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CEQA Case Report: Understanding the Judicial Landscape for Development[I]

By Marc T. Campopiano, Christopher W. Garrett, Nathaniel L. Glynn, and Natalie C. Rogers

In a published opinion issued December 24, 2018, Sierra Club v. County of Fresno, Case No. S219783, the California Supreme Court determined that an environmental impact report (EIR) prepared and certified by Fresno County (County) for a development project failed to include certain information and analysis required by CEQA. The California Supreme Court held that the EIR did not adequately discuss potential health consequences that could be caused by a significant increase in pollutants resulting from the development project. In summary, the California Supreme Court determined:

  • A discussion of potential environmental impacts in an EIR must include sufficient detail to enable those who did not participate in its preparation to understand and to meaningfully consider the issues raised by the proposed project.
  • The issue of whether a discussion in an EIR is sufficient is a mixed question of law and fact subject to de novo review, though underlying factual determinations in an EIR are subject to a more deferential standard.
  • An EIR must either make a reasonable effort to correlate a project’s significant air quality impacts to potential health consequences, or explain why providing such an analysis is not feasible.
  • A lead agency does not impermissibly defer mitigation if it leaves open the possibility of employing better mitigation efforts consistent with improvements in technology.
  • A lead agency may adopt mitigation measures that do not reduce a project’s significant and unavoidable impacts to a less-than-significant level, so long as the agency can demonstrate in good faith that the mitigation measures will be at least partially effective in mitigating impacts.

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher H. Norton, Lucas I. Quass and Megan K. Ampe

In a published opinion issued on October 23, 2018, Save Lafayette Trees v. City of Lafayette, Case No. A154168, the California Court of Appeal upheld the trial court’s decision to grant a demurrer without leave to amend with respect to challenges to the substantive and procedural requirements of applicable planning and zoning laws, but reversed with respect to a challenge brought pursuant to CEQA, concluding that the 180-day statute of limitations applicable to CEQA claims applied to the claim filed by Save Lafayette Trees, Michael Dawson, and David Kosters (together Petitioners) alleging non-compliance with CEQA.

In summary, the Court of Appeal determined:

  • If two statutes of limitation of equal authority apply to a claim brought pursuant to CEQA — one contained in a general state planning and zoning law and the other contained in a statute specific to CEQA — and the two cannot be reconciled, the more specific limitations period pursuant to CEQA prevails.

Petitioners filed a petition for writ of mandate challenging the City of Lafayette’s (City’s) approval of a letter agreement allowing a public utility company to remove trees without obtaining a permit. City filed a demurrer, claiming that the petition was time-barred under the 90-day limitations period applicable to zoning and planning decisions under state law. The trial court agreed, sustaining the demurrer without leave to amend. Petitioners appealed.

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Kimberly D. Farbota, and Natalie C. Rogers

In an unpublished opinion issued May 3, 2018, Endangered Habitats League, Inc. v. City of San Marcos, Case No. D072404, the California Court of Appeal determined that the Endangered Habitats League (Petitioner) substantially complied with procedural provisions of CEQA that require a petitioner to file a written request for a hearing, and the Court of Appeal reversed the trial court’s decision to dismiss Petitioner’s suit.

In summary, the court determined:

  • An oral request for a hearing on the merits of a CEQA petition, followed by written notice to all parties, fulfills the objectives of CEQA’s procedural requirement that a petitioner file a written request for a hearing, such that the substantial compliance doctrine applies.

The trial court dismissed the action based on its belief that the court was foreclosed from applying the substantial compliance doctrine to CEQA’s procedural requirements. Petitioner had orally requested a hearing on the merits of its CEQA action, provided timely written notice to City of San Marcos (City) and the real parties in interest (Real Parties). Petitioner had additionally filed and served a declaration attesting to the request for hearing, but had failed to file a document entitled, “request for a hearing.” Petitioner appealed the dismissal.

