“It’s like déjà vu all over again.”
Yogi Berra
In a (mostly) published opinion filed October 24, 2024, the Second District Court of Appeal (Div. 2) affirmed the trial court’s judgment denying a writ petition in a CEQA action challenging the County of Los Angeles’ (County) adoption of a comprehensive update to its North Area Plan (NAP) and Community Standards District (CSD), the general plan and zoning provisions governing the 21,000-acre Santa Monica Mountains North Area, one of County’s “most significant ecological and scenic resources.” The Court rejected a vintner’s attack on the FEIR’s project description based on the legal theory that it was “retroactively render[ed] ‘unstable’” by County’s adoption of zoning containing a complete prohibition of new vineyards in the North Area, whereas the zoning standards described in the EIR merely “heavily regulated” vineyards. John M. Gooden v. County of Los Angeles, et al. (2024) 106 Cal. App. 5th 1. While the opinion undoubtedly reached a correct result, it did so through problematic reasoning; it announced an ostensibly new and subjective standard to be applied on de novo review to certain EIR project description challenges—i.e., those based on an approved project’s “deviation” from the EIR’s project description—that will foreseeably prove problematic in its application in future cases.
Factual and Procedural Background
The NAP and CSD have for over 20 years regulated the rural and mostly open space North Area; they designate only 4,170 of its 21,000 acres for commercial, public and residential uses, and only around 100 acres of the North Area are actually used for agriculture, consisting predominantly of vineyards along Mulholland Highway and Kanan Dune Road and in Triunfo Canyon. The North Area abuts lands to the south stretching to the coast which are governed by a certified Local Coastal Program (LCP) that prohibits vineyards due to their adverse environmental and scenic impacts. In 2015, the County adopted development standards for all North Area vineyards and a CUP requirement for new or expanded vineyards. Shortly thereafter, it undertook a comprehensive update to the NAP and CSD to provide more habitat protection and better align North Area land use policies and development standards with those of the LCP.
County’s May 2020 DEIR analyzed a NAP/CSD regulatory update project that, among numerous other provisions dealing with a multitude of land use topics, addressed viticulture by reducing the threshold for grape growing to qualify as a “vineyard” subject to the 2015 ordinance’s stringent development standards, and by adding standards for integrated pest management. Neither it nor apparently the County’s FEIR expressly considered a project containing a complete prohibition of new vineyards.
At a November 4, 2020 hearing, County’s Board of Supervisors held a public meeting to consider the County Department of Regional Planning’s recommendation to (with minor modifications) certify the FEIR and approve the project. The Board indicated its intent to certify the FEIR and approve the updated NAP and CSD with a few changes, including a zoning change made in responses to public comments to “prohibit new vineyards of any size.” Thereafter, “[a]fter soliciting and receiving [further] written comments regarding the proposed ban on new vineyards, the Board held another public meeting on May 4, 2021 and voted unanimously to certify the [FEIR], approve the updated [NAP] and [CSD], and adopt the ordinance amending the pertinent provisions of the County Code[,]” which as adopted included the “vineyard ban”. (See, Los Angeles County Code, § 22.336.070 [“All new vineyards, regardless of size, shall be prohibited in this [CSD].”)
The Malibu Coast Vintners and Grape Growers Alliance, Inc. and one of its members (individual vintner John Gooden) did not like this turn of events and filed a writ action challenging County’s NAP vineyard ban under CEQA on two legal theories: (1) the EIR’s lack of an accurate and stable project description, and (2) failure to recirculate the EIR based on significant new information. The trial court denied the writ. The Alliance and Gooden appealed the adverse judgment, with the Alliance later abandoning and only Gooden pursuing the appeal. (The Alliance and Gooden also alleged a non-CEQA claim that County violated Government Code § 65857’s procedural requirement that the Board remand the new vineyard ban proposal to the planning agency for its consideration prior to acting on it; like the trial court, the Court of Appeal rejected that argument, but in an unpublished part of its opinion that won’t be further discussed here.)
