Welcome to Abbott & Kindermann’s 2022 2nd Quarter cumulative CEQA update. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.


To read the 2021 cumulative CEQA review, click here: https://blog.aklandlaw.com/2022/01/articles/ceqa/2021-ceqa-4th-quarter-review/


There are no CEQA cases pending at the California Supreme Court.


Lead Agency/Responsible Agency

We Advocate Thorough Environmental Review v. City of Mount Shasta (2022) 78 Cal.App.5th 629.

Petitioners challenged the City’s approval of a wastewater permit in its review of an environmental impact report (“EIR”) for a water bottling plant in its role as a responsible agency. The lead agency for the water bottling plant and its accompanying EIR was the County of Siskiyou. The City, as the responsible agency, had reviewed the EIR and in support of its approval of the permit found that there were “no unmitigated adverse environmental impacts relating to the alternative waste discharge disposal methods.” No other findings were adopted. The Third District Court of Appeal held this was in error. It reasoned that even though responsible agencies “generally consider only the effects of those parts of the project that they decide to carry out or approve,” responsible agencies are still required to adopt all necessary findings as to significant effects associated with the agency’s permit that are identified in a certified EIR pursuant to Public Resources Code section 21081, include a “brief explanation” of the rationale for that finding. Thus, it reasoned, because the EIR identified several potentially significant impacts associated with the discharge of wastewater into the City’s sewer system, the findings are required.

Environmental Impact Reports

We Advocate Thorough Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683.

Petitioners challenged the County’s approval of the revival of a non-operational water bottling plant for beverage production, arguing the County violated CEQA by (i) providing an inaccurate project description, (ii) relying on impermissible narrow project objectives, (iii) improperly evaluated several project impacts, and (iv) approved a project inconsistent with the County’s general plan. The trial court rejected all of Petitioners claims and Petitioners appealed. The Third District Court of Appeal reversed in part.

In the published portion of the decision, the appellate court held that (1) the project objectives were impermissibly narrow, and (2) recirculation was required as the disclosure in the Final EIR that the Project would generate a substantial increase in greenhouse gas emissions (“GHGs”) from what was disclosed in the DEIR, even where the DEIR had already found the impact to be significant and unavoidable. Regarding the project objectives, the appellate court reasoned that the project objectives were defined in a manner that precluded any alternatives but the proposed project. It noted that objectives such as siting “the proposed facility at the Plant . . . to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property,” and “utiliz[ing] the full production capacity of the existing plant based on its current size,” rendered the alternatives section of the EIR an “empty formality.” As for the GHG analysis, the appellate court held that the increase in GHGs from 35,486 metric tons per year in the DEIR to 61,281 metric tons in the FEIR necessitated recirculation. It reasoned that even though the GHG increase from the DEIR to the FEIR did not lead to a change in the ultimate conclusions, the failure to recirculate “wrongly deprived the public of a meaningful opportunity to comment on a project’s substantial environmental impacts.”

Tiburon Open Space Committee v. County of Marin (2022) 78 Cal.App.5th 700.

The First District Court of Appeal affirmed the trial court’s ruling that Marin County (the “County”) did not violate the California Environmental Quality Act (“CEQA’) when it approved a decades-old mountaintop residential development proposal in accordance with two federal court judgments and after completing environmental review. It held that CEQA is flexible and can be adjustable based on any legal limitations placed on an agency’s discretionary authority.

The Project and First Lawsuit

The Martha Company (“Martha”) owns 110 acres overlooking the San Francisco Bay near the town of Tiburon. In 1974, the County adopted a rezoning measure that reduced how many residences Martha could build on its property. The action also precluded Martha from constructing homes on an area known as the “Ridge and Upland Greenbelt.” Martha sued the County, alleging the rezoning constituted a regulatory taking.

