In a lengthy published decision filed September 9, 2014, the Third District Court of Appeal affirmed in part and reversed in part the trial court’s judgment denying a writ petition challenging Colusa County’s adoption of a Mitigated Negative Declaration (MND).  The project approved was a subdivision of four adjacent parcels, comprising 159 acres of industrially-zoned land near I-5, into 16 parcels ranging from just over one to 31 acres each.  Rominger v. County of Colusa (Adams Group Inc., Real Party in Interest) (3d Dist. 2014) 229 Cal.App.4th 690, Case No. C073815.  Key holdings and “takeaways” from the 48-page opinion, which was authored by noted CEQA jurist Justice Ronald Robie, included:

  • County’s arguments that its tentative map approval was not a CEQA “project” at all, or that it was exempt under the common sense exemption, such that CEQA review was not legally required, were not “barred.”  However, they were without merit.  County’s position that the approval did not involve a “project” under CEQA was meritless because Public Resources Code § 21080(a) expressly provides that CEQA applies “to discretionary projects … including, but not limited to, … the approval of tentative subdivision maps unless … exempt ….”  Approval of a tentative map is thus, categorically, a CEQA “project,” meaning “the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impact.”  (Citing Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 381, emph. added.)  The Legislature has determined by statute that tentative map approvals always have the potential to cause a direct or reasonably foreseeable indirect physical change in the environment.  According to the Court:  “It virtually goes without saying that the purpose of subdividing property is to facilitate its use and development ….  Presumably no one goes to the trouble of subdividing property just for the sake of the process; the goal … is to make that property more useable.  And with the potential for greater or different use comes the potential for environmental impacts from that use.”
  • Moving past the first-tier “jurisdictional” stage of CEQA review which is concerned with “project” status, the Court turned to the “second tier” of CEQA review concerning exemptions.  It held the so-called “common sense exemption,” which applies “[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment,” did not apply in this case.  Contrary to the County’s position that “a map approval merely establishes new parcel lines” and thus has no possible environmental effect, the acknowledged purpose of the project here was to divide the existing parcels “for future expansion where separate financing may be needed” and to “create lots for lease or sale.”  The Court observed “the record thus establishes that the purpose of the subdivision was to make the property more amenable to development by creating smaller parcels on which it would be easier to obtain financing[,]” and County thus did not meet its burden of “show[ing] as a factual matter, based on the evidence in the record, that there is no possibility that the approval of the … subdivision may result in a significant effect on the environment[.]”
  • In an interesting bit of judge-made law (which, in my view, accords with common sense and fair play), the court held County abused its discretion and did not proceed in the manner required by law, in that it violated the mandatory 30-day public review requirement that applied to the MND.  It did so because the last day of the noticed period was the Labor Day holiday — a date when County’s offices were closed — and the last three days of the comment period thus fell on the Labor Day weekend, i.e., days County’s offices also were closed, thus making the effective comment period only 27 days.  The Court explained:  “Obviously, we are not concluding that the lead agency’s offices must be open, so that inspection may occur or comments may be submitted, each and every day of the 30-day public review period.  Weekends and other holidays falling in the  middle of the public review period still count toward the 30 days required.  However, the end of the public review period cannot fall on a day when the lead agency’s offices are closed without effectively making the period shorter than CEQA requires ….  For the noticed public review period to comply with CEQA, if the ending date is the 30th day, that date must be a date when the lead agency’s offices are open.”  In a footnote, the Court further clarified the contours of this rule by stating:  “If the lead agency notices a public review period that is longer than 30 days, that period may nonetheless be legally sufficient even if the closing date falls on a weekend or other holiday as long as the 30th day of the period falls on a date when the lead agency’s offices are open.”
  • Despite County’s procedural violation of CEQA, its error was not a prejudicial abuse of discretion as required under CEQA to obtain legal relief.  While the Court acknowledged the rule that traditional “harmless error” analysis does not apply in CEQA cases, it went on to explain that “means only that the [plaintiffs] do not have to show that the county would have reached a different conclusion regarding the project if [it] had provided a 30-day public review period rather than the 27-day period actually provided.”  CEQA provides that “there is no presumption that error is prejudicial.”  (Pub. Resources Code, § 21005(b).)  The Court therefore observed that “we cannot conclude that the [plaintiffs] are entitled to relief simply because the county failed to comply with CEQA.”  Significantly, the Court pointedly rejected plaintiffs’ attempted reliance on an earlier court of appeal precedent for the asserted principle that “[f]ailure to comply with the CEQA procedures is necessarily prejudicial[,]” noting that statement “does not comport with either CEQA section 21005 or with the Supreme Court’s decision in Neighbors for Smart Rail [v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463 (holding courts “must look at the  nature of … noncompliance to determine if it was of the sort that ‘preclude[d] informed decision making and informed public participation’.”).”].  The “bottom line” here was that plaintiffs pointed to no record evidence showing anyone was prevented from reviewing pertinent documents or submitting comments due to the error, and asserted only that they “have no idea what would have occurred had the County provided the required notice”; they therefore failed to carry their burden to show prejudicial error.
