OPR Issues Discussion Draft of Proposed Changes to Appendix G of the CEQA Guidelines to Incorporate Tribal Cultural Resources

The Governor’s Office of Planning and Research (OPR) has announced the availability of a discussion draft of proposed changes to Appendix G of the CEQA Guidelines incorporating tribal cultural resources, pursuant to Assembly Bill 52. (For more on AB 52, see our web report here). The discussion draft, available here, provides background on AB 52 and Appendix G, an explanation of the three alternatives put forth as draft questions about tribal cultural resources for inclusion in the initial study form, and information about effective public comment.

  • AB 52: AB 52 went into effect in July 2015 and establishes tribal cultural resources as a new category of resources under CEQA. AB 52 also creates a process for consultation with California Native American Tribes in the CEQA process. Under the new law, tribal governments may request consultation with a lead agency and give input into potential impacts to tribal cultural resources. The Public Resources Code now requires avoiding damage to tribal cultural resources or mitigating impacts to the extent feasible. Additional information about AB 52 is available in OPR’s Draft Technical Advisory issued in May 2015.
  • Appendix G: Appendix G in the CEQA Guidelines contains a sample initial study form, the purpose of which is to assist lead agencies in determining whether a project may cause a significant impact on the environment. Appendix G asks a series of questions regarding a range of environmental resources and potential impacts. As a result of AB 52, the sample environmental checklist form must be revised to include questions about tribal cultural resources.
  • Three Alternatives: The discussion draft presents three alternative sets of draft Appendix G questions regarding tribal cultural resources. OPR drafted the alternatives following intensive outreach to California Native American Tribes, local governments, CEQA practitioners, and others. OPR now seeks further public input on the three alternatives, which vary as to the amount of detail:
    • Alternative 1 is minimal and merely cites to the definition of tribal cultural resources in the Public Resources Code.
    • Alternative 2 paraphrases the definition of tribal cultural resources, rather than simply providing a citation to the Public Resources Code.
    • Alternative 3 is the most detailed. It creates a new section of Appendix G, titled Tribal Cultural Resources, and it includes introductory language for context, similar to the agricultural resources and air quality sections of Appendix G.

Comments on the discussion draft are due on December 18, 2015, and OPR will host a public workshop in Sacramento on December 11, 2015.

Historical Level Of Use May Serve As CEQA Baseline For Replacement Of Vacant Building

The California Court of Appeal’s Fourth Appellate District’s recent decision, North County Advocates v. City of Carlsbad is a potentially major decision on the issue of using historical levels of operations as the baseline for gauging the environmental impacts of a proposed project under CEQA. In this case, which concerned renovation of a large Westfield shopping center in Carlsbad, the court upheld the city’s use of a traffic baseline that assumed an existing department store building was fully occupied, even though the store had been vacant for almost six years at the time the draft EIR was released. North County Advocates v. City of Carlsbad, Fourth Dist., First Div., Oct 9. 2015.


The shopping center Westfield sought to renovate was built in 1969, with five anchor department store buildings and numerous smaller retail shops, including a now-vacant Robinsons-May department store. Under the terms of an existing precise plan for the shopping center, Westfield was entitled to renovate the interior of the former Robinsons-May store and fully occupy it without obtaining discretionary approvals from the city. The development plan the city approved for renovation of the center, however, included the demolition and reconstruction of the former Robinsons-May store.o

City’s Analysis

In its analysis of traffic impacts, the city’s EIR, completed in 2012, assumed full-occupancy of the former Robinsons-May store, which had been vacant since 2006, three years before the city began work on the EIR. The EIR and supporting documents explained this baseline was appropriate because the “nature of a shopping center is that tenants change and the amount of occupied space constantly fluctuates” and that portions of the space are periodically occupied with temporary uses. The EIR also noted that the new building would not increase the square footage allowed under the precise plan and that the vacant space could be reoccupied at any time without further discretionary action. It also pointed out that the full occupancy assumption comports with SANDAG’s regional traffic modeling methodology, which assumes full occupancy of all entitled square footage. Continue Reading

Losing Plaintiff Cannot Recover Legal Fees

Commenting that “we have not found a threat of victory in this record,” the court of appeal ruled against a citizens’ group that brought a motion for attorneys’ fees after losing a CEQA challenge in the trial court. Coalition for a Sustainable Future in Yucaipa v. City of Yucaipa, 238 Cal. App. 4th 513 (2015).

