The Third District Court of Appeal upheld the Department of Water Resources’ EIR concerning State Water Project contract amendments against multiple CEQA challenges related to impact analysis, project descriptions, and alternative options. Planning and Conservation League v. Dept. of Water Resources, 98 Cal. App. 5th 726 (2024).

The California Aqueduct flows in Palmdale, California, near Godde Hill Road.

DWR and local government contractors executed contracts in the 1960s concerning the sale, delivery, and use of SWP water. The contracts included an evergreen clause that allowed contractors to continue receiving service following contract expiration with written notice. DWR began negotiating amendments to the contracts in 2013 and proposed amendments to extend the contract to 2085. DWR conducted and certified an EIR for the amendments in 2018, finding that the amendments would have no significant environmental impact. In 2018, DWR filed an action to validate the amendments. Appellants challenged the validation action under CEQA, the Sacramento-San Joaquin Delta Reform Act, the public trust doctrine, and the State Water Code.

Impact Analysis

First, the court rejected Appellants’ challenge to the EIR’s determination that the amendments had no significant effect on the environment. The appellants argued that the EIR used the wrong baseline by including the SWP’s existing water diversions. Under CEQA Guidelines § 15125, the baseline used for impact analyses must reflect the “physical conditions existing at the time” the analysis starts. The court ruled that for projects with ongoing operations, “the baseline is the environmental setting under the current contract conditions.”

Appellants also unsuccessfully argued that the EIR failed to consider impacts of allegedly related state-water projects, resulting in “improper segmentation.” An EIR must include analysis of actions that are reasonable consequences of the project that will change the nature of its environmental effects. The court rejected the segmentation argument, finding that the amendments served an “independent purpose” from the other projects.

Finally, the court held that the EIR sufficiently analyzed direct, indirect, and cumulative impacts. The EIR was not required to consider the impact of 50 more years of SWP operation, as the project baseline already analyzed this information. Additionally, the EIR did not need to analyze direct and indirect impacts of future speculative capital projects stemming from the amendments.

Project Descriptions

The court concluded that none of appellants’ arguments concerning the sufficiency of the project description had merit. Appellants argued that the EIR description failed to consider other related water projects, failed to disclose that the contracts would be extended even without amendments, and failed to disclose new financing mechanisms. The courts rejected all three arguments, finding that the evidence from the record did not support the claims and the project description was “accurate and stable.”

Alternatives Analysis

The court found the EIR’s analysis of seven alternatives to be reasonable. The alternatives were sufficiently different from the amendments and an EIR “need not consider every conceivable alternative.” Further, the alternatives not discussed in the EIR that appellants requested failed to address the issues that the project set out to solve.

Similarly, the court rejected the argument that the EIR’s no-project alternative was insufficient. CEQA Guidelines require no-project analyses of “conditions that would be reasonably expect to occur” given project denial. Appellants argued that the EIR should have considered that the contracts could have expired without the evergreen clauses being triggered. The Court held that the EIR offered a “plausible vision of the future” because the long-term investment and reliance on the SWP made it reasonably foreseeable that the evergreen clauses would be triggered.

Non-CEQA Claims

Finally, the Court rejected Appellants’ non-CEQA claims related to the Delta Reform Act, the Public Trust Doctrine, and Water Code Section 147.5. The amendments did not qualify as a “covered action” under the Delta Reform Act because the Act covers future developments only, and the SWP does not occur in the boundary covered by the Act. Additionally, the amendments had no effect on public trust resources compared to the baseline properly established by DWR. Finally, the Court found that submitting draft amendments to the legislature was sufficient to pass procedural presentation rules found in the Water Code.

Project opponents were unable to state a claim against the Regents of the University of California based on allegations that a new hospital at the University of California, San Francisco campus would violate local land use regulations.  The Regents of the University of California v. Superior Court (Parnassus Neighborhood Coalition), No. A169318 (1st Dist., June 13, 2024).

