Faster, Higher, Stronger? Not So Much, as the Resort Project on the Site of the 1960 Winter Olympics Is Struck Down by the Court of Appeal

Sierra Watch v. County of Placer
(2021) (Case No. C088130)

Sierra Watch v. Placer County, a decision issued on August 24, 2021 by the Third District of the Court of Appeal, is a sobering reminder to agencies of the importance of EIRs serving as informational documents, even where such information seems self-evident and arguably intuitive.  The subject of the legal action is a resort project located on 94 acres in Olympic Valley and approved by Placer County in 2016.[1]  Sierra Watch challenged the project approval on CEQA grounds, specifically – the project EIR’s description of environmental setting and water quality, air quality, and noise impact analysis and mitigation, discussed in the published portion of the opinion, and the EIR’s analysis and mitigation of climate change, wildfire, and traffic impacts, covered in the unpublished part of the court’s decision.[2]

Environmental Setting

The court emphasized the importance of the regional setting to the environmental review of development projects, with a particular focus to be placed on “environmental resources that are rare or unique to that region and would be affected by the project.”  In this case, the court found that the county failed to place a special emphasis on Lake Tahoe in its discussion of the environmental setting, particularly in the context of the project’s water quality impacts.  The court criticized both the draft and final EIRs because both documents “largely appeared to presume that Like Tahoe needed no introduction, and so little needed to be said about it.”  The project’s draft EIR contained one parenthetical reference to the lake in the water quality analysis, but without discussion of the lake’s importance, characteristics, or current condition.  The project’s final EIR’s “Master Response regarding [the Tahoe Regional Planning Agency (TRPA)] Thresholds” discussed vehicle miles traveled (VMT) in the Lake Tahoe Basin, but without, once again, describing the lake’s importance or even explaining how the VMT figures related to the lake.  Six days before the project approval, the county revealed that “VMT and its related effects — tailpipe emissions and crushed abrasives — have a direct role in lake clarity.”  The court found the EIR’s discussion of the environmental setting improperly scarce and therefore insufficient.

With respect to the air quality analysis’ consideration of the Lake Tahoe basin, Sierra Watch’s objections to the air quality analysis consisted of the EIR’s alleged lack of discussion of the “bi-state regulatory regime that governs the Basin,” the basin’s “environmental carrying capacity,” or “VMT in the Basin.”  The court noted, however, that this discussion was presented in responses to comments, and Sierra Watch’s belated argument that such discussion “came too late in the administrative process” was forfeited as it was raised in the reply brief.  Similarly, Sierra Watch failed to explain why the EIR’s summary of data about the basin’s air quality conditions did not sufficiently “describe the current air quality conditions.”  Lastly, Sierra Watch’s claim that more information was needed was likewise rejected as Sierra Watch failed to identify which information was lacking and asking for “complete information” was “ask[ing] for too much.”

VMT and Air Quality Impacts

The court faulted the county for its inconsistent and incomplete analysis of the project’s VMT and air quality impacts on Lake Tahoe.  While the EIR stated that the project would not result in an exceedance of TRPA’s cumulative VMT threshold for the Lake Tahoe Basin, it showed the project would likely exceed TRPA’s project-level threshold of significance for traffic in the basin.  After discussing TRPA’s thresholds, the county then concluded they did not apply, without specifying which thresholds did apply.  The EIR cannot, the court held, “simply summarize, and then declare inapplicable, another agency’s framework for evaluating these types of issues.”

While the county endeavored to account for the connection between VMT and Lake Tahoe (and the corresponding water quality and air quality impacts), the court held “its belated discussion of these issues came too late” because it came in the form of post-EIR responses to comments provided just six days before the project approval hearing.  The court underscored that “CEQA requires agencies to discuss a project’s potentially significant impacts in the draft EIR and final EIR,” because – to find otherwise – would deny the public an opportunity to “test, assess, and evaluate” the information.

The court also held that the project’s EIR erroneously underestimated expected cumulative VMT because it “improperly ignored the expected addition of VMT from other anticipated projects, including another large development the [c]ounty was itself considering approving.”

Noise Impacts

The court rejected Sierra Watch’s objections to the EIR’s discussion of the “duration of construction noise at any specific location” and of “how noise could affect residents’ living patterns, speech, sleep, and health.”  The EIR indeed discussed both.  But the court agreed that the EIR fell short because, with one exception for a boarding school, it never considered impacts to sensitive receptors lying outside what was determined to be an “arbitrary” 50-foot zone, nor did it discuss its reasons for not doing so.  Although the court agreed the EIR improperly ignored impacts beyond a certain radius, it could “not, at this stage, say those unconsidered impacts were insufficiently mitigated.”

Regarding Sierra Watch’s other arguments on the mitigation of noise impacts, the court did not consider it improper for the EIR to include additional protections for the school as a receptor found to be particularly sensitive to daytime noise, but not other receptors.  However, the mitigation measure requiring “operations and techniques” to “be replaced with quieter procedures (e.g., using welding instead of riveting, mixing concrete off-site instead of on-site) where feasible and consistent with building codes and other applicable laws and regulations” was found inadequate for two reasons.  First, the measure “defers until later the determination of which construction procedures can feasibly be changed and how these procedures can be modified to be quieter.  And it offers no instruction on how either of these determinations are to be made.”

Takeaway

This case highlights the fine line lead agencies walk when preparing EIRs for development projects.  On the one hand, the EIR is not required to have all the information available on each subject but, on the other hand, the EIR must timely inform the public of the project’s environmental setting and impacts.

[1] Sierra Watch challenged the county’s resort project approval in two lawsuits, both of which were the subject of two separate appeals.  In one of its suits (Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1), Sierra Watch alleged the county approved the project in violation of the Ralph M. Brown Act.  The discussion herein does not address the county’s alleged Brown Act violations and pertains only to the second suit brought on CEQA grounds.

[2] The subject of this case summary is the published portion of the opinion.

[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.]

Development Impact Fee Requirements Addressed In Newly Signed Housing Bills

Assembly Bill 602 and Senate Bill 319

In September 2021, California Governor Gavin Newsom signed two bills — Assembly Bill (AB) 602 and Senate Bill (SB) 319 — that provide new statewide requirements for local jurisdictions seeking to impose development impact fees on development projects.

As background, local agencies are allowed to charge fees to development project applicants — known as mitigation fees, impact fees, or developer fees — for the purpose of defraying all or a portion of the cost of public facilities related to the development project. Impact fees support a wide range of community services and benefits such as public safety infrastructure, transportation infrastructure, affordable housing, environmental mitigation, libraries, parks, flood control, and other projects.

