, the City s position would curtail the tribe s ability to purchase and sell land, a result wholly inconsistent with decades of law. Corporate Limits Restriction in Section 6(d) Section 6(d) of the Act prohibits the inclusion of land into the trust if it is outside specific counties or within the corporate limits of any city. The Court found that the parcel at issue was unquestionably within the unincorporated territory of Maricopa County, a county identified as acceptable in the Act. The Court noted, however, that there was a question as to the meaning of the phrase within the corporate limits. The City contended that the phrase had a geographic meaning, that any land entirely surrounded by a city s corporate limits was effectively within the City. Contrarily, the Nation argued for a jurisdictional interpretation, meaning that any land not subject to a city s corporate jurisdiction is not within the City. The Court found that giving the phrase its plain and natural meaning was not dispositive, as either reading of the phrase was plausible. To ascertain the phrase s meaning, the Court looked to the determination made by the Secretary. In the trust decision, the Secretary opted to analyze the corporate limits restriction based on the jurisdictional nature of the land, as opposed to its geographical location. The Secretary found: [t]he use of corporate limits shows a clear intent to make a given piece of property eligible under the [Gila Bend] Act if it is on the unincorporated side of a city s boundary line. The Court found the Secretary s interpretation to be reasonable and entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 (Chevron Doctrine). Moreover, the Secretary s conclusion that the statute was unambiguous, 27

33 while different from the court s finding of ambiguity, did not undermine the deference afforded under the Chevron Doctrine. As the Court noted, Chevron is applicable even if the court disagrees with the agency s interpretation. The Secretary exercised his judgment and discretion in considering the statutory scheme, and, thus, his interpretation was reasonable entitled to deference. The Court took time to address the dissent s invocation of the Clear Statement rule. The Clear Statement rule is a canon of statutory construction, and applies where courts confront[] a statute susceptible of two plausible interpretations, one of which alter[s] the existing balance of federal and state powers. The Court quickly dismissed the dissent s reliance on the rule, reasoning that the interpretation of the phrase within the corporate limits did not raise a question of federal encroachment on state power. In short, the Gila Bend Act does not implicate an existing balance of federal and state powers. Indian Commerce Clause and Tenth Amendment The Court also considered whether the Act exceeded Congress s power under the Indian Commerce Clause and violated the Tenth Amendment. The Court found that Congress had not exceeded its authority. In passing the Gila Bend Act, Congress acted within its authority and expressly stated that it was fulfilling its responsibility to exercise plenary power over Indian affairs to find alternative land for the [Nation]. DISCUSSION The decision importantly reiterates the substantial deference entitled to administrative agency decision under the doctrine announced in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S Under Chevron, an administrative agency s reasonable construction of a statute is entitled to deference from a court, even if the court finds the statute ambiguous and the agency finds otherwise. Here, while the holding did not determine what within the corporate limits means generally, the Court held the Secretary of the Interior s interpretation of the term, within the Gila Bend Act, to be reasonable and, therefore, entitled to judicial deference. 28

34 11. PROTECTING THE ENVIRONMENT II. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) B. Scope 1. Definition of Project Chung v. City of Monterey Park (2012) 210 Cal.App.4th 394 HOLDING A city council s decision to prepare and place a measure on the ballot, a measure which established future competitive bidding for trash collection service contracts, was not a project as defined by CEQA. SUMMARY The City Council of the City of Monterey Park (Council) directed staff to prepare a ballot measure that required a competitive bidding process for trash service every five years. The Council unanimously voted to place the measure on the municipal ballot, and the measure was subsequently approved by the voters. Chung, a voter and resident of the City of Monterey Park, challenged the measure, arguing that environmental review was required because the measure was a project subject to CEQA. The Court first noted that the adoption of a competitive bidding process in municipal contracts is a fiscal activity that promotes competition and eliminates favoritism, fraud and corruption in the awarding of public contracts. A fiscal activity which does not commit a governmental entity to any particular course of action is not a project within the meaning of CEQA. The Court held that a project does not include the creation of government funding mechanisms or other governmental fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment. (CEQA Guidelines 15378(b)(4).) The court reasoned, because the facts surrounding a course of action are unknown, environmental review would be meaningless. The Court found that the measure did not commit the City to any particular course of action. The measure provided that the City could provide solid waste services itself, award the contract to the lowest bidder, or to another bidder if the lowest is unable to meet the material requirements of the franchise. 29

35 DISCUSSION This case does not break any new legal ground, but rather solidifies a long line of cases holding that funding and fiscal activities that do not commit an agency to a specific course of action are not subject to CEQA. 2. Discretionary Projects Central Basin Municipal Water District v. Water Replenishment District of Southern California (2012) 211 Cal.App.4th 943 HOLDING A water district s decision to declare a water emergency was not a project under CEQA for two reasons: (1) the declaration had no environmental impact, and (2) it was a ministerial act, as the district had no authority to alter the terms of a court judgment. The judgment was a physical solution, an equitable decree designed to implement the constitutional mandate to maximize the beneficial use of water, and not subject to the provisions of CEQA. SUMMARY The Water Replenishment District of Southern California (WRD) declared a water emergency in the Central Basin. The WRD has the authority to declare a water emergency, pursuant to the 1991 Second Amended Court Judgment (Judgment), if without implementation of a water emergency, the water resources risk degradation. The Central Basin Municipal Water District (CBMWD) challenged the declaration, contending that any such declaration first had to comply with CEQA. CBMWD argued that the declaration had environmental consequences because it increased pumpers carryover rights and extended the period for replacement of overextracted water. The Court found CEQA inapplicable. First, the declaration of a water emergency, by itself, has no environmental impact, and, thus, is not a project within the meaning of CEQA. Rather, it is a mere statement that the resources risk degradation. Second, WRD s decision to declare a water emergency was ministerial. WRD had no authority to alter the terms of the Judgment, even if it determined that the carryover and delayed replacement would have significant environmental effects. WRD simply had no discretion to alter the carryover rights or delay replenishment, and it would be useless to require compliance with CEQA. The Court also held that the Judgment was a physical solution, thus, trumping any application of CEQA. A physical solution is an equitable decree designed to implement a constitutional mandate and to maximize the beneficial use of water. [W]here an existing judgment is in place establishing a physical solution to water rights issue, the public agency had 30