The litigation resulted in a stipulated judgment in 1976. The judgment allowed Martha to develop no fewer than 43 residences on lots spanning at minimum a half-acre. The judgment also allowed for some of the homesites to be located on Ridge and Upland Greenbelt. In return, Martha agreed to dedicate 50% of its land to the County as open space and to allow the County to develop hiking trails there. A 1976 letter from the county counsel commenting on the stipulated judgment said the project must still meet “procedural and hearing requirements,” including the preparation of an environmental impact report (“EIR”).

Second Lawsuit

For years the County refused to approve the project. The County sued Martha in 2005 in U.S. District Court to declare the 1976 judgment void, alleging the County “illegally contracted away its police powers over its statutory land use authority when it entered into the judgment.” The district court dismissed the County’s complaint, leading to a second stipulated judgment in 2007. The second judgment required the County to abide by the terms of the 1976 agreement. That judgment explicitly mandated the preparation of an EIR.

Third Lawsuit

Martha filed its most recent development application with the County in 2008. The draft EIR, prepared in 2011, analyzed project impacts, mitigation measures, and four alternatives. The parties debated the scope of the proposal for nearly seven years, resulting in Martha eventually agreed to reduce the scope of the project area from 64 acres to 32 acres, and to dedicate 71% of the parcel as public open space. The County certified the EIR and conditionally approved a master plan in 2017, concluding Martha sufficiently addressed unavoidable significant impacts via proposed conditions and mitigation measures. The conditional approval included a statement of overriding considerations addressing significant and unavoidable impacts. Following the approval, the Tiburon Open Space Committee (the “Committee”) filed a petition for a writ of mandate against the County, challenging the EIR on several grounds. The Committee further alleged the environmental review process was flawed in that the County had already predetermined that it would approve the project, thinking it had to due to the 1976 and 2007 stipulated judgments. The Committee contended the County agreements constituted an illegal contracting away of the County’s police power. The Town of Tiburon (“Town”) joined the action after filing a petition in intervention. The trial court ruled in favor of the County. The Committee and Town (collectively, “Petitioners”) appealed. The First District Court of Appeal addressed several issues, including:

  • The Stipulated Judgments Did Not Constitute an Abdication of CEQA by County

Petitioners alleged the 1976 and 2007 stipulated judgments constituted illegal agreements by which the County agreed to avoid CEQA in order to approve the project. By this logic, Petitioners accused the County of engaging in a “truncated version of CEQA, one that had a preordained conclusion.” Additionally, Petitioners contended the County relied on these illegal agreements in refusing to require Martha to adopt an alternative that included a smaller footprint than was analyzed in the EIR.

The First District Court of Appeal rejected the claims. It noted that the County certified an 850-page EIR, and that a lengthy, six-year administrative process preceded the EIR’s adoption. The appellate court reasoned that CEQA is flexible in that it “recognizes that the scope of environmental review must be commensurate with an agency’s retained discretionary authority, including any limitations imposed by legal obligations.”

  • Rejection of Alternatives

Petitioners accused the County of abusing its discretion by rejecting a less-dense, 32-unit alternative analyzed within the EIR and by deciding to limit the alternatives to the four it analyzed. CEQA generally bars lead agencies from approving projects that may cause significant environmental impacts if there exist feasible alternatives that could substantially lessen those impacts. The appellate court reasoned that the term “feasible” is a “flexible concept that can outrank and overpower what might otherwise qualify as alternatives to the proposed project.” The court concluded that because the County was legally bound to approve 43 units pursuant to the stipulated judgments, that any alternative comprising fewer units would be “legally infeasible.”

  • Traffic Safety

The Town specifically objected to the EIR’s determination that the project’s impacts on traffic safety in neighborhoods in the Town of Tiburon could be mitigated to a less-than-significant level by adopting certain mitigation measures. The EIR suggested the Town prohibit people from parking dumpsters on certain roads in order to mitigate increases in residential traffic and emergency vehicles due to the project. The appellate court found the County made a good faith attempt to reduce the anticipated impacts with a “reasonable plan for mitigation” (quoting City of Marina v. the Board of Trustees of California State University (2006) 39 Cal.4th 341, 365).

