A school district may impose reasonable school impact fees based on the general type of development, regardless of whether the specific subtype of development will or will not generate new students. AMCAL Chico, LLC v. Chico Unified School District, No. C08700 (3rd Dist., Nov. 5, 2020).

AMCAL constructed a private dormitory complex intended to house unmarried college students. The 173-unit project, which was unaffiliated with the nearby state university, contained over 600 beds. AMCAL planned to lease by the bed with the requirement that all renters be at least 18 years old and enrolled in a degree program. The project was zoned as “medium high density residential” and located within the Chico Unified School District.

The District assessed school impact fees pursuant to Education Code section 17620, which allows public school districts to levy a fee against new residential developments to accommodate a likely increase in students from the development. AMCAL paid the fee under protest and filed suit claiming that its project was “a separate class of residential development” that would not generate District students.

The court rejected AMCAL’s claim that a school district must make an individualized determination of the impact of each particular project. The court held that, under the Mitigation Fee Act, the District only needed to consider the general type of development—such as residential construction—not the intended purpose or use of the development, when assessing school impact fees. In this case, the school impact fee determined by the District’s fee study was reasonably related to the impacts of new residential construction on the school district’s school facilities and therefore met the requirements of the Mitigation Fee Act.

While a number of court decisions have considered how CEQA lead agencies should assess the significance of a project’s greenhouse gas emissions, few have examined mitigation measures for those impacts. In Golden Door Properties, LLC v. County of San Diego, 50 Cal. App. 5th 467 (2020), the Fourth District Court of Appeal issued the first published decision on the use of purchased offset credits to mitigate GHG emissions. The court concluded the mitigation measure was inadequate because it did not ensure that offset credits would result in emissions reductions that would be genuine, quantifiable, additional and verifiable. It also faulted the measure because it gave the County planning director authority to approve a project’s use of particular offset credits without providing clear, objective standards to guide those determinations.


The Golden Door case arose from San Diego County’s approval of a climate action plan along with guidelines for determining the significance of greenhouse gas impacts. The key issue in the case was whether a GHG mitigation measure in the SEIR for the climate action plan complied with CEQA. That measure, GHG-1, was designed to mitigate the GHG impacts of pending projects requiring general plan amendments which had not been included in the climate action plan’s emissions inventory.  Measure GHG-1 required that those projects mitigate GHG impacts through onsite design features and, if those onsite reductions were not sufficient to provide full mitigation, they could use offsite mitigation, including purchasing GHG offset credits. The measure allowed identification of the specific offset credits to be used for a project to be deferred until after the project was approved and gave the County planning director discretion to determine the acceptability of the proposed offset credit program.

Mitigation measure GHG-1 found legally inadequate.

The CEQA Guidelines allow the details of a mitigation measure to be fleshed out after a project is approved when it is impractical or infeasible to specify the details during the environmental review process if the agency adopts specific performance standards for mitigation and also identifies the types of actions that can feasibly achieve that standard. The question for the court was whether the standards in GHG-1 were sufficient to ensure that offset credits approved by the County would be effective.

The County asserted that GHG-1 provides for effective mitigation because it mirrors California’s AB 32 compliant cap and trade program, which is designed to ensure that offset credits are real, additional, quantifiable, permanent, verifiable, and enforceable. The court found, however, that GHG-1 was significantly different from the AB 32 compliant cap and trade program in several critical respects.  First, GHG-1 required that offset credits be purchased from California Air Resources Board-approved offset project registries, but it did not require that offset projects use CARB-approved protocols which ensure offset credits accurately and reliably represent actual emissions reductions.

The court also concluded that offsets generated outside California, which might qualify as mitigation under GHG-1, might not be genuine, verifiable and enforceable.  Equally important, the court found that GHG-1 did not incorporate the requirement that offsets used to satisfy cap and trade requirements be additional to any greenhouse gas emission reduction that would otherwise be required by law.

Finally, the court ruled that GHG-1 was deficient because it did not specify an objective performance standard, but rather left it to the planning director’s unhampered discretion to determine whether particular offsets would be sufficient to achieve the measure’s mitigation goals — no net increase in emissions in comparison with projections for the general plan update, or net zero GHG emissions.