The Court of Appeal’s Opinion
The Court recited the principles that “[a]n accurate project description” is “the sine qua non of an informative and legally sufficient [EIR]” and that the description must be “accurate, stable and finite,” followed by string cites of a dozen and 15 cases, respectively. The Court cited Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700, 738-739—which, in rejecting a challenge to an unusually detailed project description, had observed that a project description “need only disclose” the “nature of the project” and its “main features”—and other case law to the same effect, as well as CEQA Guidelines § 15124’s requirements for a project description (which notably include the limitation that it need not contain “extensive detail beyond that needed for evaluation and review of the environmental impact”). The Court further acknowledged that “CEQA necessarily contemplates that public agencies may opt to alter projects in response to feedback and thus to adopt projects that deviate from what was described in prior [EIRs]” so as not to “freeze” projects “in the precise mold of the initial project” and thus “handcuff decisionmakers” and “rob[] [them] of the flexibility needed to tailor projects in response to feedback[.]” (Slip Opn., pp. 11-14.)
While correctly acknowledging these settled and common sense CEQA principles, the tenor of the Court’s opinion imparted an odd spin to them, suggesting that close judicial scrutiny of even slight, environmentally beneficial changes in adopted projects is warranted. The Opinion thus asserts that “[i]n threading the needle” between ensuring a CEQA -compliant project description while preserving the desired agency flexibility, “courts have defined when a public agency’s adoption of a project that deviates from the project’s description in a prior [EIR] renders that description inadequate and unstable.” Per the Court, “[t]hat occurs when deviation is so great that the earlier project description likely “mis[led]” the public and “thwarted [its] ability to participate in the process and comment meaningfully on the [EIR].”” It bullet-pointed “three scenarios” where a “project description may be inadequate or unstable”: (1) where the EIR does not actually describe the proposed project under consideration, exemplified by Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, 281, 288-290 (my 11/17/17 post on which can be found here); (2) where the EIR’s description of the project’s nature or main elements intended to be built is too amorphous, exemplified by stopthemillenniumhollywood.com v. City of Los Angeles (2019) 39 Cal.App.5th 1, 7-8, 18 (my 8/29/19 post on which can be found here) and (3) where the EIR’s description of the project’s nature or main elements is self-contradictory or inconsistent, as exemplified by County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 190, 198-199, and a handful of other cases, including Save our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 675-676. (Slip Opn., pp. 14-17.)
The Opinion cites Save Our Capitol! and Southwest Regional Council of Carpenters v. City of Los Angeles (2022) 76 Cal..App.5th 1154, 1167, 1182 (my 7/7/22 post on which can be found here) to support its conclusion that not only can “instability of a project’s description . . . arise . . . from inadequacies in the [EIRs]” themselves, but “from subsequent action by the public agency that deviates sufficiently from the project described in the reports that the deviation retroactively renders these reports’ description(s) uncertain and hence unstable[.]” It then notes, citing the same cases, plus stopthemillennium and others, that whether an EIR “contains an accurate and stable project description” presents a “question of law subject to de novo review” as failure to provide such “an accurate, stable, and finite project description is a failure to proceed in a manner required by law” which “appellate courts independently review[.]” (Slip Opn., pp. 17-18.)
The Opinion asserts “a project description will be found unstable if a subsequent deviation from the originally articulated description is sufficiently grave to thwart the [EIR]’s ability to serve its communicative function,” which the Court characterizes as an informational failure that is deemed prejudicial with no need for showing that an accurate description would produce a different result. (Slip Opn., p. 18.)
The Opinion also devotes several pages to recitation of the well-established rules and standards governing pre-certification recirculation of EIRs based on “significant new information,” and acknowledges such information “can arise from[,]” inter alia, “the public agency’s adoption of a modified version of the project.” (Citing Southwest Regional, at 1181-1182, as “entertaining recirculation argument where public agency adopted a modified version of the project[.]”) (Slip Opn., pp. 18-22.)
