Category: GDB Insights

Working Families of Monterey County v. King City Planning Commission
(2024) (Case No. H051232)

California’s Sixth District Court of Appeal upheld the King City Planning Commission’s approval of a Grocery Outlet project, affirming its eligibility for an exemption under the California Environmental Quality Act (CEQA) Class 32 guidelines for infill development. The court rejected the appellants’ contentions that Class 32 exemption requires application of a population threshold and specific urbanized definitions. This case clarifies the scope of CEQA’s infill exemption and reinforces local discretion in land use determinations.

Background

In April 2021, Best Development Group (BDG) proposed a Grocery Outlet store in King City, filing for conditional use and related permits. The project site, previously used as a car sales lot, was located adjacent to Highway 101, surrounded by commercial properties, a cemetery, and public facilities.

The King City Planning Commission deemed the project exempt from CEQA under the Class 32 categorical exemption for infill development. The decision was affirmed by the King City Council after an appeal challenging the exemption’s applicability.

Working Families of Monterey County (Working Families) filed a writ of mandate alleging CEQA violations, contending that the exemption improperly applied due to King City’s rural character and the project’s insufficient environmental analysis.

Application of the Class 32 Exemption

Working Families argued that the City improperly applied the Class 32 exemption, contending the project did not meet the definition of an “urbanized area” as set forth in CEQA provisions requiring populations of 50,000 or 100,000, since King City’s population is only 13,332. They also asserted the project site failed to qualify as an “infill site” because it was not previously developed for “qualified urban uses.”

The City and BDG argued that the terms “qualified urban use,” “urbanized area,” and “infill site” are not part of the language of CEQA Guidelines section 15332, which governs the Class 32 exemption. They asserted that these terms appear in other CEQA provisions related to residential projects and cannot be read into section 15332, as their omission reflects the intended scope of the exemption.

They further contended that substantial evidence supported the City’s determination that the project site was “substantially surrounded by urban uses” under section 15332(b). Although the Guidelines do not define “urban uses,” they maintained that the City reasonably concluded, based on the environmental assessment, that the site was surrounded by urban development, including commercial buildings, a cemetery, the sheriff’s department, and a highway.

To determine whether the Class 32 categorical exemption for infill development applied to the Grocery Outlet project, the court analyzed the language of CEQA Guidelines section 15332. The court, applying traditional rules of statutory interpretation, emphasized that the plain language of regulations governs their interpretation unless ambiguity necessitates further analysis. In this case, the court found the language of section 15332 straightforward and declined to incorporate definitions from other CEQA provisions. The court noted that different terms used in various parts of CEQA suggest different meanings were intended, and the absence of specific definitions in section 15332 confirmed the regulators’ intent to apply the exemption broadly to appropriate projects.

To address the potentially ambiguous terms “in-fill development” and “substantially surrounded by urban uses” in section 15332, the court examined the intent of the Natural Resources Agency, which developed the regulation. During its drafting, the agency identified the primary purpose of the infill exemption as addressing urban sprawl. The exemption was designed to encourage development within existing urbanized areas, reduce reliance on vehicles, and preserve farmland, aligning with broader CEQA goals to mitigate environmental harm while supporting sustainable growth. The regulatory intent guided the court’s interpretation of section 15332, emphasizing its applicability to projects like the Grocery Outlet that fit within urban contexts, regardless of specific population thresholds.

Environmental Assessment Analysis

In addition to disputing the applicability of the Class 32 exemption, Working Families argued that the environmental assessment prepared for the project failed to adequately evaluate the impact of increased traffic on air quality, particularly the potential human health impacts to project users due to the project’s proximity to Interstate 101. The court declined to address this argument, underscoring that once a project qualifies for a categorical exemption under CEQA, it is not subject to further environmental review requirements, including the preparation of an environmental impact report.

Conclusion

The court’s decision in this case confirms that CEQA’s Class 32 exemption for infill development applies broadly without requiring the application of specific population thresholds or strict urbanized definitions. In doing so, this decision highlights the efficiency of the exemption process for appropriate infill projects and supports local agencies in making streamlined land use decisions.

[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.]

People of the State of California v. County of Lake
(2024) (Case No. A165677)

The People of the State of California v. County of Lake decision from the California Court of Appeal’s First Appellate District is the most recent reminder to lead agencies of CEQA’s key function to inform the public of a project’s environmental impacts and of the harsh consequence that follows if informing the public is not at the forefront during preparation of the project’s environmental analyses.

In this case, the Center for Biological Diversity and California Native Plant Society (petitioners) challenged the County of Lake’s approval of the Guenoc Valley Mixed-Use Planned Development Project (a luxury resort consisting of residential estate villas, hotel units, and related infrastructure, on 16,000 acres) and certification of the project’s environmental impact report (EIR).  The trial court agreed with petitioners’ claim that the EIR did not adequately inform the public of the project’s potential to exacerbate wildfire ignitions and rejected petitioners’ other claims.  On appeal, the court affirmed.

The majority of the published portion of the opinion is devoted to the court’s analysis of the County’s evaluation of the project’s wildfire ignition risk.  First, the court found that mention of the topic was included in the post-EIR analysis – in an errata to the final EIR, which was determined to be “too late” because “[m]aterial not contained in the EIR cannot be expected to be considered; and therefore, cannot be relied upon to support an adequate EIR.”

Second, the errata’s discussion of the impact cited a scientific study unrelated to the project and included a summary statement that “increased fire education, a decline in smoking, and modern vehicles . . . have reduced the impacts of anthropogenic causes of wildfire ignitions.”  The court held such discussion inadequate under CEQA because it failed to reasonably describe the “additional wildfire risk factors as compared to existing conditions” that the project would “introduce” to the area.

In the court’s view, the County provided no way to connect the dots between the “additional wildfire risk factors,” which the errata conceded exist, and the project’s Wildfire Plan prevention strategies (such as fire breaks and undergrounding power lines), which the errata did not update.  More specifically, the court found fault in the County’s failure to explain “the extent to which bringing in over 4,000 new residents … increases the risk of human-caused wildfire over the existing baseline risk,” and then posed a series of ignition-based questions for the County’s potential consideration.[1]  Because the County did not appear to “use its best efforts to find out and disclose all that it reasonably can” about the project’s impact on these ignition risk factors, as a remedy, the court directed the County to revise the EIR.

