CEQA YEAR IN REVIEW 2019

A SUMMARY OF PUBLISHED APPELLATE OPINIONS UNDER THE CALIFORNIA ENVIRONMENTAL QUALITY ACT

The year 2019 saw several trailblazing opinions, indicating that courts continue to grapple with some of CEQA’s core policies.  The California Supreme Court weighed in on the threshold question of what constitutes a “project” subject to CEQA.  In Union of Medical Marijuana Patients v. City of San Diego, the court recognized that a decision to enact a zoning ordinance is not necessarily a project if the ordinance cannot foreseeably result in changes to the physical environment.  It also ruled, however, that where such an ordinance is capable, at least in theory, of resulting in environmental changes, it is a “project” as defined by CEQA, and therefore must be analyzed further to determine whether it is exempt or necessitates preparation of a negative declaration or EIR.

A court of appeal also addressed the same threshold issue, holding that agency inaction is not a project subject to CEQA — even where the agency’s failure to act would result in significant adverse environmental impacts. On a related note, another court confirmed that CEQA is not triggered when an agency’s discretionary authority over a project is limited to design review and does not extend to other aspects of the project that might adversely affect the physical environment.

Two courts of appeal addressed another concept that is central to CEQA’s application: the level of specificity needed in a project description. One found that an EIR’s project description could identify and analyze alternative uses for a proposed project’s buildings, an office use and a residential use. Another court ruled, however, that an EIR which described an “outer envelope” for development, while leaving flexibility as to building configurations and uses within that envelope, violated CEQA’s fundamental rule that a project description must be accurate, stable and finite.

The baseline for an EIR’s impact analysis once again surfaced as an issue in a case that featured conversion of a vacant apartment building to a hotel.  There, the court ruled that the agency did not need to consider housing displacement impacts because the units were unoccupied under the conditions existing at the beginning of environmental review.

Finally, in a blockbuster opinion, a court of appeal held that courts can no longer consider challenges to the adequacy of level-of service-based traffic analyses. SB 743 dictates that, as of the date of the new CEQA guidelines requiring use of a vehicle miles traveled standard (December 2018), traffic congestion and delay can no longer be considered a significant environmental impact. Because courts apply the law in effect at the time of their decision, the court held that a challenge to the adequacy of the EIR’s level of service-based analysis was moot, even though the agency completed the EIR and issued the project approvals long before SB 743 was adopted.

READ THE FULL REPORT — 2019 CEQA Year in Review

Administration Announces Major Overhaul of NEPA Regulations

On January 10, the White House Council on Environmental Quality published significant revisions to regulations implementing the National Environmental Policy Act, the first such overhaul since adoption of the regulations in 1978. The proposed rules are comprehensive and wide-ranging, and have significant ramifications for the extensive range of projects that are carried out by the federal government, receive federal funding, or require a permit or other approval from a federal agency.

Among the more controversial provisions are the following:

  • Eliminating the requirement that NEPA reviews consider the cumulative impacts of a proposed action in light of the effects of other activities, instead mandating consideration only of the action’s “reasonably foreseeable” impacts.
  • Shifting the emphasis of NEPA regulations toward procedural efficiency and predictability, while narrowing consideration of potential environmental impacts.
  • Encouraging agencies to identify circumstances that make NEPA inapplicable to a proposed action, such as insufficient federal control over a non-federal project or conflicting requirements under another law or through expanded use of categorical exclusions.
  • Limiting the number and scope of “reasonable alternatives” that must be evaluated by, for example, excluding alternatives beyond the agency’s jurisdiction and, for non-federal projects, alternatives that do not meet the goals of the project applicant.
  • Establishing presumptive time limits for the completion of the NEPA process and presumptive page limits for environmental documents.
  • Allowing a project proponent to prepare an Environmental Impact Statement (EIS) when federal agency approval is required for a non-federal project.

Our comprehensive update regarding the key components of the new rules and their ramifications for the NEPA review process, is available here.

Automobile Delay May Not Be Treated As a Significant Environmental Impact

Automobile delay (as measured solely by roadway capacity or traffic congestion) cannot constitute a significant environmental impact, even for projects that were approved before the new CEQA guidelines on transportation impacts were certified in December 2018. Citizens for Positive Growth & Preservation v. City of Sacramento, 2019 WL 6888482.

