Skip to content

CEQA

Subscribe to CEQA

An agency could be equitably estopped from relying on the 35-day statute of limitations applicable to a CEQA Notice of Exemption where the agency had misled the public into expecting the agency would instead circulate a Final EIR for public comment and file a Notice of Determination following project approval. Citizens for a Responsible Caltrans Decision v. California Department of Transportation, 46 Cal. App. 5th 1103 (2020).

Caltrans and the San Diego Association of Governments jointly developed the North Coastal Corridor (NCC) Project, which included multiple highway and railroad improvements along a 27-mile corridor between San Diego and Oceanside. One of the components of the NCC Project was construction of interchange ramps connecting Interstate 5 and State Route 56. Streets and Highways Code Section 103 created a streamlined approval process for the NCC Project, including an exemption of certain project elements from CEQA review.

Caltrans’s Final EIR for the I-5/SR-56 interchange contained conflicting language regarding the CEQA process: while it stated that the project was exempt from CEQA, it also stated that Caltrans would decide whether to approve the project after circulating the Final EIR and would file a Notice of Determination if it approved the project. A few weeks after publishing the Final EIR, and before the start of the public comment period on the Final EIR, Caltrans approved the interchange project and filed a Notice of Exemption with the State Clearinghouse. The Notice of Exemption had a different State Clearinghouse Number than the Final EIR. Caltrans then initiated the 30-day review period on the Final EIR and subsequently responded to the comments that it received on the Final EIR.…
Continue Reading

…

The Second District Court of Appeal held that a project’s potentially significant environmental impacts required preparation of an EIR rather than the mitigated negative declaration adopted by the City. Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al., 46 Cal.App.5th 665 (2020).

The project at issue consisted of 35 residential apartment units plus retail, restaurant, and office space on an 8.2-acre site located in Agoura Hills, California. The City approved a Mitigated Negative Declaration (MND) for the project, finding no substantial evidence of a significant effect on the environment because the project incorporated feasible mitigation measures that would reduce any potential impacts to a less-than-significant level.

  1. Impacts on Cultural Resources

The court of appeal determined the MND’s mitigation measures were insufficient to avoid or reduce potential impacts to prehistoric cultural resources to a less-than-significant level. He proposed mitigation measures, it found, lacked any analysis of whether the archeological resources within the proposed construction site could be avoided. Nor did the measures specify any performance criteria for evaluating the feasibility of avoidance as an alternative to excavation. Further, substantial evidence provided by an expert in Native American archeology and history demonstrated that the project could likely cause significant permanent damage to the site and the proposed data recovery program was inadequate to mitigate that damage.

  1. Impacts on Sensitive Plant Species

The project site contained three special-status plant species that would be significantly impacted by project grading, landscaping, and fuel modification activities. The court found that, even with the proposed mitigation measures, the project could still have a significant impact on these sensitive plant species. It concluded that the mitigation measures improperly deferred formulation of certain mitigation efforts, failed to set forth specific performance criteria to ensure that mitigation would be effective, relied on outdated botanical surveys of the area, and did not provide for any feasible alternatives if proposed salvage and replanting efforts failed.…
Continue Reading

Attorney’s fees could not be recovered in a CEQA action in which plaintiff obtained an initial stay of the project but the applicant later had the project approvals rescinded, citing inability to afford to litigate the case. Canyon Crest Conservancy v. County of Los Angeles, No. B290379 (2nd Dist., March 12, 2020).

Doron Kuhn sought to build a single-family residence on an undeveloped lot in Los Angeles County.  Because the property was located on a steep hillside and construction would require removal of a protected coastal oak tree, Kuhn obtained a minor conditional use permit and an oak tree permit from the county. Plaintiff, Canyon Crest Conservancy, an organization formed by two of Kuhn’s neighbors, challenged the approvals alleging violations of CEQA.

After the trial court issued a stay of the permit approvals to preserve the status quo, Kuhn (who had been self-represented throughout the litigation) asked the County to vacate the permit approvals, stating he could not afford to continue the litigation. The County complied and plaintiff dismissed the case. Plaintiff then filed a motion for attorney fees under the private attorney general doctrine, Code of Civil Procedure section 1021.5. The trial court denied the motion, concluding that plaintiff failed to establish any of the requirements for a right to fees under the statute.

To obtain fees under section 1021.5, the moving party must establish that the action resulted in the enforcement of an important right affecting the public interest and that the action conferred a significant benefit on the public or a large class of persons.…
Continue Reading

Automobile delay (as measured solely by roadway capacity or traffic congestion) cannot constitute a significant environmental impact, even for projects that were approved before the new CEQA guidelines on transportation impacts were certified in December 2018. Citizens for Positive Growth & Preservation v. City of Sacramento, 2019 WL 6888482.

The case involved a challenge to the City of Sacramento’s 2035 General Plan, which it adopted in March 2015. The plaintiff alleged that the city violated CEQA and the Planning and Zoning Law.

CEQA: Transportation Impacts

Analyzing Transportation Impacts Under CEQA. Public Resources Code section 21099 (commonly known as SB 743) directed the Office of Planning and Research to develop guidelines for assessing transportation impacts based on vehicle miles traveled (VMT). SB 743 provides that upon certification of implementing guidelines by the Natural Resources Agency, “automobile delay, as described solely by level of service [LOS] or similar measures of vehicular capacity or traffic congestion shall not be considered a significant impact on the environment . . . except in locations specifically identified in the guidelines, if any.”

Section 15064.3 of the CEQA Guidelines, adopted in 2018 to implement SB 743, provides that, except for roadway capacity projects, “a project’s effect on automobile delay shall not constitute a significant environmental impact.” Further, the SB 743 guidelines specify that generally, VMT is “the most appropriate measure of transportation impacts.” The guidelines apply prospectively, and apply statewide beginning July 1, 2020, unless an agency elects to be governed by them sooner. (For a detailed analysis, see our report on the SB 743 Guidelines.)…
Continue Reading

An EIR that did not squarely respond to detailed comments recommending additional mitigation measures has been held not to comply with CEQA. Covington v. Great Basin Unified Air Pollution Control District, 3d Dist. Court of Appeal Case No. C080342 (certified for publication 12/23/2019). The court of appeal emphasized that where an EIR identifies certain…