It should be noted at this juncture that CEQA’s recirculation standards involve fact-bound determinations for an agency to make in the first instance—subject only to deferential substantial evidence review by a court—and are also grounded in environmental impact touchstones, in that they define new information as “significant” when it discloses a new substantial environmental impact or mitigation measure, or a substantially more severe unmitigated impact, or a feasible but unadopted mitigation measure that would clearly lessen environmental impacts. (Slip Opn., at pp. 20-21, discussing relevant case law and Guidelines § 15088.5.) The Opinion itself pertinently observes that judicial review of “failure to recirculate” challenges is more deferential to the public agency’s decision since “the threshold determination of whether new information qualifies as “significant” is for the public agency to make in the first instance; courts review the agency’s determination in this regard under the deferential substantial evidence standard.” (Slip Opn., at pp. 21-22, citing cases, including Southwest Regional, at 1184.)
The Opinion then puts its finger on what is probably one of the most important consequences of the new test to which its analysis leads, which is its impact on the appropriate remedy:
Although both CEQA rules [i.e., those governing (1) “retroactive description destabilization” by approval of a too-deviant modified project and (2) recirculation] are implicated in this scenario, it is critical to determine which applies because they call for vastly different remedies: A public agency’s adoption of a modified project that retroactively destabilizes the project’s description by itself qualifies as a “prejudicial abuse of discretion” that ostensibly obligates the agency to start over with the CEQA review process, while the adoption of a modified project does not call for recirculation unless substantial evidence fails to support the agency’s implied finding that the modification does not qualify as “significant new information.””
(Slip Opn., p. 22.)
Ignoring this “red flag” and boldly departing from the standard analytic framework applicable to recirculation challenges, the Court’s Opinion proceeds to announce its new and disturbingly subjective “test” for reviewing an agency’s adoption of a modified project that an opponent claims is not within the EIR’s project description: “[Is] the modification . . . so fundamentally significant that it calls into question—and hence [retroactively] destabilizes—the description of the project itself, thereby warranting a reboot of the CEQA review process[?]” (Slip Opn., p. 22.) The Court found occasion to apply its new test to the case before it because appellant Gooden (somewhat conveniently it seems) “abandoned any claim that the Board’s action warrants recirculation, [leaving] the sole question [to decide]” as whether County’s action to modify the project to include the vineyard ban “render[ed] the description of the project set forth in the previously circulated [EIRs] unstable.” (Id., p. 23.)
The Court “independently” answered this question in the negative, thus upholding the EIR’s project description as adequate, based its reasoning that the portion of the NAP and CSD devoted to agricultural uses is “very small” and that that “topic” was part of the project, such that “[i]n . . . context, the Board’s decision to adopt a total ban on new vineyards in the area rather than to adopt the previously proposed plan to heavily regulate all vineyards does not alter the ‘nature of the project’ or any of its ‘main features.’” (Slip Opn., at p. 23 (cleaned up).) After distinguishing the case before it from other scenarios where courts have found EIR project descriptions inadequate, the Court observed that while the project “change was significant to potential new vintners, . . . if that were sufficient to destabilize a project’s description, then any and every deviation from a prior project description would be grounds for hitting the reset button under CEQA; as noted above, that is not the law.” (Slip Opn., p. 24.) Indeed—and another red flag unheeded.
The Court distinguished Save Our Capitol!, which is pretty much a “unicorn” project description case that appellant argued was on point, and which the Court’s own earlier analysis had heavily relied on, as involving a project to remodel the State Capitol’s historic building complex “where the [project’s] change in the aesthetic design of the complex was integral” to its “status . . . as a historical resource”; by contrast, the NAP/CDS update’s shift from heavy regulation to total vineyard ban involved less than 1% of the North Area’s total acreage and thus, in the Court’s view, “was not integral to . . . updates to land use policies affecting the entire North Area.” (Slip Opn., at pp. 24-25.) While these observations are no doubt true, it seems most likely to me that County simply viewed the vineyard ban as an environmentally beneficial project modification, i.e., an additional mitigation measure addressing vineyards’ adverse impacts, that did not rise to the level of “significant new information” requiring recirculation. And County’s conclusion to that effect—not the Court’s subjective take on the magnitude of the project modification—should have determined the matter.
