On March 21, 2012, the California Supreme Court denied a petition for review of the Second District’s published opinion in Ballona Wetlands Land Trust, et al. v. City of Los Angeles (2011) 201 Cal.App.4th 455 (“Ballona Wetlands”). As noted in my December 14, 2011 post (“From Baird to Ballona Wetlands: CEQA’s Logical Limits”),
CEQA-Based Facial Challenges To Map Act Ordinances: Relevant Recent Statute of Limitations Developments
In an earlier post (“Ten CEQA Litigation Mistakes To Avoid,” September 13, 2011), one bullet point discussed the potential pitfall of concurrently-applicable non-CEQA limitations periods barring CEQA claims. Numerous cases have held CEQA claims that are timely-filed and served under CEQA’s statute of limitations are nonetheless time-barred for petitioners’ failure to also comply with the concurrently-applicable 90-day service-of-summons requirement imposed by the Subdivision Map Act’s broadly-applicable statute of limitations, Government Code, § 66499.37. That statute applies whenever an action – including, but not limited to, a CEQA action – seeks to set aside a “subdivision-related” decision.
Continue Reading CEQA-Based Facial Challenges To Map Act Ordinances: Relevant Recent Statute of Limitations Developments
CEQA Categorical Exemptions Defeated by Mere “Fair Argument” of Impact, First District Holds
In a CEQA challenge to the City of Berkeley’s approvals to demolish an existing single-family home and replace it with a larger one and an attached 10-car garage, Division 4 of the First District Court of Appeal held in an opinion filed February 15, 2012, and certified for publication, that the proposed project was not categorically exempt from CEQA. (Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2/15/12) 203 Cal.App.4th 656, Case No. A131254.) Applying the “fair argument” standard to its review of the City’s and trial court’s contrary conclusion, the Court held that whenever there is substantial evidence of a fair argument that a significant environmental impact may occur, this automatically satisfies the “unusual circumstances” exception and therefore precludes reliance on a categorical exemption.
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First District Holds CEQA Baseline For Chevron Marine Terminal Lease Renewal Includes Existing Conditions and Structures, Finds No CEQA or Public Trust Violation In Lands Commission’s Alternatives Analysis
The CEQA “baseline” rules have received a lot of judicial attention in the last several years, and rightly so. The baseline or “environmental setting,” is the fundamental “benchmark” from which a project’s environmental impacts are measured. The baseline also determines the scope of the “reasonable range of [project] alternatives” required to be considered in an EIR, since “alternatives shall be limited to ones that avoid or substantially lessen any of the significant effects of the project.” (14 Cal. Code Regs., § 15126.6(f), emph. added.) By definition, adverse environmental conditions already existing as part of the baseline are not significant impacts of the proposed project.
Continue Reading First District Holds CEQA Baseline For Chevron Marine Terminal Lease Renewal Includes Existing Conditions and Structures, Finds No CEQA or Public Trust Violation In Lands Commission’s Alternatives Analysis
Rejecting CEQA Alternatives For Economic Infeasibility: Sixth District Lays Down the Law In Flanders Foundation v. City of Carmel
When a CEQA project proposes the modification or demolition of a historically-significant property, or the sale of such a property by a government agency owner, the potentially significant impacts to the historic resource must be analyzed and – where feasible – mitigated. A recent decision involving the City of Carmel’s proposed sale of the historic Flanders Mansion illustrates what CEQA does – and doesn’t – require when a public agency proposes to sell historic property and rejects mitigation measures discussed in an EIR as economically infeasible. (The Flanders Foundation v. City of Carmel-by-the-Sea, et al. (6th Dist., January 4, 2012) 202 Cal.App.4th 603.)
