In Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board, No. A157127, 2020 WL 7706795 (Cal. Ct. App. Dec. 29, 2020), the court ruled that CEQA does not constrain an agency’s authority to enforce the laws it administers, including those authorizing imposition of mitigation requirements. The court held that,
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
CEQA YEAR IN REVIEW 2020
A Summary of Published Appellate Opinions Involving the California Environmental Quality Act
Despite relatively few published opinions this year, there were significant appellate court rulings on a range of topics, including whether projects are properly classified as discretionary or ministerial, the adequacy of mitigation, agencies’ document retention obligations, the remedy for an inadequate EIR, mootness, and statutes of limitations.
The one California Supreme Court CEQA decision addressed the distinction between discretionary projects and exempt ministerial projects. In Protecting Our Water and Environmental Resources v. County of Stanislaus, the court held that the agency’s issuance of well permits was discretionary in certain circumstances because the permit approval process required the agency to exercise independent judgment and allowed it to modify a project in response to environmental concerns.
A key theme in several cases, involving both EIRs and negative declarations, was courts’ critical look at the adequacy of mitigation measures. In three cases, the court held that agencies had improperly deferred formulation of mitigation. In one case, the court held that a greenhouse gas mitigation measure allowing for carbon offsets was inadequate because it lacked assurances that the offsets would be effective mitigation and it did not specify objective standards for implementation. In another case, the court held that a mitigation measure requiring oil and gas drillers to develop and implement a plan to reduce their water use improperly deferred formulation and implementation of mitigation and lacked enforceability. The court also ruled that agricultural conservation easements are not adequate mitigation for the loss of farmland because they do not offset that loss or create new farmland. In a third case, the court held inadequate a mitigation measure that required construction monitoring and development of a data recovery excavation program if avoidance of archaeological sites was not possible; the agency had not analyzed whether archaeological sites could be avoided and the mitigation measure did not specify performance criteria for evaluating the feasibility of avoidance.
In a significant decision on administrative records, a court held that a lead agency must save all emails about a project, notwithstanding any contrary records retention policy. The court further held that a lead agency could be compelled to produce potential administrative record documents through discovery.
One court applied the mootness doctrine to dismiss a case where construction of the project was completed during litigation. In that case, the developer did not begin construction in violation of any court orders or in bad faith, and the petitioners waited to seek an injunction until construction was nearly completed.
In a decision that conflicts with holdings from other appellate districts, the Fifth District held that partial decertification of an EIR is never permissible when the EIR has been adjudged inadequate; rather, decertification of the entire EIR is the only remedy. The court also held that even under the rule followed by other courts, partial decertification was not appropriate because the EIR’s defects could not be severed from the statement of overriding considerations that supported the agency’s approval of the project.
The following summaries are intended to identify the key issues in the cases decided in 2020. Each summary is linked to a more detailed post on this site describing the court’s opinion.
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Fifth District Holds Defects in EIR’s Air Quality Impact Analysis Require Decertification of Entire EIR
On remand from the California Supreme Court’s decision in Sierra Club v. County of Fresno, 6 Cal.5th 502 (2018) (“Friant Ranch I”), a court of appeal has held that CEQA requires full decertification – not partial decertification – of an EIR that has been adjudged inadequate in any respect. In addition, the
Greenhouse Gas Mitigation Measure Allowing Purchase of Offset Credits Fails to Comply With CEQA
While a number of court decisions have considered how CEQA lead agencies should assess the significance of a project’s greenhouse gas emissions, few have examined mitigation measures for those impacts. In Golden Door Properties, LLC v. County of San Diego, 50 Cal. App. 5th 467 (2020), the Fourth District Court of Appeal issued the
Completion of Construction Rendered CEQA Challenge Moot
The Third District Court of Appeal held that CEQA and permitting challenges to an expansion project were moot because defendants had completed construction and did not build the project in violation of any court orders or in bad faith. Parkford Owners for a Better Community v. County of Placer, 54 Cal.App.5th 714 (2020).
