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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.

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

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

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