36 no judgmental controls to exercise. The power to act in these circumstances is reserved to the court. Therefore, despite the challenge by CBVWD, and even if there were environmental impacts, WRD could not exercise its authority in contravention of the Judgment. DISCUSSION This case, along with Hillside Memorial Park and Mortuary v. Golden State Water Co. (2011) 205 Cal.App.4th 534 and California American Water v. City of Seaside (2010) 183 Cal.App.4th 471, held that a physical solution imposed by court judgment trumps CEQA. 3. Exemptions Coalition for Clean Air v. City of Visalia (2012) 209 Cal.App.4th 408 HOLDING The Fifth District Court of Appeal held that a notice of exemption filed before the final approval of a proposed project is invalid. If a notice of exemption is filed before approval of the project, CEQA s 35-day statute of limitations is not applicable. SUMMARY In August 2010, applicant VWR International (VWR) announced that it intended to build its new laboratory equipment distribution center on undeveloped land that was zoned heavy industrial use. On November 3, 2010, the City of Visalia (City), concluding the project was a ministerial action and exempt from CEQA, filed a notice of exemption. The notice of exemption was filed five days prior to the approval of the project on November 8, On December 28, 2010, 55 days after approval, Coalition for Clean Air (Coalition) filed a verified petition and complaint that alleged violations of CEQA. VWR demurred, arguing that the action was time-barred under CEQA Guidelines 21167, which provides for a shortened (35-day) statute of limitations upon filing of a notice of exemption. Coalition opposed the demurrer, contending (1) a notice of exemption is invalid if filed before project approval, and (2) the CEQA claim was timely under the longer (180-day) limitations period that applies when a party fails to file a valid notice of exemption. CEQA Guidelines unambiguously states that a notice of exemption shall be filed, if at all, after approval of the project. The Court held that this mandatory language plainly means that a notice of exemption filed before project approval fails to comply with CEQA Guidelines Therefore, the Court reasoned, the filing of a notice of exemption before project approval does not commence the running of the shortened statute of limitations. The Court also reasoned that its interpretation complied with the holding in County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, wherein the court 31

37 concluded that a notice of exemption cannot be filed until after the project is approved. VWR argued that County of Amador was overruled by the Supreme Court in Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481. Stockton Citizens held that a petitioner must challenge a facially valid notice of exemption within the shortened, 35-day statute of limitations. The Court disagreed with VWR, however, concluding that Stockton Citizens held that the shortened, 35-day statute of limitations applies only if a notice of exemption is both facially valid and properly filed. The Coalition also sought a writ of mandate against real party in interest, VWR, for failing to apply for a permit from the San Joaquin Valley Air Pollution Control District pursuant to the indirect source rule. The Court sustained the demurrer on the ground that a writ of mandate cannot be used to complete an action by a private entity. DISCUSSION The Court s decision reiterates the holding in County of Amador v. El Dorado County Water Agency, namely that a notice of exemption cannot be filed until after the project is approved. It also holds that the shortened, 35-day statute of limitations applies only to notices of exemption that are facially valid and properly filed, as was held in Stockton Citizens for Sensible Planning v. City of Stockton. Taking those two decisions into consideration, the court found that a notice of exemption that is improperly filed before the project is approved does not trigger the shortened, 35-day statute of limitations contained in Section a. Statutory Exemptions Concerned Dublin Citizens v. City of Dublin (2013) Cal.App.4th (2013 WL ) HOLDING A residential development project located within a mixed-use zone was nevertheless a residential development for purposes of CEQA exemption found in Government Code SUMMARY This is the first published decision to address the CEQA exemption found in Government Code Section exempts residential development consistent with a specific plan from further environmental review if an EIR was certified for the Specific Plan. AvalonBay Communities, Inc. (AvalonBay) proposed development of a small parcel within the larger a transit center development within the City of Dublin (City). In 2002, the City certified an EIR and approved the East Dublin Specific Plan (Specific Plan) for the Dublin Transit Village Center development. The Specific Plan included a stage 1 development plan that 32

38 established permitted uses and development standards for future projects within the transit center. The programmatic EIR for the Specific Plan, analyzed the impacts at full buildout of the plan, and anticipated that implementation of the Specific Plan would require additional actions, including project-specific development plans and review. Under the original stage 1 development plan, the parcel at issue, designated as Site C, was to include a maximum of 405 high density residential units and up to 25,000 square feet of retail space. AvalonBay submitted a revised project proposal which omitted the retail space, and included 505 apartment units, a leasing center, a fitness center, and two parking structures. While no retail development was included in the project, AvalonBay confirmed that the ground floor residential units could be converted to retail in the future. As required by the Specific Plan, AvalonBay sought City approval of (1) a stage 2 development plan, (2) a site development review permit, and (3) an amendment to the stage 1 development plan to reallocate 100 residential units from site A to Site C. The city council approved all of the requisite permits, plans and amendments and found that these approvals were exempt from CEQA under Government Code Whether the Project is a Residential Development The Court of Appeals addressed whether the project was a residential development, as contemplated under Government Code The trial court found, and the parties agreed for purposes of the appeal, that a residential development is a project that contains entirely residential units and its ancillary uses. While Citizens acknowledged the proposed project included only residential development, they nevertheless argued that the project was mixeduse because the applicant retained the option to convert some 25,000 square feet of residential uses to retail space. The Court rejected this argument, holding the City s approval process clearly demonstrate that any future commercial use would required further discretionary review and an amendment to the site development plan. The Court noted that while the site was zoned mixed-use, that mere fact does not convert an otherwise wholly residential project into a mixed-use project. AvalonBay is not automatically entitled to develop commercial property simply because such use would comply with zoning requirements. Rather, the Specific Plan anticipated that before any use of property is approved, there will be compliance with the site development review process, which includes compliance with applicable environmental review. Whether the Project is Consistent with the Specific Plan Citizens argued that the project was inconsistent with the Specific Plan in two respects. First, they contend that the Specific Plan is a mixed-use project and not a residential development, thus the project must also be a mixed-use plan. The Court disagreed, looking to the Specific Plan. While the Specific Plan was designed to combine residential and commercial 33