In good news for the County, the court rejected petitioners’ other challenges, one of which questioned the EIR’s inclusion of a carbon credit program to mitigate the project’s greenhouse gas impact.  While not relying on the carbon offset program to eliminate the project’s impacts, the County included a condition requiring the project applicant to purchase such credits to offset the difference between the mitigated project emissions and the relevant significance thresholds.  The court did not agree with petitioners that, by virtue of being in the EIR, the carbon credit program must meet CEQA’s standards for feasible mitigation measures because petitioners failed to cite authority for their contention that CEQA bars considering potentially beneficial measures that agencies deem too uncertain to be feasible.

Another rejected claim was the County’s alleged non-disclosure of the project’s potential use of an off-site well and the County’s failure to quantify the amount of groundwater the project would draw.  The court noted petitioners failed to acknowledge the EIR’s discussion of the off-site well production capacity and the groundwater basin concluded with the caveat “if required,” which the record revealed was exceedingly unlikely. As a result, it was appropriate for the County to terminate discussion of that impact since it was too speculative for evaluation.

Although unpublished, the court discussed petitioners’ remaining claims and held that (1) the EIR’s wildfire plan and biological resources analysis were not irreconcilably inconsistent; (2) the mitigation measure implementing a transportation management demand plan was not impermissibly deferred; and (3) the agency’s rejection of Alternative C was supported by required CEQA findings.

At the end of the day, while petitioners prevailed on only one of the six claims, the court vacated the project approval and EIR certification, and ordered the County to re-do the EIR’s wildfire ignition risk impact assessment, which is arguably a harsh but an all-too-common consequence for failing to adequately inform the public on a single project impact area under CEQA. As such, while the State CEQA Guidelines assure practitioners that “technical perfection” is not required in an EIR, this decision is yet another cautionary tale of the fine line for lead agencies to navigate between technical analysis and informational disclosure when evaluating project impacts under CEQA.

[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] The questions presented by the court pursue statistical data that – to date – has not been industry standard in the wildfire analysis arena.  E.g., the court inquired about the number of wildfire ignitions “per 1,000,000 miles driven by vehicles” with and without catalytic converters.  Yet, the court acknowledged that “[o]f course, we do not require” that the specific questions posed be answered.

Yolo Land & Water Defense v. County of Yolo
(Case No. C099086)

In the recently published Yolo Land & Water Defense v. County of Yolo decision, the California Court of Appeal, Third District, affirmed the right of the lead agency under CEQA, as the prevailing party, to recover reasonable costs associated with administrative record preparation even though petitioners had elected to prepare the record.

In the case, the applicant sought the County’s approval of the Teichert Shifler Mining and Reclamation project on a 320-acre parcel.  The County certified the final environmental impact report (EIR) for the project and approved a mining permit, which actions were challenged by Yolo Land & Water Defense and Sierra Club (petitioners).  The lower court denied the writ of mandate petition and petitioners’ motion to tax the County’s record preparation costs.

In the unpublished portion of the opinion, the Court rejected petitioners’ substantive challenges to the project EIR, thereby affirming the EIR’s use of an existing conditions baseline, the EIR’s analysis of the potential for an increase in methylmercury in the reclaimed lake, and the County’s conclusion that the project’s mitigation would reclaim mined land to a state that is equivalent in quality and capacity to existing prime farmland.  As the Court’s evaluation of these topics is unpublished, they will not be discussed further here.

In the published part of the decision, the Court discussed petitioners’ challenge to the County’s record preparation costs.  The Court first examined Public Resources Code section 21167.6, which authorizes a petitioner to elect to prepare the administrative record instead of asking the public agency to prepare it.  In this instance, petitioners elected to prepare the administrative record but asked the County – via a Public Records Act request – to produce the documents.  The County, in preparing and certifying the record (29,745 pages in length), incurred $3,813.45.  The Court then concluded that section 21167.6 does not provide that a public agency prevailing in a CEQA action may not recover reasonable costs associated with the preparation of the administrative record that were actually incurred.

That conclusion was buttressed by Code of Civil Procedure section 1032, which provides that – in general – a prevailing party is entitled to cost recovery, and Code of Civil Procedure section 1094.5, which provides that if an expense associated with preparation of the record has been borne by the prevailing party, the expense shall be recoverable as costs.  The fact that the County produced the records in response to a Public Records Act request did not convince the Court to disallow recovery of costs actually incurred in preparation of the administrative record.  Though unpublished, the Court also determined that petitioners failed to show that the County’s cost amount was unsupported or unreasonable.

The Yolo Land & Water Defense decision is a reminder, and a warning, to all CEQA petitioners that their CEQA lawsuits may have an additional cost to them – the cost of the lead agency’s record preparation efforts when the CEQA challenge is denied.  It is also a reminder to lead agencies to indeed seek recovery of those costs, which are often not inconsequential.

[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.]

Upland Community First v. City of Upland
(2024) (Case No. E078241)

California’s Fourth District Court of Appeal published its decision in Upland Community First v. City of Upland, a case addressing the City of Upland’s (City) approval of a warehouse/parcel delivery service building and corresponding mitigated negative declaration (MND) prepared pursuant to the California Environmental Quality Act (CEQA). The court upheld the MND, finding that its greenhouse gas (GHG) and transportation analyses were supported by substantial evidence.

Background

In April 2020, the City approved the project at issue: a 201,096-square foot warehouse/parcel delivery service building on a site currently used for a rock and gravel crushing operation. As the CEQA lead agency, the City adopted an MND for the project.

Upland Community First (UCF) filed a petition for writ of mandate, claiming the City violated CEQA because a fair argument could be made that the project would have significant impacts, thereby necessitating preparation of an environmental impact report (EIR).  The trial court granted UCF’s petition due to insufficient evidence supporting the City’s use of two GHG thresholds discussed below. Both UCF and the developer appealed the judgment.

