Findings supporting an agency’s administrative decision may mirror statutory language 

Findings in a city council resolution that recite language in the city’s municipal code may be sufficient to demonstrate the reasoning  supporting the council’s decision. Young v. City of Coronado, No. D070210 (4th Dist. April 4, 2017).

The owners of a small dwelling in the City of Coronado applied for a permit to demolish the structure. Because the structure was more than 75 years old (built in 1924), the city’s historic resource commission reviewed it for potential historical significance before the city issued the permit. Under the city’s municipal code, a resource is historically significant if it is more than 75 years old and meets at least two of five criteria listed in the code. Coronado Hotel panoramaThe city’s historic resource commission determined that the cottage was a historic resource because it met two of the listed criteria, identified in the municipal code as Criteria C and D. A resource is historically significant under Criterion C if “[i]t possesses distinctive characteristics of an architectural style, and is valuable for the study of a type, period, or method of construction and has not been substantially altered.” A resource is historically significant under Criterion D if “[i]t is representative of the notable work of a builder, designer, architect, artisan or landscape professional.” The landowners appealed the commission’s decision to the city council, which adopted a resolution affirming the commission’s historic resource designation. The landowners then sought a writ of mandate setting aside the city council’s decision.

The court of appeal rejected the landowners’ argument that the city council’s findings in its resolution were legally insufficient. The California Supreme Court held in Topanga Association for a Scenic Community v. County of Los Angeles, 11 Cal. 3d 506 (1974), that an agency must support its administrative decisions with findings that bridge the analytic gap between the raw evidence and agency’s decision. The court of appeal explained that when an agency must make specified factual findings before making a decision, “a resolution that incorporates findings that reflect the ordinance’s language could sufficiently inform the parties of the analytical path adopted by the administrative agency in reaching its ultimate conclusion.”

The court held that the city council’s findings sufficiently supported its conclusion that the property was a historic resource, even though the findings recited parts of the ordinance’s language. First, the court explained that certain required findings could only be made by mirroring the ordinance’s language (for example, finding that the resource had “not been substantially altered” since it was built). Second, the court noted that the city council’s findings did not merely copy the ordinance’s language in its entirety, but also included findings that were specific to the property at issue, by referring to the dwelling’s architectural style and its builder.

The court also rejected the landowners’ argument that the city council’s findings were not based on the “Historic Resource Designation Guidelines” that the city council had previously adopted. Although the guidelines were not expressly referred to by name in the findings, the court concluded that it was clear from the city staff report that the staff had used the guidelines to evaluate the property’s historic significance.

Finally, the court concluded that the city council’s findings were supported by substantial evidence. The court cited evidence in the administrative record, including the city staff report, that supported each of the city council’s findings. The court noted that the mere presence of contradictory evidence in the administrative record was not sufficient to overturn the city council’s decision, since it was for the agency, not the court, to weigh the preponderance of conflicting evidence. As long as the findings were supported by substantial evidence, as they were here, the court’s inquiry was at an end.

Court of Appeal, in split decision, upholds CARB cap-and-trade program

In a 2-1 decision, the Court of Appeal upheld the California Air Resources Board’s cap-and-trade program for greenhouse gas allowances. California Chamber of Commerce v. State Air Resources Board,  No. C075954 (3rd Dist., April 6, 2017). In upholding the validity of the auction used by the California Air Resources Board to distribute a portion of the greenhouse gas allowances auction, the opinion created an important new test for assessing whether the auction should be considered a tax. The majority found that the allowance auction was not compulsory and provided a valuable commodity to the purchaser, and thus was not a tax requiring supermajority approval under Proposition 13.

Background on CARB’s GHG Cap-and-Trade Program

In 2006, California enacted AB 32 with the goal of reducing greenhouse gas (GHG) emissions to 1990 levels by the year 2020. The California Air Resources Board (CARB) is the designated state agency charged with regulating sources of GHG emissions under AB 32. AB 32 directed CARB to adopt rules and regulations to achieve the maximum technologically feasible and cost-effective reductions in GHG emissions.

Smoking power plantPursuant to AB 32’s directives, CARB promulgated regulations that created a cap-and-trade-program. The program sets an aggregate emissions “cap” on covered entities and enforces the cap by issuing a limited number of allowances, the total value of which is equal to the cap. Covered entities must demonstrate compliance with the program by surrendering allowances that correspond to that entity’s emissions requirements.

Emissions allowances can be obtained in three ways: 1) Some allowances are distributed by CARB for free; 2) allowances are distributed by CARB through an auction; and 3) allowances can be obtained by trading on the secondary market.

CARB’s allowance auction takes place through a single round of sealed bidding, and winners pay the market clearing price. In 2012, the state legislature passed four bills specifying how the auction proceeds would be used to support the regulatory purposes of AB 32.

