A court of appeal has denied CEQA challenges to the EIR for an apartment project, holding that analysis of biological impacts need not be based on surveys conducted in the same year the city issued its notice of preparation of the EIR. Save North Petaluma River and Wetlands v. City of Petaluma, 86 Cal.App.5th 207 (2022). The court also upheld the EIR’s analysis of potential impacts to emergency evacuation during flood or wildfire.

The apartment project, first proposed in 2003 at 312 units, underwent numerous revisions before the city approved it at 180 units in 2020. The revisions reduced the project’s footprint, increased its setback from the Petaluma River, and preserved additional wetlands and trees.

Plaintiffs asserted that an EIR must describe site conditions as they existed in the year of the notice of preparation of the EIR. Here, the City issued the NOP in 2007, but the EIR’s analysis cited a 2004 Special Status Species Report that in turn cited a 2001 site survey. Plaintiffs challenged the EIR’s baseline for analysis of impacts to biological resources because no study had been conducted in 2007.

The court rejected this claim, citing case law holding that CEQA does not mandate a uniform, inflexible rule for determination of the existing conditions baseline. Here, the EIR’s description of existing biological conditions was drawn from site visits, studies, and habitat evaluations that took place both before and after 2007. And nothing in either the record or in plaintiffs’ briefs suggested that on-site biological conditions had changed over the years.

Plaintiffs also argued that the project would cause a significant public safety impact by interfering with evacuation during a flood or a wildfire. The court upheld the EIR’s analysis of this issue as based on substantial evidence, which included the project’s siting of both buildings and evacuation routes outside the floodplain, the project’s location outside the city’s high fire hazard severity zone, and the fire department’s confirmation that it did not have significant flood or fire access/egress concerns with development above the 100-year floodplain. The plaintiffs’ late submission of an expert’s one-page memorandum requesting additional study did not entitle the court to reweigh the allegedly conflicting evidence.

It is fairly common for expert surveys and studies of existing environmental conditions to be prepared either before or after the NOP is issued. So long as the EIR’s description is supported by substantial evidence, the Save North Petaluma case confirms that nothing in CEQA requires such surveys and studies to be conducted in the year of the NOP.

The EIR for a residential project has been struck down because its discussion of project alternatives did not analyze the possibility that public funds might be used to acquire the land for open space. Save the Hill Group v. City of Livermore, 76 Cal. App. 5th 1092 (2022).

The project site was zoned residential and was the last remaining undeveloped area in that section of the city. The 32-acre site was environmentally sensitive: it housed numerous special-status plant and animal species; was adjacent to a wetlands preserve; and was hydrologically connected to the unique Springtown Alkali Sink. Project opponents commented that the site should be preserved as open space rather than developed for housing. They filed a CEQA suit after the city approved the project.

The city noted that during its CEQA and project approval process, the plaintiffs had never tied their request for site preservation to the EIR or its alternatives analysis. Accordingly, the city argued that the plaintiffs had not presented to the city the “exact issue” they alleged in court and therefore had failed to exhaust administrative remedies. The court concluded, largely due to exchanges between city council members and city attorneys rather than comments by the public, that it was clear CEQA project alternatives were at issue and equally clear that even had the plaintiffs mentioned the EIR in relation to their open-space advocacy, it would have made no difference to the city’s decision. Therefore, the court found that the plaintiffs had met CEQA’s exhaustion requirement.

The court then held that the EIR’s analysis of the No Project Alternative was inadequate because it did not explore the possibility of public acquisition – even though the site was eligible for such acquisition through two settlement funds specifically designed to acquire environmentally sensitive lands in the area where the project site was located. In addition, in 2011 the city had acquired another private property to preserve habitat and avoid residential development, using these same funding sources. Under these circumstances, the court concluded that the existence of these funding sources was “just the sort of information CEQA intended to provide those charged with making important, often irreversible, environmental choices on the public’s behalf.”

