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!
No tolling of CEQA statute of limitations without the real party in interest
Any CEQA tolling agreement must include all indispensable parties to be effective. In Save Lafayette Trees v. East Bay Regional Park Dist. (2021) 66 Cal.App.5th 21, the East Bay Regional Park District agreed to toll the CEQA statute of limitations for Save Lafayette Trees, but Pacific Gas & Electric (PG&E), the real party in interest, did not. Save Lafayette Trees filed its CEQA suit over 180 days after the park district signed a memorandum of understanding (MOU) with PG&E to allow for removal of 245 trees for a pipeline safety project intended to clear natural gas pipeline rights of way. Finding Save Lafayette Trees’ CEQA suit barred by the statute of limitations, the First District Court of Appeal held that once the MOU was approved, the park district committed to a definite of course of action regarding the tree removal, triggering CEQA’s default 180-day statute of limitations. The court also refused to postpone the accrual of the statute of limitations until Save Lafayette Trees’ actual discovery of the project. The court reiterated that the park district provided “constructive notice” of the potential CEQA claim when it committed itself to carry out the project.
Good luck overturning Coastal Commission decision in a battle of experts
In Martin v. California Coastal Commission (2021) 66 Cal.App.5th 622, plaintiff landowners seeking to build a new home on their vacant blufftop lot disputed the California Coastal Commission’s imposition of a larger setback from the bluff face than that required by the City of Encinitas under its Local Coastal Plan (LCP) and removal of the basement from the plans. In a battle of experts, the commission almost always wins and that is what happened here. The LCP requires a setback sufficient to protect bluff stability (with a 1.5 safety factor) and keep the home safe from coastal erosion. The Martins’ experts found a 40-foot setback would be sufficient for the home’s 75-year life, but the commission’s in-house experts required 79 feet because they assumed a rate of bluff erosion approximately twice that projected by the Martin’s experts. As to the basement, the LCP required that blufftop structures be removable as bluff retreat occurs and the commission concluded that removal of the basement ultimately would destabilize the bluff and possibly undermine neighboring properties.
Governor’s certification of new Oakland A’s stadium beats the tag
In the wake of losing the NFL’s Raiders to Las Vegas and the NBA’s Golden State Warriors to San Francisco, Oakland sought to retain its baseball team, the Athletics, by constructing a new state-of-the-art baseball park and mixed-use development. The California State Legislature stepped in to help by passing AB 734, a CEQA streamlining bill specific to the stadium project. Trouble arose after Gov. Gavin Newsom certified the new A’s stadium project in February 2021 because AB 734 incorporates by reference expedited review procedures from AB 900 (a prior CEQA streamlining law), but does not address a January 2020 deadline in AB 900, nor provide a deadline of its own. The Pacific Merchant Shipping Association challenged the governor’s certification, alleging that the governor’s authority expired in January 2020. In Pacific Merchant Shipping Assn. v. Newsom (2021) 67 Cal.App.5th 711, the First District Court of Appeal found AB 734 ambiguous, but found the law’s legislative history indicates that lawmakers did not intend for the stadium project to be bound by the AB 900 deadline.
Court says, “Can’t find a place to park? Recreate elsewhere”
In Save Our Access-San Gabriel Mountains v. Watershed Conservation Authority (2021) 68 Cal.App.5th 8, the Second District Court of Appeals sternly rejected a community group’s argument that reducing parking spaces for forest recreation constitutes an environmental impact under CEQA and confirmed that considering just a “no project” alternative may satisfy CEQA requirements. In 2018, the Watershed Conservation Authority certified the EIR for a project in the Angeles National Forest, seeking to improve recreational areas while reducing impacts to and restoring heavily trafficked ecological areas along the San Gabriel river. The project would increase shuttle access to and the number of designated parking spaces in the area and ban parking in undesignated areas, thereby preventing visitors from parking on sensitive vegetative spaces along the road and, ultimately, reducing the number of parking spaces. Save Our Access-San Gabriel Mountains challenged the EIR, calling for further discussion of the parking issue, and consideration of alternatives beyond the “no project” alternative. The trial court issued a writ of mandate, which the appellate court overturned. In its decision, the court confirmed that an agency need not always consider alternatives beyond the “no project” alternative. Additionally, the court found it “utterly absurd” that intentionally reducing parking could be the “centerpiece” of the project, as the community group claimed, and scoffed at the idea that converting more wilderness open space into parking could ever be considered “environmental protection.” The court highlighted the difference in reducing parking spaces in an urban area versus a wilderness area, saying it is the circumstances of the case that determine what alternatives must be considered and whether reduced parking creates an environmental impact under CEQA. Here, the potential adverse social impacts actually “prevent further adverse physical impacts on the environment”—so if you cannot find a place to park, “recreate elsewhere.”
