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California Land Use & Development Law Report

Legal Commentary on Planning and Development

Santa Cruz Becomes First County to Ban Fracking

Posted in Environmental Regulation, Land Use, Planning and Zoning

Santa Cruz County has become the first California county to permanently ban the controversial oil and gas drilling technique known as fracking. By a 5-0 vote, the Board of Supervisors this week amended its General Plan to prohibit all facilities for oil and gas exploration and development within the unincorporated County.

The ban replaces a temporary moratorium on fracking instituted last year that was set to expire this September. The new prohibition may have no practical effect, as the County has no active oil and gas production.

Santa Cruz County joins Beverly Hills, which earlier this month became the first California city to ban fracking.

Conditions of Approval: “No Do-Overs” On A Condition The Landowner Failed To Challenge When First Imposed.

Posted in Exactions and Assessments, Land Use

A landowner’s attack on a condition of approval of a development permit was barred by the landowner’s failure to contest the same condition when it was imposed on an earlier permit, according to a recent court of appeal decision.  Bowman v California Coastal Commission, B243015 (2d Dist 2014). 

San Luis Obispo County issued a coastal development permit to rehabilitate a house on a 400-acre beachfront property.  The county conditioned the permit upon dedication of an easement for public access along the property’s shorefront. The landowner did not appeal to the Coastal Commission or otherwise contest the condition.

Nine months later, the landowner applied for a second coastal development permit, again to rehabilitate the house and also to replace a barn on the property.  This second application requested removal of the easement condition.  The county approved this second permit, and removed the condition, but environmental groups appealed to the Coastal Commission.  The Coastal Commission determined that the easement condition was permanent and binding, and that removal of the condition would violate the Coastal Act policy favoring public access to coastal resources.  It conditioned the second permit on implementation of the easement condition of the first permit.  The landowner sued, seeking to overturn the condition.

The court sided with the Coastal Commission.  It concluded the county made a quasi-judicial determination that the easement condition was valid when it issued the first permit, which became final when the landowner failed to appeal the condition imposed on that permit.  That administrative decision is protected by the doctrine of collateral estoppel, the court ruled, which precludes litigation of claims that were contested in a prior proceeding or that could have been contested.  Accordingly, the landowner could not launch what amounted to a collateral attack on the first permit condition simply by challenging the second permit.

The court clarified that the status and nature of the coastal development permit were not relevant, since collateral estoppel applied to the final decision to impose the condition rather than to the permit itself.  As a result, it was irrelevant that the landowner might have been entitled to “walk away” from the first permit and that the first permit might have expired. Likewise, it did not matter that the Coastal Commission might have modified the permit condition.  The landowner pointed to “nothing that would compel the Commission to modify that access easement condition, a condition the validity of which is not subject to attack.”  The court also found that whether the landowner accepted the first permit was also beside the point.

The court also found that the record contained sufficient evidence to support the Coastal Commission’s implied finding that the landowner accepted the permit by completing work on the house restoration; the contention the landowner could accept this benefit while rejecting the burdens of the permit was, according to the court,  “untenable.”  In addition, it found the fact that the landowner completed the work on the  house before the first permit was issued  even more unavailing.  concluding the landowner should not be allowed to obtain an advantage by proceeding with work without a permit.

Note:  The court has ordered rehearing on an important question relating to  how the evidence in the record of the agency’s proceedings should be treated by a reviewing court.  The court has asked the parties to address specific questions in supplemental briefing  including how the  rule which provides that a court  ”must consider all relevant evidence,  including evidence detracting from the decision” when determining whether an agency’s decision is supported by substantial evidence should be applied and whether it is appropriate for a reviewing court to engage in a “limited weighing of the evidence”  under the substantial evidence standard of review.   The court’s decision on these and related questions when it rehears the case could affect its rulings on whether the evidence in the record supported the Coastal Commissions determinations.

While rehearing is pending,  the opinion is not citable as precedent.  Nevertheless, the court’s rulings on the legal effect of the original conditions of approval  illustrates how important it can be to act quickly in contesting unacceptable conditions to a development approval.

