CEQA Case Report: Understanding the Judicial Landscape for Development[i]
By Christopher W. Garrett, Daniel P. Brunton, Robert C. Hull, and Natalie C. Rogers
In an unpublished opinion issued January 31, 2018, Citizens for Open & Public Participation v. City of Montebello, Case No. B277060, the California Court of Appeal affirmed the trial court’s denial of a petition for writ of mandate, upholding the City of Montebello’s (City) approval of a residential development project (Project). In summary, the court determined:
- The trial court properly struck portions of the plaintiff’s opening brief that were inconsistent with the petition, in which the plaintiff had filed no statement of issues, and when the local rules required briefing to be consistent with the statement of issues.
- A petitioner challenging an action as violating the Brown Act must show prejudice.
- A city’s determination that a project is consistent with its general plan carries a strong presumption of regularity that a project opponent can overcome only by showing the city abused its discretion.
Background for Appeal
In March 2009, the City first published a draft environmental impact report (EIR) concerning the Project, and then recirculated its draft EIR in September 2014. The final EIR was published in April 2015. The City certified the final EIR on June 10, 2015, and obtained various permits later that month, allowing the Project developer to begin construction on the Project. Citizens for Open and Public Participation (Petitioner) filed a petition for writ of mandate and complaint challenging the Project and the City’s certification. The City and developer answered the petition, and the City filed a notice of certification of the administrative record the same day. This filing triggered CEQA’s statutory 30-day deadline for Petitioner to file a statement of the issues it intended to raise in its opening brief. Petitioner did not file this statement, and failed to file its opening brief by the court-ordered deadline.
The trial court denied the City’s and developer’s request to dismiss the case, but ordered Petitioner to limit its opening brief to the issues raised in the Petitioner’s amended petition. When Petitioner filed its opening brief, Petitioner included various arguments not raised in the amended petition. The City and developer moved to strike those portions of the brief, which the trial court granted. The court ultimately denied the petition and entered judgment in favor of the City. Petitioner appealed.
Motion to Strike Portions of Opening Brief
Petitioner argued that the trial court abused its discretion by striking portions of Petitioner’s opening brief. The petition is supposed to limit and frame the issues heard at trial, thus CEQA requires plaintiffs to file a statement of issues that the petitioner intends to raise in any brief or at any hearing or trial within 30 days of the filing of the administrative record.
In this case, Petitioner not only failed to comply with CEQA’s 30-day rule, but it also expanded on the set of claims originally brought in the amended petition. Thus, the Court of Appeal held that the trial court had authority to strike the portions of the brief that were outside the scope of the petition. The opening brief was therefore properly limited to claims that the City failed to adequately analyze the Project’s significant adverse environmental impacts.
Nonetheless, the court declined to address the merits of the City’s and the developer’s contentions that Petitioner’s CEQA claims be dismissed because Petitioner failed to satisfy certain statutory prerequisites for relief under CEQA. Because the trial court did not err in striking portions of Petitioner’s opening brief addressing its CEQA claims, and because Petitioner did not assert any other CEQA claims on appeal, the issues the City and the developer raised were moot.
Compliance with the Brown Act
Petitioner claimed the City violated the Brown Act by providing notice that a public meeting concerning the Project would take place at a certain location, when the meeting in fact took place elsewhere. Under the Brown Act, a local agency must, at least 72 hours before a regular meeting, post an agenda that specifies the time and place of the meeting. However, a violation of the Brown Act will not render an agency’s action null and void if the action substantially complied with the statute. In addition, a petitioner must show prejudice.
Here, the court determined that the City did not violate the Brown Act, even though the City’s online calendar page incorrectly stated the location of the meeting. Only one member of the public was unable to attend due to the mistake, and that person was able to attend the City’s second hearing on the Project and express her views. Further, nothing in the record suggested the City Council would have taken a different action on the Project if it had heard her views at the earlier meeting. Thus, no prejudice resulted from the City’s error. Absent a showing of prejudice, the court need not decide whether the misleading information violated the Brown Act or whether the City substantially complied with the statute. The trial court properly determined that there was no violation of the Brown Act.
Compliance with the Planning and Zoning Law
Finally, Petitioner argued the City violated the Planning and Zoning Law because the Project was inconsistent with the City’s general plan. A local agency’s determination that a project is consistent with its general plan is afforded great deference. Here, the court determined that City’s approval of the Project did not violate the Planning and Zoning Law, as the administrative record showed that the City properly evaluated the Project with respect to the General Plan’s goals. The final EIR provided that the Project would neither preclude the City from developing affordable housing elsewhere in the City, nor impair the City’s other special programs designed to assist the elderly and handicapped persons with housing. Thus, the City did not abuse its discretion in determining that the Project was “in agreement or harmony” with the General Plan.
Accordingly, the Court of Appeal affirmed the trial court and upheld the City’s approval of the Project.
- Opinion by Presiding Justice Rothschild, with Justice Chaney and Justice Johnson concurring.
- Trial Court: Superior Court of Los Angeles County, Judge John A. Torribio.
[i] California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).
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