39 uses, commercial development is not required in Site C. Also, the Court held, the transit center retains its mixed-use character even if individual sites within the center were not mixed-use. Next, Citizens argued that because the City prepared a programmatic EIR in 2002, it cannot now exempt itself from further, tiered environmental review. The Court found this argument meritless as CEQA does not mandate a particular level of environmental review when evaluating projects within the scope of a programmatic EIR. Also, the EIR itself did not require a specific level of environmental review for subsequent projects within the Specific Plan. While it acknowledged that additional environmental review was anticipated, it did not mandate a particular type of review. The Court held that the City s consideration of whether the exemption applied was itself an environmental review. Whether the Section Exemption Applied Section provides the exemption does not apply, unless and until subsequent environmental review is conducted as necessary pursuant to Public Resources Code The City determined that there were no circumstances warranting additional environmental review of the transit center project. Citizens challenged this conclusion, arguing first that the increase in residential units constitutes a significant change in the Specific Plan. The Court did not find this argument persuasive as the reallocation of residential units within the transit center was expressly authorized by the Specific Plan. Importantly, the total number of residential units was not increased. The City, thus, was entitled to determine that this change does not require preparation of a supplemental environmental impact report. Citizens also argued that supplemental review was necessary because significant new information regarding greenhouse gas emissions was available. To advance this argument, Citizens cited new air quality management thresholds as justification for additional environmental analysis. The court concluded that new thresholds did not constitute significant new information because the potential environmental effects of greenhouse gases were known or could have been known in 2002, citing Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515 [claims about global warming did not amount to significant new information]. In reaching its decision, the Court applied the substantial evidence test despite urging by Citizens to apply the fair argument standard per Gentry v. City of Murrieta (1995) Cal.App. 4th DISCUSSION This decision is very useful in the context of CEQA streamlining, particularly in the era of mixed use, transit oriented development. The decision correctly interprets the residential development exemption contained in Government Code to apply to residential development within a mixed use zone. Additionally, the decision made specific holding that reach beyond Government Code 65457, including (1) that CEQA does not require any specific level of subsequent environmental review under a program EIR, (2) the reallocation of 34

40 residential units from one site in a specific plan to another does not amount to a significant change requiring the preparation of a supplemental EIR, and (3) the existence of new thresholds of significance does constitute significant new information requiring supplemental environmental review when the underlying information was known or should have been known at certification of the program EIR. b. Categorical Exemptions Voices for Rural Living v. El Dorado Irrigation District (2012) 209 Cal.App.4th 1096 HOLDING The Third Appellate District held that the unusual circumstances exception precluded the use of the categorical exemption for small construction projects for a water supply agreement that would have conveyed an inordinately large amount of water. The court found there was evidence supporting a fair argument that the unusual circumstances would have a significant impact. SUMMARY The El Dorado Irrigation District (EID) entered into an agreement to provide water to a casino located on tribal land held by Shingle Springs Band of Miwok Indians (Tribe). EID and the Tribe had an existing water supply agreement, and the new agreement called for an expanded supply and the construction a small section of pipeline and a water meter. EID determined that the agreement, which staff estimated would result in only a ten percent increase in water demand, would not result in any significant impact to the environment or to any existing levels of service. Accordingly, EID found that the project was categorically exempt from CEQA. EID claimed that the project was categorically exempt as new construction or conversion of small structures (Class 3). Voices for Rural Living (VRL) challenged the approval of the agreement and the determination of exemption. The trial court ruled in favor of VRL, finding that the project s unusual circumstances triggered an exception to the categorical exemption. The trial court found that the project was not exempt from CEQA, and ordered EID to prepare an EIR to analyze the project. The Court of Appeals first noted that determining whether the unusual circumstances exception applies requires a two-step test: First, whether the project presents unusual circumstances and, next, whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. The Court stated that it independently reviews, as a matter of law, whether there is an unusual circumstance. Also, the fair argument standard applies when determining whether there is a significant impact resulting from the unusual circumstance, though the Court acknowledged that there was contrary authority that the substantial evidence standard applied. 35

41 The Court affirmed the trial court, holding that the project presented circumstances that are unusual for this categorical exemption because the project provided significantly more water (216 Equivalent Dwelling Units (EDU)) than the amount of water contemplated by the categorical exemption (1 or 4 EDUs). There was no doubt that modifying and relocating a water meter and pipeline for a casino and hotel development greatly differs from doing the same for a single family residence, the type of project covered by the exemption. The sheer amount of water constituted an unusual circumstance. The Court next turned to whether there was a reasonable possibility of significant environmental effects due to the unusual circumstances. A significant effect on the environment would occur if there was insufficient supply to meet the demands of the current and planned customers or if delivering the promised water might create impacts to the physical environment. The Court found that there was evidence that the water supply was sufficient to meet demand in normal, non-drought years. However, the Court also found that, even without approving the project, the supply will be insufficient during a drought, especially when accounting for climate change. The Court specifically looked to the Drought Preparedness Plan, which noted that, if climate change occurs, there will be times when EID fails to either supply the amount of water that its customers expect or fails to meet its instream flow obligations. Here, EID did not give any consideration to the possibility of additional shortages of water during a drought due to climate change when it determined how much of its supply was unallocated and available for use. It failed to consider climate change even though the record contained evidence suggesting that it already lacked sufficient water to meet demands. The Court reversed the judgment in part, directing the trial court to order EID to conduct further CEQA review, noting specifically that the trial court should not have mandated preparation of an EIR. LAFCO Conditions EID had also determined that the agreement was not subject to previous conditions imposed by El Dorado County Local Agency Formation Commission (LAFCO), limiting the amount of water it could provide to tribal land. EID found the conditions to be unconstitutional, and approved the agreement to provide water in quantities exceeding the amount allowed under the conditions. The Court held that EID exceeded its jurisdiction in approving the agreement in violation of the LAFCO conditions. In reaching this conclusion, the court held that LAFCOs, having been vested with the sole and exclusive authority to approve annexations of territory into special districts, had the power to impose conditions of approval on an annexation. An approval of annexation or conditions of annexations are quasi-legislative determinations, and a public agency responsible for complying with the conditions has no discretion to disregard them. 36

42 DISCUSSION The First District Court of Appeals similarly addressed the application of the unusual circumstances in Berkeley Hillside Preservation v. City of Berkeley. There, the court held that the unusual circumstances exception applies whenever there is a fair argument of a significant environmental impact. The court further held that the mere fact that a proposed activity may have an impact on the environment is an unusual circumstance preventing the use of a categorical exemption. This holding departs from the two part test established in Banker s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, and followed in Voices for Rural Living v. El Dorado Irrigation District. The Berkeley Hillside decision was appealed to the California Supreme Court, and review was granted May 23, The forthcoming decision will likely clarify the unusual circumstances exception. E. Environmental Impact Report (EIR) 5. Adequacy Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209 *Supreme Court s decision on petition for review due April 18, HOLDING The Fourth Appellate District held that an EIR s project description properly excluded an adjacent development and the City did not improperly piecemeal when the neighboring development was not a reasonably foreseeable consequence of the project. The EIR was also upheld against numerous other challenges, including growth inducement, cumulative biological impacts, and cumulative traffic impacts. SUMMARY The City of Newport Beach (City) prepared an EIR for the Sunset Ridge Park (Park Project), an 18.9-acre site with active and passive recreational uses. The Park Project bordered an adjacent property known as Banning Ranch, for which development was planned and for which an NOP had been issued. The Newport Banning Ranch Project (NBR Project) was a 401- acre site that proposed residential dwellings, commercial uses, and overnight resort accommodations. It also included the construction of an access road to the project site from the West Coast Highway. The Park Project also included an access road, which would be constructed from the West Coast Highway through the NBR Project, following generally the same roadway alignment as the access road proposed for the NBR Project. The Park Project EIR analyzed the access road. Banning Ranch Conservancy (BRC) argued that the draft EIR improperly piecemealed the project by failing to fully acknowledge the extent of the project 37

