The Ninth Circuit held that the EPA violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) by failing to assess adverse effects of a pesticide — Enlist Duo —on monarch butterfly habitat. National Family Farm Coalition v. U.S. Environmental Protection Agency, No. 17-70810 (9th Cir., July 22, 2020).

For decades, glyphosate and 2,4-dichlorophenoxyacetic acid (2,4-D) have been separately registered with the EPA for use as pesticides. To counter evolved resistance by weeds to glyphosate, Dow developed “Enlist Duo,” which combined glyphosate with 2,4-D, a blend shown to improve crop yield by delaying development of weed resistance and enabling pesticide use later in the growing season.

Petitioners challenged the EPA’s decision to register Enlist Duo under the Endangered Species Act and FIFRA.

The court rejected petitioners’ claim that EPA violated the ESA by wrongly concluding that Enlist Duo would have “no effect” on listed species or critical habitat. The court found that EPA’s use of risk quotients (based on the calculated amount of exposure to the pesticide divided by toxicity levels) evaluated in light of EPA’s established levels of concern was not arbitrary, capricious or contrary to law. Nor did EPA legally err in relying on mitigation measures (including a 30-foot downwind buffer and label restrictions) to reach its no-effect determination. While mitigation measures that merely reduce an impact cannot support a no-effect finding, here, the mitigation measures, combined with risk quotient/level of concern methodology, enabled EPA effectively to rule out any effect on endangered plants and species.

As to the FIFRA claim, the court agreed with petitioners that EPA had failed properly to consider the potential adverse effect of expanded 2,4-D use on monarch butterfly habitat. EPA did assess some of these risks, finding that Enlist Duo would only affect treated crop fields, not off-field plants, such as milkweed (the primary food source for monarch caterpillars). But the court determined EPA should also have considered how the potential destruction of milkweed on target fields by the pesticide would affect monarch butterflies. EPA argued it was not required to do so because farmers would control the same amount of milkweed on their crop fields through the use of herbicides or other means, with or without Enlist Duo. The court disagreed, finding that given the record evidence suggesting monarch butterfly habitat might be affected by use of 2,4-D on target fields, EPA was required, under FIFRA, to determine whether that effect was “adverse.” Its failure to do so meant its decision lacked substantial evidence. The court remanded to EPA to address the evidence that monarch butterflies could be adversely affected by the destruction of milkweed on target fields.

The Third Appellate District held that the State Water Resources Control Board has the authority to issue temporary emergency regulations and curtailment orders which establish minimum flow requirements, regulate unreasonable use of water, and protect threatened fish species during drought conditions. Stanford Vina Ranch Irrigation Co. v. State of California, No. C085762 (3rd Dist., June 18, 2020)

During California’s severe drought period in 2014 and 2015, the State Water Board adopted emergency regulations and curtailment orders on three tributaries of the Sacramento River, including Deer Creek in Tehama County. The regulations were established pursuant to urgency legislation authorizing the State Water Board “to prevent the waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water,” or “to require curtailment of diversions. . . .” Wat. Code, §1058.5. The regulations issued by the Water Board limited the diversion of water from Deer Creek for certain periods in order to maintain the required flow of water and protect Chinook salmon and steelhead trout, two threatened species affected by the drought during their migratory cycles.

Petitioner, a non-profit irrigation company that operates diversion dams and ditches for agricultural use in Deer Creek, filed suit challenging the regulations. Petitioner noted that it was entitled by a 1923 judicial decree to use roughly 66 percent of the flow of Deer Creek and argued that the Water Board was required to hold an evidentiary hearing before issuing and implementing the regulations. It further argued that the regulations resulted in a taking of its vested water rights and that the Water Board did not comply with due process under the federal and California constitutions.

