Welcome to Abbott & Kindermann’s 2022 4th Quarter cumulative CEQA update. This summary provides more in-depth case write-ups on the firm’s blog.

Over 40-years old, CEQA requires lead agencies to prepare environmental documents prior to granting discretionary approvals.  CEQA documents are subject to numerous court decisions applying case law and the CEQA Guidelines.  (Pub. Res. Code, §§ 21000, et seq.; CEQA Guidelines, Cal. Code Regs., tit. 14, § 15000, et seq.)

Substantive mandate:  Public agencies should not approve projects that will significantly affect the environment if there are feasible alternatives or mitigation measures that can substantially lessen or avoid those effects.  (Pub. Res. Code, § 21002.)


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


I. Exemptions

County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612

The California Supreme Court held that the California Environmental Quality Act (“CEQA”) is partially preempted by the Federal Power Act (“FPA”), reversing in part a Court of Appeal ruling that CEQA is fully preempted.  The court held the FPA preempts CEQA only when CEQA interferes with the FPA’s exclusive licensing process.  The FPA, meanwhile, does not preempt CEQA when it is used to make decisions concerning issues outside federal jurisdiction or those that are compatible with the federal government’s exclusive licensing authority.

The California Department of Water Resources (“DWR”) sought to renew its license to operate the Oroville Dam and related facilities (“Oroville Facilities”) in Butte County.  The FPA requires entities seeking to operate a dam, reservoir, or hydroelectric power plant in the United States to secure licensure from the Federal Energy Regulatory Commission (“FERC”).  As part of the renewal process, DWR engaged in FERC-regulated negotiations with stakeholders, culminating in a settlement agreement signed by more than 50 parties.  Butte and Plumas counties participated in the negotiations but did not sign the settlement agreement.  DWR subsequently submitted the settlement agreement and licensing application to FERC.  To satisfy the National Environmental Policy Act (“NEPA”), FERC was required to prepare an Environmental Impact Statement (“EIS”).  The EIS analyzed three alternatives, including a staff alternative, which assumed the Oroville Facilities would operate under the terms of the settlement agreement plus additional modifications proposed by staff.  The EIS declared the staff alternative was the preferred alternative.  DWR, meanwhile, prepared an Environmental Impact Report (“EIR”) pursuant to CEQA that analyzed the same three alternatives analyzed by FERC in its EIS.  DWR prepared the EIS as part of the process of satisfying the Federal Clean Water Act (“CWA”), which requires applicants for federal licenses involving activities that may result in discharges into navigable waters to obtain certification from state agencies that the discharge will comply with both state and federal water quality laws.  The EIR included mitigation measures that addressed the project’s impact on wildlife, air quality, and other environmental impacts.

Butte and Plumas counties (“Plaintiffs”) filed separate writ petitions challenging the sufficiency of the EIR.  The cases were later consolidated.  The trial court held the EIR was sufficient.  The Court of Appeal held the counties’ challenges were preempted by the FPA and declined to reach the merits of the case.  On appeal before the California Supreme Court the first time, the court remanded the case back to the Court of Appeal for the court to reconsider the case in light of Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, which held that the federal Interstate Commerce Commission Termination Act (“ICCTA”) does not preempt CEQA for a new railroad project, and that the State of California, as the railroad operator, could opt to subject itself to CEQA review without conflicting with the ICCTA.  The Third District came to the same conclusion on review.  On review for the second time, the primary issue before the Supreme Court was whether the FPA preempts the application of CEQA when the state acts on its own behalf in exercising its discretion in pursing relicensing of a hydroelectric dam.

In analyzing the issue of full preemption, a divided Supreme Court grappled with federal case law that interpreted the FPA to preempt state regulations governing private entities engaging in activities related to hydroelectric facilities.  The majority distinguished that case law, holding it did not consider whether Congress intended to occupy the field to the extent of precluding a state from exercising authority over its own subdivision’s license application.  The court concluded that the FPA preempted the counties’ ability to challenge the sufficiency of the settlement agreement, reasoning that to hold otherwise would pose an obstacle to FERC’s congressionally granted exclusive authority on those matters.  The court, meanwhile, held CEQA is not preempted by the FPA when parties challenge the sufficiency of an EIR, reasoning that DWR could use the environmental conclusions reached through the CEQA process to aid in its decision whether to accept FERC’s staff alternative or request modification to the terms of the license issued by FERC, which the FPA allows.  The court noted that CEQA, in the context of a state entity applying for a federal license, constitutes “self-governance” rather than traditional state regulation of private actors that has been held preempted in previous cases.

Save Downtown Livermore v. City of Livermore (Cal.App., Dec. 28, 2022, case no. A164987) 2022 Cal.App. LEXIS 1091, 2022 WL 18460890

Both the trial court and the First District Court of Appeal rejected a challenge to an affordable housing project submitted in the City of Livermore.  The project was found by the City to be exempt from CEQA based upon on an existing specific plan.  The original specific plan EIR was certified in 2004, followed by a Subsequent EIR adopted in 2009 in conjunction with an increase in allowable density within the specific plan.  (Govt. Code section 65457; CEQA Guidelines section 15182.)

During the trial court litigation, the developer moved to require the petitioner to post a bond in the amount of $500,000 to cover the potential damages to the developer as a result of delay due to unsuccessful litigation.  On the merits, the trial court denied the petition for writ of mandate.

The appellate court first addressed the consistency issue, affirming the deferential standard of review to be applied by a court when considering an inconsistency claim.  While an opponent can always find some aspect of inconsistency to argue over, as a general rule, an appellate looks to apply a test of overall consistency.  As part of this analysis, the appellate court also noted the limitations on denials under the Housing Accountability Act. (Government Code section 65589.5.)  The appellate court acknowledged the staff report which explained the basis for finding consistency (illustrating once again the value of thoughtful staff reports in successful land use litigation.)  Having established the deferential review, the court then considered and rejected the arguments concerning siting, orientation, massing, window design, and open space.