The court’s discussion of adequate GHG mitigation measures. 

It is notable that, while not central to its decision, the court indicated support for one of the Climate Action Plan’s measures under which the County may make “direct investments in local projects to offset carbon emissions.”  A direct investment project is created when the County takes a specific action that reduces, avoids or sequesters GHG emissions, such as weatherization and tree planting projects.  Direct investment projects must (1) comply with protocols approved by the California Air Resources Board, the California Air Pollution Control Officers Association or the San Diego County Air Pollution Control District which received public review prior to adoption; and (2) yield GHG reductions that are additional to reductions that would not otherwise occur.  In addition, an independent, qualified third-party must verify the GHG reduction achieved.

Similarly, the court appeared to endorse the approach taken by the Newhall Ranch Resource Management and Development Plan, approved by the Department of Fish & Wildlife.  That plan listed specific GHG reduction measures that must be implemented within the project itself; identified prototypical offsite direct reduction and sequestration activities the developer would implement; and required that any reduction or elimination of emissions be additional.  While the Newhall Plan also allowed some use of purchased offset credits, the plan required at least 68 percent of the reductions be achieved in California and at least 80 percent be achieved in the United States.  The Plan further required that if the lead agency determined offsets to be noncompliant with performance standards, permitting for the project would be suspended until the standards are met.

The contrast between the measure that the court rejected and the measures that the court cited with approval may provide useful guidance to practitioners and project proponents exploring ways to reduce GHG emissions in a manner that will pass legal muster.

Read a detailed legal analysis of the court’s discussion of issues relating to greenhouse gas emissions.


The Third District Court of Appeal held that CEQA and permitting challenges to an expansion project were moot because defendants had completed construction and did not build the project in violation of any court orders or in bad faith. Parkford Owners for a Better Community v. County of Placer, 54 Cal.App.5th 714 (2020).

This case involved a commercial self-storage facility, which had undergone three phases of permitting and expansion over the preceding 20 years. Placer County approved the most recent expansion in August 2016 and construction began in September 2016.

In February 2017, the petitioners challenged the August 2016 building permit contending that the project was approved in violation of CEQA and the Planning and Zoning Law. Petitioners also requested a temporary restraining order and a preliminary injunction, which the trial court denied because construction was nearing completion and the plaintiffs failed to demonstrate irreparable harm or immediate danger. The project was completed in October 2017, and the County issued a certificate of occupancy.

On appeal, the court held that the challenges regarding the validity of permits authorizing the project were mooted by completion of the project. Once construction is completed, the court reasoned, requiring the preparation of an EIR is no longer an appropriate remedy. Distinguishing prior caselaw, the court found that the developer did not commence construction in violation of any court orders, nor was there any indication that it tried to evade CEQA or Planning and Zoning Law requirements. The facility had undergone two prior expansions without needing to complete an EIR, and the developer relied on the validity of the 2016 building permit during the expansion. In addition, the plaintiffs failed to request an injunction until the project was nearly completed and did not attempt to argue that the case fell within the exemption from the mootness doctrine for “important issues of broad public interest that are likely to recur.”

A private landowner prevailed over a community association’s efforts to obtain a public recreational easement over trails because substantial evidence showed the landowner took bona fide steps to deter unauthorized users on the trails. Tiburon-Belvedere Residents United to Support the Trails v. Martha Company, No. A157073 (1st Dist., Oct. 23, 2020).

Before 1972, when the California legislature effectively abolished implied public dedication of land, a dedication could be implied by law when “the public has used the land for a period of more than five years with full knowledge of the owner, without asking or receiving permission to do so and without objection being made by anyone.” Martha had owned 110 acres of undeveloped land in Tiburon for more than 100 years when, in 2017, a community association sued to quiet title in favor of the public to recreational easements over trails on the property. The association argued that, before 1972, the public’s use of trails on Martha’s property had established a recreational easement under the doctrine of implied dedication.

