November 2011

Like the Sherlock Holmes story featuring the “dog that didn’t bark,” sometimes proposed legislation that doesn’t pass can nonetheless provide fundamental insights.  A case in point: Senate Bill 469 (Vargas), the Small & Neighborhood Business Protection Act, which would have required a lead agency to prepare an “economic impact report” before acting on any request to construct or convert to a “superstore retailer,” but which was vetoed by Governor Brown.

The failed bill first serves as a reminder of what CEQA isn’t.  Under CEQA it is fundamental that economic or social impacts of a project need not be analyzed, except to the extent they are part of a chain of “cause and effect” leading directly or indirectly to adverse physical changes in the environment.  Where substantial evidence of such effect is shown, an urban decay analysis — evaluating the potential physical environmental impacts of blight that result from the construction of a “superstore” in a particular area — is often required in connection with the entitlement process for a “superstore.”  Even so, the case law rejects the notion that an EIR must contain an urban decay analysis in the case of every “supercenter” approval.  (Melom v. City of Madera (2010) 183 Cal.App.4th 41.)
Continue Reading Governor’s Veto Said CEQA Is Enough, No Need For Law Requiring “Economic Impact Report” For Superstores

CEQA calls for environmental review of discretionary projects at the earliest meaningful stage, to serve its purposes of public participation and informed decision-making.  The basic idea is simple:  analyze and shape the project to reduce or avoid environmental impacts before deciding to approve it.  But there is a tension between CEQA’s mandate for early review and its requirement of detailed discussions of impacts and mitigation measures.  Ever since the seminal case of Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, allegations of improper “deferral” – whether of analysis of potential impacts or feasible mitigation measures – have been a staple of CEQA litigation.  Resolving the “deferral” dilemma calls for a careful, case-by-case balancing between CEQA’s mandate that significant environmental impacts and feasible mitigation measures be meaningfully analyzed prior to project approval, and the practical reality that the full extent of project impacts and precise details of needed mitigation frequently cannot be known until post-approval stages of project development.

In other words, it’s complicated.  Two recent cases illustrate situations where EIRs have been upheld – and rejected – in the face of deferral challenges.

In Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, the Court of Appeal rejected plaintiff’s challenge to a Revised EIR for a 64-acre, mixed use, high rise development project located along the Oakland Estuary.  The project was 3-1/2 miles from the active Hayward fault zone and 15-1/2 miles from the active San Andreas fault zone.  To address potential seismic impacts, the EIR included mitigation measures that required further compliance with the Seismic Hazards Mapping Act and relevant provisions of the State and City’s Building Codes.  This approach –reliance on compliance with the applicable regulatory framework – is common practice. However, plaintiff claimed (among other challenges) that the City improperly deferred mitigation of the project’s seismic effects.
Continue Reading “Deferral” Under CEQA: It’s Complicated!

Potential recovery – or payment – of plaintiffs’ attorneys fees is always a factor to be considered in prosecuting and defending CEQA suits.  The stakes in this calculus just got a little higher with a recent decision making it easier for CEQA plaintiffs to recover fees and expanding the scope of proceedings for which fees can be recovered.  In a pithy opinion (typical of Presiding Justice Gilbert), the Second District Court of Appeal reversed a trial court’s order partially denying successful CEQA petitioners’ motion for attorneys’ fees under Code of Civil Procedure section 1021.5, the private attorney general statute.  (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312.)  In so doing, it held the trial court erred in finding (1) that fees incurred in administrative proceedings were not recoverable under the statute, and (2) that a nonpecuniary “personal stake” of petitioner in the outcome of the litigation could preclude a fee recovery.

Section 1021.5 provides in part:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:  (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement … are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.
Continue Reading Successful CEQA Petitioners May Recover Attorneys’ Fees For Administrative Proceedings And Are Not Disqualified By Nonpecuniary Stake