Brownstein Client Alert, November 2, 2020
Welcome to CEQA News You Can Use, a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!
CEQA captures legislature’s attention even amidst COVID-19 pandemic
Gov. Newsom signed six CEQA bills into law this session, with a common theme of expanding and refining the types of projects that benefit from CEQA’s exemptions and streamlining procedures. In response to California’s wildfire-related power shutoffs, AB 2421 expands CEQA’s ministerial approval exemption to cover emergency standby generators. AB 2731 provides that the environmental document prepared by the Navy for the redevelopment of San Diego’s Old Town Center satisfies CEQA so long as certain environmental and labor standards are met. SB 288 expands and extends the CEQA exemption for certain pedestrian and bicycle facilities, public transit projects and high-occupancy vehicle lanes. Similarly, SB 757 adds certain zero-emissions mass transit projects to the types of “environmental leadership projects” eligible for CEQA streamlining benefits. SB 974 adds a CEQA exemption for certain water infrastructure projects for small, disadvantaged community water systems. And AB 168 imposes new requirements related to tribal cultural resources for certain multifamily housing projects utilizing the streamlined CEQA process. An ambitious CEQA reform bill—labeled “CEQA 2.0” (see CEQA News, Vol. 5, Issues 1 and 2)—was tabled to the 2021 session, and other CEQA bills we were watching also failed to pass.
Appellate court pops UC Berkeley’s enrollment bubble
In Save Berkeley’s Neighborhoods v. Regents of University of California (2020) 51 Cal.App.5th 226, the First District Court of Appeal held that the University of California’s decision to increase enrollment on the Berkeley campus was a “project” under CEQA and thus required additional review. In 2005, the university introduced its UC Berkeley Long Range Development Plan (LRDP) and prepared an environmental impact report (EIR) to analyze the plan’s environmental effects. The LRDP and the 2005 EIR projected that, by the year 2020, Berkeley’s enrollment would increase by 1,650 students. Instead, enrollment increased by 8,300 students. In this partially published opinion, the court reasoned that the university’s enrollment decisions were discretionary and likely to have an impact on the environment and, therefore, constituted a “project” under CEQA. Because this enrollment decision and the significant impacts caused by it were not analyzed in the original EIR, the court of appeals held that additional review was required.
Court shuts the door on San Diego County’s email retention policy
In its widely anticipated decision in Golden Door Properties, LLC v. County of San Diego (2020) 53 Cal.App.5th 733 (petition for Supreme Court, time for accepting or declining review extended to Dec. 7, 2020), the Fourth District Court of Appeal overturned the county’s practice in CEQA cases of deleting emails after 60 days unless county staff mark the documents for retention as official records. The court found that Public Resources Code section 21167.6(e), which details the scope of an administrative record in a CEQA action, requires a lead agency to retain writings that may be included in an administrative record, like email correspondence related to the project. The court noted that holding otherwise would “enable an agency to prune the record by deleting unfavorable ‘internal agency communications, including staff notes and memoranda related to the project.’”
The road not taken—county prepares a CEQA Addendum to the wrong EIR
The court in Martis Camp Community Assn. v. County of Placer (2020) 53 Cal.App.5th 564, took an unexpected fork in the road when it found that Placer County tiered a CEQA Addendum from the wrong prior EIR. The county approved a public road abandonment located in one subdivision (the Retreat at Northstar) after owners in a neighboring subdivision with private roads (Martis Camp) claimed abutters’ rights to use the public Retreat roads as a shortcut to Northstar Ski Resort. To evaluate the abandonment, the county prepared an Addendum to the Martis Camp EIR, reasoning that it was Martis Camp traffic that was being diverted through the Retreat. But since the road itself was located in the Retreat subdivision, the court concluded that the county’s abandonment modified the Retreat project, so the county should have tiered from the Retreat EIR to evaluate whether any new significant environmental impacts were caused by the abandonment.
Well, well, well ... Supreme Court rules that some water well applications may be subject to CEQA
Historically, most California cities and counties have considered applications for developing groundwater wells to be ministerial (as opposed to discretionary) and, therefore, exempt from CEQA, where the well construction conforms with the Department of Water Resources Bulletin 74 minimum technical standards for the construction of new wells. The California Supreme Court says “not so fast” in its recent ruling in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479 (known as the POWER case). POWER claimed that Stanislaus County's well ordinance gives the county discretion to address concerns relating to environmental impacts, and asserted that all new well construction permits should be treated as discretionary projects, subject to CEQA. The court agreed with POWER that some well applications may be discretionary and subject to CEQA (i.e., where the well may be near a source of contamination), but did not agree that all well permit applications must be considered discretionary. Instead, the county should address each well permit on a case-by-case basis. Local agencies can be expected to evaluate their well permitting ordinances to address the POWER case. (You don’t have to, but if you want to read more about the POWER case, we also published a client alert on this case, which you can find here).
Completing construction moots CEQA challenge
In Parkford Owners for a Better Community v. County of Placer (2020) 54 Cal.App.5th 714 (petition for Supreme Court review filed Oct. 26, 2020), the Parkford petitioners challenged Placer County’s issuance of a building permit for the expansion of Treelake Storage, an existing commercial self-storage facility. The trial court ruled that the building permit could not be challenged under CEQA because it was a ministerial permit, not a discretionary permit, and found Parkford’s Planning and Zoning Law claim barred by the statute of limitations. On appeal, the Third District declined to reach either of these issues, instead agreeing with the county and Treelake Storage that Parkford’s claims were moot because the facility expansion was complete and “up and running.” In support of its holding, the court noted that Parkford failed to address the county’s and Treelake’s mootness argument. Even more importantly, the court noted that construction did not proceed in violation of a court order. The trial court had rejected Parkford’s request for a temporary restraining order and preliminary injunction to halt construction, at least in part because Parkford delayed its request until the project was nearly completed. Finally, nothing in the record indicated that Treelake relied on the building permit in bad faith or in an attempt to evade CEQA or the Planning and Zoning Law, where prior expansions of the same storage facility had proceeded under the same process.
COVID-19 elevates CEQA noticing to the cloud
In response to COVID-19, on April 22, 2020, Gov. Newsom suspended certain CEQA public noticing requirements for 60 days. (Executive Order N-54-20.) Instead of publicly posting or filing materials concerning a project at a local government building, Executive Order N-54-20 authorized compliance with CEQA notice provisions by (1) posting the CEQA materials on the agency’s or applicant’s public website; (2) submitting the documents to the State Clearinghouse (CEQAnet); and (3) continuing direct outreach to interested parties as required by CEQA. On Sept. 23, 2020, Gov. Newsom issued Executive Order N-80-20, which renews and extends Executive Order N-54-20’s notice provisions until the end of the COVID-19 State of Emergency, or unless modified or rescinded. Executive Order N-80-20 also allows a lead agency, responsible agency, or applicant to follow the standard CEQA notice procedures if local social distancing rules allow for the county clerk to post and the public to inspect public notices at government buildings. This flexibility should allow agencies and applicants to adapt to local conditions as agency staff hang up their Zoom calls and head back to the office.
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