The Regents approved a new hospital at the UCSF Parnassus Heights campus.  A coalition of neighbors sued, claiming the project was subject to local height and bulk restrictions, which it violated.  The appellate court surveyed prior caselaw establishing that the Regents, as a state entity, are exempt from local building and zoning regulations when engaging in a governmental capacity, but may be subject to municipal regulation in situations where its conduct bears no relation to its governmental functions.

The Regents noted that UCSF provides education for medical students and argued that the new hospital was for patient care, scientific research, and teaching, thus furthering its educational purpose.  They further argued that the existence of additional noneducational purposes did not destroy the exemption from local regulations. The coalition alleged that UCSF had previously expanded its clinical services beyond that necessary to advance its educational mission, doubling its revenue while student enrollment only increased by two percent.  It argued that adding such a large hospital would further promote UCSF’s proprietary activities as a healthcare provider and further increase UCSF’s revenues rather than exclusively advancing its educational and patient needs. It claimed this made the hospital subject to local building codes and zoning restrictions.

The appellate court, disagreeing with the trial court, concluded that the Regents were exempt from the City’s building and zoning regulations as a matter of law. 

The appellate court noted that the Regents’ governmental purpose is extensive, with “vast power” regarding property administration, and a broad function “to impart learning and to advance the boundaries of knowledge.”  The coalition did not and could not allege that the hospital had no relation to the Regents’ governmental functions.  It also failed to cite authority for its assertion that, by providing healthcare, the Regents were acting in a purely proprietary capacity not entitled to immunity.

Moreover, the coalition conceded that the construction of a smaller hospital would advance the Regents’ educational mission.  The Regents, however, determined a larger hospital was necessary to accommodate increasing patient demand and UCSF’s survival.  This resulted in a conflict between the local regulations and the Regents’ ability to decide for UCSF what sort of hospital would best serve its needs, in which case the state’s sovereignty prevailed.

The appellate court also ruled that a project need not be pursued solely for governmental purposes to be exempt from local regulations.  That the hospital might increase UCSF’s revenue did not constrain the Regents’ state sovereignty.  The only reasonable inference to be drawn from the coalition’s allegations was that the hospital would provide clinical services and advance UCSF’s educational mission, even if it also did more.  Accordingly, the court rejected the coalition’s request for leave to amend its complaint to establish facts that UCSF operated its healthcare services as a business enterprise separate and distinct from its educational institution.  Because the hospital fell within the Regents’ broad purposes to provide medical education for graduate students, even if it also bore some relationship to a proprietary activity, the hospital was exempt from the local regulations at issue.

An appellate court interpreted a writ that ordered an agency to vacate certification of an EIR in part and file a final return to the writ “upon certification of a revised EIR” to require an assessment of the adequacy of the revised EIR before the writ could be discharged.  Save the Capitol, Save the Trees v. Dept. of General Services, No. C100160 (3rd Dist., April 4, 2024).

The California Department of General Services and the Joint Committee on Rules of the California State Senate and Assembly (collectively “DGS”) proposed to redevelop portions of the California State Capitol complex and prepared an EIR.  On a prior appeal in the case, the appellate court found the EIR defective due to some issues related to the visitor center component of the project.  On remand, the trial court issued a writ directing DGS, among other things, to file a final return to the writ “upon certification of a revised EIR.” 

DGS decided to eliminate the visitor center from the project.  DGS prepared, circulated and certified a revised EIR, approved the revised project, then filed a final return to the writ.  Plaintiff objected because the question whether the revised EIR remedied the deficiencies identified in the first appeal had not been evaluated.  DGS argued that this question was beyond the scope of the writ and could be raised only in the context of a new proceeding.  The trial court discharged the writ and a second appeal followed.

