In a 74-page opinion filed February 24, and later ordered published on March 17, 2020, the Second District Court of Appeal (Division 7) affirmed judgments (granting the writ petition and awarding fees) in coordinated appeals stemming from a CEQA action successfully challenging the City of Agoura Hills’ (City) project approvals and mitigated negative declaration (MND) for a mixed use development project on an undeveloped 8.2 acre parcel.  Save the Agoura Cornell Knoll v. City of Agoura Hills (Doron Gelfand, et al., Real Parties in Interest) (2020) 46 Cal.App.5th 665.  The Court rejected the City’s and Real Parties’ procedural arguments that Petitioners and Respondents Save the Agoura Cornell Knoll (STACK) and California Native Plant Society (CNPS) had failed to exhaust administrative remedies, and that their claims were barred by lack of standing and the statute of limitations; on the merits of the CEQA claim, it held that substantial evidence in the record supported a fair argument that even as mitigated the project may have significant impacts on cultural resources (i.e., a Chumash Native American archaeological site), three sensitive plant species, native oak trees, and aesthetic resources, and that an EIR was therefore required; and it further held the trial court properly granted writ relief based on the City’s violation of its own Oak Tree Ordinance by approving a project that would concededly remove 35 to 36 percent of the site’s oak tree canopy when the Ordinance prohibited removal of more than 10 percent.  Finally, the Court held that the trial court properly awarded Petitioners STACK and CNPS $142,148 in attorneys’ fees under Code of Civil Procedure § 1021.5, made payable 50% by City and 50% by Real Parties, notwithstanding that Petitioners furnished their first amended petition to the Attorney General (AG) beyond the 10-day statutory period for doing so.

A Particularly Problematic Site For A Development Project

Preliminarily, and especially viewed in light of the inherent vulnerability of negative declarations (including MNDs) to litigation challenges under the applicable “fair argument” standard, the undeveloped 8.2-acre hillside site at issue here was a particularly problematic one for the proposed – and probably any – development project.  The “Cornerstone Mixed-Use Project” proposed 35 residential apartment units, plus retail, restaurant and office space, on a site mostly covered with grasses, scattered oak trees, and scrub oak habitat; the site also contained three rare, threatened or endangered plant species and an identified prehistoric archaeological site containing Chumash artifacts (CA-LAN-1352) that qualifies for inclusion in the California Register of Historical Resources and whose boundaries have not been clearly defined by prior studies.  Significant portions of the site are also located in a Significant Ecological Area and designated for open space.  The project required a development permit, conditional use permit (CUP), oak tree permit, and a tentative parcel map to consolidate 24 parcels into two lots, one of which would be a 1.98-acre parcel reserved for open space.

The Court of Appeal’s Disposition of Appellants’ Exhaustion,
Standing and Statute of Limitations Arguments

The City and Real Party developers asserted an array of ultimately unsuccessful procedural arguments in an effort to avoid defending the project’s MND under the “fair argument” standard, which creates a “low threshold” for requiring an EIR, and under which the agency’s decision cannot be upheld if there is any substantial evidence in the record from which it can be fairly argued that the project might have a significant environmental impact, notwithstanding that there is also evidence to the contrary.  (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112; Covina Residents for Responsible Development v. City of Covina (2018) 21 Cal.App.5th 712, 723.)

First, Appellants argued that Petitioners waived any claim that they had exhausted administrative remedies by failing to raise the issue in their trial court opening brief and not addressing it until their reply brief.  The Court acknowledged that the exhaustion requirement is “not a matter of judicial discretion, but is a fundamental rule of procedure … binding upon all courts” (Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 383), and “a jurisdictional prerequisite to maintenance of a CEQA action.”  (City of Long Beach v. City of Los Angeles (2018) 19 Cal.App.5th 465, 474.)  Further, it is the Petitioner’s burden to demonstrate issues raised in court were first raised at the administrative level, and the appellate court reviews the issue de novo.  (Monterey Coastkeeper v. State Water Resources (2018) 28 Cal.App.5th 342, 359; Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104, 116-117.)  However, the Court held that Petitioners did not forfeit the issue of exhaustion:  “While Petitioners bore the burden of proving the exhaustion of administrative remedies, there was no jurisdictional requirement that they argue the issue in a separate section of their opening brief.  Some of the evidence that Petitioners cited in their opening brief was the same evidence that they cited in their reply to show that they had exhausted administrative remedies [after Appellants argued failure to prove exhaustion in their opposition briefs].  Petitioners adequately preserved the issue for consideration in the trial court by expressly alleging in their [operative] petition that they had exhausted all administrative remedies; by lodging the complete administrative record with the Court as part of the writ proceedings; by citing the relevant portions of the administrative record that supported their claims in their opening brief; and by citing the evidence of exhaustion in their reply brief ….”