The Mitigation Fee Act establishes specific requirements local officials must follow in establishing, increasing, or imposing development fees. (Gov. Code, §66000 et seq.) Importantly, local officials must conduct a “nexus study” to demonstrate a “reasonable relationship” between the fees and public facilities funded by the fees, and the development project on which the fees are assessed. (Gov. Code. §66001.) Development impact fees must be reasonable.

However, local agencies’ nexus studies have been governed by “an opaque and informal patchwork of guidelines and common practices.” (See AB 602 Senate Floor Analysis, 8/31/21.) As a result, AB 602 and SB 319 provide additional guidance on how local agencies comply with their impact fee obligations. These laws attempt to balance the need for impact fee transparency with the potential effects on developers and local agencies. AB 602 also reforms impact fee collection for housing projects in an effort to encourage smaller, more affordable units.

AB 602 (Grayson)

The first new law, AB 602, imposes new requirements on local agencies preparing impact fee nexus studies. The law establishes basic transparency and accountability standards, including:

  • Local agencies must adopt an impact fee nexus study before a development fee is adopted.
  • The nexus study must include the “reasonable relationship” information that supports the agency’s actions (Gov. Code, §66001).
  • The nexus study must identify the existing and proposed new level of service for each public facility, and explain why any new level of service is appropriate.
  • If the nexus study supports increasing an existing fee, the local agency must review the assumptions of the nexus study supporting the original fee and evaluate the amount of fees collected under the original fee.
  • For housing development projects, nexus studies adopted after July 1, 2022 must calculate the amount of fees based on square footage of proposed units of the development, unless the local agency demonstrates that another metric is more appropriate. This is intended to support smaller and multi-family developments, and ensure such developments are not charged disproportionate fees (which would be the case if, for example, fees are charged on a per-unit basis).
  • Large jurisdictions (counties with populations of at least 250,000 or any city located therein, regardless of population) must adopt a capital improvement plan as part of their nexus study.
  • All nexus studies must be adopted at a public hearing with at least 30 days’ notice, including notice to any member of the public that requests notice.
  • Any member of the public may submit evidence that the local agency’s findings are insufficient, or that the agency failed to comply with the required procedures for adopting fees. The local agency must consider all such evidence.
  • Local agencies must update their nexus studies at least once every eight years.
  • Local agencies must request the total amount of fees from the development proponent upon issuance of a certificate of occupancy or the final inspection, whichever occurs last.
  • Local agencies must post fee information on their websites.

In addition, AB 602 requires the California Department of Housing and Community Development (HCD) to create a template for impact fee nexus studies. The template must be completed by 2024 and local jurisdictions will have the option — but will not be required — to use the HCD template.

Finally, as to AB 602’s scope, the new law does not extend its nexus study requirements to all housing development costs. Specifically, AB 602 does not apply to: (i) water and sewer connection and capacity charges; (ii) school fees; and (iii) Mello-Roos or other taxes. These other fees and charges are subject to their own statutory accountability measures.

SB 319 (Melendez)

In related legislation, SB 319 clarifies and expands the scope of the audits that local agencies must perform if they fail to comply with their reporting obligations under the Mitigation Fee Act.

Under pre-existing law, local agencies must produce an annual impact fee report each fiscal year, which discloses specified information accounting for the development fees and related public improvements. (Gov. Code, §66006.) In addition, developers — or anyone else — can request an audit of development fees to ensure that they are reasonable. (Gov. Code, §66023.) To the extent that the audit determines that the amount of any fee does not meet the statutory requirements, the local agency must adjust the fee accordingly. (Ibid.) Typically, the party that requests the audit must pay the local agency’s costs in performing the audit. But, if the agency failed — for three consecutive years — to produce its required annual impact fee report, then the agency must pay the cost of the audit. (Id., §66023(h).)

SB 319 closes a “loophole” in the scope of the audit that local agencies must pay for when they fail to complete their annual impact fee reporting obligations. It was unclear under pre-existing law how many years the audits were required to cover. SB 319 specifies that, when local agencies are required to pay for audits due to their failure to comply with their reporting obligations, the audits must cover each consecutive year that the local agency was out of compliance. Thus, SB 319 will help present a clearer picture of whether the local agency has adequately justified its impact fee levels and whether it should adjust its fees.

Conclusion and Takeaways

Studies have found that development impact fees can be a barrier to development and raise home prices. Development fees can amount to anywhere from 6 to 18 percent of the median price of a home depending on location, according to the AB 602 Senate Floor Analysis. At the same time, local governments face substantial fiscal constraints and thus have turned to fees as a source of revenue to fund public services.

As a result, AB 602 provides new statewide standards for impact fee nexus studies. Also, while AB 602 does not actually cap or reduce impact fees, it aims to help developers cut costs in terms of project time by making it easier to navigate local impact fee information. California Assemblymember Grayson (author of AB 602), citing support from housing proponents, tweeted his belief that AB 602 will “incentivize more naturally-affordable housing across the state by increasing transparency around impact fees and requiring them to be proportional to the size of a home.” But, critics have claimed that AB 602 “usurps” local control and dictates how local jurisdictions should address their local issues. And the legislative analysis notes that AB 602 imposes “unknown, significant” costs for local agencies to comply with the new requirements, which will most likely be passed on to development proponents in the form of higher fees. Indeed, AB 602 specifies that although it is a state-mandated program, these costs are not reimbursable by the state, because local agencies have general authority to charge and adjust planning and permitting fees to cover their administrative expenses.

Studies also have found that fee transparency could be substantially improved. SB 319 represents an effort to make progress on that front by clarifying that the scope of audits prepared by a local agency must cover each consecutive year that the agency failed to report. The closing of this “loophole” further incentivizes local agencies to comply with their annual reporting obligations. It also reduces the financial burden for those seeking to audit local agencies’ impact fees.

In short, AB 602 and SB 319 will help to better ensure that local agencies justify their development impact fees. These accountability and transparency measures will hopefully have the effect of minimizing fees and incentivizing housing. But, there is a potential that the new mandates will drive up local agencies’ costs — and, hence, development fees.

[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.]

GDB Attorneys Obtain California Court of Appeal Victory On 90-Day Statute of Limitations in Challenge to Land Use Approvals

Tchejeyan v. City Council of City of Thousand Oaks
(Case No. B309108)

GDB Partner Kevin Sullivan and Associate Yana Ridge recently obtained a court of appeal decision, upholding a trial court judgment, dismissing a challenge to city permit approvals for a client’s telecommunications project. The entire trial court and appellate court proceedings collectively were concluded in about 10 months.