Finally, although the plaintiffs abandoned their challenges to the EIR’s analyses and mitigation measures for impacts to vernal pool fairy shrimp and the Springtown Alkali Sink, the court addressed and rejected those challenges, concluding that: 1) mitigation requiring future presence/absence surveys for the shrimp was not impermissibly deferred; 2) substantial evidence supported the EIR’s finding that the project would not cause a significant impact to the Springtown Alkali Sink; and 3) mitigation requiring offsite compensatory mitigation for species impacts at the 85-acre “Bluebell” site was adequate even though the city’s general plan already called for preservation of that entire area, because the mitigation measure, unlike the general plan, required a permanent easement with an endowment for restoration and management.

Proposed greenfield development often elicits comments that a project site should be preserved rather than developed. The circumstances of Save the Hill Group are unusual, however, both in the biological quality of the site and, particularly, in the apparent availability of funds to acquire the site for preservation. Although most greenfield development projects will not feature these characteristics, the court’s decision indicates that lead agencies should take special care in their EIRs analyzing developments with potentially significant impacts to biological resources. In such cases, it may be wise to discuss whether legal or other reasons render public acquisition of the project site infeasible.

Update: On January 4, 2023, the Third District Court of Appeal granted the Department of General Services’ petition for rehearing. As a result, the below decision has been vacated and the appeal is again pending before the court.

In a high-profile CEQA case involving renovation of the State Capitol grounds, the Third District Court of Appeal found the EIR deficient for lack of a stable project description, insufficient analysis of impacts on historic resources and aesthetics, and failure to analyze a reasonable range of alternatives. Save Our Capitol! v. Department of General Services, 85 Cal.App.5th 1101 (2022).

In 2016, the legislature authorized major reconstruction of the primary office space for the Governor, state lawmakers, and staff (the “annex”) attached to the historic State Capitol. The Department of General Services prepared a draft EIR with plans to demolish the existing 325,000 square-foot annex and construct a new one, along with a new visitor center and underground parking garage. Following public comment on the draft EIR, DGS adjusted the design of the visitor center entry and recirculated the affected portions of the draft. Post-recirculation, DGS continued to refine the design, and the additional changes—including moving the parking garage from the south to the east side of the State Capitol—were addressed in the final EIR. DGS concluded that the changes did not constitute “new or significant information” that would require another round of recirculation.

Project Description

The court ruled that the project description was unstable because the new annex design, featuring an all-glass exterior, was not revealed until the final EIR. Previous drafts stated that the annex building materials would be compatible with the historic State Capitol to create a “one-building” feel. However, in the final EIR, the annex design changed so significantly that DGS departed from this vision. Instead, the interior spaces would maintain the “one-building” feel and an all-glass exterior would maximize natural light and occupant health. Because this change was first revealed only in the final EIR, the court held that conflicting earlier project descriptions may have misled the public and foreclosed the opportunity to meaningfully comment on the design’s impact on the State Capitol. The changing project description “prevented the people from commenting on significant environmental effects on what is truly the people’s capitol” and new information this late in the process did not satisfy the demands of CEQA.

Impacts Analysis

Based on the inadequate project description, the court held that DGS’ analysis of the impact of the new annex design on historic resources was deficient. Because the original project description omitted key changes to the annex, the final EIR did not adequately disclose related impacts and the public missed an important opportunity to comment (and DGS to respond) to the project’s impact on the State Capitol—a state and nationally listed historic resource.

DGS’ impacts analysis was also deficient with respect to aesthetics. First, DGS did not provide sufficient information to analyze the impact of the new visitor’s center on the protected scenic vista along Capitol Mall toward the West Lawn. CEQA does not require specific visual schematics, but it does require sufficient information to allow the public to consider the changes at issue. Here, the significance of the State Capitol required depiction of the altered vista. Renderings from different angles, with narrative about the proposed changes, was not enough. Second, DGS’ commitment to meet CalGreen standards for the new, all-glass annex was not sufficient to address light and glare impacts. Commitments to use specific materials or comply with best available standards may serve as mitigation measures, but they do not replace the analysis necessary to inform the public about how the project will alter existing aesthetics.

Alternatives Analysis

Lastly, DGS did not consider a reasonable range of alternatives as required by CEQA. The three alternatives identified in the final EIR overlooked an important option—moving the visitor’s center from the scenic West Lawn to the south side of the State Capitol. This alternative became particularly relevant when DGS modified the visitor’s center design, increasing impacts on the historic West Lawn. While CEQA does not mandate consideration of every alternative, it requires analysis of reasonable alternatives that would satisfy most of the project’s objectives while also reducing environmental impacts. Relocation of the visitor’s center was a logical alternative that met this standard and, by excluding it, DGS prejudicially impacted public participation and informed decision-making during the CEQA process.