Regarding the CEQA exemption pursuant to specific plan, the appellate court addressed the 2020 analysis regarding onsite contamination and remediation requirements.  The court found that there as a consideration of contamination issues in the 2009 subsequent EIR sufficiently covered this issue, and the 2020 studies did not constitute new information.

Finally, the appellate court affirmed the trial court’s decision to require that a bond be posted pursuant to Code of Civil Procedure section 529.2.  This statute can be involved for certain qualifying low and moderate-income projects.  Requiring a bond is not automatic.  It requires the trial court to make certain determinations including the impact on the petitioners’ ability to pay, whether the litigation intended to delay the project, and the impact of the litigation on the developer.  An appellate court does not independently review the evidence but is deferential to the trial court.  Notably, the appellate court agreed with the trial court that “this is not a close case,” supporting the trial court conclusion that the purpose of the litigation was delay.  Reviewing all of the evidence, the appellate court concluded that the trial court had not abused its discretion in requiring a bond.

County of Mono v. City of Los Angeles (2022) 81 Cal.App.5th 657

In 2010, the City of Los Angeles, the Los Angeles Department of Water and Power (“LADWP”), and Los Angeles Department of Water and Power Board of Commissioners (collectively, “Los Angeles”) approved a set of substantively identical leases (2010 Leases) governing about 6,100 acres of land Los Angeles owns in Mono County.  Los Angeles deemed the approval of the leases to be categorically exempt from CEQA review because they involved the use of existing structures or facilities with no or negligible expansion of use.  (CEQA Guidelines § 15301.) 

The 2010 Leases included various provisions concerning water that essentially made it clear that water supply to the farms was given subject to the paramount rights of Los Angeles with respect to all water and water rights and that Los Angeles reserves “all water and water rights … together with the right to develop, take, transport, control, regulate, and use all such water and water rights.”  The availability of water for use in connection with the premises leased was conditioned upon the quantity in supply at any given time and the amount and availability of water, if any, shall at all times be determined solely by Los Angeles.  The 2010 Leases stated that water supplies to all land classified for irrigation (alfalfa and pasture) will be delivered in an amount not to exceed five acre-feet per acre per irrigation season, dependent upon water availability and weather conditions; due to this, delivery of irrigation water may be reduced in dry years.  In actuality, the delivery of water varied widely from 2010 to 2018, depending on water runoff and the needs of Los Angeles.  For instance, no water was provided to the landowners in 2016, and only .7-acre feet in 2016.  However, in 2012 and 2018, 5.4- and 5.0-acre feet of water were provided for irrigation.  Even in the first year of the 2010 Lease, Los Angeles provided only 4.3-acre feet, not the 5.0-acre feet mentioned in the Lease. 

In March 2018, Los Angeles sent the lessees copies of a proposed new form of leased for a five-year period running until the end of 2022, renewable up to three additional five-year periods.  As to irrigation water for the Lessee or the leased premises, the Lessee shall not use water supplied to the leased premises as irrigation water.  The Lease then stated that from time to time, based on Los Angeles’s “operational needs,” Los Angeles might spread or instead the lessee to spread excess water on the leased property.  The lease has similar clauses about the paramount right of Los Angeles to the water rights. 

Mono County and Los Angeles disagreed about whether Los Angeles’s reduction of water was the implementation of a previously approved project or the approval of a new project under CEQA.  CEQA defines a project as “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, and which is any of the follow: (a) an activity directly undertaken by any public agency; (b) an activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other form of assistance from one or more public agencies; (c) an activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.  (Public Resource Code §21065)  CEQA Guidelines expand on this definition and provide, “the term ‘project’ refers to the activity which is being approved and which may be subject to several discretionary approvals by governmental agencies.  The term ‘project’ does not mean each separate governmental approval.  (CEQA Guidelines §15378(c).)  The focus of the Appellant Court’s inquiry was whether the 2018 water allocation is the whole of an action or part of a larger action, either the 2010 Leases or the Proposed Dry Leases.  The Court determined the proposed 2018 Leases (the “Dry Leases”) were part of the 2010 Leases and therefore not a project for purposes of CEQA. 

The First Appellant Court reviewed the 2010 Lease carefully, and relied on its language that specifically provided the leases are subject to the paramount rights of Los Angeles with respect to all water and water right and subject to the paramount right of Los Angeles at any time to discontinue the providing water in whole or in part and take or hold or distribute such water for the use of Los Angeles and its inhabitants.  The plain language of the Lease accorded Los Angeles the right to do precisely what Mono County contends Los Angeles did: curtail water deliveries for the purpose of increasing water deliveries to Los Angeles’s residents. 

Since the Appellant Court determined that the 2018 Leases did not constitute a “project” and just a subsequent discretionary decision or approval of an activity under the 2010 Lease, the statute of limitations permit started in 2010.  Mono County should have filed a CEQA petition in 2010, or at a minimum in 2014, 2015 or 2016 when Los Angeles exercised its authority to reduce water to zero or close to zero. 

St. Ignatius Neighborhood Association, v. City and County of San Francisco (2022) 85 Cal.App.5h 1063  

The St. Ignatius College Preparatory High School (“School”) requested authorization to install four 90-foot light standards in the school’s athletic stadium.  In February 2018, the school submitted an application for approval of the addition of four permanent 90-foot-tall outdoor light standards to its athletic field to enable nighttime use of the stadium.  The City determined that the project was exempt under CEQA review under the Class 1 and Class 3 categorical exemptions.