In California, challenges to local zoning and planning decisions typically face very short statutes of limitations, as recently made clear by the California Court of Appeal’s Second District, Division Six. (Tchejeyan v. City Council of City of Thousand Oaks (July 7, 2021, Case No. B309108 [nonpub. opn.].)

In Tchejeyan, the City of Thousand Oaks approved land use permits for Verizon Wireless to install a wireless telecommunication facility. A nearby homeowner opposed the permits and filed a lengthy petition challenging the City’s approvals. GDB represented the City in its motion to dismiss the petition for failure to timely serve the petition. The trial court granted the motion and dismissed the petition, and the Court of Appeal affirmed, in a well-reasoned 11-page unpublished opinion.

The Tchejeyan Court held that petitioner’s deadline to serve the petition was 90 days from the City’s decision. Specifically, no action or proceeding to attack, review, set aside, void, or annul any decision related to conditional use or other permits shall be maintained by any person unless the action or proceeding is commenced and served on the legislative body (here, the City) within 90 days after the legislative body’s decision. (Gov. Code, §65009, subd. (c)(1)(E).) Here, the Court found that the petition concerning the approval of Verizon’s land use permit for a telecommunications facility was an action governed by the 90-day deadline, and rejected petitioner’s various arguments that other — longer — deadlines should apply.

Thus, if a court challenge is not both filed and served on the public entity within 90 days from the public entity’s decision, “all persons are barred from any further action or proceeding” and any such action or proceeding must be dismissed. (Gov. Code, §6009, subd. (e).) Here, petitioner served the petition on the 92nd day after the City’s decision on the permit. As such, his action was time-barred and properly dismissed. Because the statute of limitations is mandatory, petitioner’s failure to meet the deadline could not be excused on grounds of “mistake, inadvertence, surprise, or excusable neglect.” Accordingly, the trial court properly denied petitioner’s motion for relief under these grounds pursuant to Code of Civil Procedure section 473, subdivision (b).

Notably, the 90-day time period commences on the date of “final administrative action.” Here, the City Council denied the challenger’s appeal and adopted a Resolution upholding the approval of the land use permit. Two days later, the city clerk certified the Resolution. The Tchejeyan Court found that the date the City Council rendered its decision and adopted the Resolution on the permit — and not the later date that the city clerk certified the Resolution — was the date of the final administrative action that commenced petitioner’s 90-day deadline. The Court noted that the Resolution was effective immediately, and the clerk’s certification not a “legislative body’s decision,” but rather a mere clerical act that did not impact the underlying decision.

In short, Tchejeyan is an important reminder that land use matters typically involve very short limitations periods in which petitioners must file and serve lawsuit challenges — or their challenges will be dismissed. The purpose of such short deadlines is to provide certainty for property owners and local governments regarding these decisions. (Gov. Code, §65009, subd. (a).) Challenges to land use approvals have a chilling effect on the confidence in which property owners and local governments can proceed with development projects. (Ibid.) Thus, in California, land use challenges are barred if they are not brought within the relatively short required deadlines, as Tchejeyan makes clear.

[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.]

Update on Wildfire-Focused Legislation in California

Senate Bill 63 and Assembly Bill 642

Recently, a flurry of wildfire-related legislation has worked its way through the California Legislature, across the desk of Governor Newsom, and over the finish line of being enacted into law.  Two bills in particular, Senate Bill 63 (SB 63) and Assembly Bill 642 (AB 642) are summarized below.  These bills focus on improving California’s wildfire protection efforts through identification of moderate and high fire hazard severity zones; broadened fuel maintenance standards; expanded application of fire safe building standards; Native American tribe involvement and integration of tribal practices (such as prescribed burns); and creation of more robust training and educational outreach programs.

SB 63, chaptered into law on September 28, 2021, requires the Director of California’s Department of Forestry and Fire Protection (Department) to identify areas in the state as moderate and high fire hazard severity zones, and requires a local agency make that information available to the public for review and comment within 30 days of Director notification.  The bill expands the areas where enhanced fire safety building standards apply to include high fire hazard severity zones and to potentially include moderate severity zones.  The bill also includes enhanced vegetation management requirements, would fund fire prevention efforts in existing communities, and would train local organizations in statewide standards for home hardening.

Specifically, SB 63 provides:

  • The State Fire Marshal and Department of Housing and Community Development is to propose, and the State Building Standards Commission is to adopt, expanded fire protection building standards for high fire hazard severity zones. The bill would also require the State Fire Marshal and the Department of Housing and Community Development to consider expanding application of these building standards to moderate fire hazard severity zones.
  • The definition of “fuel” is modified to include “any combustible material,” such as “cultivated landscape plants, grasses, and weeds.” Further, the State Board of Forestry and Fire Protection, in consultation with the Department, is to develop and periodically update a guidance document on fuel management.  Among other things, that guidance document shall include regionally appropriate suggestions that preserve and restore native species that are fire resistant or drought tolerant (or both), and minimize the spread of flammable nonnative grasses and weeds.
  • Fuel modification beyond the property line in a very high fire hazard severity zone or a state responsibility area may be required by law, ordinance, rule or regulation in order to maintain 100 feet of defensible space. As compared to the pre-existing law, fuel modification beyond the property line may now be more easily mandated by state or local agencies without other findings, but a 100-foot limit is placed on the distance beyond the property line.  A local ordinance may include provisions to allocate costs for off-property fuel maintenance.  Further, the Office of the State Fire Marshal is to include a fuel modification beyond the property line component in its model defensible space program.
  • The Department is to expand a statewide local assistance grant program to support fire prevention and home hardening education activities. Activities eligible for grant assistance to support the Department’s fire prevention efforts are expanded to include vegetation management along roadways and driveways to reduce fire risk, public education outreach regarding making homes and communities more wildfire resilient, projects to reduce the flammability of structures and communities to prevent their ignition from wind-driven embers, and a risk reduction checklist for communities that includes defensible space criteria, structural vulnerability potential, and personal evacuation plans.
  • The Department is to establish a statewide program for a “corps” of certain qualified entities and trained volunteers to support the Department’s defensible space and home hardening assessment and education efforts. Qualified entities shall be authorized to conduct defensible space assessments to assess compliance with defensible space requirements within the state responsibility area, educate property owners about wildfire safety improvements that may be undertaken to harden a structure and make it more resistant to fire, and assess whether wildfire safety improvements have been completed in or on a structure.  This provision would be repealed on January 1, 2026.
  • The Department is to develop a training program on defensible space and fire hardening assessment and public education efforts.
  • The Department is to report to the Legislature on its moneys spent on forest and fire prevention programs and projects and the outcomes of these projects.