Project GHG Analysis

The City’s GHG analysis used two numeric thresholds developed by the South Coast Air Quality Management District (SCAQMD). First, the draft MND applied the 10,000 metric tons of carbon dioxide equivalent (MT CO₂e) per year threshold adopted by SCAQMD for industrial projects. The draft MND concluded that the project would result in the net addition of 5,222 MT CO₂e per year and, therefore, be below the first threshold.

In response to comments that the 10,000 MT CO₂e per year threshold was too high, the City also prepared a supplemental GHG analysis that applied the 3,000 MT CO₂e per year threshold developed by SCAQMD for nonindustrial projects. That analysis reflected project refinements, including the incorporation of sustainability features, as well modifications to the baseline emissions estimate. The supplemental analysis concluded that the project would result in the net addition of 2,904 MT CO₂e per year and, therefore, be below the second threshold.[1]

Court of Appeal Analysis: Developer’s Appeal

Substantial Evidence Supported Use of the 3,000 MT CO₂e per Year Threshold

A lead agency has significant discretion in determining appropriate thresholds of significance under CEQA, as long as the choice is supported by substantial evidence. The CEQA Guidelines emphasize that environmental impact determinations must be based on scientific and factual data, and provides that agencies may consider thresholds recommended by other agencies or experts.

Here, the court found that substantial evidence supported the City’s use of the 3,000 MT CO₂e per year threshold for assessing the project’s GHG emissions. More specifically, public comments and other evidence from the Governor’s Office of Planning and Research (OPR) and SCAQMD provided a scientific and factual basis for applying the 3,000 MT CO₂e per year threshold to nonindustrial projects. The cited OPR data analyzed GHG emissions from 711 residential, commercial, and mixed-use projects, showing that 90% of these projects had emissions ranging from 2,983 to 3,143 MT CO₂e per year for residential/commercial projects, and varying ranges for other mixed-use categories. Based on this data, SCAQMD had identified a 3,000 MT CO₂e per year threshold for nonindustrial land use types, capturing the emissions levels of approximately 90% of such projects.

The court found that “it [is] reasonable to consider nonindustrial projects exceeding 3,000 threshold (ten percent of all nonindustrial projects) to be cumulatively considerable contributors to GHG emissions in comparison to nonindustrial projects with GHG emissions below the 3,000 threshold” (italics in original).[2] Therefore, the court held the City did not abuse its discretion in utilizing the 3,000 MT CO₂e per year threshold.

Increase in Baseline Emissions Supported by Substantial Evidence

The court found record evidence “plainly indicates” that the 1,537 MT CO₂e per year increase in the baseline emissions estimate was due to the 78 trucks used in the existing crushing operations, which were omitted in the original analysis but included in the supplemental analysis. The court concluded, therefore, that substantial evidence supported the City’s updated baseline.[3]

CEQA Findings Were Proper

The court held that the City’s resolution adopting the MND was supported by substantial evidence, including the supplemental GHG analysis’ demonstration that the project’s GHG emissions would not exceed the 3,000 MT CO₂e per year threshold. The court found UCF’s claim that the supplemental analysis lacked sufficient authority – because it was prepared “for informational purposes only” – unpersuasive, as the supplemental analysis and overall record adequately supported the City’s determination.

No Fair Argument of a Significant GHG Impact

After concluding that substantial evidence supported use of the 3,000 MT CO₂e per year threshold, the court emphasized that its acceptance of the threshold did not preclude consideration of other evidence of impact. That is because, under CEQA, if substantial evidence supports a “fair argument” that a project may have significant environmental impacts, the agency must prepare an EIR.

UCF argued that the project’s GHG emissions might be cumulatively considerable due to increased mobile source emissions compared to the existing crushing operations and potentially inaccurate traffic counts. However, the court ultimately found that UCF failed to present a fair argument of a significant GHG impact, based on the discussion of its arguments on appeal below.

Court of Appeal Analysis: UCF’s Appeal

MND Did Not Undercount “Passenger Car Equivalent” (PCE) Trips

UCF argued that the project’s transportation impacts were understated, claiming the wrong trip generation rates and classifications were used. The court found no substantial evidence supporting these claims. To the contrary, the record showed that the City calculated the project’s daily PCE trips using both classifications, and found no significant impacts under either.

UCF also argued that delivery van and truck trips were inadequately factored into the project’s total PCE trips. The court, however, found that the City had clearly and properly explained its methodology, including the use of a 3.0 multiplier for 4-axle trucks per the San Bernardino County Congestion Management Plan’s guidelines.

Lastly, the TIA included a “retail analysis memorandum” comparing the project’s traffic impacts as a parcel hub warehouse to a hypothetical retail building, showing that retail use would generate significantly more daily PCE trips and truck traffic. UCF argued this comparison was misleading under CEQA. The court disagreed, stating that the comparison was used as an additional analysis and did not misrepresent the project’s environmental impacts.

UCF’s Transportation Impact Claims Were Either Moot or Unsupported

UCF argued that the MND was flawed because it failed to account for parking spaces and related vehicle trips. The court found this claim moot, as it was based on outdated level of service standards relating to congestion.

UCF also asserted that the City should have performed a vehicle miles traveled (VMT) analysis. The court rejected this challenge because the City did, in fact, prepare a VMT analysis, which demonstrated project impacts would not be significant. Further, the court found held that UCF failed to exhaust administrative remedies on this matter.

In sum, the court concluded that UCF had pointed to “no substantial evidence supporting a fair argument that the project could have significant … transportation impacts, based on a VMT methodology or any other analysis.”

Conclusion

In this case, the court upheld an MND (in the face of a challenging standard of review that typically favors petitioners), affirming the City’s discretion under CEQA to set GHG thresholds and emphasizing that substantial evidence supported the City’s analyses of both GHG and transportation impacts. The decision highlights the importance of thorough and evidence-based environmental reviews to meet CEQA requirements and withstand legal challenges.

[1] The supplemental analysis was validated by two peer review entities. Additionally, both the draft MND and supplemental analysis estimated GHG emissions for a building more than 75,000-square feet larger than what was approved, resulting in a conservative emissions estimate.

