Trenton Threatened Skies, Inc. et al v. FAA

Trenton Threatened Skies, Inc. et al v. FAA
(3rd Cir. 2024) 90 F.4th 122

The Trenton Threatened Skies, Inc. v. FAA decision involves Mercer County, which owns and operates Trenton-Mercer Airport in New Jersey. The airport, as it stands, is a two-runway airport that has offered commercial service from Frontier Airlines since 2013. The airport’s aging terminal building does not comply with ADA standards or TSA requirements and has other various inadequacies due to spatial limitations.

Mercer County proposed a new terminal building for its airport in 2018, aiming to address the identified deficiencies. The new terminal design would serve as a complete replacement structure for the existing terminal and would include expanded facilities, enhanced concessions, and improved security measures. Notably, the new terminal would provide the same number of gates and aircraft parking spaces as the existing terminal.

The FAA prepared an environmental assessment (EA) for the airport terminal project, considering numerous alternatives and ultimately determining that the selected terminal design offered enhanced energy efficiency at a lower cost. In brief summary, the EA concluded that the project’s construction emissions would be below USEPA thresholds, and noise impacts would not be significant, in part due to compliance with the local noise control ordinance. The FAA issued a Finding of No Significant Impact (FONSI) in March 2022, approving the new terminal project. The petitioners sought review of the FONSI decision in May 2022, leading to the decision summarized herein, in which the U.S. Court of Appeals, Third District, upheld all challenged aspects of the FAA’s analysis and decision-making.

The FAA Did Not Violate NEPA by Relying on False Premises or Inaccurate or False Information

The petitioners argued the FONSI was flawed because it was based on false premises or inaccurate information. They argued the FAA incorrectly determined that the proposed new terminal would not expand the airport’s capacity and would not induce air traffic growth.

However, the FAA concluded the new terminal would not induce growth based on cited air traffic forecasts that predicted substantial increases regardless of the new terminal. Additionally, as noted above, the FAA considered that the new terminal would have the same number of gates and aircraft parking spaces as the existing terminal. The Court accorded deference to the FAA’s demand forecasts and fact-based determinations.

The petitioners relatedly argued the FAA relied on false information, referring the Court to an EA from 2002 that acknowledged an increase in the number of gates at the airport was considered at one point in time. The FAA countered by underscoring the petitioners were looking at outdated information and could not challenge prior actions not identified in their petition for review. The Court agreed with the FAA, observing that “the [Administrative Procedure Act] allows challenges to discrete agency action, but not broad challenges to the administration of an entire program.”

The FAA Did Not Violate NEPA by Failing to Consider the Cumulative Impact of Past Actions at the Airport or by Segmenting the Project

The petitioners claimed the FAA violated NEPA by not considering the cumulative impact of its past actions at the airport, and alleged improper segmentation of the airport terminal project from other pending airport improvement projects. As background, NEPA regulations require agencies to evaluate connected, cumulative, and similar actions in the same impact statement. The petitioners argued the FAA segmented the review of the new terminal from various other projects at the airport that collectively would expand it, claiming that such projects shared economic interdependence, common timing and geographic proximity. The Court rejected the petitioners’ arguments, applying the independent utility test, which focuses on whether segmented projects have independent utility (i.e., would take place in the absence of the other).

In its EA, the FAA appropriately considered past, present, and foreseeable future actions at the airport, including runway rehabilitation, taxiway reconstruction, parking lot construction, and various other projects. The FAA concluded the impacts of the new terminal, even when combined with other projects, would not be significant. The Court affirmed the FAA’s determination, stating the new terminal had independent utility due to deficiencies in the current terminal and the forecasted increase in passenger trips. The Court rejected the petitioners’ claims, stating the FAA reasonably exercised its discretion in evaluating the impacts of past actions on the project.

The FAA Did Not Violate NEPA’s Environmental Justice Requirements

In brief, the Court affirmed the FAA’s decision to consider the environmental justice implications of the airport terminal project via reference to census tract data, in lieu of the petitioners’ argument that census block data be used.  The Court also found reasonable the FAA’s decision to utilize the USEPA’s Environmental Justice Screening and Mapping Tool for purposes of its analysis.

The FAA Did Not Violate NEPA by Failing to Perform a Health Risk Assessment as Part of its Environmental Assessment

The petitioners argued the FAA violated NEPA by not conducting a health risk assessment. NEPA aims to promote the health and welfare of people, requiring disclosure of significant health and environmental consequences of proposed actions. However, NEPA does not mandate assessing every impact, only those on the environment directly caused by the proposed action. The FAA determined that there was no close causal relationship between environmental changes and potential health effects on surrounding communities due to mitigation measures. The Court found the FAA acted reasonably in deciding not to conduct a health risk assessment, as it considered the data needed “to make an informed decision that adequately took account of the important environmental concerns.”

In closing, the Trenton Threatened Skies, Inc. decision affirms the adequacy of the record of evidence and analysis developed by the FAA to support its issuance of a FONSI for a much-needed replacement project for an aging terminal facility at Trenton-Mercer Airport.  In upholding the FAA’s analysis, the Third District applied well-established legal principles and rubrics associated with the standard of review applicable to NEPA proceedings.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

A Tale of Two Climate Action Plans within Southern California

This past year, both the County of San Diego and the County of Los Angeles have unveiled ambitious Climate Action Plans (CAPs) that mark steps in California’s drive towards environmental sustainability. These plans, while tailored to their respective regional needs and capabilities, share a common goal: to substantially reduce greenhouse gas (GHG) emissions in alignment with state targets. This article discusses the intricate details of both counties’ CAPs, focusing on their reduction targets, the role of carbon offsets, and the innovative off-site reduction programs they pursue. Furthermore, it examines how each plan not only addresses current environmental challenges but also lays foundation for future project-specific GHG emission analyses necessary for compliance with the California Environmental Quality Act (CEQA).

The iteration of San Diego’s draft 2024 Climate Action Plan (dated October 2023) considered in this discussion can be found here. Additionally, the applicable iteration of Los Angeles’ draft 2045 Climate Action Plan (dated March 2023) can be found here.

Status of Each Plan’s Processing

County of San Diego

In October 2023, the County of San Diego released its Draft Climate Action Plan (San Diego CAP), which sets forth a framework to reduce GHG emissions and achieve a goal of net zero carbon emission by 2045. The plan sets forth nine strategies, 21 measures, and 70 actions that the County must take to reduce GHG emissions from five sectors: Built Environment and Transportation; Energy; Solid Waste; Water and Wastewater; and Agriculture and Conservation. This plan represents the County’s third attempt at developing a viable CAP, following extensive controversy and litigation associated with its 2012 and 2018 CAPs.

