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.


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.


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:

[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:

[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.]

CEQA Lessons on Exhaustion, Alternatives Analysis, and Mitigation Measures

Save the Hill Group v. City of Livermore
(2022) (Case No. A161573)

Save the Hill Group v. City of Livermore, decided March 30, 2022 by the First District of the California Court of Appeal, reminds developers and public agencies that while CEQA is a “meticulous process,” it should be tailored to and cover all the unique project features and unique circumstances surrounding the project site and the jurisdiction.

Relevant Background

This case involves a 31.7-acre project site known as Garaventa Hills in the City of Livermore; the site is zoned for residential development and located adjacent to a wetland preserve.  Together, the project site and the preserve provide habitat for many protected special status species.  The project processing for Garaventa Hills commenced in 2011.  Due to sharp opposition to the project, the site development plan was revised over time to reduce the number of residential units on the site 76 to 44.

The city published a reissued final environmental impact report (RFEIR) in 2018, which informed the public that “the project would result in the permanent removal of 31.78 acres of grasslands with an additional 1.18 acres being temporarily disturbed for construction of the pedestrian bridge and [emergency vehicle access] road.”  In April 2019, the project was approved and the RFEIR certified.  Save the Hill challenged the city’s approval on CEQA grounds; the trial court denied the petition for writ of mandate; and Save the Hill appealed.

The Exhaustion of Remedies

The appellate court reversed the trial court’s rejection of Save the Hill’s no project alternative claims for failure to exhaust administrative remedies, noting that under the exhaustion doctrine, while “bland and general” or “isolated and unelaborated” comments are not sufficient for exhaustion, “less specificity is required to preserve an issue for appeal in an administrative proceeding than in a court proceeding because parties are not generally represented by counsel before administrative bodies.”  The court held that Save the Hill “fairly apprised the agency of their complaints in order to preserve them for appeal” when their representatives and members of the general public commented and inquired about the city’s preservation of the project site as open space, even though those comments were not made in the context of the RFEIR’s discussion of the no project alternative.

The court also found applicable one of the exceptions to the exhaustion doctrine, namely “when the aggrieved party can positively state what the administrative agency’s decision in his particular case would be.”  Even if Save the Hill framed their complaints in the context of the RFEIR’s analysis of the no project alternative, the court held that “the evidence is overwhelming that, had it done so, the result would have been the same: The City would have rejected the group’s proposal and certified the RFEIR.”

Analysis of the No Project Alternative

Next, the court determined that the RFEIR’s analysis of the no project alternative was inadequate because it failed to discuss the funding sources available to the city to purchase the project site for open space.  Under CEQA, the no project alternative is the “existing conditions, supplemented by a reasonable forecast” and its discussion must be “straightforward and intelligible” and “must reflect the analytic route the agency traveled from evidence to action.”

At the public meeting on the project, several councilmembers raised questions about the feasibility of preserving the project site as open space.  In the court’s view, those councilmembers should have been pointed to the discussion of this issue in the RFEIR, but it contained no such discussion, which the court found to be the weakness of the RFEIR to the prejudice of the public and decision-makers.  Specifically, the court held the city should have discussed two settlement agreements, to which the city is a party and which obligated the city to acquire property for open space and provided for conservation funding. The city conceded that the project site would be eligible for conservation funding under the settlement agreements.

The court rejected the city’s argument that preservation of the project site would not be reasonably foreseeable due to the residential zoning of the project site, based on the “noteworthy” acquisition by the city of a nearby property for conservation despite that property’s planned development zoning designation.  As the court noted, while there were “many unknown variables” about the feasibility of acquisition of Garaventa Hills, CEQA requires “some degree of forecasting” and the public agency “must use its best efforts to find out and disclose all that it reasonably can.”  The city failed to do so in this case.  As a result, the court held the RFEIR and the project approval cannot stand.

Vernal Pool Fairy Shrimp and Hydrological Mitigation

The court determined the city’s vernal pool fairy shrimp (VPFS) mitigation to be appropriate, even though Save the Hill abandoned this claim.  The court did not agree, for two reasons, that VPFS mitigation measures were “conditional, requiring implementation only if VPFS are actually found on the Project Site.”  When adopting the mitigation measures, the city assumed VPFS was present even though it was not detected at the project site, and CEQA allows deferral of the adoption of more specific measures to a future date provided overall, specific performance criteria are set (which were, in this case).  Similarly, the court rejected the claim of inadequate mitigation of hydrological impacts to Springtown Alkali Sink because Save the Hill did not dispute the findings of the hydrological expert report.

