In Sierra Club v. County of Sonoma, (A147340, May 22, 2017) the First District Court of Appeal affirmed that a decision to issue a permit will trigger the duty to comply with CEQA only when the agency has the ability and authority to mitigate the project’s environmental impacts to some degree.

The Agricultural Commissioner of Sonoma County issued an erosion-control permit that allowed the applicants to establish a vineyard on former rangeland under the county’s vineyard and orchard development ordinance. The commissioner reviewed the application and property for conformance with a lengthy list of standards set out in the ordinance and used a form checklist to indicate whether applicable standards were met. The commissioner determined issuance of the permit was ministerial and therefore exempt from CEQA.

CEQA Only Applies When the Agency Has Discretion to Mitigate a Project’s Environmental Impacts to a Meaningful Degree

Environmental groups challenged the commissioner’s determination, alleging the permit approval was discretionary because of the broad and vague substantive standards of the ordinance. Those standards provide guidance on proper grading, drainage improvements, and vineyard and orchard site development. The environmental groups argued the ordinance gave the commissioner broad discretion both to interpret and apply those standards and to require measures to mitigate environmental impacts that might occur.

The trial court upheld the commissioner’s decision and the court of appeal affirmed. The court’s opinion focuses on the functional distinction between discretionary projects which are subject to CEQA, and ministerial activities which are exempt: whether applicable permitting standards give the agency the discretion to deny a permit or impose mitigation measures based on the project’s environmental impacts, or instead require the agency to approve the project if it is found to comply with permitting standards, whether or not it might adversely affect the environment.

The court of appeal first acknowledged that some provisions of the ordinance required that the commissioner exercise discretion when applying them to a proposed project. It explained, however, that the discretion-conferring provisions of the ordinance would only be relevant to the analysis if they actually applied to the project. Here, the court held that only three provisions of the ordinance that could be interpreted as involving a discretionary determination applied to the project. But none of those provisions gave the commissioner the authority to exercise judgment or deliberation in deciding whether to approve the application or to mitigate environmental impacts in a meaningful way.
Continue Reading A Project Is Not Discretionary If the Agency Lacks Authority to Require Mitigation

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

Giving a green light to construction of a new bridge in the historic Balboa Park, a court has reaffirmed a city’s discretion to interpret and apply its own general plan and zoning ordinances notwithstanding conflicts with specific general plan policies protecting historic resources. Save Our Heritage Organization v. City of San Diego et al., No. D063992 (4th Dist., May 28, 2015).

The Balboa Park bridge project includes a new bypass bridge and paid parking garage, allowing the main portion of Balboa Park to return to a vehicle-free zone, but adversely affecting a significant historic resource in the park. Opponents challenged the project, raising several issues regarding consistency with applicable land-use plans.

The San Diego Municipal Code requires that permits for site development “not adversely affect the applicable land use plan.” The opponents argued that because the project conflicted with several policies protecting historic resources in the City’s general plan, the project would necessarily have adverse effects on the plan. Rejecting this interpretation, the Court of Appeal held that projects need not conform to all policies of a land use plan but have to generally be “in agreement or harmony.” The City’s findings acknowledged inconsistencies with several general plan policies, but concluded that the project “would not adversely affect the General Plan and the project as a whole would be consistent with several of the goals and policies of San Diego General Plan.” Noting the great deference accorded a local agency’s determination of consistency with its own general plan, the court concluded that substantial evidence supported the City’s finding that the project would be consistent with a majority of the applicable goals and policies.
Continue Reading Court Defers to San Diego’s Approval of Bridge in Balboa Park