U.S. Supreme Court Tells Cities to Explain a Cell Tower Denial in Timely Fashion, Even if in a Separate Document

The tension between demand for high-quality, ubiquitous cell phone service and opposition to cell towers in residential neighborhoods has resulted in significant disputes between wireless carriers and municipalities over siting of such towers. Typically, the fight begins and ends at a city council.  Recently, however, one such dispute resulted in a U.S. Supreme Court decision, T-Mobile South, LLC v. City of Roswell, Georgia,  No. 13-975, Jan. 14, 2015, which delved into procedural issues associated with denial of proposed cell towers and provided guidance to municipalities as to how and when such denials must be explained.Cell Phone Tower

T-Mobile proposed to construct a cell tower (disguised as a 108-foot tall pine tree, as required by local ordinance) on a vacant residential property.  As is often the case, there was substantial neighborhood opposition to the new tower based on concerns that it was not needed, that the technology was outdated,  and that it was aesthetically incompatible with the neighborhood.  The application was discussed at a public meeting and ultimately rejected by the City Council.  After the meeting, the City sent a notice of the denial to T-Mobile but without any written explanation.  Minutes of the Council meeting were published 26 days later, shortly before the deadline to file suit challenging the denial.

Approval or rejection of cell phone towers is addressed in the federal Telecommunications Act of 1996. In that Act, Congress delegated to the local governments the power to consider cell tower applications and required that a denial of an application “be in writing and supported by substantial evidence contained in a written record.” T-Mobile argued that the denial, while in writing, did not contain any explanation and, as such, could not be supported by substantial evidence. The City argued that T-Mobile representatives were present at the public meeting and thus knew the reasons. On top of that, they claimed, the release of the meeting minutes 26 days later (and four days before a petition for judicial review was due) satisfied the Act’s requirement of a written explanation. The Eleventh Circuit upheld Roswell’s denial, and the Supreme Court granted certiorari to resolve a conflict between the circuits.

With a surprising degree of dissension on a seemingly simple issue, the Court addressed conflicting views in the Courts of Appeal and ultimately determined that a City need not include the rationale for its denial of a cell tower application in the denial document itself, provided it states those reasons with sufficient clarity in some other written record issued essentially contemporaneously with the denial. The Court did not set a precise time limit between the denial and the statement of reasons, but concluded that the 26-day delay between the notice of denial and release of the detailed minutes in this case did not satisfy the “essentially- contemporaneous” standard. It reasoned that a near-contemporaneous statement of reasons was necessary because suit must be filed within 30 days, and the record must reflect the stated rationale in order to enable judicial review. Justice Sotomayor, who delivered the majority opinion, criticized Chief Justice Robert’s dissenting view, under which the locality would have been allowed to withhold its explanation for denial until after the lawsuit is filed. The majority opinion, in a sharply worded footnote, observed that such a practice would lead to post hoc rationalization by the public agency in its defense of its action.

Ultimately, the Court remanded the case for further proceedings, and the City of Roswell may well deny the application again, but this time in a letter with some explanation. The Court was painstaking in its refusal to even consider whether the denial was actually based on “substantial evidence,” leaving to another day the question of whether a locality can deny a cell tower application based primarily on NIMBY concerns. The Court also offered little guidance on what sort of written record is needed to pass procedural muster.  It acknowledged that “a locality may rely on detailed meeting minutes as it did here,” but suggested that “the local government may be better served by including a separate statement containing its reasons.”

California Supreme Court Poised To Decide Key CEQA Questions: The Court’s Lineup For 2015

California Supreme CourtThe California Supreme Court’s involvement in CEQA cases has been relatively limited since the statute’s enactment in 1970, with the court taking review of at most one or two appellate court decisions a year.  The last two years have, however, seen a dramatic shift in this trend, with the result that the court now has nine pending cases on its docket.  The pending cases span a broad range of issues, but they all involve fundamental questions:  the breadth of CEQA’s reach, the scope of agency discretion, the vitality of categorical exemptions, limits on mitigation obligations, and procedural limitations on CEQA litigation.