[2] As the court affirmed application of the 3,000 MT CO₂e per year threshold, the court decided it need not consider the developer’s arguments regarding the sufficiency of the 10,000 MT CO₂e per year threshold.

[3] Procedurally, the court found that UCF failed to exhaust its administrative remedies on this topic during the administrative process (“no one asked the City to explain the sources of” the original and updated baselines) and forfeited the claim by failing to raise it in the trial court proceedings until its reply brief.

[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.]

Westside Los Angeles Neighbors Network v. City of Los Angeles
(2024) (Case No. B320547)

In Westside Los Angeles Neighbors Network v. City of Los Angeles, the California Court of Appeal, Second Appellate District, affirmed the City of Los Angeles’ compliance with the California Environmental Quality Act (CEQA) when processing its Westside Mobility Plan. This decision, published in August 2024, upheld the certification of the Environmental Impact Report (EIR) by the City Planning Commission, finding the Commission was a proper decision-making body under CEQA. The decision also validated the City’s reliance on a categorical exemption and rejected claims that the EIR failed to adequately address growth-inducing impacts and the implementation of mitigation measures.

Background

The Los Angeles City Council directed its Department of Transportation and Department of City Planning to prepare a study addressing traffic congestion and mobility challenges on the Westside, an area historically reliant on cars. Of relevance here, the resulting Westside Mobility Plan included updates to the Coastal Transportation Corridor Specific Plan (CTCSP), the West Side Los Angeles Transportation Improvement and Mitigation Specific Plan (WLA TIMP), and the Livable Boulevards Streetscape Plan (Streetscape Plan).

The CTCSP and WLA TIMP initially were adopted in 1985 and 1997, respectively, to create a transportation impact assessment (TIA) fee program requiring developers to pay a one-time fee before obtaining building, grading, or foundation permits, with the funds allocated to transportation improvements necessary to mitigate impacts from new developments in the designated areas. In response to the direction from the City Council, staff updated the fee program within the CTCSP and WLA TIMP by revising the TIA fees, extending fees to previously exempt land uses, offering credits for affordable and transit-oriented developments, and updating the lists of transportation improvements to be funded. These updates, referred to in the Court’s decision and within this summary as the Fee Program Updates, were designed to ensure that implementation of the transportation improvements would align with the approved Streetscape Plan. The Fee Program Updates and Streetscape Plan make up the “Project” at issue.

In 2015, the City published a draft EIR for the Fee Program Updates. After a 60-day review period, the final EIR was published, identifying significant impacts on air quality, noise, and transportation, despite the Fee Program Updates also being deemed statutorily exempt from CEQA.

In 2018, the Los Angeles City Planning Commission (CPC) certified the final EIR, determined that statutory and categorical exemptions also applied, adopted the Streetscape Plan, and recommended the Fee Program Updates for approval to the City Council. The City then filed a Notice of Determination (NOD) and a Notice of Exemption (NOE) for the Project.

The appellant challenged the CPC’s actions on these three components (CTCSP, WLA TIMP, and Streetscape Plan) of the Westside Mobility Plan. The appellant argued the City violated CEQA by failing to properly analyze the environmental impacts of the Project and by wrongfully delegating authority to the CPC to certify the EIR.

Key Issues

1. Whether the CPC was authorized to certify the EIR.
2. Whether the Streetscape Plan was correctly classified as categorically exempt under CEQA.
3. Whether the EIR sufficiently addressed growth-inducing impacts and the implementation of mitigation measures.

Appellate Court’s Findings

CPC’s Authority
The appellant argued that the CPC was not a “decision-making body” for the Project and thus lacked the authority to certify the EIR. The appellant contended that only the entity (the City Council) authorized to implement the component of the Project causing the “primary source” of environmental impacts—the Fee Program Updates—could certify the EIR. The appellant emphasized that while the CPC could adopt the Streetscape Plan, it could not adopt the Fee Program Updates, which were within the City Council’s exclusive authority.

The Court rejected this argument, stating that, under the CEQA Guidelines, a “decision-making body” is any entity permitted by law to commit the agency to a definite course of action for the whole of a project, even if multiple approvals are required. Additionally, the Court observed that CEQA permits a non-elected decision-making body within a lead agency to certify EIRs.

Here, the Court held the CPC was authorized to certify the EIR because it had the power to adopt a key component of the Project, the Streetscape Plan, which was intertwined with the Fee Program Updates. The Court further noted that nothing in CEQA or the CEQA Guidelines supported the appellant’s “primary source” argument, such that application of their proposed delegation test would improperly expand CEQA in violation of Public Resources Code section 21083.1.

Categorical Exemption

The City had determined that the Streetscape Plan was categorically exempt from CEQA under CEQA Guidelines section 15301, which applies to minor alterations of existing public structures with negligible or no expansion of use. The Court agreed, finding that substantial evidence affirmed the City’s conclusion that the Streetscape Plan’s improvements, such as adding street trees, lighting, and pedestrian crossings, fell within this exemption. The Court noted that the Streetscape Plan would establish standards and guidelines for minor alterations to existing rights-of-way that would improve their aesthetics, functionality, and safety, but would not expand the use of those rights-of-way.

The appellant challenged application of this exemption, arguing that the Streetscape Plan might have significant environmental impacts due to “unusual circumstances.” However, the Court found that the appellant failed to provide evidence that the Streetscape Plan would have such impacts. The Court concluded that the City met its burden of proving the exemption applied, and the appellant did not show that the Streetscape Plan fell within any exceptions to the exemption. As a result, the Court upheld the City’s finding that the Streetscape Plan was categorically exempt from CEQA.

Growth-Inducing Impacts & Mitigation Measures

The appellant argued that the EIR’s analysis of the Fee Program Updates’ growth-inducing impacts was inadequate. The EIR concluded that the Fee Program Updates would improve existing infrastructure without causing additional growth. The appellant claimed the EIR ignored concerns about potential incentives for affordable housing and transit-oriented developments. However, the City’s record of proceedings included evidence explaining that the Fee Program Updates would not change zoning or land use designations, and any incentives provided would not significantly impact existing or future development patterns. The Court was persuaded by the robustness of the City’s record evidence on this topic.

