In Nassiri v. City of Lafayette (2024) (June 27, 2024, No. A165324) ___ Cal.App.5th ___, the First District Court of Appeal held that the City of Lafayette properly relied on the “Class 32” infill exemption under CEQA Guidelines section 15332 for a 12-unit condominium project located adjacent to commercial buildings and a creek that provided habitat for Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service. The Court clarified the circumstances in which a species may be considered “rare” under CEQA for purposes of the infill exemption.

Background

In 2018, a developer applied to demolish a vacant building and construct a new 4-story, 12-unit condominium building on a 0.3-acre lot adjacent to commercial buildings and a creek. The City Council adopted a resolution approving the project and finding it exempt from CEQA pursuant to the infill exemption under CEQA Guidelines section 15332.

The owner of an office building adjacent to the project filed a petition for writ of mandate, alleging that the approval of the project violated CEQA. The trial court granted the petition based on its finding that substantial evidence did not support the City’s determination that the project site held no value as a habitat for endangered, rare or threatened species, but rejected the other CEQA claims.

The developer and the City filed a motion for new trial arguing that the only potential habitat for rare birds near the project was an area not part of the project site under CEQA Guidelines section 15332, subdivision (b) (citing Protect Tustin Ranch v. City of Tustin (2021) 70 Cal.App.5th 951 (Tustin Ranch)). The trial court granted the motion for based on its finding that substantial evidence in the administrative record supported the developer’s and City’s position. The trial court subsequently entered judgment denying the petition for writ of mandate. Petitioner appealed.

The Court of Appeal’s Decision

Habitat for Rare Species

The Court of Appeal concluded that substantial evidence supported the City’s finding that the project site was not known to have any value as habitat for rare species.

To qualify for the infill exemption, the project site must have no value as habitat for endangered, rare or threatened species. A species is considered “rare” under CEQA when it meets the criteria of CEQA Guidelines section 15380, subdivision (b)(2), and either: (A) “exist[s] in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens,” or (B) “is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered ‘threatened’ as that term is used in the Federal Endangered Species Act.”

The Court explained that while two bird species listed as Bird Species of Conservation Concern by the U.S. Fish and Wildlife Service were observed on the parcel near the proposed project, Petitioner provided no authority or legal analysis to support its claim that said species are “rare” under the CEQA Guidelines section 15380, subdivision (b)(2). The Court noted that Petitioner’s expert biologist never specifically addressed the definition of “rare” under the CEQA Guidelines, and only opined that the project site provided habitat value for “special-status species” without connecting this opinion to a conclusion that the species were therefore “rare.” The Court concluded that the City, on the other hand, provided substantial evidence in the form of expert reports explaining that the bird species were not “rare” based on the criteria listed under CEQA Guidelines section 15380. Moreover, the Court noted that even if Petitioner’s expert had provided an opinion that the bird species are rare, such a conclusion would only serve as evidence that the Court could weigh against evidence to the contrary.

While the Court did not reach the City’s argument that the “creek area” of the parcel where the bird species were observed was not part of the “project site” based on Tustin Ranch, supra, 70 Cal.App.5th 951, it did distinguish that case. Tustin Ranch held that an agency can consider a project site to be only part of an existing parcel for purposes of calculating the required 5-acre maximum site size for the CEQA infill development exemption. Here, the court explained, nothing suggested that the City considered the project site to exclude the “creek area.”

Air Quality

The Court also rejected Petitioner’s argument that the City lacked substantial evidence to conclude that the project would not result in a significant effect on air quality, another one of the criteria that must be satisfied before an agency can rely on the infill exemption.  Specifically, the Court disagreed with Petitioner’s argument that evidence in the form of a consultant firm’s report submitted by Petitioner constituted evidence that the project “would” result in significant effects on air quality, because the report only concluded that the project “may” result in impacts on the surrounding environment and “could” result in a potentially significant impact on air quality. The Court emphasized this distinction because the infill exemption “depends on if [a project] will have a significant effect.” Moreover, the Court agreed with the City that the consultant’s report did not constitute substantial evidence because it did not accurately reflect the scope of construction for the project or provide an accurate estimate of the associated health risks.

