Location Exception to CEQA’s Categorical Exemptions Applies Only to Designated Environmental Resources Affected by The Project

The location exception to CEQA’s categorical exemptions does not apply to earthquake and landslide hazard zones, as they are not “environmental resources” that would be affected by a project. Berkeley Hills Watershed Coalition v. City of Berkeley, 31 Cal.App.5th 880 (1st Dist. 2019).

The City of Berkeley approved construction of three single-family homes in the Berkeley Hills. The city found the projects exempt from CEQA under the Class 3 exemption, which applies to the “construction…of limited numbers of new, small…structures,” including “up to three single-family residences” in “urbanized areas.” (CEQA Guidelines, § 15303).

Plaintiffs Berkeley Hills Watershed Coalition and Center for Environmental Structure sued to challenge the city’s approvals claiming the exemption was barred by the “location” exception to the categorical exemptions. The location exception applies if “the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” (Guidelines, § 15300.2(a)) Plaintiffs argued that, because the projects were located in an Alquist-Priolo Earthquake Fault Zone and mapped by the California Geologic Survey as a potential earthquake-induced landslide area, the projects would affect environmental resources of hazardous concern.

The superior court ruled for the city and the appellate court upheld that decision.

The court of appeal held that the location exception does not apply to earthquake or landslide hazard zones because they are not “environmental resources,” relying on the dictionary definition of the term “resource” — a “natural source of wealth or revenue,” or a “natural feature or phenomenon that enhances the quality of human life.” The Seismic Hazards Mapping Act and the Alquist-Priolo Earthquake Fault Zoning Act were not enacted to protect a sensitive environmental resource, but to protect human safety and to prevent economic loss. Further, the court noted that the purpose of CEQA is to analyze a project’s impact on the environment, not the impact of environmental conditions on the project or its residents. While the plaintiffs might have shown the environment might risk harm to the projects, they failed to show that the projects might risk harm to the environment.

Permit Amendment Unlawfully Expanded Nonconforming Use

A municipality’s approval of a permit amendment allowing a quarry to import asphalt for recycling improperly expanded the quarry’s nonconforming use, the First District Court of Appeal ruled in Point San Pedro Road Coalition v. County of Marin, 33 Cal. App. 5th 1074 (2019).

San Rafael Rock Quarry, Inc., operates a quarry in the County of Marin that produces asphaltic concrete. In 1982, the County rezoned the property from “heavy industrial, limited agricultural” to “commercial and residential” use. At that time, the quarry’s asphalt production process involved only material mined from the quarry and imported sand. Upon the rezoning, this process became a legal nonconforming use. In 2010, the County amended SRRQ’s mining permit, granting SRRQ the right to produce asphalt using on-site materials. The amendment prohibited SRRQ from importing certain materials including “property gravel, used asphalt concrete or concrete for recycling, or dredged non-sand material.” In 2013, the County approved a second amendment to the permit, allowing SRRQ to import used asphalt grindings to use in production.

The Point San Pedro Road Coalition challenged the second amendment, arguing the County’s approval constituted an expansion or intensification of a nonconforming use prohibited by the County zoning ordinance. The trial court ruled in favor of the Coalition.

On appeal, the County and SRRQ conceded that 1) the importation of asphalt grindings was not within the scope of the existing nonconforming use in 1982, and 2) the County was required to make findings that “the activity would not result in the use of the property being ‘enlarged, increased, or intensified.’” However, the County and SRRQ contended that the County properly made the required finding because the use of asphaltic grindings did not amount to enlargement, increase, or intensification of the use. SRRQ and the County argued that incorporating recycled asphalt into its process merely allowed SRRQ to maintain sustainable best practices. The appellate court disagreed, reasoning that the new operations did not simply substitute one raw material (sand) for another (asphalt grindings) — it involved new truckloads carrying asphalt grindings to the site, which were unloaded and stockpiled at the site, and screened and crushed, which required SRRQ to purchase additional machinery.

Additionally, the court held the County and SRRQ failed to show the change in use was required for or reasonably related to continuation of the existing nonconforming on-site production. Rather, the change effectively allowed SRRQ to change and expand its nonconforming use in violation of the County zoning ordinance, which prohibited such extension or expansion.