The case involved a challenge to the City of Sacramento’s 2035 General Plan, which it adopted in March 2015. The plaintiff alleged that the city violated CEQA and the Planning and Zoning Law.

CEQA: Transportation Impacts

Analyzing Transportation Impacts Under CEQA. Public Resources Code section 21099 (commonly known as SB 743) directed the Office of Planning and Research to develop guidelines for assessing transportation impacts based on vehicle miles traveled (VMT). SB 743 provides that upon certification of implementing guidelines by the Natural Resources Agency, “automobile delay, as described solely by level of service [LOS] or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment . . . except in locations specifically identified in the guidelines, if any.”

Section 15064.3 of the CEQA Guidelines, adopted in 2018 to implement SB 743, provides that, except for roadway capacity projects, “a project’s effect on automobile delay shall not constitute a significant environmental impact.” Further, the SB 743 guidelines specify that generally, VMT is “the most appropriate measure of transportation impacts.” The guidelines apply prospectively, and apply statewide beginning July 1, 2020, unless an agency elects to be governed by them sooner. (For a detailed analysis, see our report on the SB 743 Guidelines.)

General Plan Policies on Transportation Impacts.  The General Plan’s level of service policy generally called for roads to operate at LOS D or better, but also included exceptions allowing for LOS E and F in specified circumstances. Another General Plan policy limited the roadways that could be expanded to accommodate a project. The General Plan EIR concluded that although the plan would increase traffic volumes and cause some roadways to operate at LOS E and F,  traffic impacts would be less than significant because they would be consistent with the plan’s LOS standards.  The plaintiff argued that by relying on the plan’s LOS thresholds, the EIR did not adequately analyze the significance of traffic impacts degrading to LOS F.

The court held that the plaintiff’s challenge to the EIR’s traffic analysis was moot in light of SB 743. The court explained that the provision of SB 743 stating that automobile delay is not a significant environmental impact began to apply when Guideline 15064.3 took effect. As a result, the applicable law at the time of the court’s decision was that automobile delay cannot be treated as significant environmental impact. Accordingly,  the plaintiff’s argument regarding the significance of the General Plan’s level of service impacts was moot.

In addition, the court held that because Guideline 15064.3 only applies prospectively, the city was not required to analyze transportation impacts under the new VMT criteria contained in that Guideline.

Planning and Zoning Law: General Plan Consistency

The plaintiff also claimed that the General Plan was not internally consistent because an introductory sentence stated that when determining whether a proposed project is consistent with the plan, “the City may use its discretion to balance and harmonize policies with other complementary or countervailing policies in a manner that best achieves the City’s overall goals.” The court held, however, that this sentence did not create a facial inconsistency between policies in the General Plan. Nor would it necessarily result in the city approving projects that are inconsistent with the General Plan. Noting that the introductory sentence “concerns the City’s future determinations of a project’s consistency with the general plan,” the court concluded that arguments about how it might be interpreted and applied to future projects raised questions that were not ripe for its consideration.

Court May Order City to Remedy Inconsistencies in its General Plan Created by Initiative

A court could properly direct a city council to correct internal inconsistencies in its general plan resulting from adoption of an initiative.  Denham, LLC v. City of Richmond, 41 Cal. App. 5th 340 (2019).

The Richmond City Council adopted an initiative, approved by 10 % of the City’s voters, without alteration in accordance with Elections Code section 9215. The initiative amended the City’s general plan to preclude development of approximately 400 acres in Richmond’s El Sobrante Valley. While the initiative amended several elements of the City’s general plan, including the open-space and housing elements, it failed to properly amend the land-use element or general plan map or land use maps, causing the general plan to be internally inconsistent on its face. The trial court held the general plan, as amended by the initiative, was internally inconsistent on its face and ordered the initiative not be given effect. The court of appeal reversed, directing the trial court to issue a writ of mandate ordering the City to cure the inconsistency, as opposed to invalidating the initiative ab initio.