In Save the Capitol, Save the Trees v. Department of General Services (2024) 101 Cal.App.5th 1237, the Third District Court of Appeal reversed the trial court’s discharge of a peremptory writ of mandate and found that on remand, the trial court must determine whether a revised Final EIR remedied the CEQA violations identified by the appellate court in its earlier opinion before discharging the writ. The court held that the matter could be brought by a challenge to the writ return because the court retained jurisdiction to address issues within the scope of the previous merits challenge.

Background

In an earlier case, Save Our Capitol! v. Department of General Services (2023) 87 Cal.App.5th 655, 711 (Save Our Capitol), the Court of Appeal determined that an EIR analyzing alterations to the California State Capitol violated CEQA. The court remanded the matter with directions to the trial court to issue a writ “directing [the Department of General Services] (DGS) to partially vacate its certification of the EIR and to revise and recirculate the deficient portions of the EIR consistent with this opinion before it considers recertifying the EIR.” On remand, the trial court ordered: (1) partial EIR decertification and vacation of the project approvals “consistent with the Opinion of the Court of Appeal”; (2) suspension of activities that would physically alter the capitol and no further discretionary approvals in reliance on the decertified EIR; and (3) for DGS to file a final return to the writ “upon certification of a revised EIR.”

DGS partially vacated its certification of the EIR and the associated project approvals and revised, recirculated, and certified the Final EIR. DGS then partially reapproved the project without a visitor center component that was part of the originally approved project. DGS then filed a final return, requesting that the court discharge the writ. The trial court discharged the writ, over plaintiff Save the Capitol’s objection, without determining whether the revised Final EIR remedied the CEQA violations identified by the appellate court.

The Court of Appeal’s Opinion

Remedial Action Ordered

The Court of Appeal held that the trial court could not discharge the writ without determining whether the revised EIR remedied the CEQA deficiencies identified earlier in Save Our Capitol. The trial court’s peremptory writ issued all three types of mandates authorized by Public Resources Code section 21168.9: (1) to void the action or decision by the agency under subdivision (a)(1); (2) to suspend project activities that affect the physical environment until action is taken to bring the situation into compliance under subdivision (a)(2); and (3) to take specific action to bring the determination into compliance under subdivision (a)(3). The court emphasized that the third directive required DGS to remedy the CEQA deficiencies consistent with the appellate court’s earlier opinion. In addition, section 21168.9, subdivision (b), required the trial court to retain jurisdiction, pending compliance with CEQA. The court noted that “ensur[ing] CEQA compliance after violations have been identified” is the “manifest purpose of a peremptory writ in this context.”

The court distinguished McCann v. City of San Diego (2023) 94 Cal.App.5th 284, as an instance where the appellate court’s prior direction to the trial court did not order remedial action in compliance with CEQA.

Writ Return Challenge

The parties disagreed whether Save the Capitol was permitted to challenge the sufficiency of the discharge of the writ by writ return or whether it was required to file a new action. The court held that it was acceptable for Save the Capitol to proceed by writ return challenge because the court retained jurisdiction under Public Resources Code section 21168.9, subdivision (b), as expressly stated in the writ.

The court rejected DGS’s argument that Save the Capitol should have used clearer language in the writ to make its preferred interpretation explicit, finding instead that the writ properly encompassed applicable law, the purpose of the writ, and the court’s order. The court also rejected DGS’s argument that requiring remedial action could result in inconsistent adjudications of the same issue if one plaintiff challenges the adequacy of the revised EIR via a new writ, while another does so by objection to the writ return. The court explained that such a result could be eliminated through a consolidation order. The court was similarly unpersuaded by DGS’s argument that allowing Save the Capitol to challenge the revised EIR via objection to the writ return would open the door to new merits challenges because no new issues are permitted to be raised in this manner.

Lastly, the court disagreed with Save the Capitol’s argument that discharge of the writ was premature because one component of the project was not yet reapproved. The court held that that because that component was not reapproved, it was no longer part of the project, and any later approval of that component would trigger a new deadline to challenge the action under CEQA.