Class 1 Exemption  

The Class 1 exemption for “existing facilities” applies to “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of the existing or former use” (CEQA Guidelines, § 15301).  The City determined that the project qualified for a Class 1 exemption because it involves negligible or no expansion of the existing use of the facility.  While the Project will not increase the capacity of the stadium or the overall frequency of use, the installation of the permanent lights will significantly expand the nighttime use of the stadium.  With the project, the field will be lit and in use approximately 80% of the fall and winter weeknights.  The school suggests that the existing nighttime use of the field is 40% to 50% evenings during the fall and winter, with the use of temporary lights.  The Court determined that increasing the use of the field to 150 nights a year is a significant expansion of the facility’s existing use, and therefore the City erred in finding the Class 1 Categorical exemption applicable.

Class 3 Exemption

The City also exempted the Project from CEQA review under the Class 3 exemption, which applies to construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made in the exterior of the structure.  (Guidelines § 15303)  City contended installation of the four light standards falls within section 15303, as it applied to “limited numbers of new, small . . . structures.”  While reference to square footage is meaningful when referring to commercial and residential buildings, as the guidelines do, whether a structure is “small” when referring to detached light-emitting standards cannot be evaluated solely on the basis of the square footage at their base.  The light standards, at 90 feet tall, are significantly taller than any other structure in the neighborhood.  The Court determined that a 90-foot-tall light standard does not qualify as “small” within the meaning of the exemption. 

The Project included installation of telecommunications equipment that was not an issue on the appeal.  The City relied on cases finding a Class 3 exemption that installed telecommunications equipment on an existing pole.  If the 90-foot-tall light standard was already constructed and the Project was merely to add telecommunication equipment to it, the exemption would be applicable.  However, the exemption is not available for the installation of a 90-foot-tall light standard in a residential neighborhood.

II. Environmental Impact Reports

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

After purchasing a former water bottling facility in 2013, Crystal Geyser Water Company (“Crystal Geyser”) began the process of seeking the various permits and agency approvals needed to facilitate the renovation (“Project”).  Siskiyou County (“County”), acting as lead agency, prepared and certified an EIR finding that the Project would result in significant unavoidable impacts.  The City of Mount Shasta (“City”), acting as a responsible agency, relied on the EIR when issuing a wastewater permit for the Project.  Although the EIR found the Project had significant and unavoidable impacts, the City in issuing the wastewater permit concluded that there would be no unmitigated adverse impacts of the wastewater discharges in particular, without making further findings.  We Advocate for Environmental Review and Winnehem Wintu Tribe (collectively, “Petitioners”) filed a petition asserting that the City failed to make findings required by CEQA, that the City should have adopted further mitigation to address the Project’s environmental impacts before approval, and that the City should have conducted further environmental review of the Project. The trial court rejected all of these arguments.

On appeal, Petitioners argued, and the Court agreed, that the City did not comply with the mandate of Public Resources Code Section 21081 that an approving agency find, for each significant impact, either (1) the impact has been mitigated; (2) mitigation of the impact is the responsibility of another agency; or (3) other considerations make mitigation or alternatives infeasible and there are overriding benefits that outweigh the impact.  The simple blanket statement that the City had “considered” the EIR and found no unmitigated environmental effects from wastewater was inadequate.  While the trial court ruled that a blanket statement is sufficient when all impacts are mitigated, a position echoed by the City on appeal, the Court held the position to be untenable, as one of the findings under Section 21081 is that the impact has been adequately mitigated.  Thus, in this circumstance, Section 21081 required the agency to make that finding for each individual impact and a blanket finding was inadequate.

Petitioners also argued that the City should have themselves adopted the EIR’s mitigation measures in a mitigation and monitoring plan because the County, as lead agency, lacked authority to enforce them.

Acknowledging that CEQA requires even responsible agencies to mitigate significant effects whenever feasible, the Court found no evidence that the County lacked such authority.  The Court recognized that a responsible agency in the City’s position might be required to adopt feasible mitigation itself in some instances, absent a finding that such mitigation is in the exclusive jurisdiction of another agency, but the Court declined to rule on whether the City could make such a finding on remand.  Without delving into the merits of the argument, the Court also rejected Petitioners’ claims that changes made to the EIR’s description of the wastewater permit after the draft required further environmental review, the Court held that the suit against the City was not the proper forum for challenging the adequacy of the County’s EIR.

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

This case addresses the re-opening of a water bottling plant that sought to extract groundwater to be used to produce bottled water.  The issue was the County description of the project objectives for purposes of CEQA, and whether they were overly narrow so as to exclude the consideration of any other feasible alternatives.  The County defined the proposed project and related renovations to a former bottling plant for the production of sparkling water, flavored water, juice beverages and teas.  The EIR further described the project’s objectives as follows:

  • To “operate a beverage bottling facility and ancillary uses to meet increasing market demand;
  • To site the proposed facility at the Plant previously operated by Dannon to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property;
  • To utilize the full production capacity of the existing Plant building based on its current size;
  • To initiate operation of the Plant as soon as possible to meet increasing market demand;
  • To minimize environmental impacts by utility existing facilities and infrastructure to the extent possible
  • To modify the existing facility at the Plant in a manner that incorporated sustainable building and design practices, recycling efforts, and other conservation methods, in order to reduce water use;
  • To withdraw groundwater in a sustainable manner that does not result in negative effects on nearby springs or wells, the underlying shallow or deep aquifers, or the surrounding environment; and
  • To create new employment opportunities for the local and nearby communities. 

The Third District Court of Appeal found that these objectives were too narrow to preclude any alternative other than the Project.  The County largely defined the Project objectives as operating the Project as proposed.  One of an EIR’s major functions is to ensure that all reasonable alternatives to proposed projects are thoroughly assessed by the responsible official.   The County also rejected the no project alternative as infeasible.  In the County’s view, this alternative would not accomplish any of the basic project objectives. 

