CEQA Lawsuits: Coming Soon to a Neighborhood Near You

Environmental/Land Use Alert (March 3, 2020)

UPDATE: March 12, 2020. Canyon Crest Conservancy v. County of Los Angeles has been certified for publication at the request of the California Building Industry Association. 

The abusive potential of the California Environmental Quality Act (CEQA) by disgruntled neighbors and Not in My Backyard (NIMBY) opponents is embodied in the unpublished Canyon Crest Conservancy v. County of Los Angeles (Case No. B290379) opinion recently issued by the Second District Court of Appeal.

The “project” was a simple one — landowner Stephen Kuhn sought to build his “dream home,” a “modest, net-zero” single-family residence of 1,436 square feet on his undeveloped 1.04-acre property in Los Angeles County. Because the property was located on a steep hillside and construction would require the removal of one protected coastal oak tree, in 2014, Kuhn filed an application for a minor conditional use permit and oak tree permit from the County. As to CEQA compliance, the County determined the project was categorically exempt from CEQA, but nevertheless prepared an initial study to assess potential environmental impacts and permit public comment.

Kuhn faced two opponents in the owners of neighboring homes. The Lynches objected to the project’s effect on their views of the canyons and trees, also complaining that they had relied on flat area of Kuhn’s property for their own storage and off-street parking for years. The Lynches further stated the project would adversely affect their privacy and property values. Baer and Wilson, owners of the property across from Kuhn’s property, also complained about the loss of privacy and light and canyon views, and potential oak canopy impacts.

The Lynches and Baer joined forces and formed “Canyon Crest Conservancy,” a “nonprofit public benefit corporation” that unsurprisingly had no prior or subsequent record of environmental advocacy beyond objecting to Kuhn’s home. Baer served as president and John Lynch as vice president and secretary. With counsel onboard, the Conservancy retained an arborist and submitted comments objecting to the Kuhn’s dream home for its impacts on oak trees.

Kuhn modified his design to reduce any impact on oak trees. The County’s hearing officer approved Kuhn’s application and adopted a negative declaration. The Conservancy appealed the decision twice, once to the Regional Planning Commission and once to the Board of Supervisors. When the Board ultimately approved the project, six public meetings/hearings had been held and three years had passed since Kuhn’s initial permit application. Intent on killing the project, the Conservancy filed suit alleging violations of CEQA and other laws. It sought and was granted an administrative stay. About a year into the litigation, Kuhn “could not afford to continue the litigation,” and requested the County vacate the permit approvals. Upon permit vacation in February 2018, “[o]ne of the supervisors expressed her disappointment that Kuhn, who had lawfully met every requirement, would be unable to build because appellant had ‘abused the C.E.Q.A. process as it relates to this project.’”

Adding insult to injury, the Conservancy then filed a motion for attorney fees, seeking a whopping $289,554 for a case that never reached the merits. Kuhn, appearing on his own behalf, as he always had below and on appeal, opposed.

If there is any upside to this story, it is in the trial court’s denial of the neighbors’ fee motion, which was upheld by the Court of Appeal. According to the Court, the lawsuit failed to enforce an important right or confer a significant public benefit as required by Code of Civil Procedure section 1021.5. The Court refreshingly recognized the “Conservancy” as merely the neighbors’ alter ego — and the neighbors’ were not entitled to fees where their admitted concern was not the environment but rather “the effect of the project on their personal property” and “their ability to use Kuhn’s property for parking.” The Court also noted that while the neighbors obtained a stay and the permits were withdrawn, it achieved no greater good — the County was unlikely to make any changes reviewing future proposals where it felt both the County and Kuhn had acted properly under CEQA.

While CEQA compliance may result in beneficial project changes and promote informed decision-making, it is impossible to overlook the fact that many participate in the CEQA process just to delay or kill a project. CEQA affords no protection for such attacks under the guise of “environmentalism” and, unfortunately for Kuhn and others of limited means, the costs of CEQA compliance, agency hearings, and legal defense can quickly add up to render a project economically infeasible. Until there is some change in the law, we’ll just have to hope that the courts, like the Second District here, continue to see through the “environmentalist” mask in such cases, and at least do not force a proponent to also foot the bill of NIMBY objectors.

[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.]