In Save Berkeley’s Neighborhoods v. Regents of the University of California, No. A157551 (June 25, 2020) the court of appeal rejected the University of California’s argument that it need not have prepared a Supplemental EIR to analyze the effects of its discretionary decisions to increase enrollment on the Berkeley campus. The University had prepared a Program EIR for its UC Berkeley Long Range Development Plan in 2005. The LRDP EIR anticipated enrollment would increase by 1,650 students over the life of the plan. Beginning in 2007, the University made periodic decisions to increase Berkeley enrollment such that, by 2018, enrollment had increased by 8,300 students.

Petitioners argued that the University’s decisions to increase enrollment constituted changes to the previously approved project and that the University had violated CEQA each time it decided to increase enrollment in the absence of a Supplemental or Subsequent EIR. They also claimed they did not know about the University’s decisions to increase enrollment until 2017 and argued that their complaint was therefore timely.  The University sought dismissal of the lawsuit on the ground that the claims did not state a legal violation of CEQA, even if the allegations were true.

The court of appeal first recognized the general rule that CEQA applies whenever a public agency makes a discretionary decision that could have a physical effect on the environment. Because changes in enrollment have the potential to result in physical environmental effects, this general rule would dictate that decisions by public universities to increase enrollment are projects subject to CEQA.

The court then rejected the University’s argument that a more specific section of CEQA (Section 21080.09) exempts the University from CEQA compliance when it makes enrollment decisions that are not tied to a long-range development plan. Section 21080.09 requires the EIR for each public university campus’s long-range development plan to consider environmental effects relating to changes in enrollment. The court held that these provisions did not exclude consideration of such effects when enrollment decisions are made outside the land use context.

Had the University’s enrollment decisions been within the range previously evaluated in the LRDP EIR, the University could have relied on its Program EIR as its means of CEQA compliance. However, the court agreed with petitioners that an increase in enrollment above the amount analyzed in the LRDP EIR constituted a project change. Under CEQA Guidelines section 15162, an agency must prepare a subsequent or supplemental EIR whenever a project change would result in a new or substantially more severe environmental impact. Because petitioners had alleged that new or more severe environmental impacts would result from the enrollment decisions, the court found adequate grounds to proceed to the next stage of litigation.

The court of appeal also held that petitioners had adequately pled facts indicating that the suit was timely. When, as in this case, a public agency does not issue a Notice of Exemption or Notice of Determination, the time period for filing a CEQA suit is 180 days from the date that a challenger knew or reasonably should have known about the agency’s decision. The court ruled that whether petitioners had the requisite knowledge of the University’s decision was a factual one to be decided during the litigation.

An administrative agency must provide the notice required under Code of Civil Procedure section 1094.6(f) specifying when its decision becomes final, and may not add potentially confusing information that undermines the statutory purpose of eliminating doubt as to when the statute of limitations to begins to run. Alford v. County of Los Angeles, No. B293393 (2nd Dist., July 1, 2020).

Plaintiff filed a mandamus action challenging an administrative decision by the Los Angeles County Department of Children and Family Services. The Department argued the suit was time-barred because it was not filed within 90 days of the Department’s final decision as required under Code of Civil Procedure section 1094.6. A decision becomes “final” under that statute on the date it is served by first class mail. The Department cited undisputed evidence that plaintiff did not file his action until over four months after receiving mailed notice of the Department’s decision.

The court of appeal found that plaintiff’s action was timely because the Department’s notice did not comply with the statutory requirements. Code of Civil Procedure section 1094.6(f) requires the agency to “provide notice to the party that the time within which judicial review must be sought is governed by” section 1094.6. The 90-day limitations period under section 1094.6 does not begin to run until this notice is given.

In this instance, the court found, the agency’s notice was deficient because it gave plaintiff conflicting information about the filing deadline. The notice said the Department’s decision was final, and that section 1094.6 required plaintiff to file any petition no later than “the 90th day on which the petition is deemed final.” But the notice also said the decision would become final “90 days from the date it is placed in the mail.”

