A recent California Court of Appeal decision considered the argument that a county requiring property owners to dedicate an overflight easement as a condition to issuance of a building permit was an unconstitutional exaction. The court concluded that the owners could not establish a taking because they were unable to show that the government simply appropriating the overflight easement, instead of requiring it as a condition of approval for the permit, would have been an unconstitutional taking. Powell v. County of Humboldt, No. A137238 (First Dist., Jan 16, 2014).
In 1993, Humboldt County adopted an Airport Land Use Compatibility Plan for the Arcata-Eureka Airport. In 2004, the Powells purchased property roughly one mile from the airport, located in “Airport Compatibility Zone C” of the Airport Land Use Compatibility Plan. The Plan required that all owners of residential real property located in Zone C dedicate an overflight easement as a condition to issuance of a building permit. The purpose of these easements was to ensure that any improvement was compatible with the safe operation of the airport.
The Powells filed a petition for a writ of mandate contending that the overflight easement condition, as applied to their building permit application, was an unconstitutional exaction under Nollan v. California Coastal Commission and Dolan v. City of Tigard. The appellate court concluded that the Nollan/Dolan analysis applied only if the public easement required as a condition of the permit was so onerous that it would have constituted a compensable taking if the property right had simply been appropriated by the government outside the permitting process. This required the Powells to establish, as a threshold matter, that the overflight easement condition completely deprived them of any beneficial use of their property, interfered with their investment-backed expectations, or was a permanent physical occupation of their physical property (a per se physical taking). Unless that test was satisfied, the court reasoned, the government was not demanding that the landowner trade a constitutional right—the right to just compensation for the taking of property—in order to receive a discretionary government benefit.
The court concluded that the Powells failed to provide evidence to meet this threshold requirement. They put forth no evidence that the easement deprived them of the beneficial use of their property or interfered with their investment-backed expectations. The court also found that the overflight easement was not a per se physical taking, reasoning that unless the overflight easement, by its express terms, authorized frequent incursions into the Powell’s private airspace at altitudes causing noise and disturbance to the Powells, it would not amount to a taking under federal or state law. Because the easement did not expressly permit such overflights — and the Powells’ property rights did not include a right to exclude airplanes from using the navigable airspace above their property in accordance with applicable safety regulations — the court found no basis to conclude that the overflight easement was a per se physical taking.
CEQA and other claims challenging a completed annexation were dismissed because they had not been brought in a reverse validation proceeding. Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (No. F066544, 1/28/14)
The Stanislaus County Local Agency Formation Commission approved annexation of land into the City of Ceres, relying on an EIR the City had prepared and certified. Protect Agricultural Land (PAL), a citizen’s group, filed suit after the annexation was completed to challenge the decision, alleging that the LAFCO failed to comply with annexation law and with CEQA. However, PAL filed the suit as a petition for writ of mandate. While a petition for a writ of mandate may be filed to challenge an annexation-related decision before the annexation is completed, a completed annexation may be challenged only in a “reverse validation” action, or a quo warranto proceeding filed by the Attorney General.
In validation and reverse validation actions, a court validates or invalidates a public agency’s decisions, and the final judgment is binding on all persons who might have an interest in the outcome, whether or not they participated in the case. Validation actions may be brought by public agencies to validate certain types of decisions; reverse validation actions may be brought by challengers seeking to invalidate those decisions. The challenger must include specific language in the summons, ensure that the summons is published, and file proof of publication within 60 days of filing the complaint. If these requirements are not met, the proceeding must be dismissed on the motion of the public agency “unless good cause for such failure is shown.” Code Civ. Proc. § 863.
Because PAL filed its action as an ordinary mandate case, rather than as a reverse validation action, and did not publish the summons, the trial court dismissed it. On appeal, PAL acknowledged that its annexation law claims were subject to reverse validation procedures, but argued that its failure to comply should be excused for good cause because PAL’s attorney had researched the issue but had not discovered the validation procedure rule. The court found that counsel’s mistake was not excusable. Longstanding case law had established that completed annexation decisions may be challenged only in reverse validation actions, and PAL’s attorney’s reliance on a single secondary source that did not mention the reverse validation requirement did not constitute adequate research.
