The Second District Court of Appeal held that: (1) despite revisions to a mixed-use development project, the project description in the EIR was “accurate, stable, and finite;” (2) an opportunity for public comment on the finally approved project was not required under CEQA; and (3) because the revised project was not significantly different from alternatives considered, recirculation of the EIR was not required. Southwest Regional Council of Carpenters v. City of Los Angeles (The Icon at Panorama, LLC), 76 Cal. App. 5th 1154 (2022).

The Icon at Panorama, LLC (“Icon”) proposed a mixed-use commercial and residential development in Los Angeles. The City circulated two draft EIRs for public review and comment and eventually issued its final EIR for the project in February 2018. In March 2018, City staff recommended approval of a new alternative project (“Revised Project”) not set out in the draft or final EIRs. This Revised Project was a smaller version of an alternative previously provided (“Alternative 5”). Compared to Alternative 5, the Revised Project contained fewer residences, but the same amount of commercial area. Petitioners challenged the project approval, contending that: (1) the project description in the EIR was inadequate; (2) the EIR should have been recirculated after being substantially revised; and (3) the revised project description violated CEQA.

The court explained that, per case law and CEQA Guidelines, the EIR must include enough detail to allow others to “understand and to consider meaningfully the issues raised by the proposed project.” Here, because the project remained a mixed-use commercial/residential project on a defined project site from proposal to approval, the size and site of the project remained the same, and the only changes involved the “residential to commercial footprint,” the City did not violate CEQA’s requirement of an “accurate, stable, and finite” project description.

The court acknowledged that the approved project was not included in any EIR circulated and thus, no opportunity for public comment was given, but the court found that CEQA does not appear to require an opportunity for public comment on the final approved project. Recirculation of a revised draft EIR that contains the final approved project and an opportunity for public comment is not required by CEQA either. The court declined to require a further opportunity for the public to comment on the actual project before approval. The court found the City fully compliant with CEQA’s information requirements as the City provided ninety-two days for public comment on the draft EIR, and the public was given five months and multiple public hearings to comment on the Revised Project. Further, the court found no record of any “prohibited impediment to informed decision-making.”

With respect to recirculation, CEQA requires that a new public comment period be provided if the lead agency adds “significant new information” to the EIR after the public comment period ends but before the final EIR is certified. The court explained that because CEQA requires circulation of the draft EIR, public comment, and response to such comments before the final EIR is certified, the final EIR will almost always contain information not included in the draft EIR. As such, the addition of new information alone does not mean recirculation is required. Here, the court found that the Revised Project was not “considerably different from other alternatives previously analyzed” in the draft EIR and thus recirculation was not required.

Forest Service livestock grazing permits do not run afoul of state water quality permitting requirements because the Management Agency Agreement (MAA) between the agency and the State Water Resources Control Board, which governs non-point source pollution control measures for the area, controls and expressly waives such requirements. Central Sierra Environmental Resource Center v. Stanislaus National Forest, 30 F.4th 929 (9th Cir. 2022).

As part of its authority to manage federal lands, the U.S. Forest Service may issue permits for livestock grazing. The Forest Service issued three such permits in Stanislaus National Forest subject to an MAA with the State Board to limit pollution from livestock grazing activities. In 2017, after years of water quality testing, plaintiffs filed suit alleging fecal matter runoff from the three grazing allotments polluted local streams in excess of allowable thresholds. Specifically, plaintiffs alleged the Forest Service violated the Porter-Cologne Water Quality Control Act—the principal law governing water quality in California, which applies to federal lands via Section 313 of the Clean Water Act—by authorizing discharges: (1) without proper permits or waivers and (2) in excess of water quality objectives set forth in the regional water quality board’s basin plan.