Mitigation of Permanent Loss of Sensitive Habitat

To offset the permanent loss of 31.78 acres of valuable biodiverse habitat, the city proposed off-site compensatory mitigation at a 2.5:1 to 3:1 ratio for each of the affected species and determined the 85-acre Bluebell site to be appropriate to mitigate the impacts.  Save the Hill took issue with the selection of the Bluebell site arguing that, under the city’s general plan, the Bluebell site is “already protected open space under local law and, thus, cannot make up for the lost habitat.”

However, the court held that there was no dispute that the Bluebell site was suitable for mitigation via a permanent easement, which the general plan does not cover.  And, if the Bluebell site is later determined not to be suitable to mitigate the impacts, the RFEIR allows the city to find and preserve an alternative site.  Lastly, the court noted, citing to Public Resources Code section 21002 and CEQA Guidelines 15370(e), that “CEQA does not require mitigation measures that completely eliminate the environmental impacts of a project” – substantial lessening of a significant impact is sufficient.  As recognized by CEQA and related case law, conservation easements are an acceptable tool to mitigate environmental impacts.  Therefore, the off-site compensatory mitigation was held to be proper.

Lessons Learned

This case is another important reminder that while environmental review under CEQA involves, in large part, the rigid process of checking many boxes, public agencies and developer applicants should be mindful of the unique circumstances surrounding the project’s existing conditions, the history of the site, and the residents’ and jurisdiction’s specific concerns and visions for the area.  Any unique circumstances, no matter how unimportant they may appear to the agency and developer, should be disclosed and analyzed, to fulfill CEQA’s main purpose of transparency and disclosure that are key for informed public discussion and decision-making.

[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.]

Lengthy Court of Appeal Decision Delivers a Mixed-Bag Result for County EIR, But – On Wildfire – A Win

League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer
(2022) (Case No. C087102)

On February 14, 2022, the Court of Appeal for the Third District issued a detailed 123-page opinion addressing two petitions filed under the California Environmental Quality Act (CEQA). One petition was filed by the League to Save Lake Tahoe, Mountain Area Preservation Foundation and Sierra Watch, while the second petition was filed by the California Clean Energy Committee. The petitions challenged a project involving two parcels of land in Placer County consisting of over 7,000 acres of undeveloped coniferous forest, a portion of which are located in a designated very high fire hazard severity zone. The project at issue would rezone areas from one parcel to allow residential and commercial development and designate the entire other parcel as a forest and timberland production zone.

The petitions raised a laundry list of issues under CEQA, ranging from air and water quality to recirculation. The trial court ruled in favor of the County on all claims except one claim regarding the adequacy of the EIR’s analysis of emergency response and evacuation plans. On review, the Court of Appeal reversed the trial court’s evacuation plan finding but found the EIR to be inadequate is several other respects. This summary focuses on the Court of Appeal’s rulings related to evacuation response plans, traffic mitigation, and thresholds of significance.[1]

Evacuation Response Plans

To evaluate the project’s potential impacts to evacuation, the EIR utilized the CEQA Guidelines Appendix G criterion, which asks whether the project would impair implementation or interfere with an adopted emergency evacuation plan. Here, the Placer Operational Area East Side Emergency Evacuation Plan (Placer Emergency Plan), applies to the project area. The Placer Emergency Plan coordinates and assigns responsibilities between federal, state, and local authorities for conducting emergency evacuations in order to facilitate efficient and rapid evacuations. Through its substantive analyses and additional information provided in responses to comments, the EIR concluded that any interference with the Placer Emergency Plan would not be significant for a multitude of reasons. The Court of Appeal affirmed the EIR’s conclusion.

