Uncertainty About an Agency’s Discretion to Determine Historical Significance for Purposes of CEQA Is Finally Put to Rest

Resolving a long-standing debate, the court in Friends Of The Willow Glen Trestle v. City Of San Jose (H041563), 6th Dist. Aug. 12, 2016,  ruled that San José’s determination that a railroad trestle bridge was not a historic resource was to be evaluated under the substantial evidence standard of review. It rejected the argument that the fair argument standard should apply, even though San José made its determination in the context of a mitigated negative declaration.

San José proposed to demolish a wooden trestle bridge that had been constructed in 1922, and replace it with a steel truss bridge. The city evaluated the historical significance of the trestle bridge in an initial study based on a review of information that had been developed for an earlier project. Those earlier documents concluded that the trestle was typical of its kind, that bridge components had likely been replaced in the preceding decades, and that the trestle bridge was not historically significant. The initial study for the bridge concluded that, even though the trestle was “locally important,” it was not historically significant.

Project opponents submitted a report claiming the trestle was “an important historical icon” and concluding that it qualified for listing in the California Register of Historic Resources. The city disagreed, and ratified the initial study’s analysis by adopting a mitigated negative declaration.

The project opponents sued. They claimed the city’s determination was invalid because the record contained a fair argument that the bridge project may have a significant effect on historic resources. The trial court agreed and ordered the city to prepare an EIR. The issue on appeal was whether the city’s decision should be reviewed under the fair argument standard or the substantial evidence standard.

The Willow Glen Trestle court relied on the language of section 20184.1 of CEQA, which identifies criteria under which a resource is deemed or presumed to be historically significant. It noted that the statute allows an agency to determine that resources presumed to be historic (such as resources listed on a local register) are not historically significant when it finds “the preponderance of evidence” supports that conclusion. Logically, if it makes such a finding, that finding must be upheld if it is supported by substantial evidence. The court then reasoned that the same standard must apply to determinations made under the final sentence in section 20184.1, which applies to resources that are not presumed historic. “Since the standard of judicial review for a presumptively historical resource is substantial evidence rather than fair argument, it cannot be that the Legislature intended for the standard of judicial review for a lead agency’s decision under the final sentence of section 21084.1 to be fair argument rather than substantial evidence.”

The court also addressed other court decisions on the issue. It ruled that those cases were not dispositive, as they did not explicitly consider the appropriate standard of review of a determination whether a resource is historically significant. More importantly, the Willow Glen Trestle court rejected its 1997 decision in Architectural Heritage Assn. v. County of Monterey — the case which triggered a long-running controversy about the issue — stating that “our decision in Monterey did not accurately state the appropriate standard of judicial review that applies in this case.”

 

City’s Attempt to Use Emergency Ordinance to Scuttle Unpopular Project Violates Developer’s Vested Right

In Stewart Enterprises Inc., v. City of Oakland (2016) 248 Cal.App.4th 410 the court of appeal provided important clarification on the limits of a local agency’s ability to use an emergency ordinance to reach back and prohibit a previously-approved project.

Stewart Enterprises involved a proposed crematorium in Oakland. After obtaining administrative zoning clearance for the proposed use, the developer bought the property and applied for a building permit. Five days after the building permit issued – and due to public opposition to the crematorium – the city council adopted an emergency ordinance requiring a use permit for any new crematorium activity in the city.

The emergency ordinance was written to apply to “any building or structure for which rights to proceed with said building or structure have not yet vested pursuant to the provisions of State law. . .” Thus, the ordinance focused on vesting under the so-called “judicial” vested rights doctrine, which provides that a permit-based right does not “vest” until the developer has performed substantial work and incurred substantial liabilities in good-faith reliance on the permit. Having approved the emergency ordinance, the city notified the developer it could not proceed with the crematorium without first obtaining a use permit.

After the developer’s administrative appeals failed, it filed suit, claiming among other things, that the emergency ordinance impaired its vested right to go ahead with the crematorium. That claim was not based on the “judicial” vested rights doctrine, however, but on the city’s own permit-vesting ordinance, which provided, in part, that when a subsisting building permit has been lawfully issued “neither the original adoption of the zoning regulations nor of any subsequent rezoning or other amendment thereto shall prohibit the construction, or other development or change, or use authorized by said permit.”