The Court also determined the EIR needed to be recirculated for public review when significant new information is added to the EIR.  In this case, the draft EIR stated the project will result in greenhouse gas emissions of 35,486 metric tons of carbon dioxide equivalent (“MTCO₂e”) per year.  Because this amount exceeded the County’s established threshold of significant of 10,000 MTCO₂e per year, the County concluded that the Projects’ emission would result in a significant impact.  In the final EIR, the county estimated a far higher level of emission: 61,281 MTCO₂e per year.  The County determined that this was not significant new information that required circulation.  The Court disagreed finding that an increase of 25,795 MTCO₂e per year was not an insignificant detail. 

Save Our Capitol! v. Department of General Services (2022) 85 Cal.App.5th 1101

This case highlights the importance and inherent difficulty in providing an adequate project description and analysis of feasible alternatives when preparing an Environmental Impact Report (“EIR”).  The case involved an EIR for demolishing the State Capitol Building Annex attached to the Historic Capitol and replacing it with a larger new annex building.  The project also included the construction of an underground visitor center attached to the Historic Capital’s west side and an underground parking garage east of the new Annex.  The Plaintiffs argued that the EIR lacked a stable project description; failed to adequately analyze and mitigate the Project’s impacts on cultural resources, biological resources, aesthetics, traffic, and utilities and service systems; put forth analysis of alternatives to the project that was legally deficient; and violated the California Environmental Quality Act (“CEQA”) by not recirculating the EIR a second time before certifying it.  The Third District Court of Appeal held that the EIR’s project description, analysis of historical resources and aesthetics, and analysis of alternatives did not comply with CEQA and the EIR must be recirculated. 

Project Description

In the initial draft EIR, the Department of General Services (“DGS”) stated that without detailed information on the new Annex’s exterior appearance and how it would integrate with the Historic Capitol, and the parking garage’s specific location and footprint, the project’s impact on historical architectural resources, and in particular the Historic Capital, “cannot be fully confirmed.”   

In the recirculated draft EIR, DGS provided a revised project description that described the visitor center’s new design.  The revised project description repeated the description of the new Annex and the parking garage, including that the new Annex’s aesthetics and materials would be consistent with the Historic Capitol to create a “One Building” feel and its building materials would be consistent with the Historic Capitol.  The visitor center and parking garage were shown in the general envelope being considered between the Historic Capitol’s south side and N Street. 

The Final EIR provided for the first time the new Annex’s exterior design and the parking garage’s new location.  The footprint of the new Annex would be a “Double-T” configuration, appearing from above as if a letter “T” was immediately above another letter T, and the bottom of the lower “T” was attached to the Historic Capitol.  The Annex’s exterior would be a “pleated glass design.”  The design maximized the availability of natural light and improved working conditions for building occupants.  DGS stated the design will be compatible with, but not identical to, the Historic Capitol.  Additionally, the Final EIR stated the underground parking garage would be built east of the new Annex underneath the 12th Street walkway, not south of the Historic Capitol as originally planned.  The new design would accommodate 150 vehicles, not the 200 as originally planned. 

An EIR must contain an accurate, stable, and finite project description for an intelligent evaluation of a project’s potential environmental impacts.  The Third Appellant Court determined that the project description changed significantly in the Final EIR, particularly as viewed as a factor for determining the project’s impact on a historical resource.  The new Annex will have a glass exterior.  A glass exterior is so different from the Historic Capitol that DGS no longer stated the new Annex’s material would be consistent with the Historic Capitol.  Instead, it would be “compatible.”  DGS clarified that it sought to create a “One Building” feel within the new Annex’s interior spaces for the occupants as they move through the Capitol.  Moreover, a primary purpose for the glass exterior design was the building occupants’ health and well-being and maximizing natural light in the new building.  Although the project’s objectives included providing a safe environment for building occupants, neither of the two prior EIRs stated that occupants’ health and maximizing natural light would drive the new Annex’s exterior design.  The Third Appellate Court held that the description of the exterior of the new Annex’s exterior was designed to the detriment of public participation and informed decision-making on the project’s most controversial aspect – its impact on historical resources.  Therefore, the EIR needed to be recirculated.

Analysis of Feasible Alternatives

CEQA requires an EIR to identify feasible alternatives that could avoid or substantially lessen the project’s significant environment impacts.  (Public Resources Code §§ 21002, 21100, subd. (b)(4).)  The Court concluded that the alternatives chosen did not contribute to a reasonable range of alternatives.  The Final EIR modified the visitor center’s design and moved it to the West Lawn from the south side of the Historic Capital.  Furthermore, the underground parking garage would be east of the new Annex underneath the 12th Street walkway, not south of the Historic Capital as originally planned.  However, in the Final EIR, DGS rejected considering leaving the Visitor’s Center as in the prior draft EIRs because DGS argued there would be no impacts on the Capitol’s western façade.  The Court concluded that the EIR did not comply with CEQA’s requirement that the EIR consider a reasonable range of alternatives. 

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 the California Environmental Quality Act (“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 [Draft] EIR.”  It further noted that even if recirculation should have occurred, neither Petitioners nor 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 (“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 SWRCB 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 the California environmental Quality Act (“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 the Petitioner and the Authority appealed.  The Second District Court of Appeal reversed.

As for the project description claims, the Second District 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 18% 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.

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 (“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.  The First District reasoned 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 a minimum of 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 agreeing 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 (“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 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 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 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: (1) Receive approval for reduced fire flow requirements as permitted by the Fire Code; (2) reduce the size of the homes to compensate for the flow requirements; and (3) 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 approval by the City of Livermore (“City”) 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 final EIR lacked critical information to support informed decision-making, 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.