National Climate Assessment Report Released

Posted in Climate Change

On May 6, 2014, the Government released its U.S. National Climate Assessment Report, “Climate Change Impacts in the United States.”  The evaluation of climate change impacts in the United States is 841 pages long, but is accompanied by a 148-page “Highlights” and an 11-page “Overview” that summarizes the findings.  The assessment is the product of some 300 experts and a 60-member National Climate Assessment and Development Advisory Committee.  It draws upon numerous workshops, extensive peer-reviewed research, and technical reports.  In addition to the general conclusions, specific assessments relating to impacts upon different regions of the country and different elements of the economic and structural fiber of the country are contained.  The full report, highlights and overview can be downloaded from the National Climate Assessment website http://nca2014.globalchange.gov/downloads.

The overview lists twelve primary findings.  Each finding is backed up by substantial scientific justification and an explanation of the anticipated future impacts.  The findings are set forth in greater detail in the full report and highlights.

  1. Global climate is changing and this is apparent across the United States in a wide range of observations.  The global warming of the past 50 years is primarily due to human activities, predominantly the burning of fossil fuels.  The most recent decade is the warmest on record.  However, because human-induced warming is superimposed on natural, varying climate, rising temperatures are not evenly distributed.  The amount of warming projected beyond the next few decades is directly linked to the cumulative global emissions of heat-trapping gases and particles.  By the end of this century, a roughly 3° to 5° Fahrenheit rise is projected under the lower emissions scenario, which would require substantial reductions in emissions.  A rise of 5° to 10° Fahrenehit is anticipated for a higher emissions scenario, assuming continued increases in emissions (predominantly from fossil fuel combustion).
  2. Some extreme weather and climate events have increased in recent decades, and new and stronger evidence confirms that some of these increases are related to human activities.  Over the past 50 years, much of the United States has seen an increase in prolonged periods of excessively high temperatures, more heavy downpours, and, in some regions, severe drought.
  3. Human-induced climate change is projected to continue, and it will accelerate significantly if global emissions of heat-trapping gases continue to increase.  Heat-trapping gases already in the atmosphere have committed us to a hotter future with more climate-related impacts over the next few decades.  The magnitude of climate change beyond the next few decades depends primarily on the amount of heat-trapping gases that human activities emit globally, both now and in the future.
  4. Impacts related to climate change are already evident in many sectors and are expected to become increasingly disruptive across the nation throughout this century and beyond.  There is mounting evidence that harm to the nation will increase substantially in the future unless global emissions of heat-trapping gases are greatly reduced.
  5. Climate change threatens human health and well-being in many ways, including through more extreme weather events and wildfire, decreased air quality, and diseases transmitted by insects, food, and water.  Large-scale changes in the environment due to climate change and extreme weather events are increasing the risk of the reemergence of health threats that are currently uncommon in the United States.
  6. Infrastructure is being damaged by sea level rise, heavy downpours, and extreme heat; damages are projected to increase with continued climate change.  In combination with the pattern of continued development in coastal areas, increasing damage to U.S. infrastructure, including roads, buildings, and industrial facilities – along with increasing risks to ports and coastal military installations will occur.  Flooding along rivers, lakes and cities following heavy downpours and a rapidly melting snowpack will exceed the limits of flood protection designed for historic conditions.
  7. Water quality and water supply reliability are jeopardized by climate change in a variety of ways that affect ecosystems and livelihoods.  Surface and groundwater supplies are stressed by an increasing demand for water, as well as declining runoff and groundwater recharge.  Climate change is increasing the likelihood of water shortages, particularly in the southern part of the United States.
  8. Climate disruptions to agriculture have been increasing and are projected to become more severe over this century.  While some U.S. regions and some types of agricultural production will be relatively resilient to climate change over the next 25 years, others will increasingly suffer from stresses due to extreme heat, drought, disease, and heavy downpours.  From mid-century on, climate change is projected to have more negative impacts on crops and livestock.
  9. Climate change poses particular threats to Indigenous Peoples’ health, wellbeing, and ways of life.
  10. Ecosystems and the benefits they provide to society are being affected by climate change.  The capacity of ecosystems to buffer the impacts of extreme events like fires, floods, and severe storms is being overwhelmed.  Climate change impacts on biodiversity are already being observed in alteration of the timing of critical biological events, such as the spring floodburst and substantial range shifts of many species.  In the longer term, there is an increased risk of species extinction.
  11. Ocean waters are becoming warmer and more acidic, broadly affecting ocean circulation, chemistry, ecosystems, and marine life.  More acidic waters inhibit the formation of shells, skeletons, and coral reefs.  Warmer waters alter distribution, abundance, and productivity of many marine species.
  12. Planning for adaptation (to address and prepare for impacts) and mitigation (to reduce future climate change, for example by cutting emissions) is becoming more widespread, but current implementation efforts are insufficient to avoid increasingly negative social, environmental, and economic consequences.