The never-ending story of the State Water Project Monterey Amendments litigation
Central Delta Water Agency et al. v. California Department of Water Resources et al. (Oct. 21, 2021) reflects the latest chapter in the litigation over the Department of Water Resources (DWR)’s approval of the Monterey Agreement and Monterey Amendments to the long-term State Water Project (SWP) contracts and the related environmental review. Following numerous challenges, the current appeals stem from the “Monterey Plus EIR” and a “Revised EIR” related to DWR’s transfer of the Kern Water Bank to local agency management. The petitioners’ claimed that: (1) DWR violated CEQA by failing to form a proper project decision, (2) the Monterey Plus EIR failed to analyze a specific no project alternative, and (3) the Revised EIR inadequately analyzed crop conversion. Affirming the trial court’s decision, the Third District Court of Appeal upheld DWR’s decision to continue operation of the SWP under the existing Monterey Amendment and a prior settlement agreement because the trial court had authorized DWR to do so during preparation of the Monterey Plus EIR. The court also found that DWR’s consideration of four no project alternatives was adequate for informed decision-making and public participation. Turning the page to the Revised EIR for the Kern Water Bank, the court upheld DWR’s determination that although the water bank would increase water supply reliability, the environmental impact of crop conversion was less than significant. Note the petitioners filed a petition for rehearing on October 7, 2021, so the saga continues …
It’s all in the neighborhood—court finds EIR lacking for failing to describe Lake Tahoe
In Sierra Watch v. County of Placer (Sept. 22, 2021), the Third District Court of Appeal considered the sufficiency of the environmental review for the development of a resort in Olympic Valley, a few miles northwest of Lake Tahoe. While the court rejected a host of Sierra Watch’s CEQA claims, it found the EIR inadequate as it did not adequately discuss Lake Tahoe, as well as for a few other reasons. The court keyed on language in the CEQA Guidelines that requires an EIR’s environmental setting to place “special emphasis ... on environmental resources that are rare or unique to that region and would be affected by the project.” Despite the project’s location outside the Lake Tahoe Basin, the court found the EIR needed to include additional discussion of Lake Tahoe as “knowledge of the regional setting is critical to the assessment of environmental impacts” and the County had admitted the project could have some impact on the lake.
San Diego gets CEQA “fix-it” ticket for undergrounding project
For over 50 years the City of San Diego has been undergrounding utility lines. Despite completing over 400 miles, the city still has over 1,000 miles to go. In McCann v. City of San Diego (Oct. 8, 2021), a resident alleged that the city’s undergrounding projects in several neighborhoods, including her own, violated CEQA. Rejecting a challenge to undergrounding in her neighborhood, the Fourth District Court of Appeals found McCann failed to exhaust her administrative remedies by timely appealing the project to the San Diego City Council. The court upheld the City’s CEQA noticing process for undergrounding projects and found McCann suffered no due process property right deprivation since all undergrounding occurs in the city’s right of way. With respect to undergrounding in other neighborhoods, the court found the city lawfully analyzed them separately under CEQA because each neighborhood-based project is independent. The court also found “no reason to believe that CEQA requires an EIR to evaluate the aesthetic impacts of small, three-foot cubes placed next to the street in a developed neighborhood.” The court did assign the city homework, however, finding its Climate Action Plan (CAP) checklist insufficient to assess the project’s consistency with the CAP because the checklist, by its terms, does not apply to infrastructure projects. Once it corrects this issue, the City of San Diego should be able to take up its Sisyphean undergrounding task once more.
CEQA legislative wrap-up
The Legislature continued its focus on housing, passing a number of important bills this term, with modest CEQA implications. SB 9 requires ministerial approval for duplexes and lot splits, bypassing the CEQA process; SB 10 exempts from CEQA any local ordinance to zone any parcel for up to 10 residential units if located in transit-rich and urban infill areas; and AB 140 creates a CEQA exemption for housing targeted at homelessness and COVID-19 impacts until July 1, 2024, so long as the project can also submit a letter of support from a county, city or other local public entity. AB 819 digitizes the CEQA noticing process, requiring lead agencies to post CEQA notices and documents on their websites. (See CEQA News, Vol. 6, Issue 2.) SB 7 extends litigation streamlining for certain environmental leadership projects. (See CEQA News, Vol. 6, Issue 2.) SB 44, companion bill to SB 7, establishes streamlined procedures for the administrative and judicial review for an environmental leadership transit project in Los Angeles County.