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

Petitioners filed suit to challenge the approval by the County of Placer (“County”) 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 involves 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 wildfire impact analysis in the project’s environmental impact report (“EIR”) pursuant to the California Environmental Quality Act (“CEQA”).

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 (from two lanes to four lanes) would not.  They 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: (1) a family van towing a boat trailer that tips over and blocks the evacuation route; and (2) 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.”

Air and Water Quality in the Lake Tahoe Basin

On appeal, the League also argued that the EIR did not describe the Basin’s existing air quality and the lake’s water quality as part of its description of the regional environmental setting.  Even though the Project was not within the Basin, the Court found that the EIR was required to discuss the Basin’s existing air and water quality so that potential environmental impacts could be determined.  Regarding the existing air quality in the Basin, the Court found that the County had not abused its discretion in omitting in-Basin air quality data that was determined to be unreliable.  The Court did, however, hold that the EIR failed to discuss the lake’s existing water quality, and that the FEIR’s discussion of how Vehicle Miles Traveled (“VMT”) affected water quality did not supplant the need for the FEIR to describe the lake’s existing water quality.

Nor did the EIR’s discussion of the lake’s Total Maximum Daily Load (“TMDL”) – a pollutant abatement program designed to restore Lake Tahoe’s deep-water transparency – adequately describe the existing setting, as it was merely referenced without any summary or analysis of its contents.  As such, the Court found that the County abused its discretion because the EIR lacked a description of the lake’s existing physical water quality.

The League also argued that the EIR violated CEQA by not discussing the Project’s specific impacts on water and air quality in the Basin.  Tahoe Regional Planning Agency (“TRPA”), the agency charged with protecting the natural resources of the Basin, utilized a VMT significance threshold for projects within its jurisdiction to address air and water quality impacts to the lake resulting from traffic, such as automotive dust and emissions.  It required total VMT in the Basin to remain below an established number.  Though the Project was outside of the Basin, both the League and TRPA had urged the County to use TRPA’s VMT threshold to evaluate its impacts. On appeal, the League argued that the EIR should have used this threshold despite the Project being outside of the Tahoe Basin, and thus outside TRPA’s jurisdiction, because the Project would create in-basin traffic.  The County instead used a significance threshold developed by the Placer County Air Pollution Control District (“Air District”) to evaluate the significance of the Project’s air quality impacts.  Using this threshold, the County determined the Project’s emissions would be cumulatively significant, but mitigation measures reduced these impacts to less than significant.  Examining other EIRs for recent projects near the Basin, the County determined that the Project would not result in Basin VMT exceeding TRPA’s VMT threshold.  Without resolving whether the Project’s increase in VMT would cause specific significant air or water quality impacts individually or cumulatively within the Basin, the County determined that proposed fees paid to expand transit services would mitigate the Project’s impacts on VMT.

The Court acknowledged that CEQA requires a lead agency to consult and obtain comments from trustee agencies, like TRPA here, that have jurisdiction by law over natural resources a project may impact.  The Court noted, however, that CEQA grants the lead agency discretion to accept or reject the threshold of significance standard that a trustee agency uses to determine an impact’s significance so long as the lead agency identifies the “areas of controversy” between the agencies per CEQA Guidelines section 15123(b)(2), (3).  Here, the Court found that the EIR adequately responded to TRPA’s comments, explained why it did not employ TRPA’s threshold of significance, and disclosed the disagreement.  Further, the Court found reliance on the Air District’s threshold to be supported by substantial evidence.  Though the threshold was different than TRPA’s, nothing in the record indicated that it would not protect Basin resources, in part because the Tahoe Air Basin was within the Air District’s jurisdiction as well.  In contrast to Sierra Watch v. Placer County (2021) 69 Cal.App.5th 86 (“Squaw Valley”), in which an EIR was inadequate because it failed to provide a threshold of significance and did not determine whether the impact was significant, the Court here found that the EIR evaluated significance with an adequately supported significance threshold.  Thus, the County did not abuse its discretion in applying the Air District’s threshold instead of TRPA’s VMT threshold to address impacts to the Basin’s air quality.  However, despite adequately evaluating air quality impacts from traffic, the Court found that the EIR did not address the impacts on water quality from traffic particulates.  The Court observed that a VMT-based threshold, such as TRPA’s, would have addressed this.  Though the EIR had referenced TMDL, it did not evaluate consistency with that standard, and as such, the mere reference did not suffice for this purpose.  Nor did the County’s responses addressing the Project’s impacts on the VMT threshold after the FEIR was circulated cure the issue because this analysis was required to be in the DEIR.  Thus, the EIR’s analysis of water quality impacts were found to be inadequate.

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 the decision by the El Dorado Irrigation District (“EID”) to certify an environmental impact report (“EIR”) pursuant to the California Environmental Quality Act (“CEQA”) 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 nor 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 adoption of an Environmental Impact Report (“EIR”) by the City of Santa Cruz (“City”) 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’ claims under the California Environmental Quality Act (“CEQA”), while also finding the City erred as to a separate planning and zoning law claim.  Petitioners appealed 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) 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.

Save North Petaluma River and Wetlands v. City of Petaluma (2022) Cal.App.5th 207

In another long-term saga to construct housing, the First District Court of Appeal held that the City of Petaluma (“City”) complied with the California Environmental Quality Act (“CEQA”) in certifying an Environmental Impact Report (“EIR”) for an apartment complex because the analysis of special status specifically did not have to be conducted entirely in the same year that the Notice of Preparation was published under Guidelines section 15125(a).  The EIR sufficiently presented a comprehensive assessment based on site visits, studies, and habitat evaluation undertaken before and after the Notice of Preparation with no apparent material changes.  Additionally, the Court determined that the analysis of public safety impacts relating to emergencies satisfied Guidelines section 15126(a).

