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.

In a lengthy opinion tackling several of CEQA’s hot topics, a court of appeal has rejected the EIR for the Martis Valley West project, finding its Lake Tahoe water quality analysis, GHG and traffic mitigation measures, and energy analysis inadequate. League to Save Lake Tahoe Mountain Area Preservation Foundation v. County of Placer, 75 Cal.App.5th 63 (2022). The court upheld other EIR analyses – most notably the section analyzing wildfire evacuation – as well as the county’s compliance with the Timberland Productivity Act.

Background

Sierra Pacific Industries owned two large undeveloped parcels bordering the Lake Tahoe Basin and spanning State Route 267. It proposed a specific plan and other approvals for 760 residential units and commercial uses on 662 acres of its west parcel, along with permanent conservation of its 6,376-acre east parcel. Placer County approved the project after certifying an EIR and rezoned the development site from Timberland Production Zone to Specific Plan.

CEQA

  1.  Air Quality Significance Threshold Upheld

Plaintiffs alleged that although the development site was outside the jurisdiction of the Tahoe Regional Planning Agency (TRPA), the EIR should have used TRPA’s vehicle miles traveled (VMT) significance threshold, or the science behind it, to analyze the impact of project-induced VMT on Lake Tahoe Basin air quality. The county instead applied the thresholds recommended by the Placer County Air Pollution Control District. The court found that although TRPA was a trustee agency under CEQA and the county was required to consider TRPA’s views, the county was also entitled to select its own significance threshold if it was supported by substantial evidence. The court held that — unlike in the 2021 case of Sierra Watch v. Placer County — here the county identified and applied a significance threshold that was supported by substantial evidence.

  1. Lake Tahoe Water Quality Setting and Impact Analysis Rejected

The court agreed with plaintiffs that the EIR did not adequately describe Lake Tahoe’s existing water quality or analyze another impact of project-induced VMT: roadway abrasives and sediments sent airborne by vehicle tires and then settling into Lake Tahoe. The court held that data on this issue provided after issuance of the final EIR was too late and that “it should not be difficult” for the county to correct this error.

  1. Greenhouse Gas Mitigation Rejected

A GHG mitigation measure required future developers within the specific plan area to demonstrate that their projects would be consistent with then-current GHG emission targets adopted by the state, “where those targets, in compliance with the rule of Newhall Ranch, are based on ‘a substantiated linkage’ between the project and statewide emission reduction goals.” Because such targets did not exist and might never exist, and the final EIR did not discuss how the mitigation measure would apply if such targets were never developed, the court agreed with plaintiffs that the mitigation measure violated CEQA.

  1. Wildfire Evacuation Analysis Upheld

Plaintiffs alleged the EIR’s analysis of the project’s impact on emergency response and evacuation plans during a wildfire did not adequately address congestion on State Route 267 or possibilities such as an overturned boat trailer blocking that route. The court rejected this challenge, citing the project’s creation of multiple evacuation and emergency access routes, a shelter-in-place location, and a detailed project-specific emergency plan. The court noted the role of emergency responders in managing evacuation along Route 267 and CEQA’s principles that an EIR cannot be expected to address every possibility and is not required to use a worst-case analysis.

  1. Forest Resources Cumulative Impact Analysis Upheld

Plaintiffs alleged that, contrary to the EIR’s conclusion, tree loss from project development would represent a cumulatively considerable contribution to tree loss that was already occurring in the county due to climate change. The court rejected this argument because tree loss under the specific plan was consistent with the county’s 1994 projection of regional forest loss, which the county had found to be less-than-significant. The court declined to consider future tree loss from climate change a cumulative “project.”

  1. Traffic Congestion Mitigation Measure Rejected

The court rejected the EIR’s reliance on payment of a fee toward widening of Route 267 as mitigation for the project’s impacts to traffic congestion, agreeing with plaintiffs that the EIR should have considered vehicle trip reduction measures such as transit subsidies as an alternative to Route 267 widening. The court’s opinion does not mention Citizens for Positive Growth & Preservation v. City of Sacramento, the 2019 case holding that challenges to congestion-based traffic analysis became moot under CEQA as of December 2018.

  1. Discussion of Impacts of Route 267 Widening Upheld

Plaintiffs also alleged that the mitigation measure requiring payments toward State Route 267 widening violated CEQA because that widening project itself had not yet undergone full CEQA review. The court rejected this claim on the ground that the county had already analyzed the widening at a program level and that the widening would undergo full CEQA review “once Caltrans proceeds with the project.”

  1. Energy Analysis Rejected

The court held that an EIR’s analysis of energy impacts is required to discuss whether the project could increase its reliance on renewable energy sources.

Timberland Productivity Act

Plaintiffs alleged that the county’s findings supporting rezoning of the development site from Timberland Production Zone (TPZ) to “Specific Plan” did not comply with the state Timberland Productivity Act. The Act, like the Williamson Act that applies to agricultural lands, allows a property owner to designate its land for timber production and obtain tax benefits in return. To waive the Act’s normal ten-year notice requirement for rezoning from TPZ and approve immediate rezoning, a jurisdiction must, among other requirements, make findings that immediate rezoning would not be inconsistent with the purposes of the Act.

The court rejected plaintiffs’ two challenges to the county’s findings. The first was that the county could approve immediate rezoning only if it explained why waiting ten years would be inconsistent with the purposes of the Act. The second argument was that in its consideration of rezoning 662 acres of the west parcel, the county could not consider the property owner’s proposal to rezone 670 acres of its east parcel back into TPZ. The court found no support in the Act for either of these proposed requirements.

