Land Use and CEQA Litigation Update

Land Use and CEQA Litigation Update Wednesday, May 7, 2014 General Session; 1:00 2:45 p.m. Rick W. Jarvis, Jarvis Fay Doporto & Gibson League of California Cities 2014 Spring Conference Renaissance Esmeralda, Indian Wells

Notes: League of California Cities 2014 Spring Conference Renaissance Esmeralda, Indian Wells

Land Use and CEQA Litigation Update Cases Reported from September 2013 through March, 2014 Rick W. Jarvis Jarvis, Fay, Doporto & Gibson, LLP 492 Ninth Street, Suite 310 Oakland, California 94607 510-238-1400 www.jarvisfay.com Wednesday, May 7, 2014 General Session; 1:00 2:45 pm League of California Cities Spring Conference May 2014

TABLE OF CONTENTS 1. Nature of Municipal Corporations... 1 Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (2014) 223 Cal.App.4 th 550... 1 10. Land Use... 1 Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4 th 1302... 1 Eskeland v. City of Del Mar (February 19, 2014) Cal.App.4 th... 2 Amerco Real Estate Company v. City of West Sacramento (March 12, 2014) Cal.App.4 th... 3 Communidad En Accion v. Los Angeles City Council (2013) 219 Cal.App.4 th 1116... 3 Tower Lane Properties v. City of Los Angeles (2014) 224 Cal.App.4 th 262... 4 Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4 th 1193... 5 Powell v. County of Humboldt (2014) 222 Cal.App.4 th 1424... 6 Bowman v. California Coastal Commission (March 18, 2014) Cal.App.4 th... 7 11. Protecting the Environment... 8 City of Irvine v. County of Orange (2013) 221 Cal.App.4 th 846... 8 Citizens for Environmental Responsibility v. State ex rel. 14 th District Agricultural Association (March 26, 2014) Cal.App.4 th... 8 Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4 th 863... 9 Page i

Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4 th 768... 10 Lotus v. Department of Transportation (2014) 223 Cal.App.4 th 645... 11 California Clean Energy Committee v. City of Woodland (February 28, 2014) Cal.App.4 th... 12 Center for Biological Diversity v. Department of Fish and Wildlife (March 20, 2014) Cal.App.4 th... 13 South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4 th 316... 14 California Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4 th 1325... 15 Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4 th 192... 16 ii

1. NATURE OF MUNICIPAL CORPORATIONS II. MUNICIPAL ORGANIZATION AND REORGANIZATION C. Annexation and Detachment Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (2014) 223 Cal.App.4 th 550 Procedural requirements for bringing reverse validation action apply to CEQA lawsuit challenging LAFCO approval of municipal annexation and modifications to city s sphere of influence. This case upholds dismissal on demurrer of a mandamus action challenging a LAFCO s approvals of modifications to a city s sphere of influence and annexation of 960 acres. The action contended that the approvals violated both CEQA and the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000. However, the petitioner did not comply with the applicable requirements for bringing a reverse validation action, including providing notice by publication. The court rejected petitioner s argument that such procedures did not apply to CEQA claims challenging such LAFCO decisions. 10. LAND USE III. ZONING C. Zoning Ordinances Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4 th 1302 Application of a new zoning definition for senior residential housing to a 7-acre parcel of land constituted spot zoning even though it singled out the parcel for less restrictive uses, but the spot zoning was not impermissible where the zoning was found to be in the public interest and was not arbitrary, capricious, or devoid of evidentiary support. This case upholds a county s decision to rezone a 7-acre parcel for senior housing against a variety of challenges asserted by a neighborhood group, ultimately finding that the decision was not arbitrary, capricious, or wholly unsupported by the evidence. It is thus a routine zoning case that is unremarkable 1