The public has been invited to review the draft CAP and Draft Supplemental Environmental Impact Report (Draft SEIR) for a period from October 26, 2023 to January 5, 2024, and provide feedback. The County currently anticipates conducting public hearings on the plan before its Board of Supervisors in the fall of 2024.

County of Los Angeles

The Los Angeles County 2045 Climate Action Plan (Los Angeles CAP) represents the region’s strategy to align with the objectives of the Paris Agreement and to attain a carbon-neutral status for unincorporated areas. The 2045 CAP includes 10 strategies and 25 measures that, when combined, achieve all three of the GHG emissions reduction targets for 2030, 2035, and 2045. This plan is an extension and enhancement of the efforts initiated in the Unincorporated Los Angeles County Community Climate Action Plan 2020. This earlier plan, which was adopted in October 2015, formed a part of the Air Quality Element within the broader Los Angeles County General Plan for 2035.

The revised draft of the Los Angeles CAP was made available for public review from March 16 through May 15, 2023. Comments received from the previous public review in 2022 were considered during the revision process.

On November 15, 2023, Los Angeles County’s Regional Planning Commission (RPC) convened to discuss the 2045 CAP. The meeting saw participation from seven community speakers representing various organizations, such as the Building Industry Association, Los Angeles County Business Federation, Endangered Habitats League, Urban Environmentalists, and several nonprofit groups aligned with industry and workers’ unions.

A significant point of contention during the November 2023 public hearing was a proposal made by speakers representing the Building Industry Association, Los Angeles Business Federation, and the Los Angeles Homeowners Federation to delay approval of the 2045 CAP by one calendar year in order to conduct an extensive economic impact analysis. Critics emphasized concerns over the County’s capability to achieve the ambitious target of creating 300 jobs per acre, which was identified as a performance objective under CAP Measure T2 (Develop Land Use Plans Addressing Jobs-Housing Balance and Increase Mixed Use). On the other hand, supporters of the CAP argued against the delay, suggesting that an economic impact analysis would be an unnecessary and costly venture. They pointed out that technological and infrastructural advancements would naturally evolve to support the ambitious goals of the CAP. The proposal was not approved by the RPC.

At the conclusion of the public hearing, a motion was made to recommend certification of the final environmental impact report for the 2045 CAP, along with the adoption of necessary findings, statements of overriding considerations, and a mitigation monitoring and reporting program. This motion also included a recommendation from the RPC for the Board of Supervisors to approve the CAP, along with amendments to the air quality element and its implementation program. The RPC voted unanimously in favor of these motions, marking a significant step forward in the County’s environmental planning and sustainability efforts.

The County will conduct public hearings on the 2045 Plan before its Board of Supervisors, presumably in the coming calendar year.

Climate Action Plan Reduction Targets

County of San Diego

The San Diego CAP sets forth ambitious targets for reducing GHG emissions, aiming for a significant decrease from the levels recorded in 2019. By 2030, the plan outlines a goal to achieve a 43.6% reduction from 2019 levels, marking a substantial step towards environmental sustainability. By 2045, it sets an objective to nearly halve the emissions again, targeting an 85.4% reduction from 2019 levels. The plan also identifies an “aspirational goal” of net zero emissions by 2045.

County of Los Angeles

The Los Angeles CAP sets forth a series of progressive targets aimed at reducing GHG emissions over the next few decades. Initially, the plan targets a 40% reduction in GHG emissions by 2030, using 2015 as the baseline year. This ambitious goal is just the first step, as the plan further escalates its objectives. By 2035, it aims to cut emissions by 50% below the 2015 levels. The plan’s long-term vision culminates in an even more substantial target: by 2045, it aims to achieve an 83% reduction in GHG emissions compared to 2015 levels. The plan also identifies an “aspirational goal” of achieving carbon neutrality by 2045.

Carbon Offset Options

County of San Diego

The San Diego County Board of Supervisors approved policy recommendations to guide the preparation of the San Diego CAP on January 13, 2021. Those recommendations directed the Chief Administrative Officer to develop a CAP that does not rely on the purchase of carbon offsets to meet the plan’s emission reduction targets. Therefore, the San Diego CAP does not rely on or discuss the utilization of carbon offsets.

County of Los Angeles

The Los Angeles CAP, on the other hand, discusses that carbon offsets are likely needed to achieve the plan’s long-term targets and goals. The 2045 CAP itself does not establish or implement a carbon offset/credit program, but rather discusses the possible feasibility of an offset program in the event that the strategies and measures in the plan are insufficient to attain the County’s carbon neutrality goal (see Measure ES5: Establish GHG Requirements for New Development). As contemplated within the Los Angeles CAP, such a program would consider the use of carbon offsets from outside of the boundaries of unincorporated County areas.

Notably, the CAP does not currently permit carbon offset credits to be used as alternative project emissions reduction measures for new development (see Measure ES5 in the 2045 CAP, as well as Appendix F thereto). Rather, the offset program would be considered for potential implementation later, and only after completion of the feasibility study.

Availability of Off-Site Reduction Programs

County of San Diego

In its current draft, the San Diego CAP does not set forth provisions for off-site carbon reduction strategies that can be utilized by project applicants processing CEQA compliance documents with the County. This exclusion is noteworthy, given the evolving landscape of environmental regulation and the increasing emphasis on comprehensive approaches to mitigate GHG emissions. Presently, the plan is in the preliminary stages of public scrutiny and comment, and it is reasonable to anticipate substantive revisions based on the feedback. As the CAP progresses towards final approval, stakeholders should closely monitor these developments, understanding that the final iteration of the San Diego CAP could significantly differ from its present form.

County of Los Angeles

In contrast, the Los Angeles CAP aims to establish an Offsite GHG Reduction Program (Offsite Program) as a pathway for new developments to comply with the plan and to finance programs that reduce GHG emissions in the built environment (see Action ES5.4, as well as Section F.4 of Appendix F to the 2045 CAP). This Offsite Program would work alongside the 2045 CAP Consistency Checklist, described in detail below, allowing projects to propose alternative GHG reduction measures not encompassed by measures and strategies in the checklist. The offsite reduction measures must be additional, meaning they are not required by law and would not have happened but for the requirements placed on the project by the 2045 CAP Checklist, and be located within the boundaries of unincorporated Los Angeles County.

Of note, the California Air Resources Board (CARB) supports off-site GHG mitigation for projects that have implemented all feasible onsite GHG reduction measures but still cannot reduce their impact to a less-than-significant level. The Offsite Program aims to align with this CARB guidance by facilitating local, off-site direct GHG reduction strategies. The program is built to encompass reduction activities included in the 2045 CAP measures and reduction activities not included in the 2045 CAP measures. For offsite reduction activities already included in the CAP, a project would need to go beyond, or accelerate measures or actions already identified in the CAP by providing additional funding to the program. For offsite reduction activities not included in the CAP, a project could fund programs for implementation of new technologies or new emission reduction measures.