The appellate court held that the writ should not have been discharged.  While “clearer writ language would have been preferrable,” the court presumed, absent contrary evidence, that the trial court followed applicable law.  It interpreted the writ to implement Public Resources Code section 21168.9(a)(3), which provides for a writ that mandates that the public agency take specific action as may be necessary to bring the proceedings into compliance with CEQA, and caselaw holding that a plaintiff may challenge an agency’s compliance with a writ either by a new or supplemental action, or by objecting to the return. 

DSG’s concerns about potentially inconsistent results when one plaintiff challenges a revised EIR by bring a new proceeding and another does so by objecting to the return could be avoided through consolidation.  Nor would deciding the adequacy of the revised EIR in the context of an objection to the return reopen issues already decided in the first appeal.  “Here, the trial court must determine that the revised EIR is consistent with [the first appellate decision] before the writ may be discharged, but no new issues may be raised by objection to DGS’s writ return.” 

In a dispute over a traffic impact fee imposed on a residential building permit by El Dorado County, the U.S. Supreme Court unanimously rejected the long-standing position of California and other state courts that the Takings Clause of the U.S. Constitution applies differently when permit conditions are imposed legislatively rather than administratively. Sheetz v. County of El Dorado, No. 22-1074 (U.S. Supreme Court, Apr. 12, 2024). Our report on the decision, by Perkins Coie partners Cecily Barclay, Matt Gray and Alan Murphy is available here.

Supreme Court of the United States. Washington DC, USA.

The court of appeal held that a City Council resolution approving a development agreement that included policy decisions regarding development of a public park was a legislative act subject to referendum. Move Eden Housing v. City of Livermore, 100 Cal. App. 5th 263 (2024).

In 2018, the City of Livermore and Eden Housing entered into a Disposition and Development and Loan Agreement for development of a below-market rate housing project to be developed on land acquired by the City’s former Redevelopment Agency. The City approved entitlements for the project in 2021. Opponents filed a CEQA and Planning and Zoning Law challenge against the project and had their petition denied.

In 2022, the City Council adopted a resolution approving an Amended and Restated Disposition, Development, and Loan Agreement between the City and Eden.  The Amended and Restated DDA provided for the City to make a loan to Eden for the cost acquiring the City property and reflected the City’s decision to spend $5.5 million on constructing and improving a public park (called Veteran’s Park) as part of the project.

Within 30 days of approval of the City Council resolution approving the Amended and Restated DDA, project opponents gathered signatures and submitted a petition for a referendum of the decision. The City Clerk confirmed that the referendum petition contained the required number of signatures but declined to process the petition on the ground that the resolution adopting the Amended and Restated DDA was an administrative act, not a legislative one, and therefore not subject to referendum.

The Court of Appeal noted that the standard for preelection review of a referendum’s validity is “one of great deference where a court will remove the initiative [or referendum] from the ballot only “on a compelling showing that proper case has been established for interfering.”  An election official “may not ‘refuse to submit an initiative [or referendum] measure to the electorate on the ground that it deals with a matter not subject to the initiative [or referendum].”

In this case, the elections official determined that the number of signatures, prima facie, equaled or exceeded the number required. In these circumstances, the law directs that the clerk shall accept the petition for filing and shall examine it and certify the results pursuant to statute procedures.

The Court of Appeal went on to address the merits of whether the referended resolution was a legislative or administrative act.  Legislative acts are those “which declare a public purpose and make provisions for the ways and means of its accomplishment.  Administrative acts, on the other hand, are those which are necessary to carry out the legislative policies and purposes already declared by the legislative body.”

The 2022 Amended and Restated DDA, for the first time, made the policy decision to fund the construction and improvement of Veteran’s Park.  The court acknowledged several other cases where a municipality’s decision to sell land to a private party has been considered administrative and not subject to referendum.  The court distinguished those cases, noting that in the present case, the City was not merely disposing of land, but instead making a determination about a sizable public expenditure to develop a public park. 