Since the early 1970’s, Carmel has owned a 35-acre nature preserve, and the Flanders Mansion property that is located within and surrounded on all sides by the preserve. The preserve is an environmentally sensitive habitat area; the mansion that is located on a 1.252-acre parcel within the preserve is a 6,000 square foot Tudor Revival English Cottage, built in 1924, designed by noted architect Henry Higby Gutterson, and listed on the National Register of Historic Places. The mansion has been vacant since 2003, but in previous years was used as a private residence, an art institute and office space.Continue Reading Rejecting CEQA Alternatives For Economic Infeasibility: Sixth District Lays Down the Law In Flanders Foundation v. City of Carmel
CEQA Administrative Records: Fifth District Opinion Elucidates Rules Governing Contents and Disputes
The proper content of CEQA administrative records is frequently a subject of intense dispute in CEQA litigation, resulting in partial certifications by agencies, and motions to strike and augment by various parties. In a recent case addressing a number of other interesting CEQA topics, the Fifth District Court of Appeals devoted a significant portion of its published opinion to administrative record issues, in order to “provide guidance to practitioners in subsequent cases so that they will proceed more efficiently in the expenditure of their own time and that of the courts.” (Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 61.)
The Court prefaced its “discussion of the rules of law concerning administrative records” by positing a two-step inquiry for determining the admissibility of evidence in general in CEQA cases: (1) is the item in question part of the administrative record pursuant to Public Resources Code, § 21167.6(e)? and (2) if not, is the item admissible under the rules applicable to extra-record evidence? (Id. at 62.)
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From Baird to Ballona Wetlands: CEQA’s Logical Limits
It’s a common error in logic to suppose that because two things are in spatial or temporal proximity, one must be the cause of the other – a confusion of cause and affect. A line of CEQA cases – beginning with Baird v. County of Contra Costa (1st Dist. 1995) 32 Cal.App.4th 1464, and continuing with the recently published decisions in Ballona Wetlands Land Trust, et al. v. City of Los Angeles (2d Dist., Nov. 9, 2011) 201 Cal.App.4th 455 and South Orange County Wastewater Authority v. City of Dana Point (4th Dist. 2011) 196 Cal.App.4th 1604 – exposes this basic logical error in the CEQA context, and in doing so, clarifies CEQA’s fundamental scope and limits.
The rule can be simply stated: CEQA is concerned with analyzing the impacts of the proposed project on the existing environment and not the impacts of the existing environment on the proposed project. In other words, CEQA requires an analysis of (and mitigation for) significant adverse changes in the existing environment that will be caused by the project, not vice versa. (E.g., Baird, supra, 32 Cal.App.4th at 1468 [“Adverse environmental changes are not contemplated here. The purported contaminations are preexisting (or do not exist at all).”].)
In the seminal Baird case, an addiction treatment facility was approved with a negative declaration for construction in the vicinity of existing sewage and soil contamination of various kinds. Project opponents argued CEQA required the County to prepare an EIR to study the impacts of the existing pollution on the future project residents. The court rejected the argument because “[t]he purpose of CEQA is to protect the environment from proposed projects, not to protect proposed projects from the existing environment”; nothing in the record supported any claim that the project’s construction would in any way expose, worsen or spread the existing environmental contamination.
Continue Reading From Baird to Ballona Wetlands: CEQA’s Logical Limits
CEQA Baselines: New Sunnyvale Case Sanctions EIR’s Use of Multiple Traffic Baselines
Last February, I co-authored a California Land Use Law & Policy Reporter lead article analyzing three significant 2010 decisions addressing the rules for setting the CEQA “baseline,” i.e., the starting point from which environmental impacts are measured. (“Back to Basics: Setting the Environmental Baseline Under the California Environmental Quality Act” by Arthur F. Coon and Sean R. Marciniak, Feb. 2011 issue of CLULPR.) One of those cases – – Sunnyvale West Neighborhood Assoc. v. City of Sunnyvale City Council (6th Dist. 2010) 190 Cal.App.4th 1351 (“Sunnyvale West”) – – held that sole reliance on a future, post-project approval environmental baseline in an EIR’s traffic analysis exceeded the lead agency’s lawful discretion under CEQA. At a minimum, CEQA requires a comparison of project impacts to existing conditions not later than the date of project approval. Our article noted that the Sunnyvale West decision invalidated a widespread industry practice, prevalent among traffic consultants, in holding CEQA documents must always include an “existing conditions” baseline analysis, even when the project will not be built and become operational until many years after project approval.
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Governor’s Veto Said CEQA Is Enough, No Need For Law Requiring “Economic Impact Report” For Superstores
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.)
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“Deferral” Under CEQA: It’s Complicated!
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!