Under the Los Angeles CAP, all offsite reduction activities must adhere to six stringent standards to be considered environmentally sound. These standards mirror those employed by CARB under its Cap-and-Trade Program and require that GHG reductions achieved are real, permanent, quantifiable, verifiable, enforceable and additional.

The proposed process for utilizing the Offsite Program as an alternative GHG reduction measure includes several steps. Applicants must provide evidence of meeting the required GHG reduction amount, demonstrate compliance with all six standards, obtain necessary permits and approvals, submit timing and monitoring documentation, and disclose the impacts of any offsite projects proposed for funding or implementation. This is only a framework for the program as the actual program will be developed after the 2045 CAP is adopted.

Streamlining Subsequent CEQA Analyses

County of San Diego

The San Diego CAP is intended to be used for future project-specific GHG emissions analyses by being prepared consistent with the tiering and streamlining provisions of Section 15183.5 of the CEQA Guidelines.

The San Diego CAP’s “Part 6 Consistency Checklist” is a comprehensive guide designed to align with California’s 2022 Scoping Plan and legislative GHG reduction targets for 2030 and 2045. Additionally, it includes modifications to the County of San Diego 2011 General Plan Update (GPU) to focus on achieving net zero GHG emissions by 2045, highlighting the County’s commitment to environmental sustainability and regulatory compliance. The Plan uses a two-step process to distinguish between projects to determine if they are consistent or inconsistent with the CAP:

Step 1 of the Checklist confirms whether a project aligns with the County’s future plans for growth and development. To do this, first, the project needs to show that it fits with the General Plan’s vision for the region. Every project must prove that it is in line with the General Plan’s categories for different regions and the types of land uses it allows. This includes making sure the project matches the kinds of buildings and activities that are allowed in that area, as well as how dense and intense the development can be, according to the Zoning Ordinance.

Step 2 of the Checklist confirms whether a project is consistent with the CAP consistency requirements, including any necessary demonstration as to why such requirements are not applicable.  The CAP requirements are split into two categories, one set that applies to privately-initiated projects and the second set that applies to County-initiated projects. To be considered in compliance with the CAP consistency Requirements for Privately Initiated Projects, the project must comply with the County’s Code of Regulatory Ordinances, Active Transportation Plan, Transportation Demand Management, Landscaping Ordinance, the Native Landscape Program.

County of Los Angeles

The Los Angeles CAP also is structured to constitute a qualified GHG emissions reduction plan under CEQA. Future non-CEQA-exempt projects requiring discretionary approvals may demonstrate consistency with the 2045 CAP if they are consistent with the General Plan, the 2045 CAP’s future growth projections, and the GHG emissions reduction measures. Projects consistent with the CAP would not require additional GHG emissions analysis or mitigation under CEQA Guidelines Section 15183.5(b)(2), provided that the project’s environmental document identifies 2045 CAP requirements that are applicable to the project, and, for those requirements that are not binding or enforceable, incorporates these requirements as mitigation measures.

The Los Angeles CAP Consistency Checklist provides individual projects with the opportunity to demonstrate that they are reducing GHG emissions with four steps. Step one is to determine if the proposed project is consistent with the General Plan. The proposed project must be consistent with the existing land use designation of the Land Use Element and the 2021-2029 Housing Element. If the proposed project is not consistent with both elements, the project is not consistent with the general plan and may not streamline its GHG impact analysis using the CAP. Like the San Diego CAP checklist, therefore, this consistency program does not apply to projects requiring a General Plan Amendment.

The second step allows for screening out of the checklist all together if the project would achieve net-zero GHG emission compared to existing on-site development at the project site. The third step ensures the proposed project demonstrates consistency with the CAP requirements in terms of energy supply, transportation, and building energy and water. Lastly, the fourth step includes explaining if the project proposes alternative GHG emission reductions outside of those included in the CAP requirements.

Conclusion

When comparing the efforts of these two Southern California counties, both the San Diego and Los Angeles CAPs are pursuing considerable GHG emissions reduction targets. San Diego has a firm stance against using carbon offsets, while Los Angeles is open to the idea of utilizing carbon offsets, especially in the long term. Similarly, while San Diego has not yet chosen to implement any sort of off-site reduction program, Los Angeles is currently working to achieve an off-site reduction program.

Both counties are using their CAPs to streamline subsequent project-specific CEQA analysis for projects consistent with the jurisdiction’s land use framework, employing consistency checklists as tools to integrate CAP measures into project planning and development. This approach not only facilitates compliance with environmental regulations but also aligns projects with broader sustainability goals.

As neither CAP has been formally adopted by the ultimate decision-making body within each county’s jurisdiction (the Board of Supervisors) and as each CAP remains the subject of ongoing administrative proceedings, interested stakeholders should continue to monitor the development and status of these CAPs.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

EIR Inadequate for Failing to Properly Analyze Noise Impacts of University Housing on Surrounding Neighborhoods

Make UC a Good Neighbor v. Regents of University of California
(2023) (Case No. A165451)

The California Court of Appeal for the First Appellate District has granted a writ of mandate in response to a lawsuit challenging an environmental impact report (“EIR”) prepared under the California Environmental Quality Act (“CEQA”) for the University of California, Berkeley’s long-range development plan (“LRDP”) and its immediate plan to construct student housing at People’s Park. In its decision, Make UC a Good Neighbor v. Regents of University of California, 2023 WL 2205638 (February 24, 2023), the Court rejected three of Petitioners’ arguments but found merit with two, holding: (1) the EIR failed to consider alternative locations for the student housing project; and (2) the EIR failed to assess potential noise impacts associated with loud student parties in residential neighborhoods.

Petitioners first argued the EIR failed to analyze an alternative to the University’s LRDP that incorporated limited student enrollment. The Court disagreed. Lead agencies are required under CEQA to consider a reasonable range of project alternatives. Generally, courts will defer to the agency’s choice and analysis of project alternatives. The University explained it did not consider an alternative that would limit student enrolment because student enrollment involves an entirely different and complex annual process; and this LRDP would not set, increase, decrease, or otherwise determine student enrollment whatsoever.

Despite finding no issue with the University’s alternatives analysis with respect to its LRDP, the Court did find the EIR’s alternatives analysis for the student housing project was inadequate. Specifically, Petitioners argued the EIR’s alternatives analysis for the student housing project was inadequate because it failed to consider an alternative location for the housing project. The student housing project was proposed to be located at People’s Park – a “historic landmark and the well-known locus of political activity and protest” at the University. At least in part for that reason, the Court agreed with Petitioners, holding the EIR failed to provide a sufficient explanation for its refusal to consider alternative project locations. Notably, the Court did not hold the EIR was required to consider alternative locations for the project; but, the EIR did need to at least provide a better reason for not considering other locations for the project.