43 because the park access road in the Park Project EIR and the access road in the Newport Banning Ranch NOP were the same. The City maintained that the two projects were distinct and that the projects could be properly analyzed in separate EIRs. The Court applied the test for piecemealing articulated in Laurel Heights Improvement Assn. v. Regents of University of California, namely that the environmental effects of future expansion or other action must be analyzed if (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 396.) The Court emphasized that the project definition is the starting point of a piecemealing challenge, not the finish line, and improper piecemealing occurs when (1) the purpose of the reviewed project is to be the first step toward future development or (2) the reviewed project legally compels or practically presumes completion of another action. The Court applied the piecemealing test, first noting that the NBR Project was reasonably foreseeable. NBR LLC had already proposed developing Banning Ranch, and the City was already preparing an EIR for the NBR Project. Moreover, the Court found that the NBR Project would change the scope and nature of the Park Project, as the NBR Project would extend the road and double its width. The Court found, however, that the NBR Project was not a reasonably foreseeable consequence of the Park Project. First, the Park Project s access road was only a baby step toward the NBR Project. While the access road furthers the NBR Project, it does so only relatively modestly. The park was not being built to induce the NBR Project, which was already planned. The projects also serve different purposes, one provides recreational opportunities for existing residents, the other develops a new neighborhood, and had different project proponents. Finally, the City s General Plan called for construction of a road through Banning Ranch, even if it was acquired for open space. Cumulative Traffic Impacts BRC also alleged that the cumulative traffic analysis was insufficient, specifically that the analysis failed to account for any traffic from the NBR Project. The Court disagreed, finding that the analysis was reasonable and practical. The Park Project EIR stated that the park access road was consistent with the General Plan, and the General Plan EIR had assumed worst case conditions, including alternate residential and commercial development on Banning Ranch, and analyzed the traffic impact from the proposed access road and its intersection with the West Coast Highway. Growth Inducing Analysis BRC contended that growth inducing impacts were inadequately analyzed. The Court found, however, that there was substantial evidence supporting the conclusion that the park 38

44 would not have a growth inducing impact, particularly with regard to the NBR Project. As the court noted previously, the NBR Project was proposed first and was not induced by the Park Project. Moreover, the court found that (1) the park s access road was consistent with the General Plan, (2) any impact to growth was indirect because the access road removed only one of numerous obstacles to growth, and (3) the NBR Project was undergoing its own environmental review. Cumulative Biological Impacts The Park Project EIR s reliance on a habitat conservation plan, which included both the Park Project and NBR Project, in assessing the project s cumulative biological impacts was appropriate and supported by substantial evidence. California Gnatcatcher Impacts The Park Project EIR noted that the site was within critical gnatcatcher habitat, as defined by the U.S. Fish and Wildlife Service (USFWS), and that the western portion of the site supported the federally listed gnatcatcher. The Park Project EIR found that the project would impact only a tiny percentage (0.68 acres) of gnatcatcher habitat. Plaintiffs argued the entire site was per se significant because it was designated a critical habitat by the USFWS. The Court disagreed with plaintiffs, holding that no caselaw supported the proposition that all critical habitat was significant. The Court also held that there was substantial evidence supporting the conclusion that all but a small portion of the project site (0.68 acres) was so degraded that its loss would not be a substantial impact. Coastal Act Consistency The Park Project EIR sufficiently analyzed consistency with the California Coastal Act. The EIR identified the relevant policies and noted that no area of the project site had been designated an environmentally sensitive habitat area (ESHA) under the Coastal Act. However, the EIR also acknowledged that two areas within the project site had the potential to be designated as ESHA, but that any impacts to these areas would be mitigated to a less than significant level. Plaintiffs argued that the areas were highly likely to be designated as ESHAs, and that the coastal commission would reject the mitigation measures. The Court rejected this argument, holding that even if the commission would ultimately reject the mitigation measures, the EIR need only address existing inconsistencies with the Coastal Act. DISCUSSION Banning Ranch is a useful case as it clearly articulates the California Supreme Court s test for impermissible piecemealing established in its 1988 Laurel Heights decision. The Fourth Appellate District provides a helpful step-by-step application of the facts to the test. Interestingly, the Court introduces the concept that one project s baby step towards facilitating another project is not enough to require a joint analysis. 39

45 Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260 HOLDING An EIR for a large multi-use development improperly deferred mitigation of impacts to the spotted butterfly when it failed to specify performance standards or provide guidelines for a mitigation measure that called for the active management of a required preserve. The Fourth District Court of Appeals also ruled: The EIR did not provide sufficient evidence of an adequate long-term water supply when the estimation of water supply varied substantially between the water supply assessment and the EIR. The unexplained discrepancy precluded a determination that sufficient water was available. EIR s water supply analysis, which relied heavily on distributions from the State Water Project (SWP), failed to discuss the uncertainty of a reliable water supply due to court decisions affecting the SWP. The EIR properly relied on a multi-species conservation plan and unadopted subarea plans in its evaluation of cumulative impacts to biological resources. CEQA allows reliance on adopted plans when analyzing cumulative impacts. A mitigation measure that required acquisition of off-site property was valid and feasible because there was substantial evidence in the record to demonstrate that acquisition of off-site property was capable of being accomplished in a reasonable time. SUMMARY The City of Santee (City) certified an EIR for a large multi-use development covering approximately 2,600 acres. The land included several different biological communities, such as wetland, riparian, southern mixed, chaparral, coastal sage scrub, and disturbed coastal sage scrub. Some 970 acres of the land would be developed, and the remaining 1,400 acres preserved as open space. The EIR concluded that the project would result in significant impacts to air quality, traffic circulation, and cumulative climate change, but also found that all of the other environmental impacts would either be less than significant or mitigated to a level that was less than significant. The project was located within a Multiple Species Conservation Program (MSCP). The EIR concluded that the project would not have a significant cumulative impact on biological resources because the only possible development that could result in cumulatively considerable impacts was in the City of San Diego and County of San Diego, two jurisdictions covered by the MSCP. In reaching this conclusion, the EIR assumed that development in both jurisdictions would be consistent with the MSCP. The Court found that this assumption was reasonable, and that relying on an approved land use plan was expressly permitted by CEQA. 40

