Petitioner’s Failure to Comply With Discovery Regarding its Standing to Sue Results in Dismissal of CEQA Case

A CEQA case challenging the City of Wildomar’s approval of a Wal-Mart retail complex has been dismissed because the petitioner refused to comply with discovery requests regarding its standing to sue.  Creed-21 v. City of Wildomar, 4th Dist. Court of Appeal Case No.E066367 (pub. order 12/19/2017).

CEQA cases generally are decided on the administrative record before the public agency when it approved a project.  Therefore, civil discovery such as depositions, interrogatories and document production requests normally is not a feature of CEQA litigation. Discovery can, however, be allowed regarding threshold questions that are not addressed in the agency’s record, such as the petitioner’s standing to sue.

In Creed-21, the petitioner alleged that it had standing to sue because it was a non-profit, social-advocacy organization, and that at least one of its members resided in or near Wildomar. Wal-Mart contended, however, that Creed-21 existed only as a vehicle for collection of attorneys’ fees and lacked standing to bring a CEQA suit.  It  sought a deposition and documents in order to support its theory that Creed-21 was a shell corporation that consisted of only two members, neither of whom lived in Wildomar.

Over the next six months, Creed-21 responded by:

  • objecting to the discovery requests on the ground that its membership was irrelevant;
  • requiring the respondents to obtain an order from the superior court for the deposition and documents;
  • unsuccessfully seeking relief from the superior court to reverse that order;
  • unsuccessfully seeking relief from the court of appeal on the grounds that discovery was not allowed in CEQA cases and would violate the privacy rights of its members; and then
  • failing to comply with the court order, citing family emergency.

During this time, the briefing on the merits of the CEQA claims proceeded.  Creed-21’s opening brief attached a declaration from a witness who stated that she was a member of Creed-21 and that she and other members lived and worked in Wildomar.

The respondents’ opposition brief,  filed without benefit of the court-ordered discovery, argued that Creed-21 had two members, who did not include the declarant; noted that her declaration did not indicate when she had joined Creed-21; and further noted that Creed-21’s president had testified in another case that Creed-21 had only two members.

The trial court granted Wal-Mart’s motion for an “issue sanction” due to Creed-21’s failure to comply with the court’s discovery order.  The issue sanction precluded Creed-21 from establishing its standing to sue, and thus had the effect of terminating the litigation.

The court of appeal held that the trial court’s imposition of the terminating sanction was not arbitrary or capricious.

In Creed-21, the courts addressed an abuse of the CEQA process that also happened to constitute an abuse of the discovery process.  As is typical in such cases, however, the remedy for abuse does not make the project proponent whole.  Wal-Mart obtained dismissal of the case and an award of $3,000 in discovery sanctions  — not enough to compensate an  applicant for the attorneys’ fees it incurred, much less delay to its project from more than two years of litigation.

Forest Service Properly Analyzed Potential Impacts of Forest Restoration Project on Pine Marten and Fisher Populations

The 9th Circuit Court of Appeals held that the U.S. Forest Service could validly rely on proxy approaches in determining whether a forest restoration project would adversely impact pine marten and fisher populations in the project area. Alliance for Wild Rockies v. Pena, 865 F.3d 1211 (9th Cir. 2017).

The Alliance for the Wild Rockies filed suit challenging the approval of a forest restoration project as violative of the National Forest Management Act (NFMA) and the National Environmental Policy Act (NEPA), and requested a preliminary injunction to enjoin commencement of the project. The Alliance argued that the Forest Service improperly relied on proxy approaches to determine the project would not adversely impact pine marten and fisher populations in the project area. Under the abuse of discretion standard applied to review of a district court’s denial of a motion for preliminary injunction and the Administrative Procedure Act’s (APA) arbitrary and capricious standard, the court held that, for all claims, the Alliance failed to demonstrate serious questions going to the merits or that it would likely succeed on the merits.


The Colville Forest Plan designated the pine marten as a management indicator species — a bellwether for similar species, such as the fisher — and set goals for habitat preservation. The use of a species’ habitat as a proxy for its viability is known as the “habitat-as-proxy” approach. The use of the species as an indicator of the population of other similar species is known as the “proxy-on-proxy” approach. In the EA, the Forest Service relied on the habitat-as-proxy approach to determine the project would not adversely impact the pine marten, and the proxy-on-proxy approach to determine the project would not adversely impact the fisher.