AB 642, also enacted on September 28, 2021, similarly requires the Director of California’s Department of Forestry and Fire Protection to identify areas in the state as moderate and high fire hazard severity zones, and is one bill of several directed at increasing Native American Tribe involvement with state fire protection efforts (see also AB 798 and SB 816).  AB 642 more specifically requires:

  • The Director to identify areas in the state as moderate and high fire hazard severity zones (current law requires the Director to identify areas that are considered very high fire hazard severity zones). The appropriate local agency, within 30 days of being notified of these fire hazard severity zones, must make that information available to the public for review and comment.
  • The Director to appoint a cultural burning liaison to the State Board of Fire Services to advise the Department on developing increased cultural burning activity.
  • The State Fire Marshal, before July 1, 2023, to develop a proposal to establish a prescribed fire training center.
  • The Department to establish, before July 1, 2023, an advisory workgroup to consult with the Department to make recommendations for understanding and modeling community wildfire risk.
  • The Department to engage in public education efforts regarding fire prevention and public safety with California state universities, California Native American tribes, tribal organizations, and cultural fire practitioners to enhance its public education efforts regarding restoring fire processes and function and cultural burning.
  • The Department to engage in recruitment efforts with California Native American tribes, tribal organizations, and cultural fire practitioners to fill vacancies in certain Department positions.

In addition, under existing law, an entity can receive a permit from the Department to use prescribed burning for certain public purposes.  AB 642 would require the Department to consider certain factors so as not to unreasonably restrict prescribed burnings and require the Department to institute an automated system for issuing burn permits.

Overall, SB 63 and AB 642 represent efforts by California to create a more robust fire protection scheme and improve the fire resiliency of development in the wildlands urban interface.  The range of efforts include implementing updated building code requirements, improving defensible space, increasing training and education efforts, and creating liaisons with California Native American tribes.  Moving forward, fire protection and fire risk will likely be at the forefront of any development and planning 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.]

Court of Appeal Affirms the Housing Accountability Act

California Renters Legal Advocacy and Education Fund v. City of San Mateo
(2021) (Case Nos. A159320, A159658)

In a decisive victory for Governor Newsom, state legislators, housing proponents, and housing applicants, on September 10, 2021, the First District Court of Appeal in California Renters Legal Advocacy and Education Fund v. City of San Mateo (CARLA) enforced state Housing Accountability Act (HAA) mandates over local interests.

The decision upholds the constitutionality of the HAA to curb the ability of local governments to block new housing. The new opinion affirms that, unless a housing development will adversely impact public health and safety, cities must approve homes that comply with applicable “objective standards.” Truly objective standards are those uniformly verifiable by reference to an external and uniform benchmark, not those that are applied with any amount of personal interpretation or subjective judgment. The Court also affirmed the HAA’s standard of judicial review on this point, which provides that a housing development complies with objective standards if there is “substantial evidence that would allow a reasonable person to conclude” that the development complies.

History of the HAA

“California has a housing supply and affordability crisis of historic proportions.” (Gov. Code, § 65589.5, subd. (a)(2)(A).) Local governments have failed to approve, and developers have failed to build, housing. The housing shortage has led to escalating costs that have rendered adequate homes unaffordable.

“[F]or decades, the Legislature has enacted numerous statutes intended to significantly increase the approval, development, and affordability of housing for all income levels.” (§ 65589.5, subd. (a)(2)(J).) Among these statutes is the HAA, also known as the Anti-NIMBY (Not-In-My-Back-Yard) law, enacted in 1982 with the goal of “meaningfully and effectively curbing the capability of local governments to deny, reduce the density for, or render infeasible housing development projects.” (§ 65589.5, subd. (a)(2)(K).) In this, the HAA has historically failed.  Housing has fallen far short of approximating regional and statewide need throughout its almost 40-year history.

Among other means the HAA has employed to try to address housing concerns is the requirement a city rely only on objective, not discretionary, criteria in rejecting housing applications. In 2017, the Legislature strengthened this requirement through subdivision (f)(4), restricting a local government’s ability to deny a housing application if “substantial evidence . . . would allow a reasonable person to conclude” that the proposed project is “consistent, compliant, or in conformity” with objective general plan, zoning, and design review standards.

Background

In this context, Tony Gundogdu submitted an application for a four-story, ten-unit multifamily residential building in the City of San Mateo (City). City Planning staff initially recommended project approval, concluding the project was consistent with the City’s General Plan and Multi-Family Design Guidelines, including with respect to height and transitions, and was “in scale and harmonious” with the neighborhood character. However, after a number of City residents expressed opposition to the project, the Planning Commission voted to disapprove it.

The Commission directed staff to prepare denial findings. Those findings now explained the project was not in scale with or harmonious with the character of the neighborhood, and was not in substantial compliance with the Guidelines’ limitations on building scale. According to the City, the Guidelines “objectively” directed that if there is more than a one-story variation in height between adjacent buildings, a transition or step in height was necessary, including stepback upper floors to ease the transition. The City Council upheld the Commission’s findings and denied the project.

The California Renters Legal Advocacy and Education Fund (CARLA) sued on the ground the City’s denial violated the HAA. The trial court denied the petition, ruling the project did not satisfy the City’s applicable, objective Guidelines. The trial court further concluded the HAA was unconstitutional.

CARLA appealed and, at the request of Governor Newsom, the Attorney General intervened.

The Court of Appeal’s Decision

The Court of Appeal reversed the trial court decision.

Defining objective standards, the Court held that the design guideline the City invoked to reject the housing development was not “objective” as it could not be applied without personal interpretation or subjective judgment. The City’s Guidelines were ambiguous as to what kind of height transition may be acceptable. And if a stepback was required, as the City asserted, the Guidelines were also unclear on how many floors would need to be stepped back. Answering these questions necessarily required interpretation, and was therefore not “objective.”

In reaching its conclusion, the Court noted local agencies retain the ability to establish and enforce objective design review standards, so long as those standards are in place at the time the application is complete. Further, local agencies can impose conditions of approval, so long as those conditions do not require the project be developed at a lower density, unless public health or safety findings are made.