46 Also, the Court found that a species-specific analysis was inappropriate. The purpose of a cumulative impacts analysis is to assess whether the incremental effects of a project combined with the effects of other development would cause a significant environmental impact. Because here the potential development s effects on biological resources were unknown, due to the uncertainty of proposed development, there was insufficient information to permit a speciesspecific analysis of the project s cumulative impacts on biological resources. Nevertheless, by explaining that the project and potential development must comply with the MSCP, the EIR found that the project would not interfere with the potential development s attainment of its share of the goals [of the MSCP]. Mitigation Measures The petitioners argued that the record did not show that acquisition of off-site property for mitigation was feasible, and, therefore, it was improper under CEQA. The Court disagreed, holding that there was substantial evidence in the record demonstrating that acquisition of the mitigation property was capable of being accomplished within a reasonable time period. The record indicated that the developer had identified suitable property, was actively negotiating with property owners, and was confident it could acquire all the necessary acreage. Significantly, the Court held that the EIR improperly deferred mitigation of the impacts to the spotted butterfly (Quino). The EIR mitigation measure called for an open space preserve, but failed to specify standards or guidelines for active management of the Quino. The EIR failed to explain why specific performance standards or guidelines for management within the preserve were impractical or infeasible at the time of certification. Also, the Court found that there was no guarantee that the measures would occur at any particular time or in any particular manner because the timing and discretion for implementing the plan were left to the discretion of the preserve manager. Water Supply Analysis The petitioners argued that the water supply analysis was improper because there was insufficient evidence of an adequate long-term water supply. The Court agreed, noting first that there was a large discrepancy between the EIR s estimation of water demands (1,446 acre feet/year) and the water supply assessment s estimation (565 acre feet/year). This discrepancy is not explained in the EIR and such an unexplained discrepancy precludes the existence of substantial evidence to conclude sufficient water is likely to be available for the project. The Court also found that there was some uncertainty about the water district s supply. The district depends heavily on water from the SWP, about which there was some short-term uncertainty. The analysis, in neglecting to discuss this uncertainty, failed to provide decisionmakers with sufficient facts to evaluate the project s water needs. Moreover, even if it were impossible to determine the availability of future water sources, the Court held, the analysis must discuss possible replacement sources or alternatives to use of the anticipated water, and the environmental consequences of those contingencies. 41

47 The record also failed to demonstrate that there was sufficient groundwater to fill the project s 10-acre lake and recharge the lake if stormwater proves insufficient. The EIR provided that groundwater could not be used if it would lower the groundwater level by more than one meter and that the developer must use an alternative water source to fill the lake. However, the EIR failed to identify or analyze the impact of obtaining water from an alternative source. Limited Writ of Mandate The trial court issued a limited writ directing the City to bring this aspect of the EIR into compliance with CEQA. Petitioners argued that the limited writ was improper, contending that, whenever a trial court finds an EIR inadequate, it must decertify the EIR and vacate all related project approvals. The Court of Appeals disagreed, holding that [i]n deciding which mandates to include in its order, a trial court relies on equitable principles. Moreover, trial courts are granted discretion and flexibility in tailoring a remedy to a violation of CEQA. The Court looked to CEQA Guidelines , which expressly allows a court to mandate the suspension of any project activities that might adversely affect the environment and prejudice the consideration or implementation of mitigation measures or project alternatives until the agency complies with CEQA. Applying this section, the Court concluded that the trial court had acted appropriately. DISCUSSION An EIR s cumulative biological impact analysis need not conduct species-specific analysis and may rely on a conservation plan when the cumulative projects are unknown and all possible development projects must be consistent with the conservation plan. An EIR s mitigation measures are inadequate if the measures do not contain specific performance standards or provide guidelines, but rather rely on management plans that have not been formulated. The water supply analysis must analyze whether there is a sufficient long-term supply. Also, if there is uncertainty about supply, it must discuss and analyze possible replacement sources. A court may rely on equitable principles and issue a limited writ of mandate under CEQA Guidelines Section Habitat and Watershed Caretakers v. City of Santa Cruz (2012) 213 Cal.App.4th 1277 HOLDING The Sixth Appellate District held that an EIR appropriately discussed and analyzed the impacts of the project, including water supply, water resources, and biological resource impacts, 42

48 the description of the project s objectives, mitigation measures, and statement of overriding consideration. The EIR, however, was inadequate because it failed to consider any feasible alternative, such as a limited-water alternative, that could avoid or lessen significant environmental impact of the project. SUMMARY The City of Santa Cruz (City) certified an EIR to amend the City s sphere of influence (SOI) to include an undeveloped portion of the University of California, Santa Cruz (UCSC), known as North Campus. The amendment would allow for the provision of extraterritorial water and sewer services to the proposed new development in North Campus. In August 2008, the City and Regents of the University of California (Regents) entered into a comprehensive settlement agreement (CSA) to resolve previous litigation over the adoption of a Long Range Development Permit (LRDP). Under the CSA, the Regents committed to increasing on-campus housing if the City sought (1) LAFCO approval of a SOI amendment, and (2) agreed not to oppose the request for the provision of extraterritorial water and sewer service to the North Campus. Project Objectives Habitat and Watershed Caretakers (Habitat) contended that the project and its primary objective were improperly identified in the EIR because the draft EIR characterized the CSA as requiring the City to provide services to North Campus when, in fact, the CSA only mandated that the City initiate a LAFCO application for an amended SOI. The Court disagreed, holding that the FEIR s description of the project s objectives appropriately identified the project s purpose and objectives. The Court first reasoned that the whole of the project included (1) the City s decision whether to propose an amendment to its SOI, (2) the Regent s application for extraterritorial services, and (3) LAFCO s decision whether to approve or deny the amendment and application. Therefore, the EIR was required to provide sufficient information about the project to decisionmakers at both the City and LAFCO. The Court noted that the project objectives should include the underlying purpose of the project, which was to provide water and sewer services to North Campus. The DEIR stated that the project objective was to implement the obligations set forth in the CSA, namely to amend the SOI. The Court, however, noted that this objective did not illuminate the underlying purpose of the project, which as noted above, was to provide water and sewer service to North Campus. Therefore, the Court held, the DEIR s description of the project s objectives was not supported by substantial evidence. The Court then looked to the revised project objectives in the FEIR. The FEIR stated that the project objectives were (1) implementation of the commitments made in the CSA, as related to the provision of water and sewer services to North Campus, (2) the amendment of the City s SOI to include portions of North Campus, and (3) a City provision of extraterritorial water and 43