The notice thus gave plaintiff inconsistent information about when the Department’s decision became final. It complied with the statutory requirement of notifying plaintiff that the filing deadline was governed by section 1094.6; but it added the confusing and conflicting statement that “[t]he decision will become final 90 days from the date it is placed in the mail,” which was contrary to the language of the statute.

The Department conceded its notice may have confused plaintiff but argued that this could not change plaintiff’s obligation to file within the statutory deadline because the notice clearly informed plaintiff that the action was governed by the time limit in section 1094.6. The court disagreed, pointing out that the notice could be reasonably understood to mean the decision was not final until 90 days after it was mailed rather than on the date it was mailed, as the statute provides. In light of the statutory goal of eliminating doubt as to when a decision is final, agencies must provide the notice specified in the statute, and may “not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review.”  Because the Department’s notice did not comply with the statute, plaintiff’s petition was not time-barred.

Nicholas Honchariw’s battles with the County of Stanislaus over his 9-lot subdivision have now resulted in a fourth published appellate decision. (See our prior reports, County Violates California’s Anti-NIMBY Law by Rejecting Housing Project With No Affordable Units; No Affordable Housing, No Attorney’s Fees Under Housing Accountability Act; and If At First You Succeed, Don’t Try, Try, Try Again). In Honchariw IV, the appellate court held that Honchariw’s disagreement with the County’s interpretation of tentative map conditions was not barred by the statute of limitations governing decisions concerning a subdivision because the suit was filed within 90 days after the dispute regarding the proper interpretation of the conditions arose. Honchariw v. County of Stanislaus, No. F077815 (5th Dist., June 25, 2020).

Honchariw sued the County after it refused to process his final map because the project did not comply with fire suppression conditions attached to the tentative map. Specifically, the County determined that the project’s water lines and fire hydrants did not meet County Fire Code flow and pressure standards because the water district’s system was not capable of providing the required flow without a system upgrade. In response, Honchariw argued that the project’s water lines and hydrants met the fire flow requirements and that the applicable conditions required only that this project infrastructure be installed prior to recordation of the final map, not that it be fully functional and capable of providing the necessary flow at that time. Reaching an impasse with the County, Honchariw turned again to the courts.

The County contended that Honchariw’s challenge to the conditions of approval was barred by the 90-day statute of limitations in Government Code section 66499.37, which applies to any “act[] or determination[] taken, done or made prior to the decision” of a public agency “concerning a subdivision,” including “the reasonableness, legality, or validity of any condition attached thereto.” Because these conditions were attached to approval of the tentative map in 2012, the County maintained that Honchariw’s claims were time-barred.

The appellate court disagreed. It found that Honchariw’s main issue was not with the reasonableness, legality or validity of the conditions adopted in 2012. Rather, his claim was that the County had later misinterpreted those conditions. The alleged misinterpretation constituted an “act[] or determination[] taken, done or made prior to the decision” of an agency “concerning a subdivision.” However, Honchariw filed his lawsuit within 90 days after the dispute regarding interpretation of the conditions arose, as reflected in correspondence between the parties. Honchariw’s lawsuit was therefore a timely challenge to the interpretation of the conditions of approval, as distinct from one challenging the validity of the conditions as originally imposed.

Stated differently, the court said, a claim challenging an agency’s interpretation of a condition of approval does not “accrue” for purposes of the statute of limitations until it is clear what the interpretation is and that it represents the agency’s final position. This occurs when it becomes apparent that further negotiations or attempts at clarification are unnecessary or would be futile. Here, the County’s final position became clear only within the 90-day period preceding the filing of the lawsuit. Therefore, the statute of limitations did not bar Honchariw’s claim.

Honchariw is 2 for 4 in the Court of Appeal.

The court of appeal found the EIR for a master planned community sufficient because it adequately described and analyzed impacts of the proposed project, which included a university, and was not required to consider the speculative possibility that the university would never be built. Environmental Council of Sacramento v. County of Sacramento, No. C076888 (3rd Dist., March 2, 2020)

The proposed project consisted of a master planned community, including residential, office, retail, and a 224-acre university campus. At the time the EIR was prepared, no specific university had been identified for the site. The EIR explained that, due to the long-term nature of the project, actual buildout of the university could not be predicted with precision. Plaintiffs challenged the project on numerous grounds under CEQA.