The EIR provided, and the Court cited to the following substantial evidence in support of the less-than-significant impact conclusion:

  • The project would provide emergency vehicle access and each parcel with two ingress and egress routes.
  • The traffic increase caused by the project would not interfere with route 267 as an evacuation route identified under the Placer Evacuation Plan, and the project would not cut off or modify any existing evacuation routes.
  • The project would develop its own fire protection plan and evacuation plan that would complement the Placer Emergency Plan, designate secondary emergency access routes, and describe shelter-in-place procedures in the event evacuation is not advisable.
  • The project would not be cumulatively significant because, although other projects would evacuate to route 267 and local roadways and these roadways may become congested, these conditions would not impede evacuation or result in physical interference with an evacuation plan such that evacuation could not occur. In addition, the project’s primary access roads and emergency vehicle access roads would provide sufficient egress in event of an emergency evacuation.
  • The project’s evacuation plan would enforce laws and regulations that apply to the development to reduce wildfire risk by imposing defensible space, fuel maintenance, and building code requirements and impose additional requirements related to water supply, emergency access, evacuation signage, and public education. Although these measures do not directly impact an evacuation, “they do show the project will take steps to reduce the risks of wildfire and having to evacuate in the first place.”
  • To analyze the project’s potential impacts, the County’s transportation consultants modeled how long it would take for the project to evacuate in the event of a wildfire using route 267 during peak summer tourist season.
  • Although the project will add more people to the area and increase the amount of time to complete an evacuation, “this does not necessarily generate a safety risk.” This is because emergency personnel who direct evacuations track wildfires very closely to monitor when and how to start evacuating communities, and peak occupancy conditions typically do not occur given early planning and other factors.
  • It is impossible to predict how an evacuation will be carried out because evacuations are directed in real time by emergency response personnel.
  • Although the EIR concluded the project would result in a significant traffic impact to route 267, this does not necessarily conflict with the EIR’s separate conclusion the project would not significantly impact route 267 as an evacuation route because “without knowing how the authorities will direct the use of route 267 and the project’s roads in an actual evacuation, it would be speculative to conclude that just because all roads lead to route 267 the impact is significant.”

Petitioners claimed the EIR should have analyzed how much the project would increase evacuation times by; how long it would take residents to evacuate once they reached route 267; and how emergency response times would be affected by a mass evacuation. The Court, though, explained CEQA does not require analysis of speculative impacts, nor does it require an EIR’s analysis to be exhaustive. The Court concluded: “The evidence here indicates that the County did not abuse its discretion in determining its methodology for evaluating the impact to its evacuation plan or selecting the standard of significance, and that substantial evidence supports the EIR’s conclusion. The EIR’s analysis provides a reasonable explanation under modeled circumstances of how the project will affect its residents’ ability to evacuate and emergency responders’ ability to access the area and the site.”


Regarding the project’s potential impacts to traffic, the County concluded the project would result in a significant and unavoidable traffic impact on route 267. The County also concluded there were no feasible mitigation measures beyond payment of a traffic impact fee. Petitioners challenged the latter conclusion and argued the County violated CEQA because it did not review a number of transportation demand management measures that could feasibly mitigate the project’s traffic impacts.

Multiple comments on the draft EIR had recommended specific transportation demand measures to mitigate the project’s traffic impacts. The response to these comments included in the Final EIR summarized the adopted mitigation measures and stated, “no other measures were necessary.”  In its briefing, the County argued the project is already doing “more than its fair share” to support transit and adequately responded to petitioners by describing the project’s transit mitigation.

The Court clarified the issue is not whether the project is doing more than its fair share to support transit, the issue is whether substantial evidence supports the County’s finding that, other than payment of the impact fee, no feasible mitigation measures were identified to reduce the project’s significant impacts on route 267 traffic. The Court concluded this finding was not supported by substantial evidence because the County “does not claim that the suggested measures were infeasible, but the EIR did not consider them as a means to mitigate impacts on route 267.”

While not a new legal concept, as CEQA has long required the adoption of all feasible mitigation to reduce significant impacts, this opinion is a cautionary reminder about the need to explain – with substantial evidence – why facially feasible mitigation strategies recommended during the public review and comment process are not feasible or would be ineffective.