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, Lauren Glaser, and Natalie C. Rogers

In an unpublished opinion issued June 19, 2018, Center for Biological Diversity v. County of Los Angeles, Case No. B284427, the California Court of Appeal rejected the Center for Biological Diversity’s (Petitioner) appeal and affirmed the trial court’s denial of a petition for writ of mandate to require the County of Los Angeles (County) to set aside its approval of the modified Antelope Valley Area Plan (Plan) and certification of a program environmental impact report (EIR).

In summary, the court determined:

  • When modifications to an area plan do not constitute “significant new information” or “substantial changes” as compared to the original area plan, an agency need not revise the EIR before certification, recirculate the EIR, prepare a subsequent or supplemental EIR, or prepare an addendum to the EIR.
  • When modifications to a plan do not require an agency to recirculate an EIR, or prepare a supplemental EIR or addendum, the agency is not required to make further CEQA findings or provide an updated statement of overriding considerations.

Petitioner sought a writ of mandate to compel the County to set aside its approval of the modified Plan and certification of the EIR. The trial court denied the petition, finding that the modifications at issue were not significant and that the EIR’s findings related to project impacts remained valid. The Court of Appeal affirmed the trial court’s denial of the petition.

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, and Christopher Adam Martinez

In an unpublished opinion issued October 22, 2018, Tennis Club Preservation Society v. City of Palm Springs, Case No. E068896, the California Court of Appeal affirmed the trial court’s decision dismissing the Tennis Club Preservation Society’s (Petitioner’s) petition seeking to enjoin the City of Palm Springs (City) from issuing building and other permits for Phase III of a proposed development (Project) by real parties in interest John Wessman and Baristo Group, LLC (collectively, Developer). In summary, the court determined:

  • The doctrine of laches prevents the Petitioner’s claim that the Phase III plan violates the mitigated negative declaration’s (MND’s) mitigation measures because the Phase III plan conforms with the plans approved 15 years prior.
  • The Project is not a phased development for the purposes of a local ordinance such that planning commission review and approval would be required prior to further development.

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Christopher W. Garrett, Daniel P. Brunton, James A. Erselius, and Christopher Adam Martinez

In an unpublished opinion issued October 22, 2018, Tennis Club Preservation Society v. City of Palm Springs, Case No. E068896, the California Court of Appeal affirmed the trial court’s decision dismissing the Tennis Club Preservation Society’s (Petitioner’s) petition seeking to enjoin the City of Palm Springs (City) from issuing building and other permits for Phase III of a proposed development (Project) by real parties in interest John Wessman and Baristo Group, LLC (collectively, Developer). In summary, the court determined:

  • The doctrine of laches prevents the Petitioner’s claim that the Phase III plan violates the mitigated negative declaration’s (MND’s) mitigation measures because the Phase III plan conforms with the plans approved 15 years prior.
  • The Project is not a phased development for the purposes of a local ordinance such that planning commission review and approval would be required prior to further development.

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

By Lucas I. Quass, Peter J. Gutierrez, and Roopika Subramanian

In a partially published opinion issued September 18, 2018, Atwell v. City of Rohnert Park, Case No. SCV256891, the California Court of Appeal affirmed the trial court’s judgment that the petition for writ of mandate challenging the City of Rohnert Park’s (City’s) approval of a Walmart expansion project (the Project) was barred by res judicata because a prior petition challenging City’s initial approval raised the same claim of inconsistency with City’s General Plan. In summary, the court held:

  • In determining whether two challenges constitute the same cause of action under the doctrine of res judicata, if a subsequent claim is based on a project proposal that has not changed since the prior action, then a city’s approval will only raise a new issue or injury if the city included new or revised conditions or measures that are at issue in the subsequent petition.

In 2015, Petitioner Nancy Atwell (Petitioner) filed a petition for writ of mandate seeking an order to vacate City’s project approvals alleging inconsistency with the General Plan. After a briefing on the merits was complete, City filed a motion for judgment on the pleadings, asserting that Petitioner’s claims were barred by the doctrine of res judicata. The trial court concluded that the petition was barred by res judicata and the statute of limitations, and that substantial evidence supported the City Council’s determination that the Project complied with the General Plan.