Finally, regarding Mitigation Measure MM-T-2, the appellant asserted that the City failed to ensure its proper implementation. The Court disagreed, finding that the City had provided substantial evidence that the measure would be funded through TIA fees and implemented based on identifiable traffic conditions, as outlined in project-specific studies. The Court held that the City’s approach was consistent with CEQA requirements, and found the appellant failed to show that the EIR’s analysis was deficient or that the City had not complied with its obligations under CEQA.

Conclusion

The Court affirmed the trial court’s judgment in favor of the City of Los Angeles, thereby upholding the City’s CEQA compliance demonstration for its Westside Mobility Plan. While it does not necessarily break new ground, the decision addresses several practical realities of the CEQA process and its analysis of delegated decision-making authority, the CEQA Guidelines’ Class 1 categorical exemption, and growth inducement and mitigation adequacy within EIRs may be useful to CEQA practitioners grappling with similar issues.

[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.]

Center for Biological Diversity v. County of San Benito
(Case No. H051322)

In the recently published Center for Biological Diversity v. County of San Benito decision, the California Court of Appeal, Sixth Appellate District, addressed important issues concerning the statute of limitations for filing legal challenges arising under the California Environmental Quality Act (CEQA). The Court’s decision underscores that CEQA’s statute of limitations only is triggered by the final decision of the lead agency, not by an intermediate decision that is subject to appeal.

Factual Background

This case involved the Betabel Project, a commercial roadside attraction in San Benito County, proposed by the McDowell Trust (applicant). The project received initial approval from the County Planning Commission (Planning Commission), which filed a Notice of Determination (NOD) on October 14, 2022, following its certification of the project’s Environmental Impact Report (EIR). The Planning Commission’s decision was later appealed to the County Board of Supervisors, which denied the appeals, certified the EIR, and filed a second NOD on November 10, 2022.

The Center for Biological Diversity, Protect San Benito County and Amah Mutsun Tribal Band (collectively, petitioners) challenged the Board of Supervisors’ approval by filing petitions for writ of mandate with San Benito County Superior Court on December 9, 2022. These petitions alleged that the project’s EIR violated CEQA and the project approvals violated state planning and zoning laws.

The applicant demurred on the grounds that the CEQA causes of action were time-barred because the petitions were filed after expiration of the 30-day statute of limitations period provided by Public Resources Code section 21167, subdivision (c). The applicant argued that the 30-day period commenced when the Planning Commission filed its NOD on October 14, 2022.

The petitioners opposed the demurrer, contending that the 30-day limitations period commenced only when the Board of Supervisors filed its NOD on November 10, 2022, after denying their appeals from the Planning Commissions’ decision and approving the project.

The trial court agreed with the applicant, sustained the demurrer without leave to amend, and entered judgments of dismissal. The petitioners subsequently appealed from the judgments of dismissal on the ground that the trial court erred in ruling that their CEQA causes of action were time-barred under Public Resources Code section 21167, subdivision (c).

Key Legal Issue

The main issue before the Court of Appeal was whether the statute of limitations for filing a CEQA challenge began upon the filing of the first NOD by the Planning Commission or after the filing of the second NOD by the Board of Supervisors.

Appellate Court Decision

To begin, the Court of Appeal, citing Public Resources Code section 21152, subdivision (a), observed that NODs are to be filed by local agencies “after the [project] approval or determination becomes final.” (Italics added.) The Court also referred to CEQA Guidelines section 15352, subdivision (a), which defines “approval” for purposes of CEQA. Under section 15352, “approval” occurs when the agency renders a decision that “commits the agency to a definite course of action.” Importantly, under section 15352, “[t]he exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances.”

Therefore, turning to the local rubric, the Court noted that, under the San Benito County Code, an approval from the Planning Commission is not final if it is appealed. More specifically, in San Benito County, the County Code specifies that the Planning Commission’s approval of a conditional use permit becomes final only if no appeal is filed within a designated 10-day period. If an appeal is filed, the approval is not considered final until action to approve or deny is taken by the Board of Supervisors.

In this case, the petitioners timely appealed the Planning Commission’s decision within the County Code’s 10-day period. As a result, the Planning Commission’s approval was not final, and its NOD did not trigger the 30-day statute of limitations for challenging the adequacy of the EIR. The project’s approval did not become final until the Board of Supervisors made its decision. Therefore, the Court found that the second NOD (filed on November 10, 2022) was the operative notice that triggered the 30-day statute of limitations for filing a CEQA challenge. As a result, the Court held the petitions filed by the petitioners were validly and timely filed after exhausting their administrative remedies at the local level.

Conclusion

In summary, this decision serves as a reminder that the statute of limitations under CEQA begins to run only after a final project approval is made by the lead agency. Clients should be aware that the timing of appeals and the finality of decisions are crucial in determining the deadlines for legal actions under CEQA. This case reinforces the importance of understanding the local agency’s procedures and the specific timing of when project approvals become final, particularly where multiple NODs are filed by the agency.

[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.]

Make UC a Good Neighbor v. Regents of the University of California
(2024) 548 P.3d 1051 (Case No. S279242)

In a greatly anticipated decision involving UC Berkeley’s proposed student housing project at People’s Park and its related Long Range Development Plan (LRDP), the Supreme Court unanimously reversed the Court of Appeal’s decision and ruled in favor of the Regents of the University of California (Regents). At issue were Make UC a Good Neighbors’ (petitioners) claims that the Regents’ 2021 Environmental Impact Report (EIR) failed to adequately consider noise impacts from student parties and did not sufficiently evaluate alternative locations.[1] However, recent legislative changes codified on an urgency basis through Assembly Bill (AB) 1307 (2023-2024 Reg. Sess.) made clear that: (1) noise from residential projects is not a significant environmental impact for purposes of the California Environmental Quality Act (CEQA), and (2) certain housing projects sponsored by public higher education institutions are exempt from needing to consider alternative locations. The Supreme Court’s decision aligns with the legislative changes, allowing the Regents’ student housing project to proceed.