The trial court sided with the developer, finding that the city’s permit-vesting ordinance precluded application of the emergency ordinance to require a use permit.

On appeal, the court evaluated three issues: (1) whether the developer had a vested right under the city’s permit-vesting ordinance; (2) if so, whether the emergency ordinance impaired that right; and (3) if the developer had a vested right that was impaired, whether the impairment was justified based on the need to protect public health and welfare.

The court quickly determined that the developer had a vested right under the city’s permit-vesting ordinance, since the ordinance precluded application of subsequently-enacted zoning regulations where application of the regulations would prohibit construction authorized under a given permit.

Next, the court found that application of the emergency ordinance would impair the developer’s vested right based on the simple fact that it prevented construction of the crematorium under the building permit. The court was unpersuaded by the city’s claim that the vested right was not impaired because the developer had the option of pursuing a use permit. The possibility the developer could regain the right to build the crematorium if it obtained a use permit does not, the court noted, change the fact that “a project can be ‘prohibited’ even if the fulfillment of certain contingencies might at some later date reauthorize it.”

Lastly, the court considered the city’s claim that impairment of the vested right was necessary in order to protect public health and welfare. While the courts have recognized that vested rights may be impaired when necessary to address a “menace to public health and safety or a public nuisance,” such a finding must be supported by substantial evidence. The court found that letters of opposition to the crematorium and general comments expressing concern about the crematorium’s potential effects on public health were insufficient to make the required showing. Although it declined to establish a bright line rule, the court indicated that to justify impairment of a vested right, the record would likely need to include “actual” evidence that the use poses an unmitigated risk to public health.

Stewart Enterprises does not cover new ground. However, the decision is an important reminder that a vested right—whether created as a matter of law or pursuant to a vesting ordinance – may not be impaired, no matter how unpopular the project, without the governing agency meeting a heavy burden of proof.

 

Bay Area Air Quality Management District’s CEQA Guidelines on Pollution Impacts to Project Occupants and Users Are Invalid

The significance thresholds for exposure of receptors to harmful air pollution in the Bay Area Air Quality Management District’s CEQA Guidelines cannot provide the basis for requiring an EIR or mitigation measures, when used to measure the impact of existing air pollution on future occupants or users of a project. As a result, the District’s Guidelines are invalid to the extent they indicate that lead agencies should ordinarily apply the receptor thresholds to evaluate the effects of existing environmental conditions on a proposed project’s occupants or users. California Building Industry Assn. v. Bay Area Air Quality Management District, No.A135335 (First Dist. as modified, Sept. 9, 2016).

Background. The lawsuit was filed by the California Building Industry Association seeking to overturn the District’s significance thresholds for exposure of receptors in a new project to existing toxic air contaminants and particulates. CBIA’s primary concern was that by increasing the burdens of CEQA compliance, the thresholds would hamper development of infill housing. Arguing that CEQA is limited to a project’s impacts on the environment, and does not extend to the environment’s impacts on a project, CBIA claimed the District’s receptor thresholds were inconsistent with CEQA to the extent they treat the impacts of existing air pollution on occupants or users of a new projects as an environmental impact.

In a decision issued in late 2015 (see our 12/17/2015 post) the supreme court ruled that an analysis of the effects of existing environmental conditions on a project’s occupants or users is ordinarily not required under CEQA, but that CEQA does require an analysis of how a project might exacerbate existing environmental hazards. The court sent the case back to the court of appeal, instructing it to consider the validity of the District’s significance thresholds in light of these principles.

The court of appeal’s opinion. The opinion issued by the court of appeal after the case was sent back to it contains four important rulings on use of the District’s receptor thresholds.

A lead agency may not require an EIR or mitigation measures for the sole reason that future project occupants or users will be exposed to health risks from a nearby source of harmful air pollution.

The District conceded that the purpose of the challenged receptor thresholds is to give public agencies reviewing a project under CEQA a basis for determining whether future occupants or users will be exposed to unacceptable health risks due to emissions from nearby pollution sources. That purpose, the court concluded, cannot be squared with the rule that CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or occupants.

Public agencies may elect to evaluate the effect of existing environmental conditions on future occupants or users of their own projects.