  • Plaintiffs similarly failed to show that faulty public notices erroneously stating the planning commission’s decision was advisory, rather than final subject to appeal, and providing the wrong time for the hearing (an error belatedly corrected by a subsequent mailed notice) were prejudicial.  Plaintiffs failed to show these errors were not “insubstantial or merely technical errors under Neighbors for Smart Rail.”  While they asserted one individual who would have spoken missed the hearing because of the incorrect time provided in the notice, they again — and fatally — conceded they did not know what impact the precluded testimony might have had, and, additionally, the individual was able to speak before the Board of Supervisors on plaintiffs’ appeal, further demonstrating no prejudice resulted from the error.
  • The Court held the MND was improper, and an EIR was required, because the record contained substantial evidence supporting a fair argument that the project would have significant traffic impacts at one intersection, based on a traffic engineer’s fact-supported written opinion that there would potentially be traffic safety impacts from project-caused vehicle queuing at an intersection constrained due to its proximity to an existing railway grade crossing.  In so holding, the Court simply applied the well-established “fair argument” standard of review, stating it could “uphold the County’s decision not to require an EIR only if there is no credible evidence that the project may have a significant impact.”  The relevant question before the Court in reviewing the adequacy of the MND was thus whether the traffic expert’s “opinion constitutes substantial, credible evidence that supports a fair argument that [industrial] development may occur [in the subdivision] and that, as a result, the greater traffic generated by such development may have a significant impact on the environment surrounding the project, and therefore an EIR was required.”
  • The Court rejected plaintiffs’ arguments that substantial record evidence supported a fair argument of significant environmental impacts in any other areas — such as agriculture, odor, noise, air quality, GHG emissions, or water supply.  In so doing, its analyses touched a number of other significant CEQA issues of current interest.
  • For example, plaintiffs’ ag land conversion impacts arguments challenged the County’s use of a standard of significance whereby loss or conversion of ag land was considered significant only if the farmland is:  (1) designated as prime, unique or of statewide importance, AND (2) designated by County’s General Plan or Zoning Ordinance as “Agricultural” land, AND (3) under a Williamson Act contract.  The Court rejected arguments that County could not adopt a standard deviating from that which plaintiffs claimed was established by the CEQA Guidelines Appendix G checklist.  Plaintiffs’ Appendix G argument was flawed because it was based on a fundamental misunderstanding of Appendix G; the checklist form was only a “suggested” format, and, further, “CEQA grants agencies discretion to develop their own thresholds of significance (CEQA Guidelines, § 150647(d).)”  (Citing Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1068.)  Moreover, plaintiffs offered no authority for their argument that County’s right to adopt its own standards of significance was more limited in the context of a decision to prepare a negative declaration, as compared to the situation where it adopts such a standard for purposes of an EIR’s analysis.
  • In further analysis on the topic, the Court acknowledged that plaintiffs were correct in asserting that — notwithstanding a lead agency’s discretion to set its own thresholds of significance — it cannot ignore evidence tending to show an actual environmental impact.  Nonetheless, plaintiffs failed to show that was what happened in this case because they did not point to any substantial record evidence that conversion of the 113 acres at issue might constitute a significant impact on the environment; rather they relied solely on faulty legal arguments and a misunderstanding of Appendix G.
  • The Court’s analysis rejecting plaintiffs’ challenges to various mitigation measures in the MND — as allegedly either ineffective or improperly deferred — was also illuminating.  For example, plaintiffs challenged a mitigation measure addressing potentially-significant odor impacts which required pre-building permit consultation with the relevant Air Pollution Control District (CCAPCD) and Colusa County Environmental Health Department to determine whether future operations would pose specified odor impacts and, if so, agency recommendation of feasible mitigation measures (listed in a non-exclusive menu) which the project applicant would then be required to install in accordance with accepted engineering practice prior to occupancy.  Plaintiffs contended there was no indication the “amorphous” odor-reduction measures would be available or effective to mitigate odor impacts, and that the agency consultation requirement impermissibly deferred the formulation of actual mitigation and failed to include meaningful performance standards.  The plaintiffs’ argument, however, failed to show the record contained substantial evidence supporting a fair argument that the subdivision would have significant odor impacts notwithstanding the measure; their air quality consultant’s letter was too vague to amount to substantial evidence, as it merely generally concluded that adequate emissions control technology may not be available in some instances, but failed to identify what types of odors cannot be adequately mitigated with available technology and what land uses might occur in the subdivision that could produce such odors.  In rejecting plaintiffs’ argument that the measure amounted to unenforceable, deferred mitigation, the Court also disagreed, explaining:  “[T]he mitigation measure not only requires the applicant to consult with various agencies so that the agencies can “recommend feasible odor mitigation measures,” it provides that any such recommended measures “shall be installed.””  Further, in rejecting the plaintiffs’ claim that the measure included no meaningful performance standard, the Court stated “they fail to explain what sort of performance standard could have been included given the uncertainty over exactly what land uses may eventually occur in the … subdivision.”
