A Reminder from the Second District Court of Appeal – It’s Not Easy Being an MND

Environmental/Land Use Alert (April 13, 2020)

In Save the Agoura Cornell Knoll v. City of Agoura Hills, Case Nos. B292246, B295112, the City of Agoura Hills (City) appealed the trial court’s issuance of a petition of writ of mandate directing the City to set aside its approval for a mixed-use development project. This case involves two orders by the trial court: (1) a writ of mandate directing the City to set aside its project approval and prepare an environmental impact report (EIR) rather than a mitigated negative declaration (MND); and, (2) an attorney’s fees award to the petitioners. The Second District Court of Appeal upheld both trial court orders.

The project at issue is located in Agoura Hills, in an area composed mostly of grasses and oak trees and home to three protected plant species. The area is classified as a Significant Ecological Area under the Agoura Village Specific Plan and contains a historic site listed on the California Register of Historic Resources. These unique characteristics play a critical role in the Court’s decision to overturn the City’s approval of the project.

Under CEQA, a lead agency must prepare an EIR for any project that may have a significant effect on the environment. Or, if the lead agency determines the project will have potentially significant environmental effects, but those effects can and will be fully mitigated, the agency may prepare an MND. Courts review an agency’s decision to prepare an MND under the fair argument standard of review, which is a very low threshold that strongly favors preparation of an EIR.

The City argued its cultural resources analysis was sufficient because the adopted mitigation measures would reduce any impact to a less-than-significant level. The Court did not agree. The City’s MND stated the project would have significant impacts on a prehistoric archeological site that is listed on the California Register of Historical Resources, but its mitigation measures would reduce this impact. The mitigation measures required monitoring during ground-disturbing activities, notification procedures if human remains were found, and an excavation program. The Court determined these measures did not ensure the archeological site would be avoided; thus, there was a fair argument the impact would be significant.

Next, the City argued its analysis on sensitive plant species was sufficient. The City’s MND concluded impacts to three sensitive plant species would be significant but reduced to a less-than-significant level through three mitigation measures requiring the project to: (1) conduct a plant survey, (2) avoid the plants, and (3) restore the plants if they could not be avoided. Relying on statements from the California Department of Fish & Wildlife that the field surveys referenced in the MND were outdated and the project may have a significant impact to biological resources, the Court found a fair argument there would be a significant impact.

The City then contested the trial court’s holding than an EIR was required to analyze the project’s impacts on native oak trees. The City has an Oak Tree Ordinance, designed to protect or replace oak trees that may be disturbed by development. The project in this case was going to remove 29 of the 59 oak trees at the site, which the City determined was a significant impact. The City concluded this impact would be reduced to less than significant through two mitigation measures that required the replacement of any lost oak trees or payment of a fee so the City could buy land to plant new oak trees. However, there was evidence in the record that grading would still impact the oak trees that were not removed, the oak tree preservation plan may fail, and the fee portion of the mitigation was improper deferral. For these reasons, the Court agreed there was a fair argument the impact would be substantial and an EIR was required.

Overall, the Agoura Hills project seemed to be a recipe for disaster for purposes of processing an MND as it was home to sensitive plant species, protected oak trees, and a historically-listed archeological site. While the road for a judicially approved MND is always challenging, one may wonder whether this MND ever really stood a chance.

Finally, the Court addressed attorney’s fees. The City argued petitioners were not entitled to fees because they failed to provide adequate notice to the Attorney General as required under Public Resources Code section 21167.7. Although the petitioners timely mailed their original petition for writ of mandate to the Attorney General, they mailed their amended petition several months late. The Court held the petitioners were not barred from recovering fees based on their failure to strictly comply with the notice requirement of section 21167.7.

[This case 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.]