Department of Water Resources Must File Condemnation Case Before Undertaking Geological and Environmental Testing on Private Property

Posted in Public Agencies

In Property Reserve, Inc. v. Super. Ct. of San Joaquin County, the Third District Court of Appeal ruled that if the State intends to acquire an interest in private property directly, “no matter how small an interest, the California Constitution requires it to initiate a condemnation suit that provides the affected landowner with all of his constitutional protections against eminent domain in that action.”  In this case of first impression, the court ruled that the “entry statutes” — the  California Eminent Domain Law’s precondemnation entry provisions — failed to pass constitutional muster where a state agency proposed to undertake extensive geological and environmental studies on private property without first filing an eminent domain complaint.

The State Department of Water Resources sought to study the geological and environmental suitability of hundreds of properties upon which it proposed to build a freshwater transport canal or tunnels to divert water from Northern California to Southern California to implement its Bay Delta Conservation Plan.  The court of appeal held the State’s request to enter onto private property to perform geological and environmental testing — prior to filing a complaint under the Eminent Domain Law — would effect a taking.

In compliance with the statutory procedure for precondemnation entry for testing purposes, the State filed a “master petition” seeking a court order granting it rights of entry from more than 150 owners of more than 240 land parcels totaling tens of thousands of acres.  For all of the properties, the State proposed conducting environmental studies including mapping the properties and surveying botany, hydrology, plant and animal species, cultural resources, utilities, and recreational uses.  The geological studies proposed for a portion of the parcels involved tests penetrating soil with rods one and one-half-inches in diameter in depths up to 200 feet, along with soil borings to depths of 205 feet which would leave bore holes six inches in diameter.   At the conclusion of testing, the holes would be filled with “permanent columns of cement.”

The superior court ruled the geological activities would constitute a taking only authorized in a direct condemnation action, not a precondemnation action.  However, the superior court granted, subject to certain limitations, the State’s request to enter private property to conduct environmental studies for up to 66 days during a yearlong term, with up to eight personnel during each entry.  The State deposited $1,000 to $6,000 as “probable compensation” for “actual damages or substantial interference” with each property owners’ use of their properties.  But on appeal, the court of appeal found both types of precondemnation testing activities would effect takings of compensable property interests.

First, the court of appeal found the proposed geological testing would result in a “permanent physical occupation” constituting a taking per se, regardless of the “public interests” served.

Second, while acknowledging there is “no bright-line rule” for determining whether a temporary physical invasion constitutes a taking, the court found the proposed environmental study activities would work a taking because they “intentionally acquire a temporary property interest of sufficient character and duration to require being compensated.”  After weighing factors including whether the invasions were intended, the character of the invasions, the duration of the invasions, and the invasions’ economic impact, the court determined the State had sought a “blanket temporary easement” that had to be acquired in a condemnation suit rather than through the precondemnation entry statutes.

Resolving a question of first impression, the court held the State’s precondemnation entry statutes do not provide an “eminent domain proceeding” sufficient to comply with the constitutional limits on the State’s exercise of the power to condemn property.  If a public agency “intentionally seeks to take property or perform activities that will result in a taking,” the California Constitution requires that it “directly condemn” the affected property interest in an authorized condemnation suit in which the landowner receives “all of his constitutional protections against eminent domain.”  The State’s “acquisition of a property interest, permanent or temporary, large or small” requires direct condemnation of the property interest and payment of the property owner in a condemnation suit that gives the landowner “all of his constitutional protections against the state’s authority.”