Adequacy of Project Description and Impacts Analysis

Plaintiffs claimed the project description was inadequate because it did not address the possibility that the proposed university would never be built, and hence that the EIR’s environmental analysis was “based upon a falsehood and speculation.” The appellate court found that the difficulties in attracting a major educational institution had been taken into account by the Board of Supervisors, which imposed obligations on both the developer and the County designed to advance that goal. These included requiring the developer to report annually on its progress, and to deposit payments (capped at $6 million) in an escrow account if the university land had not been transferred to a university by the time specific numbers of residential units had been built. The project also included numerous incentives designed to attract a university, including approximately $87 million in financial commitments.

The court determined that plaintiffs had failed to present credible and substantial evidence that the proposed university was an illusory element of the project. The EIR was not required to address the speculative possibility that a university would never be built. The court similarly rejected plaintiffs claim that the EIR misrepresented the significance of the project’s environmental impacts to air quality, climate change, and traffic based on the erroneous assumption that the university would be built.

Failure to Adopt Feasible Mitigation Measures

Plaintiffs also asserted that the County was required to consider, as a feasible mitigation measure, tying the phasing of project construction to development of the university in order to reduce environmental impacts. The Board, in its findings and statement of overriding considerations, had determined that these and other suggested mitigation measures were infeasible, in part because such measures would inhibit attainment of economic, social, and other project benefits. The court concluded that plaintiffs had failed to provide any evidence in the record to demonstrate that such tied phasing was feasible, noting that it was “not the court’s duty to independently review the administrative record to find relevant facts to support [plaintiffs’] claim of feasibility.”

The court of appeal held that plaintiffs’ inverse condemnation and damages claims based on dredging in the bay adjacent to their properties was barred under the doctrine of res judicata based on a 1931 judgment conclusively establishing that the property alleged to have been taken or damaged was not owned by plaintiffs. SLPR, LLC v. San Diego Unified Port District, No. D074958 (4th Dist., May 22, 2020).

Plaintiffs, a group of Coronado property owners, brought a quiet title and inverse condemnation action against the State of California and the Port contending that dredging in the San Diego Bay from 1998 to 2005 had damaged and taken portions of their bayfront properties without just compensation.

The appellate court found that a 1931 judgment resolving a title dispute between plaintiffs’ and defendants’ predecessors-in-interest established the boundaries between their respective properties, and that the property plaintiffs claimed had been taken or damaged was not within plaintiff’s ownership. Evidence admitted at trial showed that there had been both artificial improvements and artificial fill placed in the immediate vicinity of plaintiffs’ properties over many years and that a dispute had arisen between the parties’ predecessors as to the correct property boundaries. This litigation was resolved by a settlement and stipulated judgment fixing the boundaries between the tidelands and uplands properties. This judgment, the court explained, was conclusive and binding on plaintiffs under the doctrine of res judicata, under which parties are barred from relitigating claims previously resolved by a judgment in litigation between the same parties or their predecessors-in-interest.

Plaintiffs argued that for res judicata to apply, defendants were required to present “unequivocal evidence” of the mutual intention to determine the boundary. The court disagreed with plaintiffs’ asserted burden of proof, but nonetheless found that the “overwhelming” evidence presented demonstrated unambiguous intent to establish the boundaries. This included not only the record in the 1931 action itself but also extrinsic evidence showing that, following entry of judgment, temporary wood stake boundary markers had been replaced with concrete monuments, reflecting a “permanent fixed line” between tidelands and uplands property.

The City of Lafayette violated the Brown Act by not including a litigation threat discussed in closed session in the agenda packet made publicly available before the meeting, but plaintiffs failed to show any prejudice resulting from the violation. Fowler v. City of Lafayette, 46 Cal. App. 5th 360 (2020).

Homeowners sought approval from the City build a cabaña near a tennis court on their property. Plaintiff neighbors appealed the Planning Commission’s approval to the City Council. During consideration of the appeal, the homeowner’s attorney threatened to sue the City if it denied the project. The City Attorney notified the City Council of the litigation threat orally in a closed session. The threat was not noted in the agenda for any of the public meetings, and there was no mention of it in the information packets made available to the public before the meetings. At its final public meeting, the City Council denied the appeal and upheld the Planning Commission’s approval of the application.