Factual Background

The case centered on a legal dispute over the Regents’ proposed student housing project at People’s Park, a site with historical significance due to its association with social and political activism since the 1960s. Currently, the UC Berkeley campus houses only 23 percent of its 45,000 students, the lowest rate in the University of California system. Implementation of the LRDP would add 11,730 new student beds to the campus over time. The project at People’s Park, specifically, would add 1,113 student beds and 125 affordable & supportive housing beds for lower-income or formerly homeless individuals not affiliated with the university.

Procedural Background

As mentioned above, the 2021 EIR was challenged by the petitioners on the grounds that it did not adequately address the noise impacts from student parties and failed to explore alternative locations. The trial court ruled in the Regents’ favor and denied the petition. However, the appellate court ruled that the 2021 EIR was inadequate on both topics – student-generated noise and alternative locations for site development.

Assembly Bill 1307

After the Supreme Court granted review, the Legislature passed AB 1307, introducing new sections to the Public Resources Code of direct and immediate relevance. Section 21085 states that noise from occupants and guests in residential projects is not considered a significant environmental impact. Additionally, section 21085.2 specifies that public higher education institutions are not required to consider alternative locations for residential or mixed-use housing projects in an EIR if the project site is no larger than five acres, surrounded by urban uses, and included in the most recent LRDP.

Section 21085 Analysis

Petitioners conceded that AB 1307 precluded the Court from requiring an analysis of social noise impacts attributable to the project at People’s Park. However, petitioners maintained that the Regents’ 2021 EIR was deficient for not considering broader social noise impacts from the LRDP, arguing the LRDP was not an eligible “residential project” under section 21085.

The Court found it unnecessary to conclusively define “residential projects” in section 21085, noting that – even if the LRDP is not a plan to add residential units – the legislative history of AB 1307 supported a broad interpretation. Specifically, the legislative history plainly documented that the Legislature’s intent was to clarify that social noise from residential projects does not constitute a significant environmental impact under CEQA, directly rebuking the appellate court’s conclusion that the 2021 EIR was inadequate. Therefore, the Court broadly applied section 21085 to the LRDP’s residential aspects. This interpretation aligned with the Legislature’s related goals to streamline housing development and address noise concerns through local ordinances rather than CEQA. Public policy also supported this interpretation, ensuring that broader land use planning decisions are not subjected to more stringent noise impact analysis than specific housing projects.

Section 21085.2 Analysis

Petitioners acknowledged that the project at People’s Park satisfied the requirements contained in section 21085.2, thereby eliminating the requirement to consider alternative locations. However, petitioners claimed that the Court should still address the general issue due to its broad public interest, and specifically opine as to the application of section 21085.2 to future residential projects contained within the LRDP. The Court rejected petitioners’ request, noting that it was not presented in the petition for review. The Court also clarified that the mootness doctrine did not apply: this is because section 21085.2 did not make it impossible for the Court to grant relief; instead, it simply determined petitioners were not entitled to relief and were not the prevailing parties.

Conclusion

This ruling from the Supreme Court allows UC Berkeley to proceed with the People’s Park housing project without needing to address the previously contested noise concerns and location alternatives in the EIR. This decision underscores the legislative intent to facilitate residential development and address housing shortages without the burden of extended CEQA reviews on social noise and location alternatives.

[1] The 2021 EIR provided a program-level environmental impact analysis for the Regents’ LRDP for the UC Berkeley campus, and a project-level environmental impact analysis for Housing Project No. 2 therein – the student housing project at People’s Park.

[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.]

Sheetz v. County of El Dorado, California
(U.S., Apr. 12, 2024, No. 22-1074)

Introduction

The US Supreme Court’s decision in Sheetz v. County of El Dorado limits local agency exaction of legislatively enacted impact fees. In a unanimous opinion, the Court held that the “Nollan/Dolan” criteria of an “essential nexus” to the government’s land use interest and “rough proportionality” to the proposed development’s impact applies not just to administrative permit conditions but also to legislatively enacted permit conditions. Noncompliant conditions and fee exactions are unconstitutional under the Takings Clause of the Fifth Amendment.

Background

The case of George Sheetz against the County of El Dorado centered on a dispute over a $23,420 traffic impact fee imposed by the County as a prerequisite for obtaining a building permit to construct a single-family residence. To address traffic congestion concerns, the County had added the traffic impact fee to their general plan as a condition of receiving a building permit. Sheetz paid the fee under protest to obtain the requested permit, subsequently challenging it in state court as violating the California Mitigation Fee Act and the Takings Clause of the United States Constitution. The Superior Court rejected the claim, which decision was upheld by the California Court of Appeal. The matter escalated to the U.S. Supreme Court, which granted review and ultimately decided the case.

Takings Clause

The Takings Clause in the Fifth Amendment of the U.S. Constitution is designed to protect private property owners from the government’s use of its eminent domain power without providing just compensation. This clause requires that if the government takes private property for public use, it must compensate the property owner fairly, typically at market value. The Takings Clause is triggered not only by the government physically appropriating property but also by regulations that significantly interfere with an owner’s ability to use their property.

The Takings Clause was invoked here not due to physical appropriation or regulatory action, but due to the conditions attached to a permit. If permit conditions are unrelated to legitimate land use objectives, they may be an unconstitutional exaction. For example, if a permit is withheld unless the landowner concedes to uses of her property that benefit the government in ways unrelated to land use planning, it could be considered an improper use of government power.

Nollan and Dolan Tests

The previously decided cases of Nollan v. California Coastal Com’n (1987) 483 U.S. 825, and Dolan v. City of Tigard (1994) 512 U.S. 374 set out a two-part test to determine whether an administrative condition or exaction is constitutional. First, permit conditions must have an “essential nexus” to the government’s land use interest, ensuring the government is acting to further its stated purpose. Second, permit conditions must have “rough proportionality” to the development’s impact on the land use interest. A permit condition demanding that a landowner surrender more than is required to offset the impacts of new development carries the same risk of misuse as a condition that bears no relation to that objective.