Petitioner’s challenge to a Specific Plan, which was filed before that plan was adopted, was barred as premature, and its belated attempt to amend its petition after the Specific Plan had been adopted was barred by the statute of limitations.  Fix the City, Inc. v. City of Los Angeles 100 Cal. App. 5th 363 (2024).

The City of Los Angeles approved its Metro Exposition Light Rail Transit Line project by enacting certain General Plan and zoning provisions in July 2018.  At the time, it considered but did not adopt a Specific Plan for the project.  An organization named “Fix the City” filed suit challenging the project, alleging inconsistency with the General Plan.  It sought, among other things, to set aside not only the zoning ordinances, but also the not-yet-adopted Specific Plan. 

More than a year later, in November 2019, the Council enacted the Specific Plan. Fix did not amend its petition within the statute of limitations applicable to that action.  Later, after the trial court ruled that Fix’s challenge to the Specific Plan was premature but granted Fix leave to amend, Fix amended its petition to challenge the 2019 Specific Plan.  The trial court ruled for the City and Fix appealed.

Fix argued that its amended petition was not time-barred as it related back to the original 2018 filing date.  Fix noted that its initial petition had timely challenged the zoning ordinances, and argued that no real significance should be attached to the fact that two legislative acts were involved.  It claimed the acts were closely related and noted the zoning ordinances provided they would not become effective until adoption of the Specific Plan. It contended that the Specific Plan claims were based on the same general set of facts as the zoning claims, that the City had timely notice of the claims, that the claims alleged the same injury, and that they were caused by the same instrumentality in that the Specific Plan and zoning ordinance both were inconsistent with the General Plan.

The appellate court rejected Fix’s arguments and affirmed a judgment for the City. It observed that the applicable statute of limitations – Government Code section 65009 – was enacted with the express purpose of providing certainty and finality to local land use decisions.  Prior caselaw allowing relation back for wrongful conduct of a continuing nature was not applicable, as the City had made two separate legislative decisions.  Nor did Fix’s amended petition simply add detail to claims alleged earlier; it instead challenged conduct that had not yet occurred at the time the original petition was filed.  “Because this case involves two distinct legislative acts governed by section 65009’s 90-day statute of limitations, and Fix failed to timely challenge the second legislative act, we conclude that the relation back doctrine does not apply.”

After deciding in a prior appeal in the same case that offsite agricultural conservation easements (ACEs) were not effective at reducing a project’s conversion of agricultural land, the Fifth Appellate District held that ACEs can mitigate such impacts.  V Lions Farming, LLC v. County of Kern, Nos. F084763, F085102, F085220 (5th Dist., March 7, 2024).

Kern County approved an ordinance streamlining the permitting process for new oil and gas wells after certifying an EIR for that project. The County had established a no-net-loss threshold of significance for agricultural land, effectively requiring that the net impact of a project on loss of farmland be reduced to zero acres. The EIR determined that the project’s provision of ACE’s satisfied this threshold by mitigating the impact of loss of farmland to a less-than-significant level. In the first appeal, the Fifth Appellate District invalidated the EIR, in part based on its ruling that ACE’s were not effective at reducing the conversion of agricultural land to a less than significant level for purposes of CEQA. On remand, Kern County prepared a Supplemental Recirculated EIR.  The SREIR stated that it did not require ACEs as mitigation for significant and unavoidable impacts to agricultural land because the appellate opinion had determined that ACEs do not provide effective mitigation.   

In the second appeal, the court concluded that its first opinion had decided only the narrow issue of whether ACEs were effective at reducing the agricultural impacts to a less than significant level, and not “the broader question whether ACEs are effective at providing any type of mitigation for purposes of CEQA.”  The court examined CEQA Guideline 15370(e), which defines mitigation to include “compensating for the impact by replacing or providing substitute resources or environments, including through permanent protection of such resources in the form of conservation easements.” It parsed the text of the Guideline, acknowledged federal agencies’ treatment of habitat preservation as mitigation, and addressed First Appellate District decisions upholding the use of ACEs as mitigation. 