The court then noted that PAL’s CEQA claims were simply alleged as an additional basis for invalidating the completed annexation decision. Because they were part of a challenge to a completed annexation decision, the CEQA claims were also subject to validation procedures, and were also appropriately dismissed for failure to follow those procedures.
“Spot-zoning” refers to the discriminatory zoning of a small parcel that is surrounded by land within a different zone. Some had thought the doctrine only applies where a small parcel is zoned more restrictively than the property surrounding it. But in the recently decided case of Foothill Communities Coalition v. County of Orange, the court of appeal concluded that spot zoning can be found where an isolated parcel is zoned either more or less restrictively than surrounding property. The court found, however, that the county’s rezoning decision was supported by evidence in the record of its proceedings, and was therefore not unlawful spot zoning.
The county rezoned a parcel, owned by the Roman Catholic Diocese, for a senior housing project. The petitioner, an association of grassroots community groups and homeowners, challenged the project’s approval and the rezone change, arguing it was impermissible spot zoning. The county responded that because the smaller parcel was zoned less restrictively than the surrounding property, the rezoning did not constitute spot zoning. But the court disagreed, stating that “the creation of an island of property with less restrictive zoning in the middle of properties with more restrictive zoning is spot zoning.”
Nonetheless, the court rejected the argument that the rezoning was impermissible spot zoning. Not all spot zoning is impermissible, and it can be justified, the court said, where a “substantial public need exists” or if it is in the public interest. And here, the court found that the spot zoning was in the public interest based on the state legislature’s encouragement of senior housing development and the county’s own directives to develop senior housing in its general plan and ordinances. As a consequence, the court concluded that the county’s spot zoning was permissible.
The petitioner further argued that the rezoning was inconsistent with the area’s specific plan, but the court examined the evidence supporting the county’s consistency finding and concluded that the finding was supported by substantial evidence.
Finally, the petitioner argued that the project’s objective to provide “faith-based independent and assisted living facilities for seniors” violated the First Amendment’s Establishment Clause. The court rejected this argument, finding that the project’s approval and the zoning change had a secular purpose to provide needed senior housing, and that the zoning change would not have the primary effect of promoting religion nor would it foster any entanglement between government and religion.
A Summary of Published Appellate Opinions Under CEQA By Steve Kostka, Barbara Schussman, Julie Jones, Marc Bruner & Christopher Tom
The CEQA cases published in 2013 continued to reflect a recognition that CEQA does not require perfection, but rather a reasonable effort to provide useful environmental information — a trend that continued from the prior year. CEQA continues to be a focal point of judicial attention and this trend seems to be intensifying, with five CEQA cases now pending before the California Supreme Court. The issues include the applicability of CEQA to a city’s adoption of an ordinance enacting a voter-sponsored initiative; the proper interpretation of the “unusual circumstances” exception to CEQA’s categorical exemptions; the scope, feasibility, and adequacy of mitigation; and whether CEQA is limited to an evaluation of the impacts caused by the project or instead also includes impacts on the project from existing environmental conditions.
CEQA Year in Review can be accessed here, or is available in pdf form here.
Proposals to redevelop infill sites can often present difficult issues relating to how the potential effects of preexisting contamination should be evaluated under CEQA. In a recently published opinion, the court in Parker Shattuck Neighbors v Berkeley made it clear that, in the absence of real evidence a significant environmental impact might occur, the fact that a development site might contain contaminated soil is not, standing alone, enough to trigger the requirement that an EIR be prepared.
The project opponents in Parker Shattuck challenged a mitigated negative declaration the city adopted for a mixed-use development made up of 155 residential units and 20,000 square feet of commercial space. Soils on the site had been contaminated by petroleum leaking from underground storage tanks, but after 75 tons of contaminated soil had been removed, the Regional Water Quality Control Board issued a closure letter stating that no further corrective action was needed. The opponents contended an EIR was required , claiming that excavating and disturbing contaminated soil on the site might have a significant adverse effect on construction workers and future project residents. The court disagreed, and upheld the city’s determinations.