Petitioners then argued the LRDP was improperly piecemealed because it limited its scope to the immediate campus, excluding certain properties located farther away. Piecemealing addresses the agency’s duty to examine an entire project, not smaller parts of one larger project. The Court rejected Petitioners’ argument on this point, finding it reasonable for the University to use one plan to analyze the current geographic portion of the University and another for the offsite properties.

Next, in what is the most controversial portion of the Court’s ruling, the Court agreed with Petitioners’ argument the EIR failed to analyze the potential noise impacts from student parties in residential areas near the campus. The University conceded that CEQA noise evaluations include noise related to crowds of people that may disturb neighboring residents. That concession aside, the EIR did not analyze whether parties associated with increased student enrollment would create a significant impact on the environment. The University declined to analyze the issue stating it would be “speculative to assume the addition of students would generate substantial late night noise impacts simply because they are students.”

When considering this issue, and because the EIR did not analyze whether noisy parties would be a significant environmental effect of the project, the Court utilized the fair argument standard, which asks whether there is a fair argument, based on substantial evidence in the record as a whole, that there may be a significant noise impact from student parties. This standard is a very low threshold and usually results in favor of conducting environmental review. In this case, the record contained “quite a bit of proper evidence” that noise in residential areas from student parties represents a “longstanding” and “excessive” issue, including evidence in the record that the City had declared noise from student parties to be a public nuisance. Under the fair argument standard, the Court concluded, “[g]iven the long track record of loud student parties that violate the city’s noise ordinances (the threshold for significance), there is a reasonable possibility that adding thousands more students to these same residential neighborhoods would make the problem worse.”

Finally, Petitioners challenged the EIR’s population growth analysis on two fronts. First, they argued the EIR’s mitigation for population growth was unenforceable. The mitigation measure at issue requires the University to provide the City and regional planning agency with summaries of enrollment projections to ensure local and regional planning projections account for the University’s growth. Rejecting Petitioners’ argument, the Court held this measure is enforceable, noting the Court would not presume the City would fail to do the planning and thus violate its own statutorily-required duties. Petitioners also claimed the EIR failed to address displacement of existing residents but the Court rejected this argument as well, explaining social displacement is not considered an environmental impact requiring analysis under CEQA.

As noted above, the Court’s ruling relative to the analysis of noise impacts on the surrounding neighborhoods is controversial and has been met with disapproval by certain constituencies. Looking forward, it appears that a request by the University to the California Supreme Court to review the appellate ruling  is inevitable.[1] The University has 60 days to file its petition to the Supreme Court. If the Supreme Court does grant the petition, the University will seek a decision that overturns the Court of Appeal’s decision, especially its holding establishing a potentially new requirement to analyze noise impacts from student parties when considering student housing projects.

Another interesting development in response to this decision is Assembly Bill (“AB”) 1700, which was introduced by Assembly Member Hoover in February 2023 and proposes to amend CEQA to specify that “population growth, in and of itself, resulting from a housing project and noise impacts of a housing project are not an effect on the environment” for purposes of CEQA analyses. If enacted into law, AB 1700 could limit the practical impacts of the Court of Appeal’s decision.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

[1] See Teresa Watanabe, Court Blocks housing Project At People’s Park, available at https://enewspaper.latimes.com/infinity/article_share.aspx?guid=53495049-ef29-4da0-a221-0c4aa9476d47 [stating the University has declared it will ask the Supreme Court to overturn the Court of Appeal decision].

Procedural and Substantive Case Update: G.I. Industries v. City of Thousand Oaks

G.I. Industries v. City of Thousand Oaks
(2022) 84 Cal.App.5th 814

As previously summarized by this firm, on October 26, 2022, the Court of Appeal in G.I. Industries interpreted the Brown Act to require that the meeting agenda for a regular meeting of a local legislative body explicitly include reference to a CEQA exemption determination, if such a determination is being considered by the legislative body during the course of the meeting. On November 22, 2022, the Court of Appeal issued an order denying rehearing and modifying its original decision. This firm’s summary of the modifications to the Court of Appeal’s decision can be read here.

Most recently, on February 15, 2023, the California Supreme Court took two notable actions. First, the Court denied the petitions for review filed by the real party in interest and the City of Thousand Oaks. Second, the Court issued an order decertifying the decision. This is significant because it means the G.I. Industries decision is no longer citable as legal precedent. That being said, it may still behoove local agencies to clearly reference any CEQA exemption determination on its meeting agenda to avoid any controversy.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

A Victory for Housing, One Project at a Time

Save Lafayette v. City of Lafayette
(2022) (Case No. A164394)

As an early Christmas present to the state’s residents in need of housing, the recent First District California Court of Appeal’s decision in Save Lafayette v. City of Lafayette (A164394) upheld a 315-unit apartment project against CEQA and General Plan consistency challenges. The published portion of the decision confirms that a project subject to the Housing Accountability Act (HAA) is properly analyzed for consistency with the agency’s general plan and zoning standards in effect at the time the project application is deemed complete, even if the general plan or zoning is subsequently updated prior to approval. The opinion brings welcome certainty to housing developers and local agencies alike in an era where housing projects can often take years to process from application to approval.

Factual Background

O’Brien Land Company, LLC’s application to develop a 315-unit apartment project on 22 acres was deemed complete by the City of Lafayette on July 5, 2011. At that time, the City’s General Plan and zoning regulations for the project site allowed multi-family developments with a land use permit. In 2013, the City certified an environmental impact report (EIR) for the project.

Subsequently, the applicant and the City entered into an agreement to explore an alternative, lower-density project for 44 or 45 single-family, detached homes on the site, suspending the apartment project pending the City’s consideration of the alternative project. In August 2015, the City certified a supplemental EIR for the alternative project; approved a General Plan Amendment changing the land use designation for the site from 35 units per acre to 2 units per acre; and, by ordinance, rezoned the site for single-family residential use (R-20).

The 2015 zoning ordinance, however, did not survive a 2018 referendum. Further, a month after the referendum, the City adopted a new ordinance zoning the site Single-family Residential District-65, which provided for single-family housing on lot sizes three times larger than the rejected ordinance required.

The applicant responded by withdrawing its application for the alternative project and requested that the City resume processing of the original apartment project with a few modifications (resumed project). The City determined no supplemental EIR was needed for the resumed project and proceeded to certify an addendum under CEQA. Acknowledging the HAA preempted conflicting City requirements, the City approved the resumed project in August 2020. The City found that the project qualified as a housing development project for very low, low-, or moderate-income households under the HAA and, as a result, was exempt from certain findings the City normally required for the necessary permits.