First, on the issue of proper permits or waivers, the court held that compliance with an operative MAA supersedes standard Porter-Cologne permitting requirements. MAAs are a recognized tool under which the State Board designates another agency to take the lead on pollution control, with the goal of more efficiently regulating pollution from non-point sources. In 1981, the Forest Service and the State Water Board entered into an MAA for the area in question that expressly waived state law requirements for permits or waivers so long as the Forest Service complied with agreed-upon best management practices. Because the MAA remained operative, it controlled. If the State Board became dissatisfied with the terms of the MAA, it was required affirmatively to exercise its authority to abandon or amend the agreement. Until then, the terms applied, and the Forest Service remained in compliance.

Second, levels of pollution in excess of local water quality objectives—without a specific regulatory violation—do not run afoul of Porter-Cologne. Although levels of fecal matter exceeded established water quality objectives set forth in the regional water board’s basin plan, the court held that these objectives “do not directly apply, of their own force, to individual dischargers.” Instead, the objectives reflect general standards that regulators must take into account in establishing requirements that do apply to individual dischargers (such as permits, waivers or basin plan prohibitions), but they cannot be enforced in isolation. Once the regional water board translates the water quality objectives into specific prohibitions, they may be enforced. Because the Forest Service was not in violation of the MAA or any specific prohibition, it remained in compliance with Porter-Cologne.

The court held that the County of Marin did not abdicate its duties under CEQA when it approved a specific project pursuant to a stipulated judgment. Tiburon Open Space Committee v. County of Marin, 78 Cal. App. 5th 700 (2022).

The dispute in this case surrounded the potential development of a 110-acre parcel on an undeveloped hilltop in Tiburon owned by The Martha Company (Martha). Beginning in 1975, Martha faced opposition to their development plans. This opposition resulted in two stipulated federal court judgments, the latest in 2007, with the most significant result being that the County of Marin agreed to approve Martha for the development of a minimum of 43 residential units on the disputed parcel. In 2017 the County certified the EIR for the conditional approval of Martha’s 43-unit development.

The court found no merit in these claims. First, the court found that the County did not abdicate its CEQA duties when agreeing to the stipulated judgments because 1) the stipulated judgment did not excuse the County from complying with CEQA and 2) land use laws – including CEQA – are police powers that cannot be contracted away. EIRs were implicitly or explicitly required in the 1976 and 2007 stipulated judgments and bypassing the CEQA process was not an element of the judgments.

In response to the conditional project approval, the Town of Tiburon and residents of the Town brought suit claiming that by agreeing to comply with the 2007 stipulated judgment, the County had effectively consented to not apply the California Environmental Quality Act or other state laws to prevent the Martha development. Furthermore, the Town and the private plaintiffs contend that the County ignored CEQA when it approved the project despite the environmental impacts shown in the EIR and that it was an abuse of discretion to approve the 43-unit project as opposed to a smaller, less environmentally impactful option.

Second, the court found that the County did not, in fact, use the stipulated judgment to bypass the CEQA process. The EIR prepared for project approval was over 800 pages and went through three drafts with extensive revisions. The administrative process for the project included planning commission meetings, public input, public hearings, and consultation with outside agencies (such as the fire department), all before the Board of Supervisors made its required findings and confirmed that it had used independent judgment in approving the project.

The court found that had the Board felt free to ignore CEQA as a result of the stipulated judgment, it would not have gone through such a “protracted charade”. The court also found that the County’s acknowledgement in the stipulated judgment that “any development alternative, or any proposed mitigation measure, which does not accord Martha all rights to which it is entitled under the 1976 Judgment is legally infeasible” did not change the essence of the County’s CEQA responsibilities. Under CEQA, agencies must avoid or mitigate significant environmental impacts in project approvals to the extent feasible, but any mitigation measure that is at odds with a legal obligation is legally infeasible. Relying on caselaw affirming that a state statute can render less dense project alternatives legally infeasible, the court found that “no reason in law or logic prevents a final federal court judgment from having the same impact.”

The Court of Appeal held that a writ petition asserting potential CEQA violations concerning the Campus Town project, a significant development project in Monterey County, was untimely because it was filed after the fixed end date of the COVID 19-related Emergency Rule 9(b) tolling period established by the Judicial Council. Committee for Sound Water v. City of Seaside, No. H049031 (6th Dist., May 9, 2022).