Plaintiffs sued, contending that the City violated the Brown Act by discussing the application in closed hearings, and that plaintiffs were deprived of their right to a fair hearing.

Brown Act Violation

Plaintiffs claimed the City violated the Brown Act by failing to announce or make available for public inspection the litigation threat that served as the basis for closed session discussions. The City argued it was not required to include the litigation threat in the pre-meeting agenda packet because the threat was not distributed in written form to the City Council. The court of appeal rejected this argument, stating that under the Act, the record of a litigation threat to be discussed in closed session must be reduced to writing and included in the agenda packet made available upon request before a meeting. Therefore, the City violated the Brown Act.

Nullification of Agency Action

Plaintiffs urged the court to nullify the project approval under provisions of the Brown Act authorizing a court to declare null and void an action taken in violation of specified portions of the Act. The court was unpersuaded for two reasons. First, plaintiffs’ complaint was that they were not informed of the litigation threat before the City Council discussed the threat in closed session. But the action they sought to nullify was the approval of the cabaña, which occurred in an open session that was properly noticed. Second, plaintiffs failed to make the showing of prejudice necessary to support nullification under the Act. The application was thoroughly considered at four open City Council meetings, and there was no reasonable argument that plaintiffs lacked a fair opportunity to present their case, that the City failed to consider it fully, or that plaintiffs would have achieved a more favorable result had they known the City Council had discussed the litigation threat in closed session.

Fair Hearing Claim

Plaintiffs argued they were deprived of their right to due process and a fair hearing because the architect for the project was a member of the City’s Planning Commission and a member of the Design Review Commission, which had initially reviewed and approved the project. The court rejected this argument, noting that the architect had recused himself from both the Design Review Commission’s and the Planning Commission’s consideration of the project.  The court also rejected the contention that City staff and the City Attorney exhibited bias in favor of the project, observing that the City Council, not staff members or the City Attorney, was the decision-maker, and nothing showed that the City Council was infected by bias.

An action for breach of a statutory development agreement should be reviewed as a breach-of-contract case, not as an administrative law proceeding in which the court gives deference to the City’s findings. Oakland Bulk & Oversized Terminal, LLC v. City of Oakland, No. 18-16105 (9th Cir., May 26, 2020).

The City of Oakland entered into a statutory development agreement with the plaintiff to redevelop a portion of the decommissioned Oakland Army Base as a commercial shipping terminal. While development agreements generally freeze existing regulations in place, this agreement provided that the city could adopt and apply new regulations if the City determined “based on substantial evidence and after a public hearing that a failure to do so would place existing or future occupants or users . . . neighbors, in a condition substantially dangerous to health or safety.”

Subsequently, in response to public opposition to shipping coal through the terminal, the City Council held public hearings, analyzed evidence presented by experts, and approved an ordinance prohibiting coal shipping. The City Council adopted factual findings in support of its determination that shipment of coal created a substantially dangerous health or safety condition.

The appeal turned on whether the case should be treated as a breach-of-contract action (in which the trial court makes factual findings based on the evidence presented at trial, which are accorded deference on appeal) or as an administrative law proceeding (in which the evidence is limited to the record before the agency and the agency’s factual findings upheld if supported by substantial evidence). The court concluded that administrative law principles should not apply in a breach-of-contract action because, among other things, deferring to the government agency’s findings would “effectively create an escape hatch for the government to walk away from contractual obligations” through “self-serving regulatory findings insulated by judicial deference . . . .”  The court therefore concluded that the trial court owed no deference to the City’s factual determinations and did not err in considering evidence not presented at the public hearings to “shed light on the adequacy of the evidence that was actually before the City Council.” Continue Reading Suit for Breach of Development Agreement Should Be Treated as a Breach-of-Contract Action, Not an Administrative Law Proceeding

The U.S. Court of Appeals for the Fifth Circuit found multiple defects in a Kern County EIR for a proposed ordinance streamlining the permitting process for new oil and gas wells. King and Gardiner Farms, LLC v. County Kern 45 Cal.App.5th 814 (2020).