Proxy approaches are allowed where both the Forest Service’s knowledge of what quality and quantity of habitat is necessary to support the species and the Forest Service’s method for measuring the existing amount of habitat are reasonably reliable.  The Alliance conceded that the Forest Service had reasonably accurate knowledge of both the quantity and quality of pine marten habitat to support the species and that the Forest Service’s method of measuring the existing amount of habitat was reasonably reliable. The Alliance, however, argued that the Forest Service was required to monitor the pine marten population and no pine marten had been sighted in the area since 1995. The Alliance also argued that the use of the pine marten as a proxy for the fisher to conclude that the project would not impact fisher viability was flawed because it was based on the flawed pine marten analysis.

The court rejected these arguments. The lack of pine martin sightings in the project area was not dispositive because the Colville Forest Plan did not require the Forest Service to monitor the pine marten population and allowed for monitoring through habitat analysis. Pine marten had been seen in other parts of the Colville National Forest, and the EA had implicitly determined that pine marten were difficult to detect and, due to this difficulty, the EA would rely on habitat based methods to determine the impact of the project on the pine marten. Accordingly, the Forest Service’s use of the habitat-as-proxy approach was not arbitrary and capricious. In regard to the fisher, the court held that the lack of pine marten sightings had “no bearing on the reliability of the ‘proxy-on-proxy’ approach . . . .” While “sightings of the management indicator species (the pine marten), not the absent species (the fisher), play a role in determining the viability of the approach,” the lack of pine marten sightings did not invalidate the approach, because the analysis for the fisher was based on the valid use of the “habitat-as-proxy” approach for the pine marten, which did not require pine marten sightings.

Charter City Exempt from General Plan Consistency Requirement

A charter city is exempt from the statutory requirement that its specific plans and zoning ordinances be consistent with its general plan absent an express, unequivocal statement of intent in the city charter to adopt the consistency requirement. Kennedy Commission v. City of Huntington Beach, No.    (4th Dist., Nov. 20, 2017).

In 2010, the City of Huntington Beach adopted the Beach Erdinger Corridor Specific Plan, which allowed up to 4,500 residential units in the Beach Erdinger area. In response to complaints by residents, the City later amended the plan to reduce the allowable units to 2,100.

In the interim, however, the City had updated the housing element of its general plan to reflect the City’s Regional Housing Need Allocation by the Department of Housing and Community Development. The housing element had assumed that the majority of the affordable housing reflected in its numbers would be developed within the Beach Erdinger Specific Plan area. But the amendment of the Beach Erdinger Plan to cut allowable housing by more than half resulted in a 320-unit shortfall in the affordable units assumed in the housing element.

The Kennedy Commission brought suit, contending that the amendment of the Beach Erdinger Plan resulted in an unlawful inconsistency between this plan and the general plan housing element, in violation of the requirement that a specific plan must be consistent with the general plan. The City argued that, because it was a charter city, it was exempt from the requirement that its specific plans be consistent with its general plan.

The court of appeal agreed, holding that the consistency requirement was inapplicable because Huntington Beach was a charter city. The court rejected the Kennedy Commission’s argument that the City, in its own zoning ordinance, had imposed the consistency requirement. Although the zoning ordinance contained language that could be interpreted to require consistency between specific plans and the general plan, the court reasoned that only an express, unequivocal statement in the City’s charter was sufficient to impose a consistency requirement notwithstanding the exemption for charter cities. Because the charter contained no such statement, the City remained exempt from any requirement that the Beach Erdinger Specific Plan be consistent with the housing element of the general plan.

Failure to Identify Preferred Alternative Dooms EIR

A draft EIR that studies five very different project alternatives without identifying a preferred alternative violates CEQA by failing to provide the public with a stable project to review, the court of appeal held in Washoe Meadows Community v. Department of Parks and Recreation, No. A145576 (1st Dist., Nov. 15, 2017).

The California Department of Parks and Recreation undertook a project to address erosion of the Upper Truckee River in Washoe Meadows State Park and Lake Valley State Recreation Area, which was a major source of sediment and nutrient runoff in Lake Tahoe. The Recreation Area contained an 18-hole golf course that had altered the river’s original course and flow. The Department issued a scoping notice that identified four alternatives for the project:

Alternative 1: No project.