Conclusion and Implications
While the Opinion’s result is undoubtedly correct, the reasoning it employs to reach it is troubling, and the “test” it adopts does not bode well for consistency and predictability if applied in future CEQA cases because it lacks objective criteria and appropriate deference to the lead agency’s determinations regarding what are essentially factual issues. Rather than framing appellant’s challenge exclusively as what it actually was in substance—i.e., a claim that County should have recirculated the FEIR for further public review due to “significant new information” consisting of changes in the approved project versus what the EIR described and analyzed—the Court “took appellant’s bait” (recall the ”abandoned” recirculation argument) and applied a new, amorphous, and essentially standardless subjective “test” ungrounded in either environmental impact touchstones or substantial evidence review. The new test is: does the deviation between the described project and the ultimately approved project alter “the very ‘nature of the project’” and/or “its ‘main features’”? If a judge reviewing de novo a project opponent’s “retroactive destabilization” challenge to a project description thinks so, then, according to the Second District here, the project must be set aside and apparently the agency must start the CEQA process all over again; no deference is provided to the agency’s express or implied fact-based determinations that a project’s changes do not meet the standards for “significant new information” triggering recirculation.
If this discussion evokes a sense of déjà vu in CEQA practitioners, it’s because the courts have gone down a similar CEQA “rabbit hole” before. The Second District’s reasoning is eerily reminiscent of that underlying the “new versus modified project” “test” that some appellate courts had adopted, and which the California Supreme Court pointedly rejected—as too arbitrary and lacking in objective standards—in the analogous CEQA “subsequent review” context in its landmark 2016 decision in Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.App.5th 937 (my 9/22/16 post on which can be found here; see also, 2 Kostka & Zischke, Practice Under the California Environmental Quality Act (CEB March 2023 Update), § 19.25, at p. 19-26 [noting that “standards for recirculation are similar to the standards for determining if new information triggers the need for a subsequent or supplemental EIR once an EIR has been certified”].)
The Opinion’s reasoning further appears to conflict with other recent authority within the Second District itself. In Southwest Regional Council, the Second District’s Division 4 held that recirculation and public comment on a revised mixed use real estate development project approved by the City of Los Angeles were not required and that “we should not strain to require recirculation under the guise of an unstable project definition or by relying on a “materially different [project]” standard not present in CEQA, for by doing so, we engraft unnecessary requirements that CEQA does not sanction.” Wise counsel, indeed, as required by the Legislature’s statutory directive that courts not impose procedural or substantive requirements beyond those explicitly stated. (Pub. Resources Code, § 21083.1.)
The lesson taught by the Supreme Court less than ten years ago in San Mateo Gardens should not have been forgotten so soon. A “test” requiring a judge to determine whether a “deviation” in an agency’s approved project alters the “nature” or “main features” of the project described in the EIR doesn’t seem to me to be much different from the “materially different project” standard rejected in Southwest Regional Council or the “modified vs. new project” standard rejected in San Mateo Gardens. Such “standards” increase the chances of arbitrary results in CEQA litigation because they lack objective criteria or guideposts grounded in the environmental factors that are relevant to CEQA, and they also invoke de novo review of essentially factual issues that are better entrusted to the lead agency in the first instance, subject to later—and deferential—substantial evidence review by the courts. That is why CEQA’s existing analytic framework for recirculation challenges is fully adequate and better suited for analyzing and resolving “retroactive destabilization” project description challenges like that presented in this case. There is no need to create a new and subjective standard vesting an essentially unbridled discretion in the hands of judges, and inviting them to arbitrarily exercise such authority so as to create even greater uncertainty in an already-too-unpredictable law. In fact, it’s about the last thing CEQA needs.
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 more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, 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, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.