In 2005, Target entered into a contract to purchase land for a shopping center. The City Council approved the shopping center project in October 2007 based on an EIR. Later that same month, Target sued to force the property owner to complete the land sale. Plaintiff, a citizens’ group, then filed this action challenging the project entitlements under CEQA. Target defended the action on the City’s behalf pursuant to an indemnity requirement in its conditions of approval. The trial court ruled against the plaintiff. While plaintiff’s appeal was pending, Target abandoned the project and withdrew its defense of the City. The City then revoked the shopping center entitlements, rendering the appeal moot.DSCN6760-Piotr-Andzel

Plaintiff sought attorneys’ fees, claiming that its CEQA lawsuit, and specifically its appeal from the trial court’s judgment, was the “catalyst” that motivated the City to revoke the entitlements. The appellate court had no difficulty concluding otherwise. Citing City Council hearing minutes indicating that the entitlements were revoked because Target had breached the indemnity condition of approval, the court determined that the City “did not revoke the entitlements for any reason related to the EIR or any violation of CEQA.” Consistent with prior decisions and common sense, the court held that the “fact that [plaintiff] filed an appeal from the adverse judgment did not convert the action into a meritorious one under the catalyst theory.”

Court of Appeals Issues Nationwide Stay of New Clean Water Act Rules

A federal court of appeals has blocked implementation of new Clean Water Act rules adopted by the EPA and Army Corps of Engineers. U.S. Environmental Protection Agency v. Ohio et. al., No. 15-3751 (6th Cir. Oct. 9, 2015).  In issuing the stay pending full consideration of the case, the court concluded there was a substantial possibility that the challenge to the new rule would succeed on the merits. The court found the new rule’s definitions of “tributaries,” “adjacent” waters and “significant nexus” to navigable waters to be inconsistent with the U.S. Supreme Court’s decision in Rapanos v. United States, 547 U.S. 715 (2006).  The court also observed that the rule-making process leading to adoption of the new rules likely was not conducted in accordance with the Administrative Procedure Act, 5 U.S.C. § 551 et. seq. The court concluded that “the sheer breadth of the ripple effects caused by the [r]ules’ definitional changes counsels strongly in favor of maintaining the status quo for the time being.”

As we previously reported (see Federal Court Blocks Enforcement of New Clean Water Act Rules), a federal district court in North Dakota granted a preliminary injunction on August 27, 2015—the day before the new rules were to take effect—barring implementation of the rules in 13 states.  The stay issued by the Court of Appeals applies nationwide.  Pending the court’s decision on the merits of the new rules, the preexisting definition of “waters of the United States” will govern.  Read our full Update on the decision. For an analysis of the details and potential impact of the new Clean Water Act rules, see our June 1, 2015 Update: Controversial Clean Water Act Rule Published.


Condemnation Does Not Result in Subdivision of Remaining Property under Map Act

A recent Court of Appeal decision, Save Mt. Diablo v. Contra Costa County, No. A142357 (First Dist., October 7, 2015), provides guidance concerning the concept of a “division” of land under Subdivision Map Act, clarifying that condemnation of portions of a parcel do not result in subdivision of the remaining private areas.


The Map Act requires a property owner to obtain approval of either a parcel map or a final map in order for property to be sold, leased, or used as collateral for financing. The principal purposes of the Map Act are to ensure the orderly development of land, control the design of improvements, guarantee the completion of public facilities, and protect the public from fraud.

