CEQA guidelines require only that a lead agency give detailed responses to comments that identify an important new matter not discussed in the draft environmental impact report or raise questions about a significant environmental issue, the Fourth District Court of Appeal ruled, allowing Orange County to proceed with a long-considered expansion of a county jail.
Environmental Impact Reports
Supplemental Environmental Review
The California Supreme Court has agreed to review the appellate court decision Cleveland National Forest Foundation v. San Diego Association of Governments. As we previously reported, the court of appeal in that case invalidated the EIR for the San Diego Association of Government’s 2050 Regional Transportation Plan and Sustainable Communities Strategy.
In its petition…
The California Supreme Court has issued its long-awaited decision in Berkeley Hillside Preservation v. City of Berkeley, No. S201116 (March 2, 2015). The Court’s decision clears up some of the ambiguity that has surrounded the standard of review for challenges to CEQA exemptions under the unusual circumstances exception. In doing so, the Court rejected the controversial approach taken by the court of appeal and instead opted for a middle ground, balancing the interest in giving effect to the legislatively-mandated exemptions against CEQA’s overarching goal of ensuring review of significant environmental effects.
The project at issue was a large house to be built in the City of Berkeley. The city granted a use permit and found the project exempt from CEQA under the Class 3 (construction and location of limited numbers of new, small facilities or structures) and Class 32 (in-fill development) exemptions. The city also determined that none of the exceptions to categorical exemptions listed in CEQA Guidelines section 15300.2 were triggered, including the exception for a “significant effect on the environment due to unusual circumstances.” An organization sued, alleging, among other things, that the exemptions were barred by the unusual circumstances exception.
The court of appeal overturned the City’s exemption determination, holding that the possibility that a proposed activity might have a significant effect on the environment “is itself an unusual circumstance,” barring reliance on a categorical exemption.
A Potentially Significant Environmental Effect Alone Is Not Sufficient to Trigger the Unusual Circumstances Exception.
The California Supreme Court reversed and remanded, holding that a party bringing a challenge under the unusual circumstances exception must establish both 1) that there are unusual circumstances that justify removing the project from the exempt class; and 2) that there is a reasonable possibility of significant environmental impacts due to those unusual circumstances.
The Court began by examining the text of section 15300.2, which provides: “A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” According to the Court, the plain language of this provision supported the view that there must be some showing of unusual circumstances for this exception to apply. The court of appeal’s interpretation would, the Court found, render the phrase “due to unusual circumstances” mere surplusage.
The Court further found that under the court of appeal’s interpretation, the categorical exemptions would have little, if any, effect. The Court noted that under CEQA section 21080(c) and (d) and Guidelines section 15061(b)(3), when there is no substantial evidence that an activity will have a significant effect on the environment, “further CEQA review is unnecessary; no CEQA exemption is necessary to establish that proposition.” Thus, under the court of appeal’s interpretation, the categorical exemptions would serve no purpose, applying only when the proposed project is already outside the scope of CEQA review.
Continue Reading California Supreme Court Upholds Most Commonly Used CEQA Categorical Exemptions
An opponent of a Wal-Mart project was thwarted in his attempts to use an admittedly defective hearing notice as a basis for overturning project approvals. The court ruled that his claims were defeated by his failure to present evidence of prejudice and by a prior appellate decision. Roberson v. City of Rialto, No. E058187 (4th Dist. 5/21/14 [ordered published 6/17/14]).
Continue Reading Lack of Prejudice Barred Relief Despite Defective Hearing Notice
Caltrans’s analysis of impacts to redwoods from realignment of a one-mile stretch of Highway 101 has been rejected. The court of appeal ruled that the project EIR both failed to identify any significance threshold for impacts to redwoods and impermissibly labeled mitigation measures as project features. Lotus v. Department of Transportation, No. A137315 (First …
In December 2011, the Orange County Board of Supervisors passed a resolution authorizing the County to submit an application for $100 million in state funding to expand the James A. Musick Jail Facility to add over 500 beds. The City of Irvine, which sits adjacent to the jail, filed a lawsuit alleging that the County …
An environmental impact report must not only identify a proper significance threshold for a project’s greenhouse gas (GHG) emissions; it must then correctly apply that threshold. The EIR for a Wal-Mart Supercenter failed this test in Friends of Oroville v. City of Oroville, No. 070448 (3rd Dist., Aug. 19, 2013).
Wal-Mart proposed to replace …
A court of appeal today rejected a CEQA challenge to an air pollution control district’s published thresholds of significance for air pollution impacts. California Building Industry Association v Bay Area Air Quality Management District, No. 135335 (First District, July 13, 2013).
The thresholds, contained in the District’s “CEQA Air Quality Guidelines,” were first…
A 30-day limitations period for a challenge to a project that is exempted from CEQA by Government Code section 65457 applies rather than the 35-day limitations period that ordinarily applies after a notice of exemption is filed, according to the court in May v. City of Milpitas, No. H038338 (Sixth District, July 16, 2013).…
The Sixth District Court of Appeal has given a boost to utility-scale solar projects by rejecting the types of Williamson Act and CEQA challenges that are often brought against those projects. Save Panoche Valley v. San Benito County, No. HO37599 (6th Dist. June 25, 2013).
The case concerns the Panoche Valley Solar Farm, a solar photovoltaic facility in San Benito County. The project site has been used primarily for cattle grazing, and most of it was under Williamson Act contracts. The county approved a reduced-scale 399-MW alternative designed to mitigate the environmental impacts of the project as proposed. Not satisfied, three local groups — Save Panoche Valley, the Audubon Society and the Sierra Club — sued to challenge the approvals. The court of appeal rejected each of their claims.
Need For Renewable Energy Supported Cancellation Of Williamson Act Contract In The Public Interest.
The Williamson Act was designed to protect farmers from the economic pressures of encroaching development. In exchange for entering into a contract with the city or county restricting the property to agricultural uses, the landowner is taxed on the agricultural value of the land, rather than the fair market value (which often accounts for development potential). A contract must have an initial term of ten years, and an additional year is automatically added every year unless one of the parties gives notice the contract will not be renewed.
Contracts may also be cancelled at any time, provided either the cancellation is consistent with the purposes of the Williamson Act or the cancellation is in the public interest. The county cancelled the Panoche Valley contracts on public interest grounds. A public interest cancellation requires two separate findings: (1) other public concerns substantially outweigh the objectives of the Williamson Act and (2) there is no proximate noncontracted land that is available and suitable for the proposed use, or development of the contracted land would provide more contiguous patters of urban development.
Citing the Global Warming Solutions Act of 2006 and the Renewables Portfolio Standard requirements enacted by the State Legislature, the court had little trouble concluding the county’s finding that the public interest in renewable energy outweighed the purpose of the Williamson Act was supported by substantial evidence. “Though completion of the solar project by itself will not fulfill the state’s renewable energy goals, each additional renewable energy project helps the state advance toward meeting the requirements of the RPS.”
The court then addressed the county’s finding there was no proximate noncontracted land suitable for the proposed use and again found substantial evidence supporting the county’s determination. It noted that “proximate” land under the Williamson Act means “property close enough to the restricted parcel to serve as a practical alternative for the proposed use.” The court rejected the opponents’ claim that another potential solar project site was a proximate alternative. There was evidence before the county showing the alternative was located approximately 60 miles away, in two different counties, was itself encumbered by Williamson Act contracts, and did not appear to be available in any event.