Plaintiff sought a writ of mandate challenging the city’s approval of the Campus Town project and the determination by the Fort Ord Reuse Authority (FORA) that the project was consistent with the Fort Ord Reuse Plan. Plaintiff also alleged that its constitutional right to due process had been compromised by an amendment to Emergency Rule 9(b), which substituted a fixed end date for the originally undefined tolling period. Furthermore, plaintiff argued that FORA failed to provide notice of FORA’s Campus Town Hearing meeting, also denying their right to due process. 

As originally adopted on April 6, 2020, the Judicial Council’s Emergency rule 9 tolled all statutes of limitation for civil causes of action until 90 days after the Governor lifted the state of emergency related to the COVID-19 pandemic. The Judicial Council subsequently received comments regarding the adverse impact of Emergency rule 9 on CEQA actions, which have particularly short deadlines, generally 30 or 35 days.  Thereafter, the Judicial Council amended Emergency rule 9 to set a fixed end date of August 6, 2020, for all claims subject to statutes of limitations of 180 days or less. Plaintiff filed its action on September 1, 2020.

Plaintiff claimed that the writ petition was filed on time as the amendment to Emergency rule 9 unconstitutionally “truncated” their filing deadline. The court, however, was not convinced that the so-called “truncation” of the statute of limitations unduly reduced the filing period, as CEQA statutes of limitations are extremely short, and the amended rule still provided plaintiff an extension of over two months to timely file its writ petition. 

The court also concluded that plaintiff’s due process claim based on the alleged failure of FORA to provide notice of its Campus Town consistency hearing was moot because FORA had since been dissolved and the statutory requirement that FORA determine consistency with the Fort Order Reuse Plan had been repealed.

Finally, the court determined that the trial court did not err in denying leave to amend as plaintiff had not met its burden to show that any amendment to the writ petition could provide relief vis-a-vis the constitutional due process claims.

The EIR for a bottling plant in Siskiyou County withstood challenges to the project description and impacts analysis, but the EIR’s stated project objectives were unreasonably narrow and the County should have recirculated the EIR in light of significant new information about project emissions. We Advocate Through Environmental Review v. County of Siskiyou, No. C090840 (3rd Dist., May 12, 2022).

Siskiyou County granted permits to Crystal Geyser Water Company to reopen a bottling plant that had ceased operations under prior ownership. Plaintiffs sued, alleging that the County’s environmental review for the bottling facility was inadequate under CEQA.

The plaintiffs claimed that the County provided a misleading description of the project. The appellate court disagreed, finding that the County properly considered the project as a whole, disclosed its limited approval authority, offered groundwater extraction estimates based on substantial evidence, and evaluated the maximum pumping that would be allowed.

The court rejected plaintiffs’ challenges to the County’s evaluation of environmental impacts to aesthetics, air quality, climate, mitigation measures and enforcement, noise, and hydrology, dismissing many claims as unsubstantiated or undeveloped. The court agreed, however, that the County should have recirculated the EIR based on the addition of significant new information about project greenhouse gas emissions, even though the EIR’s ultimate conclusions remained unchanged.

The court also rejected plaintiffs’ argument that the County improperly approved the project because it would result in noise impacts inconsistent with the County’s and the City’s general plans, finding that plaintiffs did not properly identify such a conflict.

Plaintiffs also contended that the County defined the project objectives in an impermissibly narrow manner. The court agreed, explaining that a clearly written statement of a project’s objectives is essential to develop a reasonable range of alternatives capable of achieving those objectives. The EIR stated eight objectives that largely defined the project objectives as operating the project as planned, precluding the proper consideration of project alternatives and turning the EIR’s alternatives section into “an empty formality.” The court thus found that the County’s reliance on these objectives prejudicially prevented informed decision making and public participation.