The supreme court had noted in its opinion that CEQA does not bar a public agency from considering the effect of existing conditions on a project it proposes to undertake itself. Accordingly, the court of appeal ruled that an agency may elect to use the District’s receptor thresholds as guidance in assessing the effect of emissions on occupants or users of its own projects.

The District’s receptor thresholds may be applied to determine whether a proposed project would worsen existing environmental conditions.

CEQA’s focus is on the changes a proposed project will make to the physical environment. As a result, when a project might worsen existing environmental conditions, the District’s receptor thresholds may appropriately be used to assess the impacts on project occupants or users to the extent the impacts stem from changes the project will make to the environment.

The District’s receptor thresholds may be used to analyze impacts on a project’s occupants or users where such an analysis is required by statute.

Several provisions of CEQA require an analysis of the health effects of existing environmental conditions on a project’s occupants or users in specific situations. These statutes include school siting and construction projects and exemptions from CEQA for various categories of housing development projects. Because these statutes mandate an analysis of the impacts of air pollution on the project’s occupants or users, the receptor thresholds may permissibly be used for that purpose.

Conclusion. The court rejected the District’s argument that its Guidelines were merely advisory, finding that “they suggest a routine analysis of whether new receptors will be exposed to specific amounts of toxic air contaminants” Having ruled that it would be improper for a lead agency to use the District’s receptor thresholds to require an EIR, mitigation measures, or other CEQA review when such a use is not authorized, it concluded the Guidelines should be invalidated in part. The court accordingly instructed the trial court to issue an order invalidating those portions of the District Guidelines that suggest lead agencies should apply the receptor thresholds “to routinely assess the effect of existing environmental conditions on future users or occupants of a project.”

California Supreme Court Reforms Precondemnation Entry and Testing Statutes to Allow for Jury Determination of Damages

In Property Reserve v. Superior Court, S217738 (Cal. Supreme Court, July 21, 2016) the Supreme Court of California held that the precondemnation entry and testing statutes are constitutional when reformed to permit affected property owners the right to have a jury determine damages.

The California Department of Water Resources sought a court order allowing it to conduct environmental and geological testing on more than 150 privately owned parcels to investigate the feasibility of adding water conveyance facilities to the Sacramento-San Joaquin Delta to deliver water from Northern California to Central and Southern California. The proposed environmental activities consisted of mapping and surveys while the proposed geological activities consisted of drilling deep holes or borings.

The trial court authorized the Department to conduct the environmental testing subject to detailed limitations in its order. The court, however, denied the Department’s request to conduct geological testing under the precondemnation entry and testing statutes, ruling that such activities would constitute a taking, and the Department would therefore need to initiate an ordinary condemnation proceeding.

The court of appeal upheld the trial court’s denial of the Department’s request to conduct geological testing, but reversed the trial court’s grant of authority to conduct environmental testing. The court of appeal held that the precondemnation entry and testing statutes are limited to “innocuous or superficial” activities, and determined that because the Department’s proposed activities were not, they would constitute a taking, which would require that the Department file a condemnation case.

The California Supreme Court reversed. First, the court examined the legislative history of the precondemnation statutes and determined that the statutes were not limited to activities that were “innocuous or superficial.” The court held “that the current precondemnation entry and testing statutes are properly interpreted to encompass the type and degree of precondemnation environmental and geological testing” proposed by the Department.

The court then examined the procedure under the precondemnation statutes. As written, the statutes require that a public entity obtain a court order authorizing precondemnation entry and testing and deposit an amount of probable compensation for potential losses resulting from those activities. The court found the statutes “constitutionally deficient” because they do not give a property owner the right to a jury trial on the amount of damages for precondemnation activities, while the takings clause in the California Constitution guarantees an affected property owner the right to have the amount of just compensation determined by a jury. Rather than invalidating the precondemnation entry and testing statutes on this ground, however, the court determined that the appropriate remedy “is to reform the precondemnation entry statutes so as to afford the property owner the option of obtaining a jury trial on damages  . . . .” Accordingly, the court held that the precondemnation statutes are constitutional when the procedure is reformed to allow for a jury determination of damages.

The court’s decision is significant as it allows public agencies to avoid a classic condemnation proceeding for certain precondemnation activities, while providing property owners the option of having a jury determine the measure of their damages for such activities.