The appellate court first found that the Water Board’s statutory authority under the urgency legislation was constitutionally valid and that the temporary emergency regulations were consistent with article X, section 2 of the California Constitution, which ordains conservation of water resources. The court also concluded that adoption of the regulations was not arbitrary, capricious, or lacking in evidentiary support. Continue Reading State Water Board Has Authority to Implement Temporary Emergency Regulations Curtailing Water Diversions Without Prior Evidentiary Hearing

When a tract of land is governed by both a vesting tentative map and a subsequent development agreement and the terms of the two documents conflict, the development agreement controls. North Murrieta Community v. City of Murrieta, No. E072663 (4th Dist., June 8, 2020).

North Murrieta Community, LLC, is the master developer of a large community in Riverside County called the “Golden City Project.” In 1999, the City of Murrieta approved a two-year Vesting Tentative Map for a subset of the overall project property. In 2001, four months before the Vesting Tentative Map was set to expire, North Murrieta and the City entered into a Development Agreement, which covered the entire project, including the tract subject to the 1999 Vesting Tentative Map.

The Development Agreement extended the Vesting Tentative Map for fifteen years, locking in regulations and fees for the same period, although now with an effective date of 2001. Importantly, in addition to the new effective date, the City expressly reserved rights in the Development Agreement to impose additional fees (or increase fees) in the future for city-wide impacts that were not fully mitigated at the time of project approval. The Vesting Tentative Map and Development agreement were both subsequently extended, with final expiration dates of 2019 and 2021, respectively.

In 2003, the City passed the Transportation Uniform Fee Program Ordinance (TUMF) to raise funds to improve the regional transportation system. Originally, the TUMF contained an exemption for projects subject to existing vesting tentative maps or development agreements, but the Murrieta City Council voted to remove the exemption in 2010. The City subsequently collected TUMF fees for development within the Golden City Project. Continue Reading Development Agreement, Not Vesting Tentative Map, Governed Whether New Fees Applied to Project

The court of appeal held that the City’s approval of mixed-used development projects was not an “artificial, arbitrary, or unnecessary barrier[]” to fair housing necessary to support disparate-impact claims under the FHA and FEHA.  AIDS Healthcare Foundation v. City of Los Angeles, No. B303308 (2nd Dist., June 15, 2020).

The City of Los Angeles approved entitlements for four large, unrelated projects in an area of Hollywood known as the “Hollywood Center,” finding that each project was consistent with the City Council’s Hollywood Community Plan and the General Plan. Petitioners sued, claiming that the City’s approval of these “upscale” projects created a barrier to fair housing in violation of the FHA and FEHA because the projects would lead to gentrification and drive up rents in the surrounding community. They argued that the effects of gentrification would disparately displace lower-income Latino and Black residents, and asked the court to void the City’s approvals and enjoin development until the City initiated measures to mitigate the effects of gentrification.

The court of appeal first acknowledged that, under Supreme Court precedent, disparate-impact claims are cognizable under the FHA and FEHA.  However, the FHA does not force housing authorities to “reorder their priorities” by requiring, for example, affordable housing to be built near development projects.  In order to state a prima facie case of disparate impact, a plaintiff must satisfy a “robust causality requirement” and sufficiently allege that a defendant’s policy was responsible for creating racial disparities.

The court found that the City’s approval of the projects was not an “artificial, arbitrary, or unnecessary barrier[]” to fair housing because the approvals themselves did not cause racial disparities.  Even if revitalization of the area might result in landlords raising rents and displacement in the community, this could not form the basis of a disparate-impact claim against the City for its project approvals for two reasons. First, the approvals did not affirmatively prevent affordable housing. Unlike zoning policies or redevelopment plans that prohibit the construction of multifamily and rent-controlled housing, the City’s approvals did not restrict the building of affordable housing in the area, impose higher rents, or preclude the development of affordable units.  Second, the approvals did not eliminate housing because each project would be built on vacant lots or result in a net increase in affordable housing.

The court concluded that the FHA and FEHA were designed not to impose land use policies but rather to eliminate policies that are barriers to fair housing.  In the absence of an offending policy, these laws do not require a municipality to implement measures to mitigate a project’s potentially adverse effects on housing.