  • The court’s review in one case will include a key issue regarding CEQA’s scope — does required environmental review end with effects of the project on the environment, or must the environment’s impact on the project also be examined?  The court’s decision should squarely resolve this issue.
  • A pair of cases before the court involve categorical exemptions and the exception for significant impacts resulting from “unusual circumstances.”  Courts of appeal have issued conflicting decisions on this topic, and the high court’s decision on this question could have a major effect on the efficacy of these commonly used exemptions.
  • Limits on judicial review of an agency’s CEQA decisions is the subject of two cases before the court. In both cases, the courts of appeal took an expansive view of the powers of the court to reevaluate agency decisions. The high court may conclude that greater deference is owed lead agencies in light of their knowledge and expertise in the subject matter.
  • In two cases, the court will address potential limitations on the mitigation required for environmental impacts, including whether fiscal constraints can be used to limit mitigation measures and whether impacts on public services such as emergency and fire services must be mitigated.
  • The court will decide the important question of whether judicial review is limited to CEQA claims raised prior to the close of the period for public comment on a draft EIR, or whether issues raised for the first time during later hearings may also be considered.
  • Finally, the court will tackle another subject of conflicting appellate decisions — the effect of federal preemption on application of CEQA to publicly operated railroads. Resolution of the case will likely have significant implications for California’s High Speed Rail project.

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Federal Court Invalidates San Francisco Tenant Relocation Requirements

The Northern District of California has struck down part of San Francisco’s rent control ordinance as an unconstitutional taking under the Fifth Amendment in Levin v. City and County of San Francisco, Dist. Court, ND California 2014, No. 3:14-cv-03352-CRB (N.D. Ca Oct 21, 2014). The case may have important implications for monetary exactions in local land use permitting.

At issue in Levin were the relocation payments required by the 2014 amendments to the San Francisco rent control ordinance. Under the ordinance, owners of rent-controlled property were required to make certain payments for tenants evicted under the Ellis Act. Under the 2014 amendments to the rent ordinance, in order to withdraw the unit under the Ellis Act, property owners were required to pay the greater of the lump sum required under the original ordinance or an amount equal to twenty-four times the difference between the unit’s current monthly rate and the fair market value of a comparable unit in San Francisco.

Plaintiffs, owners of rent-controlled properties in San Francisco, filed suit, bringing a facial challenge against the 2014 ordinance as violating the Takings Clause of the Fifth Amendment.

The court ruled in favor of the plaintiffs, finding that the 2014 ordinance constituted an exaction that violated the Takings Clause. The court first held that the San Francisco ordinance, which demanded monetary payment from the property owners in exchange for a permit to remove a unit from the rental market, had to satisfy the Nollan/Dolan requirements of essential nexus and rough proportionality. Next, the court found that the ordinance could not meet either of those requirements. Both steps in the court’s analysis may prove important in future cases involving monetary exactions.

Extending the reach of Nollan/Dolan

The Nollan/Dolan standard constitutes a special application of the unconstitutional conditions doctrine to the government’s land use permitting power. The Nollan and Dolan cases specifically applied to adjudicative land use exactions involving a government demand for property owners to dedicate an easement as a condition of obtaining a development permit. The central concern in these two cases was that the government may use its substantial power in land use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the property.

The Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District expanded the reach of Nollan and Dolan to monetary exactions. Because of the direct link between the government’s demand and a specific piece of real property, the Court held that the central concern in Nollan and Dolan was implicated and application of the standard to monetary exactions was appropriate.

Levin followed the Koontz logic in applying Nollan and Dolan to San Francisco’s rent ordinance. In applying, Koontz, it made several significant holdings:

  • Levin held that applying the Nollan/Dolan standard to the demand for relocation payments was appropriate because the demand for payments operated upon an identified property interest by directing the owner of a particular piece of property to make a monetary payment. Thus, even though the rent ordinance did not impose a deed restriction, a covenant, or even a lien on the property, the Nollan/Dolan standard still applied because the fees demanded were directed at a particular piece of property.
  • Prior to Koontz, Ninth Circuit precedent held that the Nollan/Dolan standard was limited to ad hoc or adjudicatory exactions and did not apply to legislatively imposed exactions. Levin interpreted Koontz as removing the legislative/adjudicative decision and held that the rent ordinance relocation payments, despite being legislatively imposed, were nevertheless subject to the requirements of Nollan/Dolan.
  • Prior to Koontz, it was thought that the Nollan/Dolan standard did not apply to facial takings claims. Levin read Koontz as abrogating this precedent in finding the rent ordinance unconstitutional on its face.