The court reasoned that accepting ACEs as compensatory mitigation would advance CEQA’s purpose of long-term protection of the environment, while a contrary holding would diminish the use of ACEs and result in less long-term protection of agricultural land.  It accordingly ruled that ACEs are a type of compensatory mitigation for the conversion of agricultural land even though, operating by themselves, they do not replace the converted land or otherwise result in no net loss of agricultural land.  The County therefore failed to comply with CEQA when it eliminated the use of ACEs as a mitigation measure for the conversion of agricultural land in situations where other mitigation had not reduced the net loss of agricultural land to zero acres.

The completion of a shooting range redevelopment project did not moot CEQA claims regarding the project even though the plaintiff had not sought an injunction against development or operation of the project.  Moreover, the County’s decision not to exercise jurisdiction, as opposed to its mere inaction, could support a viable CEQA claim.  Vichy Springs Resort, Inc. v. City of Ukiah, Case Nos. A165345 and A167000 (Ist Dist., March 29, 2024).

Ukiah Rifle and Pistol Club operated a shooting range on land owned by the City of Ukiah and located in unincorporated Mendocino County.  The County determined it had no jurisdiction over the project, and the City issued a building permit to redevelop the shooting range.  Vichy Springs Resort, which operates a nearby resort and spa, sued, contending that the City and County unlawfully failed to conduct CEQA review.  It did not seek an injunction.  While the action was pending in the trial court, Ukiah Rifle completed the project and the City issued a certificate of occupancy.  The trial court sustained demurrers and entered judgment for the City and County on the CEQA claims. 

On appeal, the court concluded that the CEQA claim against the City was not mooted by construction of the project because effective relief was still available.  Ukiah Rifle could be required to implement a lead removal program, use only lead-free ammunition, or limit hours of use and uses at the main range.  The City could revoke the permit and certificate of occupancy and hold them in abeyance pending environmental review.  The court distinguished earlier cases holding that construction of a project had mooted CEQA claims on the ground that, in this case, the petition included allegations explaining what post-completion mitigation measures were available. The court also found no legal basis for concluding that a plaintiff’s failure to seek injunctive relief required a court to find a CEQA claim moot in a situation in which effective relief remains available.

The CEQA claim against the County also was viable. The County argued that only the County’s initial determination that the project was under the City’s exclusive jurisdiction was at issue, which is not a CEQA claim.  The court disagreed.  “We think that narrow reading of [CEQA] would be overly formalistic when Vichy is complaining of the County’s resulting failure to follow any of CEQA’s requirements.”  It further noted that CEQA’s definition of “project” did not require that the County have issued a permit.  It rebuffed the County’s attempts to characterize the claims as involving only Ukiah Rifle’s “bold decision” to proceed without obtaining a County permit, and the County’s inaction.  The court pointed to allegations that the County affirmatively declined to regulate the project.  For similar reasons, it rejected the County’s argument that, because it had not approved the project, any claimed violation of CEQA was not ripe.  “[T[]he petition alleges the existence of a project that the County determined was not subject to regulation. Whether that determination was correct is a question ripe for review.”

The County of San Diego planning staff found a project qualified for a CEQA exemption under Guideline 15183, which applies to projects consistent with a general plan for which an EIR had been prepared.  On appeal, the Board of Supervisors reversed staff’s decision, finding an EIR was required due to environmental impacts peculiar to the project.  The court overturned the Board’s decision, concluding there was no substantial evidence supporting the Board’s conclusion that impacts would not be mitigated by application of uniform policies and procedures, which meant they were no “peculiar” impacts that would prevent application of Guideline 15183.  Hilltop Group, Inc. v. County of San Diego, No. D081124 (4th Dist., Feb,.16, 2024).