The Court next affirmed that the HAA — as a whole and as to the subdivision at issue — is constitutional. First, the HAA was not an unconstitutional incursion into charter cities’ home rule. While planning and zoning laws are traditionally a municipal concern, providing a stock of housing sufficient to meet the needs of all Californians is a matter of statewide concern. The HAA appropriately limits municipal authority in a manner “reasonably related” and “narrowly tailored” to ameliorating the housing crisis by increasing approval of housing.

Second, subdivision (f)(4) does not impermissibly delegate municipal authority to a private person. The HAA does not divest the City of its final decision-making authority or its broad authority to determine whether there is substantial evidence from which a reasonable person could conclude the project is consistent with the city’s applicable objective requirements; to impose conditions of approval; or to deny or reduce the density of a project that causes an unavoidable adverse impact on public health or safety.

Third, subdivision (f)(4) does not violate due process. The Court rejected the City’s contention that local government review would be a useless exercise because anyone could evidence consistency with applicable standards that would then mandate approval. The “substantial evidence” standard is not any evidence, and opponents can seek to demonstrate that evidence does not meet the standard, or otherwise seek to mitigate undesirable impacts. The HAA does not deprive opponents of a meaningful opportunity to be heard.

Conclusion and Takeaways

The CARLA decision sparks some optimism for the success of legislative efforts to address the statewide housing crisis. As the Court of Appeal summarized:

As the Legislature has steadily strengthened the [HAA’s] requirements, it has made increasingly clear that those mandates are to be taken seriously and that local agencies and courts should interpret them with a view to giving “the fullest possible weight to the interest of, and the approval and provision of, housing.” (§ 65589.5, subd. (a)(2)(L).) The HAA is today strong medicine precisely because the Legislature has diagnosed a sick patient.

The Court has taken the legislative mandate seriously. So that state residents do not face another 40-years of constrained supply and skyrocketing costs, it is now up to local agencies to put aside their disputes, invoke California’s housing laws, and advance housing approvals.

[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.]

AB 819 – Changes to Encourage Online Public Access to CEQA Documents

Assembly Bill (AB) 819, signed into law on July 16, 2021, changes certain notice and filing requirements under the California Environmental Quality Act (CEQA).  As described in the legislative materials, AB 819 codifies the electronic public access requirements established by Governor Newsom via Executive Order N-54-20, which was issued early during the Covid-19 pandemic.

Previously, CEQA required agencies to utilize hard copies of environmental documents and notices, consistent with the technology limitations in place when CEQA was enacted 50 years ago.  Under the changes implemented by AB 819, agencies are now required to submit specified documents electronically and to post such documents on their websites.

AB 819, therefore, represents a small step towards modernizing CEQA.  The bill increases electronic availability of CEQA documents for the general public and provides electronic filing options for agencies.  The specific changes under AB 819 are outlined below.

  • A lead agency is required to mail or email notice of its determination that an environmental impact report (EIR) is required for a project to specified agencies. (CEQA, § 21080.4.)
  • A lead agency that is preparing an EIR or a negative declaration, or making a determination pursuant to section 21157.1(c), shall provide notice of that fact by posting the notice on the agency’s website (in addition to other pre-existing noticing procedures). (CEQA, § 21092.)
  • A lead agency must submit its draft EIR, negative declaration, or mitigated negative declaration in electronic format to OPR and post the document on its website. (CEQA, §§ 21082.1, 21091.)
  • A lead agency must accept comments via email and treat such comments as equivalent to written comments. (CEQA, § 21091.)
  • Notices required under CEQA sections 21080.4, 21083.9, 21092, 21108, 21152 and 21161 must be posted to the lead agency’s website, if one exists. (CEQA, § 21092.2.)
  • Notices of preparation and availability of an EIR, as required by CEQA sections 21080.4 and 21092, must be posted on the website of the county clerk. (CEQA, § 21092.3)
  • A notice of determination or exemption must be electronically filed by a state agency with OPR and available on OPR’s website for at least 12 months. (CEQA, § 21108.)
  • A notice of determination or exemption shall be electronically filed by a local agency with the county clerk (if that option is offered by the county clerk) and can now be posted on the county clerk’s website (in lieu of exclusively utilizing a physical posting). (CEQA, § 21152.)
  • An agency must file its notice of completion of an environmental document electronically with OPR. (CEQA, § 21161.)

The pre-existing CEQA law, as amended by AB 819, can be reviewed on the California Legislative Information website.

[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.]

SB 7: California Re-Enacts and Expands AB 900 CEQA Streamlining Provisions for Environmental Leadership Projects

California recently signed into law Senate Bill (SB) 7, which re-enacts and expands the California Environmental Quality Act (CEQA) streamlining provisions for “environmental leadership development projects” (ELDPs) that were originally adopted in the 2011 Jobs and Economic Improvement Through Environmental Leadership Act (Assembly Bill [AB] 900). AB 900 sunset on January 1, 2021; SB 7 extends the sunset through January 1, 2026. SB 7 also expands the types of projects that can be certified as ELDPs to include certain qualifying housing development projects, and provides revised procedures for the quantification and mitigation of greenhouse gas (GHG) emissions for eligible projects.

As additional background, while courts are required to give CEQA actions preference over all other civil actions, CEQA imposes no deadline for a court to render a decision. AB 900 established and SB 7 carries forward expedited CEQA judicial review procedures for ELDPs. Specifically, if the Governor certifies a project as an ELDP, any court action (including any appeals) challenging the certification of the environmental impact report (EIR) or the approval of the project must be resolved within 270 days, to the extent feasible.

Eligible Leadership Project Types

The following project types are eligible to be certified as ELDPs under SB 7:

  • Non-industrial projects (as defined to include residential, retail, commercial, sports, cultural, entertainment, or recreational uses) that are certified as LEED gold or better and, where applicable, achieve a 15-percent greater standard for transportation efficiency than for comparable projects. These projects must be located on an infill site, and must be consistent with specified policies in any applicable sustainable communities strategy (SCS) or alternative planning strategy (APS). In addition, these projects must result in a minimum investment of $100,000,000 in California upon completion of construction.
  • Clean renewable energy projects and clean energy manufacturing projects.
  • New: Housing development projects that meet all of the following conditions: (i) the project is located on an infill site; (ii) the project is consistent with specified policies in any applicable SCS or APS; (iii) the project will result in a minimum investment of $15,000,000, but less than $100,000,000, in California upon completion of construction; (iv) at least 15% of the project is dedicated as affordable housing, unless an applicable local inclusionary zoning ordinance establishes a higher minimum percentage; (v) no part of the project shall be used for a short-term vacation rental unit (less than 30 days), or designated for hotel, motel, or other transient lodging use (however, residential hotels for very low and low income housing are permitted); and (vi) no part of the project shall be used for manufacturing or industrial uses. A “housing development project” is defined to include a project for residential units only; mixed-use development consisting of residential and nonresidential uses, with at least two-thirds of the square footage designated for residential use; or, transitional or supportive housing.