The court first rejected the argument that an EIR was automatically required because the site remained on the “Cortese list” of potentially contaminated sites. Noting that a site may stay on the Cortese list even after a determination that no further remediation is required, the court held that developing a site on the Cortese list does not invariably involve a significant effect on the environment.
The court also rejected the opponents’ claim that suggestions by their expert that a vapor-intrusion study was needed required preparation of an EIR. The expert had asserted that project residents might be at risk that vapors from hydrocarbons remaining in the soil would travel through the soil into the buildings, exposing them to polluted air. The court found the expert’s opinion insufficient “because a suggestion to investigate further is not evidence, much less substantial evidence, of an adverse impact.” The court also was not persuaded by the expert’s contention that soil contamination might put construction workers at risk because he did not explain why it would do so, but instead “simply claimed that the level of total petroleum hydrocarbons should lead to further investigation.”
In the first criminal case ever prosecuted under the Migratory Bird Treaty Act, the U.S. Fish and Wildlife Service and Department of Justice filed misdemeanor charges against Duke Energy for more than 163 migratory bird deaths, including golden eagles, at its wind power projects near Casper, Wyoming. On November 22, 2013, the case was resolved by an agreement that requires Duke Energy to pay $1 million in restitution and implement a comprehensive Migratory Bird Compliance Plan to avoid or minimize further bird mortalities at its projects.
For further details on this case, please see our December 2, 2013 Update.
In December 2011, the Orange County Board of Supervisors passed a resolution authorizing the County to submit an application for $100 million in state funding to expand the James A. Musick Jail Facility to add over 500 beds. The City of Irvine, which sits adjacent to the jail, filed a lawsuit alleging that the County failed to comply with CEQA before submitting the application. The court of appeal rejected the City’s challenge, ruling that the County’s application did not constitute an “approval” of a project under CEQA. City of Irvine v. County of Orange, No. G047895 (4th Dist., Nov. 22, 2013).
Using the test established by the Supreme Court in Save Tara v. City of West Hollywood, 45 Cal. 4th 116, 127 (2008), the court of appeal concluded that the state funding application did not effectively commit the County to proceed with the expansion. Emphasizing the distinction between “advocating or proposing a project and committing to it,” the court explained that a commitment that triggers CEQA must preclude or foreclose alternatives or mitigation measures that CEQA otherwise would require the agency to consider.
Here, the court found, the County retained all of its discretion under CEQA to consider alternatives and mitigation measures. Based on a review of the legal provisions governing the state prison funding program, the court determined that the submission of an application “was merely a preliminary step” in the process. In particular, the court explained that the state’s initial approval of an application was only a “conditional award,” which did not guarantee any funding and only meant the applicant was qualified to move forward to the next phase of the process. The state program expressly required a number of additional steps, following issuance of a conditional award, to secure the funding, including CEQA review. The court therefore concluded that the application “committed the County to nothing.”
In reaching this conclusion, the court rejected the City’s claim that the County’s application triggered CEQA due to its high level of detail. The court stated: “The amount of detail or the advanced stage of the project’s design, however, covers only part of the analysis for determining whether an agency’s action constitutes an approval under CEQA. An approval under CEQA requires both a definite course of action and a commitment to that definite course of action.” Because there was no commitment here, there was no approval and thus no requirement yet for CEQA review.
In a recently published decision, a California court of appeal rejected a challenge to an EIR alleging the agency was required to recirculate the EIR when a new alternative was proposed after the draft EIR had already been circulated. South County Citizens for Smart Growth v. County of Nevada, 2013 WL 5936664 (Cal. App. 3 Dist.) The decision is important because it clearly lays out the heavy burden facing a petitioner bringing such a challenge.
The case involved a proposed shopping center project in Nevada County. When the planning commission held a hearing on the final EIR, the staff recommended a modified alternative to the project. The commission agreed with staff and recommended that the board of supervisors certify the final EIR and approve the staff alternative. The project applicant, responding to the planning commission’s concerns, proposed a revised version of the project that was met by the staff’s approval. The commission met again, recommended the applicant’s modified project to the board of supervisors, and the board certified the final EIR and approved the project.
