CEQA News You Can Use, December 2023 - Volume 8, Issue 3
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CEQA News You Can Use, December 2023 - Volume 8, Issue 3

Brownstein Client Alert, Dec. 29, 2023

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!

Coastal height limit (temporarily) “saved” due to inadequate prior EIR

In Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819, the Fourth District Court of Appeal held that the city’s approval of a ballot measure to remove the local 30-foot coastal height limit required further environmental review. In 2020, the city approved a ballot measure proposing amendments to exclude the Midway-Pacific Highway Community Plan Area from the 30-foot height limit for buildings within the city’s coastal zone (which is separate from the California Coastal Zone). The city relied on the analysis in a 2018 programmatic EIR for the Community Plan Area update to support its approval of the ballot measure. The Fourth District, however, concluded that the 2018 EIR did not adequately evaluate the impacts associated with removal of the height limit. Applying the fair argument test, the court found substantial evidence that removal of the height limit may create potential unexamined environmental impacts. The height limit saga continues as Save Our Access has challenged the city’s subsequent ballot measure and approval of a supplemental EIR to remove the height limit.

Multifamily project can proceed under 2006 program EIR

In Olen Properties Corp. v. City of Newport Beach (2023) 93 Cal.App.5th 270, the court upheld the city’s addendum to its 2006 program EIR for a general plan update. In 2006, the city certified the program EIR for redevelopment of the Koll Center, which included a discussion of potential construction of multi-family housing. In 2021, the city approved an addendum that analyzed a new five-story, 312-unit housing project at the same site. Olen Properties, a commercial property owner in the Koll Center, filed suit claiming that the city should have prepared a subsequent EIR instead pursuant to Sierra Club v. County of Sonoma because the project was not within the scope of the 2006 program EIR. The court disagreed, finding that the 2006 EIR considered multi-family housing. Instead, the court applied the deferential substantial evidence standard and CEQA section 21166 to find that there were no significant changes requiring a subsequent EIR.

Court rejects CEQA infill exemption where project is inconsistent with a General Plan policy

In United Neighborhoods for Los Angeles v. City of Los Angeles (2023) 93 Cal.App.5th 1074, the Second District Court of Appeal rejected the City of Los Angeles’ attempt to approve a hotel project that required demolition of 40 low-income units pursuant to the Class 32 categorical exemption found in the CEQA Guidelines, otherwise known as the “infill” categorical exemption. United Neighborhoods argued that eliminating low-income housing in favor of the hotel project was inconsistent with the city’s housing element goals supporting preservation of affordable units in a housing crisis and, as such, the project could not qualify under the infill exemption because it is not “consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.” (CEQA Guidelines, Section 15332, subd. (a)). First, the court found that United Neighborhoods had exhausted its claims during the administrative process before the city by arguing the project was inconsistent with the housing element’s goals, even though it did not cite the housing element’s policies as well. Second, in reviewing the record for substantial evidence supporting the city’s determination that the project qualified under the infill exemption, the court found that the city had not explicitly considered the consistency of the project with the housing element (instead, the city found the housing element did not apply to the project), and so the court need not accord any deference to the city’s determination. Finding that the Housing Element did apply to the project, the court upheld the trial court’s ruling that the infill exemption was not supported by substantial evidence.

CEQA doesn’t require speculative review, even when new school solutions face old-school problems

The City of Salinas’ West Area Specific Plan, which establishes a long-term development framework for the area, contemplates an increase in housing over the next several decades. With more housing comes more residents and a related strain on the capacity of schools—an indirect effect requiring CEQA analysis whenever adding school capacity would have a reasonably foreseeable impact on the environment. In Santa Rita Union School District v. City of Salinas (2023) 94 Cal.App.5th 298, the city’s EIR analyzed these indirect effects by assuming that new schools would be built to accommodate new residents. Citing to historic underfunding that would likely hamper their ability to build new schools, two school districts argued that the city’s EIR failed to assess a range of more feasible options for increasing school capacity, such as changes at existing school sites. The Sixth District Court of Appeal upheld the EIR, however, concluding that the information provided by the school districts regarding underfunding and the range of alternative options was too uncertain and vague to require additional analysis under CEQA. This conclusion was made in light of the nature of long-term land-use planning documents like the Specific Plan and uncertainty regarding the specific actions the school districts might take to accommodate new residents, actions that the city could not reasonably anticipate and that may require project-level CEQA review by the districts, as necessary.

CEQA cannot be used to prevent a public agency from enforcing the law

In a wealthy Montecito neighborhood with scarce parking, petitioners in Anderson v. County of Santa Barbara (2023) 94 Cal.App.5th 554 had been enjoying the private use of a strip of land abutting their properties by installing “No Parking” signs, boulders, trees and other landscaping, despite the fact that the land was part of the county’s right of way and the landowners had not obtained Encroachment Permits. The county ignored the unauthorized use of this portion of its easement area for many decades until the COVID lockdown inspired an unusually large number of hikers to take to a nearby hiking trail, bringing the landowners’ encroachment to light. After staking the right of way, the county ordered removal of all obstructions to public parking in the disputed area. The county determined that the removal project was exempt from CEQA because it involved restoration of an existing roadway to maintain the safe traveling condition of the public road. The landowners obtained a preliminary injunction prohibiting the county road commissioner from removing the encroachments and determined the county could proceed with its project after complying with CEQA. Overturning the trial court, the Second District Court of Appeal held that Code of Civil Procedure Section 526 (as well as state law, county ordinances, and the CEQA Guidelines) prohibited use of an injunction “to prevent the execution of a public statute by officers of the law for the public benefit.” The Court of Appeal also pointed out that parking had always been allowed along this roadway so the county’s action was restoration of parking access, not a new project, so there would be no irreparable harm.