Several corporations and industry groups challenged the auction mechanism as exceeding CARB’s statutory authority under AB 32 and as an unconstitutional tax that violated the supermajority requirements of Proposition 13. Continue Reading

Delisting petition may challenge original listing of endangered species based upon new evidence

The California Supreme Court has ruled that, under the California Endangered Species Act, a plaintiff may use a delisting petition to challenge the original decision by the California Fish and Game Commission to list an endangered species—even in the absence of changes occurring after the original listing of the species.  Central Coast Forest Association v. Fish and Game Commission No. S208181 (Calif. Supreme Ct., Feb. 27, 2017). The Court found that commission regulations were not intended to preclude delisting where new scientific evidence shows that the species never qualified as endangered in the first instance. Our full report on the case and its implications, by Laura Godfrey Zagar and Anne Beaumont, is available here.Silver Salmon

Dispute over applicability of HOA tree-trimming requirements was an “issue of public interest” sufficient to trigger protections of anti-SLAPP statute

A homeowner who invoked his HOA’s dispute resolution process regarding tree-trimming requirements and was sued by another homeowner based on that application could successfully bring an anti-SLAPP motion on the ground that the suit interfered with exercise of First Amendment rights.  Colyear v Rolling Hills Community Association of Rancho Palos Verdes, No. B270396 (2nd Dist., Feb. 28, 2017).

Defendant and homeowner Liu submitted an application to his homeowner’s association (HOA) to invoke the HOA’s dispute resolution process against a neighbor who refused to trim trees blocking Liu’s view. In response, a different neighbor, Colyear, sued Liu and the HOA, alleging that two of the offending trees were actually on his property, that the relevant tree-trimming covenant encumbered his property, and that Liu and the HOA were wrongfully clouding title to his property.  Liu withdrew his application and filed a special motion to strike Colyer’s claims under the anti-SLAPP statute, which the trial court granted.

Hanging arborist cutting branch with small saw.

The Second District Court of Appeal found that Liu’s application was made in furtherance of the exercise of the constitutional right of petition in connection with  an issue of public interest under California’s anti-SLAPP statute. The court rejected Colyear’s claim that Liu’s application simply involved a private tree-trimming dispute between two neighbors.  It found that an “issue of public interest” was present because there was an ongoing controversy, dispute or discussion regarding the applicability of tree-trimming covenants to lots not expressly burdened by such covenants and the HOA’s authority to enforce such covenants. Noting that a number of hearings, letters, and challenges to the HOA’s policy had been made over several years, the court found that Liu’s application constituted a statement made in connection with a matter of public interest within the meaning of the anti-SLAPP statute. The court determined that the second requirement of an anti-SLAPP motion – that the plaintiff is unable to demonstrate a probability of prevailing against the defendant — was also met because Liu had withdrawn his application before any action on it was taken.  Thus, the trial court properly granted the motion and dismissed the suit.

New Ethics and Campaign Contribution Rules Enacted in San Francisco

San Francisco voters enacted a measure, Proposition T, that makes significant changes to the city’s rules governing gifts and campaign contributions to city officers, elected officials and candidates.

  • As the City of San Francisco broadly defines the term “lobbyist” to include individuals and companies that spend to encourage the public to communicate with city officials, Proposition T will have a broad impact, including on lobbyists, lobbying firms, corporations and others that employ lobbyists.
  • Conduct in the fourth quarter of calendar year 2017 may trigger certain restrictions in Proposition T, and companies and others planning to make contributions during the 2018 cycle should be mindful of these rule changes.

An update recently posted by Perkins Coie briefly details the new requirements imposed by Proposition T.  Read the full update here.

California Supreme Court Holds City EIR Must Identify and Analyze Potential Environmentally Sensitive Habitat Areas Under the Coastal Act

A local agency’s environmental impact report must identify any areas on a project site that might qualify as “Environmentally Sensitive Habitat Areas” under the California Coastal Act, and must account for those areas in the EIR’s analysis of project alternatives and mitigation measures.  Banning Ranch Conservancy v. City of Newport Beach, California Supreme Court Case No. S227473 (March 30, 2017).  Even where the Coastal Commission, and not the local agency, will make the final ESHA identifications, and only the Coastal Commission can issue a coastal development permit, the CEQA lead agency must address ESHA questions and cannot defer those questions to a subsequent Coastal Commission permitting process.

coastal ranch

The CEQA statute and Guidelines require lead agencies to integrate, to the maximum extent feasible, their CEQA review with planning and environmental review procedures required by other laws.  In addition, CEQA requires lead agencies to consider related environmental regulations and matters of regional significance when weighing project alternatives. Citing these provisions, the Court concluded that the City of Newport Beach erred in declining to attempt to identify ESHA on the 400-acre Banning Ranch project site, where some ESHA were already known to exist.