The court concluded that the State’s precondemnation entry statutes violate the California constitution because they do not provide the fully panoply of protections provided to a landowner in a condemnation suit.

The majority opinion was followed by a lengthy dissent in which one justice argued that the entry rights sought for geological testing did not effect takings and the entry statutes were constitutional, both facially and as applied.  Invalidating the  statutes would “force a public entity that initiates a large-scale public project. . . either to put up the money for the entire property before determining its suitability” or “engage in two complete condemnation proceedings with their attendant costs.”

Not surprisingly, given the importance of the issues involved, on April 22 the  State Department of Water Resources filed a petition seeking review by the California Supreme Court.

Property Reserve, Inc. v. Superior Court of San Joaquin County,  No. C067758  (3rd Dist. March 13, 2013)

Greenhouse Gas and Climate Change Impacts: CEQA Practice Tips

Posted in CEQA, Climate Change

The analysis of climate change impacts under CEQA has rapidly evolved over the last several years. For this reason and others, nearly every challenge to an environmental impact report today features an attack on the EIR’s analysis of greenhouse gas emissions.

Fortunately, amendments to the CEQA Guidelines and recent court decisions have provided environmental professionals and practitioners some useful guidance. This post discusses the relevant Guidelines sections and offers three practice tips based on case law addressing climate change impacts.

CEQA Guidelines on Greenhouse Gas Emissions

Amendments to the CEQA Guidelines adopted in 2010 outline how to analyze a project’s contribution to greenhouse gas emission levels, though the amendments do not establish any specific significance thresholds for greenhouse gas impacts. That is, they don’t answer the key question: How much emission of greenhouse gases should be considered significant?

The Guidelines do, however, provide some help:

  • A lead agency should make a good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate, or estimate the amount of greenhouse gas emissions resulting from a project.
  • A lead agency has the discretion to decide for each project whether to use a model or methodology to quantify greenhouse gas emissions resulting from a project, and/or rely on a qualitative analysis or performance based standards.
  • In assessing the significance of impacts from greenhouse gas emissions on the environment, the lead agency should consider (1) the extent to which the project may affect emissions levels, (2) whether project emissions exceed the applicable threshold of significance, and (3) the extent to which the project complies with regulations or requirements adopted to implement statewide, regional, or local plans to reduce greenhouse gas emissions.
  • Lead agencies must consider “feasible means” of mitigating the significant effects of greenhouse gas emissions. The Guidelines list a number of types of measures a lead agency “may include” in a mitigation program.

Guidelines §§ 15064.4, 15126.4(c).

Significance Thresholds

Various types of significance thresholds for measuring climate change impacts are acceptable under CEQA. Local climate action plans can form the basis for significance thresholds, or public agencies instead can rely on thresholds of significance developed by a regional air quality management district. Another option is for an EIR to assess whether a project will significantly hinder or delay California’s ability to meet greenhouse gas reduction targets established by AB 32, the Global Warming Solutions Act of 2006. Under AB 32, the state committed to reducing its greenhouse gas emissions to their 1990 level by 2020. This leads to the first “practice tip.”

Practice Tip #1:

If Using AB 32 Reduction Targets as a Significance Threshold, Calculate Baseline Emissions and Compare Project Emissions.

To make sense of this advice, consider a decision issued last year, Friends of Oroville v. City of Oroville, 219 Cal. App. 4th 832 (2013). The project was replacement of an existing Wal-Mart store with a Wal-Mart “supercenter” of nearly twice the size. The EIR correctly analyzed the project’s greenhouse gas emissions consistent with the instructions in the Guidelines.

There were no local plans or regional air district significance thresholds available, so the city assessed greenhouse gas emissions based on whether the project would significantly hinder or delay California’s ability to meet reduction targets established by AB 32. Applying this significance threshold, the EIR calculated that emissions from the new store would amount to about .003 percent of California’s 2004 greenhouse gas emissions. The EIR concluded, in light of how small that figure was, that the project’s contribution to the state’s greenhouse gas emissions was less than significant.