 

Neighbors’ Personal Stake In Preserving Local Parking Regulations Precluded Finding Of Public Interest

Neighbors who were suing to maintain existing neighborhood parking regulations were pursuing their own personal interests and did not qualify for the public interest exception from the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Because their Brown Act claim had no merit, it was properly dismissed as an anti-SLAPP suit. Cruz v. City of Culver City, No. B265690 (2nd Dist. Aug. 8, 2016).

Learning that the City Council of Culver City was considering a church’s request to change neighborhood parking restrictions, neighbors sued claiming the Council’s action violated the Brown Act because the process had been initiated during the public comment period rather than as a noticed agenda item. In response to the City’s motion to dismiss the action under the anti-SLAPP statute, plaintiffs argued they were subject to the public interest exception from the statute because their action concerned a matter affecting the public interest.

The court held that the Council’s discussion at the hearing and its decision to place the parking item on a future agenda, were activities arising from free speech, making the anti-SLAPP law applicable. The court also rejected plaintiffs’ claim that they were subject to the public interest exception to the anti-SLAPP statute. The public interest exception applies only to actions brought solely in the public interest, and plaintiffs’ action did not qualify because “[k]eeping the parking restrictions at status quo would directly benefit plaintiffs . . . [who] sought personal relief in the form of a halt to any attempts by the church to undo the long-standing parking restrictions.”

Because the anti-SLAPP statute applied, plaintiffs had the burden of showing it was probable they would prevail on the merits. They failed to satisfy this burden. The Brown Act allows a Council to discuss and take action on non-agenda items in three circumstances: (1) the Council may briefly respond to statements or questions from persons exercising their right to publicly testify at a hearing; (2) the Council may ask a question for clarification, make a brief announcement, or make a brief report on its own activities; and (3) the Council may ask staff to provide factual information, report back at a later time, or place an item on a future agenda. The Council’s discussion and decision fell within all three exceptions. Accordingly, there was no Brown Act violation, and plaintiffs’ action was properly dismissed under the anti-SLAPP statute.

General Plan’s Size Ranges for Shopping Centers a “Flexible” Policy, Not a Rigid Mandate

The City of Modesto’s General Plan includes a policy providing that certain neighborhoods “should” include a “7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet.” The Fifth District Court of Appeal upheld against challenge the city’s determination that development of an approximately 170,000 square foot shopping center on about 18 acres in one such neighborhood would be consistent with that policy. Naraghi Lakes Neighborhood Preservation Ass’n v. City of Modesto.

Over neighborhood opposition, the city approved a general plan amendment and rezoning to allow construction of the shopping center. In upholding the city’s findings that these actions were consistent with its general plan, the court first stated that the project was compatible with general plan policies aside from its identification of acreage and square footage figures.  The court then deferred to the city’s interpretation of the latter policy as offering “flexible descriptions to provide a basic model or pattern to guide the future development of the applicable neighborhood,” rather than “rigid development mandates.”

The court found this interpretation was supported by the plain language of the general plan, including its use of the permissive word “should” in place of the mandatory “shall.” The record also contained substantial evidence, the court determined, that the city consistently applied the acreage and square footage figures flexibly, as it previously had approved shopping centers larger than the stated ranges.

The court’s decision reinforces existing case law emphasizing the significant discretion a local agency enjoys when considering whether a proposed development is consistent with its general plan.

EIR’s Energy Impacts Analysis Fails To Satisfy CEQA’s Requirements 

Background

In Ukiah Citizens for Safety First v. City of Ukiah, 248 Cal.App.4th 256 (2016) the First District Court of Appeal concluded that the City of Ukiah’s EIR for a proposed Costco failed to satisfy CEQA’s requirements for evaluating energy impacts.

The project involved the construction of a new Costco store and gas station. The city certified the EIR and adopted a statement of overriding considerations and adopted legislation to approve the project entitlements several weeks later.  Ukiah Citizens for Safety First filed a petition for a writ of mandate challenging the EIR and the project approvals on a number of grounds, including that the EIR failed to properly evaluate the project’s energy impacts.