  • Traffic Analysis

The Committee contended that substantial evidence did not support the EIR’s traffic study given the failure to study peak hour traffic including the “school rush.” The Committee argued a new traffic analysis should be conducted that included broader time periods. The appellate court rejected the argument, reasoning that lead agencies need not conduct every test imaginable to analyze a possible impact. Agencies must only make a good effort at full disclosure. Thus, the appellate court concluded the County did not abuse its discretion by not requiring traffic impacts to be measured during the mid-afternoon school rush.

  • California Red-Legged Frog

The Town alleged the project threatened the survival of California Red Legged Frogs; many lived east of the project site in a freshwater pond. The EIR found the project would result in significant impacts to the frog – the pond would suffer decreased water quality and water flow patterns. The County’s EIR included five mitigation measures to reduce the impacts to the protected frog. However, a portion of the County’s mitigation plan involved participation by a neighbor, and that neighbor refused to participate. The Court found the County made a reasonable plan for mitigation, which was comprehensive and should not be faulted due to the neighbor’s non-cooperation.

  • Water Tank and Fire Flow Mitigation

The EIR found that existing water storage facilities could not provide all homes with standard water pressures required for domestic water service, constituting a significant impact. To mitigate the impact, Martha agreed to construct a new 180,000-gallon water supply tank on one of those sites which would satisfy the water needs of the new development. The Committee contended the plan was inadequate. The EIR also concluded that, as designed, the project would not provide for adequate firefighting water flow. The EIR implemented several mitigation measures: (i) Receive approval for reduced fire flow requirements as permitted by the Fire Code, (ii) reduce the size of the homes to compensate for the flow requirements, and (iii) upgrade existing water lines. The EIR found the mitigation measures would reduce the project’s fire flow impacts to a less-than-significant level. The Committee challenged the above collection of mitigation measures. The appellate court concluded the Committee’s allegations were without merit because the County instituted a reasonable plan comprised of mitigation measures and a monitoring program.

  • Temporary construction of on-site road

The Committee challenged Martha’s construction and use of a private road to be used for construction purposes. The road was not proposed to be open to the public. The Committee contended the final EIR inadequately analyzed safety risks to construction workers who were slated to use the road. Despite finding that the EIR analyzed such impacts, the appellate court held the County did not have to because CEQA does not “regulate environmental changes that do not affect the public at large.” (quoting Parker Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 782). Thus, it concluded that the County should not be penalized for going above and beyond CEQA’s requirements.

Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092.

Petitioners challenged the City’s approval of an environmental impact report (“EIR”) for a residential development located in the last remaining undeveloped area of the City known as the Garaventa Hills. The Project was originally submitted in 2011 and subsequently reduced in size through successive iterations to overcome public opposition until it was finally approved in 2019. The Project is located adjacent to a wetland preserve which provides habitat for special status species. Petitioners argued that the EIR was inadequate, having failed to adequately consider certain significant impacts, investigate and evaluate the no-project alternative, or fully mitigate those impacts. The trial agreed the no-project analysis was inadequate, but held that Petitioners had failed to exhaust administrative remedies and denied the petition. Petitioners appealed. The First District Court of Appeal reversed.

First, the appellate court addressed exhaustion. It held that Petitioners had exhausted its claims as to the no-project alternative. The court reasoned that even though the comments did not specifically refer to the EIR’s no-project alternative, the City was “fairly apprised” of Petitioners’ claim because they had expressed concerns about the destruction of habitat and supported keeping the project site in its present condition rather than approve the project. The court also noted that though the City Council had an interest in exploring a feasible acquisition/preservation option, it was advised not to consider the no-project alternative by the City Attorney due to takings liability concerns.