In Save Berkeley’s Neighborhoods v. Regents of the University of California, No. A157551 (June 25, 2020) the court of appeal rejected the University of California’s argument that it need not have prepared a Supplemental EIR to analyze the effects of its discretionary decisions to increase enrollment on the Berkeley campus. The University had prepared a Program EIR for its UC Berkeley Long Range Development Plan in 2005. The LRDP EIR anticipated enrollment would increase by 1,650 students over the life of the plan. Beginning in 2007, the University made periodic decisions to increase Berkeley enrollment such that, by 2018, enrollment had increased by 8,300 students.

Petitioners argued that the University’s decisions to increase enrollment constituted changes to the previously approved project and that the University had violated CEQA each time it decided to increase enrollment in the absence of a Supplemental or Subsequent EIR. They also claimed they did not know about the University’s decisions to increase enrollment until 2017 and argued that their complaint was therefore timely.  The University sought dismissal of the lawsuit on the ground that the claims did not state a legal violation of CEQA, even if the allegations were true.

The court of appeal first recognized the general rule that CEQA applies whenever a public agency makes a discretionary decision that could have a physical effect on the environment. Because changes in enrollment have the potential to result in physical environmental effects, this general rule would dictate that decisions by public universities to increase enrollment are projects subject to CEQA. Continue Reading Public Universities Must Comply with CEQA when Deciding to Increase Enrollment

An administrative agency must provide the notice required under Code of Civil Procedure section 1094.6(f) specifying when its decision becomes final, and may not add potentially confusing information that undermines the statutory purpose of eliminating doubt as to when the statute of limitations to begins to run. Alford v. County of Los Angeles, No. B293393 (2nd Dist., July 1, 2020).

Plaintiff filed a mandamus action challenging an administrative decision by the Los Angeles County Department of Children and Family Services. The Department argued the suit was time-barred because it was not filed within 90 days of the Department’s final decision as required under Code of Civil Procedure section 1094.6. A decision becomes “final” under that statute on the date it is served by first class mail. The Department cited undisputed evidence that plaintiff did not file his action until over four months after receiving mailed notice of the Department’s decision.

The court of appeal found that plaintiff’s action was timely because the Department’s notice did not comply with the statutory requirements. Code of Civil Procedure section 1094.6(f) requires the agency to “provide notice to the party that the time within which judicial review must be sought is governed by” section 1094.6. The 90-day limitations period under section 1094.6 does not begin to run until this notice is given.

In this instance, the court found, the agency’s notice was deficient because it gave plaintiff conflicting information about the filing deadline. The notice said the Department’s decision was final, and that section 1094.6 required plaintiff to file any petition no later than “the 90th day on which the petition is deemed final.” But the notice also said the decision would become final “90 days from the date it is placed in the mail.”

The notice thus gave plaintiff inconsistent information about when the Department’s decision became final. It complied with the statutory requirement of notifying plaintiff that the filing deadline was governed by section 1094.6; but it added the confusing and conflicting statement that “[t]he decision will become final 90 days from the date it is placed in the mail,” which was contrary to the language of the statute.

The Department conceded its notice may have confused plaintiff but argued that this could not change plaintiff’s obligation to file within the statutory deadline because the notice clearly informed plaintiff that the action was governed by the time limit in section 1094.6. The court disagreed, pointing out that the notice could be reasonably understood to mean the decision was not final until 90 days after it was mailed rather than on the date it was mailed, as the statute provides. In light of the statutory goal of eliminating doubt as to when a decision is final, agencies must provide the notice specified in the statute, and may “not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review.”  Because the Department’s notice did not comply with the statute, plaintiff’s petition was not time-barred.

Nicholas Honchariw’s battles with the County of Stanislaus over his 9-lot subdivision have now resulted in a fourth published appellate decision. (See our prior reports, County Violates California’s Anti-NIMBY Law by Rejecting Housing Project With No Affordable Units; No Affordable Housing, No Attorney’s Fees Under Housing Accountability Act; and If At First You Succeed, Don’t Try, Try, Try Again). In Honchariw IV, the appellate court held that Honchariw’s disagreement with the County’s interpretation of tentative map conditions was not barred by the statute of limitations governing decisions concerning a subdivision because the suit was filed within 90 days after the dispute regarding the proper interpretation of the conditions arose. Honchariw v. County of Stanislaus, No. F077815 (5th Dist., June 25, 2020).