except for its somewhat confused (and ultimately pointless) discussion of whether the zoning decision constituted spot zoning. The case essentially renders the term spot zoning meaningless. It starts out by recognizing prior case authority that [t]he essence of spot zoning is irrational discrimination. But it then goes on to simply hold that the creation of an island of property with less restrictive zoning in the middle of properties with more restrictive zoning is spot zoning without apparent regard to whether the zoning distinction is rational. And then it essentially holds that such spot zoning is permissible if it is not irrational, applying the same arbitrary and capricious standard applicable to virtually all zoning decisions. In this author s opinion, the term spot zoning has historically been a term of art providing a shorthand reference to a certain class of discriminatory zoning decisions which single out a particular property for arbitrarily unfair treatment as compared to surrounding properties. In other words, it is a type of zoning decision that does not survive even the most deferential arbitrary and capricious standard of review. This decision seems to try to recast the term to potentially include non-arbitrary classifications, which the decision characterizes as permissible spot-zoning. E. Variances Eskeland v. City of Del Mar (February 19, 2014) Cal.App.4 th A city may approve a variance for redevelopment of an existing non-conforming structure that will expand the degree of non-conformity, notwithstanding a city ordinance that otherwise prohibits expansion of legal non-conforming structures. A variance from a front-yard setback zoning requirement can be justified where steep slopes on remaining portions of the lot would make development of a conforming house more difficult and environmentally detrimental. This case upholds a city s approval of a variance authorizing a homeowner to tear down an existing home and build a new, 5,000+ square foot home largely within the footprint of the prior home, but which arguably increased the extent of the prior home s encroachment on the required front-yard setback. The court found that the extent of sloping in the rear portion of the lot supported the city s findings in favor of the variance. Petitioners tried to argue that the project violated a prohibition in the City s code against increasing an existing zoning nonconformity, but the court held that the issues relating to nonconforming uses were separate from issues relating to whether a variance can be approved for what was essentially a new structure. The court also found that the city s findings in support of the variance were supported by substantial evidence, showing due deference both to the city s factual determinations and to the city s legal interpretation of its own zoning code. 2

F. Nonconforming Uses and Structures Amerco Real Estate Company v. City of West Sacramento (March 12, 2014) Cal.App.4 th Review of a city s decision requiring a business to reduce the height of its sign did not implicate a fundamental vested right and was thus reviewable under the deferential substantial evidence test. This case upholds a city s decision requiring a U-Haul business to reduce the height of its existing sign from 35 feet to 12 feet. The case involves a 1993 ordinance the city adopted limiting pole signs to 12 feet in the city s central business district, but which provided a 15-year amortization period for existing signs. The court noted that the city had provided the business with extensive notice and offered compromises prior to bringing a nuisance abatement action to require the sign to be reduced in height. The court rejected U-Haul s arguments that the trial court should have applied the independent judgment test, as it found that the reduction in the sign s height did not affect a fundamental vested right. As the court put it, while the City s decision leveled U-Haul s 35-foot business sign, it did not level U-Haul s business. The court then considered Business and Professions Code section 5499, which grandfathers existing business signs that do not conform with subsequently enacted local height limits where special topographical circumstances would materially impact the sign s visibility or communicative effectiveness. However, applying the deferential substantial evidence test, the court upheld the City s findings that a conforming sign would not be a materially less adequate or effective communication. I. Special Issues 5. Hazardous Materials and Waste Management Communidad En Accion v. Los Angeles City Council (2013) 219 Cal.App.4 th 1116 City s planning approval of a private company s application to site waste facilities allegedly near a minority community was not subject to Government Code section 11135 s prohibition on antidiscrimination where there was no evidence that the decision was made pursuant to a program that received funding by the state. The failure of a CEQA petitioner s counsel to request a hearing within 90 days may be found to be excusable neglect subject to relief under Code of Civil Procedure section 473, thereby preventing the action from being dismissed. 3