The Hilltop Group proposed to develop a facility that would recycle inert materials from construction projects.  The project was consistent with the general plan designation and zoning the County had applied in connection with its most recent general plan update, for which it had certified a Program EIR.  The County’s review of the recycling project was convoluted.  First, the County prepared an initial study finding potentially significant impacts and issued a notice of preparation of an EIR.  Second, after the applicant submitted numerous studies and a proposed draft EIR, the County reversed its position.  The zoning administrator found the project exempt under Guideline 15183, and the County’s Planning and Development Services approved the project’s site plan.  Third, several parties appealed, and the Board of Supervisors reversed staff’s decision.  The Board found the project would result in peculiar environmental effects that would not be mitigated by uniform policies and procedures, and that an EIR was required.

The Hilltop Group sued.  The court overturned the Board’s decision, finding the project exempt.  It addressed several aspects of Guideline 15183. 

Relevant Provisions of Guideline 15183Guideline 15183 implements Public Resources Code section 21083.3.  Subdivision 15183(a) provides that projects consistent with zoning or general plan policies for which an EIR was certified shall not require additional environmental review, except as might be necessary to examine whether there are project-specific significant effects peculiar to the project or its site.  Subdivision (b) limits review of such projects to impacts that (1) are peculiar to the project or the parcel, (2) were not analyzed as significant effects in the prior EIR, (3) are potentially significant off-site impacts and cumulative impacts not discussed in the prior EIR, or (4) were previously identified significant effects but substantial new information shows the impacts will be more severe.  Subdivision (f) provides that impacts shall not be considered “peculiar” if uniformly applied development policies or standards were adopted with a finding that they will substantially mitigate the environmental effect, unless substantial new information shows that the uniform policies or standards will not do so. 

Substantial Evidence Standard Applies to a Guideline 15183 DeterminationThe court first confirmed that the substantial evidence standard governs a court’s review of CEQA exemptions, including that of Guideline 15183.  The County argued that the fair argument standard should apply because a project’s eligibility for the 15183 exemption depends on whether the project will have a significant impact.  The court disagreed, noting that the agency also must determine whether the impacts were analyzed as significant impacts in the prior EIR.

Guideline 15183 Can Provide a Partial Exemption By Narrowing the Scope of Subsequent Review.  The court rejected the County’s argument that a project otherwise eligible for the 15183 exemption is entirely ineligible if there are any impacts peculiar to the project or its site.  Rather, the court ruled, Guideline 15183 can provide a partial exemption that limits the scope of a project-level EIR to significant impacts that were not covered in the prior general plan EIR.  While an agency has discretion to choose which streamlining procedure it will use, it is required to limit environmental review of a project when a program EIR has been certified for a general plan and a later project is consistent with the general plan.  Here, the County chose Guideline 15183, which precludes additional review except as might be necessary to examine whether there are project-specific significant effects peculiar to the project or its site. Accordingly, the issue before the court was the extent to which the process was streamlined and what further review was required based on substantial evidence of the project’s peculiar environmental impacts.

Prior Initial Study Did Not Preclude Later Use of 15183 Exemption.  The court rejected the County’s argument that the initial study it had prepared at the outset precluded later use of the 15183 exemption.  It explained that the original initial study merely indicated that more evidence and analysis was required.  Distinguishing several cases decided outside the Guideline 15183 context, the court concluded that “to unequivocally require the preparation of an EIR based on the initial study, even in the face of County staff’s later findings that the project qualified for an exemption, would elevate form over substance.”

The Board’s Finding that Impacts Peculiar to the Project Would Not Be Mitigated by Uniform Policies Was Unsupported in the RecordThe Board found the project would have impacts that would not be mitigated by uniformly applied policies and procedures.  The court overturned this conclusion, finding no substantial evidence in the record to support it.  Numerous studies and the proposed draft EIR submitted by the applicant established that there were no such impacts.  In contrast, the Board’s finding was conclusory and did not identify with specificity either the impacts peculiar to the project or what effect uniform policies and standards would have.  The County claimed its finding was supported by public comments and staff communications expressing concerns that the project may have significant impacts.  The court found these statements were largely speculative and, in any event, failed to address whether the purported project-specific impacts would be substantially mitigated by uniform policies. 