Park and Recreation Fees Violated Mitigation Fee Act

The court of appeal held that the City of Alameda’s development fee for parks and recreation was invalid and unenforceable because there was no reasonable relationship between the fee charged and the burden from new development. Boatworks, LLC v. City of Alameda, 35 Cal. App. 5th 290 (2019). The City improperly inflated mitigation fees by considering the value of procuring parkland the City had acquired at no cost and by including unopened parks as “existing parks” when calculating fees. However, the court also held that the City could treat certain areas originally designated as open space as parkland in the cost analysis because they included park-like improvements.

In 2014, the City of Alameda passed an ordinance under the Mitigation Fee Act (Govt. Code § 66000 et seq.) that imposed fees on developers to account for the increased need for public facilities caused by additional development. The City based the parks and recreation portion of the fee on the amount it would cost to maintain the current ratio of park facilities to residents. This fee included the cost to acquire new parkland, improve existing facilities, and obtain new open space land. Along with the ordinance, the City released information about park facilities that it planned to develop with the proceeds from the fee. This list included facilities sited on land that the City already owned.

The trial court granted the plaintiff’s petition and held that the fees were excessive for three reasons: (1) the fees accounted for the cost of paying for land that the City acquired for free; (2) unopened parks were classified as existing parks when establishing the current parkland-to-development ratio; and (3) areas classified as open space could not be considered parkland for the study. It directed the City Council to rescind the invalid portions of the fee ordinance.

The City challenged all three grounds on appeal. As to the first, the City argued that it was justified in collecting fees based on the existing ratio of asset value of recreational facilities to population under the holding in Home Builders Association of Tulare/Kings Counties, Inc. v. City of Lemoore, 185 Cal. App. 4th 554, 561 (2010). The court rejected this argument because a substantial portion of the fee was based on the value of land that the City had received at no cost from the Navy and therefore could not be related to the increased cost of public facilities caused by new development. By contrast, the fee in Lemoore was based on the amount the city had invested in existing recreational facilities. The court therefore concluded that the fee was not justified by the burden posed by new development. The court also rejected the City’s argument that unopened parks should be included in the inventory of current parks because it was unreasonable to include them as existing assets while planning to use the fee for construction of improvements to this land.

The appellate court reversed the trial court’s holding that the City erroneously counted areas classified as open space as parkland during the study. When calculating the current ratio, the City classified four areas originally classified as open space as parkland because the City had constructed facilities on these areas similar to those on improved parkland. The court held that this was not an arbitrary and capricious action and that those areas had a higher value than typical open space land.

The court also held, however, that the trial court’s remedy was inappropriate because it lacked the authority to require the City to perform the legislative act of rescinding portions of an ordinance. Instead, the court ordered the trial court on remand to declare the ordinance void to the extent it set the parks and recreation portion of the development impact fee.

Possibility of Further Applications for New Charter Schools Did Not Constitute “Current and Immediate Threat” Warranting Adoption of Urgency Ordinance Imposing Moratorium on Processing Such Applications.

The court of appeal held that an urgency ordinance enacted to impose a temporary moratorium on the establishment and operation of new charter schools in Huntington Park was invalid. California Charter Schools Association v. City of Huntington Park, et al., 35 Cal. App. 5th 362 (2019). The court reasoned that “numerous inquiries and requests for the establishment and operation of charter schools” did not amount to a “current and immediate threat to the public health, safety or welfare” as required by Government Code section 65858(c).

Section 65858 allows a city to adopt an interim ordinance that prohibits any uses that may conflict with a general plan the city is considering, studying, or intends to study within a reasonable time. Gov’t Code § 65858. Subdivision (c) attaches conditions to that power by providing that “[t]he legislative body shall not adopt or extend any interim ordinance pursuant to this section unless the ordinance contains legislative findings that there is a current and immediate threat to the public health, safety, or welfare.” (Emphasis added.)