In Save Mount Diablo, the Nunns purchased a tract of agricultural property recorded as a single parcel. The Contra Costa Water District (“CCWD”) had previously condemned two intersecting strips of land across the tract, one for a roadway and the other for a pipeline. The two strips effectively divided the Nunn’s property into four separate parcels.Mt. Diablo

The Nunns initially pursued approval of a parcel map to legally convert the property into four parcels with one remainder parcel. Save Mount Diablo objected to the application, citing potential environmental impacts from resulting development. The Nunns then abandoned the application, instead requesting certificates of compliance for each of the four parcels separated by the CCWD strips. Under section 66499.35 of the Map Act, a certificate of compliance may be issued upon a determination that property was previously divided consistent with the Map Act and local law. These certificates, if issued, would have allowed the Nunns to sell, lease, or finance the four parcels without obtaining approval of a parcel map.

The Nunns argued that the CCWD condemnation of the strips created a lawful “division” of the property into four discrete parcels and that the Nunns were entitled to certificates of compliance to recognize the prior division. The Contra Costa County Board of Supervisors ultimately agreed and ordered the issuance of the certificates. Save Mount Diablo sued to set aside this decision.

Court of Appeal Analysis

The appellate court first considered whether the Nunns were entitled to certificates of compliance based on a prior “de facto” legal division. While acknowledging that the condemnation created separate fee estates in the various portions of the property, the court determined that condemnation did not divide the property for purposes of the Map Act. It stated that “regardless of whether a piece of property can be characterized as a parcel, it is entitled to a certificate of compliance only if it was the result of a prior division recognized by the Act.” The court reasoned that the mere fact that parts of a property do not touch does not mean that a division has been achieved, and noted that, under the Map Act’s definition of “subdivision,” property may be considered a contiguous unit even if it is separated by roads, streets, utility easements, or railroad rights-of-way. Continue Reading

Risks to Open Space Designated in General Plan’s Open Space Element a Valid Ground for Denying Application to Subdivide a Mobilehome Park

A city may deny a proposed mobilehome park subdivision that is inconsistent with the open space element of its general plan, according to the recent court of appeal decision in Carson Harbor Village, Ltd. v. City of Carson, No. B25011 ( Second Dist. August 21, 2015.)

Carson Harbor Village applied to the City of Carson to convert its mobilehome park to a subdivision of resident-owned lots. The park consists of 420 rental spaces on 70 acres, 17 of which are federally and state regulated wetlands, and the only open space within the city.

Carson City

Carson City

The city rejected the park’s application, finding, among other things, that the proposed subdivision was inconsistent with the open space element of its general plan. Carson Harbor filed suit, and the trial court overturned the city’s decision. The court ruled that inconsistency with the city’s general plan was not a valid ground to deny the application under the state statute which governs mobilehome park conversions, Government Code section 66427.5. The court also found that, in any event, there was no evidence of a conflict.

The court of appeal reversed, holding that inconsistency with the city’s general plan was a legally permissible basis for denying the application, and that the city’s finding of inconsistency was supported by sufficient evidence.

In finding that the mobilehome park conversion statute does not prevent local agencies from considering consistency with the general plan when acting on a conversion application, the court of appeal applied the reasoning of a recent California Supreme Court decision in which the court considered whether a proposal to subdivide a mobilehome park in the coastal zone was subject to the Coastal Act and the Mello Act. Looking to the important policy considerations embodied in the Coastal Act and the Mello Act, the supreme court found that those policies favored an interpretation of the conversion statute that did not strip away Coastal Act and Mello Act jurisdiction over land use within the coastal zone. Continue Reading

$9 Billion School Bond Measure Headed for November 2016 Ballot

Almost a decade has passed since California last authorized a statewide school bond to build new schools and modernize existing schools. There is currently a backlog of over $2 billion in K-12 projects awaiting state funding and an equivalent backlog in funding for high-priority community college projects.

Yesterday, the California Secretary of State announced that a school bond initiative measure sponsored by Californians for Quality Schools – a coalition of building industry and school district organizations — had received sufficient signatures to qualify for the November 2016 ballot. If passed, the measure would authorize $9 billion in bond funding to build new schools, upgrade existing facilities and invest in community colleges and job training programs.

Under the measure, $3 billion would be allocated for new K-12 construction; $3 billion for K-12 modernization; $2 billion for community colleges (to be administered by the California Community Colleges Chancellor’s Office); $500 million for charter schools; and $500 million for career technical education;

The full text of the initiative can be found here.VOTE copy

Past statewide school bond measures have a strong track record of success, with 14 out of 15 ballot initiatives passing since 1982. Recent polling sponsored by Californians for Quality Schools has indicated that 63% of likely voters would support the measure.