The court of appeal disagreed. Citing the trial court’s extensive findings, the court explained that the association failed to demonstrate the alleged public use was sufficient to put the landowner on notice under the doctrine of implied dedication because the users, for the most part, comprised a relatively small group of neighbors, many of whom were children, not the public at large. The court also found that even assuming the association had shown by substantial evidence that the trails were used by a significantly large and diverse group of the public, Martha made adequate bona fide attempts to prevent public use by, among other things installing no trespass signs and fences. The court highlighted “a running battle between some users, who took down signs and fences”, and owners, who repaired them, indicating both that the users did not believe they had a right to use the property and that the owner made bona fide efforts to deter them. In short, the landowner was not indifferent to public use of its property and substantial evidence supported the trial court’s finding that Martha’s attempts to deter trespassers demonstrated lack of acquiescence to a public dedication.

A recent Ninth Circuit decision offers guidance on evaluating connected actions and cumulative impacts under NEPA. The court held that an agency can defer consideration of an action’s cumulative impacts in an EIS when the agency makes clear that it intends to evaluate the cumulative impacts in a later EIS. The court also held that if two related actions have independent utility, they are not connected actions and need not be analyzed in the same EIS. Tinian Women Association v. U.S. Department of the Navy, No. 18-16723 (9th Cir., Sept 18, 2020).

In 2005, the United States and Japan agreed to relocate 8,000 Marines from Okinawa to Guam. To maintain operational and training capacity, the Navy determined that it would need to develop new training facilities in Guam and the Commonwealth of the Northern Mariana Islands (“CNMI”). The Navy issued an EIS (“the Relocation EIS”) and a Supplemental EIS (“SEIS”) that analyzed the troop relocation as well as the development of new training facilities on Guam and Tinian (one of the islands in the CNMI) that would be necessary to accommodate the troop relocation. Around the same time, the Navy began preparing the CNMI Joint Military Training EIS/Overseas EIS (“the CJMT EIS”), which evaluated the development of additional new training complexes on Tinian and Pagan (another island in the CNMI).

The plaintiffs filed a lawsuit challenging the Relocation EIS and SEIS. At the time the lawsuit was filed, the Navy had not yet published a Final CMJT EIS.

Connected Actions. The court rejected the plaintiffs’ argument that the troop relocation and all the new training facilities on the CNMI were connected actions that should have been studied in a single EIS. The court explained that they were not connected actions because although they served some of the same purposes and goals, each action had independent utility (i.e., each action reasonably could be completed without the other). As such, they were not required to be considered in the same EIS.

Cumulative Impacts. The plaintiffs also argued that the Relocation EIS and SEIS should have considered the cumulative impacts of the additional training facilities in the CNMI that were being considered in the CMJT EIS. The court held that it was not improper for the Navy to defer consideration of cumulative impacts to the CMJT EIS: “We have consistently held that agencies can consider the cumulative impacts of actions in a subsequent EIS when the agency has made clear it intends to comply with those requirements and the court can ensure such compliance. . . . By issuing a notice of intent to prepare [the CMJT EIS], the Navy has impliedly promised to consider the cumulative effects of the subsequent action in the future EIS and the Navy should be held to that promise.”

Standing. The plaintiffs asserted that the Navy should have considered alternative locations for the troop relocation beyond Guam and the CNMI. The court held that the plaintiffs lacked standing to raise this claim because it was not redressable by the court. The treaty between the United States and Japan stated that the troops would be relocated from Okinawa to Guam. The court explained that it could not provide the relief sought by the plaintiffs—an order directing the Navy to consider alternative locations—because it would violate separation-of-powers principles by requiring the executive branch to rescind or modify the treaty with Japan.

The State Density Bonus Law, Government Code section 65915, provides the opportunity to develop additional market-rate housing and receive other benefits in exchange for including affordable units in a project.  Governor Newsom recently signed legislation, Assembly Bill 2345, that makes several amendments to the Density Bonus Law, the most significant of which will increase how much additional density a predominately market-rate project can obtain.

Under existing law, a maximum density bonus of 35 percent is available to a project that both complies with “replacement” requirements for any existing dwelling units and restricts at least (1) 20 percent of project units to low-income households, (2) 11 percent of units to very low-income households, or (3) 40 percent of for-sale units to moderate-income households. In other words, a project that achieves any of these affordability levels may include up to 35 percent more units than local law otherwise would allow. All additional units may be offered at market rates.