Save Lafayette challenged the City’s approval of the resumed project, claiming analysis of certain impacts was necessary and a supplemental EIR was required. Save Lafayette also alleged that the resumed project was inconsistent with the City’s current General Plan and zoning requirements. The trial court denied the writ of mandate. The Court of Appeal affirmed.

Disposing of the General Plan and Zoning Consistency Claims
Through Application of the Housing Accountability Act

Save Lafayette argued that the resumed project was inconsistent with the current land use designation and zoning of the site as it was amended in 2018, and that the City erroneously analyzed project consistency with the prior 2011 standards. The court disagreed. Under the HAA, a local agency may not disapprove (or approve in a manner that renders infeasible) a housing development project for very low-, low-, or moderate-income households unless it finds that the project is inconsistent with the zoning ordinance and the general plan land use designation existing at the time the application was deemed complete. The court explained: “O’Brien got a complete project application on file in 2011, and the HAA requires that such a project be assessed against 2011 general plan and zoning standards.”

Save Lafayette argued that the Permit Streamlining Act’s (PSA) time limits deprived the City of the power to act on the application, such that the application must be treated as if it had been resubmitted when the applicant asked the City in 2018 to resume its processing. The court again disagreed. First, Save Lafayette’s interpretation would mean the application was deemed disapproved by operation of law when the City failed to act on it within 180 or 270 days. But the PSA provides the opposite: if an agency fails to timely act, a project is deemed approved. Second, silence in the PSA did not support Save Lafayette’s argument that the application should be deemed withdrawn, disapproved, or resubmitted at a later date if the applicant fails to perfect its “deemed approval” under the statute by providing notice.

Third, Save Lafayette’s argument that the resumed project should be considered a resubmittal was unavailing. Under the PSA, “resubmittal of the application” specifically refers to a resubmittal in response to a notice that an application is incomplete, after which the agency has an additional 30 days to assess the application’s completeness. That was not what occurred; the application was deemed complete in 2011. Fourth, the court explained that if the 2011 application were allowed to be “deemed disapproved,” the argument would conflict with the PSA’s explicit finding requirements for disapproval.

Lastly, the court noted that the PSA should be interpreted in conjunction with the HAA, the purpose of which is to “aggressively confront” the housing crisis and “to significantly increase the approval and construction of new housing for all economic segments of California’s communities by meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.” These considerations weighed in favor of applying the general plan and zoning designations from 2011, rather than from a later date “after the City had twice down-zoned the project site to allow for much less housing development.”

Unpublished CEQA Holdings Resolved in the City’s Favor

In the unpublished part of the decision, the court analyzed, and rejected, Save Lafayette’s CEQA claims. Notable amongst the court’s analysis was its rejection of Save Lafayette’s wildfire and evacuation claims related to developing this housing in a very high fire hazard severity zone (VHFHSZ).

The court initially addressed procedural arguments. First, it declined Save Lafayette’s request to “construe the time limitations in the PSA as creating an implied requirement under CEQA that a project may not be approved when its EIR is more than 270 days old.” Second, the court rejected the argument that the substantial evidence standard of review was inapplicable to the City’s decision to prepare an addendum. That the City did not approve the project when it certified the original EIR was irrelevant to whether a supplemental EIR (SEIR) was or was not needed under CEQA Guidelines section 15162.

On Save Lafayette’s challenge to special-species impact analysis, the court concluded that the EIR adequately provided for mitigation even though its analysis determined no such species were present. Save Lafayette’s biologist’s observations of some special-species on site in 2020 did not qualify as new information that would require an SEIR.

Addressing wildfire and evacuation, the court rejected Save Lafayette’s argument that changed circumstances or new information regarding wildfire impacts required preparation of an SEIR. First, redesignation of the site as a VHFHSZ was not new: the City adopted a resolution redesignating the project site VHFHSZ before the EIR was certified – not after, as Save Lafayette argued. Second, Save Lafayette grossly oversimplified and misread the EIR’s wildfire risk analysis, which concluded impacts would be less than significant based on a number of factors, not the “simple lack of a VHFHSZ designation.”

Third, the court found that the EIR’s failure to indicate the site’s re-designation to a VHFHSZ did not render the project description inadequate. The EIR accurately described the physical conditions in the vicinity of the project, including describing the area as a high-risk zone. The EIR also explained how the risk would be reduced and emergency response and evacuations would not be impaired. The court was “not persuaded that the EIR failed as an informational document because it did not include a quantitative analysis of evacuation times, or because it did not reach the same conclusions as Dr. Zhang” or Dr. Cova, Save Lafayette’s traffic and evacuation consultants. Substantial evidence — including a report by the EIR and addendum preparer that concluded evacuation times would improve with project-added roadway capacity — supported the City’s finding that the EIR’s emergency response and evacuation discussion was adequate and no SEIR was needed.

Tree removal was Save Lafayette’s final argument as to why an SEIR should have been prepared. The court agreed with the City’s determination that the resumed project’s removal of just 10 more trees than was contemplated under the original project, which was mitigated by replanting 68 more replacement trees than the original project, did not give rise to the conditions necessitating an SEIR.

In summary, the Save Lafayette decision is part of a continuing line of cases upholding the intention and integrity of the HAA and affirming that pathways for constructing needed housing do exist.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

Procedural and Substantive Case Update: G.I. Industries v. City of Thousand Oaks

G.I. Industries v. City of Thousand Oaks
(2022) 84 Cal.App.5th 814

On November 22, 2022, the California Court of Appeal for the Second District issued an order denying rehearing and modifying its original G.I. Industries v. City of Thousand Oaks decision, dated October 26, 2022. As previously summarized by this firm, the Court of Appeal in G.I. Industries determined the trial court erred when it sustained demurrers brought by the local agency and real parties in interest, thus dismissing petitioner’s claims. Substantively, G.I. Industries interpreted the Brown Act to require that the meeting agenda for a regular meeting of a local legislative body explicitly include reference to a CEQA exemption determination, if such a determination is being considered by the legislative body during the course of the meeting.

The Second District’s order modifying its October 26 decision included six changes, all of which were relatively minor. The modifications made to the decision were:

  • The addition of a sentence stating local residents would want to know that the City Council was voting at a public meeting on finding whether a CEQA exemption applied to the City’s approval of a solid waste franchise agreement.
  • The removal of a sentence stating, “It is undisputed that the contract at issue here qualifies as a project within the meaning of CEQA.”
  • Clarification that the petitioner alleged that a finding of a CEQA exemption was made by motion and voted on at the City Council meeting. Previously, the decision stated the petition alleged that approval of the CEQA exemption was made by motion and voted on at the meeting. It remains to be seen whether this seemingly small modification will limit application of the Court’s holding (i.e., agenda-listing requirements for CEQA exemptions only apply when legislative body is finding whether an exemption applies versus approving use of an exemption).
  • Clarification that the City, not the City Council, was the lead agency for purposes of CEQA.
  • Modification of its prior conclusion that the petitioner has shown it is entitled to have the CEQA exemption determination declared void to a conclusion the petitioner has alleged sufficient facts that, if proven, would entitle the petitioner to have the CEQA exemption determination be declared void. This modification reflects the appropriate standard when reviewing a demurrer.
  • Amendment of its prior conclusion that the Court need not determine now whether the petitioner is entitled to other relief to a conclusion that the Court need not determine now whether MW may be entitled to other relief. This modification again reflects the appropriate standard when reviewing a demurrer.