Second, the appellate court considered Petitioners’ claims on the merits. As for the No-Project Alternative, the Court held that the re-issued FEIR lacked critical information to support informed decisionmaking, because it failed to consider the availability of funding to permanently conserve the project site, instead the EIR improperly dismissed the no-project alternative as “not reasonably foreseeable” because it was already zoned for residential development, which the court noted was always subject to change. Petitioners also argued that the proposed compensatory mitigation site for impacts to wetlands habitat was inadequate, because the area was already protected under the City’s general plan. The appellate court was unpersuaded. It reasoned that the mitigation requirement would create a permanent easement, something the general plan does not provide, and required a replacement site should the selected location be found inadequate for the identified species.

Southwest Regional Council of Carpenters v. City of Los Angeles (2022) 76 Cal.App.5th 1154.

In Southwest Regional Council of Carpenters v. City of Los Angeles, the Second District Court of Appeal reversed the trial court decision and held that the environmental impact report (“EIR”) for a mixed-use commercial and residential project did not violate CEQA. The project had a somewhat complex history, with a Draft EIR, a Recirculated Draft EIR, and a Final EIR, each which introduced additional alternative iterations of the project, as well as a newly recommended revised project (“Revised Project”) introduced after the Final EIR was released. But unlike the leading cases that have found an unstable project description, here the appellate court keyed in on one simple, important fact: “The project, from inception through approval, was a mixed-use commercial/residential development project on a defined project site. The only changes involved the composition and ratio of the residential to commercial footprint, but the proposals demonstrate that the overall size of the project remained consistent, and the site remained the same.”

Importantly, even the newly recommended, Revised Project represented a slightly smaller version of Alternative 5 where the number of residential units was reduced from 675 to 623 and the amount of commercial use remained unchanged at 60,000 square feet. The appellate court also noted that the various project alternatives were the result of the CEQA process “which resulted in revision to the original Project based on public comments received.” As for the Revised Project triggering recirculation claim, the appellate court relied on the limited scope of new information that triggers recirculation identified in CEQA Guidelines section 15088.5 to conclude that no recirculation was required. It reasoned that because the Revised Project was a reduced version of Alternative 5, it “was not ‘considerably different from other alternatives previously analyzed’ in the DEIR.” It further noted that even if recirculation should have occurred, neither Petitioners or the public were prejudiced because they “had five months and multiple public comments public hearings to comment on the Revised Project.”

Buena Vista Water Storage Dist. v. Kern Water Bank Authority (2022) 76 Cal.App.5th 576.

A senior water rights holder on the Kern River (“Petitioner”) challenged the certification of an environmental impact report (“EIR”) by the Kern Water Bank Authority (the “Authority”) in support of a water supply reliability project using existing infrastructure for its water rights permit application for a new appropriative right to divert and store 500,000 acre-feet per year from the Kern River. Until 2010, the Kern River was considered fully appropriated, but the State Water Board removed the designation when it determined that in certain wet years there are excess flood flows that remain in the Kern River. Petitioner argued the Authority had failed to comply with CEQA, because the EIR (i) did not include an accurate, stable and finite project description, and (ii) the failure to quantify existing water rights rendered the water supply impacts analysis inadequate. The trial court ruled in favor of Petitioner and the Authority appealed. The Second District Court of Appeal reversed.

As for the project description claims, the appellate court held that the project description was adequately finite and stable. It first rejected Petitioner’s argument that the EIR was internally inconsistent because it used several different phrases to describe the hydrologic conditions under which diversions would occur. The appellate court reasoned that the phrasing, including the descriptions of “flood flows,” water the Authority “has historically received,” and “unappropriated water” is consistent, and the use of the proposed 500,000 acre-feet per year “limit” was consistent with CEQA’s flexibility to allow for project fluctuations due to changing conditions that are subject to maximum limit. The appellate court also held that the Authority was not required to quantify the amounts, diversion measurements, or water used by existing Kern River water rights holders. It reasoned that because the project proponent sought the use of unappropriated surface waters, CEQA does not require that proponent to inventory existing appropriated water rights in the water source, particularly so here because it noted that there had never been a quantified stream-wide adjudication of the Kern River.