Under AB 2345, which takes effect on January 1, 2021, the maximum available density bonus for projects not composed exclusively of affordable housing will increase from 35 to 50 percent, where additional affordable units are built.  To receive the top bonus, a project must comply with unit replacement requirements and set aside at least (1) 24 percent of units for low-income households, (2) 15 percent of units for very low-income households, or (3) 44 percent of for-sale units for moderate-income households.  Bonuses between 35 and 50 percent will be granted on a sliding scale, while current affordability requirements to obtain a lesser bonus will remain unchanged.

In recent years, an ever-increasing number of housing projects have relied on the Density Bonus Law. The new legislation will enable developers to produce even more market-rate and affordable units under the law.

Governor Gavin Newsom has issued Executive Order N-80-20, extending through March 31, 2021 Executive Order N-28-20, which allows local governments to impose commercial eviction moratoriums and restrictions for commercial tenants who are unable to pay their rent because of COVID-19.

The governor’s order only addresses commercial evictions (as AB 3308 fully addressed residential evictions through March 2021). Because the governor’s order does not itself establish a statewide commercial eviction moratorium, commercial landlords and tenants should refer to their local government’s eviction protections. We expect local governments to adopt coronavirus commercial eviction protections, as permitted by the governor’s order, in the coming days.

San Francisco Mayor’s Supplement to the Commercial Eviction Moratorium

On September 29, 2020, San Francisco Mayor London Breed issued the Twenty-Eighth Supplement to Mayoral Proclamation Declaring the Existence of a Local Emergency, dated February 25, 2020. The latest proclamation extends the existing commercial eviction moratorium to November 30, 2020, and prohibits evictions for late rent payments due from March 17, 2020, through November 30, 2020. The proclamation also clarifies that no missed rent is due until the expiration of the commercial eviction moratorium. The moratorium may be extended by the mayor for two months at a time, but not beyond the expiration of the governor’s executive order.

The latest proclamation also narrows the application of the commercial eviction protections. Formula retail tenants (as defined by Section 303.1 of the San Francisco Planning Code), that is, tenants with 11 or more retail stores in the world, are not eligible for protection under the commercial eviction moratorium.

Also, landlords that own less than 25,000 square feet of rentable space in a building can seek exemption from the ordinance. Such landlords may evict a tenant due to nonpayment of rent if the landlord can demonstrate that the inability to evict would create a significant financial hardship for the landlord.

Aaron Peskin of the San Francisco Board of Supervisors said, “The Mayor’s approach has been remarkably successful for San Francisco at large, and now it’s incumbent upon us to do everything we can to ensure small businesses survive this pandemic. For me and my colleagues who are fighting to revive our neighborhood commercial corridors, we now have some breathing room to ensure that everyone recovers.”

The Ninth Circuit Court of Appeals held that a U.S. Forest Service plan for commercial logging of some 4,700 acres of fire-damaged Mendocino National Forest could not reasonably be interpreted as falling within a NEPA categorical exclusion for “road repair and maintenance.” EPIC v Carlson, 968 F.3d 985 (9th Cir. 2020).

The 2018 Ranch Fire burned more than 400,000 acres in Northern California, including almost 300,000 acres in the Mendocino National Forest. After the fire, the Forest Service approved the Ranch Fire Roadside Hazard Tree Project, authorizing the Service to solicit bids from private logging companies for the right to fell and remove large fire-damaged trees up to 200 feet from either side of roads in the forest. In total, the project authorized logging of millions of board feet of timber on nearly 4,700 acres of National Forest land. Rather than preparing an environmental assessment or environmental impact statement for the project, the Forest Service relied on a NEPA categorical exclusion for road repair and maintenance in 36 C.F.R. §220.6(d)(4).

As of November 2019, logging had begun in two areas of the project and the Forest Service had finalized bidding on a third area. Plaintiff, an environmental organization, sought an injunction in federal district court, which was denied. The Ninth Circuit reversed, finding plaintiff had established a likelihood of success on the merits of its claim that the project did not qualify as road maintenance and repair.