Applying the Nollan/Dolan standard

Levin also provides an important discussion of the necessary relationship between the impact of the permitted action and the fee demanded under Nollan/Dolan. The court stressed that mere “but-for” causation is insufficient to satisfy the requirements of essential nexus and rough proportionality. The city argued that the relocation payment was justified because the property owner’s withdrawal of a unit from the housing market “causes” the evicted tenant to be exposed to market rents. This justification, however, was not sufficient to meet the requirements of Nollan/Dolan. While an eviction arguably results in certain costs such as relocation costs, it does not cause the gap in affordability that the property owners were forced to pay under the 2014 ordinance. Thus, the court concluded, the monetary exaction demanded neither shared an essential nexus with nor was roughly proportional to the impact of the withdrawal of the rental unit.

Conservation Easements Not Required As Mitigation For Permanent Loss Of Farmland

In Friends of the Kings River v. County of Fresno, the California Fifth District Court of Appeal upheld the County of Fresno’s adoption of an Environmental Impact Report for a mining operation that will result in a permanent loss of 600 acres of farmland.  Most notably, the Court held that a County is not required to adopt an agricultural conservation easement as a mitigation measure for a project causing direct loss of farmland, even where agricultural conservation easements are economically feasible.

The subject of the appeal was the Carmelita Mine and Reclamation Project, a proposed aggregate mine and related processing plant in the Sierra Nevada Foothills, about 15 miles east of the City of Fresno.  The 1,500-acre site has significant mineral deposits, and is currently used for growing row crops and stone fruit trees.

The petitioners, Friends of the Kings River, challenged the project’s Environmental Impact Report under the California Environmental Quality Act, and the project’s reclamation plan under the Surface Mining and Reclamation Act of 1975

Friends first appealed approval of the project with the State Mining and Geology Board, who granted the appeal and remanded the reclamation plan to the County for reconsideration. The County approved a revised reclamation plan, and Friends appealed to State Mining and Geology Board again.  The Board denied the second appeal.

While the first appeal was pending, Friends petitioned for a writ of mandate, alleging abuse of discretion under CEQA.  The trial court denied the petition, and Friends appealed.  On appeal, Friends argued that the trial court erred by ruling on the petition before it was ripe for review, and that the EIR was inadequate under CEQA for a plethora of reasons.

The Fifth District dismissed Friends’ ripeness claim by finding that the State Mining and Geology Board’s grant of Friends’ first appeal did not affect the validity of the reclamation plan. Thus, the remand of the reclamation plan to the County did not affect the trial court’s ability to issue a ruling on the merits, or the County’s certification of the EIR and approval of the project.

The Court then addressed Friends’ contention that the County failed to require mitigation for the conversion of farmland in violation of CEQA.  The Court rejected Friends’ argument, noting that the EIR recommended three mitigation measures, which the Count upheld.  The Court also rejected the contention that the County was required to establish agricultural conservation easements to mitigate the permanent loss of 600 acres of farmland.  The Court held that while a County must consider using agricultural conservation easements as a mitigation measure for direct loss of farmland, it is not required to adopt an agricultural conservation easement as a mitigation measure, even where such an easement is financially feasible.

Friends asserted a number of additional CEQA challenges, but those too failed, as the Court found that there was substantial evidence to support the County’s findings.

Fortunately for project proponents, this decision maintains the variety of mitigation alternatives available when a project causes loss of farmland.  Project proponents whose project directly leads to farmland loss will not necessarily be required to mitigate with an agricultural conservation easement, but will still need to analyze adoption of such an easement, in order to comply with CEQA.

Friends of Kings River v County of Fresno,  F068818 (5th District 12/8/2014)

Court Blocks Opponents’ Shot at Halting New Kings Arena

The court of appeal recently upheld legislation modifying several deadlines for CEQA review of a project that includes a proposed new arena for the Sacramento Kings, rejecting a claim the statute violates separation of powers.  Saltonstall v. City of Sacramento, No. C077031 (3d Dist., Nov. 20, 2014).

