Author Archives: Elizabeth Pollock

Fifth District Court of Appeal Upholds Trial Court’s Refusal to Order Partial Decertification of EIR, Noting Conflict With Other Districts

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In Sierra Club v. County of Fresno (2020) 57 Cal.App.5th 979, a partially published opinion, the Fifth District Court of Appeal upheld the trial court’s refusal to issue a narrow writ following the California Supreme Court’s ruling in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502 (Friant Ranch). Rejecting the concept that an EIR can be partially decertified, the court determined that the trial court properly directed the County to decertify the entire EIR and vacate the project approvals. In the alternative, the court held that, even if the partial decertification of an EIR can sometimes be an available remedy, that remedy was not available in this case.

The underlying Friant Ranch case involved a CEQA action challenging a proposed master-planned community in Fresno County (“the project”). In 2018, the Supreme Court ruled that the EIR for the project violated CEQA because it failed to include an adequate discussion of public health impacts from air pollutants generated by the project, and ordered the Court of Appeal to “remand the matter for additional proceedings consistent” with its opinion. On remand, the trial court issued a writ of mandate ordering the County to “[v]acate or set aside” the project approvals, “and not approve the project before preparing a revised EIR.” Real Party in Interest, Friant Ranch L.P., and the County filed a motion to vacate and reconsider the judgment and writ, arguing that the trial court drafted an overbroad writ, and should have only partially decertified the EIR, leaving most of the project’s approvals in place. The trial court denied the motion and this appeal followed.

The Court of Appeal upheld the trial court’s judgment and writ on two alternative grounds. First, the court held that an EIR cannot be partially decertified under Public Resources Code section 21168.9, subdivision (a), and the County therefore was required to decertify the entire EIR and vacate the project approvals. That section gives courts the authority to direct an agency “to void, in whole or in part, a determination, finding or decision made in violation of CEQA” (emphasis added).  But, the court reasoned, Public Resources Code sections 21100, subdivision (a) and 21151, subdivision (a), and Guidelines section 15090, subdivision (a)(2), require public agencies to certify “the completion of the EIR” in compliance with CEQA. Thus, the court found that an EIR cannot be partially certified; it is either complete or not.

The court cited its opinion in LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675 (LandValue 77), where it previously held that partial certification of an EIR is not consistent with CEQA. The court conceded that other courts of appeal have since disagreed with the holding in LandValue 77. For example, in Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th 1245 (CBD III), the Second District Court of Appeal held that partial decertification is permissible under section 21168.9, subdivision (a). And, in Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, the Fourth District criticized LandValue 77’s rejection of partial certification in dicta. The Fifth District Court of Appeal concluded that those opinions did not explain how an agency can certify an EIR “in part” under sections 21100(a) or 21151(a), and therefore, the court found those cases unconvincing.

The court went on to find, in the alternative, that even if partial certification is allowed under CEQA, it was inappropriate in this case. In CBD III, the Second District Court of Appeal stated that partial certification is permissible “so long as a court makes a severance finding under [Public Resources Code] section 21168.9(b).” Here, the court determined that severance was not proper, for reasons explained only in the unpublished portion of the decision. Finally, the court determined that its decision in this case would not result in unfair new challenges to the EIR because most of the components of the EIR had already been litigated and resolved. Any arguments on those issues would therefore be barred by res judicata, collateral estoppel, and CEQA’s exhaustion of administrative remedies requirement.

As the court acknowledged in this case, the Courts of Appeal are divided over whether partial decertification of an EIR is permissible under CEQA. While the Fifth District believes it is an “oxymoron” to conclude an agency can partially “certify the completion of” an EIR, other districts disagree.