Thresholds of Significance

Petitioners claimed the EIR failed to comply with CEQA because the EIR did not utilize the Tahoe Regional Planning Agency’s (TRPA) adopted threshold of significance to analyze the project’s potential impacts to air and water quality. As background, TRPA regulates development in the Lake Tahoe Basin and has developed environmental thresholds to monitor such development. Rejecting petitioners’ arguments, the Court of Appeal first explained the TRPA is an agency with jurisdiction by law that has authority over some resources that may be impacted by the project. Although the TRPA may inform the lead agency of its performance standards, the lead agency is not required to utilize the TRPA’s thresholds. Rather, the lead agency (in this case, the County) has discretion to determine which thresholds to adopt. For these reasons, the Court concluded the County did not abuse its discretion when it declined to utilize TRPA’s thresholds in its analysis.


Overall, this lengthy opinion addresses a variety of CEQA issues, both procedural and substantive, and provides a thorough summation of relevant CEQA legal standards throughout. Of note, this is one of the few published opinions discussing the validity of an EIR’s analysis of a project’s potential to conflict with emergency and evacuation response plans. In upholding the EIR’s analysis, the Court reminds all that an EIR is not required to analyze every possible scenario and discretion is owed to the lead agency’s chosen methodology where supported by substantial evidence.

[1] The Court of Appeal opinion also addresses CEQA claims related to the EIR’s analysis of air quality, greenhouse gas mitigation, water quality, forest resources, and energy, as well as claims regarding CEQA’s recirculation standards and the Timberland Productivity Act.

[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.]

Residential Development Consistent with Approved Specific Plan: A Viable Solution to the Housing Crisis

Citizens’ Committee to Complete the Refuge v. City of Newark
(2022) (Case No. A162045)

The California Court of Appeal, First Appellate District, delivered a welcomed win for the public agency in Citizens’ Committee to Complete the Refuge v. City of Newark, when it affirmed the trial court’s decision to deny the petition for writ of mandate filed by Citizens’ Committee to Complete the Refuge and Center for Biological Diversity (appellants).  The petition alleged the City of Newark’s non-compliance with the California Environmental Quality Act (CEQA) when it approved a housing development project while relying on prior environmental review completed for an applicable specific plan.

As background, in 2010, the city approved a specific plan for property referred to as Areas 3 and 4 that authorized the development of 1,260 residential units and a golf course.  The city certified an environmental impact report (EIR) prepared for the specific plan, which was challenged.  As a result of the challenge, the city recirculated the EIR (REIR), which clarified that it was providing a program-level analysis of environmental impacts of the Area 4 development based on the impacts of the maximum development scenario, because the final location and design of Area 4 development was not yet known.  The REIR discussed the impacts to the destruction of harvest mouse habitat and called for mitigation of any such impacts, and the impacts of climate change and sea level rise.  In 2015, the REIR was certified, and the specific plan was re-adopted.  In 2016, the city approved a 386-unit development in Area 3.

In 2019, real parties in interest and project applicants submitted a proposed subdivision map for 469 units in certain subareas of Area 4, even though 874 of the 1,260 units approved as part of the specific plan remained to be developed.  The city prepared, circulated for public review, and responded to public comments on a checklist that compared the impacts of the subdivision map to the impacts of the specific plan studied in the REIR.  The city concluded the proposed development was consistent with the specific plan, and there were no changed circumstances or new information that triggered the need for additional environmental review.

Of direct relevance to the court’s evaluation of the city’s action, Government Code section 65457 provides an exemption from CEQA for housing development proposals that implement and are consistent with a specific plan, which exemption was enacted to booster the supply of housing – an important objective during this housing crisis and one that justifies foregoing the additional and repetitive environmental review of certain projects.[1]  Because there was no dispute as to the type of project involved and its consistency with the specific plan, the court limited its analysis under Government Code section 65457 to the question of whether project changes, changed circumstances, or new information triggered the subsequent or supplemental EIR exception of Public Resources Code section 21166 to the Government Code exemption.  The court held the city’s conclusions and analysis were supported by substantial evidence.

The court first rejected appellants’ arguments regarding project changes from the specific plan that would allegedly cause new, significant impacts on the harvest mouse.  The allegedly significant project changes involved not developing all specific plan subareas.  The court reasoned that: (1) developing less than what was studied in the REIR suggested less of an impact, (2) undeveloped areas would continue to provide habitat for harvest mouse, and (3) the mitigation by on-site habitat restoration will address indirect impacts on harvest mouse.