A citizens group challenged the county’s actions, claiming it had violated CEQA by failing to recirculate a revised draft EIR including the staff alternative. Under CEQA, agencies must recirculate an EIR when “significant new information” is added. Applying the standards in the CEQA Guidelines, the court held that a new alternative constitutes new information only if all three tests in the Guidelines are met: (1) the alternative was feasible; (2) the alternative was considerably different from alternatives already analyzed; and (3) the alternative would clearly lessen the significant environmental impacts of the project.
The court next laid out the petitioner’s burden of proof when challenging an agency’s failure to recirculate after a new alternative was introduced. Not only must the petitioner show that there was evidence that the alternative might constitute significant new information under the tests laid out in the Guidelines, the petitioner also has the burden to show that there was no substantial evidence that would support determination by the agency that the alternative was not significant new information. According to the court, an agency’s decision to certify an EIR without recirculating it implies a finding that one or more of these tests is not met. Consequently, a petitioner challenging an agency’s decision not to recirculate an EIR must show that no substantial evidence supports a negative finding for each test. The petitioner thus must show that:
- No substantial evidence supports the agency’s express or implied finding that the alternative was not feasible;
- No substantial evidence supports the agency’s express or implied finding that the alternative was not considerably different from alternatives already analyzed; and
- No substantial evidence supports the agency’s express or implied finding that the new alternative would not lessen the significant environmental impacts of the project.
The court found that the petitioner failed to meet this burden. Among other things, the petitioner did not demonstrate the absence of substantial evidence that the staff alternative was not considerably different from all of the others in the EIR. Moreover, the petitioner did not meet its burden of “setting forth all the evidence favorable to the county” and showing where it was lacking.
In a related issue, the petitioner also asserted that the county had violated CEQA by failing to make findings regarding the feasibility of the staff alternative. The petitioner argued that because the board did not adopt the staff alternative, it had to make findings that it was infeasibile. The court disagreed, ruling that although a lead agency must give reasons for rejecting an alternative as infeasible during the scoping process, the staff alternative was proposed well after preparation of the final EIR. At that stage, the county “was only required to find that the staff alternative was not significant new information, a finding that may be implied from its decision to certify the EIR without recirculating it.”
This case provides clear guidance on when a new alternative, proposed after circulation, triggers recirculation. By requiring the petitioner to establish that no substantial evidence supports the agency’s express or implied finding that the new alternative was not significant new information, South County Citizens sets a high bar for petitioners bringing a recirculation challenge.
In the face of mounting public pressure to address the potential perils of hydraulic fracturing, California has embarked upon a multi-faceted program to strengthen its oil and gas regulations, perform comprehensive environmental studies, and increase public disclosure. On November 15, 2013, the Department of Conservation published two notices seeking comments on steps it is taking to implement recently enacted legislation:
- Notice of Proposed Rulemaking to Adopt Well Stimulation Treatment Regulations. The Division of Oil, Gas and Geothermal Resources has proposed regulations intended to ensure that well stimulation is performed safely by setting requirements to ensure integrity of wells, well casings, and the geologic and hydrologic isolation of the oil and gas formation during and following well stimulation treatments. The regulations also require disclosure of the composition and disposition of well stimulation fluids, and impose new procedures for issuance of well stimulation permits, public disclosure, neighbor notification and well testing. The 60-day comment period on the proposed regulations closes on January 14, 2014.
- Notice of Preparation of an Environmental Impact Report. The Department of Conservation will prepare an EIR to evaluate the impacts of existing and potential future oil and gas well stimulation treatments occurring within California. While the notice does not use the label “program EIR,” it includes a summary of the CEQA Guideline governing program EIRs as the basis for preparing a single EIR to address a series of actions. To grapple with the complexity of evaluating impacts throughout the state, the notice states that the EIR will evaluate potential impacts in each of the Division of Oil, Gas and Geothermal Resources’ six administrative districts. The notice also states that the EIR may be used to consider future permits authorizing well stimulation. Comments about the scope of the EIR must be submitted by January 16, 2014.