The Court further noted that CEQA’s and the exhaustion doctrine’s requirements and concerns are not served by requiring proof “when there is no real dispute that the requirement was in fact met” (Save Our Residential Environment v. City of West Hollywood (1992) 9 Cal.App.4th 1745, 1750); that once Appellants placed the issue in dispute in their oppositions there was ample opportunity for the parties to brief and argue it (which they did); and that Petitioners did not submit any “new evidence” by citing in their reply brief to evidence in the already-admitted administrative record.

The Court next noted – with a hint of irony – that Appellants raised for the first time in their own reply brief on appeal the arguments that STACK lacked standing and that CNPS – added as a petitioner in an amended petition filed beyond the statute of limitations – could not serve as a substitute petitioner, therefore requiring dismissal of the action.  Appellants forfeited the statute of limitations argument by failing to plead it as an affirmative defense in their answers to the first amended petition or by demurrer, and were additionally precluded from raising it on reply by failing without explanation to present argument on it in their opening brief.  Because Appellants did not contest CNPS’s standing, and had forfeited their statute of limitations defense as to it, there was at least one petitioner with standing such that the Court had jurisdiction over the appeal, and therefore there was no need to resolve the issues of STACK’s standing, which the Court noted would also have fallen outside of the scope of appellate review by requiring consideration of factual issues outside the record – such as the time of STACK’s formation and whether any of its members objected during the administrative proceedings.

The Court of Appeal’s Holdings That The MND Violated CEQA

Turning to the merits issues, the Court affirmed the trial court’s findings of MND and mitigation measure deficiencies in numerous areas.

Cultural Resources

After finding Petitioners adequately exhausted as to each of the four cultural resources claims at issue on appeal, the Court held that CEQA requires an EIR to address the project’s impacts to cultural resources because “substantial evidence supports a fair argument that the MND’s measures improperly defer mitigation of the project’s impacts on cultural resources, and are insufficient to avoid or reduce those impacts to a less than significant level.”  The relevant measures were not designed to ensure avoidance of CA-LAN-1352 as a tribal cultural resource, but merely provided for monitoring ground-disturbing activities and stopping work so that “appropriate actions” could be taken if significant archeological or paleontological resources are discovered at the site, and for a Phase III data recovery excavation program prior to ground disturbance if avoidance is not possible.  The MND contained no analysis of whether CA-LAN-1352 could actually be avoided, and did not specify performance criteria for assessing the feasibility of avoidance as an alternative to excavation; further, the boundaries of CA-LAN-1352 were not defined, making it problematic to determine whether avoidance is actually feasible with the approved project footprint, and there was no analysis regarding whether doing so was impractical or feasible at the initial review stage.  Thus, mitigation was improperly deferred, and the record also contained substantial evidence in the form of expert opinion that avoidance would be infeasible given the project’s extensive grading activities, and that the archeological resource would be destroyed or significantly impacted notwithstanding the mitigation measures.

Further, substantial evidence supported a fair argument that the contingent Phase III data recovery excavation program itself was infeasible and would be ineffective to mitigate harm from loss of the site.  That plan also improperly deferred standards or guidelines to ensure the efficacy of the deferred mitigation, without adequate explanation or a showing that articulating specific performance criteria was impractical or infeasible.

Appellants’ challenges to the evidentiary value of the comments of Dr. Chester King, an expert in Native American archeology and history, also failed to undermine the conclusion that substantial evidence supported a fair argument of possible significant impacts.  Dr. King’s qualifications were set forth in the record, his opinions were based on review of the relevant studies and MND, and his background and knowledge base were sufficient to support his opinions despite the fact that he never personally inspected the project site.  (Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.)

Sensitive Plant Species

All three sensitive plant species on the project site occurred in areas zoned for project-related fuel modification activities, i.e., mowing, pruning, and brush-clearing, and relevant studies found that all three were potentially susceptible to impacts from such activities and from grading and landscaping.  Mitigation measures were based on outdated studies, and improperly deferred adequate studies to the future without a showing of current infeasibility.  They also were inadequate to the extent they called for restoration (i.e., salvage and replanting) if avoidance (i.e., 200-foot setback) was infeasible because there was substantial evidence that restoration (whether on or off-site) was not an effective form of mitigation for at least two of the species.  The MND also improperly deferred formulation of certain components of mitigation – i.e., 200-foot setback unless avoidance was infeasible or an “active maintenance plan” was implemented – without specifying performance standards for determining the feasibility of avoidance or evaluating a maintenance plan’s efficacy.  Further, no feasible alternatives were provided if salvage and replanting efforts failed.  Accordingly, expert record evidence – including CDFW analysis and opinions – supported a fair argument that these mitigation measures were inadequate.  Similarly, another measure (regarding another of the sensitive plants) providing for on-site restoration and off-site preservation and enhancement was also inadequate based on CDFW’s comments and credible evidence indicating such efforts would not succeed.