Supreme Court Holding

In a unanimous decision authored by Justice Barrett, the Supreme Court held that the criteria established in the Nollan and Dolan decisions should apply universally to both legislative and administrative actions. The Court’s rationale was grounded in a broad interpretation of the Takings Clause, emphasizing that the constitutional protection against uncompensated takings should not differentiate between the types of governmental actions. By extending the Nollan and Dolan tests, the Court aimed to ensure that all property owners are afforded the same level of protection against the imposition of arbitrary conditions that could amount to a taking. This interpretation marks a shift, as prior to this decision, the Nollan and Dolan tests were thought to be limited to individual, administrative decisions.

The Court did not ultimately decide the validity of the County’s impact fee in this case. It also did not decide the specificity required when tailoring a development impact fee to a class of properties, versus one development. Instead, it remanded the matter to state court for further proceedings.

A number of Justices separately penned concurrences that may provide additional guidance to agencies as they contend with tailoring their impact fees to comply with the opinion.

Implications

The Court’s ruling does not outright prohibit legislatively-enacted impact fees, but it does heighten the constitutional scrutiny of such exactions. Local governments must carefully justify fees and conditions imposed on a project as relates to an individual property, even if the fees were broadly applied. While it is unlikely local governments will abandon impact fees, they will face significant challenges demonstrating the strict “essential nexus” and “rough proportionality” criteria. In the future, we may anticipate an increase in challenges by builders and developers invoking the Takings Clause to contest fees for failing to meet these criteria.

[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.]

Vichy Springs Resort, Inc. v. City of Ukiah
(Case No. A165345) (2024 WL 1340842)

The central issue in this case revolves around the mootness doctrine, which requires that a case be dismissed as moot if no effective relief can be granted because the actual controversy has ceased to exist due to the passage of time or a change in circumstances. In this case, the appellate court determined that the litigation was not moot, as there remained viable corrective measures and modifications that could potentially mitigate the project’s environmental impact, thereby providing a tangible remedy.

Factual Background

Vichy Springs Resort, Inc. v. City of Ukiah involves a legal dispute between Vichy Springs Resort, Inc. (Vichy) and the City of Ukiah and the County of Mendocino, as well as the Ukiah Rifle and Pistol Club, Inc. (Club). The core of the dispute revolved around the Club’s operation of a shooting range on land leased from the City, which is located in an unincorporated area of the County. Vichy, a nearby mineral springs resort and spa, raised concerns about the environmental impacts of the Club’s project to demolish its existing main shooting range and construct a new one. These concerns included potential lead contamination and increased noise and traffic.

Vichy sued both the City and the County, alleging they failed to comply with the California Environmental Quality Act (CEQA) and their respective General Plans and local ordinances in relation to the Club’s project. The trial court entered judgment in favor of the City and the County after sustaining without leave to amend demurrers to Vichy’s causes of action. Vichy filed the appeal that culminated in this decision.

Court of Appeal Outcome

On appeal, the court found that the trial court erred in several respects. The court concluded Vichy’s petition sufficiently alleged that both the City and the County violated CEQA and that the County abused its discretion in determining it had no regulatory authority over the Club’s project. Therefore, the court reversed the trial court’s judgment and remanded the case for further proceedings.

Faced with arguments that the litigation was moot due to the Club’s completion of its project, the court determined that Vichy’s CEQA claims remained viable. This decision was based on Vichy proposing a range of modifications and corrective measures that could serve as mitigation strategies to reduce or eliminate the significant environmental impacts of the completed project.

Court of Appeal Analysis

Mootness

In the published portion of the decision, the court examined the arguments of mootness put forward by the Club and the City. The Club argued that since the project had been completed before the matter came to court, the court was incapable of providing any meaningful remedy, rendering the CEQA claim moot. However, the court noted that a case is considered moot only if the court’s decision cannot result in any practical or effective relief for the parties. The court disagreed with the Club’s view, noting that even though the project was finished, there were still opportunities to implement mitigation strategies to lessen or negate the project’s significant environmental effects, thereby keeping the claim relevant. Vichy’s petition outlined various modifications and remedial actions that could be taken, including the possibility of revoking the project’s permit and certificate of occupancy by the City, pending a comprehensive CEQA review by the County.

The court was also not persuaded by the Club’s argument that they should find the claims moot because Vichy did not seek a preliminary injunction staying construction during the pendency of the litigation. Of course, while it would have been advantageous for Vichy to seek to halt the progress of the project, the court noted there was no legal basis to render Vichy’s claim moot for not seeking such an injunction.

The County’s Jurisdiction  

Also in the published portion of the opinion was discussion regarding the County’s determination that the project was in the City’s sole jurisdiction. Vichy filed complaints with the County in January and November 2017, accusing the Club of beginning construction without the requisite County permits or CEQA compliance. The County dismissed these complaints, erroneously attributing jurisdiction solely to the City and claiming immunity under certain Government Code sections.

In response, Vichy’s petition challenged the County’s handling of the Club’s project under CEQA, alleging the County should have required the Club to obtain a discretionary use permit, which would have necessitated a CEQA review. Vichy specifically asserted the County improperly circumvented its CEQA obligations by misinterpreting its regulatory responsibilities. Vichy argued that the project’s nature and requirements under County authority were sufficient for CEQA consideration. Furthermore, the County’s assertion that a CEQA violation claim was not ripe without its project approval was countered by Vichy’s argument that the County’s incorrect belief in its lack of regulatory authority led to a failure to conduct an environmental review, in direct conflict with CEQA’s objectives. The court agreed that the County’s non-action and incorrect assumption of its regulatory powers resulted in a violation of CEQA mandates.

City’s Violations of CEQA /Writ of Mandate/ Declaratory Relief

In the unpublished section of the court’s opinion, the court identified CEQA violations by the City for prematurely issuing a building permit, deeming the project exempt without County approvals, and misclassifying the project’s nature, undermining CEQA guidelines. The City’s exemptions were challenged by Vichy, highlighting the project’s expansion. The court acknowledged and accepted Vichy’s contention that the project’s supposed ministerial status warranted discretionary review due to the City’s proprietary role and potential conditions on the project. The necessity of a discretionary County use permit, dismissed by the City and Club under flawed immunity interpretations, was also affirmed by the court.