The appellate court agreed with the trial court that the initiative on its face caused the general plan to be internally inconsistent because, among other things, the open-space element expressly prohibited what the land-use element continued to permit. The issue on appeal was the appropriate remedy. The appellate court noted that Government Code section 65754 provided that if a court found that the general plan or any mandatory element of the general plan did not substantially comply with state law, the remedy was a directive to the agency to “bring its general plan or relevant mandatory element or elements thereof into compliance with the requirements of Article 5 … within 120 days.” The court noted that there was no authority on the question of whether a court could direct a city to correct inconsistencies in its general plan when the inconsistency was created by an initiative amendment to an existing plan. However, with the statutory remedy under section 65754 available and no precedent to the contrary, the court held that the City should be ordered to cure the general plan’s inconsistency.

The court reasoned that the requirement of a vote of the people necessary to amend a general plan is not a bar to this remedy. So long as there are legal alternatives to achieve the remedy (e.g. the City’s right to amend an element of the general plan, put to the vote of the people a general plan amendment to cure the inconsistency, or put a vote to the people to rescind the initiative), a court may order a City to cure a general plan inconsistency as a result of an initiative under section 65754.

City’s General Plan Policies Allowing Exemptions from Zoning Requirements Did Not Violate Fourteenth Amendment or Result in Spot Zoning

The City of Sacramento did not violate constitutional law or implied-in-law zoning contract when it approved a project with characteristics that deviated from the City’s zoning ordinance. Sacramentans for Fair Planning v. City of Sacramento, 37 Cal. App. 5th 698 (2019)

A developer sought approval to build a high-rise tower in Midtown Sacramento. The City’s local zoning ordinance governing the lot limited the building to a maximum height to 65 feet and floor-area ratio (FAR) of 3.0. The approved project, however, permitted a project approximately three times larger than what the zoning ordinance provided for: a building 178 feet tall with a FAR of 9.22.

The City relied on a unique policy provision in the general plan, LU 1.1.10, which gave the City “authority to approve projects that do not conform with building intensity standards if the project provides significant community benefits.” The plaintiffs argued, among other things, that (i) such exception to the zoning ordinance violated the doctrine of zoning uniformity, which can be derived from Fourteenth Amendment and implied-in-law zoning contract and (ii) the project’s approval resulted in unlawful spot zoning.

The court was not persuaded. It rejected the notion the project resulted in spot zoning, reasoning that unlawful spot zoning only occurs when a lot within a zoning district is given lesser rights than those around it.  Here, the lot in question received greater rights than those around it.

Next, the court rejected the notion the project violated the Fourteenth Amendment reasoning that “the guarantees of equal protection…do not mandate such a high standard of zoning uniformity.”  A city’s right to regulate land within its jurisdiction is broad and stems from its police power. The regulation, therefore, is presumed valid so long as it is rationally related to a legitimate government interest.  The court quoted at length the findings of City staff setting forth the project’s significant community benefits and concluded the approval of the plan under LU 1.1.10 had rational basis and therefore did not violate the Fourteenth Amendment.

Finally, the court rejected plaintiffs’ contention that certain common law zoning uniformity standards would control the analysis of this case. The court concluded that “nothing …[in California common law] establishes a doctrine of zoning uniformity that would require courts to look for more uniformity that is required by the equal protection and due process clauses.”

Charter Cities Must Adhere to Affordable Housing Requirements of the Surplus Lands Act

The statewide concerns underlying the affordable housing provisions of the Surplus Lands Act superseded municipal home rule authority on the same subject and hence required charter cities to comply with the affordable housing provisions of the Act. Anderson v. City of San José, 42 Cal.App.5th 683 (2019).

This case addressed whether state constitutional authority granting charter cities plenary power over their municipal affairs allowed the City of San José to adopt a policy for the sale of surplus municipal property that conflicted with the Surplus Land Act. The Act provides that surplus government land, prior to disposition, should be prioritized for the development of low- and moderate-income housing in order to address the shortage of sites available for affordable housing development.  The Act expressly applies to “every city, whether organized under general law or by charter.”