This
County’s Blanket Classification of All Well Permits As Ministerial Under CEQA Was Improper
Where a county ordinance allowed for exercise of discretion in some circumstances regarding issuance of well construction permits, such permits could not categorically be classified as ministerial and hence exempt from CEQA review. Protecting Our Water and Environmental Resources v County of Stanislaus, 10 Cal.5th 470 (2020).
Stanislaus County adopted an ordinance which categorically
County May Abandon Public Easement Rights to Prevent Unauthorized Use of Road
The Third Appellate District determined that Placer County met relevant statutory requirements when it partially abandoned public easement rights in a road originally intended to be used only for emergency access and public transit vehicles that residents of the area had been using as an unauthorized short cut between two neighboring residential subdivisions. Martis Camp Community Association v County of Placer, No. C087759 (Third. Dist., Aug 1, 2020).
Background.
The road at the center of the dispute connects Martis Camp, a private gated community adjacent to the Northstar ski resort development, and the Retreat at Northstar, a residential development next to Martis Camp located within the Northstar resort itself.
In 2003, Placer County adopted the Martis Valley Community Plan, which provided that a road connecting Martis Camp and the Retreat would be restricted to public transit and emergency access only. The EIRs for the Martis Camp and Retreat developments, approved two years later, also envisioned that the road would be restricted to these uses. Despite these restrictions, several years after the road was constructed, Martis Camp residents began using it as a short cut through the Retreat community to Northstar village.
By 2014, from 100 to 250 private vehicles were using the road on a daily basis, and it was estimated that once Martis Camp was built out, traffic could triple. After various efforts to stop the unauthorized use of the road failed, Retreat property owners requested that the County abandon public road easement rights in the road. Following a series of public hearings, the Board of Supervisors approved a partial abandonment, thereby restricting use of the road to Retreat property owners and emergency and public transit vehicles only, consistent with the uses described and analyzed in the Community Plan and the EIRs for the two developments.
The Martis Camp homeowners’ association and some individual property owners (the “Martis Camp homeowners”) filed suit to challenge the County’s action, claiming it violated the statutory requirements for abandonment of a public road; that it impaired their abutter’s rights to access the road giving rise to an inverse condemnation claim; and that the Board had violated both the Brown Act and CEQA when it approved the abandonment. The trial court ruled for the County on each of these claims and the Martis Camp homeowners appealed.
The Court of Appeal’s Decision
Abandonment of a Public Road. The court of appeal rejected the Martis Camp homeowners’ claim that the County’s decision violated the statutory requirements for the abandonment of a public road, explaining that under the Streets and Highways Code, a county is authorized to vacate all or part of a street, highway, or public service easement where it makes two findings — first, that the road is unnecessary for present or prospective public use, and second, that the abandonment is in the public interest.
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Agencies Must Preserve Emails For CEQA Record of Proceedings
An agency’s duty to preserve documents for inclusion in the record of proceedings under CEQA prevails over a local agency’s document retention and destruction policies. Golden Door Properties v. Superior Court (County of San Diego), 52 Cal.App.5th 837 (2020)
In their action challenging an EIR certification, petitioners moved to compel San Diego County to
Public Universities Must Comply With CEQA When Deciding to Increase Enrollment Beyond Levels Specified in Development Plan EIR
In Save Berkeley’s Neighborhoods v. Regents of the University of California, 51 Cal.App.5th 226 (2020), the court of appeal rejected the University of California’s argument that it need not have prepared a Subsequent or 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 petitioners alleged that the LRDP EIR stated enrollment would increase by 1,650 students over the life of the plan. They also claimed that, beginning in 2007, the University made periodic decisions to increase 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 show a legal violation of CEQA, even if the allegations were true.
The court of appeal first recognized the general rule that CEQA comes into play whenever a public agency makes a discretionary decision to change a project in a way 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 a public university to modify an approved development plan by increasing enrollment beyond the levels specified in the project description is a change that is subject to CEQA.
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