Additional Conditions for Certification

As the law is now in effect, the Governor may certify an eligible project for CEQA streamlining, before the lead agency certifies the final EIR for the project, if multiple conditions are met, including the following key conditions:

  • For construction labor requirements, the project must pay prevailing wages, and — as a new requirement added in SB 7 — the project must use a “skilled and trained workforce,” for all construction work.
  • The project must not result in any net additional emission of GHGs, including GHG emissions from employee transportation. For eligible leadership projects other than housing developments, GHG mitigation measures must prioritize direct project emissions reductions and local direct emissions reductions, before relying on carbon offsets. The intent is to maximize environmental and public health benefits to those people who are most impacted by the project.
  • Multi-family residential projects certified as an ELDP must provide unbundled parking, such that private vehicle parking spaces are priced and rented or purchased separately from dwelling units, except for units subject to affordability restrictions where the cost of parking spaces cannot be unbundled.
  • The project applicant must agree to pay the costs of the trial court and the court of appeal in hearing any case challenging the project, including payment of costs for the appointment of a special master if deemed appropriate by the court.
  • The project applicant must agree to pay the costs of preparing the administrative record for the project. In addition, the administrative record must be prepared concurrently with the review and consideration of the project.

Takeaways

In 2011, AB 900 established expedited CEQA judicial review procedures for a limited number of projects — large-scale projects meeting extraordinary environmental standards and providing significant jobs and investment. Based on the legislative materials, from 2012–2020, 17 projects were certified under AB 900. Of these, only two projects have been built to-date, and neither includes housing.

Seeking to help address California’s affordable housing crisis, SB 7 somewhat expands AB 900 to apply to “smaller” housing development projects. However, eligibility still remains restrictive, particularly with respect to the strict labor and prevailing wage requirements. Thus, the real-world impact of expanding AB 900 remains to be seen. For example, the SB 7 legislative materials note that many infill housing projects are eligible for existing statutory or categorical exemptions under CEQA, without having to meet the additional conditions, process, and expense associated with AB 900 / SB 7. As a result, the statutory scheme may be more suited for large projects “with teams of attorneys and consultants,” rather than smaller housing projects that may be exempt from CEQA or eligible for a negative declaration, and not required to prepare an EIR, under current law.

Finally, as to GHG emissions, SB 7 reflects California’s increasing focus on achieving local clean air co-benefits and reducing the reliance on carbon offsets, even though offsets are expressly allowed by CEQA Guidelines section 15126.4(c). The bill prioritizes on-site and local direct GHG emissions reductions over offsets for all eligible project types (but for specified housing development projects). This change was evidently made, at least in part, in response to the Golden State Warriors arena (Chase Center) project in San Francisco, which is one of the two completed AB 900 projects. In the Chase Center project, to offset its construction emissions, the Warriors purchased offsets sourced from Florida at a cost of $3.50/ton. The SB 7 legislative materials observed that the total cost of offsetting construction emissions for the $1.4 billon Chase Center was $39,869, contrasting that figure with the $52,800 cost of a single courtside season ticket in the 18,064-seat Chase Center.

[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.]

Lead Agency Prevails Over Challenge to its Mitigated Negative Declaration Despite Unfavorable Standard of Review

Newton Preservation Society et al. v. County of El Dorado
(2021) (Case No. C092069)

On June 16, 2021, the California Court of Appeal for the Third District issued its decision in Newton Preservation Society et al. v. County of El Dorado (Case No. C092069), in which the Court upheld a mitigated negative declaration (MND) despite the “low threshold” review standard.

As background, the County of El Dorado certified an MND for and approved the Newton Road Bridge project – a project consisting of the replacement of an existing bridge.  Petitioners challenged the validity of the MND, arguing the project would cause significant impacts to fire evacuation routes thereby requiring preparation of an environmental impact report (EIR).  The trial court denied the petition and upheld the MND.  Petitioners appealed and the Court of Appeal ultimately affirmed the trial court’s decision.

An EIR, as opposed to an MND, is required if substantial evidence in the whole record supports a fair argument that a project may have a significant effect on the environment.  This is considered a “low threshold” test and accords no deference to the lead agency’s determination.  It is often difficult for the lead agency to prevail under this standard.

In this case, petitioners argued substantial evidence supported a fair argument that the project will have a significant impact on resident safety and emergency evacuation because, when the bridge is closed while under construction, residents would be unable to safely evacuate.[1]  The “substantial evidence” supporting petitioners’ argument consisted of testimony from local residents and a retired firefighter, who stated residents would be unable to safely evacuate when the bridge was under construction.

The Court of Appeal first explained that petitioners erroneously framed the fair argument test.  “The question is not whether substantial evidence supports a fair argument that the proposed project will have significant impacts on resident safety and emergency evacuation.  As explained ante, the question is whether the project may have a significant effect on the environment. … Thus, the question before us is whether the residents’ comments upon which petitioners rely (given their burden on appeal) constitute substantial evidence supporting a fair argument that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.”  (Italics in original.)

Public opinion may provide substantial evidence in certain circumstances.  However, interpretation of technical or scientific information requires an expert evaluation and public testimony on such matters does not constitute substantial evidence.  Here, the Court determined the local residents’ “dire predictions” were not sufficient to constitute substantial evidence.

The Court distinguished the residents’ testimony from cases where public opinion did constitute substantial evidence.  The Court explained, “[i]n contrast to the public comments in those three cases, here, the comments lacked factual foundation and failed to contradict the conclusions by agencies with expertise in wildfire evacuations with specific facts calling into question the underlying assumptions of their opinions as it pertained to the project’s potential environmental impacts.”  (Italics in original.)

Overall, this opinion reminds readers that public opinion is not always enough to win a challenge against an MND and speculative comments lacking factual foundation do not equate to substantial evidence.

[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]           Petitioners presented three additional issues for appeal; however, those are addressed by the Court in the unpublished portion of its opinion.  Accordingly, this summary only discusses the published portion of the opinion, which concerns the evacuation issue.