Sixth District Court of Appeal holds that seeking a streambed alteration agreement from CDFW was not a “further discretionary approval” by the City of San Jose, and therefore subsequent CEQA review was not required

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Ruling on the petitioners’ second attempt to halt the demolition of the Willow Glen Trestle, the Sixth District Court of Appeal held that the act of seeking a new streambed alteration agreement from the California Department of Fish and Wildlife for the previously reviewed project was not a “new discretionary approval,” and therefore did not require supplemental environmental review. (Willow Glen Trestle Conservancy v. City of San Jose (2020) 49 Cal.App.5th 127.)

Background

In 2014, the City of San Jose (the City) approved a mitigated negative declaration (MND) for the demolition and replacement of the Willow Glen Railroad Trestle, a wooden railroad bridge built in 1922. When the City approved the MND, the trestle was not listed in the California Register of Historical Resources. The Friends of the Willow Glen Trestle filed a lawsuit challenging the MND. The trial court concluded that substantial evidence supported a fair argument that the trestle was a historical resource, and the City was therefore required to prepare an environmental impact report. The Court of Appeal remanded the matter to the trial court, holding that the substantial evidence standard of review, not the fair argument standard, applied to the City’s determination of historical status. (Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457.)

In May 2017, the California State Historical Resources Commission approved listing the trestle in the California Register of Historical Resources. Also in 2017, the City’s streambed alteration agreement (SAA) with the California Department of Fish and Wildlife (CDFW) expired. The City submitted a new notification to CDFW and CDFW issued a final SAA in August 2018. The Willow Glen Trestle Conservancy and Friends of the Willow Glen Trestle (collectively the Conservancy) filed another lawsuit, this time alleging that entering into the SAA was a discretionary approval by the City that triggered supplemental environmental review under Public Resources Code section 21166.

The trial court determined the 2018 SAA did not involve a new discretionary approval and the Conservancy appealed.

The Court of Appeal’s Opinion

Public Resources Code section 21166 and CEQA Guidelines section 15162 require supplemental environmental review, in limited circumstances, when an agency must make a “further discretionary approval” for a project for which the agency has already completed review. The Conservancy argued that the City’s submission of a notification to CDFW in order to obtain a new SAA amounted to an approval by the City, requiring supplemental environmental review. The Court of Appeal disagreed, holding that approval of the SAA was an action by CDFW, not the City.

The Conservancy argued that the City’s act of seeking and accepting the SAA was a discretionary approval. Quoting the Supreme Court in Friends of College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937, 945, the Court of Appeal emphasized that sections 21166 and 15162 limit the circumstances under which a subsequent or supplemental EIR must be prepared, and promote the interests in finality and efficiency. If every action in connection with a project were considered an “approval,” the court said, each and every step of a lead agency would reopen environmental review under CEQA.

The Conservancy also argued that different rules should apply because this was the City’s own project, rather than a private project. The Conservancy argued that because the City retained discretion to reconsider or alter the project, its failure to abandon the project was itself a new discretionary approval. The court rejected this argument, again because the purpose of section 15162 is to limit subsequent environmental review. In addition, the court said, section 15162 makes no distinction between public and private projects.

The court concluded that the City was implementing the project when it submitted a new notification to CDFW and when it accepted the SAA. The only new approval was CDFW’s, and the Conservancy did not challenge that decision.

First District Court of Appeal Holds That “Demolition By Neglect” Does Not Constitute a Project Under CEQA

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The First District Court of Appeal held that a failure to act to preserve an historic property is not a
“project” under CEQA. (The Lake Norconian Club Foundation v. Department of Corrections and Rehabilitation (2019) 39 Cal.App.5th 1044.)

The Lake Norconian Club opened in 1929 as a “luxury resort catering to Hollywood stars and sports celebrities.” Since then, the building has operated as a military hospital, a drug rehabilitation facility, and administrative offices. The building, which sits adjacent to a state prison, has been vacant since 2002.

In 2012, the Legislature enacted SB 1022, which required the Department of Corrections and Rehabilitation to close the adjacent prison. The Department published a draft EIR for the closure of the prison, which included analysis of potential impacts on the former hotel as a result of the closure. The EIR concluded there was no funding for repair or rehabilitation of the building, and continued deterioration was expected. The Legislature subsequently rescinded closure of the prison. The Department certified a final EIR in 2013, which concluded that although the prison would not be closed, the Department would not be able to repair or maintain the former hotel.