The court accordingly ordered entry of judgment requiring the County to (1) revise the statement of the project objectives, (2) revise the alternatives analysis in light of the new statement of project objectives, and (3) recirculate the EIR’s discussion of greenhouse gas emissions to allow comment on the new emission estimates.

The Court of Appeal held that absent a distinction between short- and long-term rentals, both are permitted under city zoning ordinances, and any ban on short-term rentals that changes the status quo is an amendment that requires Coastal Commission approval. Darby T. Keen v. City of Manhattan Beach 77 Cal. App. 5th 142 (2022).

The City of Manhattan Beach enacted zoning ordinances banning short-term rentals in 2015 and instituting an enforcement mechanism in 2019 without seeking the Coastal Commission’s approval. The City had originally intended to seek Coastal Commission approval but withdrew its application after the Coastal Commission expressed that it did not support a full ban on short-term rentals in the Coastal Zone. The City justified not seeking Coastal Commission approval by claiming that the existing zoning ordinance from 1994 already banned short-term rentals.

A property owner petitioned for a writ of mandate to enjoin the City from enforcing the 2015 and 2019 ordinances after the City tried to enforce the ban on his property. He claimed that the City should have sought Coastal Commission approval.

The Court of Appeal held that the City ordinance banning short-term rentals was invalid because the City failed to obtain the Coastal Commission’s approval. The court reasoned that the City’s zoning ordinances prior to 2015 allowed short-term rentals because the code did not distinguish between short- and long-term rentals. This meant that rentals of residential properties for any time period were allowed. The court also rejected the City’s argument that short-term rentals should be treated as hotels under the City code, concluding that the homes that are typically rented out as short-term rentals did not fall under the code’s definition of a hotel.

The court also dismissed the other arguments the City relied on to justify the ban. The court rejected the claim that the concept of permissive zoning applied, under which zoning ordinances prohibit any use they do not expressly permit, noting that the City’s pre-2015 ordinances did permit short-term rentals. It likewise rejected the argument that the court should defer to the City’s interpretation of its own ordinances, finding that their plain language did not support that interpretation. The City’s 2015 ban on short-term rentals amounted to an amendment of the City’s existing ordinances to ban short-term rentals, which required Coastal Commission approval.

The Court of Appeal held that a ruling denying a petition for writ of mandate constitutes the final judgment in the case and triggers the 60-day period for filing an appeal. Meinhardt v. City of Sunnyvale, 76 Cal.App.5th 43 (2022).

Plaintiff sought a writ of administrative mandamus challenging his suspension for engaging in speech critical of policies implemented by a City of Sunnyvale official. After a telephonic hearing, on August 6, 2020, the trial court issued an order denying plaintiff’s petition. On August 14, the City electronically served plaintiff with a document titled “Notice of Entry of Judgment or Order,” together with a copy of the August 6 order.

On September 25, 2020, the court clerk filed a document signed by the trial court entitled “Judgment,” which stated that judgment was issued for the City pursuant to the court’s August 6th order. On October 15, 2020, plaintiff filed a notice of appeal from the September 25, 2020 judgment.

The appellate court held that the appeal was untimely because it had not been filed within 60 days of service of the August 6th order. Plaintiff argued that his appeal was timely because it was filed within 60 days of entry of judgment, and Code of Civil Procedure section 904.1 provides that an appeal may be taken from “a judgment.” The court, however, relied on prior caselaw holding that a ruling granting or denying a petition for a writ of mandate is “in effect” a final judgment because it finally determines the rights of the parties, and is therefore appealable, even if in the form of an order.

The trial court’s August 6th ruling denied the petition for writ of administrative mandate in its entirety and did not contemplate any further action in the case. Although the ruling was entitled “order,” not “judgment,” the court noted that was “not the form of the decree but the substance and effect of the adjudication which is determinative.” The August 6 ruling was “properly treated as a final judgment because it contemplated no further action, such as the preparation of another order or judgment, and disposed of all issues between all parties.” Because the notice of appeal was filed more than 60 days after service of the order, it was untimely and the court therefore lacked jurisdiction to consider the appeal.