By Kimberly D. Farbota, Jennifer K. Roy, and Christopher Garrett

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

In an unpublished opinion issued August 28, 2018, Forest Preservation Society v. Department of Forestry and Fire Protection, Case. No. SCUK-CVPT-15-66284, the California Court of Appeal affirmed the trial court’s judgment and upheld the California Department of Forestry and Fire Protection’s (Cal Fire’s or Department’s) approval of a Timber Harvest Plan (THP 80) proposed by real party in interest Mendocino Redwood Company (MRC). Petitioner Forest Preservation Society (Petitioner) requested for writ of mandate, arguing that the Department:

  • Used an improper baseline for evaluating the impacts of THP 80 on climate change
  • Showed no substantial evidence to support its finding that THP 80 would not significantly impact climate change
  • Failed to fulfill its duty to create an enforceable mitigation and monitoring plan to alleviate the impacts on climate change

The trial court rejected these arguments and denied the petition, and the Court of Appeal upheld the denial. In summary, the Court of Appeal determined:

  • The Department did not abuse its discretion by relying on the California Air Resources Board’s Climate Change Scoping Plan — rather than the state’s 2020 and 2050 greenhouse gas (GHG) emission reduction targets — as the threshold of significance for evaluating the cumulative impacts on climate change resulting from project-related GHG emissions.
  • Substantial evidence, in the form of analyses showing that growth was scheduled to outpace logging across MRC’s ownership, supported the Department’s finding that the project’s cumulative impacts on global warming would be insignificant.
  • The Department does not have a duty to enforce mitigation and monitoring of potential impacts on climate change if there are no significant cumulative impacts. Additionally, THP 80 requires that all future MRC timber-harvesting plans and projects be subject to environmental review.

By Christopher W. Garrett, Daniel P. Brunton, Jennifer K. Roy and Derek Galey

CEQA Case Report: Understanding the Judicial Landscape for Development[i]

In an unpublished opinion issued September 14, 2018, Inland Oversight Comm. v. City of San Bernardino, Case No. E064836, the California Court of Appeal affirmed the trial court’s decision dismissing the Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association’s (HOA’s) (collectively, Petitioners’) appeal challenging the City of San Bernardino’s (City’s) approval of real party in interest First American Title Insurance Company’s (Developer’s) changes to a proposed development. In summary, the court determined:

  • In the CEQA context, the doctrine of res judicata applies if two actions involve the same episode of purported noncompliance.
  • Adequacy of representation for privity purposes is measured by inference, in other words, examining whether the party in the suit which is asserted to have a preclusive effect had the same interest as the party to be precluded, and whether that party had a strong motive to assert that interest.
  • The Water Code does not require a water supply assessment if a proposed development is not subject to CEQA review.

CEQA Case Report: Understanding the Judicial Landscape for Development[I]

By Winston P. Stromberg, Lucas Quass and Christopher Adam Martinez

In an opinion published on August 9, 2018, Protect Niles v. City of Fremont, Case No. A151645, the First Appellate District of the California Court of Appeal affirmed the trial court’s issuance of a writ of mandate ordering the City of Fremont (the City) to overturn a Mitigated Negative Declaration (MND) and prepare an Environmental Impact Report (EIR) for an 85-unit residential and retail development in a historical district (the Project).

In summary, the court determined:

  • A project’s visual impact on an officially designated historical district is appropriate to review as a potential aesthetic impact under CEQA.
  • The City’s Historical Architectural Review Board members’ collective opinions about the compatibility of the Project with the Niles Historical Overlay District are substantial evidence of the Project’s potentially significant aesthetic impacts.
  • Residents’ personal observations of traffic conditions where they live and commute may constitute substantial evidence, even if residents’ accounts contradict the conclusions of a professional traffic study.