For the reasons above, the court directed DGS to vacate its certification and revise and recirculate the affected portions of the EIR. In 2021, the Governor, state lawmakers, and staff moved out of the existing annex in preparation for construction. It is unclear how this decision will impact the project plans and the long-anticipated State Capitol renovations.

The First District Court of Appeal overturned the City of San Francisco’s decision that Saint Ignatius High School’s project to install four permanent 90-foot-tall athletic field lights was exempt from CEQA.  Saint Ignatius Neighborhood Association v. City and County of San Francisco, No. A164629 (1st Dist., Dec. 5, 2022).

The City approved the lighting project without environmental review concluding the project was exempt from CEQA. Specifically, the City’s Planning Commission and Board of Supervisor’s decided that the project was subject to Class 1 (existing facilities involving negligible expansion) and Class 3 (new construction of small structures) CEQA categorical exemptions. 

The City determined that the project qualified for a Class 1 exemption because it involved negligible or no expansion of the existing use of the facility. The court ruled that while the lights would not represent an expansion of the existing facility (the High School’s athletic field) or the overall frequency of its use, the lights significantly expanded the High School’s nighttime use of the facility from 40-50 to 150 nights per year. As such, this represented a significant expansion of the facility’s existing use, and the City erred in finding the Class 1 categorical exemption applicable.

The court also ruled the project was not the kind of small improvement that fell under the Class 3 exemption, explaining the project resulted in the construction of 90-foot structures significantly taller that the built environment surrounding the project (where the nearby houses and streetlights did not exceed 30 feet).  The project’s completion would also likely result in significant (but potentially mitigable) impacts on light, sound and traffic. 

The court added that “the purpose here for enforcing the environmental analysis . . . [was] not necessarily to kill the project but to require careful consideration of measures that will mitigate the environment impacts of the project.”

A suit seeking to set aside land-use approvals based on an alleged bribery scheme in violation of the Political Reform Act was subject to the 90-day statute of limitations for actions challenging land-use decisions. AIDS Healthcare Foundation v. City of Los Angeles, No. B311144 (2nd Dist., Dec. 14, 2022).

A federal criminal investigation revealed that two former Los Angeles City Councilmembers engaged in bribery and other corruption in connection with their work on the City Council’s Planning and Land Use Management committee, which makes recommendations to the Council concerning land-use decisions.

Petitioner sued under the Political Reform Act, seeking to set aside building permits issued during multiple years while the two Councilmembers allegedly were the beneficiaries of an ongoing bribery scheme. Petitioner contended that its PRA claims were subject to the three-year catch-all statute of limitations (CCP § 338(a)). The City countered that the more specific 90-day statute of limitation in Government Code § 65009 applied.

The court agreed with the City, finding that section 65009’s 90-day limitations period clearly encompassed the building permits petitioner sought to set aside. Section 65009 “contains no exceptions,” and uses “unqualified language manifesting a plain intent on the part of the Legislature to limit the time to seek review’ of an agency decision.” There was no exception for actions filed under the PRA.

The court rejected petitioner’s argument that the gravamen of its action was not principally a challenge to the permit decisions, but instead was “a challenge to the corruption.” It reasoned that while petitioner relied on the PRA as the basis for its action, the gravamen of its suit was an attack on, or review of, the committee’s decisions related to permitting and real estate project approvals, and Section 65009 applied directly to that challenge.

The City of Thousand Oaks violated the Ralph M. Brown Act by adopting a CEQA exemption without having listed the exemption as an item on its agenda for at least 72 hours before the meeting. G.I. Industries v. City of Thousand Oaks 84 Cal. App. 5th 814 (2022).     

Petitioner challenged a decision by the City to approve an exclusive solid waste franchise agreement with a competing entity. Petitioner asserted that the City violated the Brown Act by approving a Notice of Exemption under CEQA without adequate notice to the public.