Huntington Park is a general law city in southeastern Los Angeles County. Of the twenty schools in the city, six are charter schools. In September 2016, the Huntington Park City Council enacted a forty-five-day urgency ordinance (later extended by an additional ten months and fifteen days) that imposed a temporary moratorium on the establishment and operation of new charter schools in the city in response to concerns about traffic and congestion. The City Council found that many of the students attending the charter schools were not residents of Huntington Park and were contributing to traffic, parking, and noise problems in the city’s neighborhoods. The assistant city attorney described the congestion as a public safety issue and police and representatives from the school district formed a “traffic task force” to address the congestion problems.

The proposed interim ordinance was intended to give staff time to assess whether the Huntington Park Municipal Code (“HPMC”) was adequate to ensure that future charter schools were developed in a manner that protected the public and satisfied the goals and objectives of Huntington Park’s general plan. The ordinance contained findings that a current and immediate threat to public health existed because, among other reasons, Huntington Park had received “numerous inquiries and requests for the establishment and operation of charter schools,” “the HPMC did not have development standards specifically for charter schools,” and “certain locations in Huntington Park had already experienced adverse impacts from charter schools.”

The court of appeal found that the facts presented did not meet the urgency standard under section 65858, relying heavily on Building Industry Legal Defense Foundation v. Superior Court, 72 Cal. App. 4th 1410 (1999). In that case, the city adopted an urgency ordinance after a developer sought approval of a residential subdivision. In rejecting the urgency ordinance, the Building Industry court held that processing a development application did not constitute a current and immediate threat because:

Formal submission of the application to the city’s planning department merely starts the wheels rolling and allows the city, the developer, and public to begin the environmental review process. It does not guarantee the landowner any right to an approval of the proposed project. As always, the city retains the power to deny it.

The California Charter court found that “[i]f processing a filed application as in Building Industry does not pose a current and immediate threat to the public health, safety, or welfare because no rights will vest imminently,” then mere inquiries and meetings prior to submitting an application could not possibly present a current and immediate threat to public health, safety, or welfare under Section 65858 to justify an urgency ordinance.

90-Day Statute of Limitations Applies to Final Planning and Zoning Decisions by Non-Legislative Bodies and Public Officials

Planning and zoning decisions by a non-legislative body or public official authorized under a municipal code are subject to the 90-day statute of limitations of Government Code section 65009(c)(1), the court of appeal ruled in 1305 Ingraham, LLC v. City of Los Angeles, 32 Cal. App. 5th 1253 (2019).

In June 2016, the planning director of the City of Los Angeles issued a project permit compliance review determination for a mixed-use retail and affordable housing project. The determination stated that it would become final after 15 days unless an appeal was filed with the Planning Department. The petitioner, 1305 Ingraham, LLC, timely filed an appeal with the City. The City scheduled a hearing on the appeal before the Area Planning Commission but, the petition alleged, the Commission never held a hearing. Instead, in August 2016, a few days after the hearing date, the City approved the project and filed a CEQA Notice of Determination.

Months later, 1305 Ingraham filed a petition for writ of mandate alleging that the City violated its Municipal Code. The City and developer argued that the petitioner’s claims were time-barred under Government Code section 65009(c)(1), which provides a 90-day statute of limitations “after the legislative body’s decision” to file and serve a petition challenging local planning and zoning decisions.

On appeal, the petitioner argued that the 90-day statute of limitations period was not triggered because there had not been a “decision.” It claimed that because the appeal procedures in the Los Angeles Municipal Code required a hearing before the Area Planning Commission, no decision could be made on the appeal until after a hearing was held. The court, however, noted that a different section of the Municipal Code stated that the planning director’s decision would become final if the Area Planning Commission did not render its decision in writing within 15 days after completion of the hearing. Thus, the court concluded, when the Area Planning Commission failed to render a written decision within 15 days of the hearing date, the planning director’s decision become final and the statute of limitations period began to run.

The court rejected the petitioner’s argument that this interpretation would lead to absurd results. The court explained that “rather than condoning or authorizing inaction,” it interpreted the Municipal Code as providing a “backstop” to render a determination final “in the event of a procedural lapse by the decision-making body.” The court further reasoned that its reading was consistent with the purposes of the Municipal Code section, which included promoting orderly development: “These purposes are not served if the statute is interpreted to allow a project to remain in a state of perpetual limbo due to a procedural error.”

