On January 26, 2021, attorneys from Perkins Coie presented the 31st Annual Land Use and Development Law Briefing. Topics included:
A full set of the written materials,
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, after an EIR for a project has been certified, a regional water quality control board, acting as a responsible agency, can impose mitigation on the project through waste discharge requirements issued under the Porter-Cologne Water Quality Control Act, even though those measures were not described in the lead agency’s EIR. The court’s decision raises significant questions about the limits on a responsible agency’s ability to depart from CEQA’s requirements when deciding whether and how to approve a project.
The Santa Clara Valley Water District brought this case to challenge the San Francisco Bay Regional Water Quality Control Board’s WDRs for a flood control project on Upper Berryessa Creek near Milpitas and San Jose. The Army Corps of Engineers was responsible for the design and construction of the flood control project, while the District was the project sponsor. In January 2016, the District certified a final EIR, which found that impacts on water resources would be less-than-significant with mitigation.
Pursuant to section 401 of the Clean Water Act, the Corps applied to the Regional Board for a certification that the project would not violate state water quality laws. Facing political pressure to issue the section 401 certification quickly (because the project was needed to protect a soon-to-open BART station and was at risk of losing federal funding if the certification was delayed), the Regional Board agreed to issue the certification in March 2016. The certification stated that the Regional Board, as a responsible agency under CEQA, found that water quality impacts during construction would be reduced to less-than-significant levels with the mitigation measures described in the final EIR. The Regional Board’s certification also stated that the EIR lacked the detail necessary to assess the long-term water quality impacts relating to the project’s design, operation, and maintenance, and that it would later issue WDRs to compensate for those impacts.
In April 2017, the Regional Board issued a WDR order requiring additional mitigation to compensate for the project’s water quality impacts. The WDR order required enhancing 15,000 linear feet or 15 acres of waters of the state, which could be satisfied by one of the District’s other planned projects. The Regional Board purported to comply with CEQA by making findings in the WDR order that it had considered the District’s EIR and determined that, with the addition of the WDR order’s mitigation requirements, the project’s impacts would be less than significant.
Waste Discharge Requirements
The court rejected the District’s claim that the Regional Board lacked authority to issue WDRs under the Porter-Cologne Act because the project would not cause a discharge of waste. The District argued that substances must be useless, unneeded, or discarded to constitute waste for purposes of the Porter-Cologne Act, and that the project’s sedimentation effects did not meet this test. The court ruled that even if the District’s interpretation of the law were correct, the project would result in a discharge of waste: The project’s widening of the creek bed would slow the flow of water and lead to increased sedimentation in the creek; this additional sediment would not be useful or necessary and would require periodic removal.
Continue Reading Can a Responsible Agency Impose Mitigation Measures Not Considered in the Lead Agency’s EIR?
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
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.
Continue Reading CEQA YEAR IN REVIEW 2020
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
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
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
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
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.
Continue Reading County May Abandon Public Easement Rights to Prevent Unauthorized Use of Road
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