The City posted an agenda that included consideration of the proposed franchise agreement, but the agenda made no mention of CEQA. It was not until the day of the City council meeting that a supplemental item was posted giving notice of the staff’s recommendation that the City find the agreement to be categorically exempt from CEQA. At the meeting, the City Council approved the franchise agreement and the CEQA exemption.

The court held that the Brown Act applied to the City’s determination that the franchise agreement was categorically exempt under CEQA, and that 72 hours’ prior notice was accordingly required. The court reasoned that the City’s CEQA determination was an item of business at a regular meeting of a local legislative body and the failure to provide the required notice of this agenda item deprived the public of a meaningful opportunity to be heard.

The court rejected the City’s claim that its adoption of the CEQA exemption was a component of the agenda item awarding the franchise agreement, reasoning that the CEQA exemption involved a separate action by the City and concerned discrete, significant issues of CEQA compliance. The court also rejected the City’s contention that the Brown Act was inapplicable because CEQA does not require a public hearing for a determination that a project is exempt. The Brown Act is not limited to actions that require a public hearing. The court observed that a finding that a project is exempt from CEQA is not a minor matter as such findings foreclose any analysis of the project’s environmental impact. The City’s determination regarding the CEQA exemption was “an aspect of the People’s business” and had to be appropriately included as an item on the City council agenda.

The City also argued that applying the Brown Act to a CEQA exemption would place an intolerable burden on local agencies, requiring basic administrative decisions such as the purchase of paperclips to be “agendized.” The Court dismissed this claim, pointing out that the specific section of the Brown Act at issue applies only to an item of business to be discussed at a regular meeting of the legislative body, and that “the vast majority of the City’s day-to-day business is not transacted or discussed at a regular meeting of the legislative body.” Moreover, for a categorical exemption to apply, the activity must qualify as a “project” under CEQA and “[m]ost of the City’s activities would not qualify as a project because they have no potential environmental effect.”

The City did not abuse its discretion in finding a residential project to be consistent with the City’s development standards since the project qualified for exemption from those standards under the Density Bonus Law. Bankers Hill 150 v. City of San Diego 74 Cal. App. 5th 755 (2022).

Petitioner, a community association, challenged a decision by the City of San Diego to approve a development application for a 20-story mixed-use building project with a total of 204 dwelling units in the Bankers Hill neighborhood near downtown San Diego.

Petitioner claimed the project was inconsistent with development standards and policies in the City’s General Plan and the Uptown Community Plan, arguing that the project’s design improperly obstructed views, failed to complement neighboring Balboa Park, and towered over adjacent smaller-scale buildings.

The court found that petitioners claims “sidestep[ed] a critical factor in the City’s decision-making process: the application of . . . the Density Bonus Law” (Gov. Code §§ 65915 et seq.), which is designed to encourage the construction of affordable housing. Under the Density Bonus Law, a developer may add additional housing units beyond the zoned capacity and take advantage of other incentives in exchange for including deed-restricted affordable units in a project. If a developer meets the requirements of the Density Bonus Law, the City must permit the increased density and waive any conflicting local development standards, unless certain limited exceptions apply.

Here, the developer included 18 units with deed restrictions to make them affordable to low-income households. With the density bonus, the developer sought to exceed the maximum zoned capacity of 147 units by 57 units. With the development incentives, the developer sought to avoid a setback on one street, eliminate two on-site loading spaces for trucks, and reduce the number of private storage areas for residents. The City could deny the project as inconsistent with these development standards only if it made specific findings that their waiver would (1) not result in any actual cost reductions; (2) adversely affect public health or safety; (3) be contrary to state or federal law. The City Council found there was no substantial evidence to support the denial of the requested incentives.

The court upheld the City Council’s determinations. The City did not abuse its discretion in finding that several policies cited by petitioner did not apply to the project and the record supported the City’s conclusion that the project did not conflict with the policies that were applicable. The record also demonstrated that including the affordable units in the project was only possible if the building was designed as proposed. If the City had denied the requested incentives or failed to waive the inconsistent design standards, it would have physically precluded construction of the project, including the affordable units–which would defeat the Density Bonus Law’s goal of increasing affordable housing.