The court had no problem with the significance threshold (reduction targets under AB 32), but concluded the EIR had misapplied it.

The court contrasted the EIR’s approach with that taken in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista, 197 Cal. App. 4th 327 (2011), which featured the replacement of a Target store with a larger Target store. That EIR calculated and compared (1) existing store emissions, (2) proposed store emissions under “business as usual” projections, and (3) proposed store emissions with energy saving measures incorporated.

In contrast, the Friends of Oroville EIR suffered from two serious flaws. First, the court found the comparison of the project’s greenhouse gas emissions to the entire state’s emissions “meaningless.” The relevant comparison instead was whether emissions were significant relative to the AB 32 standard of reducing emissions (by about 30 percent) from 2020 business as usual levels. Second, the EIR needed to calculate greenhouse gas emissions from the existing store and then estimate the quantitative or qualitative effect of the project’s mitigation measures on the emissions added by the new store.

In sum, where there was no local climate action plan and the regional air quality management district had not adopted any greenhouse gas thresholds of significance, the court looked approvingly to a threshold of significance based on a comparison with “business as usual” projections. In similar circumstances, public agencies would be well advised to follow a comparable methodology.

Practice Tip #2:

Mitigation for Greenhouse Gas Emissions Cannot Simply Require that a Future Plan Include Undefined and Untested Mitigation Measures.

In Communities for a Better Environment v. City of Richmond, 184 Cal. App. 4th 70 (2010), an EIR for replacements and upgrades to a major refinery determined the project’s greenhouse gas emissions likely would have a significant effect on the environment and would require mitigation. The EIR required submission of a future mitigation plan designed to achieve no net increase in greenhouse gas emissions. In preparing its mitigation plan, the project applicant would be required to inventory emissions and look for ways to implement reductions. It then would need to “consider implementation of measures that achieve [greenhouse gas] reductions including, but not limited to,” several candidate mitigation measures identified in the EIR.

The court rejected this approach, saying the mitigation program merely proposed a “generalized goal” of no net increase in greenhouse gas emissions. The EIR set out possible mitigation measures that were “nonexclusive, undefined, untested and of unknown efficacy.” That was not enough for the court: Under these conditions, a public agency cannot wait until after the CEQA process is complete to prepare a plan for future mitigation.

Importantly, there was no evidence before the city indicating the proposed mitigation measures would achieve no net increase in greenhouse gas emissions, or even that a mitigation program could be devised that would meet such a standard. Keeping this in mind, EIRs that rely on a future plan for greenhouse gas mitigation should be accompanied by concrete evidence showing the mitigation program can accomplish the stated goal.

Practice Tip #3:

Adoption of New Significance Thresholds for Greenhouse Gas Emissions Generally Does Not Require Preparation of a Supplemental EIR.

For the first time in a published opinion, a court last year considered whether, subsequent to certification of an EIR, a regional air quality management district’s adoption of new significance thresholds for greenhouse gas emissions constituted “new information” that triggered the need for a supplemental EIR. Concerned Dublin Citizens v. City of Dublin, 214 Cal. App. 4th 1301 (2013). The court ruled it did not.

In Concerned Dublin Citizens, the City of Dublin certified a program EIR for a transit center specific plan in 2002. The EIR did not address climate change, though it did consider air quality impacts from other pollutants. Almost a decade later, the City relied on the program EIR to approve development of a specific site within the transit center.

Petitioners claimed supplemental environmental review was required because the Bay Area Air Quality Management District had adopted thresholds of significance for greenhouse gas emissions in 2010. CEQA requires preparation of a supplemental EIR if “new information, which was not known and could not have been known at the time the EIR was certified as complete, becomes available.” Pub. Res. Code § 21166. The court ruled that information about climate change has been broadly known for some time and therefore that information could have been addressed in the 2002 EIR.