This case rejected an anti-discrimination challenge to a city s approval of an application by a private company to locate certain waste facilities alleged to be near a minority community. The court sustained a motion for summary judgment on the ground that the approval was not subject to Government Code section 11135 because there was no evidence that any state funding was used. The petitioner argued (and one dissenting justice agreed) that state funding received by the city s Local Enforcement Agency (the entity responsible for enforcing laws relating waste collection, handling, storage, and disposal) was sufficient to trigger section 11135. However, the majority found that the LEA was essentially independent of the City s planning department, and there was no evidence that the planning department itself received any federal funding for its issuance of permits for the waste facilities. However, the court did revive petitioner s CEQA challenge to the project. The trial court had dismissed it on the ground that petitioner s counsel failed to request a hearing within 90 days, and then denied petitioner s motion for relief from default under Code of Civil Procedure section 473, finding that petitioner did not establish excusable neglect. However, the court of appeal found that petitioner s counsel had merely made a single calendaring error and was otherwise diligent in prosecuting the action, and thus found that the trial court abused its discretion in denying relief from default. This holding is consistent with a trend in the cases showing more lenience towards CEQA petitioners who fail to request a hearing within 90 days, as required under Public Resources Code section 21167.4. IV. SUBDIVISIONS A. Basic Requirements 2. Tentative, Final, and Parcel Maps Tower Lane Properties v. City of Los Angeles (2014) 224 Cal.App.4 th 262 City could not impose a condition on a grading permit requiring the applicant to first obtain a tentative tract map where the applicant did not propose any subdivision of property. This unremarkable case involves a local ordinance which prohibited issuance of a grading permit for a hillside site larger than 60,000 square feet prior to approval of a tentative tract map. The court rejected the City s attempt to enforce this ordinance against a developer who sought a grading permit for the construction of three residences on three existing contiguous hillside lots that totaled 85,000 square feet, where the developer did not propose to subdivide any land. The court treated the question as involving a simple interpretation of the plain language of the city s ordinance, and also found that the city s own interpretation was not entitled to deference because the city s historical position had been unclear and inconsistent. 4

VIII. EXACTIONS: FEES AND DEDICATION C. Limitations 2. Statutory Procedure Statute of Limitations Sterling Park, L.P. v. City of Palo Alto (2013) 57 Cal.4 th 1193 City s requirement that residential condominium developer set aside 20 percent of units as below market rate housing and/or pay an in-lieu fee for some or all of the units was a fee or other exaction under Government Code section 66020 and thus was subject to a longer statute of limitations for a legal challenge than is otherwise available to developers under the Subdivision Map Act. This case addresses an apparent conflict in two competing statutes of limitations available to developers seeking to challenge subdivision conditions. The Subdivision Map Act provides a short 90-day limitations period to bring any challenge to the validity of any condition imposed upon a tentative or final subdivision map. (Gov. Code 66499.37.) On the other hand, the Mitigation Fee Act provides a more protracted procedure to protest the imposition of any fees, dedications, reservations, or other exactions imposed on a development project.... (Gov. Code 66020.) Section 66020 generally allows developers to pay development fees under protest, and allows the protest to be filed up to 90 days after the exaction is first imposed on the project. Furthermore, it obligates the public agency to provide written notice to the developer of this protest right, and provides that any legal action may be filed up to 180 days after this notice is actually provided. Thus, where an agency fails to provide such notice, courts have held that the limitations period is tolled for that period. In this case, the Supreme Court held that a city s requirement that a developer set aside a certain percentage of units for below market rate (BMR) housing, or to pay an in lieu fee to satisfy some or all of that requirement, was a fee... or other exaction subject to the longer limitations period set forth in section 66020. And, in this case, the developer argued that the City never provided it with the required notice and thus that the limitations period never started to run, thereby allowing it to first file its legal challenge nearly three years after its tentative map was first approved, and two years after the final map was approved and a regulatory agreement was finalized specifying how the requirement would be satisfied. (But the Supreme Court expressly declined to consider whether the action was, in fact, timely under Section 66020, and instead remanded the case back to the lower courts to address that question.) The Court did agree with the city that section 66020 only applies to any fees, dedications, reservations, or other exactions and not to other land use conditions imposed upon a subdivision, which would continue to be subject to the 90-day limitations period in section 66499.37. But it found that the city s BMR requirements qualified as fees... or other exactions subject to the Mitigation Fee Act. 5