Both of these steps stem from Senate Bill 4, the only fracking bill to make it out of the Legislature and off the Governor’s desk in 2013. SB 4 defines oil and gas well stimulations as “any treatment of a well designed to enhance oil and gas production or recovery by increasing the permeability of the formation.” Well stimulation includes hydraulic fracturing treatments and acid well stimulation treatments, but does not include enhancement of oil and gas recovery through flooding or steam. SB 4 requires:
- An independent scientific study on the hazards and risks that well stimulation treatments pose to natural resources and public, occupational and environmental health and safety. The study is to be completed by January 1, 2015 and is expected to lead to additional regulation by 2020.
- Issuance of well stimulation permits prior to performing a well stimulation treatment.
- Disclosure of well stimulation permits to neighboring property owners, who may request baseline water quality sampling and testing before well stimulation commences.
- Disclosure of well stimulation fluid composition and disposition (with possible exceptions for trade secrets).
- Identification of all geologic features within the fracture zone.
- Monitoring and disclosure of detailed information about well history and well operations.
- Preparation of an EIR, to be certified no later than July 1, 2015, to address activities that may occur at oil wells in the state, and provide the public with detailed information regarding any potential impacts of well stimulation in the state.
SB 4 contains a streamlined interim procedure to be used for a one-year period, which allows operators to proceed with well stimulation without a permit if they comply with specified requirements. According to the Senate Bill 4 Implementation Plan, the Division of Oil, Gas and Geothermal Resources intends to “use its emergency regulatory authority to set up rules for this 2014 interim process.” The interim regulations are scheduled for release on December 13, 2013.
Affordable housing advocates have lost a claim that Napa’s new General Plan Housing Element required a new environmental impact report. Latinos Unidos de Napa v. City of Napa, No. A134959 (1st Dist., Oct. 10, 2013, publication ordered Nov. 5, 2013). The court upheld the city’s decision that its 2009 Housing Element was not a new project, but rather a modification of the General Plan the city had adopted, and studied in a 1998 EIR. Therefore, in examining the Housing Element under CEQA, the city needed to ask only whether the Housing Element would cause new or substantially more severe environmental impacts than those found in the 1998 General Plan EIR. The plaintiff failed to demonstrate that such impacts would occur.
The 2009 Housing Element increased minimum and maximum residential densities in certain areas of the city, permitted single-family detached homes at the same densities as single-family attached homes, and provided for co-housing, among other changes. The city prepared an initial study and determined, under Public Resources Code § 21166, that implementation of the Housing Element would not cause impacts that would require a supplement to the city’s 1998 General Plan EIR.
Citing Save Our Neighborhood v. Lishman, plaintiff argued that whether the Housing Element was a new project or a modification of the 1998 General Plan project was a question of law for the court. The court declined to follow this precedent, agreeing instead with Mani Brothers Real Estate Group v. City of Los Angeles that the “question-of-law” approach would inappropriately undermine the deference courts owe to a city’s decisionmaking. Following Mani, the court ruled that the city’s decision to treat the Housing Element as a modification of the General Plan rather than as a new project would be upheld if substantial evidence supported it.
The court found such substantial evidence. First, the 1998 General Plan EIR addressed the city’s then-existing Housing Element. Second, every 2009 Housing Element feature to which the plaintiff objected represented a change to density standards that were included in the Land Use Element of the 1998 General Plan and analyzed in the General Plan EIR.
Finally, substantial evidence supported the city’s conclusion that the 2009 Housing Element would not cause new or substantially more severe impacts than those shown in the 1998 General Plan EIR. The record showed the City had, in fact, added housing at a substantially slower rate than the 1998 General Plan EIR anticipated. Plaintiff did not meet its burden of showing that the increased residential density allowed under the 2009 Housing Element would be inconsistent with the residential growth impacts anticipated in the1998 EIR.
Latinos Unidos provides useful guidance in two respects. First, the case follows the Mani rule affording deference to a lead agency’s decision whether a project is new or rather represents a modification to a previously studied project. Second, the case supports the point that EIRs do not automatically go ”stale” after some period of years; the plaintiff failed in its effort to characterize a 1998 EIR as too old to support the City’s 2009 Housing Element.