Board’s Decision Was Prejudicial Even Though the Project Was Not DeniedThe County argued that merely subjecting a project to further environmental review was not prejudicial.  The court noted that this position could lead to an indefinite review process without judicial recourse so long as the project application was not formally denied.  It also noted that under Public Resources Code section 21168.5, a prejudicial abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence.  Such a prejudicial abuse of discretion was demonstrated here.

The City of Malibu determined that an attached accessory dwelling unit (ADU) did not fall within the coastal development permit exemptions set forth in its local coastal program (LCP). The court overturned the City’s interpretation of its own LCP, finding the ADU exempt from the coastal permit requirement.  Riddick v. City of Malibu, No. B323731 (2nd Dist., Feb. 1, 2024).

Under the Coastal Act, coastal development permits are required for most development.  Owners of a home in Malibu applied to expand their home and add an attached ADU. The City denied the original application, then refused to consider a revised application limited to adding an attached ADU, claiming a coastal development permit was required.  The homeowners sued, contending the project was exempt. 

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Malibu’s LCP ordinance exempts from the requirement for a coastal development permit improvements to existing single-family residences, “including all fixtures and structures directly attached to the residence and those structures normally associated with a single-family residence, such as garages, swimming pools, fences, storage sheds and landscaping but specifically not including guest houses or accessory self-contained residential units.” 

The court ruled that the plain meaning of this text describes two categories of exempt structures:  (1) all fixtures and structures directly attached to the house; and (2) structures normally associated with a single-family residence but not including guest houses or self-contained residential units. The court rejected the City’s argument that its interpretation of its own ordinance, under which the phrase excluding guest houses and accessory units would be read to modify the first category as well as the second, was entitled to “great deference.”

The court acknowledged that it must give deference to an agency’s interpretation, but not to the exclusion of other tools of statutory construction.  Here, the language and legislative history of the LCP ordinance were unambiguous, so there was no need to defer.  The text was not technical, obscure, complex, open-ended or entwined with issues of fact, policy and discretion, so did not require the City’s expertise.  The City’s interpretation was not the result of careful consideration by senior City officials and was not long-standing, but was issued by staff in response to this particular application.  The language was not crafted in response to unique local conditions.  Instead, it reflected, almost verbatim, a Coastal Commission regulation implementing the Coastal Act, which described the two categories referenced above. 

The court found irrelevant another provision of the LCP, which states that coastal development permits for both attached and detached ADUs shall be processed as administrative coastal development permits.  The court interpreted this language to indicate how coastal permit applications will be processed and not whether coastal permits are required.  Finally, the court rejected the argument that exempting attached ADUs would be inconsistent with the LCP statutory scheme by allowing an increase in the intensity of coastal development without a coastal permit.  The court noted that the LCP contained exceptions to its exemptions for projects that involve a risk of adverse environmental impact, including ADUs in locations such as a beach or wetland.  It ruled that this language reflects a policy choice to treat single family residences in environmentally sensitive areas differently from other areas in the coastal zone. 

The court declined to rule on the question whether approval of the ADU was mandated by Government Code section 65852.2, which it described as establishing standards under which ADUs must receive ministerial approval. Plaintiffs argued that, under that statute, their ADU application must be deemed complete and they were entitled to ministerial approval of their application. However, the court of appeal ruled that the unique procedural stance of the case – the application was allegedly not completed until after the judgment was entered, and plaintiffs’ cross-appeal, which was limited to the judgment, did not include the trial court’s post-judgment order denying plaintiffs’ motion to enforce the judgment by declaring the revised ADU application complete – precluded the court from considering whether plaintiffs were entitled to a permit within 60 days of the completeness date.