Housing Crisis No More: Ruegg & Ellsworth v. City of Berkeley Is A Step Toward Addressing the State’s Housing Shortage

Ruegg & Ellsworth v. City of Berkeley
(2021) (Case No. A159218)

A recent Court of Appeal decision, Ruegg & Ellsworth v. City of Berkeley, is a win for land developers and a step toward solving the housing crisis in California.  In Ruegg & Ellsworth, filed April 20, 2021, California’s First District Court of Appeal reversed the trial court’s denial of the petition filed by the developer of a mixed-use project.  The project was rejected by the city after the developer sought approval under the streamlined, ministerial process provided for in Senate Bill No. 35 (SB 35), which added section 65913.4 to the Government Code effective January 1, 2018.  For housing developments in the state, this case signals judicial deference will be given to the strong legislative intent to address the housing shortage.

Senate Bill 35

If a locality has failed to provide its share of “regional housing needs, by income category,” section 65913.4 requires a “ministerial approval process” for certain affordable housing projects that satisfy all of the “objective planning standards” enumerated in the statute.  In addition to the objective planning standards, the project must not be located on a site where the development would require the demolition of “a historic structure that was placed on a national, state, or local historic register.”  SB 35 is a measure adopted by the state legislature to reduce the housing shortage, and affordable housing shortage in particular.

The City’s Denial of Project Application

 The city denied the developer’s application to build 260 dwelling units, 50 percent of which would be affordable to low-income households, over approximately 27,500 square feet of retail space and parking.  The city’s denial letter stated that SB 35 could not constitutionally be applied to the project because of the city’s right, as a charter city, to govern itself with regard to municipal affairs, including protection of local landmarks.  And, even if SB 35 applied, the city maintained the project did not satisfy the requirements for ministerial approval due to the fact that the project might require demolition of historic structure that has been placed on a state and local historic register.  The city’s decision on this point was linked to its finding that the project is in an area (the West Berkeley Shellmound) designated a city landmark and listed in the state register of historical resources.

No Deference to the City’s Historic Structure Determination

The court did not agree with the trial court’s application of a deferential standard of review to the city’s determination that the project will require demolition of a historic structure.  The court found compelling the developer’s position that the standard of review applied by the trial court “effectively nullifies the legislative intent in section 65913.4 by insulating from review the fact-finding underlying an agency’s determination whether its ministerial duty to approve a project is triggered.”

The court reasoned that the deferential standard was applied in error because whether the Shellmound is a “structure” within the meaning of SB 35 is a legal issue the court reviews de novo, and whether the Shellmound exists on the project site is a question of fact.  However, the court did not go as far as defining the applicable standard because the record did not support the city’s conclusion that the project would require demolition of a historic structure placed on a historic register.  Importantly, the landmark designation for the area does not include any above ground buildings or structures; instead, it includes “the site itself and all items found subsurface including artifacts from the earliest native habitation, such as but not limited to native tools, ornaments, and human burials.”  Despite the city’s and intervenor’s creative attempts at interpreting and defining a “structure,” the court stated that while the Shellmound is an important historical and cultural resource, designated by the city as a “site,” SB 35 uses the term “structure,” and not “resource” or “site,” and the legislature is “certainly aware of the distinctions between these terms.”

The court also rejected the intervenor’s argument that tribal cultural resource protections under Assembly Bill 831 should be applied to the project even though they were enacted after the project application was submitted.

The City Is Not Exempt from SB 35

The city also argued that applying SB 35 would impermissibly interfere with the city’s “home rule” authority over historic preservation and the city was therefore exempt from SB 35.  To determine whether a matter comes within a charter city’s home rule authority, courts analyze four issues: whether the city ordinance at issue regulates an activity that can be characterized as a municipal affair; whether there is an actual conflict between local and state law; whether the state law addresses a matter of statewide concern; and whether the law is reasonably related to resolution of that concern and narrowly tailored to avoid unnecessary interference in local governance.  All parties and the court agreed that local historic preservation is a municipal concern, and the city’s landmark preservation ordinance is in a direct conflict with SB 35.  The legislative history and intent of the state housing laws in general, and SB 35 in particular, as well as applicable case authority, indicate that access to affordable housing is a matter of statewide concern.

The city argued that the statewide interest in housing does not automatically translate into a statewide interest in eliminating local agency authority of landmark designation.  The court rejected this framing of the issue and explained that the constitutionality of section 65913.4 does not turn on there being a statewide interest in limiting local historical preservation authority, but rather on whether the statewide interest in increasing affordable housing sufficiently justifies the legislation’s impact on that authority.  The relevant question, therefore, is whether the statute is reasonably related to resolving the statewide interest it addresses and does not unduly interfere with the city’s historical preservation authority.  The court answered the question with a “yes” based on the long history of legislative attempts to address the state’s housing crisis and frustration with local governments’ interference with that goal, and the highly subjective nature of historical preservation.

Similarly, as to the city’s argument that SB 35 interferes with its land use authority, the court held that the extent to which SB 35 interferes with local regulation of commercial uses appears to be fairly minimal, and incidental to the statute’s purpose of facilitating development of affordable housing.

The Court Ruled Against the City on Other Issues

Lastly, the court addressed whether SB 35 applies to mixed-use development.  The court followed the statute’s purpose, which is to expedite processing of affordable housing development, as well as the purpose of the state housing laws in general, and held SB 35 applies to mixed-use development.  The court also rejected the city’s argument that it could rely on its affordable housing ordinance to deny ministerial approval to a project providing 50 percent low-income housing because the city’s argument would frustrate the purpose of SB 35.  And, the court concluded the city’s traffic impact reason for denial, which was not specifically raised in the pre-denial letter required by SB 35 to be provided to the applicant, was waived.

[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.]

Court of Appeal Upholds EIR for Expansion of Rock Quarry Operation

Stop Syar Expansion v. Cty. of Napa
(No. A158723) __ Cal.App.5th __ [2021 WL 1596347], as modified (Apr. 23, 2021)

The California Court of Appeal (First Appellate District) recently delivered a victory to the County of Napa in a long-running challenge to the expansion of a rock quarry located outside the City of Napa. The published portion of the opinion focuses on the California Environmental Quality Act (CEQA) requirements for environmental impact reports (EIRs) to discuss any inconsistencies between the proposed project and applicable planning documents. The opinion also provides a detailed overview of general CEQA principles, including the standard of judicial review of EIRs and the requirement for petitioners to exhaust their administrative remedies.

As background, in 2008, the rock quarry operator proposed to expand the existing 472-acre operation by 291 acres, and to increase quarry production from 1 million to 2 million tons annually. After more than seven years of environmental review and numerous hearings, in October 2015, the County Planning Commission certified the project’s final EIR. The Planning Commission also approved a modified version of the project, which included an expansion “half the size originally sought” — an expansion by 106 acres and an increase in production to 1.3 million tons annually. The approval was also subject to more than 100 pages of conditions and mitigation measures.