Alternative 2: River restoration with reconfiguration of the 18-hole golf course.

Alternative 3: River restoration with a nine-hole golf course.

Alternative 4: River stabilization with continuation of the existing 18-hole golf course.

The scoping notice identified Alternative 2 as the preferred alternative.

The Department’s Draft EIR (which also served as a draft EIS for purposes of NEPA and the Tahoe Regional Planning Compact and Tahoe Regional Planning Agency Code of Ordinances) added a fifth alternative that would include decommissioning of the golf course. The Draft EIR did not specify a preferred alternative; rather, the Draft EIR stated that the Department would select a preferred alternative after receiving comments on the Draft EIR. The Draft EIR analyzed all five alternatives in considerable detail. In the Final EIR, the Department identified a slightly modified version of Alternative 2 as the preferred alternative.

Washoe Meadows Community filed a petition for writ of mandate seeking to set aside the Department’s certification of the Final EIR, alleging, among other claims, that the failure to identify a preferred alternative in the Draft EIR violated CEQA. The court of appeal agreed.

The court of appeal relied on County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 (1977), in which the court stated that “[a]n accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” Although County of Inyo involved an EIR that inconsistently described the scope of the project, the court held that the circumstance in this case—where the Draft EIR had not selected a preferred alternative for the project—was “no less problematic.” The court explained: “For a project to be stable, the DEIR, the FEIR, and the final approval must describe substantially the same project. A DEIR that states the eventual proposed project will be somewhere in ‘a reasonable range of alternatives’ is not describing a stable proposed project. A range of alternatives simply cannot be a stable proposed project.”

The court explained that the Department’s failure to select a preferred alternative could limit meaningful public participation in the environmental review process. According to the court, it did not matter if the EIR had thoroughly analyzed the preferred alternative; the Draft EIR’s failure to identify a preferred project “impair[ed] the public’s right and ability to participate in the environmental review process.” The court explained that “[a] description of a broad range of possible projects, rather than a preferred or actual project, presents the public with a moving target.”

The court recognized that “there may be situations in which the presentation of a small number of closely related alternatives” would be acceptable, but explained that in this case the five alternatives were vastly different because each alternative “created a different set of impacts, requiring different mitigation measures.” When an agency is considering a diverse range of alternatives, the court held, it must select a preferred alternative prior to preparing a draft EIR.

Court May Seek Clarification from Agency Regarding Issue in Pending Litigation

The Sixth District Court of Appeal held that a trial court in a mandamus action had the inherent power to remand to the Board of Supervisors for clarification regarding an ambiguous general plan consistency finding. The Highway 68 Coalition v. Co. of Monterey, No. H042891 (6th Dist., Aug. 24, 2017)

The case involved a petition for writ of mandate challenging the Board’s approval of a shopping center project on, among other grounds, inconsistency with the general plan. The Monterey General Plan required a “specific finding and supporting evidence of a long-term sustainable water supply.” In approving the project, however, the Board found only that “The project has an adequate long-term water supply.”  Because the Board’s finding did not comply with the express requirement of the General Plan, the trial court concluded that the Board had abused its discretion by approving the project. However, rather than invalidating the decision, the court issued an interlocutory remand to the Board to determine specifically whether the project complied with the General Plan policy as articulated.

The Court of Appeal held that the trial court did not err in issuing an interlocutory remand. The court relied on the California Supreme Court’s holding in Voices of the Wetlands v. State Water Resources Control Board, 52 Cal. 4th 499 (2011), that courts have inherent power to issue an interlocutory remand in an administrative mandamus action to resolve ambiguities and seek clarification regarding a specific issue. Here, the discrepancy between the Board’s findings and the General Plan’s requirement essentially turned on the word “sustainable.” The Board had found only that the Project had an “adequate water supply,” as opposed to a “sustainable water supply.”  Because this was a single, discrete issue, the appellate court held that that the lower court had the authority to issue an interlocutory remand prior to final judgment consistent with Voices of the Wetlands.

Ninth Circuit Court Paves the Way for Regulation of Stormwater Discharges Under RCRA

The Ninth Circuit Court of Appeals recently ruled that the anti-duplication provisions of the Resource Conservation and Recovery Act (RCRA) do not apply in the absence of a stormwater discharge permit issued under the Clean Water Act. Therefore, unregulated stormwater discharges are potentially subject to RCRA citizen suits and specifically imminent and substantial endangerment suits under 42 USC § 6972(A)(1)(B).