The City of San José, relying on its plenary power over municipal affairs, adopted measures that differed substantially from those in the Act, including a five-year exemption from affordable housing restrictions for certain high-rise rental developments and authority for the City manager to modify the process for disposing of surplus property “to accommodate circumstances applicable to significant or unusual properties.” It also omitted the Act’s requirement that certain affordable housing restrictions be recorded in a covenant at the time the surplus land was sold

The appellate court applied an established analytical framework to resolve whether the Act preempted the City’s local regulations. It determined that sale of a charter city’s surplus property was inherently a municipal affair and that the City’s regulations facially conflicted with the Act. It also concluded that the Act addressed a matter of statewide concern — the provision of suitable housing for all Californians and the chronic shortage of sites available to provide that housing. The key question was thus whether the Act was “reasonably related to the resolution of the identified statewide concern and narrowly tailored to avoid unnecessary interference in local government.”

The court answered the question in the affirmative. It found that the Act’s mandate to prioritize surplus land for affordable housing and adhere to specified affordability levels when the land was developed for housing were reasonably related to the state’s interest in reducing the shortage of available affordable housing sites. It was also appropriately tailored to avoid undue interference in local governance since it left the determination of whether land was surplus entirely within the local government’s discretion and only imposed disposition requirements upon lands the city chose to designate as surplus. The court also determined that the need for preemption was evident because “[a]s much as [a] city has a readily identifiable interest in the disposition of its real property, the well-documented shortage of sites for low- and moderate-income housing demonstrate ‘extramunicipal concerns’ justifying statewide application of the…[Act’s] affordable housing priorities.”

Court Upholds San Diego Convention Center Expansion

A court of appeal has rejected Coastal Act and CEQA challenges to the Coastal Commission’s approval of expansions at the San Diego Convention Center. San Diego Navy Broadway Complex Coalition v. California Coastal Commission, 40 Cal. App. 5th 563 (2019). The court held both that the plaintiff Coalition failed to timely sue all indispensable parties and that its substantive claims lacked merit.

The Port of San Diego prepared an environmental impact report for, and approved, Port Master Plan amendments authorizing expansion of the San Diego Convention Center by the City of San Diego and expansion of an adjoining hotel by private developer One Park. As required by the Coastal Act, the Port then submitted the amendments to the Coastal Commission for certification. After requesting and obtaining some revisions from the Port, the Commission certified the amendments and made findings under both the Coastal Act and CEQA. The Coalition then sued the Commission and the Port.

Lawsuit Was Time-Barred

The court held the Coalition’s case was time-barred by its failure to join the City and One Park in the suit before the Coastal Act’s statute of limitations expired 60 days following the Commission’s action. Project applicants are indispensable parties to litigation challenging project approvals; but the Coalition asserted that it could add the City and One Park as defendants late in the litigation because the Coalition was “genuinely ignorant” of their involvement when it first filed suit.

The court cited multiple documents in the public record – including the EIR, Port hearing agenda, and Port approval documents – that identified the City and One Park as the project applicants, and noted that the Coalition’s attorney himself had cited these documents in a letter to the Port objecting to the expansion. The fact that the Commission had stipulated in the litigation that the Port was the, or at least a, “project proponent” did not undermine the ample evidence that the Coalition knew the City’s and One Park’s roles before it filed suit.

Despite its conclusion that the case should have been dismissed on statute of limitations grounds, the court of appeal proceeded to decide the merits of the Coalition’s Coastal Act and CEQA claims.

Coastal Act Claims Fail

First, the court rejected the argument that the Coastal Act’s prohibition on conditional approvals of port master plans barred the Commission from requesting, and obtaining the Port’s consent to, revisions to the Port’s Master Plan Amendment prior to the Commission’s certification decision.

Second, section 30715 of the Coastal Act imposes Commission appellate authority on port master plan amendments approving hotels, certain shopping facilities, and various other commercial uses. The Coalition asserted that the Commission should have applied the appellate rules not only to the hotel but also to 15,000 square feet of potential retail use at the Convention Center. The court of appeal deferred to the Commission’s conclusion that this small ancillary component of the large Convention Center expansion did not render the entire expansion appealable.

Third, the court found no deficiencies in the Commission’s Coastal Act findings or its determination that certain findings were not required.

CEQA Claims Fail

Finally, the court rejected the Coalition’s challenges to the Commission’s CEQA findings. The Coalition had not sued to challenge the adequacy of the Port’s EIR, and the Commission, acting as a responsible agency, was entitled to rely upon that EIR in making its own CEQA findings.

