In a series of decisions that had agency planners and environmental consultants scratching their heads, various courts of appeal last year held that every CEQA document must take account of existing conditions in assessing environmental impacts.  (See Sunnyvale West Neighborhood Assoc. v. City of Sunnyvale City Council (6th Dist. 2010) 190 Cal.App.4th 1351; Pfeiffer v. City of Sunnyvale City Council (6th Dist. 2011) 100 Cal.App.4th 1552; Madera Oversight Coalition, Inc. v. County of Madera (5th Dist. 2011) 199 Cal.App.4th 48; see also “CEQA Baselines:  New Sunnyvale Case Sanctions EIR’s Use of Multiple Traffic Baselines,” by Arthur F. Coon, posted December 9, 2011.)  These decisions meant agencies and private applicants had to incur the expense associated with additional studies and model runs, even where a project’s “opening day” would not occur for years.  And further, while these decisions specifically concerned traffic studies, in light of their reasoning a prudent applicant would conduct existing baseline model runs for other impact areas such as noise and air quality.  Costs for such studies easily ran into the five figures.

A recent decision by the Second District Court of Appeal runs counter to these holdings, declaring that, in certain circumstances, one can rely solely on future projected baselines.

In Neighbors for Smart Rail v. Exposition Metroline Construction Authority (4/17/12) ____ Cal.App.4th ____, Case No. B232655, the Court considered a challenge to a light rail line betweenCulver City andSanta Monica inLos AngelesCounty that would not become operational until 2015.  Project studies focused exclusively on 2030 traffic scenarios.  Owing to CEQA’s requirement that an environmental document “include a description of the physical environmental conditions … at the time the notice of preparation if published, or if no notice of preparation is published at the time environmental review commenced” (14 Cal. Code Regs., § 15125(a)), as well as the recent line of decisions interpreting this requirement, petitioner argued the project EIR failed because it did not look at 2009 conditions (or at conditions occurring anytime between the project’s notice of preparation in 2007 or the lead agency’s certification of a final EIR in 2010.)

The Court in Neighbors for Smart Rail determined that, “in a proper case, and when supported by substantial evidence, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air qualify and greenhouse gas emissions.”  Though a CEQA guideline provision fixes the appropriate baseline at the time the notice of preparation is published or, alternatively, the commencement of environmental review, the same regulation provides this setting “normally” will constitute the appropriate baseline – not “always.”  The Court distinguished a recent California Supreme Court decision holding that a future, projected baseline offended the general rule mandating that baselines reflect actual conditions.  Whereas the California Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310 (“CBE”) outlawed the use of “hypothetical” or “illusory” baselines, the Court in Neighbors for Smart Rail held future baselines, based on substantial evidence, are not “illusory.”  The CBE decision disapproved a baseline that accounted for permitted levels of activity, where the actual, historical level of activity never reached the permitted amount.  By contrast, the Neighbors for Smart Rail Court held “there is nothing ‘illusory’ about population growth and its inevitable impacts on traffic and air quality:  Population is growing, and population increases do affect traffic and air quality, with or without the project.”  In supporting the adoption of a future baseline, the Court held, it is key to demonstrate the “reliability of the projections and the inevitability of the changes on which those projections are based.”

The Neighbors for Smart Rail decision would restore flexibility to the environmental review process — a flexibility to which agencies and consultants were accustomed — but it also creates a split of authority among the Second, Fifth, and Sixth Appellate Districts.  Review by the California Supreme Court may be forthcoming … stay tuned.

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

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”), Ballona Wetlands is the most recent in a line of so-called “CEQA-in-reverse” cases, which holds that CEQA is concerned with the impact of the project on the existing environment, not vice-versa.

In denying review, the Supreme Court also denied the depublication requests of numerous environmental groups (including the National Resources Defense Council, Sierra Club, Center for Biological Diversity, and the Environmental Defense Center), and of the Bay Area Air Quality Management District.

While it is impossible to say with certainty why the Supreme Court denies review of specific cases, its actions here in denying review and depublication of Ballona Wetlands are nonetheless significant, in light of the important, fundamental and (to some) controversial nature of the issue presented, as well as the Court’s recent pronouncements urging the relevance of “common sense” at all levels of CEQA review.  Contrary to thoughts expressed by some CEQA practitioners, I believe the “CEQA-in-reverse” holdings of Ballona Wetlands and like decisions are on solid footing and that the CEQA Guidelines should be revised accordingly.

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

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.

Continue Reading CEQA Categorical Exemptions Defeated by Mere “Fair Argument” of Impact, First District Holds

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

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