Over a quarter century of CEQA litigation over the validity of an agreement between the Department of Water Resources and State Water Project contractors finally came to an end with the court of appeal’s decision in Central Delta Water Agency v. Department of Water Resources, 69 Cal. App. 5th 170 (2021), and the California Supreme
In Limited Circumstances an EIR’s Alternatives Analysis Can Be Confined to the No Project Alternative
In Save Our Access v Watershed Conservation Authority, 68 Cal. App. 5th 8 (2021), plaintiff Save Our Access challenged the EIR certified by the Watershed Conservation Authority for a project to improve a recreation area within the Angeles National Forest. The project was designed to restore natural resources damaged by heavy recreational use, upgrade…
Agency’s Preparation of Supplemental EIR Rather Than Subsequent EIR for Modifications to Proposed Desalination Plant Was Appropriate
The State Lands Commission was not required to assume the role of lead agency and prepare a subsequent EIR for changes to a desalinization plant for which an EIR had already been certified by the City of Huntington Beach as lead agency. California Coastkeeper Alliance v State Lands Commission, 64 Cal. App. 5th 36…
Do Conservation Easements Provide Effective Mitigation for Loss of Farmland to Development?
In 2018, the CEQA Guideline which defines the term “mitigation” was amended to add “conservation easements” to the list of measures that can provide “compensatory” mitigation for an environmental impact. Guideline §15370(e). The amendment was intended to resolve a debate about whether conservation easements over off-site farmland can provide a means to mitigate not only…
Court Rejects Claim That Clinic Protests Might Cause Significant Environmental Impacts
A court of appeal has ruled that opponents of a new Planned Parenthood clinic did not establish a fair argument that anti-clinic protests might cause significant environmental effects. Therefore, the City of South San Francisco did not err in finding the clinic project exempt from CEQA. Respect Life South San Francisco v. City of South…
CEQA YEAR IN REVIEW 2016
A Summary Of Published Appellate Opinions Under The California Environmental Quality Act
In 2016, the California appellate courts issued published opinions in 21 CEQA cases. In several of those opinions, including a ground-breaking decision by the California Supreme Court, the courts grappled with limits on the scope of required environmental review for a subsequent project…
CEQA YEAR IN REVIEW 2015
A Summary of Published Appellate Opinions Under the California Environmental Quality Act
In 2015, the California appellate courts continued to chart new ground as they grappled with some of CEQA’s most difficult and controversial questions. The Supreme Court of California led the way, issuing four opinions on hotly contested issues. For the first time, the…
CEQA Requires An Analysis Of The Project’s Impacts On The Environment, Not The Environment’s Impacts On The Project; California Supreme Court Sets Clear Limits On CEQA’s Reach
CEQA generally does not require that public agencies analyze the impact existing environmental conditions might have on a project’s future users or residents, according to the California Supreme Court’s decision in California Building Industry Association v Bay Area Air Quality Management District (S213478, December 17, 2015). An agency must analyze how environmental conditions might adversely…
A State Agency’s Duty To Mitigate Significant Environmental Impacts Does Not Depend On A Legislative Appropriation Of Funds For Mitigation
The California State University system may not condition its funding of mitigation for off-site impacts of a campus expansion project on receipt of a legislative appropriation earmarked for that purpose, according to a decision issued yesterday by the California Supreme Court. City of San Diego v Board of Trustees of the California State University, No. S199557 (Cal. Supr. Ct. Aug. 3, 2015). The effect of the decision is that state agencies will have to look to existing appropriations and other available sources to fund off-site mitigation for projects they undertake, and will be precluded from shifting the cost of mitigation to regional and local agencies simply because the Legislature has not appropriated specific funds for mitigation. The court’s opinion does, however, leave a key question unanswered: When can a public agency considering one of its own projects decide that a measure designed to mitigate one of its significant environmental impacts is economically infeasible?
The case involved a challenge to the environmental impact report for a plan to expand the San Diego State University campus. The plan calls for housing for faculty and staff; a hotel and campus conference center; new student housing; expansion and renovation of the student union; and new buildings for academic, research and medical use, along with a supporting parking structure.
The EIR found that the expansion project would worsen congestion on city streets and a nearby freeway. The CSU Board agreed with the city and CalTrans on the University’s fair share of the cost of mitigation – about $15 million — but declined to commit the funding, taking the position that the University is required to pay for off-campus mitigation only if the Legislature appropriates funds specifically for that purpose.
Reasoning that the Legislature might not appropriate funds for mitigation, the Board determined that off-campus traffic mitigation was infeasible and adopted a statement of overriding considerations.
No legal support for University’s determination off-site mitigation is infeasible.
The California Supreme Court unanimously rejected the University’s legal arguments, concluding that:
- The court’s 2006 decision discussing the University’s duties under CEQA to mitigate environmental impacts through fair-share payments (City of Marina v Board of Trustees) did not support the Board’s claim that the University may lawfully contribute funds for off-campus mitigation only through a legislative appropriation earmarked for that purpose.
- Most of the proposed new campus facilities will be financed with non-appropriated funds through revenue bonds, student fees, donations, and joint ventures with private interests. The University’s authority to undertake such projects necessarily includes the authority to budget for mitigation costs.
- The expansion plan EIR calls for a variety of on-site mitigation measures that will be funded through project budgets. There is no reason to conclude that off-site mitigation measures cannot be funded the same way. CEQA does not draw a distinction between on-site impacts and off-site impacts, and instead refers to the environment as the entire area that “will be affected by a proposed project.”
- CEQA expressly subjects the Board‘s decisions concerning campus master plans to its requirements and does not exempt those plans from the duty CEQA imposes to mitigate significant environmental impacts when it is feasible to do so.
Continue Reading A State Agency’s Duty To Mitigate Significant Environmental Impacts Does Not Depend On A Legislative Appropriation Of Funds For Mitigation
California Supreme Court Broadly Construes Municipal Power to Enact Affordable Housing Measures
In a case closely watched by home builders, low-income housing advocates, and cities and counties throughout the state, the California Supreme Court has strongly endorsed inclusionary housing ordinances, ruling that they are legally permissible as long as it can be shown the ordinance is reasonably related to the public welfare. California Building Industry Association v. City of San Jose, No. S212072 (Cal. Sup. Ct., June 15, 2015). The court rejected a claim that a city may only impose inclusionary housing requirements on new residential development projects it if first shows that the need for affordable housing is attributable to new development.
The City’s Inclusionary Housing Ordinance. In order to respond to the lack of sufficient housing affordable to low and moderate income residents, many California cities have adopted “inclusionary housing” programs, which require developers to set aside units in new residential development projects for low and moderate income households. San Jose’s inclusionary housing ordinance, for example, requires that the sale price of at least 15 percent of for-sale units in projects of 20 or more units be affordable to low or moderate income households. The ordinance gives developers the option of meeting their inclusionary housing obligations by constructing affordable units off site, paying an in-lieu fee or dedicating land of an equivalent value, or acquiring and rehabilitating a comparable number of inclusionary units. The ordinance also provides various incentives to encourage developers to meet the ordinance’s affordable unit requirements onsite.
Continue Reading California Supreme Court Broadly Construes Municipal Power to Enact Affordable Housing Measures