Lastly, the real party in interest and respondent each filed a petition for review with the California Supreme Court on December 5, 2022. The Supreme Court has 60 days to grant or deny the petition or order an extension for its determination on the petition. In addition, non-parties to the action, the County of Solano and California State Association of Counties filed a request for depublication of the Court of Appeal decision. The Supreme Court has yet to rule on the request.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

An Arguable Expansion of the Brown Act’s Agenda Requirements for CEQA Exemptions

G.I. Industries v. City of Thousand Oaks
(2022) (Case No. B317201)

On October 26, 2022, the California Court of Appeal for the Second District published its G.I. Industries v. City of Thousand Oaks decision, which arguably expands a previous Court of Appeal ruling, San Joaquin Raptor Rescue Center v. County of Merced (2013) 216 Cal.App.4th 1167 (SJRRC), relative to agenda-listing requirements under the Ralph M. Brown Act (Brown Act) applicable to exemption determinations prepared pursuant to the California Environmental Quality Act (CEQA).

In this case, G.I. Industries, a solid waste management provider, petitioned the trial court for a writ of mandate directing the City of Thousand Oaks (the City) to set aside its approval of a solid waste franchise agreement with Athens Services, as well as the City’s determination that the agreement was exempt from CEQA. G.I. Industries argued the approvals must be set aside because the City violated Government Code section 54954.2 of the Brown Act by approving the CEQA exemption without including the CEQA exemption as an explicitly listed agenda item prior to the City Council meeting. The trial court dismissed G.I. Industries’ claims, but the Court of Appeal reversed, holding section 54954.2 of the Brown Act does require a legislative body of a local agency to include a CEQA finding of exemption as an agenda item prior to consideration of the approval of the CEQA exemption at a public meeting.

On March 4, 2021, the City posted an agenda for its regular City Council meeting held on March 9, 2021. The agenda stated the City would consider awarding the solid waste franchise agreement to Athens Services. The agenda did not state the City would also consider whether the franchise agreement is exempt from CEQA. At the March 9, 2021, meeting, the City Council voted to approve the agreement and also separately determined the agreement was exempt from CEQA.

Section 54954.2 of the Brown Act provides: “At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.” The purpose of the Brown Act is to ensure public agencies conduct their business in a manner that is open and accessible to the public.

Here, the Court of Appeal explains: “the Brown Act applies to the City’s determination that the Athens project is exempt from CEQA. That determination was an item of business transacted at a regular meeting of a local legislative body.” Thus, the business item should have been included on the agenda provided to the public 72 hours prior to the meeting.

The Court of Appeal cited the SJRRC decision, and slightly expanded its holding to the facts present here. In SJRRC, the county planning commission considered whether to approve a subdivision application. In addition, the commission considered whether to adopt the mitigated negative declaration (MND) prepared for the project pursuant to CEQA. The agenda for the commission meeting listed “approval, disapproval, or modification of a subdivision application.” SJRRC held the agenda should have included adoption of the MND in addition to listing possible approval of the project.

Here, the Court of Appeal found no difference between consideration of an MND and consideration of a CEQA exemption for purposes of the Brown Act’s requirements. Indeed, the Court states: “Members of the public are just as entitled to have notice of and an opportunity to participate in a local agency’s determination that a CEQA exemption applies as they are to the agency’s determination that an MND should be issued.”

In addition, the Court was not persuaded by the City’s arguments that CEQA does not require a public hearing to determine whether a project is exempt. The Court concluded its holding is not that a formal public hearing is required to approve a CEQA exemption; rather, the Brown Act does require the exemption be placed on the meeting agenda when the legislative body intends to vote on or discuss a CEQA exemption at a regular meeting.

Overall, the opinion should be noted by the legislative bodies of local agencies who will be called upon to consider whether to approve a CEQA exemption for a project at a public meeting. In such instances, the G.I. Industries decision interprets the Brown Act to require that the meeting agenda expressly and explicitly refer to the CEQA exemption determination as a matter of business before the legislative body.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

Important Lessons on Housing Law Compliance: Trial Court Ruling in Yes in My Backyard v. City of Los Angeles

Yes in My Backyard v. City of Los Angeles
(2022) (Case No. 21STCP03883)

The grant of a writ petition in a Los Angeles trial court ruling, Yes in My Backyard v. City of Los Angeles (issued July 29, 2022), continues the recent signaling from the courts that local public agencies cannot arbitrarily delay or reject housing but must comply with strictly-construed obligations under California housing laws.  While of no precedential value, the court’s careful analysis is informative. First, the 42-page ruling provides a comprehensive summary of key provisions of SB 330, the Housing Accountability Act (HAA), and the Permit Streamlining Act (PSA).  Second, the ruling highlights local agencies’ responsibility to conform their planning processes to, and follow the specific requirements of, state housing regulations, and illustrates the consequences of agencies’ failure to do so.  Third, the ruling clarifies Government Code section 65589.5(j)(4) requires a city to defer to its general plan’s density requirements in determining consistency with applicable zoning standards and criteria, whether or not a property’s zoning is inconsistent with the general plan. And fourth, the ruling’s detailed discussion and analysis of case-specific facts shows how facts often drive the outcome in land use cases.

Proposed Project

Janet Jha proposed a multi-family housing project at her Woodland Hills property, zoned RA-1 per the City’s Municipal Code while also having a Limited Commercial land use designation under the Community Plan/General Plan.  After the City of Los Angeles (City) refused to accept two SB 330 preliminary applications and two project development applications submitted by petitioner, she filed a petition for writ of mandate to compel the City to deem the development application complete and to approve the project.  The court granted the petition and issued a writ deeming the application submitted and complete, but declining to order the City to approve the project.

Claims Under SB 330

A part of the Housing Crisis Act of 2019, SB 330 provides for a new preliminary application process for housing development projects.  The purpose of the SB 330 application is to “freeze or lock into place” development standards in effect on the application submittal date.  A preliminary application is deemed to have been submitted, and neither permits nor requires an affirmative determination by the agency, when the applicant provides 17 specific pieces of information to the agency per Government Code section 65941.1.  Within 180 days from the preliminary application submittal, the applicant shall submit a development project application that includes all the information needed for its processing.  If such application is timely deemed incomplete by the agency within 30 days of submittal, the agency must specify the missing information, and the applicant then has 90 days to provide the requested information or the application will expire.