NOTE: The Supreme Court has accepted review in another case challenging BMR requirements, CBIA v. City of San Jose (formerly published at 216 Cal.App.4 th 1373). There, the Court will consider whether socalled intermediate scrutiny under San Remo Hotel v. City and County of San Francisco applies, namely, whether the BMR requirement is reasonably related to impacts created by market rate residential development, or whether the more deferential review normally accorded zoning applies, namely, whether a regulation is reasonably related to the general welfare. XIII. CHALLENGES TO LAND USE DECISIONS A. Regulatory and Physical Takings Powell v. County of Humboldt (2014) 222 Cal.App.4 th 1424 A general plan requirement to dedicate an aircraft overflight easement as a condition of obtaining a building permit to make minor alterations to a residence did not constitute a regulatory taking. This case rejects a takings challenge to a general plan requirement that a homeowner provide an aircraft overflight easement as a condition to obtaining a building permit to make minor alterations to the residence. As a threshold matter, the court found that the condition could only be challenged under Nollan if it would, by itself, constitute a taking of plaintiffs property. Briefly noting that no argument was made that the condition would deprive plaintiffs of any beneficial use of their property or that it would interfere with their investment-backed expectations under Penn Central, the court turned to the question of whether the overflight easement was a per se physical taking. On this point, the court relied on state and federal law which gives aircraft the right to use navigable airspace over private property above the minimum altitudes prescribed by federal authority (1,000 feet over congested areas and 500 feet in sparsely populated areas), and found that plaintiffs property rights do not include a right to exclude airplanes from using the navigable airspace above their property in accordance with applicable safety regulations. Because the required overflight easement did not authorize physical invasions of plaintiffs property inconsistent with these principles, the court found no physical taking. The court also noted plaintiffs concessions that they have not been damaged by prior flights using the airport and that they did not know how the easement would affect the value of their property. And the court accepted the county s binding concession that the easement would not bar a future inverse claim should future expansion of the airport result in an increase in noise and overflights causing a measureable reduction in the value of plaintiffs property. 6

Bowman v. California Coastal Commission (March 18, 2014) Cal.App.4 th An applicant s failure to appeal a development condition requiring it to dedicate a public access easement across beachfront property collaterally estops it from later challenging that condition as a taking as part of a subsequent development application, notwithstanding an apparent attempt by the applicant to simply abandon the original application. This case applies principles of res judicata and exhaustion of administrative remedies in finding that a small developer was procedurally barred from challenging a development condition which appeared to otherwise constitute a taking under Nollan v. California Coastal Commission (1987) 483 U.S. 825. As in the Nollan case, the condition here required the developer to dedicate a lateral public access easement over beachfront property. Similar to Nollan, the project involved the rehabilitation of an existing (but uninhabitable) single family residence and barn. The applicant had originally applied for a coastal development permit and construction permits for the initial improvements it had wanted to make to restore the residence. The county immediately issued the construction permits over the counter and the applicant started work on those improvements while the CDP application was still pending. A county inspector later instructed the applicant to stop work until after the CDP issued. The applicant then died. A year later (and nearly two years after the application was filed), the county issued the CDP which included the requirement to dedicate the easement. The applicant s heirs apparently took no action in response to the CDP and failed to appeal it within the designated 14-day appeal period. They later applied for a new CDP which included the scope of work contained in the original application plus additional work on the barn. As part of the new application, they requested removal of the easement requirement contained in the first CDP. The County ultimately approved removal of the easement condition, but on appeal to the Coastal Commission, the Commission disagreed and insisted that the easement condition remain. The court upheld the Coastal Commission s action, holding that the failure to appeal the original CDP collaterally estopped the applicants from later challenging the easement condition as part of a subsequent permit application. The court found that the applicants received a benefit under the original CDP insofar as it rendered legal the premature work that was already done on the residence, even though the applicants took no further action following issuance of the CDP. 7