49 sewer services to portions of North Campus. The Court found that this objective was more illuminatory, and adequately delineated the project s objectives. Range of Alternatives When discussing feasible alternatives, the EIR stated that the primary objective of the proposed project was to implement the legal obligations to provide water and sewer service to North Campus, as specified in the CSA. The EIR then concluded that there were no known alternatives to the provision of these services, and that no alternative could alter the terms of the CSA, a legal judgment. The Court first noted that the EIR, which was prepared for both the City and LAFCO, needed to discuss feasible alternatives that were available to both agencies. Habitat argued that the alternatives analysis was insufficient because it failed to consider any alternatives that would avoid some of the significant environmental impacts, specifically a reduced-development or limited-water alternative. The Court quickly dismissed the reduced-development alternative, but focused on the limited water alternative. The City argued that a limitedwater alternative was infeasible because (1) it would not meet the basic project objective, (2) would not avoid a significant environmental impact because development could be relocated to areas already within the City s SOI, and (3) the City had no jurisdiction to limit on-campus development. The Court disagreed with the City, finding that a limited-water alternative would meet the project s objectives by allowing development if it were imposed as a condition of approval by LAFCO. The Court found no merit in the conclusory argument that a limited-water alternative would not avoid the significant impact on water quality. The Court held that, without analysis in the EIR, the City s position was speculative and that the decisionmakers were not provided with information about the positive effects that such an alternative might provide. CEQA does not permit a lead agency to omit any discussion, analysis, or even mention of any alternatives that feasibly might reduce the environmental impact of a project on the unanalyzed theory that such an alternative might not prove to be environmentally superior to the project. Water Supply The City had four primary water sources, each of which faced future threats. If the City s water supply does not decrease, which was a possibility given overall supply conditions, demand was expected to exceed supply in normal (non-drought) years sometime between 2015 and The City had devised measures, including conservation, curtailment, and construction of a desalination facility, to combat the water supply problem. The EIR acknowledged that the project s impact to water supply was potentially significant, but concluded there were adequate supplies to serve the project in normal years and that supplies would fall short only in dry years. The Court found the analysis to be legally sufficient. The EIR carefully described the impacts of supplying water to the project, 44

50 acknowledged the project would contribute to the existing shortfall, noted that the only feasible source of additional water, the desalination facility, was uncertain, and provided estimates of the project s water needs so that the merits of the project could be appropriately evaluated. The Court held that the analysis was adequate because the harsh reality of water supply was discussed and disclosed in the EIR. Watershed Resources The FEIR included a reference to a stormwater management plan (SWMP), but the plan itself was not included in the FEIR or DEIR. Habitat contended that this was improper because the entirety of the information was not presented to the decision maker or the public. The Court disagreed. The DEIR had discussed, described, referenced, and incorporated analysis and mitigation measures from a Long Range Development Permit EIR, and the FEIR included a discussion of the relevant provisions of the SWMP. The FEIR s additional analysis of the issue did not deprive the decision makers of any information necessary to evaluate the level of impact or the adequacy of the mitigation measures. Habitat also argued that the watershed resources analysis neglected to delineate existing wetlands in North Campus. The EIR acknowledged (1) the potential existence of wetlands in the project area, and (2) that development could result in potentially significant impacts to jurisdictional wetlands. Nevertheless, the EIR found that wetlands delineation was currently infeasible because the precise boundaries were likely to change throughout development. The Court held mitigation was not deferred. The DEIR appropriately incorporated mitigation measures for wetland loss from the Long Range Development Permit EIR. The Court held that the analysis was sufficient, despite no delineation of wetlands. Here, the EIR explicitly recognized the existence of wetlands, and, while it did not delineate the wetlands, the EIR did identify mitigation measures that required that wetlands be identified prior to development and subjected the wetlands to the mitigation measures. Biological Resources Habitat argued that additional study of biological resources was required because it was reasonably foreseeable that the project would require the City to draw more water from its existing sources, thus affecting biological resources. The Court found no merit in this argument. It reasoned that the City did not propose to increase its water supply in order to meet demand from the project, but rather would meet the demand through conservation, curtailment, and the possible construction of a desalination facility. Mitigation Measures Habitat argued that the mitigation measures were insufficient to mitigate the significant and unavoidable impacts on water supply, and did not address the existing water supply shortfall. The Court found that the mitigation measures were specific and certain, and were supported by 45

51 substantial evidence in the record. Moreover, the Court noted, the EIR was not required to resolve the longstanding water supply deficit. Statement of Overriding Consideration Finally, the Court found that the statement of overriding consideration was not contrary to CEQA. It held that, regardless of whether it agreed with the conclusions reached in the statement of overriding consideration, the statement did not amount to an abuse of discretion. DISCUSSION The Court held that project objectives must include the underlying purpose of the project. Therefore, it is important for a public agency, when devising a project s objectives, to discuss the reasons for the project, not just the actions necessary for the project. As to biological resources, the Court noted that it is reasonable to delay delineation of wetlands if (1) delineation is infeasible at the time of environmental review, (2) delineation will occur during projectspecific review, and (3) there are mitigation measures that apply to wetlands. Finally, regarding alternatives, the alternatives analysis must include a discussion of any feasible alternative that would avoid or lessen the significant impacts of the project. The conclusion that an alternative would not avoid or lessen the significant impacts of the project cannot be conclusory, but must provide analysis and information to the decisionmakers. Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184 HOLDING The Third Appellate District upheld an EIR for an expansion of an existing wood veneer manufacturing facility to include a cogeneration facility. The Court held, among other things: There is no rule specifying a particular number of alternatives that must be included in an EIR; Plaintiffs objections to the air quality baseline were untimely because they were not submitted within the timeframe provided by county appellate hearing rules; and Nothing prohibited using a series of 15-minute noise measurements to establish the overall 24-hour noise level. SUMMARY In November 2008, Siskiyou County (County) approved a project to expand an existing wood veneer manufacturing facility to permit cogeneration of electricity for resale (Project). The excess electricity would be sold to the grid. The fuel necessary for the facility was to come from the bark and trim removed from logs used in the wood veneer production and from forest 46

52 management activities in the surrounding region. The EIR was challenged on grounds that it failed to include an adequate analysis of alternatives and failed to fully disclose, analyze and mitigate air quality, noise and water impacts of the Project. Alternatives Analysis The EIR identified a number of alternatives during the scoping process, including a reduced capacity alternative, and two alternative boiler locations, one onsite and one offsite. All of the proposed alternatives were rejected at the outset as infeasible because they did not meet project objectives. The only alternative evaluated in detail in the EIR was the required no project alternative. The Court found the analysis was reasonable and complied with CEQA. An EIR must include an analysis of the alternatives that were found during the scoping phase to be potentially feasible and [t]hose rejected during the scoping phase as not potentially feasible are not counted in determining whether the analysis was reasonable. An EIR is not inadequate simply because all alternatives considered by the agency during the scoping phase are determined to be infeasible. [T]here is no rule specifying a particular number of alternatives that must be included. Significantly, the Court found that the challenging party must show that the agency failed to satisfy its burden of identifying and analyzing one or more potentially feasible alternatives. Here, the plaintiffs failed to demonstrate that including only the project and the no project alternative did not constitute a reasonable range of alternatives or that there was a particular alternative that was feasible. Air Quality Plaintiffs argued that the air quality analysis incorrectly used permitted emissions rates rather than actual emissions rates at the then existing facility, in contravention of the California Supreme Court s ruling in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310. The Court first rejected the letter upon which plaintiffs relied as untimely because it was submitted the day before the hearing on the plaintiff s appeal of the planning commission s decision, rather than the five days required by county appellate hearing rules. The Court found that the letter was part of the administrative record, but only insofar as it provided plaintiffs an opportunity to challenge exclusion of the letter from evidence before the appeals board. The Court nevertheless discussed the merits of the claim. It noted that, assuming the emissions rates for other pollutants were based on the permitted steam level, the small discrepancy in the permitted emissions and the actual emissions could hardly be considered significant (approximately 7%). Because the error was not one that would have precluded informative decisionmaking or public participation, it was not prejudicial. Moreover, nothing prohibits an agency from using an approximation as a baseline. 47

