Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he hadn’t yet read the latest bills proposing to limit its scope.  In the short time since then, SB 317 (the most significant effort at CEQA reform this year) appears to have died in the waning days of this Legislative session.  While “hope springs eternal,” meaningful legislative reform of CEQA thus continues to prove elusive.

Continue Reading Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?

Following up on previous posts (see February and May archives), the City of Berkeley Respondents and the Kapors (Real Parties in Interest) filed their joint 80-page opening brief on the merits on July 27 in Berkeley Hillside Preservation, et al. v. City of Berkeley, et al., California Supreme Court.  The case will decide whether the Court of Appeal erred in overturning the City’s approval of the Kapors’ two-story, 6,478 square foot single family residence, and 3,394 square foot garage, on a 29,714 square foot parcel zoned Single Family Residential District–Hillside Overlay.

Continue Reading Does CEQA Provide For Classes of Exempt Projects? Parties File Opening Merits Brief in Supreme Court in Berkeley Hillside Preservation

The First Appellate District recently ordered partially published its opinion in City of Hayward v. Board of Trustees of the California State University (2012) __ Cal.App.4th __, 2012 WL 2832858 (cert. for pub. 6/28/12), which applied some CEQA basics in clarifying what “impacts” of a project must be analyzed and mitigated under CEQA.  In so doing, it helpfully sharpened the sometimes fuzzy boundaries of the statute’s outer reach as it is all too commonly applied.

Continue Reading First District Reaffirms CEQA Is Concerned With Physical Impacts On The Environment, Not Economic Ones On Government Services

In a common-sense resolution of a conflict on the issue in the courts of appeal, the California Supreme Court held in a June 14, 2012 decision that Public Resources Code § 21177(a)’s exhaustion-of-administrative-remedies requirement applies to actions challenging an agency’s determination that a project is categorically exempt from CEQA.  Tomlinson v. County of Alameda(2012) 54 Cal.4th 281.  In reversing the First District Court of Appeal’s contrary decision, the Supreme Court resolved the conflict between the decisions in Azusa Land Reclamation Co. v. Main San Gabriel Watermaster (1997) 52 Cal.App.4th 1165 (holding exhaustion requirement inapplicable to categorical exemption challenges) and Hines v. California Coastal Com. (2010) 186 Cal.App.4th 830 (holding exhaustion requirement applies to categorical exemption challenges).

Continue Reading Supreme Court Holds CEQA’s Exhaustion Requirement Applies To Categorical Exemption Challenges

Some CEQA practitioners think the sheer volume of published CEQA opinions demonstrates the need for reform – res ipsa loquitur, so to speak.  Recently a litigation mentor of mine, a brilliant man who was at the forefront of CEQA litigation more than 20 years ago when he left my firm to teach law, asked me: “What’s with this Berkeley Hillside Preservation case? Are EIRs really now required for single family homes?”  (Note:  The Supreme Court has now granted review of that case.)  Another leading CEQA practitioner and author views recent legislative efforts at CEQA streamlining and litigation reform as largely ineffectual, and sees no meaningful reforms on the horizon.  I tend to share these views, as indicated at the conclusion of a May 22, 2012 post I co-authored with Nadia Costa, on the Fifth District’s Consolidated Irrigation District  (“CID”) decision, “Breaking Down CEQA’s Administrative Record Statute: Fifth District Explains What’s In and What’s Out.”  This is the “follow-up” post explaining why that case struck a “CEQA reform” chord with me.

Continue Reading How Recent CEQA Cases Show The Need For Legislative CEQA Reform

On May 23, 2012, the California Supreme Court by unanimous vote granted respondents’ and real parties’ petition for review of the First District Court of Appeal’s published decision in Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (2/15/12 203 Cal.App.4th 656, Case No. A131254), which held that substantial evidence of a fair argument of a potentially significant environmental impact automatically satisfies the “unusual circumstances” exception, and thus precludes reliance on a CEQA categorical exemption.  (See “CEQA Categorical Exemptions Defeated By Mere “Fair Argument” of Impact, First District Holds”, 2/23/12 post by Arthur F. Coon and Nadia L. Costa.)  The First District’s decision, requiring an EIR for construction of a large single-family home in the Berkeley hills, was controversial and sharpened a split of authority regarding the proper standard of review for categorical exemptions and interpretation of the “unusual circumstances” exception to categorical exemptions.  CEQA practitioners and stakeholders will continue to follow this matter with interest.

Continue Reading Supreme Court Will Review CEQA Categorical Exemption Exception In Berkeley Hillside Preservation Case

In a highly detailed and analytical opinion, the Fifth District Court of Appeal addressed and answered numerous novel legal questions regarding the proper interpretation and application of Public Resources Code § 21167.6(e), CEQA’s administrative record statute.  Consolidated Irrig. Dist. v.. Superior Court, 205 Cal.App.4th 697 (2012).  In brief, the court of appeal rejected the blanket contention that discovery is never allowed in a CEQA case, and also provided significant guidance as to the proper content of the administrative record.

Continue Reading Breaking Down CEQA’s Administrative Record Statute: Fifth District Explains What’s In and What’s Out

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