CEQA News You Can Use - Volume 6, Issue 4 - December 2021
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CEQA News You Can Use - Volume 6, Issue 4 - December 2021

Brownstein Client Alert, December 30, 2021

Welcome to “CEQA News You Can Use,” a quarterly production of Brownstein Hyatt Farber Schreck'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!

When is the real party in interest indispensable? Well, it depends ...

When is a real party in interest so indispensable that a CEQA case cannot proceed without it? In Save Berkeley’s Neighborhoods v. The Regents of the University of California (2021) 70 Cal.App.5th 705 (rehearing denied), the First District Court of Appeal affirmed the trial court’s order allowing a CEQA action challenging a project on the U.C. Berkeley campus to proceed even though the project developers could not be joined because the statute of limitations to sue them under CEQA had run. The court held that while real parties in interest are necessary parties under Public Resources Code § 21167.6.5(a), whether they are indispensable parties under Code of Civil Procedure § 389(b) depends on an equitable balancing test. The court clarified that Public Resources Code sections 21108 and 21167.6.5 do not create a presumption that real parties are indispensable. The court found the developers not indispensable because there was strong unity of interest between the regents and the developers, and the petitioner would not have an adequate remedy as the limitations period had run. The court’s analysis was based, in part, on the “foremost principle” that CEQA is “to be interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.”

CEQA’s “infill” exemption can apply to parcels over five acres as long as the development site is no more than five

In Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951 (petition for Supreme Court review pending), the Fourth District Court of Appeal upheld the city’s use of the “infill” categorical exemption (CEQA Guidelines section 15332) for the addition of a Costco gas station to an existing shopping center on a parcel larger than five acres where the development “site” is less than five acres.  Despite conflicting statements in the record, the court found reports describing the proposed development as just over two acres to constitute substantial evidence that the “project site” was less than five acres.  The court also rejected Protect Tustin Ranch’s claim that the “unusual circumstances” exception to the exemption applied (CEQA Guidelines section 15300.2(c)), finding the addition of a gas station to a shopping center and commercial area not unusual.

Trial court almost strikes death knell to the heart of CEQA

In Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300, Farmland Protection Alliance successfully challenged a bed and breakfast and commercial event facility project on the grounds that Yolo County failed to adequately analyze impacts on a trio of species: the tricolored blackbird, the valley elderberry longhorn beetle and the golden eagle. In response, the trial court fashioned an unorthodox remedy: requiring a limited EIR on the species-related impacts, but keeping the MND in place for the rest of the project. The Third District Court of Appeal decisively rejected this hybrid CEQA remedy approach. When substantial evidence supports a fair argument that any aspect of the project may have a significant effect on the environment, an EIR is required. According to the court, to hold otherwise would “strike a death knell to the heart” of CEQA.


No seats left at the table: union denied permission to intervene in CEQA suit

In South Coast Air Quality Management District v. City of Los Angeles (2021) 71 Cal.App.5th 314 (request to depublish opinion pending), the Second District Court of Appeal upheld the trial court’s denial of the labor unions’ request to intervene in a CEQA suit to defend approval of a terminal project at the Port of Los Angeles. The court found that the unions’ position—preventing the shutdown of the port terminal—duplicative of the city’s position, while noting that the case already had an “impressively large cast of characters” with “eight petitioners, four respondents, and four real parties in interest.” (One wonders if a partridge in a pear tree may also have been present but unaccounted for.) The court concluded that the unions’ participation “would be largely cumulative and would unduly complicate an already complicated case.”

Coastal Commission fails to follow procedure when approving project contrary to staff recommendation

When the Coastal Commission takes up de novo review of a coastal development permit (CDP), it also becomes responsible for environmental review of the project under CEQA, even if another agency previously prepared an EIR. This procedural complexity led to difficulties in Friends, Artists And Neighbors of Elkhorn Slough v. California Coastal Commission (2021) ___ Cal.App.5th ___, when staff recommended denial of the CDP but the commissioners voted 7-5 to approve the project, a residential subdivision. The project was proposed with 100 homes in 2000, approved for 80 homes by Monterey County in 2008, and appealed to the Coastal Commission in early 2009. After revising the project down to 54 homes, it went before the Coastal Commission in 2017. Coastal Commission staff recommended denial of the CDP, citing inconsistency with the Local Coastal Program (LCP), primarily because the groundwater basin was in severe overdraft even though the project would be “water positive.” After the Coastal Commission approved the CDP, staff prepared new findings to support its decision, which the Coastal Commission approved in 2018. Although the trial court concluded that the 2017 staff report included sufficient environmental analysis to support the commissioner’s CDP approval, the appellate court disagreed, finding that the 2017 staff report did not qualify as a “functional equivalent” of an EIR because it did not consider alternatives and mitigation measures. Further, while Coastal Act regulations contemplate that Coastal Commissioners may reach a decision substantially different than the staff recommendation, the prevailing commissioners must state the basis for their action in sufficient detail to allow preparation of revised findings. The court found that none of the prevailing commissioners complied with this procedure by “expressing a view regarding mitigation measures or project alternatives, or regarding any conditions that might be necessary for project approval.” 

Small domestic use registrations remain above CEQA’s murky waters

Since the California Supreme Court determined that not all groundwater well permits were “ministerial” (see Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479 (POWER) [described in other CEQA News articles and Brownstein Client Alerts]), it has been somewhat of an open question whether other types of agency decisions on form permits are subject to CEQA. In Mission Peak Conservancy v. State Water Resources Control Board (2021) ____ Cal.App.5th ___, Mission Peak Conservancy argued that the State Water Resources Control Board’s (State Board) small domestic use registration process is subject to CEQA because it requires compliance with the Department of Fish and Wildlife’s (DFW) discretionary permit conditions for the water diversion. Rejecting the petitioner’s arguments, the First District Court of Appeal found the registration process exempt from CEQA because the State Board has no “legal authority to impose environmentally beneficial changes as conditions on the project” as it has no authority to shape DFW’s conditions.

When recirculating a draft EIR, the burden for summarizing changes is low

In a case of first impression, the Fourth District Court of Appeals considered to what extent CEQA Guidelines section 15088.5(g) requires a lead agency to summarize revisions made to a draft EIR when it is revised and recirculated in Save Civita Because Sudberry Won’t v. City of San Diego (2021) ___ Cal.App.5th ___. The court found that “where a recirculated EIR states that it is replacing a prior EIR and the agency makes clear the overall nature of the changes … and states that prior comments will not receive responses, the agency may be said to have complied” with § 15088.5(g). Since the city met this test in its recirculated draft EIR, the court found the city complied. The court also rejected the petitioners’ claim that advocacy by a city councilmember’s office in favor the community plan amendment to add a road violated petitioners’ procedural due process rights because the San Diego City Council’s action to approve the community plan amendment, authorize road construction, and certify the EIR were quasi-legislative acts for which procedural due process rights did not apply

From all of us here at Brownstein, we wish you and yours a joyous and safe holiday season!  

Is it just us, or did 2021 start out at a leisurely pace and then come racing to the finish? As we all continue to live in this COVID world, we at Brownstein Hyatt Farber Schreck are grateful for the opportunity to represent our clients, for invigorating and cutting edge work, and for the fellowship of clients, colleagues, friends and family. We wish you and yours a peaceful and healthy end to 2021, with hopes for a more *normal* year in 2022

This document is intended to provide you with general information regarding CEQA updates. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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