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

By Christopher W. Garrett, Daniel Brunton, James Erselius, and Derek Galey

In a published decision issued June 12, 2018, County of Ventura v. City of Moorpark, Case No. B282466, the California Court of Appeal rejected part of the County of Ventura and the City of Fillmore’s (Petitioners’) appeal and affirmed the trial court’s decision that a beach restoration project undertaken by Broad Beach Geologic Hazard Abatement District (BBGHAD) and a related settlement agreement with the City of Moorpark (City) were exempt from CEQA review.

In summary, the court determined:

  • Two separate activities can constitute one “project” under CEQA so long as those activities serve a single purpose, have the same proponents, and are inextricably linked.
  • Courts do not balance the policies served by statutory exemptions against the goal of environmental protection because the legislature has already determined that the policy benefits of the exemption outweigh the benefits of environmental review.

The trial court determined that the beach restoration project and the related settlement agreement between BBGHAD and City were a single statutorily exempt project. Petitioners appealed on the grounds that even if the beach restoration was exempt, the settlement represented a separate, non-exempt project that was not properly reviewed under CEQA.

By John Heintz, Lucas Quass, and Steven Mach

On February 2, 2017, the Los Angeles Regional Water Quality Control Board (the Regional Board) approved a Revised Memorandum of Understanding (the 2017 MOU) between the City of Malibu (the City), the Regional Board, and the State Water Resources Control Board (the State Board) to extend the compliance deadlines for the Los Angeles Region Basin Plan amendment prohibiting new discharges from or construction of septic systems in the Malibu Civic Center area (the Basin Plan Prohibition). The 2017 MOU is the second amendment to an MOU initially entered in 2011[i] between the City and the Regional Board that, among other things, adjusted the timing of compliance with the Basin Plan Prohibition.

Background

On November 5, 2009, the Regional Board passed the Basin Plan Prohibition. The Regional Board justified this controversial prohibition by citing the alleged contribution of on-site wastewater discharges to the impairment of water resources in and around Malibu’s Civic Center. The State Board approved the Regional Board-adopted Basin Plan Prohibition on September 21, 2010, and it became effective in December 2010. In addition to prohibiting the development of any new on-site wastewater disposal systems (OWDSs), the Basin Plan Prohibition requires the phasing-out of discharges from existing OWDSs in the Malibu Civic Center area by November 5, 2015 (for commercial dischargers), or by November 5, 2019 (for residential dischargers).