Initially, the proposed development was for a 312-unit apartment complex in 2003 along the Petaluma River.  In May 2008, the City adopted its General Plan 2025, and to conform to the General Plan, the project was reduced to a 278-unit complex.  In May 2018, the City finally published the Draft EIR for public review and comment.  After public comment and review, the project was further reduced to 180 units to increase the setback from the Petaluma River and preserve two wetlands near the river and avoid development in the River Plan Corridor.  On February 3, 2020, the City Council certified the EIR and approved the necessary zoning changes.

Special Status Species

The Notice of Preparation was issued in July 2007.  The EIR contained a 70-page analysis which the Court reviews extensively, addressing potential impacts to biological resources on the Project site, including special species.  The analysis included a 2004 WRA Special Status Species Report, site visits, various state and federal plant and wildlife databases, input from regulatory agencies, arborist reports, vegetation mapping, and environmental communities mapping of the site to support the analysis.  The issue was if there needed to be a study conducted at the time of the Notice of Preparation in 2007 for setting the appropriate special status species baseline.  The Court determined that petitioners failed to show that the EIR was rendered legally inadequate simply because no special status-specific analysis was conducted in 2007.  The EIR’s special status species analysis was drawn from site visits, studies, and habitat evaluations that were taken both before and after the Notice of Preparation, and there was no indication the analysis was flawed due to material changes in the on-site habitats over the time period at issue.  There is no requirement under CEQA that a study be conducted in 2007 to establish the baseline for the special status species.

Public Safety Impacts Relating to Emergencies

Appendix G of the Guidelines requires the city to access the impacts of the Project with an adopted emergency response plan or emergency evacuation plan.  The EIR relied on the 2013 California Fire Code and the review and expertise of the Petaluma Fire Department’s review of the proposed emergency evacuation access route and found it to provide acceptable emergency access to the site.  Petitioners submitted a one-page letter from a Professor who claimed to be a National Evacuation Expert and opined that the Project may have significant public safety impacts in the event residents from the planned development and the adjacent apartments have to evacuate from hazardous events.  The Court determined they could not reweigh conflicting evidence and upheld the City’s determination with regard to its analysis of public safety impacts relating to emergencies.

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

Citizens’ Committee to Complete the Refuge (“CCCRB”) and the Center for Biological Diversity argued the City of Newark (“City”) violated the California Environmental Quality Act (“CEQA”) when it approved a housing development project by relying on a prior environmental impact report (“EIR”) from its approval of a specific plan without conducting further environmental review.  The First District Court of Appeal determined that the City project was exempt from further CEQA review under Government Code section 65457 because it was consistent with the specific plan. 

In 2010, the City certified an EIR on the specific plan to allow for development of up to 1,260 residentials units as well as a golf course and related facilities.  CCCR challenged the specific plan under CEQA, contending the EIR was inadequate.  The trial court in that case identified several deficiencies in the EIR, including that the EIR failed to make clear in what respects it was intended to be a program-level or project-level document.  In response, the City prepared a recirculated EIR (“REIR”) and remedied the deficiencies the trial court had identified.  In 2015, the City certified the final REIR, readopted the 2010 specific plan, and entered into a development agreement with the developer. 

In 2016, the City approved a subdivision map for the development comprising 386 housing units.  In 2019, the developer submitted a subdivision map for approval of 469 residential units.  The subdivision map proposed no development outside subareas B and C and omitted the golf course.  Instead, the development agreement proposed to deed much of subarea D to the City.  The city concluded the construction of 469 units as proposed in the subdivision map would be consistent with the specific plan, and there was no changed circumstances or new information that might trigger the need for additional environmental review. 

Government Code section 65457 provides an exemption from CEQA for housing development proposals that follow a city’s specific plan.  CCCR argued that there were significant differences from the specific plan because:

  • The subdivision map proposes to fill and elevate only the upland portions of subareas B and C and not the wetlands in those areas;
  • The subdivision map does not include a golf course; and
  • The filled and raised portion of subareas B and C to be developed will be directly  next to other wetlands and the western banks of those elevated areas will be armored with riprap. 

The Court was not persuaded, pointing out the specific plan included the complete development of subareas B, C, and D.  By contrast, the subdivision map did not develop subarea D at all (except for a multi-use trail) and sought to develop only 96.5 acres of the approximately 148.7 upland areas in subareas B and C.  The Court reasoned those changes contained in the subdivision map compared to the uses envisioned in the specific plan, thus would result in the development of fewer total acres and fewer upland areas.  The subdivision map also provided for fewer residential units than the specific plan allowed.

III. CEQA Litigation

American Chemistry Council v. Department of Toxic Substances Control (2022) 86 Cal.App.5th 146

The case involves a regulatory decision to list spray foam systems as a priority product by the Department of Toxic Substances Control (“Department”).  The Court decision addresses the regulatory issues, though the court’s analysis of the California Environmental Quality Act (“CEQA”) is of particular importance.  The Department issued an Exemption Notice with respect to the decision to list spray foam as a priority product.  The Department concluded the listing was exempt from CEQA because the “project will not result in a change in any of the physical conditions within the area affected by the project.”  Therefore, the Department found “with certainty that there is not a possibility that the activities in question will result in a significant environmental effect.” (CEQA Guidelines §15061(b)(3).)

The Department sent its proposed regulatory package to the Office of Administrative Law (“AOL”), which endorsed, approved, and filed the regulatory package on April 26, 2018.  On May 1, 2018, the Department issued an alert stating that spray foam systems would be listed as a priority product effective July 1, 2018.  On May 30,2018 the American Chemistry Council (“ACC”) filed an appeal with the AOC, which was finally rejected on February 25, 2019.  ACC filed a petition for writ of mandate on August 9, 2019.  The Department argued that the CEQA claim was time-barred because it had not been filed within 180 days of the OAL enforcement, approval and filing of the regulatory package. 