In 2013, the National Basketball Association approved the sale of the Kings to a local group planning to build a new downtown Sacramento entertainment and sports center, including an arena for the team.  Yet the NBA also reserved the right to acquire and relocate the franchise to another city if a new arena does not open in Sacramento by 2017.

In response, the Legislature amended CEQA, exclusively for the downtown arena project, to expedite the environmental review process.  The City of Sacramento complied with the accelerated deadlines, certified an environmental impact report, approved the arena project, and promptly was sued by project opponents.

images[8]The court of appeal rejected the opponents’ constitutional challenge to the CEQA legislation, holding that the amendment does not materially impair the core function of the courts, the legal standard for finding a separation of powers violation.

First, the statute does not infringe on the courts’ power to issue injunctive relief.  The court of appeal acknowledged that the legislation changes the standards for injunctive relief in connection with the arena project, but ruled that the Legislature has the prerogative to specify which interests should be weighed against the benefits of a new arena.  Indeed, the court reasoned, the Legislature has the constitutional right to exempt the arena project entirely from CEQA review, so it follows that the Legislature may determine which interests must be considered in deciding whether to halt its construction.

Second, the legislation does not unconstitutionally impose impossibly short deadlines on the courts.  One statutory provision requires the Judicial Council to adopt a rule to facilitate completion of judicial review of the project’s CEQA compliance within 270 days.  The court upheld the challenged provision, noting that it imposes no penalty for judicial review that exceeds the specified period and thus is “suggestive” only.

On more than one occasion in recent years, the Legislature has treated large-scale sports venues differently for CEQA purposes.  This decision reaffirms the Legislature’s authority to do so.

EIR For SANDAG’s Regional Transportation Plan Rejected By Court Of Appeal

In a long-awaited 2-1 decision, a court of appeal overturned the environmental impact report for the San Diego Association of Governments’ 2050 Regional Transportation Plan and Sustainable Communities Strategy. Cleveland National Forest Foundation v. San Diego Association of Governments (4th Dist., Div. 1, No. D063288, Nov. 24. 2014).   The most remarkable ruling, in what is likely to be viewed as a highly controversial decision, is the majority’s finding that the EIR was deficient because it did not assess the plan’s consistency with the 2050 greenhouse gas emissions reduction goal contained in an executive order issued by the Governor in 2005.

Background of the Plan and SB 375

The decision concerns SANDAG’s Regional Transportation Plan which contains the Sustainable Communities Strategy required by SB 375. When it enacted SB 375, the Legislature recognized that cars and light duty trucks emit 30% of the state’s greenhouse gases. Accordingly, SB 375 required the Air Resources Board to establish greenhouse gas emissions reduction targets applicable to cars and light duty trucks for each of the state’s metropolitan planning regions. The initial targets set goals for the years 2020 and 2035. SB 375 requires the Air Resources Board to consider new targets every eight years. The targets set for the San Diego area required a 7 percent CO2 reduction by 2020 and a 13 percent reduction by 2035.

In addition, the Legislature recognized that to achieve these targets, changes would need to be made to land use patterns and policies. For this reason, SB 375 also required Regional Transportation Plans to include land use-related strategies for achieving the targets, called Sustainable Communities Strategies. The SANDAG Regional Transportation Plan was the first in the state to be adopted with a Sustainable Communities Strategy.

The plan, however, drew fire. While it showed greenhouse gas emissions reductions through 2020, it also showed increases in greenhouse gas emissions after that date. Project opponents argued this was inconsistent with SB 375’s goals, the policy in AB 32 requiring that emissions reductions achieved by 2020 be maintained past that date, and an executive order targeting larger scale emissions reductions by 2050.

EIR’s Analysis of Greenhouse Gas Emissions

In 2005, Governor Schwarzenegger issued an executive order establishing statewide targets for greenhouse gas emissions reductions that included reducing emissions to 1990 levels by 2020 and to 80 percent below 1990 levels by 2050.  The EIR found that SANDAG’s plan would reduce greenhouse gas emissions until 2020, but would increase them in later years.  While it discussed the 2050 emissions reduction target in the executive order, it did not treat the order’s 2050 emissions reduction target as a standard for assessing the significance of the plan’s greenhouse gas impacts.

