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

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

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

As I pointed out on September 13, 2011 (“Ten CEQA Litigation Mistakes To Avoid”), a CEQA plaintiff must not forget to name all real parties in interest since a failure to name indispensible parties under Code of Civil Procedure § 389 will result in dismissal.  On October 9, 2011, Governor Brown signed into law a bill (AB 320 (Hill)) which makes it easier to avoid that mistake.

CEQA has long required state and local lead agencies approving a project to file a notice of determination (“NOD”) where an EIR is certified or negative declaration adopted, and allowed them to file a notice of exemption (“NOE”) where the project is determined to be exempt from CEQA.  These notices are to be filed within five (5) working days of final project approval, and principally serve to alert the public of the agencies’ final decision and CEQA determination, and to trigger CEQA’s short (30 and 35 day) statutes of limitation for project challenges.

AB 320 amends CEQA’s provisions to require that lead agencies approving a project must now identify in their NOD or NOE all project approval recipients.  (See new Pub. Resources Code, §§ 21108(a)(b), 21152(a)(b).)  It further provides that CEQA plaintiffs shall name, as real parties in interest, the parties so identified and that “[f]ailure to name potential persons, other than those real parties in interest [so identified] is not grounds for dismissal pursuant to Section 389 of the Code of Civil Procedure.”  (See new Pub. Resources Code, § 21167.6.5(d).)

The new law provides more comfort and certainty to CEQA plaintiffs, and will require public agencies and approval recipients to exercise more care and attention in the preparation of NODs and NOEs.  The law will not apply to CEQA actions pending on or before, or seeking to challenge decisions for which an NOD or NOE was filed on or before, December 31, 2011.

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?