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Rejecting intervenors’ challenges to a pre-litigation tolling agreement between a CEQA plaintiff (Salmon Protection and Watershed Network, or “SPAWN”) and MarinCounty, in an action challenging the EIR for a countrywide general plan update, the First District Court of Appeal upheld the legal validity of such tolling agreements notwithstanding CEQA’s strong policies for expedited litigation.  Salmon Protection And Watershed Network v. County of Marin, et al. (4/20/12, Div. 3) 205 Cal.App.4th 195, Case No. A133109.  Recognizing CEQA’s strong public policy favoring the prompt filing, litigation, and disposition of CEQA challenges, as embodied and reaffirmed in numerous statutory provisions and judicial decisions, the Court’s decision relied on an equally strong public policy encouraging settlement.  The Court’s decision was supported not only by the parties but – in a rare show of CEQA solidarity – by amici curiae League of California Cities, the California State Association of Counties, the California Building Industry Association, and the Sierra Club.
Continue Reading CEQA Limitations Period Tolling Agreements Upheld By First District Court of Appeal

In a case addressing important issues affecting local agencies and landowners (disclaimer:  I represented the County of Napa in the trial court and on appeal), the First District (Division 4) Court of Appeal on April 20, 2012 filed its published opinion affirming a judgment upholding the County’s clarifying lot line adjustment ordinance (Ord. No. 1331) against facial challenges by the Sierra Club under the Subdivision Map Act and CEQA.  Sierra Club v. Napa County Board of Supervisors, et al. (4/20/12) 205 Cal.App.4th 162, Case No. A130980.  The Court stated:  “We hold that the provisions of the Ordinance allowing sequential lot line adjustments are consistent with the Map Act’s exclusion of lot line adjustments from the requirements of the act.  Further, since the Ordinance spells out a ministerial lot line adjustment approval process, the Ordinance is exempt from CEQA purview.”

After detailing the histories of the Map Act’s statutory exclusion for lot line adjustments (Gov. Code, § 66412(d)) and the County’s local ordinances governing lot line adjustments, the Court observed:  “The Ordinance as adopted continued the County’s existing administrative practice of allowing lot line adjustments impacting four or fewer parcels to readjust lots included in a prior application, provided the prior adjustments had been completed and recorded.  So, too, the new Ordinance continued existing policy and practice such that [lot] line adjustments are ministerial acts not subject to CEQA.”Continue Reading First District Holds CEQA Does Not Apply To Napa County Ordinance Clarifying Its Ministerial Lot Line Adjustment Practice, And That Sequential Lot Line Adjustments Do Not Violate Subdivision Map Act Exclusion’s “Four or Fewer” Limitation

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

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

Can a corporation challenge a business competitor’s or other entity’s project under CEQA when its real interests are commercial rather than environmental?  In its recent decision upholding the City of Manhattan Beach’s “plastic bag ban” ordinance and related negative declaration, the California Supreme Court said “yes,” effectively eliminating a potential standing defense to CEQA actions motivated by economic concerns.  (Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155.)

The standing ruling is significant because such cases never fail to touch a nerve with project proponents who perceive themselves as targets of abusive (or even extortionate) CEQA lawsuits. At least some Courts of Appeal over the past decade have provided some succor, opining that “corporate competitor” plaintiffs lack CEQA standing when they assert purely economic injuries not within the “zone of interests” protected by CEQA. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1238; see Burrtec Waste Industries, Inc. v. City of Colton (2002) 97 Cal.App.4th 1133, 1139.)  But the “zone of interests” standing test proved difficult to apply in practice, and thus provided an unreliable defense, especially in light of CEQA’s extremely broad grant of standing under Public Resources Code § 21177 to anyone who objects to a project on environmental grounds either during the CEQA public comment period or before the close of the public hearing on the project.
Continue Reading Supreme Court Reaffirms Corporate CEQA Standing

Shortly before the close of the last legislative session, I found myself writing a strongly-worded letter (on behalf of myself and interested clients of Miller Starr Regalia) to Governor Brown, the authors of proposed SB 436 (Kehoe) and AB 484 (Alejo) and certain Senate and Assembly Committee Chairs to urge an amendment of – or alternatively a “no” vote on or veto of – those bills.

I specifically requested removal of proposed Government Code § 65968(b), which would have provided:  “A property that has been previously protected for conservation purposes, including the placement of a conservation easement on the property, may not be used for mitigation purposes.”  My letter pointed out that the provision would: (1) constitute an unconstitutional taking of the property rights of farmers and landowners who have granted conservation easements on their properties; (2) violate constitutional prohibitions against contract impairment and public policy favoring freedom of contract; and (3) conflict with the existing statutory law and legislatively-established public policies governing voluntary conservation easements embodied in Civil Code §§ 815, et seq.  In short, it was an illegal “property rights grab.”  And it was buried in an otherwise innocuous bill whose only purpose, as disclosed by every available legislative analysis, was to clarify and expressly authorize a non-controversial existing administrative practice regarding transferring endowment funds from governmental agencies to non-profits that acquire their conservation easements.
Continue Reading CEQA Mitigation On Conservation Easement Lands: How a Plea to Legislators Killed a Threat to Farmers’ Property Rights (For Now)

What originated as legislation to expedite anticipated CEQA challenges to the proposed Farmers Field football stadium project in Los Angeles (SB 292) transformed under Senator Darrell Steinberg’s political leadership into more ambitious legislation (SB 900) that will expedite CEQA litigation over “green” mega-development projects certified by Governor Brown as “Environmental Leadership Development Projects”.  Governor Brown signed both bills into law on September 27, 2011.

Premised on the need – in California’s current high unemployment climate – to streamline CEQA litigation delaying large, job-creating projects with “cutting edge environmental benefits,” AB 900 amends CEQA by:
Continue Reading Governor Signs AB 900 to Speed CEQA Litigation Challenging Massive “Green” Projects

Everyone seems to talk about abuses of the CEQA process and meaningful CEQA reform, but nothing ever seems to get done, much to the chagrin of developers who find themselves the target of CEQA litigation.  The California legislature may have taken a small, but important, step toward rectifying this situation with its 2010 enactment of Public Resources Code Section 21169.11.  The statute was enacted as part of an urgency measure, to curb litigation abuses and provide relief from frivolous claims made in CEQA actions.  (SB 1456 (Stats. 2010, Ch. 496.))

In brief, the new statute provides:

  • Where a court determines a claim made in the course of a CEQA action is frivolous, i.e., totally and completely without merit, it “may impose an appropriate sanction, in an amount up to ten thousand dollars ($10,000)”
  • “The sanction may be imposed upon the attorneys, law firms, or parties responsible for the violation.”
  • The sanctions motion may be made “at any time after a petition has been filed pursuant to this division, but at least 30 days before the hearing on the merits.”
    Continue Reading CEQA Sanctions Statute: Effective Deterrent To Abuse?