Honchariw sued the County after it refused to process his final map because the project did not comply with fire suppression conditions attached to the tentative map. Specifically, the County determined that the project’s water lines and fire hydrants did not meet County Fire Code flow and pressure standards because the water district’s system was not capable of providing the required flow without a system upgrade. In response, Honchariw argued that the project’s water lines and hydrants met the fire flow requirements and that the applicable conditions required only that this project infrastructure be installed prior to recordation of the final map, not that it be fully functional and capable of providing the necessary flow at that time. Reaching an impasse with the County, Honchariw turned again to the courts.

The County contended that Honchariw’s challenge to the conditions of approval was barred by the 90-day statute of limitations in Government Code section 66499.37, which applies to any “act[] or determination[] taken, done or made prior to the decision” of a public agency “concerning a subdivision,” including “the reasonableness, legality, or validity of any condition attached thereto.” Because these conditions were attached to approval of the tentative map in 2012, the County maintained that Honchariw’s claims were time-barred.

The appellate court disagreed. It found that Honchariw’s main issue was not with the reasonableness, legality or validity of the conditions adopted in 2012. Rather, his claim was that the County had later misinterpreted those conditions. The alleged misinterpretation constituted an “act[] or determination[] taken, done or made prior to the decision” of an agency “concerning a subdivision.” However, Honchariw filed his lawsuit within 90 days after the dispute regarding interpretation of the conditions arose, as reflected in correspondence between the parties. Honchariw’s lawsuit was therefore a timely challenge to the interpretation of the conditions of approval, as distinct from one challenging the validity of the conditions as originally imposed.

Stated differently, the court said, a claim challenging an agency’s interpretation of a condition of approval does not “accrue” for purposes of the statute of limitations until it is clear what the interpretation is and that it represents the agency’s final position. This occurs when it becomes apparent that further negotiations or attempts at clarification are unnecessary or would be futile. Here, the County’s final position became clear only within the 90-day period preceding the filing of the lawsuit. Therefore, the statute of limitations did not bar Honchariw’s claim.

Honchariw is 2 for 4 in the Court of Appeal.

Update: On September 30, 2020, the California Supreme Court denied a request by the League of California Cities to depublish this decision. Thus, the decision remains citable appellate authority.

The court of appeal found the EIR for a master planned community sufficient because it adequately described and analyzed impacts of the proposed project, which included a university, and was not required to consider the speculative possibility that the university would never be built. Environmental Council of Sacramento v. County of Sacramento, No. C076888 (3rd Dist., March 2, 2020)

The proposed project consisted of a master planned community, including residential, office, retail, and a 224-acre university campus. At the time the EIR was prepared, no specific university had been identified for the site. The EIR explained that, due to the long-term nature of the project, actual buildout of the university could not be predicted with precision. Plaintiffs challenged the project on numerous grounds under CEQA.

Adequacy of Project Description and Impacts Analysis

Plaintiffs claimed the project description was inadequate because it did not address the possibility that the proposed university would never be built, and hence that the EIR’s environmental analysis was “based upon a falsehood and speculation.” The appellate court found that the difficulties in attracting a major educational institution had been taken into account by the Board of Supervisors, which imposed obligations on both the developer and the County designed to advance that goal. These included requiring the developer to report annually on its progress, and to deposit payments (capped at $6 million) in an escrow account if the university land had not been transferred to a university by the time specific numbers of residential units had been built. The project also included numerous incentives designed to attract a university, including approximately $87 million in financial commitments.

The court determined that plaintiffs had failed to present credible and substantial evidence that the proposed university was an illusory element of the project. The EIR was not required to address the speculative possibility that a university would never be built. The court similarly rejected plaintiffs claim that the EIR misrepresented the significance of the project’s environmental impacts to air quality, climate change, and traffic based on the erroneous assumption that the university would be built.