As for the evaluation of impacts on water supply, the appellate court held that the EIR’s conclusions were supported by substantial evidence. It reasoned that because the EIR relied on historical measurements of actual diversions as the baseline to conclude that project water would be available about eighteen percent of the time, the impact evaluation and conclusions were supported by substantial evidence. The appellate court also rejected claims that the EIR failed to adequately evaluate impacts associated with groundwater storage and recovery related activities of the project. It reasoned that the EIR’s less-than-significant impact conclusion was supported by substantial evidence because the withdrawals in dry years were compared to baseline conditions and were expressly limited to the amount of water diverted and banked in wet years where the surplus water was available.

League to Save Lake Tahoe v. County of Placer (2022) 75 Cal.App.5th 63.

Petitioners filed suit to challenge the County of Placer’s approval of a specific plan involving nearly 7,500 acres of undeveloped forest land in the Lake Tahoe Basin. Specifically, the project proposed to effectively transfer developments from most of the property to concentrate development of 760 residential units and 6.6 acres of commercial uses on 775 acres, while permanently preserving the remaining acreage as open space and conservation. The lengthy and complex decision measuring 123 pages in length involve several significant issues, but this writing focuses on its discussion on some of the noteworthy issues the court considered in its review of the adequacy of the EIR’s wildfire impact analysis.

Petitioners argued the County failed to: (1) adequately address the project’s impacts on emergency response and evacuation plans, and (2) support its conclusion that the impact would be less than significant. They claimed that the County’s reliance on a traffic modeling study to evaluate cumulative impacts on emergency evacuation planning routes was insufficient, because: (i) it should have considered additional foreseeable scenarios that would impact the ability of the public to evacuate, and (ii) the County’s evacuation route impact conclusion was inconsistent with its traffic impacts conclusions. Petitioners also argued the County’s reliance on only two emergency access roads failed to lessen the project’s impact because they both simply funneled the vehicles to route 267.

The appellate court rejected petitioners’ claims and held for the County. On the traffic modeling study, it reasoned that the County’s choices to model an evacuation during the peak summer season, assume that certain intersection improvements on route 267 would be implemented, but a planned widening project (2 lanes to 4 lanes) would not, were entitled to deference to the County’s discretion to determine its methodologies for analyzing the impact and the reasonableness of the methodologies the County used. The appellate court also upheld the County’s decision not to consider two specific situations included in a comment on the EIR: (i) a family van towing a boat trailer that tips over and blocks the evacuation route, and (ii) someone at the end of a queue responding to embers and smoke drifting across the road. It reasoned that CEQA does not require agencies to evaluate speculative impacts, nor does it require such analyses to be exhaustive. As for the purportedly inconsistent impact conclusions, the appellate court held that the conclusions were not necessarily inconsistent when considered in context. It reasoned that “an agency might find time the sole relevant consideration when evaluating impacts to traffic conditions, but then find public safety the guiding criterion when evaluating impacts to emergency evacuation plans.” The appellate court last rejected Petitioners’ claimed deficiencies of the emergency access roads, noting that “without knowing how the authorities will direct the use of route 267 and the project’s roads in an actual evacuation, it would be speculative to conclude that, just because all roads lead to route 267, the impact is significant as a result.”

Save the El Dorado Canal v. El Dorado Irrigation District (2022) 75 Cal.App.5th 239.