The court’s majority agreed with the plan opponents held that the EIR’s greenhouse gas impacts analysis was inadequate for failing to analyze the plan’s consistency with the executive order. While the executive order was not a legislative enactment, and established only statewide rather than regional emissions reduction targets, the majority reasoned that the executive order led to later legislation that  “validated and ratified the executive order’s overarching goal of ongoing emissions reductions,” and therefore the executive order continues to “underpin the state’s efforts to reduce greenhouse gas emissions throughout the life of the transportation plan.”  According to the majority, the absence of an analysis comparing the plan with the executive order’s 2050 emissions reduction target amounted to “a failure to analyze the Plan’s consistency with state climate policy.”

In a footnote, the majority stated that it was not suggesting that the plan must achieve the Executive Order’s 2050 goal or any other specific numeric goal.  Rather, the court’s concern was that the EIR failed to recognize the conflict between the increase in greenhouse gas emissions under the plan and the decrease required by the Executive Order.

The majority rejected SANDAG’s argument that the EIR’s use of three different significance thresholds authorized by CEQA Guidelines section 15064.4(b) was sufficient, stating: “the use of the Guideline’s thresholds does not necessarily equate to compliance with CEQA, particularly where . . . the failure to consider the [plan’s] consistency with the state climate policy of ongoing emissions reductions reflected in the Executive Order frustrates the state climate policy and renders the EIR fundamentally misleading.”

Mitigation of Greenhouse Gas Emissions Impacts

The majority also held that the EIR did not consider a sufficient range of mitigation measures for greenhouse gas emissions, and should have discussed additional mitigation options that could “both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented.”  The EIR was deficient, according to the court, because it did not include measures that would encourage development of what the court referred to as ”smart growth areas” –  support for planning and development through transportation investments and other funding decisions,  incentives for transit-oriented developments, coordinating funding of low carbon transportation, and encouraging parking management that promote walking and transit use.

Alternatives Analysis

Although the EIR analyzed seven alternatives to the proposed plan, the majority nonetheless concluded that the EIR failed to analyze a reasonable range of alternatives. The majority found the EIR deficient because it had not discussed an alternative which could significantly reduce total vehicle miles traveled and instead emphasized congestion relief. Given the drawbacks of congestion relief as a strategy for reducing greenhouse gas emissions in the long term, the court concluded the EIR was fatally flawed because it did not include an alternative that would focus public transit projects.

Air Quality Impacts

The majority also found the plan’s air quality impacts analysis deficient. The arguments centered on the required level of detail in a program-level EIR.  The court noted that the fact that more precise information may be available during the next tier of environmental review, did not excuse SANDAG from providing in the EIR the information that is reasonably available now.  It found the EIR deficient because SANDAG had not identified sufficient evidence in the record showing it was not feasible to provide more definitive information on a number of issues:

  • Description of Existing Conditions. The EIR recognized regional growth and land use changes associated with the transportation plan had the potential to expose sensitive receptors to substantial localized pollutant concentrations, but asserted the level of exposure could not be determined until the next tier of environmental review when designs of individual projects became available. The majority nevertheless concluded that SANDAG’s failure to provide additional baseline information in the EIR’s description of existing toxic air contaminant exposure and the location of sensitive receptors violated CEQA.
  • Correlation to Adverse Health Impacts. The EIR generally identified the adverse health impacts that might result from the transportation plan’s air quality impacts.  The court held, however, that the EIR must either correlate the additional transportation plan-related emissions to anticipated adverse health impacts or demonstrate why it could not do so.
  • Inadequate Mitigation. The court also found the EIR’s mitigation of significant air quality impacts to be insufficient finding it improperly deferred analysis of appropriate mitigation measures and failed to set performance standards. SANDAG contended that no other mitigation was feasible at the program level of environmental review, but the court found that SANDAG failed to point to any evidence in the record supporting that contention.

Agricultural Resource Impacts

Finally, the court found fault with the EIR’s agricultural impacts analysis. SANDAG used data from the state’s Farmland Mapping and Monitoring Program to analyze the agricultural impacts of the project, as permitted by Appendix G of the Guidelines, augmented by SANDAG’s own geographic information system. The court found that the EIR’s analysis understated the impacts to agricultural resources because the FMMP data do not capture information for farmland under 10 acres and SANDAG’s own geographic information system may not have included agricultural lands that went into production after the mid-1990s. On this basis, the court concluded that the EIR’s analysis of impacts to agricultural resources violated CEQA.