If an agency determines a project is categorically exempt from the environmental review requirements of CEQA and proceeds to approve the project, any party objecting that such determination was improper must file an action within 35 days after a valid notice of exemption has been filed by the agency.  If none was filed or the notice of exemption is defective in some material manner, the filing period for action is limited to 180 days after the project is approved.  Neither party contests that the 180-day statute of limitation applies in this case.  The core dispute is when that period began to run.  The Fifth District Court of Appeal held that the deadline for filing a CEQA action turns on whether the administrative remedies covered by the Green Chemistry law regulations include review of CEQA issues or whether the standard CEQA exhaustion requirements are all that are needed to exhaust administrative remedies. 

In this case, the Court determined that the administrative dispute resolution process for the Safer Consumer Products regulations did not include CEQA.  The statute of limitations period starts running on the date the project is approved by the public agency and is not retriggered on each subsequent date that the public agency takes some action implementing the project.

Jenkins v. Brandt-Hawley (2022) 86 Cal.App.5th 1357

This case involved a group of well-off, “NIMBY” neighbors living in one of the most expensive zip codes in the country — San Anselmo — trying to prevent their fellow neighbors from rebuilding a decrepit and dangerous residence on their property due to privacy and design aesthetics concerns.  The Project involved the demolition of a 2,882 square feet one-bedroom Craftsman-style shingled bungalow built in 1909 and a small cottage built sometime later.  The architect and two contractors all advised that the main house was not worth saving.  The homeowners (“Jenkins”) proposed to demolish the existing structures and build a 3,227.5 square-foot single-family residence.  After extensive review with Planning Staff and neighbors, the Project was ultimately approved by the Planning Commission, subsequently approved by the City Council following an appeal.  The City Council determined that the Project was categorically exempt under CEQA (Cal.Code Regs., titl. 14 §15303(a)) and consistent with the City’s General Plan and Zoning laws. 

The neighbors hired attorney Susan brandt-Hawley, who filed a lawsuit alleging violations of CEQA and the Town Municipal Code, including the General Plan.  The Jenkins attorney sent a five-page single space letter asserting that the claims appear to be completely without merit and presented primarily or solely for the improper purpose of harassing the Jenkins.  Brandt-Hawley refused to dismiss the lawsuit.  The trial court ruled against Brandt-Hawley’s client and then she appealed to the Appellant Court.  There was an additional motion filed and withdrawn by Brandt-Hawley, but on the filing date the Jenkins’ response pleading was due, Brandt-Hawley dismissed the lawsuit. 

Jenkins then sued Susan Brandt-Hawley and her law firm for malicious prosecution.  Brandt-Hawley filed a special motion to strike the complaint under Code of Civil Procedure §425.16 (SLAPP or Anti-SLAPP motion).  The anti-SLAPP motion was heard by the trial court on May 12, 2021, who ruled that Jenkins had met their burden under an anti-SLAP analysis, demonstrating a probability of prevailing on their claim for malicious prosecution.   It was appealed to the Appellant Court who likewise ruled against Brandt-Hawley ruling that the Jenkins had a probability of prevailing on a malicious prosecution claim because substantial evidence supported the Town’s determination that the Project was categorically exempt from CEQA and that the attorney (Brandt-Hawley) could be inferred that she knew that failure to exhaust remedies under Public Resources Code §21777, barred a CEQA challenge and acted with malice in pursuing the case after learning it was untenable.  Furthermore, the Appellant Court rejected the argument that a CEQA-related case should be insulated from malicious prosecution claims lacked merit because legitimate CEQA advocacy was not chilled. 

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 EIR by the City of Seaside (“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.  The Committee subsequently filed a request for dismissal without prejudice, which was granted on August 4, 2020.  The 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€.)  However, Governor 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.

IV. Attorney’s Fees

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

The Department of Water Resources (“DWR”) initially proposed two tunnels to convey fresh water from the Sacramento River to pumping stations in the Sacramento San Joaquin Delta (“Project”).  Lawsuits were brought by a number of organizations (“Plaintiffs”) challenging the Project.  The suits were coordinated at the trial court level. While the coordinated proceeding was pending, newly elected Governor Newsom announced that he did not support the dual-tunnel proposal and directed DWR to pursue a single-tunnel conveyance instead.  DWR decertified its EIR and rescinded its project approvals, and the various lawsuits were voluntarily dismissed.

Following dismissal Plaintiffs moved for attorney’s fees, arguing that their suits succeeded in causing DWR to voluntarily provide the relief they sought.  The trial court denied the motions, concluding that it was not Plaintiffs’ lawsuits that caused DWR to provide the relief.  Plaintiffs appealed that denial, arguing that the trial court applied an incorrect legal standard and that its factual conclusion as to causation was unsupported.  While the Court of Appeal rejected most of Plaintiffs’ contentions, it agreed that the trial court erred in treating the Governor’s policy directive as an external, superseding cause.  It faulted the trial court for ending its analysis upon its observation that DWR’s conduct was wholly determined by the Governor’s direction.  In the Court’s view, the trial court was required to additionally consider whether the lawsuits caused the Governor to issue that direction, thereby still indirectly causing the result to be achieved.  Plaintiffs had in fact offered evidence indicating that this had been the case, which DWR had not rebutted.  Further, the Court of Appeal noted that DWR’s decertification of the EIR had not been a foregone conclusion.  The agency could have instead prepared some form of subsequent review for the revised single-tunnel project, only evaluating changes from the already-certified environmental review.  Because the trial court viewed decertification as an expected consequence of the change in project it had failed to consider its significance or whether Plaintiffs’ actions had been the catalyst for this result.