The court first rejected the argument that findings of mitigation to a “level of insignificance” were required, observing that CEQA “focuses on substantial reduction, not insignificance.”

The court also held that the Commission was not required to make findings on the feasibility of a new pedestrian bridge to enhance public access because it had already found other measures effective. The court also observed that substantial evidence supported the Commission’s conclusion that the proposed pedestrian bridge was infeasible based on its estimated $42 million cost, the lack of availability of such funds, and the inability of the Port to guarantee that portions of the bridge outside of its jurisdiction would be constructed.

In addition to its guidance on Coastal Act compliance and CEQA mitigation findings, this case is a reminder that even where a challenger’s case fails on procedural grounds, courts routinely go on to examine the merits of the challenger’s claims.

San Francisco County Transportation Authority is Not Subject to the City’s Sunshine Ordinance

The First District Court of Appeal held that the San Francisco County Transportation Authority is a state agency and thus did not need to comply with local public access rules. SF Urban Forest Coalition v. City and County of San Francisco, No. A155098 (1st Dist., Dec. 19, 2019).

The Bay Area County and Transportation Funding Act (Pub. Util. Code section 131000 et. seq.) authorizes voters in Bay Area counties to create a local transportation authority to impose a tax for funding and implementing a local transportation expenditure plan. The Act provides a framework for creating the transportation agency following voter approval of the tax. In 1989, San Francisco voters approved Proposition B, a local ordinance creating the SFCTA in accordance with the Act.

Plaintiff submitted records requests to the SFCTA under San Francisco’s Sunshine Ordinance, which was enacted by local ballot measure and “provides rules and procedures for public access to City meetings and records.” The SFCTA responded by claiming it was not required to comply with the Sunshine Ordinance. Plaintiff brought a mandamus action seeking disclosure of the records and a declaration that the SFCTA is subject to the Sunshine Ordinance.

Plaintiff argued that the SFCTA was a city agency because it was created by local voters, rather than the state legislature; it operated on a local level; and the City’s Board of Supervisors served as its governing body. The court determined that a “local agency,” or an agency operating within limited boundaries, is not necessarily an agency of the city or county it serves, even if created by local voters. The fact that the City’s Board of Supervisors was also SFCTA’s governing board was likewise not sufficient to establish that the two government entities were the same. The court noted that this was a common structure for local agencies created by the state. Additionally, the structure of the Act indicated transportation agencies were deemed distinct from cities and counties because the Act provided detailed procedures for forming a local transportation authority and specific requirements for the contents of transportation expenditure plans.

Plaintiff alternatively contended that even if SFCTA were a state agency, the Sunshine Ordinance should apply to the SFCTA. The court disagreed, concluding that the Sunshine Ordinance was not intended to apply to state agencies because ballot measure materials and provisions of the Ordinance expressly limited its scope to city agencies.

Conditions for Coastal Development Approvals Must Be Reasonably Tailored to Accomplish Their Intended Purpose

The Fourth District Court of Appeal held that that while most of the California Coastal Commission’s conditions for construction of a home on an oceanfront lot were reasonable, a requirement that the home be removed from the parcel “if any government agency orders it not to be occupied due to a natural hazard” was “overbroad, unreasonable and [did] not achieve the Commission’s stated purpose in drafting it.”  Lindstrom v. California Coastal Commission, 40 Cal. App. 5th 73 (2019).

Plaintiff sought a coastal development permit to construct a blufftop home. The City of Encinitas’s approval of the permit was appealed to the California Coastal Commission. The Coastal Commission agreed to allow the construction to go forward only upon compliance with several special conditions, including (1) the home was to be set back 60 to 62 feet from the edge of the bluff, instead of the 40-foot setback approved by the City; (2) the Plaintiff waived any right to construct a shoreline protective device, such as a seawall, to protect the home from damage or destruction from natural hazards at any time in the future; and (3) the Plaintiff agreed to remove the home from the parcel if any government agency ordered that it not be occupied due to a natural hazard.