In Yes in My Backyard, the City repeatedly refused to accept petitioner’s preliminary and development applications even though they contained the information required by SB 330 because the City asserted the project did not comply with the property’s RA-1 zoning.  The court disagreed and found that petitioner formally submitted the SB 330 preliminary application on May 19, 2020, when she provided the statutorily-required information listed in Government Code section 65941.1(a) and paid the requisite fees. The City’s refusal to enter her application into its files did not render the submission informal.  Further, the City failed to carry out its ministerial duty to accept the SB 330 application and violated SB 330 by requesting information beyond the specific list set by state law.  The court also rejected the City’s argument that its acceptance of the preliminary application after petitioner commenced litigation rendered the issue moot. A judicial declaration was needed to give petitioner the benefit of locked-in development standards as of the time the preliminary application was submitted in May 2020.

Claims Under the PSA

The PSA provides strict time limits for agencies to act on an application.  Specifically, Government Code section 65943 requires the City to make a written completeness determination within 30 calendar days of application submittal, or the application “shall be deemed complete.”

With regards to petitioner’s first project application submitted on August 18, 2020, the court agreed with the City that the planner’s August 28, 2020 email constituted a written notice of incompleteness of the application.  However, the second development application submitted in January 2021 purported to address prior deficiencies, and the City’s response to it outside the 30-day window was untimely and in violation of the PSA such that petitioner’s application must be deemed complete.

The court also found that the City violated the PSA when it did not provide for a process to appeal the completeness determination.  Further, when petitioner brought an administrative appeal under a different process, the City’s ruling 178 days-later was too late because the PSA requires a final determination on an appeal within 60 days or the application shall be “deemed complete.” Thus, petitioner’s development application was deemed complete in light of the City’s failure to provide a timely appeal.

Claims Under the HAA

The HAA greatly limits a local government’s ability to deny housing development projects that comply with applicable, objective general plan, zoning, and subdivision standards. Further, Government Code section 65589.5(j)(4) provides a project “is not inconsistent with the applicable zoning code standards and criteria, and shall not require a rezoning, if the housing development project is consistent with objective general plan standards and criteria but the zoning for the project site is inconsistent with the general plan.”

Petitioner contended that section 65589.5(j)(4) mandates a determination of compliance with the City’s zoning code standards and criteria because the project was consistent with General Plan density.  Petitioner argued the City was required to permit the density allowed by the General Plan. The City, on the other hand, argued that section 65589.5(j)(4) required an inconsistency between the zoning and general plan before any requirement is imposed to allow development; it asserted no such inconsistency existed.

Employing rules of statutory construction to the key language in Government Code section 65589.5(j)(4), and after reviewing legislative history for the relevant provisions, the court agreed with petitioner that “section 65589.5(j)(4) requires a city to defer to its general plan’s density requirements whether a property’s zoning is consistent or inconsistent with the general plan.” The court found this interpretation consistent with the Legislature’s directive that the HAA “be interpreted and implemented in a manner to afford the fullest possible weight to the interest of, and the approval and provision of housing.”

Regardless, the court found the property’s zoning inconsistent with the General Plan such that the City must defer to the General Plan density. Under the Community Plan/General Plan, the property can have commercial and multi-family residential uses; but, under its zoning designation (RA-1), such uses are prohibited.  Thus, the City violated the HAA when it disapproved the General Plan-density consistent application and directed petitioner to pursue a rezoning based on the zoning-based inconsistency finding.

In reaching this conclusion, the court rejected the City’s contention that there was no inconsistency between the zoning and Community Plan because the RA-1 zone’s one unit-per-lot limitation was within the 43-unit density allowance of the Limited Commercial designation under the Community Plan.  Relying on a depublished opinion (Warner Ridge Associates v. City of Los Angeles (1991) 2 Cal.App.4th 238) that analyzed and rejected the City’s hierarchy of zoning use theory, the court reiterated that “[n]o reasonable person can seriously believe that a zoning ordinance which prohibits all commercial uses in an area designated in the general plan for commercial uses is ‘consistent’ with the general plan.”  Pursuant to the doctrine of collateral estoppel, the court found the City estopped from arguing its cascading zoning that prohibits an entire category of uses permitted by the general plan is consistent with that plan.

Remedy

Petitioner urged the court to find that the City’s actions in denying the development application were frivolous and in bad faith, necessitating an order of project approval by the City within 60 days.  While the court sided with petitioner in deeming the preliminary and development applications submitted and complete, it did not take the next step under the HAA to order project approval. The City had a “legitimate, if wrong” interpretation of section 65589.5(j)(4).  A writ was issued directing the City to comply with the HAA within 60 days.

Conclusion

Despite the lack of precedential value in the context of litigation, this unpublished trial court ruling is a much-needed reminder for local agencies to revisit their established planning procedures to ensure compliance with state housing laws and to establish proper training for its planning staff on all relevant deadlines and application processes.  Failure to do so may lead to a court finding of “bad faith” under the HAA and its resultant directive to approve the project.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

CARB Study on Entitlement in California to Inform Policy and Process

Earlier this summer, the California Air Resources Board (CARB) released the 136-page Final Report: Examining Entitlement in California to Inform Policy and Process: Advancing Social Equity in Housing Development Patterns (Final Report), detailing findings and analysis from the ongoing Comprehensive Assessment of Land Use Entitlements Study (CALES), and addressing how local land use regulations impact different types of development.[1]  The Final Report’s specific findings are based on an analysis of entitlements-related data for 2014 through 2017 in 16 cities and counties.  Ultimately, the Final Report found that the stringency in local land use regulation correlates to low housing supply and high housing cost: “Our work suggests that the chief regulatory contributor to California’s housing crisis is local governments hindering dense housing via zoning and development approval processes.”

In the Final Report, the analytical steps involved selecting jurisdictions based on housing demand and supply and cost, summarizing local codes, analyzing the approvals, building the approvals dataset, and interviewing key stakeholders such as developers, planners, attorneys, consultants, and community organizations.