The Court of Appeal ruled that a suit concerning an affordable housing fee that plaintiff had agreed to pay two decades earlier was still timely because the 90-day limitations period under the Subdivision Map Act did not begin to run until a dispute arose over the interpretation of provisions in the affordable housing agreement. Schmeir v. City of Berkeley, 76 Cal. App. 5th 549 (2022)

In 1996, Kenneth Schmier converted an apartment in the City of Berkeley into a condominium. At the time, the City code required that an owner converting a unit to a condominium sign an agreement and record a lien on the property securing payment of an affordable housing fee upon sale of the unit. The lien agreement provided that its execution did not prejudice the right of the owner to challenge the validity of the affordable housing fee ultimately imposed. Schmier signed the agreement and recorded the lien.

Twenty years later, Schmier opened an escrow for sale of the condominium for $539,000. The City responded with a request for payment of an affordable housing fee of $147,202.66. Schmier protested and filed suit challenging the fee on multiple grounds, including that the code provision under which the fee was imposed had been repealed ten years earlier. Schmier pointed to language in the lien agreement stating that “[i]n the event that the Affordable Housing Fee is … rescinded by the City of Berkeley, this lien shall be void and have no effect.”

The City contended that Schmier’s suit was time-barred under the 90-day statute of limitations in the Subdivision Map Act — which applied because a condominium conversion is a subdivision — as the suit was not filed within 90 days after execution of the lien agreement.

The appellate court rejected the City’s argument. It relied on Honchariw v. County of Stanislaus, 51 Cal.App.5th 243 (2020), which held that a suit challenging a map condition imposed years earlier was still timely because the dispute did not concern the validity of the condition originally imposed but rather the city’s later interpretation of that condition. The statute of limitations did not begin to run until plaintiff became aware of the city’s interpretation being challenged in the case.

The analysis in Honchariw, the appellate court found, was equally applicable to this case—the 90-day limitations period was not triggered until the City effectively rejected Schmier’s interpretation of language in the lien agreement that appeared to preclude imposition of the fee based on rescission of the code provision. Like the plaintiff in Honchariw, Schmier’s suit did not challenge the reasonableness, legality or validity of conditions originally imposed on the condominium conversion. Rather, it alleged that the City misinterpreted language in the lien agreement providing that “this lien shall be void and have no effect” if the affordable housing fee is “rescinded by the City of Berkeley.” Schmier’s suit was filed within 90 days after he became aware of the challenged misinterpretation and was therefore timely.

The EIR for a water ditch to underground pipeline conversion project withstood challenges to the project description and impacts analysis. The Third Appellate District held that the project description sufficiently disclosed the importance of the existing ditch to stormwater runoff and the EIR adequately analyzed impacts to hydrology, biological resources, and wildfire risks.  Save the El Dorado Canal v. El Dorado Irrigation District, 75 Cal. App. 5th 239 (2022).

El Dorado County relies exclusively on surface water—and the interconnected system of ditches and pipelines that moves it—to meet its potable water demands.  In 2017, the El Dorado Irrigation District proposed to underground a three-mile portion of this system, known as the “Upper Main Ditch,” to prevent water loss and improve water quality. The pipeline was originally slated to follow the alignment of the existing ditch, but an alternative route that instead tracked nearby Blair Road was ultimately approved.  In the approved alternative, the El Dorado Irrigation District would abandon its authority related to the existing ditch, including easements for maintenance, but the ditch would remain intact to convey stormwater runoff consistent with its current flow capacity.

Appellants challenged the project approval, contending that (1) the project description omitted the crucial fact that the existing ditch was the “only drainage system” for the watershed, and (2) the EIR failed to properly analyze impacts to hydrology, biological resources, and wildfire risks.

The court held that the project description adequately described the importance of the existing ditch to the local watershed. The description acknowledged the ditch currently accommodated storm water flows up to a 10-year storm event capacity, and straightforwardly revealed that the Blair Road Alternative would result in abandonment of the maintenance easement along the existing ditch. The irrigation district was not required to specifically state, even if true, that the ditch was the watershed’s “only drainage system.” The court does not require perfection, but rather “adequacy, completeness, and a good faith effort at full disclosure.”