The Lake Norconian Club Foundation filed a petition for writ of mandate in November 2014, alleging the Department abused its discretion by failing to act to protect the hotel. The Foundation alleged that the “department’s de facto issuance of ongoing demolition permits is a precommitment to a CEQA project that cannot lawfully be considered for approval or implementation without first preparing and certifying an EIR to consider impacts and alternatives.”

The trial court concluded that the Department’s failure to seek or allocate funding to preserve the hotel was a project within the meaning of CEQA, but rejected the Foundation’s assertion that the failure to engage in routine maintenance or mere inaction was a project. Regardless, the trial court held that the petition was untimely because the statute of limitations began to run when the Department certified the EIR for the closure of the prison complex in 2013.

The Court of Appeal upheld the trial court’s denial of the petition, but on different grounds. The court concluded that an agency’s failure to act is not itself an activity subject to CEQA, even if there are potential environmental consequences of the inaction. The continuing failure to make repairs, the court said, is not an activity under CEQA. The court noted several difficulties with determining when the statute of limitations would begin to run on an agency’s inaction. The court relied on similar circumstances arising in NEPA case law and explained that federal courts have repeatedly rejected similar arguments.

Finally, the court explained that it need not decide whether the analysis would be different where there is a mandatory duty on the part of the agency to act, because here, the Department had no such mandatory duty. For sure, the court said, absent a statutory duty, the Department’s failure to act cannot be deemed a project or challenged for noncompliance with CEQA.

Fourth District Court of Appeal Holds City’s Scenic View Ordinance Is Considered a Zoning Ordinance under Gov. Code Section 65901 and Therefore Subject to 90-Day Service Deadline for Petition in Section 65009

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In a unanimous opinion, the court in Weiss v. City of Del Mar (2019) 39 Cal.App. 5th 609, upheld the trial court and found that the 90-day service deadline in Government Code section 65009 applied to a planning commission action on a municipal scenic view ordinance. As a result, the court held that a petition for writ of mandate that was served on the City three months after the deadline was time barred.

Background

In August 2016, Petitioner Shirli Weiss submitted an application to the City of Del Mar under its Scenic View Ordinance requesting that Torrey Pacific Corporation, her neighboring property owner, trim its “‘wildly overgrown’” vegetation and trees to restore the ocean view from her property. The Planning Commission held a hearing on the application and, though divided, denied her request. The City Council issued a 2-2 split decision on her appeal in July 2017 which, under the City’s rules, reinstated the Planning Commission’s decision to deny her request.

Weiss filed a petition for writ of mandate against the City and Torrey Pacific in September 2017, but did not serve the City with the petition until December 2017. The respondents jointly moved to dismiss under the 90-day service requirement in Government Code section 65009, subdivision (c)(1)(E). The trial court granted the motion and found it was “‘undisputed’” that this statutory deadline was not met. Weiss appealed. In her appeal, she acknowledged that she served the City more than 90 days after the City Council denied her appeal but contended that section 65009’s deadline did not govern her action.

Time Barred by Section 65009

The Court of Appeal considered the “‘usual and ordinary meanings’” of the plain language in section 65009 within the context of the entire statute. Section 65009, subdivision c, plainly states that a “challenger must file and serve the public entity within 90 days of the challenged decision.” This statute of limitations, the court explained, applies to adoption or amendments of specific plans, general plans, zoning ordinances, development agreements, and regulations attached to specific plans, and all actions “‘done or made prior to any of these decisions.’” (Gov. Code, § 65009, subd. (c)(1).) The service requirement also applies to “‘any decision on the matters listed in Sections 65901 and 65903.’” (Id.) Sections 65901 and 65903 primarily apply to actions related to a zoning ordinance, such as a conditional use permit, variance, or “‘any other powers granted by local ordinance’” to the board of zoning adjustment or zoning administrator. (Id. at § 65901, subd. (a).) The court noted that section 65903 includes zoning board of appeals decisions.