The court also rejected the petitioner’s argument that the 90-day statute of limitations did not apply because a decision had not been made by a “legislative body.” The court held that the reference to “legislative body” in Government Code section 65009(c)(1) is not limited to decisions made by the legislative body (i.e., a city council or county board of supervisors); rather, it includes decisions made by quasi-judicial bodies and individuals who exercise authority delegated to them by the legislative body under local laws. Thus, actions by the Area Planning Commission and planning director pursuant to their authority under the Municipal Code qualified as decisions by the legislative body for purposes of Government Code section 65009(c)(1).

Plaintiffs Cannot Bring Inverse Condemnation Claims Before a Public Agency Makes a Final Determination on Allowable Development

An inverse condemnation challenge to a permit denial is not ripe until the government makes a final determination regarding the scope of allowable development on a plaintiff’s property, the California Court of Appeal held in York v. City of Los Angeles, 33 Cal. App. 5th 1178 (2019).

The plaintiffs submitted an application to the City of Los Angeles to build a house, guest house, driveway, swimming pool, tennis court, storage sheds, retaining walls, and wine caves on a 40-acre hillside parcel that was previously undeveloped except for a vineyard, orchard, and vegetable gardens. The proposed project would involve roughly 80,000 cubic yards of cut and fill, and featured “balanced grading” (keeping all excavated earth on-site as fill, rather than hauling it away). Under the City’s municipal code, only 3,300 cubic yards of grading were permitted by right for the property, but the zoning administrator could grant a deviation to allow up to 88,000 cubic yards of grading.

After holding a public hearing on the plaintiffs’ request for a deviation from the grading limits, the zoning administrator approved construction of the house and most of the accessory buildings and retaining walls, but denied the request for 80,000 cubic yards of grading. The plaintiffs appealed to the area planning commission, which held a hearing and denied the appeal. The plaintiffs then filed a lawsuit in superior court, claiming that the City’s action was arbitrary and capricious, amounted to a taking of their property, and violated their constitutional rights to due process and equal protection. The superior court issued judgment in favor of the City, and the plaintiffs appealed.

On appeal, the plaintiffs claimed that the City’s denial of their application amounted to a taking because it precluded them from building a house of any size and therefore deprived them of substantially all economically beneficial use of the property. The court held that the plaintiffs did not demonstrate that a similar amount of grading would be required for any alternative home—the plaintiffs had merely cited to statements by their attorneys and maps and aerial photographs depicting their proposed project. The court explained that the City was only required to consider the project for which the plaintiffs applied, and the burden was on the plaintiffs to demonstrate that it would not be possible to build a house with less grading.

The court also ruled that the plaintiffs’ inverse condemnation, due process, and equal protection claims were not ripe. The court reasoned that the City’s denial of the plaintiffs’ grading request “neither definitively limited plaintiffs to 3,300 cubic yards of fill nor precluded plaintiffs from submitting another, more modest, development proposal”—the City had not yet made a final determination denying the plaintiffs the right to build a house of any size on their property. The court explained that the plaintiffs’ as-applied constitutional claims would not be ripe until the City rendered a final decision regarding the application of the municipal code to the plaintiffs’ property.

U.S. Supreme Court’s Knick Cemetery Decision Buries Williamson – Takings Claimants May Go Directly to Federal Courts

The United States Supreme Court overturned a 34-year-old precedent established by Williamson Planning Comm’n v. Hamilton Bank, holding that landowners pursuing takings claims need not seek redress in state courts before pursuing a federal claim.  Knick v. Township of Scott, No. 17–647 (U.S. S.Ct. Jun. 21, 2019).