The only project change not addressed in the REIR was that the western sides of the raised and filled developed areas would be armored with riprap.  But, the court underscored that a subsequent or supplemental EIR is only required when “[s]ubstantial changes are proposed in the project which will require major revisions of the environmental impact report” (italics added).  The court found the new use of riprap did not meet this standard due to the lack of any evidence from appellants that the use of riprap would substantially increase project impacts.

Appellants’ next argument on the changed circumstances and new information was based on scientific insights concerning the amount and rate of sea level rise that emerged after the city certified the REIR, with rising sea levels forcing the harvest mouse from its wetland habitat into the developed residential areas, causing the harvest mouse to suffer predation from rats in the riprap and other threats from dogs, cats, people, and cars.  However, even if an EIR was required to analyze the risk that a project could exacerbate the effects of sea level rise by contributing to coastal squeeze and thwarting wetland migration, the court held that these dynamics were not new in relation to this project, so the city did not need to address them in the checklist.  The court chastised appellants, observing that the “time and place” for arguments regarding this issue was long ago and in response to circulation of the REIR, if not the original EIR.

Lastly, the court found appellants’ complaint about the city’s approach to managing flooding from sea level rise, which was presented as a mitigation measure challenge, as misplaced because sea level rise is not an impact on the environment caused by the project and therefore no discussion of the sea level rise impacts on the project was necessary.  The court refused to consider appellants’ new alternative arguments on this point and ultimately took a pragmatic approach to the topic, observing that environmental conditions that may occur far into the future (“between 50 and 80 years from now”) cannot be considered part of the project.  As such, the city was “not required to analyze the impacts of the adaptive pathways” for flood management as part of the project.

This case is an example of a successful application of the Government Code exemption for housing projects consistent with an approved specific plan and should be considered by public agencies as a powerful weapon in their arsenal to tackle the California housing crisis, which is continuing to be exacerbated by the day.

[1] As stated by the court, Government Code section 65457 sets “a higher threshold of review for a residential development consistent with a previously analyzed specific plan than for a project tiered under a program EIR” because the “interest animating Government Code section 65457 is to increase the supply of housing.”

[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.]

Superior Court Finds EIR’s Conclusions Related to Emergency Evacuation Unsupported by Substantial Evidence

Center for Biological Diversity v. County of Lake
(Case No. CV421152)

On January 4, 2022, the County of Lake Superior Court issued its Ruling and Order on Petitions for Writ of Mandate in Center for Biological Diversity v. County of Lake, Case No. CV421152.  As a trial court decision, the ruling and order are not citable legal precedent.  However, the decision is relevant because it arises from one of several cases where the California Attorney General has intervened in pending California Environmental Quality Act (CEQA) lawsuits, primarily to advance arguments relating to wildfire and greenhouse gas (GHG) emissions.

As background, the Center for Biological Diversity filed a petition for writ of mandate challenging the County of Lake’s certification of an environmental impact report (EIR) for what is described by the trial court as a “luxury resort” project in Guenoc Valley, California.[1] The petition argued the EIR for the project was deficient under CEQA on multiple grounds, including emergency evacuation, wildfire risk, greenhouse gas mitigation, water supply, special status plants, and alternatives. The Attorney General intervened in the case, filing its own petition challenging the project EIR on largely similar grounds. Ultimately, the superior court agreed with petitioners on one claim – emergency evacuation.

For context, the project is located is Guenoc Valley, an area in Northern California that was substantially impacted by the 2020 LNU Lightning Complex fires. Hence, although the decision does not specifically mention the LNU Lightning Complex fires, it is no surprise fire issues were a main concern.

The trial court found the EIR failed to properly analyze how the project might exacerbate existing community evacuation risks. The EIR concluded, based on opinions from traffic engineers and fire and law enforcement personnel, that the project’s impacts to existing evacuation plans would be less than significant. The court found two issues with the evidence this conclusion was based on. First, the court found the EIR’s conclusion was more concerned with whether the project’s residents could safely leave the project in the event of a wildfire instead of whether evacuation of residents in the nearby area would be affected by the evacuation of the project’s residents during a wildfire. The court was persuaded by argument advanced by petitioners that a “significant number of wildfire related deaths … occur during attempts to evacuate.”  It linked that concern to the number of new residents the project would bring to the area and underscored the corresponding congestion and delay that would follow on the “same limited routes” used during evacuation.