Although the city had no authority to designate ESHA on the property, the Court explained that the city was not required to make “legal” ESHA determinations in its EIR.  Instead, the city was required to “discuss potential ESHA and their ramifications for mitigation measures and alternatives when there is credible evidence that ESHA might be present on a project site.”

The Court also rejected the argument that the city’s attempt to analyze ESHA impacts would be speculative.  Precision was not required, the Court said, adding that the city had routinely evaluated ESHA impacts for other locations that, unlike the Banning Ranch site, were covered by the city’s coastal land use plan.

The fact that the Coastal Commission would later consider ESHA during its permitting process did not help the city’s position because “[t]he City’s approach, if generally adopted, would permit lead agencies to perform truncated and siloed environmental review, leaving it to other responsible agencies to address related concerns seriatim.”

The Court noted that an agency’s failure to integrate its CEQA review with other environmental review procedures “to the maximum extent feasible” would not always call for reversal of a project approval.  Here, however, the Court concluded that the city’s omission resulted in inadequate evaluation of project alternatives and mitigation measures; suppression of information highly relevant to the Coastal Commission’s permitting function; and failure to provide the public with a full understanding of the environmental issues raised by the project proposal.  Accordingly, the Court determined that reversal was required.

This case may change many CEQA lead agencies’ approaches to regulatory topics that are the subject of permitting by other agencies under statutory schemes other than CEQA.  EIRs that defer discussion of such topics to other agencies’ subsequent processes will be vulnerable to legal challenge.

Public Employees’ Personal E-mail and Text Messages May be Subject to Disclosure under the Public Records Act

The California Supreme Court has held that information relevant to public business contained in emails or text messages stored on private electronic devices of government officials is subject to disclosure under the Public Records Act. City of San Jose v. Superior Court (Smith), No. S218066 (Calif. Supreme Court, March 3, 2017).

The California Public Records Act (Government Code sections 6250 et seq.) establishes a presumptive right of access to any records created or maintained by government agencies that relate to the public’s business. Every such record must be disclosed unless a statutory exception is shown. The Act sets out a variety of exemptions, many of which are designed to protect individual privacy, and also includes a catchall provision exempting disclosure if “the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.”

City hall of San Jose, California, USA

City Hall, San Jose, California

The Act was adopted in 1968, long before the Legislature could have envisioned that public agencies would communicate via cell phones and e-mail. Over the last two decades, agencies have almost uniformly maintained that communications sent or received by a public official on a personal account (e.g., a cell phone or e-mail account) are private, not public, records and hence are not subject to disclosure under the Act. The City of San Jose offered this same response to a Public Records Act request by a member of the public (Smith) who requested emails and text messages “sent or received on private electronic devices used by” the mayor, members of the City Council, and their staffs.

The California Supreme Court ruled unanimously that the requested records were subject to disclosure under the Act. At the outset, the court rejected the blanket notion that records generated or retained on personal accounts are not subject to the Public Records Act. Citing both the constitutional policy favoring broad access to records involving the public’s business and the clear legislative intent of the Act, the court held that the right to inspect public records cannot be thwarted simply because such records are not created or maintained on a governmental account. However, the court carefully characterized the decision as involving only the “narrow” legal issue of whether writings concerning public business are beyond the scope of the Act “merely because they were sent or received using a nongovernmental account.”

The court recognized the difficulty in determining whether particular e-mails or text messages from non-governmental accounts are sufficiently related to the public’s business to fall within the scope of the Act. For example, the court noted that “depending on context, an email to a spouse complaining ‘my coworker is an idiot’ would likely not be a public record,” but an “an email to a superior reporting the coworker’s mismanagement of an agency project might well be.” The court eschewed adoption of a general rule, stating that these communications should examined in light of several factors, including “the content itself; the context in, or purpose for which it was written; the audience to whom it was directed; and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.”

In addition to these factors, the court advised that communications that include “no more than incidental mentions of agency business generally will not constitute public records.” The court was wary of the effect of its decision on the privacy of public officials and staff, and emphasized that the Act’s exemptions from disclosure would apply to any writings from personal accounts, and that purely private information not otherwise subject to disclosure can be redacted.

Finally, the Court provided guidance to agencies on how to conduct record searches involving personal accounts. Observing that agencies were free to develop their own internal policies for records searches, the court recommended that such policies incorporate two features: (1) requests for records should be communicated to employees, and agencies should then “reasonably rely” on employees to search their own accounts and devices for responsive material; and (2) agencies should adopt policies designed to reduce the likelihood of public records being contained in private accounts.