Petitioner filed a petition for writ of mandate challenging El Dorado Irrigation District’s (“EID”) decision to certify an environmental impact report (“EIR”) and undertake its Upper Main Ditch piping project. The project would replace approximately three miles of an unlined ditch system with a buried water pipeline to conserve water and improve water quality. EID had originally considered placing the new pipe system under the existing ditch system, but later selected an alternative alignment, the “Blair Road” alternative which was approximately 3,100 feet shorter than the original alignment. Petitioner alleged that the EIR’s project description was inadequate because it failed to identify the to-be-abandoned ditch section also served as the watershed’s drainage system. Petitioner also identified infirmities in the EIR as to the project’s impacts on hydrology, biological resources and wildfires. The trial court rejected each of Petitioner’s claims and Petitioner appealed. The Third District Court of Appeal affirmed.

The appellate court rejected Petitioner’s claims that the project description failed to acknowledge the role of the ditch in the area watershed. It noted that the project description disclosed that: (1) the ditch section passively intercepts and conveys stormwater, (2) the ditch section can accommodate 10-year design stormflows before proceeding to the American River’s South Fork, and (3) a remnant channel will remain in place to receive and convey stormwater flows at its current capacity. The appellate court further noted that despite Petitioner’s claims to the contrary, CEQA does not require the EIR to specifically state that the ditch is “the watershed’s only drainage system,” only “adequacy, completeness, and a good faith effort at full disclosure.”

Regarding the specific impact analyses, the appellate court also rejected Petitioner’s claims, finding the EIR’s conclusions were supported by substantial evidence. On hydrology, Petitioner claimed that EID’s abandonment of maintenance responsibilities of the abandoned ditch would lead to flooding impacts because it was foreseeable that the ditch would be clogged from vegetation and debris from adjoining landowners. The appellate court sided with EID, agreeing that Petitioner’s claims were speculative. On biological resources, the appellate court found substantial evidence supported EID’s analysis that the Blair Road alignment would result in fewer impacts than Petitioner’s preferred alignment because it removed fewer trees, affected no riparian areas, and similarly avoided or minimized impacts to oak trees. As for wildfire impacts, the appellate court held that EID adequately demonstrated that the ditch was neither identified as in fire protection plans or even used as a source of water or other fire-fighting resource.

Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985.

Petitioners challenged the City of Santa Cruz’s adoption of an environmental impact report (“EIR”) in support of its approval of a general plan amendment, rezone, and planned development permit (“PDP”) for a 32-unit residential project. The developer initially applied for a 40-unit residential project in 2010. In 2016, an initial study was prepared identifying two potentially significant biological impacts, which were reduced to a less-than-significant level with mitigation. The City next released a Draft EIR and included the initial study as an appendix, and later issued a partially recirculated Draft EIR in response to public comments on traffic and transportation impacts. The City ultimately approved Alternative 3, which reduced the number of residential units from 40 to 32. The trial court rejected Petitioners’ CEQA claims, while also finding the City erred as to a separate planning and zoning law claim. Petitioners appealed as to the CEQA claims and the City cross-appealed on the planning and zoning law claim. The Fourth District Court of Appeal found in favor of the City as to all of Petitioners’ claims. Each of the issues are discussed below:

  • Biological Resources

Petitioners argued the EIR was deficient because the impact analyses and proposed mitigation measures were located in the Initial Study, rather than the body of the EIR. The appellate court reasoned that Petitioners’ position would “elevate form over substance” and held that the Initial Study’s inclusion as an appendix was sufficient to conclude the EIR was an adequate informational document. The appellate court also rejected Petitioners claim that the discussion on impacts to protected bird species in the Initial Study was inadequate because it failed to analyze potential impacts to specific impacts to individual bird species, finding the discussion sufficient under CEQA. Finally, Petitioners claimed that the City violated CEQA because mitigation measures may only be discussed as part of the Final EIR, pursuant to Salmon Protection & Watershed Network v. City of Marin (2004) 125 Cal.App.4th 1098, and in any event as drafted the mitigation’s reliance on pre-construction surveys were impermissible deferred mitigation. The appellate court rejected both claims, finding that: (1) Salmon Protection & Watershed Network involved the use of mitigation measures to justify the exemption; (2) here, the mitigation measures were added to the Mitigation Monitoring and Reporting Program adopted by the City; and (3) though the Petitioners had failed to exhaust administrative remedies on this issue, the pre-construction survey mitigation measures included the necessary specificity and are sufficiently detailed and certain as to what must occur as based on the findings of the required surveys.