In Make UC a Good Neighbor v. The Regents of the University of California (2024) 16 Cal.5th 43, the California Supreme Court held that the EIR for UC Berkeley’s Long-Range Development Plan (LRDP) and the People’s Park housing project complied with CEQA, reversing an earlier decision by the First District Court of Appeal. In doing so, the Court relied on new CEQA amendments (“AB 1307”) enacted by the Legislature for the purpose of abrogating the Court of Appeal’s decision. Pursuant to AB 1307, the Court held that: (1) the EIR was not required to analyze potential impacts related to student noise that could result from either the LRDP or the People’s Park housing project, and (2) the EIR was not required to analyze alternative locations for the People’s Park housing project.

Factual and Procedural History

The Regents approved UC Berkeley’s LRDP in July 2021. The LRDP identifies campus space, housing, and parking needs and describes development strategies generally intended to assist the university in addressing these needs. Among other things, the LRDP proposed the development of 11,073 student beds and 549 faculty and staff beds, in anticipation of enrollment increases.

Shortly after, in September 2021, the Regents approved the People’s Park housing project. Consistent with the LRDP, the People’s Park housing project sought to redevelop the People’s Park site near the UC Berkeley campus to provide 1,113 new student beds, 125 affordable and supporting housing beds, and 1.7 acres of open landscape.

In the summer of 2021, ahead of these approvals, the Regents certified an EIR that analyzed the environmental impacts of both the LRDP (on a programmatic level) and the People’s Park housing project (on a project level).

CEQA Litigation

Petitioners Make UC a Good Neighbor and People’s Park Historic District Advocacy Group (together, “Good Neighbor”) filed a petition for writ of mandate in October 2021, seeking to void the certification of the EIR and overturn the approvals of the LRDP and the People’s Park housing project. The trial court denied the petition. Good Neighbor appealed.

The Court of Appeal reversed, holding that the EIR violated CEQA in two ways: (1) by failing to study the noise impacts resulting from an increase in loud student parties, and (2) by failing to consider a reasonable range of alternative sites for the People’s Park housing project.

Both Good Neighbor and the Regents petitioned for review. The Supreme Court granted the Regents’ petition and denied Good Neighbor’s petition.

AB 1307

While the case was pending in the Supreme Court, and in response to the appellate court’s decision, the Legislature passed AB 1307. Under CEQA, as amended by AB 1307, (1) “for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment” and (2) “institutions of public higher education shall not be required, in an environmental impact report prepared for a residential or mixed-use housing project, to consider alternatives to the location [if certain requirements are met].”

The Supreme Court’s Decision

Applying AB 1307, the Supreme Court held that none of Good Neighbors’ claims had merit.

Good Neighbor conceded—and the Court agreed—that under AB 1307, social noise could not be considered an impact of the People’s Park housing project, and the Regents were not required to analyze alternative locations for the People’s Park housing project.

Good Neighbor argued, however, that the EIR was still required to consider social noise impacts resulting from the LRDP because, unlike the People’s Park housing project, the LRDP was not a “residential project” for purposes of AB 1307. The Court disagreed. After finding the meaning of the statutory term “residential projects” to be ambiguous and acknowledging the Legislature’s intent to abrogate the appellate court’s interpretation that CEQA covered social noise from students and their guests, the Court determined that the Legislature intended for AB 1307 to apply to the residential aspects of the LRDP as well as the People’s Park housing project.

Additionally, Good Neighbor argued that the Court should decide its “moot” claim regarding the need to consider alternative locations because it raised issues that involved the public interest and were likely to recur. The Court declined. The Court explained that the mootness doctrine only applies where it is impossible for a court to provide effective relief—not where, as in this case, a petitioner is not entitled to any relief. Accordingly, the Court found that Good Neighbor’s request to consider AB 1307’s application to future projects constituted an impermissible request for an advisory opinion.

Accordingly, the Court reversed the appellate court’s opinion and held that judgment should be entered in favor of the Regents.

-Louisa Rogers