The City’s Energy Impacts Analysis

CEQA provides guidance on energy impacts that only recently has come into focus. Public Resources Code section 21000(b)(3) provides that an EIR must incorporate a statement regarding “mitigation measures proposed to minimize significant effects on the environment, including, but not limited to, measures to reduce the wasteful, inefficient, and unnecessary consumption of energy.” Section 15126.4(a)(1)(C) of the Guidelines provides that: “energy conservation measures, as well as other appropriate mitigation measures, shall be discussed when relevant.” And Appendix F of the Guidelines provides a list of possible energy impacts and potential conservation measures that are intended to assist the lead agency in preparation of an EIR.

In this case, the EIR did not contain a separate discussion of energy impacts, but instead mentioned energy impacts at various points throughout the environmental analysis. For example, the EIR determined that the project could result in a potential increase in electrical and natural gas usage, and it discussed the effects of energy usage with respect to the project’s potential impacts on air quality and greenhouse gas emissions. The EIR concluded that the project “would not exceed existing gas and electric supply or result in wasteful, inefficient, or unnecessary consumption of energy.” In support of this conclusion, the EIR noted that the project would conform to Building Code energy conservation standards, and that the project’s design incorporated several sustainable features.

Ukiah Citizens for Safety First claimed that the EIR failed to provide sufficient information regarding the project’s energy consumption, and generally failed to satisfy Appendix F. The city, Citizens contended, was required to calculate the project’s energy use attributable to project-generated vehicle trips, and to also calculate the project’s energy consumption during construction and operational phases.

The court sided with Citizens and found the EIR’s energy impacts deficient: The analysis failed to calculate the energy impacts of project-related vehicle trips, and relied on compliance with the building code standards to mitigate the project’s construction and operational energy impacts instead of providing a complete evaluation under Appendix F. The court further noted that the city’s reliance on mitigation measures designed to reduce greenhouse gas emissions was insufficient with respect to energy impacts.

The Addendum

The court then considered the effect of an addendum to the EIR the city had prepared to “clarify” its energy impacts analysis in response to a recent appellate court decision.  The court found that the addendum was not part of the administrative record because it was not before the city when the EIR was certified and the project was approved; thus, the addendum could not be considered by the trial court in its consideration of Citizens’ petition. Because the EIR was deficient when it was certified and the city approved the project, the addendum could not retroactively fix the EIR so as to negate Citizens’ claim that the city abused its discretion in approving the project.

Implications

The takeaway from Ukiah Citizens for Safety First is this: sizable development projects, and particularly those that may generate significant vehicle trips, should not gloss over Appendix F when discussing potential energy impacts. Failure to identify energy impacts associated with project vehicle trips may be a red flag to project opponents, as would reliance on building or construction standards as mitigation. Project applicants and lead agencies would be well served by evaluating (or at least distinguishing) the potential energy impacts and mitigation measures listed in Appendix F.

 

Loss of View is Not a Taking, Even in Beverly Hills

The mere loss of a homeowners’ unobstructed view, without any physical intrusion onto their properties, does not constitute a compensable taking. Boxer v. City of Beverly Hills, 246 Cal. App. 4th 1212 (2016).

In 1989, the City planted 31 coastal redwood trees in a park adjacent to Spalding Drive in Beverly Hills. In 2005, nearby homeowners complained to the City that the growing trees had begun to block previously unobstructed views of downtown Los Angeles, the Hollywood Sign, the Griffith Observatory, and other landmarks. They claimed the City had failed to trim and maintain the trees as intended and that further growth would entirely block the views from their property as well as exacerbate an existing fire hazard. The trees were not located on plaintiff homeowners’ properties, nor did plaintiffs allege any physical intrusion, occupation or invasion of, or physical damage to, their properties.

The homeowners brought an inverse condemnation suit against the City of Beverly Hills seeking damages and injunctive relief based on impairment of the views from their backyards. Without a physical intrusion onto their property, the homeowners relied on a theory of “intangible intrusion,” arguing that “because a ‘property owner’s loss of view is an aspect of compensable damage’ in eminent domain cases, the impairment of their views [was] a harm sufficient to support their inverse condemnation claims.”

The court rejected as “simply wrong” the argument that damage to the value of plaintiffs’ properties, such as from an impaired viewshed, establishes a compensable taking. The mere existence of a diminution in the value of the plaintiff’s property does not establish a compensable taking — it is an element of the measure of just compensation when such taking or damaging is otherwise proved.