  • Project Objectives

Petitioners next argued that the EIR’s project objectives, including objectives that “target 40 units” were impermissibly narrow and precluded serious consideration of smaller projects. The appellate court first noted that Petitioners had failed to challenge the range of alternatives proposed in the EIR. It then reasoned that the City’s ultimate selection of a reduced-size alternative demonstrated that the City actually did consider smaller projects. The appellate also rejected Petitioners’ claim that the project failed to meet the stated objectives furthering affordable housing and housing for people with disabilities, reasoning that the project exceeded the City’s affordable housing requirements and included some accessible dwelling units.

  • Cumulative Impacts

Petitioners challenged the Project’s cumulative impacts on water supply and traffic impacts as inadequate. As to the traffic analyses, the appellate court quickly dismissed the issue noting the regulatory changes to the CEQA Guidelines that no longer require a Level of Service analysis. As to water supply impacts, the appellate court rejected Petitioners’ claim that the analysis failed to account for water supply impacts in light of other projects and the Project’s additional contribution to the existing shortfall. It noted that the claims lacked merit, because the City’s water management plan already included the Project and its contributions which was used to support the EIR’s analysis.

Subsequent Review

Citizens’ Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460.

Appellants challenged respondent’s approval of a 469-unit housing development project adjacent to wetlands within the San Francisco Bay. Appellants contended the city violated the California Environmental Quality Act (“CEQA”) by failing to conduct further environmental review into the project and instead relying on a Recirculated Environmental Impact Report (“REIR”) that supported the City’s prior approval of a specific plan for the project area. The specific plan had originally authorized the construction of 1,260 units, along with a golf course and related facilities. The final development agreement called for only 469 units and no golf course.

The First District Court of Appeal upheld the trial court’s denial of appellant’s writ of mandate under CEQA. It reasoned that the proposed project fell within the scope of the specific plan in question, and thus, was exempt from further environmental review under Government Code section 65457. Additionally, the appellate court found the City’s conclusion that the proposed project contained no project changes, changed circumstances, or new information that would have required additional analysis pursuant to Government Code section 21166, and was supported by substantial evidence, including supporting materials such as plans, letters, expert memos, and technical reports.

CEQA Litigation

Dept. of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556.

The Court of Appeal reversed a trial court decision that barred several municipal entities who challenged an Environmental Impact Report (“EIR”) from collecting attorney’s fees from a state agency, holding the lower court abused its discretion. Various cities, counties, and regional water agencies (“Plaintiffs”) filed lawsuits against the California Department of Water Resources (“DWR”). The suits challenged the EIR and project approval of the WaterFix proposal, which sought to construct two 35-mile-long tunnels to transport fresh water from the Sacramento River to pumping stations in the southern Sacramento-San Joaquin Delta. In 2019, following his election, Governor Gavin Newsom directed the DWR to alter the WaterFix proposal from two tunnels to one. DWR subsequently decertified the EIR, causing all pending lawsuits to be dismissed. Plaintiffs filed motions for attorney’s fees pursuant to Civil Code section 1021.5 under the “catalyst theory,” contending Plaintiffs were “successful” because the litigation motivated DWR to voluntarily provide relief sought by the Plaintiffs.