Similarly, DWR had initially sought to continue a validation action, arguing that the validity of bond financing was not dependent on whether one or two tunnels was used.  DWR ultimately reversed course though.  The trial court again failed to consider the significance or causation involved in the decision.  The Court remanded the matter for further consideration by the trial court. It did not mandate that fees be awarded, but instead directed the lower court to consider the catalytic effect of Plaintiffs’ actions on a case-by-case basis and determine the appropriateness of attorney fees in that light.

V. Regulatory Guidance

Best Practices for Analyzing and Mitigating Wildfire Impacts of Development Projects Under CEQA

In 2022, the California Attorney General became active in local land use issues concerning rural development and wildfire risk.  The focus was the sufficiency of the CEQA documentation for projects which were located in higher fire risk areas.  The Attorney General also took the unusual step in October 2022 to issue a CEQA “best practices” memorandum.  This Memorandum provided detailed background and recommendations for how local governments should be evaluating risk and mitigation – no small undertaking.  This Memorandum sets the bar extremely high.  It is inescapable that the Memorandum will be used as a metric for evaluating the legal sufficiency of CEQA documents.  This can only increase the cost of CEQA documentation and increase the legal risk for potential projects in areas at risk from wildfires.  This Memorandum and the expanded CEQA consciousness that comes with it addresses only a part of the problem.  CEQA does not address existing rural land use patterns, nor does it solve the serviceability of existing roadway systems or sufficiency of local fire departments and Cal-Fire resources.  These issues will need to be addressed by the Governor and the Legislature.

For more information see:

The California Environmental Quality Act (“CEQA”) requires local jurisdictions considering development projects to prepare an environmental impact report (“EIR”) or a mitigated negative declaration if the project may have a significant impact on the environment and is not otherwise exempt from CEQA.  The “environmental checklist form” in Appendix G of the CEQA Guidelines, Section XX, directs lead agencies to assess whether projects located in or near state responsibility areas of lands classified as very high fire hazard severity zones, would:

  1. Substantially impair an adopted emergency response plan emergency evacuation plan.
  2. Due to slope, prevailing winds, and other factors, exacerbate wildfire risks, and thereby expose project occupants to pollutant concentrations from a wildfire or the uncontrolled spread of a wildfire.
  3. Require the installation or maintenance of associated infrastructure (such as roads, fuel breaks, emergency water sources, power lines or other utilities) that may exacerbate fire risk or that may result in temporary or ongoing impacts to the environment; or
  4. Expose people or structures to significant risks, including downslope or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or drainage changes. 

In addition, Section IX (g) of the checklist broadly directs lead agencies to consider whether a project will “expose people or structures, either directly or indirectly, to a significant risk of loss, injury or death involving wildland fires.”  Lead agencies must consider both on- and off-site impacts. 

Several variables should be considered in analyzing a project’s impact on wildfire risk, including:

Project Density

Project density influences how likely a fire is to start or spread, and how likely it is that the development and its occupants will be in danger when a fire starts.  Fire spread and structure loss is more likely to occur in low-to-intermediate-density development.  This is because there are more present to ignite a fire (as compared to undeveloped land), and the development is not concentrated enough (as compared to high-density developments) to disrupt fire spread by removing or substantially fragmenting wildland vegetation.  The conflict here is that the very reason many people move to the foothills and mountains is to live in a low-density development. 

Project Location in the Landscape

Project placement in the landscape relative to fire history, topography, and wind patterns.

Water Supply and Infrastructure

Analyze the adequacy of water supplies and infrastructure to address firefighting within the project site.  The analysis should consider the potential loss of water pressure during a fire, which may decrease the available water supply and the potential loss of power, which may eliminate the supply. 

Lead agencies are encouraged to develop thresholds of significance that either identity an increase in wildfire risk as a significant impact or determine, based on substantial evidence, that some increase in the risk of wildfires is not considered a significant impact. 

Lead agencies must consider the wildfire risks, landscape, and development for new development.  This includes the density of housing, topography, and water supply as well as evacuation routes. 

VI. Legislation

SB 118 (Chapter 10) California Environmental Quality Act: Public Higher Education: Campus Population

Deletes the requirement that environmental effects relating to changes in enrollment levels be considered in the EIR prepared for the long-range development plan.  The bill provides enrollment or changes in enrollment, by themselves, do not constitute a project for purposes of CEQA.  The bill authorizes courts to order a public campus or medical center to prepare a new, supplemental, or subsequent EIR if the court determines that increases in campus population exceed the projections adopted in the most recent long-range development plan and analyzed in the supporting EIR, and those increases result in significant environmental impacts.  Should any court find that campus population exceeds previously planned growth, SB 118 requires that it must now give public higher education campus 18 months to remedy the problem before enjoining population increases.  The law came in response to a court-ordered enrollment freeze that affected U.C. Berkeley.  SB 118 applied retroactivity to U.C. Berkeley, invalidating the trial court’s enrollment cap.

SB 886 (Chapter 663) California Environmental Quality Act: Exemption: Public Universities: University Housing Development Projects

Builds on SB 118 by establishing a full statutory CEQA exemption for housing projects to be constructed for U.C., C.S.U. and California Community College students atop real property owned by a public college or university.  However, applicable housing projects must meet stringent criteria to qualify.  All buildings must be consistent with the applicable Long Range Development Plan, LEED platinum or better, meet a transit proximity or VMT standard, result in no net additional GHG emissions, and meet labor and wage requirements.  The exemption also requires all construction impacts to be “fully mitigated consistent with applicable law.”  The law sunsets on January 1, 2030.

William Abbott, Diane Kindermann, Glen Hansen, and Patrick Enright 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.