The published portions of the Court’s 150-page opinion held the EIR: (1) impermissibly deferred formulation and implementation of mitigation measures addressing significant impacts to water supplies, and did not adequately discuss the effectiveness of those measures; (2) failed to properly mitigate farmland conversation impacts due to inappropriate reliance on agricultural conversation easements as offsetting mitigation; and (3) improperly applied a single threshold for determining the significance of the project’s noise impacts.

The Ordinance

Kern County approved an ordinance to streamline the permitting process for new oil and gas wells under which all such activities would require a permit involving, at minimum, a ministerial conformity review. This ministerial permit review process incorporated mitigation measures identified in the project’s EIR and certified by the County, which estimated that 2,697 new producing oil and gas wells would be drilled annually from 2013 through 2040, and 2,221 old wells would be capped and abandoned each year.

Water Supply Impacts

The appellate court concluded that mitigation measures to address water supply impacts — including requiring oil industry users to work together to develop and implement a plan to reduce water use — inappropriately deferred formulation of the measures or delayed their implementation.  The EIR did not commit the County itself to the measures, improperly relying on unidentified third parties who might or might not implement them at some unknown point in the future. Meanwhile, the County could continue to issue permits for oil and gas activities without mitigation in place. Continue Reading EIR Improperly Deferred Formulation and Implementation of Mitigation Measures for New Oil and Gas Drilling

As we previously reported, on April 6, 2020, the California Judicial Council adopted an emergency rule suspending (or “tolling”) the running of statutes of limitations on civil claims during the state of emergency declared by Governor Newsom on March 4, 2020. The emergency rule tolled all civil statutes of limitations from April 6 until 90 days after the Governor declares the state of emergency related to the COVID-19 pandemic to be over.

The Judicial Council has now amended the emergency rule to shorten the tolling period and to set different tolling periods based on the length of the statute of limitations. Under the rule as amended:

  • Statutes of limitations longer than 180 days are tolled from April 6 to October 1, 2020.
  • Statutes of limitations of 180 days are tolled from April 6 to August 3, 2020.

Land Use Claims

The shorter tolling period will apply to statutes of limitations for most claims involving land use decisions (including most claims under the planning and zoning law, CEQA, LAFCO, and the Coastal Act). The amended rule, for example, will effectively add 119 days to the 90-day limitations period for a claim involving planning and zoning decisions (Gov’t Code § 65009(c)), provided the 90-day deadline for that claim had not expired as of April 6, 2020.

The Council’s decision to set specific expiration dates (rather than basing the tolling period on the duration of the COVID-19 emergency) was prompted in part by concerns that the state of emergency potentially could be in effect for years. Suspending deadlines for challenges to governmental approvals for such a period would significantly impair the ability to secure construction financing and have a correspondingly debilitating effect on homebuilding throughout the state. Continue Reading Judicial Council Shortens Tolling Period for Statutes of Limitations

The State of Hawaii Land Use Commission’s reversion of 1,060 acres from a conditional urban land use classification to the prior agricultural use classification was not an unconstitutional taking because the landowner could still reap economic benefits from the property, the reclassification did not substantially affect the overall valuation or any potential sales, and the landowner should have anticipated reversion for failure to satisfy certain conditions. Bridge Aina Le’a, LLC v. State of Hawaii Land Use Commission, 950 F.3d 610 (2020).

In 1989, the Commission approved the then-owner’s request to convert 1,060 acres of largely vacant and barren, rocky lava-flow land from an agricultural to an urban use classification to accommodate development of a mixed residential community. Twenty-two years later, following numerous unfulfilled representations by various landowners concerning development of the land, the Commission ordered the land’s reversion. The Commission specifically found that the owners had failed to comply, and were unlikely to comply, with a condition of the changed classification requiring completion of 385 affordable housing units.

Property owner Bridge Aina Le’a, LLC sued the Commission alleging, among other things, that the reversion constituted an unconstitutional taking. The U.S. Court of Appeals for the Ninth Circuit analyzed the claim under the separate Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) and Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978) takings tests. Continue Reading Reclassification of Land From Urban to Agricultural Did Not Result in Unconstitutional Regulatory Taking