Brownstein Client Alert, April 21,2020
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 2.0” and Affordable Housing Highlight New CEQA Bills
On March 19, Senator Hannah Beth Jackson (D, Santa Barbara) substantially amended SB 950 to introduce what is being billed as “CEQA 2.0.” CEQA 2.0 is an initiative of the Planning & Conservation League, which has been working with a diverse group of stakeholders to craft amendments to California’s flagship environmental statute. Beyond CEQA 2.0, most new CEQA bills are aimed at addressing what was (prior to March 2020) seen as California’s defining crisis: affordable housing. SB 1302 would impose more stringent procedural requirements to prevent successive CEQA attacks on the same housing project. SB 621 would set a 270-day clock on the resolution of any litigation challenge to an affordable housing project, including any appeal. AB 1907 would create a new CEQA exemption for any action to sell or lease public land for the development of emergency shelters, supportive housing, or affordable housing. Of the over 30 CEQA bills currently pending in the Legislature, one-third pertain to housing. It remains to be seen, however, whether the immediate demands of the COVID-19 crisis squeeze out even the most pressing legislative priorities in the months to come.
New Judicial Council rules and the coronavirus pandemic
The Judicial Council has approved a number of emergency rules related to the coronavirus pandemic, one of which may impact CEQA’s short statutes of limitation. Emergency Rule 9 tolls statutes of limitation for civil causes of action from April 6, 2020 until 90 days after the Governor lifts the coronavirus state of emergency, which may not be for some time. If applied to CEQA petitions, this rule could serve to more than triple the standard 30-day CEQA statute of limitations. Applying this rule to CEQA’s short statutes of limitation would undermine CEQA’s legislative intent of providing short statutes of limitation to give greater certainty to newly permitted projects, and has prompted requests for clarification to the Judicial Council.
City knows best—policy compatibility, not strict compliance—governs whether project qualifies for CEQA’s infill exemption
CEQA categorically exempts “infill development” projects that are, among other things, “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” (CEQA Guidelines § 15332(a).) Citing this exemption, the City of San Diego determined that a seven-unit condominium development, located on steep and environmentally sensitive land, was exempt from CEQA as an infill development, and approved the project. Petitioners challenged both the City’s CEQA determination and its general approval of the project since it failed to comply with the City’s General Plan, which required greater density. Upholding the City’s decision, the Fourth District Court of Appeal held that it is “enough that the proposed project will be compatible with the objectives, policies, general land uses and programs specified in the applicable plan.” (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 412 [quotations omitted].) Providing “great deference to [the City’s] finding of consistency with its own general plan,” the court held that the City reasonably balanced the demands of its general plan, community plan, and steep hillside regulations when it approved the project. (Id.) According to the court, the City’s approval of the lower-density project furthered the plans’ goals of encouraging multifamily residential development while also balancing the City’s interest in protecting the environmentally sensitive hillside where the project would be located.
But why? A fundamental question for any infeasibility finding
The CEQA lead agency for a Mono County geothermal power plant project found itself in hot water for failing to analyze the feasibility of mitigation measures proposed by the petitioners in Covington v. Great Basin Unified Air Pollution Control District (2019) 43 Cal.App.5th 867. The EIR’s fatal flaw? It failed to explain why stricter mitigation measures to reduce reactive organic gas (ROG) emissions recommended in comments on the Draft EIR were infeasible. As to petitioners’ remaining claims, though, the EIR passed muster—it accurately estimated the amount of the project’s ROG emissions and the air pollution control district, not Mono County, was the proper lead agency because it had a greater responsibility for supervising or approving the project as a whole whereas the County’s role was limited to issuing a permit for 1,500 feet of pipeline.
Court pumps the brakes on CEQA suit based on automobile delay
Citizens for Positive Growth (Citizens) challenged the City of Sacramento’s adopted 2015 general plan amendment and accompanying environmental impact report (EIR) designed to extend the life of the City’s general plan to 2035. Citizens alleged that the traffic analysis for the general plan EIR was inadequate because it did not properly consider level of service (LOS) impacts. In Citizens for Positive Growth v. City of Sacramento (2019) 43 Cal.App.5th 609, the court held that Citizens’ claim was rendered moot by the enactment of Public Resources Code section 21099(b)(2), which along with CEQA Guideline section 15064.3, deem impacts to LOS as not a significant impact on the environment.
A mitigation mess — the fifth district court of appeal overturns several county mitigation measures adopted to lessen impacts of a new oil drilling ordinance
King & Gardiner Farms, LLC v. County of Kern (Feb. 2020), overturned a host of mitigation measures adopted by the County in its environmental review of a new oil drilling ordinance. The court found that the County could not properly rely on future management actions undertaken pursuant to the Sustainable Groundwater Management Act to mitigate water supply impacts, reasoning such actions lacked the required performance criteria for deferred mitigation. The court also found that requiring permittees to purchase agricultural conservation easements or conservation credits did not mitigate to a less than significant impact the project’s conversion of agricultural land. And the court found that the County’s failure to analyze petitioners’ proposed mitigation measure—the clustering of wells to lessen the conversion of agricultural land—violated CEQA because the County’s measures did not sufficiently mitigate agricultural impacts to a less than significant level. Although any permits issued under the ordinance prior to the court’s decision may remain in effect, the County has been barred from issuing new permits under the new ordinance.
And if it doesn’t happen? CEQA when the distant future is uncertain . . .
Sacramento County approved a mixed residential/ commercial project (including schools, parks, trails, and a 224-acre university campus) on 2,669 acres of agriculturally-designated grazing land outside the City of Cordova Hills. The Environmental Council of Sacramento challenged the EIR on multiple grounds, including the EIR’s failure to analyze an alternative that would include no university campus, since there was no interested university and no guaranty that the university would ever be built. Upholding the EIR, the court in Environmental Council of Sacramento v. County of Sacramento (2020) found that the Development Agreement between applicants and the County provided for that possibility, and that the EIR had adequately accounted for different environmental impacts. The court also rejected a number of other claims, including that air quality, traffic and climate changes were not adequately analyzed in the EIR.
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