Litigation

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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

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.)
Continue Reading CEQA Administrative Records: Fifth District Opinion Elucidates Rules Governing Contents and Disputes

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

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. 
Continue Reading CEQA Baselines: New Sunnyvale Case Sanctions EIR’s Use of Multiple Traffic Baselines

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!

Potential recovery – or payment – of plaintiffs’ attorneys fees is always a factor to be considered in prosecuting and defending CEQA suits.  The stakes in this calculus just got a little higher with a recent decision making it easier for CEQA plaintiffs to recover fees and expanding the scope of proceedings for which fees can be recovered.  In a pithy opinion (typical of Presiding Justice Gilbert), the Second District Court of Appeal reversed a trial court’s order partially denying successful CEQA petitioners’ motion for attorneys’ fees under Code of Civil Procedure section 1021.5, the private attorney general statute.  (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312.)  In so doing, it held the trial court erred in finding (1) that fees incurred in administrative proceedings were not recoverable under the statute, and (2) that a nonpecuniary “personal stake” of petitioner in the outcome of the litigation could preclude a fee recovery.

Section 1021.5 provides in part:

Upon motion, a court may award attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if:  (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement … are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.
Continue Reading Successful CEQA Petitioners May Recover Attorneys’ Fees For Administrative Proceedings And Are Not Disqualified By Nonpecuniary Stake

CEQA’s information disclosure provisions are so integral to its statutory scheme that conventional harmless error analysis does not apply.  It is the rare violation of CEQA that will not be found a prejudicial and reversible abuse of discretion.  Public Resources Code section 21005(a) declares state policy “that non-compliance with the information disclosure provisions of this division which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of this division, may constitute a prejudicial abuse of discretion … regardless of whether a different outcome would have resulted if the public agency had complied ….”  Case law teaches that CEQA violations resulting in omission of “material necessary to informed [agency] decision-making and informed public participation” are prejudicial errors.  (Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1392.)

A recent decision illustrates that CEQA error can still be found non-prejudicial, and development project approvals can survive, even under this exacting standard.  (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949.)  In Schenck, after a series of administrative hearings, two administrative appeals, and five iterations of a mitigated native declaration (MND), Sonoma County adopted an MND and approved a large warehouse and distribution facility project.  The development was a relocation of an existing facility of the applicant, beverage company Mesa, to a parcel within County’s airport industrial area adjacent to a creek.

In response to plaintiff Schenck’s petition for writ of mandate challenging the approval, the trial court found just a single CEQA violation: the County had not given notice to the Bay Area Air Quality Management District (BAAQMD) of the hearing and intent to adopt the final MND.  The trial court issued a writ ordering notice to be given, retaining jurisdiction to determine compliance.  County gave the notice, the BAAQMD responded that County’s air quality analysis met appropriate standards, that the project’s operational emissions fell below BAAQMD’s thresholds of significance, and that it supported the adopted mitigation measures.  The County filed a return showing compliance, the trial court entered final judgment, and plaintiff Schenck appealed.
Continue Reading CEQA Doesn’t Require The Killing of Mice With Missiles: Non-Prejudicial Notice Errors Do Not Require Project Set-Aside

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

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