53 Noise Impacts The EIR concluded the project s noise impacts would be less than significant. In doing so, the County used a significance threshold that found an impact to be significant if there would be both an overall noise level exceeding the applicable standard and an increase of at least 3.0 dba. The plaintiffs argued that the impact should be considered significant if it exceeded the applicable standard at anytime throughout the day. The Court rejected this assertion, saying that plaintiffs misconstrued the significance threshold. The EIR measured noise impacts through periodic 15-minute sampling during a 24-hour period, a methodology the plaintiffs argued was improper. The Court found that nothing required the county to measure such averages by a 24-hour measurement, rather than periodic sampling during a 24-hour period. Noise Mitigation The EIR also included two noise mitigation measures, both which were dependent upon noise complaints from affected citizens. Plaintiffs argued that the success of a mitigation measure cannot be based on complaints being received and subsequent tests. The Court found these measures to be valid, noting that there is every reason to believe a mitigation measure calling for further mitigation efforts in the event individuals directly impacted by a project complain of increased noise would go directly to the heart of the matter. Cumulative Noise Impacts The EIR found that although there was already a significant cumulative noise impact in the project area, the project s contribution to the impact was not cumulatively considerable because the contribution would be less than 1 dba. The Court upheld the EIR s assessment under the substantial evidence standard, noting Plaintiffs had not asserted the record lacked substantial evidence in support of its conclusions. A difference in opinion on the facts is not a valid basis for overturning approval of an EIR. In a related argument, Plaintiffs argued the EIR failed to consider noise increases along truck haul routes. Again, the Court found substantial evidence supported the EIR s conclusion that truck trips would not significantly increase noise levels along the designated haul routes. Recirculation The FEIR included two noise studies that were summarized and discussed in the DEIR, but were not incorporated by reference. The Court found that recirculation was not required because the two noise studies did not involve a new significant impact, a substantial increase in severity of an environmental impact, or the rejection of a feasible project alternative or mitigation measure. The DEIR simply failed to include all noise information and all measurements found in the two noise studies. 48

54 Water Quality Impacts Plaintiffs claimed that the EIR failed to include an adequate description and analysis of the project s impacts to water and hydrology. Plaintiffs argued that the water usage analysis grossly underestimated water usage. The Court held that while the County could not provide substantial evidence in support of its conclusions about water usage, it was not enough that the EIR simply misstated an aspect of the proposed project. The omission must be prejudicial. The fact that overall water usage of the project may have been understated would not appear to preclude informed decisionmaking or informed public participation unless the increased usage would have a significant environmental impact. We will not presume that to be the case here. The Court also found that disagreement as to whether the facility was a closed loop or would have water discharges was a difference of opinion and that it would not interject or overrule the determination of the county. DISCUSSION While this case addressed several CEQA issues raised on appeal, most interesting is the Court s holding on the admissibility of evidence, namely a comment letter submitted after the deadline established by a lead agency cannot be used for purposes of reviewing the validity of the agency s decision. Query whether other courts will follow suit. The case further supports lead agencies in instances when alternatives are screened out as infeasible at the outset. Here, substantial evidence supported the County s rejection at the outset of all alternatives but the no project alternative. Critical to the Court s decision was that, unlike in the Flanders case, the challenging party could not show that the agency failed to satisfy its burden of identifying and analyzing one or more potentially feasible alternatives. Save Cuyama Valley v. County of Santa Barbara (2012) 213 Cal.App.4th 1059 HOLDING The Second Appellate District upheld the use of a project-specific threshold of significance. The Court also found that for a petitioner to successfully carry its burden, it must demonstrate that an EIR s unsupported conclusions were prejudicial. SUMMARY The County of Santa Barbara (County) granted Troesh Materials, Inc (Troesh) permission to operate a sand and gravel mine in the bed of the Cuyama River. The mine was to be located near an already existing mine. The County prepared and certified an EIR, which Save Cuyama Valley (Save Cuyama) challenged on several grounds, including (1) hydrological impacts, (2) the sufficiency of the mitigation measure for hydrological impacts, and (3) water impacts. 49

55 Hydrological Impacts The County used a specifically-tailored threshold of significance to assess the project s riverbed and bank (hydrological) impacts, as opposed to a thresholds listed in Appendix G. Save Cuyama contended that the Appendix G thresholds must be used unless the County formally adopts a different threshold. The Court disagreed with Save Cuyama, holding that a lead agency has significant discretion to develop its own thresholds of significance. The Court reasoned that CEQA only requires that a threshold be formally adopted if it is for general use, i.e., will be used to evaluate the significance of all future projects. Because here the threshold was specific to this EIR, and not developed for general use in evaluating all projects, formal adoption was not required. The EIR found that the project could affect river hydrology, but concluded that the magnitude of the possible impacts were expected to be minor and less than significant. Nevertheless, the EIR acknowledged that these conclusions were not definitive because of the inherent uncertainty in simulation models, and concluded that the impacts were potentially significant but mitigable. The Court found that there was substantial evidence to support this conclusion because there was significant discussion of why the potential impacts were unlikely to occur. Save Cuyama argued that the EIR was internally inconsistent because it found that the hydrological impacts would be minor, but also declared them to be significant but mitigable. The Court disagreed. The EIR found no present or likely impacts of significant magnitude. However, taking a precautionary approach, it decided to identify the impacts as more significant than they appeared to be. The EIR included a mitigation measure that required the developer to confer with the County if adverse hydrological conditions were evident or appeared to be developing. Save Cuyama contended that the mitigation measure was invalid because its trigger requiring corrective action adverse hydrological conditions was undefined. The Court found the trigger to be legally sufficient because (1) the term adverse hydrological conditions mirrored the definition contained in the EIR, and (2) the mitigation measure required compliance with the Surface Mining and Reclamation Act, as administered by the Office of Mine Reclamation. The Court noted that a condition requiring compliance with environmental regulations is a common and reasonable mitigation measure. Water Usage Impacts In assessing water usage impacts, the EIR used the same threshold of significance to evaluate the project s individual and cumulative impacts, namely 31 AFY The County s 31 AFY cumulative threshold was derived from an examination of the tolerable impact of an individual project on the amount of water available basin-wide. The Court found that while the analysis appropriately considered the cumulative impacts, it did not include an independent examination of the project s noncumulative impacts. The Court found that the lack of analysis of 50

