October 2011

CEQA’s information disclosure provisions are so integral to its statutory scheme that conventional harmless error analysis does not apply.  It is the rare violation of CEQA that will not be found a prejudicial and reversible abuse of discretion.  Public Resources Code section 21005(a) declares state policy “that non-compliance with the information disclosure provisions of this division which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of this division, may constitute a prejudicial abuse of discretion … regardless of whether a different outcome would have resulted if the public agency had complied ….”  Case law teaches that CEQA violations resulting in omission of “material necessary to informed [agency] decision-making and informed public participation” are prejudicial errors.  (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1392.)

A recent decision illustrates that CEQA error can still be found non-prejudicial, and development project approvals can survive, even under this exacting standard.  (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949.)  In Schenck, after a series of administrative hearings, two administrative appeals, and five iterations of a mitigated native declaration (MND), Sonoma County adopted an MND and approved a large warehouse and distribution facility project.  The development was a relocation of an existing facility of the applicant, beverage company Mesa, to a parcel within County’s airport industrial area adjacent to a creek.

In response to plaintiff Schenck’s petition for writ of mandate challenging the approval, the trial court found just a single CEQA violation: the County had not given notice to the Bay Area Air Quality Management District (BAAQMD) of the hearing and intent to adopt the final MND.  The trial court issued a writ ordering notice to be given, retaining jurisdiction to determine compliance.  County gave the notice, the BAAQMD responded that County’s air quality analysis met appropriate standards, that the project’s operational emissions fell below BAAQMD’s thresholds of significance, and that it supported the adopted mitigation measures.  The County filed a return showing compliance, the trial court entered final judgment, and plaintiff Schenck appealed.
Continue Reading CEQA Doesn’t Require The Killing of Mice With Missiles: Non-Prejudicial Notice Errors Do Not Require Project Set-Aside

Can a corporation challenge a business competitor’s or other entity’s project under CEQA when its real interests are commercial rather than environmental?  In its recent decision upholding the City of Manhattan Beach’s “plastic bag ban” ordinance and related negative declaration, the California Supreme Court said “yes,” effectively eliminating a potential standing defense to CEQA actions motivated by economic concerns.  (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155.)

The standing ruling is significant because such cases never fail to touch a nerve with project proponents who perceive themselves as targets of abusive (or even extortionate) CEQA lawsuits. At least some Courts of Appeal over the past decade have provided some succor, opining that “corporate competitor” plaintiffs lack CEQA standing when they assert purely economic injuries not within the “zone of interests” protected by CEQA. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1238; see Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1139.)  But the “zone of interests” standing test proved difficult to apply in practice, and thus provided an unreliable defense, especially in light of CEQA’s extremely broad grant of standing under Public Resources Code § 21177 to anyone who objects to a project on environmental grounds either during the CEQA public comment period or before the close of the public hearing on the project.
Continue Reading Supreme Court Reaffirms Corporate CEQA Standing

Shortly before the close of the last legislative session, I found myself writing a strongly-worded letter (on behalf of myself and interested clients of Miller Starr Regalia) to Governor Brown, the authors of proposed SB 436 (Kehoe) and AB 484 (Alejo) and certain Senate and Assembly Committee Chairs to urge an amendment of – or alternatively a “no” vote on or veto of – those bills.

I specifically requested removal of proposed Government Code § 65968(b), which would have provided:  “A property that has been previously protected for conservation purposes, including the placement of a conservation easement on the property, may not be used for mitigation purposes.”  My letter pointed out that the provision would: (1) constitute an unconstitutional taking of the property rights of farmers and landowners who have granted conservation easements on their properties; (2) violate constitutional prohibitions against contract impairment and public policy favoring freedom of contract; and (3) conflict with the existing statutory law and legislatively-established public policies governing voluntary conservation easements embodied in Civil Code §§ 815, et seq.  In short, it was an illegal “property rights grab.”  And it was buried in an otherwise innocuous bill whose only purpose, as disclosed by every available legislative analysis, was to clarify and expressly authorize a non-controversial existing administrative practice regarding transferring endowment funds from governmental agencies to non-profits that acquire their conservation easements.
Continue Reading CEQA Mitigation On Conservation Easement Lands: How a Plea to Legislators Killed a Threat to Farmers’ Property Rights (For Now)