The petitioner in this case, Stop Syar Expansion (SSE), appealed the EIR certification and project approvals to the County Board of Supervisors, claiming deficiencies “in a multitude of respects.” The County Board then conducted nearly a year of additional environmental review and hearings and, in a 109-page decision, rejected SSE’s appeals, certified the EIR, and approved a further modified project. SSE then filed a lawsuit challenging the certification of the EIR under CEQA. After “winnowing down” its claims, SSE asserted 16 alleged deficiencies with the EIR. The trial court denied the petition in a 42-page ruling, and the Court of Appeal affirmed, in a partially published 86-page opinion.

General Plan Consistency

The published portion of the Stop Syar Expansion opinion focuses on SSE’s claim that the EIR failed to address the project’s asserted inconsistencies with the County’s general plan. As an initial matter, the Court of Appeal agreed with the County and quarry operator that whether a proposed project is consistent with the applicable planning documents “is not a CEQA issue” and, therefore, the petitioner was required to raise this issue by way of a separate cause of action (or separate proceeding) for ordinary mandamus, under Code of Civil Procedure section 1085.

Specifically, in the context of planning and land use law, every California county and city is required to adopt “a comprehensive, long-term general plan for the development of the county or city.” (Gov. Code, §65300.) The propriety of virtually any local decision affecting land use and development depends upon consistency with the applicable general plan and its elements. As to the standard of judicial review, when courts review an agency’s decision that a project is consistent with its own general plan, they accord “great deference” to the agency’s determination. This is because the agency which adopted the general plan policies in its legislative capacity has “unique competence” to interpret those policies when applying them in its adjudicatory capacity. A reviewing court’s role is simply to decide whether the agency “considered the applicable policies and the extent to which the proposed project conforms with those policies.” Courts can reverse an agency’s finding of general plan consistency only if the petitioner shows the determination was unreasonable.

Here, the County determined the rock quarry expansion project is consistent with the general plan. The petitioner SSE did not challenge this finding based on the applicable standard of review. Instead, it contended there was a CEQA violation because the EIR failed to disclose alleged inconsistencies with the general plan, which violated CEQA’s informational requirement to “adequately inform the public and decisionmakers” about the project’s potential impacts.

The CEQA Guidelines require an EIR to discuss any inconsistencies between the proposed project and applicable general plans, specific plans, and regional plans. (14 Cal. Code Regs., §15125(d).) Thus, while there is no requirement that an EIR itself be consistent with the relevant general plan, it must identify and discuss any inconsistencies between the proposed project and the governing general plan. Such inconsistencies may be evidence of a significant environmental effect. However, no analysis is required if the project is consistent with the relevant plans.

The Stop Syar Expansion opinion shows that if a petitioner alleges an EIR fails to discuss general plan inconsistencies in violation of CEQA Guideline §15125(d), the petitioner must first establish that the proposed project is inconsistent with the applicable general plan. To do so, it must meet the “highly deferential” standard of review applicable to an agency’s consistency determination under the general planning and land use law, discussed above. There is no separate standard of review to determine “inconsistency” for purposes of alleged violations of CEQA’s informational requirement. SSE’s attempt to create a separate CEQA standard failed.

The Court also considered — and rejected — the merits of SSE’s general plan consistency argument. The Court found that the project’s consistency with the general plan was addressed at length “throughout the environmental review process.” For example, each technical section of the EIR included a detailed discussion of consistency with general plan policies. The County also prepared a “General Plan Consistency Analysis” that was considered during proceedings before both the Planning Commission and Board of Supervisors. The Court found that this provided ample basis for public discussion of the project’s consistency with the general plan and informed decision-making. In fact, the record showed that the general plan policies contemplate and allow rock aggregate mining on the subject property — neither a general plan land use re-designation nor a rezoning of the property are necessary to accommodate the expansion of the quarry, which has been in existence since the 1800s.

In short, Stop Syar Expansion makes clear that “inconsistency” for CEQA purposes is no different than for purposes of general planning and land use law. To determine if a proposed project is “inconsistent” with an applicable general plan, specific plan, or regional plan, courts will give great deference to the agency’s determination of consistency, and petitioners bear a heavy burden to show that the agency’s interpretation of its own plan was in error — courts will decline to “micromanage” such decisions.

CEQA “101” – Standard of Review and Issue Exhaustion

Finally, as mentioned above, the partially published Stop Syar Expansion opinion also provides a detailed overview of general CEQA principles.

First, the opinion enumerates the standard for judicial review where petitioners challenge the content and analysis of an EIR. Most notably: (i) an EIR is presumed adequate and the petitioner has the burden of proving otherwise; (ii) the court’s inquiry extends only to whether there was a prejudicial abuse of discretion, and courts accord greater deference to the agency’s substantive factual conclusions than to alleged procedural errors; and (iii) the ultimate inquiry is whether the EIR includes enough detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” Courts look “not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (CEQA Guideline, §15151.)

In addition, the opinion provides a comprehensive overview of the “exhaustion of administrative remedies” doctrine. Before a CEQA challenge may be presented to a court, the petitioner must first exhaust the remedies available with the administrative agency. The essence of the exhaustion doctrine affords the public agency an opportunity to receive and respond to articulated factual issues and legal theories before its actions are subjected to judicial review. The petitioner has the burden of proof to show exhaustion occurred. In this regard, string-cites to the record without explanation is not sufficient — the petitioner must show that the public agency was “fairly apprised” of the asserted noncompliance with CEQA.

Further, whether exhaustion has occurred will depend upon the procedures applicable to the public agency in question. Stop Syar Expansion involves the fairly common scenario where the local ordinance provides for an administrative appeal ­— the Planning Commission’s actions are appealable to the County Board. In such a case, the failure to appeal the Planning Commission’s actions in the manner prescribed by the ordinance is a failure to exhaust administrative remedies. Thus, compliance with the local administrative procedures is key to establishing standing to bring a CEQA lawsuit.

Key Takeaways

Stop Syar Expansion is among the key opinions discussing the interplay between CEQA and the requirement that land use decisions must be consistent with the applicable general plan. The opinion also provides a great resource for those looking for an in-depth discussion of core CEQA principles, such as the standard of review for challenges to an EIR, and the jurisdictional requirement to exhaust administrative remedies before a CEQA lawsuit may be brought.

[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.]