The court’s decision makes clear that the adoption of new significance thresholds for greenhouse gas emissions generally does not constitute “new information” requiring preparation of a supplemental EIR.


Although analyzing climate change impacts under CEQA will remain challenging, the recent decisions discussed here provide greater clarity to public agencies, environmental professionals, and practitioners interested in ensuring an EIR’s analysis is done right.

This post is adapted from a presentation the author made on March 25, 2014, at the annual meeting of the California Association of Environmental Professionals.

Perkins Coie Housing Summit: 30,000 Homes by 2020.

Posted in Real Estate

On Tuesday April 9, Perkins Coie hosted “Housing Summit: 30,000 Homes by 2020,” the Mayor’s housing plan to build more housing and to make San Francisco housing affordable.  The Housing Summit was held at International Hotel Senior Housing Project, an important symbol of the City’s historic housing struggles and a reminder of how affordable housing can be built. The discussion featured speakers from both the public and private sectors: Cindy Wu, President of the San Francisco Planning Commission; Sarah Dennis-Phillips from the Mayor’s Office of Economics & Workforce Development; Arden Hearing from Trumark Urban; and Chris Foley of Polaris Pacific. Allan Low, a partner in the Real Estate and Land Use group, moderated the discussion.

The panel debated the Mayor’s Housing Plan, which includes the following elements:

  •          Ellis Act Reform
  •          Small Building Fund Program
  •          Revitalize and Rebuild Public Housing
  •          Doubling the Downpayment Loan Program
  •          Build More Affordable Housing Faster
  •          Build More Market Rate Units
  •          Make Construction of Housing Easier

All of the panelists agreed that more housing was needed across all income levels: market rate, workforce, below-market, and public housing, and that we needed to “turn the dial,” increasing housing density for all ladders of income.

Perhaps the most important takeaway from the summit was the importance of collaboration between government agencies, private developers, local nonprofits, and community groups to address the City’s housing problem. Developers havethe potential to add tremendous value to small-site acquisition and other public housing projects. Nonprofits could also play an important role in public housing as liaisons between the agencies and the community and residents. Developers could engage with local community groups to understand their concerns and needs and this engagement, in turn, can help streamline the development process.

While the summit did not provide a  silver  bullet to solve the City’s housing problems, it provided the attendees with an understanding of the problems facing the City, the policies and potential reforms that may help alleviate some of the problems, and the variety of tools available for the community at large to address the City’s housing needs. 

EPA and Army Corps of Engineers Release Proposed Rule on the Scope of Waters Covered Under the Clean Water Act

Posted in Environmental Regulation, Wetlands

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly released a proposed rule defining waters that fall under the jurisdiction of the Clean Water Act as “waters of the United States.”  The wide sweep of the coverage afforded by the proposed rule, if finalized, would represent a significant expansion of federal jurisdiction.  Once the proposed rule is published in the Federal Register, the agencies will accept public comments on the proposed rule for 90 days.  For more information, see our Update prepared by Paul B. Smyth, Marc R. Bruner and Edgar (Ned) B. Washburn.

Court Dismisses NEPA Claims in Transit Project Challenge

Posted in NEPA

The Ninth Circuit has dismissed a NEPA challenge to the approval of the Honolulu Rail Transit Project, rejecting claims that agencies unreasonably restricted the Project’s purpose and need and failed to consider all reasonable alternatives.  HonoluluTraffic.com v. FTA, No. 13-15277 (9th Cir., 2014)

Nearly a decade ago, the City of Honolulu, along with the Federal Transit Administration and the U.S. Department of Transportation, embarked on a project to address Honolulu’s severe traffic congestion. In 2005, the FTA published a notice of intent to prepare an Environmental Impact Statement under NEPA, and an alternatives analysis required by the DOT’s funding program for transit service in Oahu. The City prepared the alternatives analysis and eliminated certain alternatives from consideration through the analysis’ review process. The two federal agencies subsequently approved the EIS.