Also included in the unpublished portion of the opinion is the court’s discussion of the writ of mandate sought by Vichy against the City[1] and Vichy’s request for declaratory relief. [2]

Conclusion

In summary, the court’s decision underscores the importance of local government entities’ compliance with CEQA and their regulatory responsibilities over projects that may have environmental impacts, while also highlighting the procedural nuances of litigating such disputes. This ruling relatedly illuminates the application of mootness principles in environmental litigation, showing that agencies and developers may still be accountable for environmental protection measures even after the physical completion of projects in question.

[1] Vichy’s challenge to the City over the building permit issuance, citing a lack of General Plan policy consideration, was dismissed by the trial court due to no specific Ukiah Code mandate requiring this and Vichy’s failure to counter the mootness issues associated with building permit issuance post-project completion. The court upheld the dismissal.

[2] The court was not persuaded by Vichy’s declaratory relief claim against the City, citing a Joint Powers Agreement (JPA) that clarified land use enforcement roles, thereby resolving any dispute. The court viewed the potential withdrawal from the JPA as too speculative for a legal dispute and found land use enforcement concerns not broadly significant. Arguments by Vichy regarding mootness due to possible future issues or public interest in environmental matters were dismissed. The court also denied Vichy’s amendment request, finding the speculative nature of future JPA outcomes insufficient for a genuine 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.]

V Lions Farming, LLC v. County of Kern
(2024) 100 Cal.App.5th 412

V Lions Farming, LLC v. County of Kern (2024) 100 Cal.App.5th 412, a case with a long CEQA litigation history, was recently decided by the Fifth District of the California Court of Appeal for the second time, but this time with a different – and broader – focus on agricultural conservation easements as mitigation under CEQA.  The court’s latest decision serves as a reminder for lead agencies and project applicants to not discount such easements as valid compensatory mitigation for the conversion of agricultural land.

The project that is the subject of the environmental review in this case is an ordinance streamlining the permitting process for exploration, drilling, and production of new oil and gas wells.  After correcting the defects of the environmental impact report (EIR) for the project challenged in the first appeal, the County of Kern prepared and certified a revised supplemental recirculated EIR (SREIR), adopted a slightly modified ordinance, and filed a return of the writ.  After the trial court discharged the writ, various environmental groups appealed.

As background, in the first appeal, the court was faced with a question of whether an agricultural conservation easement (ACE) mitigates to less than significant the conversion of agricultural land caused by the project.  The court in that appeal concluded the ACE did not do so.  On the second time around, the published portion of the court’s opinion addressed whether, more broadly, ACEs partially mitigate a conversion of agricultural land and qualify as compensatory mitigation under CEQA Guidelines section 15370(e), which defines mitigation to include “[c]ompensating for the impact by … providing substitute resources.”  This issue came to the court because the county had decided not to use an ACE as a mitigation measure for the conversion of agricultural land caused by the project, despite other mitigation proven unable to reduce the net loss of agricultural land to zero acres. The court’s conclusion: “ACEs qualify as compensatory mitigation, even though they do not replace or otherwise offset the acres of agricultural land converted by the project—that is, they do not ensure the project results in no net loss of agricultural land.”  Thus, the court held the county violated CEQA when it eliminated ACEs as mitigation for the conversion of agricultural land.

CEQA Guidelines section 15370(e) states that mitigation includes “[c]ompensating for the impact by replacing or providing substitute resources or environments, including through permanent protection of such resources in the form of conservation easements.”  In its analysis, the court determined that section 15370(e)’s “[c]ompensating for the impact by … providing substitute resources” verbiage is ambiguous, which ambiguity is to be resolved with interpretation that “effectuates CEQA’s purpose of the long term protection of the environment … best promoted by accepting, rather than rejecting, ACE’s as a type of compensatory mitigation.”

To arrive at such interpretation, the court first briefly discussed the principles underpinning ACEs.  Under the Public Resources Code, an ACE is defined as “an interest in land, less than fee simple, that represents the right to prevent the development or improvement of the land, as specified in Section 815.1 of the Civil Code, for any primary purpose other than agricultural production.  The easement shall be granted for the California Farmland Conservancy Program by the owner of a fee simple interest in land to any of the organizations or entities specified in Section 815.3 of the Civil Code.  It shall be granted in perpetuity as the equivalent of covenants running with the land.”

Second, the court conducted textual analysis of section 15370, by considering whether federal agencies treat preservation as compensatory mitigation.  It concluded that federal agencies treat preservation as a common type of mitigation.

Finally, the court analyzed section 15370(e)’s language and determined that because the clause “including through permanent protection of such resources in the form of conservation easements” does not unambiguously require ACEs to be accepted as compensatory mitigation in all situations where agricultural land is converted, the determination of whether an ACE is mitigation that “[c]ompensat[es]” for the conversion of agricultural land depends on whether the ACE “replac[es] or provid[es] substitute resources or environments.”  The court concluded it does:

As a result, we conclude the phrase “providing substitute resources” (Guidelines, § 15370, subd. (e)) includes preserving (i.e., permanently protecting) existing agricultural land. Consequently, ACE’s are a type of compensatory mitigation for the conversion of agricultural [land] even though, operating by themselves, they do not replace the converted land or otherwise result in no net loss of agricultural land.

In the unpublished portion of the opinion, the court held (1) the county’s discussion in the SREIR of the cancer risk associated with the drilling of more than one well near a sensitive receptor was insufficient; (2) the county’s analysis of the significance of lowering groundwater levels in wells and appropriate mitigation for reducing the significance of the project’s contribution to that cumulative impact failed to consider social and economic effects on low income and disadvantaged communities; and (3) appellants did not establish prejudicial error in the county’s analysis of air quality mitigation and impacts to the Temblor legless lizard and the county’s decision not to provide Spanish language translations of certain notices and portions of the SREIR.

[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.]