Among the conclusions reached in the Final Report are:

  1. Local governments generally make little land available for dense housing (defined as development of five or more residential units).
  2. The local approval process drives the timeframe for project processing, but the number of approval steps does not necessarily increase local timeframes.
  3. Generally speaking, there is no significant difference between the entitlement timeframes and environmental review pathways in urban and exurban areas.
  4. Development projects that involve demolition of existing housing do not always produce more housing units and more affordable housing units, and run the risk of physical and economic displacement.
  5. For environmental review under CEQA, local jurisdictions often make use of tiering, and environmental impact reports are not common.
  6. Litigation is infrequent (“[l]ess than 3% of approved projects were litigated (about 6.9% of all approved units)”) and occurs more often with urban infill and high opportunity residential projects; when project approval is challenged in the court system, litigation adds up to six years to the project processing.[2]

Additionally, the key takeaways and recommendations of the Final Report include:

  1. Local jurisdictions need to scrutinize their laws and demolition data in order to guide meaningful changes in project processing.
  2. Multi-family unit projects are not the only step to increase housing production.
  3. Local jurisdictions have the data on approvals available to create better policies on climate change and housing production.

The summary above provides a high-level review of the Final Report, which contains a tremendous amount of detail and analysis.  The Final Report is available at: https://www.landuseinsights.org/publications-reports/.

[1]           The Final Report was jointly prepared for CARB and the California Environmental Protection Agency by the University of California, Berkeley and University of California, Irvine.

[2]           The Final Report’s conclusion of the insignificant impact of litigation on housing supply and cost stands in seemingly stark contrast with the findings of the Center for Jobs & the Economy’s August 2022 report titled Anti-Housing CEQA Lawsuits Filed in 2020 Challenge Nearly 50% of California’s Annual Housing Production (Anti-Housing Report).  The Anti-Housing Report concludes that the explosion in CEQA lawsuits targeting new housing production (47,999 housing units were targeted by CEQA litigation in 2020), coupled with CEQA-related GHG and VMT prescriptions promulgated at the state level, contribute to housing being too scarce and too expensive.  The Anti-Housing Report is available at: https://centerforjobs.org/ca/special-reports/ceqa-lawsuit.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

The Governor’s Office of Planning and Research Publishes Two New Fire Hazard Planning Advisories

The Governor’s Office of Planning and Research (OPR) recently published two fire hazard planning guidance documents – the Fire Hazard Planning Technical Advisory and the Wildland-Urban Interface (WUI) Planning Guide. The Technical Advisory and Planning Guide, summarized below, are intended to help communities assess fire risks and incorporate effective fire hazard policies into local planning documents.

Fire Hazard Planning Technical Advisory

The Technical Advisory provides an overview of fire hazard risks in California; summarizes relevant federal, state, and local fire regulations and policies; provides fire hazard planning guidance; and lists example fire policies for planning documents, such as general plans.

When it comes to fire hazard planning, the Technical Advisory recommends a three-step approach: (1) outreach and engagement with community and agency groups; (2) preparation of a fire hazard and risk assessment; and (3) development of goals, objectives, policies, and implementation programs to address fire hazards and reduce associated risks. Step 1, Outreach and Engagement should involve engaging tribal governments, residents, business owners, vulnerable community representatives, and other interested parties early in the planning process. Step 2, Fire Hazard and Risk Assessment Preparation will involve data collection such as fire history, topographic characteristics, fuel characteristics, climate and weather, and post-fire hazards so the risk assessment can sufficiently explain existing and future fire-related conditions. The Risk Assessment will also determine the current and projected wildfire risk posed to the area. Finally, Step 3, Policy Development ultimately results in the creation of goals and policies that can be included in general plan elements to address the previously identified fire hazards. For reference, the Technical Advisory ends with a compilation of example fire hazard policies that could be included in general plans.

WUI Planning Guide

The Planning Guide identifies various regulatory and planning tools available to cities and counties to implement fire hazard planning policies.

First, local jurisdictions should be aware of the various state-level regulations addressing fire safety. The California Building Code Standards establish minimum building design and construction standards for buildings in defined WUI areas. The California Fire Code establishes minimum requirements for fire hazard protection, including vegetation and fuel management and defensible space. The State Fire Safe Regulations provide minimum fire safety standards related to emergency access, road standards, water supply reserves, and fuel breaks. Local jurisdictions shall enforce these state standards or adopt their own, more-stringent safety measures.

In addition to implementing state standards, all cities and counties in California located within a designated state responsibility area (SRA) or very high fire hazard severity zone (VHFHSZ) are required to address wildfire hazards and risks in their general plan safety elements. Wildfire hazard policies and programs may also be addressed in land use, housing, transportation, and mobility elements of general plans. Cities and counties can also include wildfire hazard policies and programs in local planning documents such as specific plans, community plans, master plans, and hazard mitigation plans. Further, local jurisdictions can address wildfire hazards through the following avenues:

  • Subdivision Ordinances. Local jurisdictions can implement fire safety measures through subdivision design regulations or as requirements prior to tentative subdivision map or parcel map approval.
  • Zoning Ordinances. Communities can adopt use restrictions or development standards for identified fire hazard zones via zoning ordinances. For example, San Bernardino County adopted a Fire Safety Overlay Zone which requires additional development standards for buildings in these areas.
  • Landscaping, Defensible Space, & Hazard Abatement Ordinances. Local communities can adopt landscaping, defensible space, or hazardous vegetation management ordinances.
  • Post-Disaster Recovery Ordinances. Cities or counties can adopt ordinances that address temporary housing needs, economic development, and other forms of relief for those affected by fire events.
  • Development Agreements. Cities or counties can require more stringent fire management conditions through development agreements with private property owners.
  • Joint Power Agreements. Agreements between agencies is another way to implement fire hazard policies. For example, Marin County along with local districts established the Marin Wildfire Prevention Authority that is tasked with planning, financing, implementing, managing, owning, and operating a countywide agency to prevent and mitigate wildfires in Marin County.
  • Special Taxes and Assessment Districts. Local jurisdictions can set up dedicated sources of funding for wildfire prevention such as fire mitigation, infrastructure improvements, and increase fire services.
  • Home and Defensible Space Assistance Voluntary Programs. Local jurisdictions can plan and implement voluntary programs to help existing homes meet state fire safety standards, such as the building code requirements.
  • Regional Wildfire Management Programs. Cities and counties can implement coordinated wildfire resilience programs. For example, the Tahoe Fire & Fuels Team addresses fire-resilient landscapes in the entire Lake Tahoe Basin area.
  • Growth Management and Land Acquisition Tools. Local jurisdictions can implement strategies to direct development away from wildfire hazard areas. For example, the Town of Windsor Growth Control Ordinance was adopted to establish an urban growth boundary that aims to preserve open space and monitor the town’s residential development.

Overall, OPR’s Fire Hazard Planning Technical Advisory and WUI Planning Guide are two helpful resources for local jurisdictions or for any person wishing to better understand how fire safety policies and programs can be developed and implemented. The full reports can be found at the following links: OPR Fire Hazard Planning Technical Advisory and Wildland-Urban Interface Planning Guide: Examples and Best Practices for California Communities.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]