 

The Court of Appeal held that an action to set aside an ordinance restricting short-term vacation rentals on the ground of failure to obtain a Coastal Development Permit (CDP) was barred by the 90-day statute of limitations for challenges to adoption or amendment of zoning ordinances. Coastal Act Protectors v. City of Los Angeles, No. B308306 (4th Dist., Feb. 24, 2022).

In December 2018, the City of Los Angeles adopted an ordinance placing restrictions on short-term vacation rentals. Over a year later, petitioner filed suit to enjoin enforcement of the ordinance until the City obtained a CDP, claiming the ordinance constituted a “development” under the Coastal Act. The trial court dismissed the action as untimely under the 90-day statute of limitations in Government Code section 65009(c)(1), which applies to actions to “attack, review, set aside void, or annul” a decision to adopt a zoning ordinance.

On appeal, petitioner argued that the trial court erred in concluding its action was barred under section 65009(c)(1) because the City’s failure to comply with the Coastal Act was “not an ‘action’ or decision contemplated by [section 65009].” Petitioner contended the action was instead subject to the three-year statute of limitations in Code of Civil Procedure section 338(a) for actions “upon a liability created by statute.”

The Court of Appeal disagreed. It pointed out that the Coastal Act, including the CDP requirement, predated adoption of the ordinance. Thus, assuming the City had a mandatory duty to obtain a CDP in order to impose the rental restrictions, that duty existed at the time the City enacted the ordinance. The action, therefore, was one to “attack, review, set aside, void, or annul” the City’s decision to adopt a zoning ordinance without first obtaining a CDP. Petitioner waited over a year, however, to file its suit. Thus, the action was time-barred under section 65009’s 90-day deadline.

The court added that its conclusion was consistent with the Legislature’s stated intent to “provide certainty for property owners and local governments regarding local zoning and planning decisions. (§ 65009(a)). The court noted that, after allowing for the 90-day period for challenges to the ordinance to expire, the City had expended significant resources to implement and enforce the ordinance, including $485,609 to build an online registration system and approximately $1.4 million for a one-year monitoring of the system.

The Court of Appeal found that a development project that was consistent with a previously approved specific plan was not required to prepare a new EIR because no changes significantly increased impacts on endangered species. Citizens’ Committee to Complete the Refuge v. City of Newark, No. A162045 (1st Dist., Dec. 29, 2021).

In 2010, the City of Newark certified an environmental impact report for a specific plan covering Areas 3 and 4, located next to San Francisco Bay. The EIR stated that the City would evaluate all new projects in accordance with CEQA Guidelines section 15168, which allows the City to use a checklist or initial study to evaluate specific development proposals, and that no further environmental documents would be required for subsequent activities found to be within the scope of the specific plan EIR.

In 2019, the City approved a subdivision map for development of residential lots on a portion of Area 4. The City prepared a checklist comparing the analysis in the EIR with the impacts of the proposed project. The checklist included supporting materials such as plans, letters, expert memos, and technical reports, including an updated analysis of the effects of sea level rise. The City approved the project after finding that it would have no significant impacts. The plaintiffs challenged the map approval and the use of the checklist.

The court of appeal held that the subdivision map was exempted from further CEQA review under Government Code section 65457 because it was consistent with the specific plan, which had a certified EIR. Under that circumstance, no further environmental review is required in the absence of substantial changes to the project or the circumstances under which the project will be developed or if new information becomes available.

The plaintiffs claimed that there were three aspects of the subdivision map that were significantly different from the specific plan analyzed in the EIR and would have significant new impacts on the salt marsh harvest mouse. However, substantial evidence supported the City’s conclusion that none of the changes would significantly increase the impacts on the harvest mouse beyond those addressed in the EIR. The court recognized that there was proposed use of riprap to reduce erosion, which was not mentioned in the EIR, but held that this did not rise to the level of a “[s]ubstantial change[] . . . in the project which will require major revisions of the environmental impact report.” While plaintiffs argued that use of riprap deserved further study because it would substantially increase the severity of rat predation of the harvest mouse, they failed to offer any substantial evidence to support this claim.

Plaintiffs also contended that the project risked exacerbating the effects of sea level rise on the environment because of the interaction of the project with wetlands in the area. The court found that, even if plaintiffs’ theory was correct, these dynamics were not new in relation to this project, so the City did not need to address them in reviewing the project—the time to address them, if at all, was in relation to the original EIR.

The court likewise rejected plaintiffs’ argument that a hydrology report’s reliance on adaptive management to address flooding of the project from sea-level rise (such as by creating levees or floodwalls) amounted to improper deferral of mitigation measures. The court reasoned that because sea level rise was not an impact on the environment caused by the project, neither the EIR nor the checklist needed to discuss this impact. For the same reason, the adaptive responses to sea level rise discussed in the hydrology report were not mitigation measures were not governed by the rules concerning deferred mitigation.

On January 19, 2022, attorneys from Perkins Coie presented the 32nd Annual Land Use and Development Law Briefing.

Topics included:

    • Developments in Land Use Law
    • Housing Legislation Update
    • Real Estate Due Diligence
    • CEQA — Cases, Legislation and Trends
    • Regulatory Compliance, Investigations and Enforcement
    • Wetlands, Species and Federal Environmental Review

A full set of the written materials, in pdf form, is available: 32nd Annual Land Use and Development Law Briefing Materials.

If you would like a bound, hard copy of the materials, please click here.

Selected materials from the presentation have also been posted on the California Land Use and Development Law Report: CEQA Year in Review 2021;  2021 Land Use and Development Law Case Summaries