56 the noncumulative impacts was not contrary to CEQA, reasoning that such an analysis was unnecessary because there was no impact identified under the more-stringent cumulative impact threshold. Water Quality The EIR determined that the project s impact on water quality was adverse, but not significant, because groundwater would be exposed infrequently and briefly. The conclusion relied upon the observation that, under most conditions, groundwater would be located below the maximum mining depth (90-feet). The Court found that the conclusions was not supported by substantial evidence because there was information demonstrating that the groundwater in nearby wells was found at closer depths (40 to 110 feet). Nevertheless, the Court reasoned, Save Cuyama was required to demonstrate that the unsupported conclusions about water quality was prejudicial, which it could not do. The report [] sets forth all the pertinent data and follows all the procedures, but comes to the wrong conclusion in classifying the severity of an environmental impact. Save Cuyama failed to demonstrate how the error was prejudicial because while the conclusion regarding water quality was erroneous, the County insisted on a condition that required the developer to ensure that no groundwater was exposed at any depth. That condition, the Court held, fully negated the project s adverse impact on water quality and the unsupported conclusion regarding significance was immaterial. DISCUSSION Save Cuyama is a strong decision for lead agencies. The decision reinforces a lead agency s discretion to develop its own thresholds of significance, which can be devised on a project-by-project basis. CEQA only requires a lead to formally adopt a threshold of significance if they are to be for general use in evaluating future projects. Many thanks to the League of California Cities for supporting publication of this helpful decision. Despite efforts by petitioners throughout the state to make new law, the significance thresholds in Appendix G to the CEQA Guidelines are merely suggested thresholds, and an EIR need not explain why different thresholds are used. A threshold of significance must, of course, be supported by substantial evidence. 51

57 I. Legal Challenges 1. Statute of Limitations Alliance for the Protection of the Auburn Community Environment v. County of Placer (2013) Cal.App.4th (2013 WL ) HOLDING The Third Appellate District held that Code of Civil Procedure 473, which grants limited relief from dismissals, orders, or proceedings taken against a party when there is a mistake, is not applicable to violations of the statute of limitations periods provided by CEQA. SUMMARY In 2008, Bohemia Properties, LLC (Bohemia) submitted an application for the proposed development of a project in Placer County (County). The County concluded that the project required an EIR, and prepared and certified a FEIR on September 28, A notice of determination was filed the following day, September 29, Alliance for the Protection of the Auburn Community Environment (Alliance) filed a petition for writ of mandate on November 1, 2010, three days after the running of the 30-day statute of limitations contained in Public Resources Code Bohemia filed a demurrer, arguing that the petition was not filed within the limitations period. The trial court agreed with Bohemia, and entered an order sustaining the demurrer. On appeal, Alliance argued that the trial court erred in sustaining the demurrer because Code of Civil Procedure 473 provides reprieve from its excusable mistake that resulted in the late filing of the petition. Code of Civil Procedure 473, subdivision (b) provides that a court may relieve any party from a judgment, dismissal, order, or other proceeding taken against him or her for mistake, inadvertence, surprise or excusable neglect. Alliance asserted that the late filing was the result of a miscommunication from its attorney service as to the deadline for the petition. The Court of Appeal first noted Code of Civil Procedure 473 is to be construed liberally, and policy considerations favor the determination of actions on their merits. While this rule is generally applicable, the Court also looked to the decision in Maynard v. Brandon (2005) 36 Cal.4th 364 and Kupka v. Board of Administration (1981) 122 Cal.App.3d 791. In Maynard, the California Supreme Court held the section was inapplicable to dismissals attributable to a party s failure to comply with the applicable statute of limitations. As noted in Maynard, Code of Civil Procedure 473 is not applicable to statutes of limitations because they are mandatory in nature. 52

58 Similarly, the Kupka court reasoned that statutes of limitation are, of necessity, inflexible in nature. If the Legislature desires to allow some flexibility in a statute of limitations, it expressly provides for an extension of the limitations period on a showing of good cause. Without such an express provision within the statute, a court must infer that no extension was intended. The Court then turned to Public Resources Code 21167, which provides the limitations period for actions under CEQA. The Court held Code of Civil Procedure 473 inapplicable. In reaching its decision, the Court reasoned that (1) Public Resources Code does not explicitly include an extension of the limitations period upon a showing of good cause, and (2) CEQA aims to ensure extremely prompt resolution of lawsuits claiming noncompliance with the act. DISCUSSION The Court s holding clearly states that the statutes of limitations contained in Public Resources Code are mandatory, and a petitioner missing the relevant deadline will not be granted relief, even when the deadline was missed due to mistake or inadvertence. Thank you to Christopher S. Burt The Sohagi Law Group, PLC for his contributions to the CEQA summaries 53

59 CASES PENDING BEFORE THE CALIFORNIA SUPREME COURT City of San Diego v. Board of Trustees of California State University (2012) Supreme Court Case No. S (Fourth Appellate District) Adequacy of state university s determination that funding uncertainties rendered traffic mitigation measures infeasible per City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341. Review Granted April 18, 2012; Case Fully Briefed and Awaiting Oral Argument Date Berkeley Hillside Preservation v. City of Berkeley (2012) Supreme Court Case No. S (First Appellate District) Categorical exemption for single family home rejected based on claimed soils impacts court holds a fair argument of an impact alone can preclude reliance on a categorical exemption. Review Granted May 23, 2012; Briefing Underway Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) Supreme Court Case No. S (Second Appellate District) Use of a future environmental baseline upheld. Review Granted August 8, 2012; Case Fully Briefed, Oral Argument Set for May 7, 2013 City of Hayward v. Board of Trustees of the California State University (2012) Supreme Court Case No. S (First Appellate District) Court upheld EIR against challenges to fire services analysis and adaptive mitigation program. Review Granted October 17, 2012; Briefing Deferred Pending Disposition of City of San Diego v. Board of Trustees of California State University. Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (2012) Supreme Court Case No. S (Fifth Appellate District) Lead agency is not permitted to omit CEQA review when approving a voter-circulated initiative petition. Review Granted February 13, 2013; Briefing Underway 54

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