The Dissenting Opinion

The dissent vehemently disagreed with the majority’s rulings on greenhouse gas issues.  The dissent expressed serious concern over the majority’s analysis of the executive order characterizing its ruling as an improper determination by the court of what significance standards SANDAG should have used.  This decision, according to the dissenting opinion, “strips lead agencies of the discretion vested in them by the Legislature and reposes that discretion in the courts.”    Stating the point even more bluntly, the dissent stated: “This insinuation of judicial power into the environmental planning process and usurping of legislative prerogative is breathtaking.”

Review by Supreme Court?

Not surprisingly, on December 5, 2014 the SANDAG board voted to file a petition with the California Supreme Court requesting that it review of the court of appeal’s decision.  SANDAG’s petition should be filed in early January.

 

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Coastal Commission Erred In Finding Property Owner Is Stuck With Unconstitutional Dedication Condition

In an opinion on rehearing, the Second District Court of Appeal overturned a California Coastal Commission decision that a condition of a county-issued coastal development permit could not be eliminated by a second coastal development permit the county issued for the same project. Bowman v California Coastal Commission, No. B243015, Oct. 23, 2014.  Focusing on the equities of the case, and the unfairness of the condition, the court refused to find that the county was barred from deleting the condition.

Background

The owner of a 400 acre parcel that included a lengthy stretch of shoreline in San Luis Obispo County applied to the county for a coastal development permit to rehabilitate an existing home on the property. Two years later, the county, acting as the local coastal permitting authority, issued the permit to the applicant’s successor, a family trust.   The permit was conditioned on the trust dedicating an easement for public access along the shorefront part of the property, even though the house was a mile from the shore. The trust didn’t appeal the dedication requirement to the coastal commission.

Nine months later, the trust applied for a second coastal development permit to replace a collapsed barn and to make the same improvements covered by the earlier permit.  The application also asked the county to remove the condition to the earlier permit requiring dedication of a coastal access easement. The county approved the application, including removal of the access easement condition, expressly acknowledging that the condition required an unconstitutional taking of property.  .

Concerned that the county had eliminated a valid existing coastal access easement, the Sierra Club, Surfrider Foundation, and two coastal commissioners appealed the county’s approval of the second coastal development permit to the coastal commission. The commission granted the appeal, determining that the easement was permanent and the applicant was bound by it because it didn’t contest the condition after it was imposed.

Decision

The court of appeal overturned the coastal commission’s determination.  The court rejected the opponents’ argument that the trust was stuck with the easement condition because it had not filed a legal challenge to it after the first permit was issued.  The opponents relied on the general rule that when an administrative tribunal renders a quasi-judicial decision and an administrative mandamus petition is not filed to contest it, collateral estoppel bars the agency from reconsidering the same issues. The court disagreed, concluding that it would be inequitable to apply collateral estoppel given the facts of the case.

Crucially, the trust did not start any of the improvements covered by the first coastal development permit and had limited its work to repairs authorized by “over-the-counter” permits exempt from coastal development permit requirements. Because the trust had not benefited from the first coastal development permit by performing work under it, it was not bound by its conditions.

The court also found the dedication condition clearly unconstitutional.  Stating its conclusion simply but directly, the court noted the Nolan/Dolan “rough proportionality” test for imposing conditions on a permit was not met because “there is no rational nexus, no less rough proportionality, between the work on a private residence a mile from the coast and a lateral public access easement.”

Conclusion

The court’s opinion is a narrow one, yet it demonstrates that courts will look to the equities of a case when considering application of the collateral estoppel doctrine in the context of a challenge to a permit condition, particularly when the condition is plainly improper.

Court Reaffirms City’s Discretion to Identify Local Historic Resources

In Citizens for Restoration of L Street v. City of Fresno, an appellate court affirmed that the substantial evidence test, not the fair argument test, governs an agency’s determination whether buildings or districts should be treated as historical resources under CEQA.

Background

This case concerned a proposed residential infill development project in the City of Fresno that would demolish the Crichton Home, which was designated as a heritage property by the city’s preservation commission in 2007. Under the city’s code, heritage properties are not designated as historical resources in the local register, but are nonetheless worthy of preservation. The Crichton Home, however, had fallen into disrepair and most of its historic integrity had been lost.