The Knick decision arose from a dispute about a cemetery. Rose Mary Knick had a private cemetery on her ranch in a small community north of Scranton, Pennsylvania. The local township passed an ordinance requiring that all public and private cemeteries remain open and accessible to the public during daylight hours.  Ms. Knick sued in federal court, arguing that the ordinance amounted to an uncompensated taking of her property.  The trial and appellate courts dismissed her claims based upon Williamson, a 1985 Supreme Court decision in which the Court held that property owners may pursue federal takings claims against local governments in federal courts only after first exhausting all remedies provided by state courts.

In a 5-4 opinion, the Supreme Court expressly overruled Williamson, stating that its “reasoning was exceptionally ill-founded and conflicted with much of our takings jurisprudence.” The Court held that property owners may pursue federal takings claims in federal court without initiating or exhausting remedies in state courts. The Court reasoned that a property owner’s right to full compensation arises at the time property is taken without compensation, irrespective of the availability of any post-taking remedies. Even if full compensation is later paid, a constitutional violation results when a taking occurs without compensation. “A bank robber might give the loot back,” the Court said, “but he still robbed the bank.”

The Knick Court’s ruling eliminated what it referred to as the “San Remo preclusion trap.”  In San Remo L.P. v. City and County of San Francisco, the Supreme Court held that a “state court’s resolution of a claim for just compensation under state [and local] law generally has a preclusive effect in any subsequent federal suit.” Williamson and San Remo together resulted in the inability of property owners to reach the federal court system on federal takings claims. The Knick Court observed that “The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning.”

Four justices signed onto a dissenting opinion in Knick, pointing out that because it cannot usually be known in advance whether implementing a regulation will effect a taking, well-meaning officials will now “often have no way to avoid violating the Constitution.”  The dissent also predicted that granting access to federal courts will result in a bevy of complex state-law issues being pursued in federal courts and that the “federal courts [will become] a principal player in local and state land-use disputes.”

Knick opens the door to federal takings claims against state and local government agencies being pursued in the first instance in federal courts. However, because the decision does not alter the standards for adjudicating taking claims, the extent to which the ruling benefits landowners is unknown. Nonetheless, as the dissenting justices observed, the decision is likely to result in a marked increase in the number of takings cases brought by property owners in federal courts, which may significantly affect the development of the law in this area.

California Supreme Court Upholds Validity of Local Aesthetic Regulation of Telecommunications Infrastructure

Local governments may require a permit conditioned on compatibility with aesthetic standards to install and maintain wireless communications infrastructure in the public right-of-way, the California Supreme Court held in T-Mobile West LLC v. City and County of San Francisco, No. S238001 (April 4, 2019). The court rejected a facial challenge brought by telecommunications companies to a San Francisco ordinance that requires a permit to install and operate wireless service facilities in the public right-of-way and establishes standards for aesthetic compatibility in historic districts and other areas.

Public Utilities Code Section 7901 Does Not Preempt Local Aesthetic Regulations

Public Utilities Code section 7901 grants a statewide franchise to telecommunications companies to install equipment on public roads, waters or lands in the state “in such manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters.”

Plaintiffs argued that the San Francisco ordinance was preempted because it conflicted with the terms of Section 7901, hindered the accomplishment of the statute’s purposes and intruded into a field that had been fully occupied by the legislature. The court rejected all three theories, finding that while Section 7901 prevented local governments from requiring a franchise for a telecommunications company, it did not prevent local governments from exercising their traditional authority over land use by requiring a permit based on aesthetic or other considerations.

Conflict Preemption. The court found no conflict because it was possible to comply with both Section 7901 and local laws that required a permit on aesthetic grounds. The court explained that because Section 7901 “says nothing about the aesthetics or appearance of” telecommunications equipment, San Francisco’s ordinance regulating those features “is not inimical to the statute.”

Obstacle Preemption. The court concluded that local aesthetic regulations did not hinder the accomplishment of the purposes of Section 7901. Assuming that the purpose of Section 7901 was to encourage technological advancement in the state’s telecommunications networks, the court held that there was no indication that the Legislature intended to pursue that goal at all costs. Rather, the court reasoned, the Legislature’s inclusion of the “incommode” clause indicated that the goal of technological advancement was not paramount to all other objectives. Continue Reading

Court of Appeal Denies Project Opponents a Chance to Relitigate CEQA Claims

The court of appeal held that a challenge to a partially recirculated EIR of the County of Amador was barred by the doctrine of res judicata, which precludes relitigation by the same parties of issues previously adjudicated on the merits. Ione Valley Land, Air and Water Defense Alliance v. County of Amador, No. C081893 (3rd. Dist., March 20, 2019).