Latest challenge to how to analyze climate change in an EIR goes up in smoke

The methodology an agency uses to assess a project’s climate change impacts under CEQA has been a hot topic in the courts for the past decade (See, e.g., Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204; Sierra Club v. County of Fresno (2018) 6 Cal.5th 502; Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th 892). In the courts’ latest foray into this nebulous topic, Tsakopoulos Investments, LLC v. County of Sacramento (2023) 95 Cal.App.5th 280, Tsakopoulos Investments argued that the county used the same methodology in setting thresholds of significance for greenhouse gas emissions that was rejected by the courts in Center for Biological Diversity and Golden Door. The court disagreed, finding that the county had properly developed county-specific numeric thresholds and compared the project’s emissions against those thresholds, rather than using a statewide “business-as-usual” goal or a “one-size fits all” approach for all types of projects (both of which were rejected by prior decisions). The decision emphasizes the rule from Center for Biological Diversity that an agency has substantial discretion to choose its methodology, so long as that choice is supported by substantial evidence.

First District Court of Appeal takes the wind (mitigation) out of its own sails

Only six months after East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226 (holding that the EIR improperly deferred wind mitigation without sufficient performance standards) (August 2023 CEQA News You Can Use), the First District Court of Appeal qualified its earlier ruling in Yerba Buena Neighborhood Consortium, LLC v. Regents of Univ. of California (2023) 95 Cal.App.5th 779. Considering an EIR for a long-range planning document to guide development of the University of California, San Francisco’s medical, educational, research and housing facilities, the court reached “a contrary conclusion regarding a similar mitigation measure.” The Yerba Buena court acknowledged that “the list of proposed actions to mitigate wind impacts in the EIR is little different from the list of actions found inadequate in East Oakland.” Yet, because the Board of Regents adopted a statement of overriding consideration with respect to wind impacts, the measures did not need to mitigate impacts below significance levels and “the performance standard was not required to specify an inflexible goal, but rather to describe [mitigation] in a reasonably clear and objective manner.” The court thus found that Yerba Buena “differs enough to articulate a ‘reasonably clear and objective measure of compliance’ and adequately inform the public where the balance between wind mitigation and commercial functionality has been struck” where the EIR made clear that reducing the size of the buildings would not be a feasible mitigation measure because it frustrated project objectives. Accordingly, the court upheld the EIR in its entirety, also holding: (1) alternatives with quantitative variety (i.e., level of development) and that address the project’s environmental harms constitute a reasonable range; (2) failing to analyze transportation impacts was not prejudicial “for reasons peculiar to the assessment of transit impacts in ‘transit priority areas’”; (3) public universities with land use discretion rely on zoning-like substitutes to determine whether the exemption for consideration of aesthetic impacts for transit-oriented infill applies; and (4) whether preservation of historic buildings or reducing wind speed by reducing building size are “feasible” mitigation is a policy judgment worthy of deference, not a “narrowly technical assessment.” A petition for certiorari remained pending with the California Supreme Court at the time of publication.

Monterey County entitled to rely on prior EIR for desalination plant

In Marina Coast Water District v. County of Monterey (2023) 96 Cal.App.5th 46, the Sixth District Court of Appeal reversed the trial court and upheld Monterey County’s reliance on a prior EIR to approve construction of a desalination plant to provide water to the Monterey Peninsula. The Marina Coast Water District had challenged the County’s reliance on a prior EIR, arguing that the county should have prepared a supplemental EIR pursuant to CEQA Section 21166 because of changed circumstances since the EIR was certified—namely, that the City of Marina had denied a coastal development permit (CDP) for the slant wells required to draw ocean water into the desalination plant—and that county’s statement of overriding considerations could not justify the environmental impacts of the desalination plant. Noting that the California Coastal Commission had the final say on the CDP for the slant wells (which it later conditionally granted), the court found that the city’s denial did not constitute changed circumstances under Section 21166. The court also found no basis for additional environmental review based on groundwater conditions, given that substantial evidence in the record supported the county’s decision, even though the district also submitted contradictory expert analysis. The court also upheld the county’s rejection of an alternative that would have relied on another water supply project to supply some of the water the desalination project would supply because the other project had not yet been approved. Finally, the court reversed the trial court’s finding that the county improperly relied on the project’s future water supply benefits for its statement of overriding considerations because the city had initially denied the CDP. Pointing out that the CCC had the final permitting authority over the CDP, the court held that it was proper for the county to cite the project’s benefits because the final decision on the slant wells had not yet been made. A petition for certiorari remained pending with the California Supreme Court at the time of publication.

Court rejects standard of review switcheroo

In Historic Architecture Alliance v. City of Laguna Beach (2023) 96 Cal.App.5th 186, the alliance challenged the city’s finding that a project to remodel and expand a historic home was exempt from CEQA under the Class 31 categorical exemption. (CEQA Guidelines, Section 15531.) The alliance argued that the exemption could not be used because there was a fair argument the project would result in a substantial adverse change in the significance of a historical resource. It also argued when a project opponent attempts to establish an exception to an exemption, the appropriate standard of review is the “fair argument” test. The alliance asserted their burden was satisfied by showing the existence of a fair argument the project “may cause a substantial adverse change in the significance of a historical resource . . ..”  (Pub. Res. Code, Section 21084, subd. (e)) and, therefore, the historical resource exception should apply. The court found that the application of the historical resource exception hinged entirely on whether or not the project complied with the Secretary of the Interior’s Standards for the Treatment of Historic Properties pursuant to the Class 31 categorical exemption, which had already been established under the substantial evidence standard. Therefore, the fair argument standard did not apply where the decisive factor for the historical resource exception was the same as that for historical resource exemption. A petition for certiorari remained pending with the California Supreme Court at the time of publication.


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