The court also rejected plaintiffs’ contention that impairment of a view alone can constitute a taking. The court was unpersuaded by several cases addressing compensation for a loss of view because those cases also involved a physical taking of the claimant’s property. Several California cases discuss a “right” to visibility, but impairment of this right by government action was always “tethered to a compensable claim of impaired physical access.” Plaintiffs failed to identify authority for the proposition that a reduction in visibility, per se, required the payment of compensation. Intangible intrusions onto property such as a reduction in view may give rise to an inverse condemnation claim only where there is some burden on the property that is direct, substantial, and peculiar to the property itself.

The court undertook a lengthy discussion of Regency Outdoor Advertising, Inc. v. City of Los Angeles, 39 Cal. 4th 507 (2006), in which an advertising company leasing property along a Los Angeles boulevard claimed that palm trees planted by the City along the median reduced the visibility of its billboards. The California Supreme Court rejected the company’s inverse condemnation claim, holding that “impairment to visibility does not, in and of itself, constitute a taking of, or compensable damage to, the property in question.” Impairment of a “visibility right” might warrant compensation, but the company had no such right. The court noted it would be especially difficult to establish a visibility right as against trees planted on City property, since planting trees could be viewed as an application of land-use regulations and police power, including “the government’s well-established prerogative to plant trees on its own property.”

In Boxer, the homeowners attempted to distinguish Regency as concerning “a view of property, rather than a view from property” (emphasis in original). The court found this distinction to be of little consequence in light of the well-established principle of California law that a “landowner does not have a right to an unobstructed view over adjoining property.” As in Regency, the court declined to find the homeowners had a “visibility right,” stating that while private parties or a legislative body could create a right to an unobstructed view, the courts would not imply such a right.

Failure to Discover An Agency’s Approval Of An Exempt Project Does Not Extend The Time To File CEQA Lawsuit

The First District Court of Appeal has ruled that the accrual of a claim that a public agency exemption determination violated CEQA is not postponed by the plaintiff’s failure to discover the violation. Communities for a Better Environment et al. v. Bay Area Air Quality Management District, No. A143634 (1st Dist., July 19, 2016; modified Aug. 10, 2016).

Communities for a Better Environment brought an action against the Bay Area Air Quality Management District challenging  BAAQMD’s determination that its approval of a permit authorizing a rail-to truck transloading facility to switch from loading ethanol to crude oil was exempt from CEQA.

In July 2013, BAAQMD had found its approval was an exempt ministerial action, but did not file a Notice of Exemption.  Two months later, the transloading facility began transloading crude oil.  Over the next few months, BAAQMD modified several conditions of the permit and ultimately issued another permit incorporating the modifications.  CBE subsequently filed its lawsuit against BAAQMD.

During the trial court proceedings, BAAQMD argued that CBE’s petition was time-barred because it was filed more than 180 days after the issuance of the first permit, the time to file suit specified by statute when no Notice of Exemption is filed. CBE responded that a “discovery rule” should apply, which would mean that the limitations period did not begin to run until CBE first became aware of the operational change in January, 2014.  The trial court rejected CBE’s claim and dismissed the case as time-barred because it was filed more than 180 days after BAAQMD’s decision to approve the project.

The court of appeal agreed, holding that a discovery rule cannot be applied to postpone the running of the CEQA’s statutory limitations periods because the specified time periods are dates on which the public is deemed to have constructive notice of a potential CEQA violation.

The court of appeal distinguished the situation from a case decided by the California Supreme Court three decades ago, and a recent court of appeal case, in which the plaintiffs successfully argued a challenge was not time-barred because substantial changes had been made to the project after the initial approval. The court of appeal observed that in both cases the courts determined “that an action accrues on the date a plaintiff knew or reasonably should have known of the project only if no statutory triggering date has occurred.” CBE, however, “offered no theory” demonstrating that the applicable triggering date in the statute did not occur.

The court of appeal held that CBE’s contention that the discovery rule could delay the statutory triggering date ran counter to the general principle that CEQA’s statutes of limitation specify dates a plaintiff is deemed to have constructive notice of a potential CEQA violation. A plaintiff’s lack of actual notice of the violation is irrelevant.  Accordingly, the court of appeal upheld the trial court’s dismissal of CBE’s petition.