  • In addressing and rejecting plaintiffs’ noise impacts arguments, the Court noted their main thrust was actually a challenge to the adequacy of the discussion in the initial study that supported the MND.  While an initial study is required to disclose the data on which its conclusions rely, its failure to do so is not necessarily fatal to the resulting negative declaration:  “Even if the initial study fails to cite evidentiary support for its findings, ‘it remains the appellant’s burden to demonstrate by citation to the record the existence of substantial evidence supporting a fair argument of significant environmental impact.’ … ‘An absence of evidence in the record on a particular issue does not automatically invalidate a negative declaration’.”  The lack of study is hardly evidence that there will be a significant impact.”’”’ (Quoting Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1378-1379.)  Applying these principles, the Court held plaintiffs’ vague and disjointed references to their “expert’s opinion” and unspecified “evidence” failed to show the existence of substantial evidence in the record to support a fair argument that the project may have a significant noise impact.
  • The Court upheld — against plaintiffs’ challenge that it was unenforceable and contained no standards — an air quality impacts mitigation measure providing that “[p]rior to issuance of grading permits for the project site, and at the County’s discretion, the applicant shall prepare and submit a fugitive dust control plan for review and approval to the [CCAPCD].”  According to the Court, plaintiffs showed no violation of CEQA’s requirement that an MND’s mitigation measures must be “fully enforceable through permit conditions, agreements, or other measures” (Pub. Resources Code, § 21081.6(b)), and it noted County’s retention of discretion did not compel a contrary conclusion because mandamus is available to correct an abuse of discretion.  (Citing California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 247.)
  • The Court gave short shrift to plaintiffs’ GHG impacts arguments that County failed to quantify the project’s baseline and project emissions and compare them; it simply and tersely noted that appellant failed to meet its burden of demonstrating substantial record evidence supporting a fair argument of significant impact, and failed to show that required compliance with regulatory measures was an unreasonable expectation in this case.
  • For similar reasons, the Court found there was no merit to plaintiffs’ challenge to the adequacy of the water supply assessment appended to the Initial Study to support the MND’s conclusion that there would be no significant impacts to groundwater supply.  The argument lacked both logical coherence and expert support, as “the thrust of the [plaintiffs’ groundwater] consultant’s criticism was apparently to attack the evidentiary basis for the County’s conclusion that the project would not have a significant impact on groundwater supplies, rather than identifying or providing evidence to support a fair argument to the contrary.”

In sum, Justice Robie’s thoughtful opinion is like that rare Hollywood movie that is actually better than its trailer.  While it leads off with analysis reaching the “no brainer” result that approval of a tentative map is, categorically, a CEQA project, it picks up the pace when it announces a practical, common sense rule for noticed public comment periods, and really starts to gather momentum when it puts some real teeth into CEQA’s requirement that the challenger show prejudicial error to obtain judicial relief, even in the face of clear procedural errors.  Readers are glued to their seats by the time the opinion clarifies that agency discretion to adopt thresholds of significance applies equally in both the negative declaration and EIR contexts.  The opinion continues to “roll” when it repeatedly applies and clarifies the “fair argument” standard in the context of challenges to MNDs and initial studies, particularly when it points out that (even qualified expert) nitpicking and pointing to flaws in a negative declaration and its evidentiary support is simply insufficient to carry a plaintiff’s burden to affirmatively point to evidence of potential significant impacts.  In other words, showing a lack of study is not evidence and is insufficient to make the requisite showing that an impact may occur.  This is judicial dialogue that would warm any embattled lead agency’s or project proponent’s heart.  Finally, the Court places a similar burden on plaintiffs attempting to challenge mitigation measures as inadequate or deferred, holding they must grapple with the specificity of project impacts and of the related performance standards they claim are deficient.

All in all, even though the ending wasn’t a completely happy one – the agency and real party here failed to defend the MND’s substance on a single point (traffic), and were thus required to prepare an EIR – they nevertheless obtained a valuable published precedent which will inure to the benefit of lead agencies, real parties, and CEQA law generally.

Questions?  Please contact Arthur F. Coon of Miller Starr Regalia.  Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years.  For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law.  “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state.  The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use.  For more information, visit