The city’s initial study found the project would not result in any significant environmental impacts and that the Crichton Home was not a historical resource. The preservation commission then  considered and approved a mitigated negative declaration and issuance of a demolition permit.

Plaintiffs appealed the preservation commission’s approvals, asserting that the commission did not have authority under the city code to make CEQA determinations. The city council denied the appeal, finding that the commission had the requisite authority to make a determination on the mitigated negative declaration and upheld the commission’s decision to approved it. Plaintiffs filed suit, alleging that the city had failed to comply with CEQA.

The trial court found that the commission was not authorized to approve the mitigated negative declaration. The court also found, however, that the city had correctly applied the substantial evidence standard in determining the project did not threaten “historical resources” protected by CEQA. The court subsequently issued a writ of mandate directing the city council to conduct a hearing on whether to approve the mitigated negative declaration. Both sides appealed.

The substantial evidence standard, not the fair argument standard, applies to a public agency’s determination of historicity.

Plaintiffs argued that the fair argument standard applies to the threshold question whether a building or site is a historical resource under CEQA. In plaintiffs’ view, whether a project site contains a building that is a historical resource should be reviewed under the same fair argument standard applied to whether a project site contains habitat of an endangered plant or animal.

The court rejected this argument, finding that the substantial evidence standard applied to the commission’s determination of historicity. Historical resources are treated differently than endangered plants and species because they are governed by different statutes. Relying on legislative history, the court concluded that CEQA’s provisions concerning historical resources were intended to allow a lead agency to make a discretionary decision about the historic significance of certain resources. The position that only a fair argument is needed to demonstrate historic significance is inconsistent with that discretion. The court found that the preservation commission’s determinations were supported by substantial evidence and consequently upheld the determinations.

CEQA permits delegating a lead agency’s authority to a commission, but such delegation must be clear.

CEQA allows public agencies to delegate the authority to make a final CEQA determination and approve a project to a subordinate body, provided that they also provide for an appeal to the agency’s elected decision-making body if it has one. Therefore, the court concluded, the city had the authority the delegate the authority to approve the mitigated negative declaration and the project to the preservation commission.

The court, however, also decided that the city had not delegated the authority to approve the mitigated negative declaration for the project to the commission. While the preservation commission had the authority to approve demolition permits of heritage properties, the court found it did not have decision-making authority over the project, nor was there any explicit delegation of authority to approve the mitigated negative declaration. The court was not persuaded that the preservation commission’s authority to provide review and comments on permit actions gave it authority to approve or disapprove the mitigated negative declaration.

The court also rejected the city’s alternative argument that the city council’s subsequent denial of the appeal constituted a de novo review of the mitigated negative declaration and that this cured any defect in the proceedings before the preservation commission. The court found that the city council had failed to act as the decision-making body in approving the demolition permits and failed to abide by the notice procedures and make the findings required by CEQA.

AB 52 Amends CEQA by Creating a New Category of Cultural Resources and New Requirements for Consultation with Native American Tribes

On September 25, Governor Brown signed Assembly Bill No. 52, which creates a new category of environmental resources that must be considered under the California Environmental Quality Act: “tribal cultural resources.” The legislation imposes new requirements for consultation regarding projects that may affect a tribal cultural resource, includes a broad definition of what may be considered to be a tribal cultural resource, and includes a list of recommended mitigation measures.

New category of resources

AB 52 adds tribal cultural resources  to the  categories of cultural resources in CEQA, which had formerly been limited to historic, archaeological, and paleontological resources. “Tribal cultural resources” are defined as either (1) ”sites, features, places cultural landscapes, sacred places and objects with cultural value to a California Native American tribe” that are included in the state register of historical resources or a local register of historical resources,  or that are determined to be eligible for inclusion in the state register; or (2) resources determined by the lead agency, in its discretion, to be significant based on the criteria for listing in the state register.

Under AB 52, a project that may cause a substantial adverse change in the significance of a tribal cultural resource is defined as a project that may have a significant effect on the environment. Where a project may have a significant impact on a tribal cultural resource, the lead agency’s environmental document must discuss the impact and whether feasible alternatives or mitigation measures could avoid or substantially lessen the impact.