The County approved the Newman Ridge Quarry Project, a 278-acre quarry and a 113-acre processing and transportation facility and certified the project’s EIR. Plaintiffs filed a writ petition challenging the EIR, alleging the County failed to adequately analyze various impacts and should have recirculated the draft EIR. The trial court partially granted plaintiffs’ petition, finding two deficiencies in the County’s traffic analysis. The trial court ordered the County to recirculate a revised draft EIR pertaining to traffic issues but upheld the EIR in all other respects.

The County revised the traffic analysis, recirculated that portion of the EIR, and recertified and reapproved the Project. The trial court subsequently discharged the writ. Plaintiffs then filed a second writ petition, alleging the recirculated EIR’s analysis was deficient with regards to traffic, water supply, biological resources, air pollution, and responses to comments, and that the County should have recirculated the entire EIR. The trial court denied plaintiffs’ second petition for writ of mandate and plaintiffs appealed.

The appellate court held that plaintiffs’ claims, except for those related to the recirculated traffic analysis, were barred by the doctrine of res judicata. The court reasoned that all of plaintiffs’ objections were either brought or could have been included in the first writ petition. The court rejected plaintiffs’ claim that res judicata did not apply because the trail court had ordered the County to vacate the certification of the original EIR, concluding that the decertification of the entire EIR was immaterial — the pertinent fact was that the sufficiency of the EIR had been previously litigated. The trial court’s order only required the County to revisit traffic impacts — thus the County was not required to revisit any impacts besides traffic impacts, and res judicata barred plaintiffs from challenging the unchanged EIR sections.

In an unpublished portion of the opinion, the court also rejected plaintiffs’ challenge to the adequacy of the revised traffic analysis.

A Resolution to Dissolve a Fire District is Not Subject to Referendum

The court of appeal held that a fire district’s resolution to dissolve the district was not a legislative act subject to voter referendum. Southcott v. Julian-Cuyamaca Fire Protection District, No. D074324 (4th Dist., Mar. 7, 2019).

The Fire Protection District Law, which authorizes the formation of fire districts, mandates compliance with the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000 for any change in organization of the fire district, including dissolution. The Local Agency Formation Commission must be presented with a petition or a resolution adopted by the legislative body of the local agency and must then receive and act upon any objections to the dissolution at a hearing.

The Julian-Cuyamaca Fire Protection District Board of Directors passed a resolution to apply to the San Diego LAFCO to dissolve the District. The plaintiffs presented the District with a referendum petition to rescind the resolution or have the resolution set for an election. The District took no action on the referendum petition, and the plaintiffs filed a petition for writ of mandate.

The court of appeal held that the resolution to dissolve the District was not subject to referendum because the Reorganization Act established the exclusive method for dissolving and/or protesting dissolution of a fire protection district. Under the Reorganization Act, the LAFCO, not the District, holds the power to review and approve (with or without change) dissolution of the District. The Reorganization Act also contains detailed provisions regarding the method of protesting a proposed dissolution of a district and when elections concerning dissolution are required. The court found that if a district’s resolution of application for dissolution were subject to referendum, opponents could undermine the Reorganization Act’s exclusive method of considering and challenging dissolution proposals.

The court also concluded the resolution was not subject to referendum because it was an administrative, not legislative, act. The voters’ right to referendum may only be used to review a local government’s legislative acts (establishing a new plan or policy), not administrative acts (implementing policy). A local government’s legislative act becomes administrative if “the state’s system of regulation over a matter of statewide concern is so pervasive” that the local legislative body becomes an administrative agent of the state. The court found that while the District’s resolution could be characterized as a legislative act in a local context, it was administrative in the context of the comprehensive state regulation governing fire district dissolution, which vested LAFCO with the authority to approve or disapprove dissolution.

LexBlog