The City Council properly concluded that the project qualified for the benefits of the Density Bonus Law and that the evidence did not justify refusal to waive the local development standards.

A traffic mitigation fee required for construction of a single-family home did not amount to an “unconstitutional condition” in violation of the takings clause of the Fifth Amendment, and the County complied with the Mitigation Fee Act in assessing the fee. Sheetz v. County of El Dorado, No. C093682 (4th Dist., Oct 19, 2022).

George Sheetz challenged a traffic mitigation fee imposed as a condition to a building permit for a new home on his property. He argued that the fee violated the unconstitutional conditions doctrine applied in the land-use context by Nolan and Dolan and that the County violated the Mitigation Fee Act in adopting and imposing the fee.

Under the unconstitutional conditions doctrine, the government may not ask a person to give up a constitutional right — such as the right to receive just compensation for a taking — in exchange for a development permit where the condition has little or no relationship to the development. Under Nolan and Dolan, there must be an essential nexus between the exaction and the governmental interest sought to be advanced and the government must make an individualized determination that the exaction is related both in nature and extent to the project’s impact. In Koontz v. St. John’s River Management Dist., 570 U.S. 595 (2013), the Court held that the doctrine applies to development fees, which it found to be “functionally equivalent” to the property dedications involved in Nolan and Dolan.                                                                                         

The California Supreme Court has held that the requirements of Nolan and Dolan apply only to fees imposed on an individualized or ad hoc basis, not to fees that are generally applicable to a broad class of property owners through legislative action. Relying on this authority, the Court of Appeal concluded that the unconstitutional conditions doctrine did not apply in this case because the traffic fee was imposed under a legislatively authorized fee program that generally applied to all new residential development within the County.

In support of his Mitigation Fee Act claim, Sheetz argued that the County had improperly failed to evaluate the traffic impacts attributable to his specific project in violation of section 66001(b) of the Act, which provides that the “local agency shall determine how there is a reasonable relationship between the amount of the fee and the cost of the public facility or portion [thereof] attributable to the development on which the fee is imposed.” Relying again on prior caselaw, the Court of Appeal held that section 66001(b) applies only to adjudicatory, case-by-case decisions to impose a fee on a particular project, not to legislatively adopted fees such as the traffic fee in question.

Assessing Sheetz’s broader claim that the County did not comply with the Mitigation Fee Act traffic in adopting and calculating the fee, the court found no error. The fee was adopted as part of the County’s 2004 General Plan, guided by policies designed to limit traffic congestion, including ensuring that roadway improvements were developed concurrently with new development. The fee was based on a transportation study that evaluated a range of factors, including the expected increase in traffic volumes (average daily vehicle trips) from each type of new development based on data published in the Institute of Transportation Engineers Trip Generation Manual, 7th Edition. The record reflected that the County considered the relevant factors and demonstrated a rational connection between those factors and the fee imposed. The limited portions of the record relied upon by Sheetz did not demonstrate that the fee was arbitrary, entirely lacking in evidentiary support, or otherwise invalid under the deferential standard applied to legislatively adopted fees.

­­The Ninth Circuit held that statutory language defining the scope of operations of Twitchell Dam was sufficiently broad to potentially include releases of water to facilitate migration of Southern California Steelhead to the ocean. San Luis Obispo Coastkeeper v. Santa Maria Valley Water Conservation District, No. 21-55479 (9th Cir., Sept. 23, 2022).

Environmental groups sued the agencies that operate the Twitchell Dam in San Luis Obispo County arguing that its operation interfered with endangered Southern California Steelhead migration and constituted an unlawful take under the Endangered Species Act. The groups contended that releases of water from the dam designed to maximize percolation in the riverbed resulted in insufficient flow to the Santa Maria River to sustain Southern California Steelhead migration to the ocean, preventing them from completing their reproductive cycle. They sought an order requiring properly timed releases to support Steelhead migration and reproduction.