Plaintiffs, a consortium of interest groups and individuals opposing the project, challenged the agencies’ actions under NEPA and other federal statutes. On appeal, Plaintiffs made two claims under NEPA. First, they argued that the agencies violated NEPA by unreasonably restricting the project’s purpose and need. The court found no basis for this claim: the statement of purpose and need was reasonable because it did not foreclose all alternatives and because it was shaped by federal legislative purposes.It was broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project, and hence was sufficient under NEPA.

Plaintiffs’ other NEPA claim was that the agencies did not consider alternatives that had earlier been ruled out in the alternatives analysis conducted by the City. Plaintiffs contended that the EIS improperly relied on this process to exclude certain alternatives such as the light rail and high-occupancy vehicle lanes from detailed consideration. However, the court held that an agency does not violate NEPA by refusing to discuss alternatives already considered in prior studies conducted at the state level, as long the federal lead agency furnished guidance upon and independently evaluated the state document, and the analysis was conducted with public review and a reasonable opportunity to comment. These conditions were satisfied in this case, and hence the agencies did not violate NEPA by failing to discuss alternatives rejected in the state process.

Highway 101 EIR Felled by Redwoods

Posted in CEQA

Caltrans’s analysis of impacts to redwoods from  realignment of a one-mile stretch of Highway 101 has been rejected.  The court of appeal ruled that the project EIR both failed to identify any significance threshold for impacts to redwoods and impermissibly labeled mitigation measures as project features.  Lotus v. Department of Transportation, No. A137315 (First Dist., Jan. 30, 2014).  

Caltrans proposed to adjust the alignment of Highway 101 to allow industry-standard trucks to use the roadway and to improve its safety.  Excavation, fill and/or new pavement would occur in the structural root zones of approximately 74 redwood trees. The EIR identified extensive measures that had been “incorporated into the project to avoid and minimize impacts as well as to mitigate expected impacts.”  Because it deemed these measures part of the project as proposed, the EIR concluded that the project would cause no significant environmental impacts.

The appellate court found the EIR’s analysis of impacts to the trees’ root zones inadequate for two reasons.  First, although the EIR provided detailed descriptions of the extent and depth of the project’s excavation, fill and pavement in the trees’ root zones, it did not “include any information that enables the reader to evaluate the significance of these impacts,” such as standards for determining whether trees would survive.  In fact, the court found, “the EIR fails to identify any standard of significance, much less to apply one to an analysis of predictable impacts from the project.” 

Second, the court found that the “avoidance, minimization and/or mitigation measures” described in the EIR were not truly part of the project.  Instead, they were mitigation measures, and the EIR was required first to identify impacts without these measures, then to identify, and discuss the efficacy of, the mitigation measures. The court held:  “By compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregards the requirements of CEQA.” The court conceded that the “distinction between elements of a project and measures designed to mitigate impacts of the project may not always be clear,” but then found that the use of special paving material to avoid impacts to root zones clearly was not a mitigation measure while the use of special construction equipment for the same purpose plainly was a mitigation measure. (The opinion did not explain this distinction).   

In addition, the court did not defer to two expert opinions cited in the EIR, both of whom concluded that the project would have no significant impact on the root health of the redwoods, because those opinions failed “to discuss the significance of the environmental impacts apart from the proposed ‘avoidance, minimization and/or mitigation measures’ and thus failed to consider whether other possible mitigation measures would be more effective.” 

The Lotus court’s distinction between impact avoidance measures that may properly be included in a project description and mitigation measures that must be applied later will prove difficult, if not impossible, to apply.  Had the EIR identified a significance threshold for impacts to redwoods, perhaps the court would have viewed the “avoidance, minimization and/or mitigation measures” differently, because the EIR would have provided a context for them. This case highlights the importance of thinking beyond customary, checklist-based significance thresholds, particularly for projects involving impacts to trees.  Although the CEQA Guidelines Appendix G checklist addresses tree ordinances, habitats, “forest land” and “timberland,” courts have been far more focused on impacts to individual trees. A CEQA document that can be seen as giving short shrift to these impacts is a document in potential peril.

Requiring dedication of overflight easement as condition to issuance of building permits does not constitute an unconstitutional exaction

Posted in Exactions and Assessments

 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.