The court also held that the EIR adequately analyzed all environmental impacts.  First, regarding hydrology, appellants contended the EIR failed to analyze the likelihood that the abandoned ditch would become clogged with debris or vegetation after the irrigation district relinquished maintenance authority, citing a comment letter from El Dorado County. The court disagreed. An EIR must address “reasonably foreseeable indirect effects,” but skepticism that a property owner might intentionally fill the ditch is not within this requirement. While there was a risk that the ditch would become clogged due to lack of attention (e.g., overgrowth of vegetation), the EIR provided a sufficient response, explaining that property owners had an incentive to monitor the ditch to prevent flooding and avoid potential civil liability.  The disagreement between the irrigation district and the county on this point did not render the EIR inadequate.

Likewise, the irrigation district thoroughly explained and supported its analysis of impacts to biological resources. Disagreement between the irrigation district and CDFW regarding the impact to riparian habitat was fully disclosed and reasonably addressed. The district also explained in detail, with input from experts, how the reduction in natural water seepage was unlikely to increase bark beetle infestations in trees near the existing ditch. That the project would not result in significant impacts to either of these resources was supported by substantial evidence and appellants did not satisfy their burden to show why the evidence provided was lacking.

In response to wildfire risks, the EIR more than adequately addressed the project’s impact on fighting wildfires. The irrigation district countered anecdotal information that the ditch was previously used as a water source for firefighting with evidence to the contrary and reasonably concluded that minor infrastructure like the ditch would have little to no impact during major wildfires. Review of CalFIRE strategic plans further confirmed that the ditch was not designated as a fire protection resource.

The court of appeal held that, in an action against the State Water Resources Control Board and regional water quality control boards for violations of the State Board’s Nonpoint Source (NPS) Policy and the public trust doctrine for failure to protect against agricultural water pollution from crop irrigation, plaintiffs failed to state claims for which either declaratory or mandamus relief was available. Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board, 76 Cal.App.5th 1 (2022).

Monterey Coastkeeper and others filed an action against the State Board and regional water quality control boards regarding water permits issued by the regional boards under the Porter-Cologne Water Quality Control Act (Wat. Code § 13000 et seq.).  The claims alleged that the regional boards and State Board had violated the NPS Policy by failing to take measures to address agricultural water pollution.  Plaintiffs claimed that the regional boards had failed to issue certain general agricultural orders and individual waste discharge requirements (WDRs) for agricultural discharge and the State Board had failed to take appropriate action when regional boards either adopted or failed to adopt general agricultural orders.  Plaintiffs further claimed that the State Board violated the public trust doctrine by failing to avoid or minimize harm associated with agricultural discharges.  Plaintiffs sought declaratory relief that the State Board and regional boards must act in accordance with their legal obligations to protect public health and the environment and a writ of mandamus directing the State Board and regional boards to comply with their legal obligations under the NPS Policy and the public trust doctrine.

The court held that neither declaratory nor mandamus relief was available for plaintiffs’ claims. In response to plaintiffs’ request for declaratory relief, the court concluded that such relief was not available because an issue like water pollution from agricultural runoff “cannot be ‘solved’ by a court decree in a declaratory relief action.”

The court held that mandamus relief was likewise unavailable because plaintiffs attacked the State Board and regional water boards’ exercise of discretion rather than a failure to perform a ministerial duty or a quasi-legislative action.  Application of the NPS Policy was a “quintessentially discretionary task” because the regional boards had broad flexibility and discretion in using their administrative tools to fashion NPS management programs.  Likewise, the public trust doctrine was an “inherently discretionary doctrine” that was “ill-suited” to traditional mandamus relief, since simply ordering the State Board to apply the doctrine would be an empty judgment and actually determining whether the State Board is applying the doctrine would require technical expertise.