Failure to Adopt Feasible Mitigation Measures

Plaintiffs also asserted that the County was required to consider, as a feasible mitigation measure, tying the phasing of project construction to development of the university in order to reduce environmental impacts. The Board, in its findings and statement of overriding considerations, had determined that these and other suggested mitigation measures were infeasible, in part because such measures would inhibit attainment of economic, social, and other project benefits. The court concluded that plaintiffs had failed to provide any evidence in the record to demonstrate that such tied phasing was feasible, noting that it was “not the court’s duty to independently review the administrative record to find relevant facts to support [plaintiffs’] claim of feasibility.”

The court of appeal held that plaintiffs’ inverse condemnation and damages claims based on dredging in the bay adjacent to their properties was barred under the doctrine of res judicata based on a 1931 judgment conclusively establishing that the property alleged to have been taken or damaged was not owned by plaintiffs. SLPR, LLC v. San Diego Unified Port District, No. D074958 (4th Dist., May 22, 2020).

Plaintiffs, a group of Coronado property owners, brought a quiet title and inverse condemnation action against the State of California and the Port contending that dredging in the San Diego Bay from 1998 to 2005 had damaged and taken portions of their bayfront properties without just compensation.

The appellate court found that a 1931 judgment resolving a title dispute between plaintiffs’ and defendants’ predecessors-in-interest established the boundaries between their respective properties, and that the property plaintiffs claimed had been taken or damaged was not within plaintiff’s ownership. Evidence admitted at trial showed that there had been both artificial improvements and artificial fill placed in the immediate vicinity of plaintiffs’ properties over many years and that a dispute had arisen between the parties’ predecessors as to the correct property boundaries. This litigation was resolved by a settlement and stipulated judgment fixing the boundaries between the tidelands and uplands properties. This judgment, the court explained, was conclusive and binding on plaintiffs under the doctrine of res judicata, under which parties are barred from relitigating claims previously resolved by a judgment in litigation between the same parties or their predecessors-in-interest.

Plaintiffs argued that for res judicata to apply, defendants were required to present “unequivocal evidence” of the mutual intention to determine the boundary. The court disagreed with plaintiffs’ asserted burden of proof, but nonetheless found that the “overwhelming” evidence presented demonstrated unambiguous intent to establish the boundaries. This included not only the record in the 1931 action itself but also extrinsic evidence showing that, following entry of judgment, temporary wood stake boundary markers had been replaced with concrete monuments, reflecting a “permanent fixed line” between tidelands and uplands property.

The City of Lafayette violated the Brown Act by not including a litigation threat discussed in closed session in the agenda packet made publicly available before the meeting, but plaintiffs failed to show any prejudice resulting from the violation. Fowler v. City of Lafayette, 46 Cal. App. 5th 360 (2020).

Homeowners sought approval from the City build a cabaña near a tennis court on their property. Plaintiff neighbors appealed the Planning Commission’s approval to the City Council. During consideration of the appeal, the homeowner’s attorney threatened to sue the City if it denied the project. The City Attorney notified the City Council of the litigation threat orally in a closed session. The threat was not noted in the agenda for any of the public meetings, and there was no mention of it in the information packets made available to the public before the meetings. At its final public meeting, the City Council denied the appeal and upheld the Planning Commission’s approval of the application.

Plaintiffs sued, contending that the City violated the Brown Act by discussing the application in closed hearings, and that plaintiffs were deprived of their right to a fair hearing.

Brown Act Violation

Plaintiffs claimed the City violated the Brown Act by failing to announce or make available for public inspection the litigation threat that served as the basis for closed session discussions. The City argued it was not required to include the litigation threat in the pre-meeting agenda packet because the threat was not distributed in written form to the City Council. The court of appeal rejected this argument, stating that under the Act, the record of a litigation threat to be discussed in closed session must be reduced to writing and included in the agenda packet made available upon request before a meeting. Therefore, the City violated the Brown Act. Continue Reading Brown Act Violation Did Not Require Nullification of Project Approval Where No Prejudice Was Shown