The court of appeal’s decision reinforces the strong public interest underlying CEQA’s short statutes of limitation. As the court of appeal stated, a discovery exception could not be read into the statute without violating “‘the Legislature’s clear determination that the public interest is not served unless CEQA challenges are promptly filed and diligently prosecuted.’”

 

General Plan Sustainability Requirements Doom Wal-Mart Project

Finding a variety of legal errors, including failure to comply with a city policy requiring on-site electricity generation “to the maximum extent feasible,” a court of appeal has overturned the City of Victorville’s approvals for a Wal-Mart project.  Spring Valley Lake Ass’n v. City of Victorville, No. D069442 (4th Dist., June 15, 2016).  The court found:

  1. The project approvals were inconsistent with the City’s general plan;
  2. The environmental impact report’s analysis of greenhouse gas emissions was inadequate;
  3. The city council failed to make findings required by the Subdivision Map Act; and
  4. The city was required to recirculate the EIR due to changes in its air quality and hydrology/water quality analyses.

General Plan.  The court held the project was inconsistent with two sustainability provisions of the city’s general plan.  The first was a program requiring “all new commercial or industrial development to generate electricity on-site to the maximum extent feasible.”  The project did not include any on-site electricity generation; the EIR stated that incorporation of rooftop solar systems would make the project economically infeasible absent significant government credits and incentives, which could not be assured.  The court held this explanation did not constitute substantial evidence that solar power generation or other alternatives (such as wind power, which the EIR did not discuss) were completely infeasible.

The second general plan requirement was a 15% improvement on 2008 Title 24 standards for all new construction.  The EIR showed that the project would “currently” achieve only a 10% improvement, but would comply with new energy efficiency standards at the time of construction, and then would “likely” meet the 15% requirement.  The court held that this, too, was inadequate.

The court agreed with the city that a project need not conform perfectly with each and every general plan policy, but applied the rule that a project is inconsistent with a general plan “if it conflicts with a general plan policy that is fundamental, mandatory, and clear.”  The court held that the city’s on-site electricity generation requirement constituted such a policy, and therefore the city’s finding that the project was consistent with its general plan was not supported by substantial evidence.

EIR Greenhouse Gas Analysis.  The court held the EIR’s GHG emissions analysis was inadequate because it relied in part on the conclusion that the project would achieve the 15% improvement in energy efficiency required by the city’s general plan, whereas the EIR itself stated that the project might not do so.

Subdivision Map Act.  The Map Act requires a city to deny approval of a parcel map if it makes any of seven findings.  These findings are stated in the negative, e.g., “the proposed map is not consistent with applicable general and specific plans….”  In approving the Wal-Mart project, the city did not make findings on these seven topics, reasoning that the findings requirement applied only if the city were denying rather than approving the parcel map.  Citing a 1975 California Attorney General opinion, which had never been overturned by the Legislature, the court held that the city was required to address the seven findings in its approval of the parcel map.

EIR Recirculation.  The city revised four of the DEIR’s analyses in the Final EIR, but determined that the document did not need to be recirculated for further public comment.  As to biology and traffic, the court agreed, but it found significant new information regarding air quality and hydrology/water quality that should have led to recirculation.  The change in the air quality chapter was the addition of the general plan consistency analysis described above. The court stated that because the analysis did not support the finding that the project was consistent with the general plan requirement, and because the public did not have the opportunity to comment, the EIR should have been recirculated.  The hydrology/water quality analysis suffered from a different problem; according to the court, the Final EIR showed a “complete redesign” of the project’s stormwater management plan, and 26 pages of EIR text were replaced with 350 pages of technical reports and a conclusion.  The court held that these revisions deprived the public of a meaningful opportunity to comment.

The Spring Valley Lake case illustrates the difficulties cities and counties face as they use their general plans to promote general sustainability and greenhouse gas reduction goals and later try to implement these in the context of specific development projects.  The case falls in line with other recent appellate decisions — such as those requiring extensive analysis of energy use under CEQA Guidelines Appendix F — demonstrating increased judicial scrutiny of public agencies’ commitments to sustainability.

LexBlog