Category: GDB Insights

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.]

Hilltop Group, Inc., et al. v. County of San Diego et al.
(Case No. D081124) (2024 WL 653387)

In a significant ruling, Division One of the State of California’s Court of Appeal, Fourth Appellate District, addressed a dispute between Hilltop Group, Inc. (Hilltop) and the County of San Diego (County) concerning the environmental review process for a construction and demolition debris recycling facility. The case centers on the California Environmental Quality Act (CEQA) and its application to a project consistent with a general plan that has already undergone programmatic environmental review. Our firm, with David Hubbard as lead counsel, represented Hilltop in the administrative and judicial proceedings summarized below, which culminated in a favorable decision for Hilltop.

Factual Background

In 2011, the County adopted its General Plan Update (GPU), which designated the subject property for industrial use; the environmental impacts of the GPU were evaluated in a certified program environmental impact report (PEIR) prepared pursuant to CEQA. The PEIR conducted a programmatic review of the GPU’s environmental effects, noting that detailed analyses for specific projects would follow to determine further CEQA review requirements. The PEIR also found that some impacts, such as those associated with aesthetics, air quality, noise, and traffic, would remain significant and unavoidable.

The firm’s client, Hilltop, proposed the establishment of a recycling facility (project) on the subject property, aiming to support recycling efforts in line with the County’s environmental sustainability goals. Following its consideration of detailed technical analyses, County staff ultimately determined the project was exempt from further CEQA review, based upon application of Public Resources Code section 21083.3 and its companion regulation, State CEQA Guidelines section 15183, which exempt projects consistent with a general plan for which an EIR has been certified. However, following public opposition, the County Board of Supervisors concluded that a full environmental impact report (EIR) was necessary due to potential significant environmental impacts that allegedly were not fully analyzed in the GPU PEIR. The County Board cited specific concerns about air quality, noise, traffic, and greenhouse gas emissions.

Legal Framework

The Court’s analysis began with an overview of CEQA’s purpose—to evaluate and mitigate the environmental effects of projects before they are undertaken—and the specific exemption at issue. Under Guidelines section 15183, projects consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR has been certified can be exempt from further environmental review. This exemption aims to streamline the approval process for projects aligning with previously analyzed and adopted plans.

The Court also discussed the standard of judicial review within the context of CEQA in relation to the use of statutory exemptions for projects. It rejected the County’s position that  the “fair argument” standard applied, and instead held that the “substantial evidence” standard applies when reviewing agency decisions regarding statutory exemptions, such as the one provided by section 15183.

Court’s Analysis

The Court first evaluated whether the project was consistent with the County’s GPU, particularly its goals for recycling and waste management. The Court noted the importance of the project’s alignment with GPU policies to qualify for the CEQA exemption. Because the project was consistent with the GPU for which the PEIR was certified, the streamlined process in section 15183 was applicable to the project.

The Court then observed that the language of section 15183 limits environmental review for qualifying projects to those effects that are peculiar and project specific, or not addressed as significant in the prior environmental impact report. The Court held that limiting environmental review to effects not previously examined as significant in the PEIR is essential to avoiding redundancy and streamlining the review process for projects within the scope of a PEIR.

As to whether the project posed new significant environmental impacts beyond those analyzed in the GPU PEIR, the Court scrutinized the County’s rationale for determining that additional impacts—such as increased traffic, noise, and potential harm to local ecosystems—warranted a full EIR. The Court reviewed the applicability of section 15183, focusing on environmental impacts that are peculiar to the project and defined peculiar impacts as those unique to the project or characteristic of only the project.

The Court highlighted that if uniformly applied development policies or standards had been previously adopted with a finding that they would substantially mitigate environmental effects, then an impact should not be considered peculiar to the project unless new substantial information indicates otherwise. Specifically, subdivision (f) of State CEQA Guidelines section 15183 states impacts of future projects, which can be substantially mitigated by policies or standards that have been previously adopted and are uniformly applied, should not be considered “peculiar.” Therefore, the Court focused on whether there was substantial evidence supporting the County’s findings that there are specific impacts from the project that would not be significantly mitigated by these existing policies and procedures. This implies a nuanced approach to assessing exemptions, where the project’s unique impacts are considered in light of the mitigating effect of pre-existing regulatory measures.

Central to the Court’s decision was whether the County Board’s rejection of the staff recommendation was based on substantial evidence of potential significant environmental impacts not previously considered. The Court emphasized the legal standard for overturning agency decisions under CEQA, which requires a showing that the agency’s findings were not supported by substantial evidence. The Court evaluated whether there was substantial evidence supporting the County Board’s findings of peculiar impacts in areas such as aesthetics, noise, traffic, greenhouse gas emissions, and air quality and concluded that the record did not support findings of peculiar impacts that would not be substantially mitigated by previously adopted and uniformly applied policies and standards.

Conclusion

The Court ultimately ruled in favor of the firm’s client, Hilltop, concluding State CEQA Guidelines section 15183 was applicable to the project because it was consistent with the GPU for which a PEIR was certified. The Court held that the County’s decision to require a full EIR was not supported by substantial evidence. This decision underscores the significance of the substantial evidence standard in CEQA litigation and reaffirms the role of general plan consistency in determining the need for further environmental review.

[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.]

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

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

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

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

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

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

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

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

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

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

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

The FAA Did Not Violate NEPA’s Environmental Justice Requirements

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

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

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

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

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

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

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

Status of Each Plan’s Processing

County of San Diego

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

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

County of Los Angeles

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

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

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

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

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

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

Climate Action Plan Reduction Targets

County of San Diego

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

County of Los Angeles

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

Carbon Offset Options

County of San Diego

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

County of Los Angeles

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

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

Availability of Off-Site Reduction Programs

County of San Diego

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

County of Los Angeles

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

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

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

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

Streamlining Subsequent CEQA Analyses

County of San Diego

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

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

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

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

County of Los Angeles

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Factual Background

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

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

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

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

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

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

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

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

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

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

Unpublished CEQA Holdings Resolved in the City’s Favor

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

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

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

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

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

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

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

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

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

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

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

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

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

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