Second, the court found that the traffic engineers and fire and law enforcement personnel opinions “were not based on any identifiable facts.” The court explained that, although expert opinion supported by facts may constitute substantial evidence, unsubstantiated opinion does not. For these reasons, the court found the EIR’s conclusions regarding emergency evacuation were not supported by substantial evidence.

The court also addressed petitioners’ concerns that the project EIR improperly compressed its analysis of wildfire impacts by wrongly incorporating mitigation measures into the project description.  Specifically, petitioners argued that design elements included in the project’s Wildfire Prevention Plan, such as vegetation management and maintenance of firebreaks, should have been considered separately as mitigation measures, not as project design features. The court disagreed. Instead, the court found the measures were properly considered as design elements because they were not intended to rectify any impacts to the environment caused by the project, rather, they were “meant to avoid impacts to the environment in the first place.”

The petitioners also challenged the use of a carbon credit program as mitigation, arguing the mitigation was ineffective and did not include sufficient safeguards ensuring the offsets would be real, permanent, verifiable, and enforceable as required under Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467. However, the carbon credit program was added as an additional mitigation measure for the project through an errata to the Final EIR. The errata explained the conclusions reached in the EIR would not be affected by the inclusion of this additional mitigation measure. Thus, the court found there was no prejudicial error; even if the program failed CEQA standards, there was no error because inclusion of the measure did not “deprive the public and decision makers of substantial relevant information about the Project’s likely adverse impacts.”

Finally, the court upheld the EIR’ analysis of water supply, special status plants, alternatives, and the County’s finding that recirculation of the EIR was not required.

In closing, this opinion is consistent with other actively pending CEQA cases and recently issued CEQA decisions seen in the last few months, in that there is: (1) increasing emphasis on and controversy surrounding the adequacy of wildfire and evacuation impact analyses, and (2) increasing involvement from the State Attorney General. Perhaps though, the silver lining of this decision is that it is narrowly tailored to a singular deficiency – the adequacy of the wildfire evacuation analysis for community-wide impacts – identified by the court.

[1] A more fulsome description from the County’s EIR refers to the project’s development of up to 400 hotel rooms, 450 resort residential units, 1,400 residential estates and 500 workforce co-housing units.  See

[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 Publishes First Draft of Report on California’s Historical Fire Activity

California’s Historical Fire Activity Before Modern Fire Suppression Report,
as prepared by CARB (November 2021)

Senate Bill 901 (2018) directed the California Air Resources Board (CARB) to develop a baseline estimate of greenhouse gas (GHG) emissions from California’s natural fire regime that reflects conditions before modern fire suppression (i.e., before 1910). In response, CARB has prepared a draft report, titled California’s Historical Fire Activity Before Modern Fire Suppression, dated November 2021, which is available for public comment until January 31, 2022. The draft report addresses the current understanding of historical fire GHG emissions, California’s fire history, and the dynamic relationship that exists between fire and climate, environmental, and human factors.

With respect to recent wildfire GHG emissions, the draft report states wildfires that occurred between 2000 and 2020 emitted – on average – 19 million metric tons of carbon dioxide per year. This equates to an average of 24 metric tons of carbon dioxide per acre burned. For historical emissions, though, the draft report concludes there is not enough available data to make an educated estimate of the GHG emissions that occurred from historical wildfires in California. That being said, studies indicate that fuel loads and vegetation biomass densities are generally larger today than they were historically, which leads to higher emissions per acre burned and more intense fires.

Overall, the report leaves readers with the following take-aways:

  1. Fire is a natural process that has played an integral role in California’s ecosystems for tens of thousands of years.
  2. Indigenous People used and continue to use fire to steward the land; their adaptive fire regime practices, such as cultural burning, have shaped large portions of California.
  3. In the early 20th century, large-scale fire-suppression tactics were implemented; this practice, combined with fire exclusion, climate change, an increasing human population, and an increasing need for natural resources have created the unprecedented fire conditions that currently exist in California. Fire suppression tactics also have caused California’s ecosystem to become less ecologically diverse and less adaptable to climate variability.
  4. Fires are expected to become more severe as the climate continues to warm.
  5. It is difficult to accurately estimate GHG emissions from California’s historical wildfire regime.
  6. Opportunities exist to reintegrate Indigenous People’s knowledge into prescribed burning and land management practices.