11. PROTECTING THE ENVIRONMENT II. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA) B. Scope 1. Definition of Project City of Irvine v. County of Orange (2013) 221 Cal.App.4 th 846 County s application to the state for AB 900 funding to expand jail facilities was not an approval of the project requiring CEQA compliance. This case merely involves application of Save Tara v. City of West Hollywood (2008) 45 Cal.4 th 116 to hold that a county s submission of a Phase II Application to the State to provide funding for expansion of jail facilities pursuant to AB 900 did not itself constitute a project approval requiring CEQA review. The court found that the application did not commit the county to a definite course of action and did not preclude it from considering any alternative or mitigation measures for the project. The court relied in part on state provisions that any grant of funding would only be a conditional award which was itself contingent on completion of CEQA review. It is also worth noting that, while the litigation was pending, the county did complete and certify an EIR and ultimately approved the project, though the court found that such actions did not render the present litigation moot (particularly since such actions were themselves subject to a separate CEQA lawsuit that was still pending). 3. Exemptions Citizens for Environmental Responsibility v. State ex rel. 14 th District Agricultural Association (March 26, 2014) Cal.App.4 th Approval of rodeo on existing county fairgrounds was properly found to be categorically exempt from CEQA as a normal operation of existing facilities for public gatherings (Class 23). Implementation of pre-existing environmental management measures for a proposed used of an existing facility does not constitute mitigation which would preclude reliance on a categorical exemption. In considering whether there are unusual circumstances which would not allow reliance on the Class 23 CEQA exemption for normal operation of an existing facility, the proper inquiry is whether the proposed use of the facility is unusual compared to its historical usage, and not whether the use of the facility is unusual as compared to other facilities. 8

This case upholds a finding that a rodeo on existing county fairgrounds is categorically exempt from CEQA as a normal operation of existing facilities for public gatherings (Class 23). The opinion is straight-forward but includes a nice analysis rejecting two challenges raised by petitioners. First, the court holds that pre-existing standard environmental management requirements are not mitigation measures which would render the activity ineligible for a CEQA exemption. The rodeo was required to comply with an existing manure management program, which petitioners argued constituted a mitigation measure. Petitioner relied upon Salmon Protection & Watershed Network v. County of Marin (2004) 125 Cal.App.4 th 1098, which held that an agency could not rely upon a newlyproposed mitigation measure in determining whether a project was exempt from CEQA. However, the court found that case distinguishable because the manure management program was not newly proposed but rather was an existing management requirement applicable to all uses of the fairgrounds. Second, the court held that there were no significant environmental impacts resulting from unusual circumstances precluding reliance upon a categorical exemption under CEQA Guidelines section 15300.2, subd. (c). In doing so, the court rejected petitioners argument that the comparison should not be made to historical usage of the fairgrounds themselves, but rather to other facilities exempt under Class 23. Rather, because the proposed rodeo was consistent with prior usage of the fairgrounds, with no greater number of cattle or horses, the court essentially held that the proposed rodeo could not be found to be unusual. The court distinguished various other cases that addressed different classes of CEQA exemptions not involving normal use of existing facilities. NOTE: While it will probably not impact the holding of this case, a case pending in the Supreme Court addresses what standard of review applies to an agency s determination under CEQA Guidelines section 15300.2, subdivision (c), that there are no significant environmental effects due to unusual circumstances prohibiting reliance upon a categorical exemption. (Berkeley Hillside Preservation v. City of Berkeley, Case No. S201116.) Save the Plastic Bag Coalition v. City and County of San Francisco (2013) 222 Cal.App.4 th 863 Another plastic bag CEQA case holding that an ordinance prohibiting plastic check-out bags can be found exempt from CEQA as an action to enhance the environment. In Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4 th 155, the Supreme Court upheld the use of a negative declaration for an ordinance prohibiting retailers from providing plastic check-out bags. In Save the Plastic Bag Coalition v. County of Marin (2013) 218 Cal.App.4 th 209, the court upheld the use of a categorical exemption for such an ordinance. The holding of the present case is largely similar to the latter and does not break any significant new ground in terms of CEQA law, but it further reduces the scope of legal challenges which the petitioner can assert in these types of cases (particularly insofar as it rejects a new challenge that such ordinances are preempted under state law). 9