Weiss argued that the City’s Scenic View Ordinance is not a zoning ordinance because it is not within the Municipal Code zoning rules and regulations. The court disagreed, and determined that the Planning Commission was “functionally acting in a zoning board capacity” when it ruled on Weiss’s application. The court explained that the substance of the Scenic View Ordinance required the City to “undertake[] zoning and planning responsibilities,” and therefore it did not matter whether the ordinance was within the City’s Municipal Code. The court cited to Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148, where the court held that a tree ordinance was a zoning ordinance. The court noted that any decision made under the Scenic View Ordinance is “quintessentially a public entity decision involving…a land use and zoning determination.” But, the court said, even if it were not a zoning/land use determination, the “‘any other powers’” clause in section 65901 is broad and includes decisions on “a range of issues outside” the categories listed in sections 65901 and 65903.

Weiss also argued that sections 65009 and 65901 only apply to planning or zoning decisions on a project or development, but do not apply to enforcement of an ordinance. Weiss cited section 65009’s stated purpose—to provide “’certainty regarding decisions’” so that owners and governments can “‘proceed with projects.’” The court disagreed with this argument because, particularly where statutory language is “clear and unambiguous,” general statements of statutory purpose “do[] not override the substantive portion” of a statute.  Weiss also argued that the 90-day deadline in section 65009 had only ever been applied to projects or development and never in circumstances like those at issue here. The court agreed with Weiss, but explained that there was no authority stating that section 65009 is triggered only for challenges to projects or developments.

The court also rejected several final arguments from Weiss. First, she argued that the court’s decision to apply the 90-day service rule here would render the statute applicable to all of the Planning Commission’s actions. The court disagreed, pointing back to statutory language that limits 65009 to “zoning and similar land use determinations.” Next, Weiss claimed that the lack of urgency of the current dispute, unlike the expedience necessary for development, precluded applicability of section 65009. The court rejected this argument as an attempt to add language that does not exist in the statute. Additionally, the court explained that tree removal and maintenance issues do need to be resolved promptly. Lastly, Weiss argued that the Scenic View Ordinance specifically mentions Code of Civil Procedure section 1094.6, but does not mention section 65009, so that section must not apply. The court explained that Code of Civil Procedure section 1094.6 addresses filing deadlines but is silent on service of a petition. Both regulations, the court said, can therefore apply simultaneously.

Fourth District Court of Appeal Declines Invitation to Invalidate CEQA Guidelines Section 15164, Affirming Agency’s Ability to Rely on Addendum to an EIR

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The Fourth District Court of Appeal found that the addendum process under CEQA Guidelines section 15164 fills a procedural gap in the statute and is not invalid. The court also ruled that Public Resources Code section 21081 findings are not required again with an addendum. (Save Our Heritage Organisation v. City of San Diego (2018) 28 Cal.App.5th 656.

The City of San Diego certified an EIR and approved a project in 2012 to restore pedestrian and park uses to portions of Balboa Park. Save Our Heritage Organisation (SOHO) filed a petition for writ of mandamus challenging the project. The superior court granted the petition and directed the City to rescind the project approval. The Real Party in Interest and SOHO each appealed the judgment, and the court of appeal reversed the trial court’s judgment and upheld the EIR. The Real Party in Interest filed a motion seeking an award of attorney fees, which the trial court denied and the appellate court affirmed.

While the appeals were pending, several physical changes occurred to the project’s environmental setting. In 2016, the City adopted an addendum to the EIR to address modifications to the project. The addendum concluded that:

  1. There were no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects;
  2. There were no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and
  3. There was no new, previously unknown or unknowable, information of substantial importance showing: (a) the project will have significant effects not discussed in the EIR; (b) the project will have substantially more severe significant effects than shown in the EIR; (c) previously infeasible mitigation measures and project alternatives are now feasible and would substantially reduce significant environment effects; or (d) considerably different mitigation measures than analyzed in the EIR would substantially reduce significant environmental effects.