While City of San Jose settles the broad legal question of the applicability of the Act to personal accounts, it leaves much to be determined. Whether a given communication on a private device is sufficiently connected to public business to be subject to disclosure depends, according to the court, entirely on content and context. The court declined to establish any kind of “safe harbor” rule for public agencies that adopt and implement policies for records searches, stating that the question whether the content of specific communications renders them subject to disclosure must “await resolution in future proceedings.”

U.S. Fish & Wildlife Service Adopts 30-Year Eagle Take Rule

As we previously reported, in August 2015, a federal court nullified the U.S. Fish and Wildlife Service’s rule increasing the length of programmatic permits to “take” bald and golden eagles to 30 years. The court held that the Service was required to prepare an Environmental Impact Statement or Environmental Assessment before adopting the rule. The Service subsequently prepared a draft programmatic EIS (available here) and has now formally approved the 30-year eagle take rule. The rule allows renewable energy companies and other large project developers to obtain a 30-year permit (as opposed to the previous five-year permit) for the incidental take of bald and golden eagles. In exchange, permittees must commit to detailed mitigation and conservation measures aimed at better understanding and reducing impacts to bald and golden eagles. See 81 Fed. Reg. 91,494 (Dec. 16, 2016).  Our full Update on the rule, by Don Bauer, Laura Godfrey Zagar and Anne Beaumont is available here.

Bald eagle soars in the clouds


A Summary Of Published Appellate Opinions Under The California Environmental Quality Act

In 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project approval after a negative declaration or EIR has previously been adopted or certified for the project. Other key decisions addressed emergent questions regarding the requirements for analyzing the impacts of greenhouse gas emissions and energy use, as well as mitigation of those impacts.

Courts also considered the boundaries of CEQA’s reach, one finding that CEQA is not concerned with the social and psychological effects of a change in community character, and another confirming that CEQA generally applies to a project’s effects on the environment, not to the environment’s impacts on a project. And in a controversial decision that may have far-reaching implications, an appellate court found an EIR deficient because it did not provide evidence supporting its use of policies from the agency’s general plan as standards of significance.


California Supreme Court Rejects City’s Attempt To “Evade” General Plan Amendment Referendum

The California Supreme Court has unanimously denied an effort by the City of Orange to defend its approvals for a residential development project despite an intervening public vote that rejected a general plan amendment the city had passed to advance the project. By later attempting to make an “administrative correction” to its general plan, the court held, the city improperly sought “to evade the effect of the referendum petition.” Orange Citizens for Parks and Recreation v. Superior Court, No. S212800 (Dec. 15, 2016).

A close up look at a courthouse or government building with lots of copy space to the right

To resolve the case, the court was forced to grapple with the convoluted planning history underlying an open space tract recently approved for development as 39 residential units. In 1973, the city council adopted a specific plan that designated the property as open space, but also passed a resolution upholding the “recommendation of the Planning Commission” to designate the property as open space and low-density housing, not solely as open space. However, conforming revisions were not made to the specific plan. In 2010, the city adopted a new general plan that designated the project site as open space. The 2010 general plan stated that specific plans, including the 1973 plan, must be consistent with general plan land use policies.

The city council later approved the developer’s request to amend the general plan to allow housing on the property. Shortly thereafter, project opponents challenged the amendment by referendum. In response, the city “changed course” and argued there was no need to amend the general plan to approve the project because the 1973 resolution adopting the Planning Commission recommendation permitted residential development on the property. The city concluded, accordingly, that a successful referendum of its action amending the general plan would have no effect. The voters went on to reject the general plan amendment, and in ensuing litigation the courts were asked to determine whether an amendment was required to authorize the project.

The California Supreme Court said it was. The court determined that the city council conditioned its finding that the housing project was consistent with the general plan on the general plan amendment later rejected by voters. Nevertheless, the court continued, even if it were to assume the city had found the project consistent with the un-amended 2010 general plan, the court would not defer to the city’s finding. The court rejected the city’s argument that the specific plan had designated the property as open space and low-density housing. The 1973 planning commission recommendation to adopt this designation “never became integrated into the publicly available [specific] plan, let alone the 2010 General Plan.” Rather, the court stated, the 2010 general plan land use element gave the project site “an unambiguous designation” as open space, and the publicly available specific plan designated the property similarly.

Citing case law and Perkins Coie’s California Land Use and Planning Law treatise, the court concluded that the 2010 general plan land use designation had not informed the public that the property would be subject to residential development. The proposed general plan amendment, in contrast, did so, but was rejected by the citizenry. The city was not then permitted to conform its 2010 general plan to the 1973 planning commission recommendation through an “unreasonable” correction.