[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 “Limited” EIR Is Not An Available Remedy To Bring An MND Into Compliance With CEQA

Farmland Protection Alliance v. County of Yolo
(2021) (Case No. C087688)

In a recent opinion, the California Court of Appeal (Third Appellate District) issued an important clarification on the remedies available when a court finds noncompliance with the California Environmental Quality Act (CEQA). In short, the “heart” of CEQA is the requirement to prepare an environmental impact report (EIR) if a project may cause a significant effect on the environment. If any aspect of a project triggers the need for an EIR, a full EIR must be prepared “for the proposed project.” Courts do not have the option to order preparation of a “limited” EIR covering only those aspects of the project that may cause a significant environmental effect.

Farmland Protection Alliance involves a project in Yolo County to operate a bed and breakfast and commercial event facility, supported by onsite crop production. The County’s Board of Supervisors adopted a mitigated negative declaration (MND) and issued a conditional use permit approving the project. The plaintiffs filed suit against the County to challenge the decision, asserting that the project approval violated CEQA (among other issues that are not part of the published Court of Appeal opinion). The trial court granted plaintiffs’ petition in part. The trial court found that under CEQA, an EIR was required because the project may have a significant impact on three species — the tricolored blackbird, the valley elderberry longhorn beetle (beetle), and the golden eagle. Accordingly, the trial court ordered the County to prepare an EIR limited to addressing only the project’s impacts on the three species. The effect of the trial court’s ruling was to “split” the project’s impact analysis between the previously approved MND, and the court-ordered “limited” EIR covering only the challenged aspects of the MND.

The Court of Appeal held that the trial court erred in ordering the County to prepare a “limited” EIR that only addressed the three potentially impacted species. The Court relied on CEQA’s “three-tiered” environmental review process. Under this process, when CEQA applies to a proposed project, public agencies must decide whether to prepare a negative declaration (ND) or MND on the one hand — or, an EIR on the other hand. If there is no substantial evidence that a project or any of its aspects may cause a significant effect on the environment, or the effects would be avoided/mitigated, the agency prepares an ND or MND, respectively. But, if substantial evidence supports a “fair argument” that any aspect of the project may cause a significant effect on the environment, the agency must prepare a full EIR.[1]

The Court of Appeal in Farmland Protection Alliance held that nothing in CEQA or the cases interpreting CEQA suggest that a project’s impact analysis may be divided such that some impacts are analyzed in an ND/MND, and others are analyzed in an EIR. To the contrary, the Court cited precedent from 1999 stating that even when only certain aspects of an MND are successfully challenged in court, a “full EIR” should be prepared — the court-ordered EIR should not be “limited to or focused on” only the challenged aspects of the MND (citing San Bernardino Valley Audubon Society v. Metro. Water Dist. (1999) 71 Cal.App.4th 382, 402 & fn. 11). Thus, when CEQA applies, the environmental review process is “mutually exclusive” — CEQA requires public agencies to prepare either an ND/MND or an EIR.

Farmland Protection Alliance also held that CEQA’s remedies provision, Public Resources Code section 21168.9, does not authorize trial courts to “split” the environmental review by ordering a “limited” EIR. Section 21168.9 was enacted to provide trial courts with flexibility in fashioning remedies to ensure CEQA compliance — it does not authorize trial courts to circumvent CEQA’s mandatory provisions. Given that CEQA compliance requires either an ND/MND or an EIR “for the project,” a “limited” EIR is not an available remedy under section 21168.9.

In conclusion, Farmland Protection Alliance makes clear that the analysis of a project’s environmental impacts may not be “split” across two types of environmental review documents. And, where substantial evidence supports a “fair argument” that any aspect of a project may cause a significant effect on the environment, a full EIR is required covering the whole of the project.

[1]              In repeatedly using the term “full,” the Court cross-referenced Public Resources Code section 21061, which contains basic definitional parameters and content requirements for an EIR.  While the term “full” could be interpreted in any number of ways, we do note that the Court did not place any limits on the continued use of pre-existing procedures for narrowing the scope of an EIR, such as through the initial study process.

[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.]