The trial court denied the motions, concluding the lawsuits did not cause DWR to provide the relief. It ruled the decision was instead based on “external” causes, including the governor’s newfound goal of constructing a single tunnel, making WaterFix obsolete. Plaintiffs appealed. The Third District Court of Appeal held the trial court erred when it treated the Governor’s change in policy as an intervening cause that was separate from the litigation. The appellate court reasoned that the trial court failed to consider all relevant evidence before it. The case was remanded back to the trial court to consider evidence that the litigation could have influenced the Governor’s policy.

Committee for Sound Water & Land Development v. City of Seaside (2022) 79 Cal.App.5th 389.

The Court of Appeal affirmed the trial court’s ruling that a petition for writ of mandate filed under the California Environmental Quality Act (“CEQA”) was time-barred because it was not filed within the tolled statute of limitations temporarily enacted due to the COVID-19 pandemic. The lawsuit centered around the certification of an environmental impact report (“EIR”) by the City of Seaside (the “City”) for a specific plan containing a proposal to redevelop part of the site of the former Ford Ord military base in Monterey County into a mixed-use project. The Seaside City Council certified the EIR on March 5, 2020, and filed a Notice of Determination the next day.

The Committee for Sound Water & Land Development (“Committee”) filed its first writ petition on April 6, 2020. Committee subsequently filed a request for dismissal without prejudice, which was granted on August 4, 2020. Committee filed a second writ petition on September 1, 2020, that included eleven causes of action under CEQA and contending, among other things, that the EIR was deficient in its analysis of the project’s environmental impacts. Both the City and the real party-in-interest filed demurrers. The real party’s demurrer, which represents the central CEQA issue in this case, alleged the causes of action contained within the writ petition were time-barred pursuant to an emergency rule adopted by the Judicial Council that tolled the 30-day statute of limitations to August 3, 2020, nearly a month before the second writ was filed. Meanwhile, the City alleged that the Committee’s second writ petition constituted a sham pleading and should be dismissed due to the defense of laches. The City alleged that the second pleading constituted a method of circumventing procedural deficiencies within the first writ petition, because Petitioners had failed to request a hearing on the writ petition within 90 days of filing the petition as required by Public Resources Code section 21167.4, subdivision (a). The trial court sustained both demurrers without leave to amend. Committee appealed.

Typically, petitioners have 30 days to file a petition challenging the adequacy of the environmental review contained within an EIR. (Pub. Res. Code §21167(c).) However, Governor Gavin Newsom declared a state of emergency on March 4, 2020, due to the pandemic. On April 6, 2020, the Judicial Council issued its first iteration of Emergency rule 9, which tolled all civil statutes of limitation until 90 days after the governor lifted the state of emergency. The Judicial Council received numerous comments concerning the indefiniteness of the new rule and thereafter amended the rule to toll statutes of limitation under 180 days from April 6, 2020, to a fixed date of August 3, 2020. On appeal, Committee argued the amended Emergency rule 9 was “unreasonable and arbitrary,” constituting an “improper ex post facto law that cut off the Committee’s access to courts.” Committee also accused the Judicial Council of being “improperly influenced by lobbyists.” The Sixth District Court of Appeals upheld the trial court’s decision, reasoning that the effect of the revised Emergency rule 9 effectively tripled the time period for filing suit against the project from 30 days to 90 days, representing a reasonable time to file a writ petition.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

William Abbott

William W. Abbott is Of Counsel in Abbott & Kindermann, Inc., a Sacramento-based law firm focusing on land use issues.  Mr. Abbott’s clients include public agencies, private developers, and property owners concerned with real estate development throughout California.  A long time instructor in…

William W. Abbott is Of Counsel in Abbott & Kindermann, Inc., a Sacramento-based law firm focusing on land use issues.  Mr. Abbott’s clients include public agencies, private developers, and property owners concerned with real estate development throughout California.  A long time instructor in land use law, Mr. Abbott also serves as an expert witness on California land use proceedings in state and federal court.

Mr. Abbott has also participated in numerous training programs for local planning departments, County Supervisors Association of California, League of California Cities, and the County Planning Directors’ Association.