Finally, CDFW’s comment letter opinions supported a fair argument that a measure calling for flagging sensitive species and observing a 10-foot buffer during fuel modification activities was inadequate because infeasible and likely ineffective.  CDFW opined such activity was disruptive, with a high probability of incidental take, and that the measure would not adequately avoid direct and indirect impacts, particularly given that proposed monitoring would end upon completion of construction, while disruptive maintenance activities would continue indefinitely.

Oak Trees

The project would remove 29 of the 59 valley and coast live oak trees on the site and encroach into the protected zones of six other oak trees, while removing over one-third of the site’s 61,845 square feet of scrub oak habitat.  The Court held Petitioners adequately exhausted administrative remedies in challenging the MND’s mitigation measures addressing these impacts, which included replanting trees at a 4:1 ratio onsite or payment of an in lieu fee to the City to plant trees off-site.  The Court held substantial evidence supported a fair argument that the MND neither adequately analyzed nor mitigated the project’s oak tree impacts.  The record contained substantial evidence that the project’s mass grading may cause a loss of natural subsurface water to both retained and replacement trees, necessitating establishing some method of replacing the water, but the MND stated that the retained oaks would have “no direct construction impacts” and failed to analyze or mitigate impacts from disruption of subsurface water flow.  There was also substantial evidence that prior oak tree restoration efforts have failed and were often unsuccessful, but no analysis of the measure’s likely success.  Moreover, the in lieu fee program measure was improperly deferred mitigation as it did not specify the fees to be paid, or the number of trees to be planted offsite, nor did it assess the availability of planting sites to the City or analyze the feasibility of the program; nor was the program itself evaluated under CEQA, as would be necessary to provide a lawful substitute for traditional, project-by-project analysis and mitigation.  (California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, 1053.)  Similarly, substantial evidence indicated that a measure providing for an oak tree preservation program for retained trees may not be effective in reducing impacts to less-than-significant, as it was primarily aimed at protecting trees from grading and construction encroachment, and did not address long-term survival or the risk of water deficit caused by project mass grading that was disruptive of subsurface water flow needed to sustain the retained trees.

Aesthetic Resources

By failing to make any reasoned argument challenging the merits of the trial court’s ruling that the MND failed to mitigate significant aesthetic impacts – i.e., from the mass removal of oaks and development of a scenic, oak-studded knoll – Appellants forfeited that argument, leaving only their (meritless) argument that Petitioners failed to exhaust on this issue.  The Court’s independent review of the record demonstrated that Petitioners adequately exhausted administrative remedies as to all of their aesthetic resource claims.

Fee Award Affirmed

The case’s final CEQA-related issue that I’ll discuss briefly in this post is the Court’s rejection of Appellants’ argument that Petitioners were disqualified from a fee award by failing to timely furnish the AG with copies of their petitions.  CEQA requires that petitioners “shall … furnish pursuant to Section 388 of the Code of Civil Procedure a copy of any amended or supplemental pleading filed by such person in such action to the Attorney General.  No relief, temporary or permanent, shall be granted until a copy of the pleading has been furnished to the Attorney General in accordance with such requirements.”  CCP § 388 requires that the pleading be furnished “within 10 days after filing.”  Petitioners mailed the AG a copy of their original petition five (5) days after filing, but did not mail their materially similar first amended petition to the AG until five months after filing it.

The Court held Petitioners’ fee claim was not barred by their failure to strictly comply with the 10-day requirement.  Per the Court, the statutes do “not make such notification a prerequisite to recovery [of CCP § 1021.5] fees” (citing Vasquez v. State of California (2008) 45 Cal.4th 243, 258), and courts exercise their equitable discretion in light of all relevant circumstances on a case-by-case basis in determining whether private enforcement was sufficiently necessary to justify a fee award.  (Id. at 258-259.)  It distinguished Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547, as both recognizing there may be situations where the statutes need not be strictly followed, and as involving a materially different factual situation where the belated service on the AG occurred only four days before the merits hearing, leading the AG to advise that it lacked time to conduct even a preliminary review prior to the hearing.  (Id. at 560-561.)  Here, by contrast, Petitioners’ original petition was timely served, and its first amended petition (which was not materially different) was served on the AG a month and a half before the merits hearing, giving the AG ample time to decide whether to intervene – and making private enforcement necessary when it did not do so.

The Court also rejected Appellants’ argument that the trial court abused its discretion in admitting the declaration of Petitioners’ attorney regarding when services on the AG were made.  No formal proof of service was required, and the declaration properly responded to an issue raised in the writ opposition.  (While the Court also reasoned that the declaration concerned events occurring after the administrative proceedings, and could thus properly be admitted in the writ proceedings under CCP § 1094.5(e)’s exception for extra-record evidence, that reasoning seems wrong to me.  Rather, because the evidence related to a procedural issue in the litigation wholly unrelated to the merits of the administrative agency’s challenged decision– like issues such as the statute of limitations or laches – it is probably better viewed as a general exception to the rule limiting admissible evidence in writ actions to that contained in the administrative record.)


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