The City incorporated these findings into its resolution adopting the addendum.

CEQA Guidelines Section 15164

The court found that SOHO did not meet its burden of proof to show that CEQA Guidelines section 15164, which allows for preparation of addenda, is invalid. The court explained the difference between quasi-legislative rules (those in which the Legislature has delegated a portion of its lawmaking power) and interpretive rules (those in which an agency interprets a statute’s meaning and effect). Although the California Supreme Court has not ruled on which category applies to the CEQA Guidelines, the court explained that such a distinction was not necessary to make here because, either way, SOHO did not establish that section 15164 is invalid.

The court determined that Guidelines section 15164 is both (1) consistent and not in conflict with CEQA; and (2) reasonably necessary to effectuate the purpose of CEQA.

The court explained that the Resources Agency promulgated Guideline 15164 to implement Public Resources Code section 21166, which describes the circumstances under which an agency must conduct subsequent or supplemental review. That section, explained the court, creates a presumption against further environmental review once an EIR has been finalized. And, although section 21166 does not expressly authorize an “addendum,” the court explained that Guidelines section 15164 fills in the gap for CEQA projects where there is a previously certified EIR that should be revised, but the conditions that warrant preparation of a subsequent EIR under section 21166 are not met. Furthermore, the court said, Guidelines section 15164 is consistent with and furthers the objectives of section 21166 because it requires an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review.

The court also explained that the absence of a public review process for an addendum does not render Guidelines section 15164 inconsistent with CEQA. Instead, the absence of public review reflects the finality of adopted EIRs, and the proscription against further environmental review except in specified circumstances in section 21166. In addition, the court pointed to the analogous requirement that a Final EIR must be recirculated before certification only where revisions add significant new information. Finally, the court emphasized that the Resources Agency first promulgated Guidelines section 15164 in 1983, and the Legislature has not modified CEQA since then to eliminate the addendum process.

Findings Required Under Section 21081

SOHO argued that the City was required to make new findings under section 21081, but the court disagreed. Section 21081 provides that a public agency shall not approve or carry out a project for which an EIR has been certified unless the agency makes specific findings with respect to identified significant effects. The court explained that neither the Code nor the Guidelines suggests new findings are required when an addendum is prepared. And, the court explained, the only purpose of findings is to address new significant effects, but an addendum is only proper where no new significant environmental impacts are discovered. Where there are no new significant impacts, there is no need for findings. Therefore, the court held, findings are not required for an addendum.

Responses to Comments on a Draft EIR Carry the Day in Challenge to Oil Refinery EIR

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On March 20, 2018, the First District ordered published its decision in Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214, which involved a challenge to an EIR prepared for a propane and butane recovery project. Specifically, the Court of Appeal affirmed the trial court’s judgment that substantial evidence supported the EIR’s air quality, greenhouse gas (GHG), and hazards analyses.

Background

Phillips 66 Company (Phillips) owns two refineries, one near Santa Maria, the other near Rodeo. The Santa Maria refinery processes heavy crude oil, then sends it via pipeline to the Rodeo refinery where the product is finalized into petroleum products. The Rodeo refinery is able to process both heavy and light crude oil into petroleum products. In addition to the Santa Maria refinery, the Rodeo refinery receives crude oil from a variety of domestic and foreign crude sources delivered via ship. The final products are shipped by rail from the refinery for sale.

In June 2012, Phillips applied to Contra Costa County for a permit to modify the existing Rodeo facility and add new facilities to enable Phillips to recover butane and propane and ship it by rail for sale.