D. Negative Declaration Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4 th 768 Mitigated negative declaration for small infill mixed use development upheld against challenge asserting that project s disturbance of contaminated soil may have a significant effect on the environment. This case upholds a city s approval of a mitigated negative declaration for a relatively small infill mixeduse development (proposing 155 residential units and over 20,000 square feet of commercial space in three new buildings). Apparently, petitioners sole fair argument that the project may result in a significant environmental impact was that the project would potentially disturb contaminated soils and then expose future workers and residents to that contamination. The court noted that the parties had extensively briefed the question of whether a physical change that would only pose a potential risk to future residents and workers at the project site could ever be deemed a significant effect subject to CEQA. While expressing some doubt as to this question, the court declined to resolve it, as it found that petitioner did not identify sufficient evidence to support a fair argument of significance even if such health risks alone could satisfy CEQA s requirements requiring an EIR. NOTE: This question (whether CEQA requires analysis of a how existing environmental conditions will impact future occupants of a project) is currently before the Supreme Court in California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. 10

E. Environmental Impact Report (EIR) 4. Contents Lotus v. Department of Transportation (2014) 223 Cal.App.4 th 645 EIR for highway construction project violated CEQA where it incorporated proposed mitigation measures into the project description, rather than separately identifying and analyzing them as actual mitigation measures. EIR also violated CEQA by failing to identify the thresholds of significance used to assess whether construction would have a significant impact on the root systems of old growth redwood trees. An issue that has not been clear under CEQA is the extent to which an EIR s project description may properly incorporate proposals designed to avoid environmental impacts, so as to avoid the need for formally identifying those proposals as mitigation measures. For example, if a private developer already includes in its development application various measures to fully mitigate certain impacts, what need does the agency have to separately impose such measures as part of the CEQA process? On the other hand, wouldn t failure to separately identify such measures call into question the adequacy of the mitigation monitoring and reporting program? This case may well be the first published CEQA decision to hold it improper to incorporate proposed mitigation measures into an EIR s project description. It also faults an EIR for failing to identify any thresholds of significance for a particular EIR. As to both of these legal issues, the court applies a failure to proceed as required by law standard, rather than the more deferential substantial evidence standard of review. In a footnote, the decision does recognize that there is not always a clear distinction between what constitutes a mitigation measure and what constitutes a project component, but it found that some of the measures in this project clearly constituted mitigation measures. The case involves a challenge to an EIR to realign a portion of Highway 101 where it passes through old growth forests. The project would remove six redwood trees but potentially impact the root zones of 74 additional trees. Based upon the incorporation of many avoidance, minimization and/or mitigation measures into the project description, the EIR concluded that the project would not have a significant impact on such trees and apparently did not propose or analyze any additional mitigation measures for such impacts. While acknowledging that the EIR contained a fair amount of information, the court faulted the EIR for not clearly identifying a formal standard of significance for such impacts, particularly in light of information in the record (the State Park Natural Resources Handbook) calling into question the extent to which some of the trees could survive. The court did stress, however, that Caltrans was not required to start the EIR process anew to correct the deficiencies, and even suggested that the EIR might not need to be recirculated after Caltrans better presented the information. (And, in unpublished portions of the decision, the court rejected numerous other CEQA challenges.) 11

5. Adequacy California Clean Energy Committee v. City of Woodland (February 28, 2014) Cal.App.4 th If an EIR finds a project s urban decay impacts to be potentially significant but mitigatable, it should take care in clearly explaining how mitigation will be achieved. Where an EIR relies upon future studies to mitigate an impact, it should not delegate the responsibility to conduct such studies to the applicant. EIRs must analyze energy impacts consistent with the requirements of Appendix F of the CEQA Guidelines. This case invalidates a city s approval of a 61-acre regional shopping center, finding that the EIR did not adequately analyze mitigation measures for significant urban decay impacts nor impacts related to energy consumption, and that the city did not adopt adequate findings rejecting one of the project alternatives identified in the EIR. With respect to urban decay impacts, the EIR found that the project would have a significant adverse impact on the city s downtown, but concluded that this impact would be mitigated by various mitigation measures. However, after carefully scrutinizing each of the adopted mitigation measures, the court found that most of them were illusory and included no commitment that they would actually be implemented to achieve mitigation. The court also faulted one of the measures for requiring future market studies to be conducted by the applicant rather than the city itself. With respect to energy impacts, the court criticized the EIR for devoting less than one page to analysis of energy impacts. It contrasted the case to Tracy First v. City of Tracy (2009) 177 Cal.App.4 th 912, 932, noting that the EIR in that case had devoted 17 pages to discussion of energy issues. Here, the court essentially found that the EIR did not adequately comply with the guidance reflected in Appendix F due to its failure to separately discuss transportation, construction, and operational energy impacts, as well as renewable energy impacts. With respect to the city s rejection of one of the alternatives, the court s decision appears to be confused. The EIR had analyzed a proposed project consisting of 154 acres, plus a reduced project consisting of 93 acres and a mixed use project which also consisted of 93 acres. In approving the project, the city significantly reduced the size of the project to 61 acres, and then rejected the mixed use project as being environmentally inferior to what the city approved. But, employing rather Kafkaesque reasoning, the court found that the city s rationale for rejecting the mixed use alternative was inconsistent with the EIR s conclusion that the project as originally proposed was environmentally inferior to the mixed use project. While it is not clear from the court s decision, it appears that the city might have done a better job of explaining that it was adopting a variation of the reduced project alternative (rather than the project itself) and then adopting findings that its variation of the reduced project alternative was superior to the mixed use alternative. 12