In our report on this case, prepared by Jeffrey L. Hunter, we look at the background of the decision in Ecological Rights Foundation v. Pacific Gas Electric Company and the potential impact on owners of retail, commercial and warehouse facilities that are not required to obtain coverage under a stormwater discharge permit. Our report is available here.

State Authorizes Rental Inclusionary Housing Requirements

One of the 15 housing-related bills signed recently by Governor Brown could have especially significant implications for market-rate, residential rental projects in many jurisdictions, as the new legislation, AB 1505, will authorize cities and counties to adopt inclusionary housing requirements for rental units.  AB 1505 takes effect January 1, 2018.

Nearly a decade ago, the Court of Appeal held that the Costa-Hawkins Rental Housing Act prevented local agencies from imposing inclusionary requirements on rental units that did not receive governmental assistance.  Palmer/Sixth Street Properties, L.P. v. City of Los Angeles, 175 Cal. App. 4th 1396 (2009). The Costa-Hawkins Act grants residential landlords the right to set initial rental rates at the commencement of a tenancy. In Palmer, a city sought to require a rental housing developer either to construct affordable units that would be subject to rent restrictions for at least 30 years or to pay an in lieu fee the city would use to build affordable units elsewhere. The court held that the city’s inclusionary housing ordinance conflicted with and was preempted by the Costa-Hawkins Act’s vacancy decontrol provisions.

Through AB 1505, the Legislature expressly declared its intent to supersede the Palmer decision “to the extent that decision conflicts with a local jurisdiction’s authority to impose inclusionary housing ordinances.” The Legislature sought “to reaffirm” local agencies’ authority to apply affordable housing requirements to rental projects. To do so, AB 1505 specifies that cities and counties may adopt ordinances that “require, as a condition of the development of residential rental units, that the development include a certain percentage of residential rental units affordable to, and occupied by,” households at or below moderate-income levels. AB 1505 requires inclusionary housing ordinances to provide alternative means of compliance that may include in-lieu fees, land dedication, off-site development of units, or rehabilitation of existing units.

Governor Signs Housing Legislation, Including Streamlining Bill

Governor Brown has signed 15 bills designed to address the State’s severe shortage of affordable housing.  Among its other effects, the legislation will (1) generate funds for affordable housing developments; (2) require cities and counties, as they approve new development, to maintain a supply of adequate housing sites for all levels of income; (3) tighten several provisions in the Housing Accountability Act, known popularly as the “Anti-NIMBY” legislation; (4) authorize local governments to establish Workforce Housing Opportunity Zones that can provide the basis for future streamlined approvals; and (5) supersede a court decision holding that local agencies cannot impose inclusionary housing requirements on rental projects.  The bills take effect January 1, 2018, and were the result of substantial negotiation during the legislative session.

This post focuses on another bill in the housing package that, in limited circumstances, will provide a streamlined, ministerial approval process for multifamily residential developments that include affordable housing.  SB 35, shepherded through the Legislature by first-year Senator Scott Wiener, will apply to certain urban infill projects located in jurisdictions the California Department of Housing and Community Development determines are not meeting their share of regional housing needs by income category.

For eligible projects, no conditional use permit can be required, and parking standards will be limited.  SB 35 also will require that any design review or public oversight be “objective” and “strictly focused on assessing compliance with criteria required for streamlined projects, as well as any reasonable objective design standards” of broad applicability adopted by the jurisdiction before a development application was submitted.  This review will need to be completed within 90 days for a project of 150 housing units or fewer, and within 180 days for larger projects.

To be eligible for streamlining under SB 35, projects will need to include units reserved for low-income households as follows:

  • At least 10 percent of total units, if the local agency is not approving enough units for above moderate-income households; or
  • At least 50 percent of project units, if the locality is out of compliance in its provision of low-income housing.

If the city or county is out of compliance with both requirements, the developer may satisfy the lower percentage.  However, if a local inclusionary housing ordinance requires dedication of a greater percentage of units to low-income households, that ordinance will control.

In addition to the requirements identified above and others, projects will need to meet the following standards to qualify under SB 35:

  • The development, excluding any elements authorized by the Density Bonus Law, is consistent with objective zoning standards and objective design review standards;
  • At least two-thirds of square footage is designated for residential use;
  • All construction workers will be paid prevailing wages, unless a project is a public work or has 10 units or fewer; and
  • For certain projects, a “skilled and trained workforce” will be used.