Building Industry Seeks U.S. Supreme Court Review of San Jose Affordable Housing Case

The California Building Industry Association has filed a petition for certiorari in the United States Supreme Court seeking review of the California Supreme Court’s recent decision in California Building Industry Association v. City of San Jose, 61 Cal. 4th 435 (2015). In that decision, the California high court upheld San Jose’s affordable housing ordinance, rejecting the building industry’s argument that requirements imposed on new development to provide affordable housing bore no reasonable relationship to the impact of the development. (Our report on the California Supreme Court decision is available here).

San Jose’s affordable housing ordinance requires developers to set aside 15% of project units for low-income buyers or, alternatively, to pay an in-lieu fee (estimated to exceed $120,000 per unit) or substitute equivalent property. The California Supreme Court ruled it was irrelevant whether the affordable housing requirements were reasonably related to the impact of new development because the requirements did not constitute an “exaction” of property. Accordingly, it held, the constitutional limitations on a public agency’s ability to exact property for public use as a condition of development were inapplicable. Instead, the court found, the ordinance operated like zoning and other land use measures that restrict the use developers may make of their property by regulating matters such as permitted uses, unit size, maximum heights, and development density.

In its petition for certiorari, CBIA contends that the California court’s holding conflicts with the U.S. Supreme Court’s Nollan/Dolan line of cases and, if left in place, will effectively allow the government to circumvent the nexus and proportionality analysis set out in those cases whenever the permit condition is required by legislation. If the Supreme Court accepts the case, it will likely issue a decision by June of 2016.US 2

Ninth Circuit Blocks EPA Approval of Controversial Pesticide

A federal appellate court has invalidated the U.S. EPA’s approval of a new pesticide, sulfoxaflor, concluding that the agency’s decision was based on “flawed and limited data” and was unsupported by substantial evidence. Pollinator Stewardship Council v. United States Environmental Protection Agency, No. 13-722346 (9th Cir., Sept. 10, 2015). Sulfoxaflor is part of a subclass of neonicotinoids, systemic pesticides that are absorbed and distributed throughout the plant’s vascular system into tissues, pollen and nectar. Some studies have linked use of neonicotinoids to Colony Collapse Disorder and associated rapid declines in honey bee populations from long-term exposure to pollen and nectar containing the pesticide. The EPA determined that sulfoxaflor was “very highly toxic” to honey bees and that studies submitted by the applicant regarding its impact on bees were incomplete, but nonetheless approved the product for use at lower concentrations with specified mitigation measures. In setting aside the approval, the court said that “given the precariousness of bee populations, leaving the EPA’s registration of sulfoxaflor in place risks more potential environmental harm than vacating it.” The court’s decision precludes use of the insecticide pending new studies to determine its long-term impacts on bees. Read our full Update on the case here.B33 copy

California Supreme Court Sets Oral Argument in Key CEQA Case

The California Supreme Court has announced that the oral argument in California Building Industry Association v. Bay Area Air Quality Management District will take place on October 7, 2015, in San Francisco.  The CBIA case squarely presents an issue of critical importance under CEQA: is environmental impact analysis under CEQA limited to the effects of a project on the environment or must it also include analysis of the effects of the environment on the project and its occupants? The case involves a challenge to thresholds of significance adopted by BAAQMD to assess air quality impacts of proposed projects.  Bay Area Air Quality Management DistrictOne of the grounds for the challenge to these thresholds was that the Air District had improperly encouraged public agencies to evaluate the impact of existing air quality on future residents of proposed projects, which constituted “CEQA in reverse” and conflicted with several appellate decisions.  The Court of Appeal declined to address this argument, but hinted that there were reasons to question the “continued vitality” of cases holding that such “reverse CEQA” analysis was not required.  The specific issue the Supreme Court identified for consideration and decision is:  Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?  The high court’s decision in the case should be issued within 90 days of the oral argument.  Our discussion of the background and implications of the case is available here.