In June 2013, the County released a Draft EIR for the Project. A Final EIR was released in November 2013. Based on comments from the Bay Area Air Quality Management District, the Board of Supervisors ordered staff to prepare a Recirculated EIR (REIR) addressing the air and health issues raised by the Air District. After circulating the Draft REIR, in early 2015, the County published a Final REIR and approved the project.

Rodeo Citizens Association (Citizens) filed a petition for writ of mandate, alleging the EIR’s project description was inaccurate; the EIR failed to address the increased risks of accidents from train derailments or explosions caused by the project; and the EIR insufficiently addressed the project’s impacts to public health, air quality, climate change, and cumulative impacts. The trial court found certain deficiencies in the air quality section of the EIR, and issued a writ of mandate requiring the County to reconsider that section, but rejected the remainder of Citizens’ arguments. Citizens appealed.

The Court of Appeal’s Decision

Citizens argued the EIR’s project description incorrectly defined the project to include only the recovery and sale of propane and butane from refinery fuel gas. According to Citizens, the real purpose of the project was to allow Phillips to process increased amounts of non-traditional crudes, including imported tar sands and Bakken crudes, which contain higher levels of dangerous chemicals and result in worse air pollution during the refining process. Citizens contended the EIR’s project description violated CEQA for not disclosing the true scope of the project, which, in turn, caused the EIR to understate the project’s impacts. The court found, however, that substantial evidence supported the REIR’s project description. In particular, the Final EIR included a master response directly addressing the “project description,” which presented substantial evidence that the refinery would use its existing fuel gas stream to extract propane and butane, and the project is not dependent on new sources of crude oil feedstock. Citizens “only weakly” contested the accuracy of the master response and failed to demonstrate the County lacked substantial evidence for the project description.

Turning to the EIR’s GHG analysis, Citizens contended the analysis violated CEQA because it failed to consider GHG emissions resulting from the combustion of propane and butane by downstream users. The EIR addressed the issue of downstream users, but concluded that due to the lack of data and changing market conditions, it was not possible to determine to which uses purchases of the propane and butane would be put. In many instances, a switch to propane actually reduces GHG emissions as compared with gasoline and diesel. Indeed, California has adopted a program to encourage companies to switch from gasoline/diesel to propane. Ultimately, the EIR concluded that it would be too speculative to reach a conclusion regarding the significance of the Project’s GHG impacts resulting from downstream users. The Court of Appeal held that substantial evidence, including comments from the Air District, supported this conclusion.

Regarding the project’s public and environmental health hazards impacts, Citizens argued that the EIR failed to assess the impacts of the project on a child care center located approximately 500 feet from the rail lines on which the propane and butane would be transported from the refinery. The court first observed that this argument was “arguably barred” by the exhaustion doctrine, because Citizens failed to raise it prior to the County’s approval of the project. In any event, although the EIR did not specifically address how the transport of the project’s hazardous materials might impact the child care center, the EIR disclosed that the risk zone for rail transport under the project was 262 feet from the tracks. At around 500 feet away, the child care center is safely beyond this distance.

Finally, Citizens contended the EIR’s cumulative hazards analysis was inadequate because it failed to consider sufficiently the cumulative risk of rail accidents. The Final EIR’s response to comments on this issue explained that most of the projects cited by the commenters are located a substantial distance from the refinery and do not involve the transport of liquid propane gas by rail. On appeal, Citizens argued this response was inadequate because “CEQA does not require a nexus between projects or that they be of a similar type to be included in a cumulative impact analysis.” The court found, however, that the County’s explanation for why a cumulative analysis for transportation hazards was not included was not unreasonable, which is all that CEQA requires.

Conclusions and Implications

Because the court applied the deferential “substantial evidence” standard of review to Citizens’ claims, the burden was on Citizens to show that the County lacked substantial evidence to support the EIR’s factual conclusions. Here, the County had taken care to respond in detail to the substantive issues raised in comments on the Draft REIR, thereby providing a road map of the evidence supporting the EIR’s analyses and conclusions. The case thus highlights how thorough responses to comments can “save the day” in litigation.