Twitchell Dam was constructed in 1958 as authorized by Public Law 774 for the principal purpose of recharging the Santa Maria River Valley’s groundwater aquifer and minimizing the threat of flood damage. The District Court granted summary judgment to the agencies on the ground that PL 774 did not give them discretion to release water from Twitchell Dam for protection of endangered species,

The Ninth Circuit reversed, observing that PL 774 authorized Twitchell Dam to be operated for “other purposes” in addition to the enumerated purposes of “irrigation and the conservation of water, [and] flood control.” This expansive language, the court said, reflected congressional intent to grant the agencies authority to use the dam for a variety of purposes, including adjusting operations to accommodate changed circumstances such as the enactment of new laws. The court cited other instances in which Congress had used limiting rather than broad language in defining permissible dam operations. In the case of Twitchell Dam, Congress expressly provided that the dam could be used for purposes other than those specified in the statute.

The court acknowledged that PL 774 also required the agencies to operate the dam “substantially in accordance with” the plans and recommendations in the Secretary of the Interior’s Report, which contained a recommended flow rate for water releases. To avoid take of Southern California Steelhead, the dam’s flow rate would need to deviate slightly from the recommended flow rate at certain times during the year. But this, the court concluded, was consistent with the text of the statute, which required only substantial compliance rather than strict compliance with the Secretary’s Report.

Because PL 774 gave the agencies discretion to operate Twitchell Dam for purposes other than irrigation, conservation, and flood control, it was error for the District Court to grant summary judgment on the ground that the law did not provide that authority. However, the Ninth Circuit did not decide whether those purposes included adjusting water discharges to support Southern California Steelhead migration, leaving that issue to be considered by the District Court in the first instance.

A CEQA challenge to water allocations by the City of Los Angeles and its Department of Water and Power was barred by the statute of limitations because the allocations were under leases approved years earlier. County of Mono v. City of Los Angeles, 81 Cal.App.5th 657 (2022).

In 2010, the City approved a set of substantially identical leases covering about 6,100 acres of land owned by the City in Mono County. The City’s determination that the leases were categorically exempt from CEQA was not challenged. The leases provided that any supply of water by the City to the leased premises was conditioned upon the quantity in supply at any given time, and that “the amount and availability of water, if any, shall at all times be determined solely by the City of Los Angeles.”

Over the following eight years, the City provided varying amounts of water to lessees on an annual basis, ranging from zero to 5.4 acre-feet. In March 2018, the City sent lessees copies of a proposed new form of lease — termed the “Proposed Dry Leases” — under which the City would not furnish irrigation water but would, from time to time, provide “excess water” for spreading on the leased land. It also notified lessees that it was performing CEQA review of the Proposed Dry Leases and that the 2010 leases would remain operative in holdover status until completion of that review. In May 2018, the City informed lessees that the 2018-19 allocation under the 2010 leases would be 0.71 acre-feet per lease.

The County of Mono, one of the lessees, filed suit contending that the City improperly failed to conduct CEQA review before deciding upon the 2018-19 allocation because the allocation constituted a “new reduced water project,” either on its own or as part of the Proposed Dry Leases.

The Court of Appeal was unpersuaded. Examining the history of water allocations under the 2010 leases, the court found no indication that the 2018-19 allocation represented “a turning point toward a low-water policy or Proposed Dry Leases.” It rejected, as unsupported by the evidence, the County’s claim that the City’s prior water allocations had been closely tied to the snowpack and anticipated runoff and that the 2018-19 allocation represented a departure from this practice. Rather, the allocations were only loosely tied to snowpack and runoff estimates and depended on other factors, including the City’s own needs and conservation practices.  

The court also dismissed the County’s claim that the timing of the 2018-19 allocation relative to the Proposed Dry Leases indicated the City was engaging in de facto implementation of proposed new leases before completing CEQA review. The court pointed out that the City had announced its intention to perform environmental review before approving the new leases and expressly committed to abiding by the 2010 leases while proceeding with that review. The 2018-19 allocation was both within the City’s authority under the 2010 leases and consistent with its prior allocation practices.

Because Mono County’s suit was filed years after the approval of the 2010 leases, it was time-barred. The fact that the 2018-19 allocation was a discretionary decision did not remove it from the ambit of the project approved as part of the 2010 leases, as those leases plainly gave the City authority to make such subsequent decisions. If Mono County believed the reduction of water allocations in specific years would constitute a substantial change in practice that could have significant environmental effects, it should have raised that argument in 2010 when the City approved the leases that authorized such decisions.