Consultation with tribes

Recognizing that tribes may have expertise with regard to their tribal history and practices, AB 52 requires lead agencies to provide notice to tribes that are traditionally and culturally affiliated with the geographic area of a proposed  project if they have requested notice of  projects proposed within that area.  If the tribe requests consultation within 30 days upon receipt of the notice, the lead agency must consult with the tribe.  Consultation may include discussing the type of environmental review necessary, the significance of tribal cultural resources, the significance of the project’s impacts on the tribal cultural resources,  and  alternatives and mitigation measures recommended by the tribe.

The parties must consult in good faith, and consultation is deemed concluded when either the parties agree to measures to mitigate or avoid a significant effect on a tribal cultural resource (if such a significant effect exists) or when a party concludes that mutual agreement cannot be reached.

Mitigating adverse changes to tribal cultural resources

Mitigation measures agreed upon during consultation must be recommended for inclusion in the environmental document.   AB 52 also identifies mitigation measures  that may be considered  to avoid significant impacts if there is no agreement on appropriate mitigation.  Recommended measures include:

  • preservation in place
  • protecting the cultural character and integrity of the resource
  • protecting the traditional use of the resource
  • protecting the confidentiality of the resource
  • permanent conservation easements with culturally appropriate management criteria.

Conclusion

AB 52 contains several important changes to CEQA. Environmental documents must now consider tribal cultural resources in their analyses, and additional consultation requirements may apply to certain projects. Project proponents should be aware of these new requirements, and tribes should be similarly aware of their consultation rights under the new legislation.

Annexation To District Is Not Authorized For Sole Purpose Of Extending Right To Vote In District Elections

“No taxation without representation”  is a powerful rallying cry, but it’s not enough to justify an application for annexation of territory to a special district, according to recent court of appeal decisionCity of Patterson v Turlock Irrigation District  (5th Dist. F067629 June 25, 2014).  The court held that there is no statutory authorization for expansion of an irrigation district’s territorial boundaries for the sole purpose of giving voting rights to consumers of the district’s electrical services.

Turlock Irrigation District  imposed a surcharge on electrical rates charged customers in a service area outside of the District’s boundaries.  Because they reside outside the District, electrical service customers in the City of Patterson were not eligible to vote in Irrigation District elections or sit on the District’s board, and thus they were not represented in the Irrigation District’s rate-setting process. Despite this lack of representation, they had to pay the surcharge on electrical rates.

The California Public Utilities Commission had authorized the Irrigation District to provide extraterritorial service in 2003 when it approved the District’s acquisition of PG & E’s electric distribution and transmission facilities in western Stanislaus County.   Over eight years later, the city sought to obtain voting rights for its disenfranchised customers by asking the Stanislaus Local Agency Formation Commission to approve annexation of the area to the District.

The Irrigation District opposed the city’s application for annexation and submitted a resolution to the LAFCO requesting termination of the proceedings, under Government Code § 56857(b), which allows proceedings for annexation of territory to a district to be terminated when justified by a financial or service-related concern.

The city responded by filing suit to challenge the validity of the Irrigation District’s resolution. The city claimed that the financial and service concerns relating to provision of water for irrigation described in the resolution were not legitimate because the city’s annexation application was limited to retail electrical service and would not expand the District’s obligations relating to irrigation water. The trial court ruled for the District, concluding that its resolution requesting termination of the proceedings complied with the statute.

The city appealed and the Court of Appeal affirmed the trial court judgment.  However, rather than basing its decision on the Irrigation District’s resolution requesting termination of the annexation proceedings, it found the city’s annexation application was  legally deficient.

The court concluded the city’s application failed to comply with the mandatory requirement in Government Code § 56653 that an application for annexation include a plan for providing services to the annexed territory that describes the services to be extended to the affected territory. The city’s application did not, however, seek to extend services to the affected territory; it sought annexation solely for the purpose of obtaining voting rights for city residents.

The court noted at the outset of its opinion: “This appeal echoes a familiar cry from the American Revolution— ‘No taxation without representation!’”  But it explained that this  “purported evil” that the city’s application sought to redress had not been identified by the Legislature as a problem that annexation of territory is intended to solve. The city’s application was therefore fatally flawed because it was not based on a statutorily authorized reason for annexation, based on the statute’s plain language.

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