Projects may be excluded from streamlining under SB 35 if located on any one of several types of sites.  Ineligibility may be triggered if a site is (1) within the coastal zone; (2) prime farmland, farmland of statewide importance, or land designated for agricultural protection; (3) wetlands; (4) within certain fire hazard severity zones; (5) a hazardous waste site; (6) within a delineated earthquake fault zone; (7) within a flood plain or floodway; or (8) identified for conservation, habitat for protected species, or under conservation easement.  A development also may be excluded if demolition of a historic structure or of certain types of housing is involved, or if specified unit sales or subdivision occurs.

SB 35 is scheduled to expire on January 1, 2026.

Legislature Seeks To Prevent Local Voters From Enacting Many Types of Pro-Development Initiatives

The California Legislature just sent another “stop me before I vote again” bill to the Governor.  Assembly Bill 890 proposes to limit severely the scope of voter-sponsored, pro-development land use initiatives.  The Governor has until October 15th to decide whether to sign the bill into law.  The actual effect of AB 890, if enacted, may need to be resolved in litigation.

The bill would enact new provisions of the Government Code that delegate exclusive authority to city councils and boards of supervisors to determine certain general plan, specific plan and zoning decisions.  Courts have determined that when the legislature delegates authority over an issue exclusively to councils and boards, voter action regarding those issues is precluded.  However, AB 890 also purports to preserve to the voters their power of referendum, and to allow councils and boards of supervisors to place pro-development measures on the ballot.  AB 890 also proposes to prohibit the approval or amendment of a development agreement by initiative, while retaining provisions of existing law which state that a development agreement is a legislative act subject to referendum.  AB 890 states that it applies to charter cities as well as general law cities.

The general plan, specific plan and zoning decisions that would be exclusively delegated under AB 890 (and therefore could not be pursued in a voter-sponsored initiative) are those that would:

  • Convert a discretionary land use approval necessary for a project to a ministerial approval.
  • Change a land use designation or zoning district to a more intensive designation or district, with the most intense use defined as industrial uses, followed by commercial uses, office uses, residential uses, and then agricultural or open-space uses.
  • Authorize more intensive land uses within an existing designation or district.

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College District’s Approval of Agreement to Buy Land Did Not Trigger CEQA

A community college district’s approval of an agreement to buy land for possible use as a new campus did not trigger CEQA review where the agreement required an EIR before the sale could be consummated and the District had not otherwise committed itself to building a new campus on the site. Bridges v. San Jacinto Community College District, No. E065213 (4th Dist., Aug. 8, 2017).

At a regularly scheduled meeting, the Board of Trustees of the San Jacinto Community College District approved an agreement to acquire 80 acres of property from a regional park district for possible use as a new college campus. There were no public comments on or objections to the agreement at or before the board meeting.

Plaintiffs subsequently sued, alleging the District violated CEQA by failing to prepare an EIR before approving the agreement. The appellate court concluded (1) plaintiffs did not exhaust administrative remedies or demonstrate they were excused from doing so by lack of notice; and (2) even if plaintiffs had exhausted, their claim foundered on the merits because the District had not committed itself to the new campus project and had expressly agreed to prepare an EIR before completing the purchase.

Plaintiffs Failed to Exhaust Administrative Remedies

A party alleging violation of CEQA must exhaust administrative remedies or demonstrate either that there was no public hearing or other opportunity to raise objections before the project was approved or that the public agency failed to give the notice required by law  (Pub. Res. Code § 21177(e)). Here, the District considered and authorized the purchase agreement at a public meeting of its board of trustees. While this was not a public hearing, it nonetheless triggered CEQA’s exhaustion requirement because it constituted an “other opportunity” for members of the public to raise objections prior to the approval of the project.

Plaintiffs contended they were nonetheless exempted from the exhaustion requirement because the District had failed to post the meeting agenda at least 72 hours in advance of the meeting as required by the Brown Act. The record, however, was silent on whether the required notice had been given. Under these circumstances, plaintiffs’ exemption claim failed because they bore the burden of proving inadequate notice. Faced with no evidence on the issue, the court concluded that it had to presume that the District’s official duty had been regularly performed. Continue Reading

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