Center for Biological Diversity v. Department of Fish and Wildlife (March 20, 2014) Cal.App.4 th The live trapping and relocation of endangered species does not constitute a take prohibited by the Endangered Species Act, when conducted as a mitigation measure for the purpose of protecting such species. Applies substantial evidence test to defer to EIR s conclusion that development of project will not result in a killing of endangered species, even though the court found this to be a close question. Finds that petitioners forfeited one CEQA issue by not raising it during the EIR s comment period, even though it was raised later in the proceedings prior to project approval. This case upholds the Department of Fish and Wildlife s ( DFW ) certification of an EIR for a conservation plan and streambed alteration agreement for the Newhall Ranch specific plan. A separate EIR had already been certified for the specific plan itself (which had already been subject to lengthy litigation that was settled in 2004). So it appears that the current EIR was prepared as a subsequent EIR just for DFW s later approvals. The case holds that the live trapping and relocation of an endangered species (here, the stickleback fish) does not constitute a take prohibited under the California Endangered Species Act, when it is done for the purpose of protecting such species. In reaching this holding, the court resolved an apparent conflict between different provisions of the Act. Specifically, section 5515 of the Fish and Game Code prohibits the take of an endangered species, with certain specified exceptions not directly applicable. And the court basically agreed that the act of capturing and transplanting the fish appeared to fall with the Act s broad definition of take. However, other provisions of the Act (particularly Fish and Game Code sections 2052, 2055, and 2061) expressly contemplate that DFW may use such procedures as live trapping and transplantation for the purpose of conserving such species. Construing these provisions together, the court found that such actions conducted for the purpose of mitigation and conservation were not prohibited under section 5515. The case also upholds the EIR s determination that the project would not result in a take by reason of killing any stickleback, which the court characterized as [t]he most difficult issue to us and a very close question. The court ultimately relied upon the deferential substantial evidence test to defer to DFW s determination, finding that there was substantial evidence no death will occur given the extraordinary measures taken by the department to ensure the stickleback s safety. As a practical matter, it can be difficult for an EIR to conclude with any certainty that the future development of a proposed project will not result in any killing of an identified endangered species. However, this case demonstrates how such a conclusion can be supported so long as there is a strong evidentiary record. The case also rejects various other challenges to the adequacy of the EIR s analysis of impacts to Native- American archaeological sites and other endangered species, as well as the feasibility of alternatives. Most interesting, however, is the court s holding that petitioners waived one of their issues by not actually raising the issue during the EIR comment period, even though the issue was raised in a letter 13