The appellate court reasoned that, although the felling of dangerous dead or dying trees right next to the road came within the scope of “repair and maintenance,” many of the trees encompassed by the project (including large, partially burned “merchantable” trees located 150 feet or more from any road) posed no imminent hazard and would not come close to the nearest road even if they fell directly towards it. The “repair and maintenance” categorical exclusion could not reasonably be interpreted to authorize a project that allowed commercial logging of large trees up to 200 feet away from either side of hundreds of miles of Forest Service roads.

The Ninth Circuit held that a 2012 Environmental Impact Statement that provided a programmatic-level analysis for management of lands in the Alaska National Petroleum Reserve could also be used as the site-specific analysis for oil and gas lease sales. Northern Alaska Environmental Center v. U.S. Department of Interior, No.19-35008 (9th Cir., July 9, 2020).

The National Petroleum Reserve-Alaska covers 23.6 million acres of public land, which includes habitat for polar bears, grizzly bears, gray wolves, moose, caribou, and dozens of species of migratory birds. Under the National Petroleum Reserve Protection Act, the Secretary of the Interior has authority to permit oil and gas exploration, leasing, and development.

In 2012, the Bureau of Land Management published a combined Integrated Activity Plan and Environment Impact Statement (“2012 EIS”) designed to determine the appropriate management for all BLM-managed lands in the Reserve. The 2012 EIS analyzed five alternative proposals, including different options for the percentage of lands that would be made available for oil and gas leasing.

In 2017, BLM entered into a lease with ConocoPhillips for approximate 80,000 acres of land. Plaintiffs sued, claiming BLM had conducted the 2017 lease transaction without complying with NEPA.

The Court of Appeal disagreed with plaintiff’s core claim that a single environmental document could not serve as a programmatic EIS for a broad-scale land management plan and also as a site-specific EIS for an oil and gas lease sale. The court observed that a single “federal action” for purposes of NEPA can be both broad-scale and site-specific, and can be evaluated at both of those levels in a single EIS.

Applying this principle, the court reviewed the scope of the 2012 EIS, which stated both that it was designed to determine the appropriate management of all BLM-managed lands in the Reserve and that it would fulfill NEPA requirements for the first oil and gas lease sale. As to future lease sales, the EIS stated that “[p]rior to conducting each additional sale, the agency would conduct a determination of the existing NEPA documentation’s adequacy” and could decide administratively that the analysis was adequate for a second or subsequent sale.

The court determined that this language in the 2012 EIS regarding future NEPA requirements provided reasonable notice that its intended scope encompassed the actual lease sales as well as programmatic-level analysis of overall management. It also deferred to BLM’s “reasonable position” that the 2012 EIS could serve as the EIS for the 2017 ConocoPhillips lease sale. Based on this conclusion, the court held that plaintiff’s claim that BLM failed to take a sufficiently hard look at the potential environmental impacts of the 2017 lease sale was barred by the statute of limitations.

The Sixth District Court of Appeal held that a medical marijuana dispensary could recover its marijuana plants seized by law enforcement, finding that violation of the ordinance did not render medical marijuana plants “contraband” per se and subject to seizure.  Granny Purps, Inc. v County of Santa Cruz, 53 Cal.App.5th 1 (2020).

Under established caselaw, local governments may by zoning ordinance prohibit medical marijuana dispensaries within their jurisdiction.  In this case, the County prohibited cultivation of more than 99 medical marijuana plants anywhere within the county limits. Citing violation of this ordinance, local law enforcement seized approximately 2,000 medical marijuana plants from a dispensary.

The court held that the County was required to return the seized plants, reasoning that a local ordinance restricting cultivation of medical marijuana plants does not change the legal status of medical marijuana under state criminal law (nor could it, as any attempt to do so would be preempted).  Possession of medical marijuana by personnel qualified under state law is not a crime. Thus, marijuana possessed for medical purposes in compliance with state standards is not contraband and therefore not subject to seizure. The court noted that although the concept that marijuana is not contraband (e.g., not illegal under state law in certain circumstances) is relatively new, local governments are bound by state law and cannot withhold property legally possessed under state law.