Plaintiff filed a petition for writ of mandate challenging the conditions imposed by the Commission.  On appeal, the court held that the Coastal Commission did not abuse its discretion in requiring a 60 to 62 foot setback. The Coastal Commission reasonably concluded that to meet the requirement in the City’s Local Coastal Program (LCP) that the proposed structure be safe from bluff failure and erosion over the course of 75 years, a minimum 60 to 62 foot setback was required. The Commission further did not abuse its discretion in requiring Plaintiff to waive any right to construct a shoreline protective device to protect the home from future damage or destruction; the court noted that such waiver simply enforced the City’s LCP’s prohibition on armoring for new development.

The court found, however, that the condition requiring the Plaintiff to remove the home from the parcel “if any government agency orders that it not be occupied due to a natural hazard,” was unreasonably overbroad and could lead to improper implementation. The court directed that the condition be deleted unless revised to clarify that removal was required only if a government agency with legal jurisdiction issued a final order, after any appeal or writ proceedings, determining that the structures were currently and permanently unsafe for occupancy due to bluff failure or erosion of the bluff, and that there were no measures that could make the structures suitable for habitation without the use of bluff or shoreline protective devices.

Under this decision, the Coastal Commission retains broad discretion to impose conditions ensuring safe coastal development in accordance with the California Coastal Act and regional LCPs, but such conditions must be appropriately tailored to accomplish their intended purpose.

Power Plant EIR Defeated By Inadequate Responses to Commenters’ Proposed Mitigation Measures

An EIR that did not squarely respond to detailed comments recommending additional mitigation measures has been held not to comply with CEQA. Covington v. Great Basin Unified Air Pollution Control District, 3d Dist. Court of Appeal Case No. C080342 (certified for publication 12/23/2019). The court of appeal emphasized that where an EIR identifies certain impacts as significant and unavoidable, it is not commenters’ responsibility to provide substantial evidence that their proposed additional mitigation measures are feasible; instead it is the lead agency’s responsibility to provide substantial evidence that the commenter-proposed measures are not feasible.

The Covington case arose from a labor union challenge to a geothermal project that would use normal pentane, which is a reactive organic gas (ROG). Although the gas would be in a closed-loop piping system, some of it would leak from the valves, connections, seals, and tubes of the system. The local air district, which was the CEQA lead agency for the project, set a significance threshold of 55 pounds per day of ROG emissions, but concluded that the project would emit up to 410 pounds per day, and set that amount as the project’s permit limit. Opponents commented that additional mitigation measures were available to reduce ROG emissions.

In its Final EIR, the air district rejected the commenters’ proposed measures and stated that all feasible mitigation measures were already included in the EIR. The air district then approved the geothermal project and issued a statement of overriding considerations stating that the project’s greenhouse gas reduction and other benefits outweighed its significant and unavoidable environmental impacts.

The court of appeal first found that the EIR did not adequately respond to commenters’ arguments for a stronger leak detection and repair program. Commenters claimed that stricter programs, setting a smaller leak rate to trigger repair requirements as well as specific deadlines for repair, were used for petroleum refineries and chemical plants and would be feasible for the geothermal project. Finding that the air district made no attempt to show that such measures would be infeasible for the project, the court held that the district had not met CEQA’s requirement to give a good faith, reasoned analysis explaining why it was not adopting the proposed measures.

Commenters also submitted evidence that low-leak or leakless technology had been used in refineries and chemical plants, and claimed that such technology would be equally feasible for a geothermal facility. The air district responded that the project included limited leakless technology such as welded connections, but that some connections could not be welded: “For example, valves would need to be flanged in case they would ever need to be replaced and instrumentation would need to be threaded to allow for calibration and/or replacement.” The court held that this explanation was inadequate because it addressed only welding as a means of leakless operation and did not address other technologies cited by the commenters, such as graphite-packed control valves, bellows-sealed valves, and hermetically sealed valves and flanges. The court directed the superior court to order the air district “to provide a reasoned analysis supported by factual information in response to the mitigation measures proposed by the petitioners.”

In other notable sections of the opinion, the court rejected claims that the EIR’s maximum fugitive emissions estimate of 410 pounds per day was unsupported and that Mono County rather than the air district was required to act as the CEQA lead agency.

The Covington case is an important reminder that reviewing courts are willing to dig deep into the record to assess whether a lead agency has truly analyzed all suggested mitigation measures before declaring an impact to be significant and unavoidable and before issuing a statement of overriding considerations.

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