prior to project approval. Public Resources Code section 21177, subdivision (a), requires all issues to be raised administratively either during the public comment period... or prior to the close of the public hearing on the project.... Typically, courts have allowed project opponents to raise issues for the first time as late hits at the final public hearing, well after the comment period has closed. However, in this case, it appears that DFW held no public hearing following the EIR comment period, so petitioners were barred from raising any new issues after the comment period closed. 8. Recirculation of Draft EIR South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4 th 316 County staff s development of a new alternative configuration for 20-acre commercial development project was not significant new information requiring recirculation of previously circulated EIR, nor were the county s CEQA findings required to include a finding rejecting this new alternative as infeasible. This case rejects miscellaneous CEQA challenges asserted against a 20-acre retail, industrial, and office development project. Most of the challenges related to an alternative development configuration proposed by planning staff, including claims that this new alternative was significant new information requiring the EIR to be recirculated and that the county was obligated to adopt a finding that this alternative was not feasible when it ultimately approved a different alternative which arguably had greater environmental impacts. Noting that the petitioner did not challenge the adequacy of the project alternatives which the EIR actually analyzed, nor the scope of the EIR s alternatives analysis, the court had little difficulty rejecting these challenges. Importantly, the court reasoned that petitioner s recirculation challenge was governed by the substantial evidence test rather than the failure to proceed as required by law test, since any assessment of whether new information was significant was essentially factual. And the court then held that petitioner had waived its substantial evidence challenge by failing to fairly summarize the relevant evidence in the record. 14

9. Certification of Final EIR California Clean Energy Committee v. City of San Jose (2013) 220 Cal.App.4 th 1325 A planning commission may not be delegated the duty to certify an EIR for projects in which it is acting in a purely advisory capacity (e.g. where it is making recommendations on amendments to a general plan). This case holds that it was a technical error for a city to delegate to its planning commission the duty of certifying an EIR for an update to the city s general plan. The decision recognizes that a planning commission may certify an EIR for projects over which it has decision-making authority (i.e. the ability to approve or disapprove the project). But because the planning commission did not have the authority to approve the general plan update, and instead acted in only an advisory capacity, it did not have authority to certify the EIR for it. The court nonetheless held that the planning commission s certification was harmless error, because the city council itself subsequently certified the EIR. But the court s decision did have some practical effect, as it rescued petitioner s lawsuit from dismissal on the grounds of failure to exhaust administrative remedies. The trial court had dismissed the action on the sole ground that petitioner did not administratively appeal the planning commission s certification to the city council (even though the petitioner did subsequently submit a comment letter to the council and otherwise made objections). But because the planning commission did not have authority to certify the EIR in the first place, the court held that there was no need for it to appeal that certification in order to exhaust administrative remedies. 15

E. Additional Types of EIRs and Negative Declarations 1. Master EIRs, Program EIRs, and Tiering Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4 th 192 Substantial evidence standard of review applies to city s determination that an update to its housing element is adequately covered by a 10-year old program EIR previously certified for its general plan. This case upholds a city s determination that an update to its housing element was not a substantial change to its general plan triggering the need for a subsequent or supplemental EIR, following the city s certification of a program EIR for its general plan over 10 years earlier. In doing so, the court held that the substantial evidence standard of review applied to the City s actions, rejecting petitioner s arguments that the fair argument and/or failure to proceed as required by law standards applied. The update included modifications to the housing and land use elements, as well as amendments to the zoning ordinance to implement those modifications. To the extent that the update consisted simply of amendments to the city s general plan, the city relied upon Public Resources Code section 21166 and CEQA Guidelines section 15162 to find that the modifications in the general plan were not substantial changes that would require major revisions of the previous EIR. To the extent that the update also included changes to the zoning ordinance, the city relied upon CEQA Guidelines section 15168 (governing use of program EIRs) to find that those changes were within the scope of the prior program EIR. The court upheld this approach. Petitioners primarily argued that the housing element update should have been treated as a new, separate project and argued that the court should apply its independent judgment to determine that the city failed to proceed in a manner required by law. The court rejected these contentions and applied the substantial evidence test. The court noted a split in case authority on this question, with one court holding that courts should apply their independent judgment to determine whether, as a matter of law, a subsequent project is a new project or a modification of an earlier project. But this court agreed with alternative case authorities holding that this determination is largely factual and governed by the substantial evidence standard, especially where, as here, the subsequent activity was of the same scope as the original program (i.e. a city-wide general plan and zoning update with no site specific development approvals). Note: The Supreme Court has recently accepted review of the question of what standard of review applies to an agency s threshold determination of whether a project is properly treated as a modification of an earlier project or a new project altogether in another case, Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. 16

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