Welcome to Abbott & Kindermann’s 2018 3rd Quarter CEQA update. This summary provides links to more in depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.
1. 2017 CEQA UPDATE
To read the 2017 cumulative CEQA review, click here:
2. CASES PENDING AT THE CALIFORNIA SUPREME COURT
There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:
Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?
Sierra Club v. County of Fresno, S219783. (F066798, 226 Cal.App.4th 704; Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)
3. UPDATE
A. Thresholds of Significance
Golden Door Properties, LLC v. County of San Diego (September 28, 2018, case no. D072406 and D072433) ___ Cal.App.5th ___.
In response to an earlier writ of mandate to address deficiencies with the County’s 2012 adoption of a Climate Action Plan (“CAP”) and 2013 adoption of its Guidelines for Determining Significance for Climate Change required under the County’s general plan, the County published revised 2016 CEQA greenhouse gas (“GHG”) significance guidelines. The revised 2016 Guidelines established an efficiency metric as “the recommended method by which a project may make significance determinations,” but did not require that all projects use that threshold of significance. Both Sierra Club and Golden Door Properties, LLC, filed a petition for writ of mandate and an injunction, and the cases were consolidated. The trial court granted the writ of mandate and injunction, finding review of the 2016 adoption was ripe, and that (1) the County violated CEQA Guidelines section 15064.7, subdivision b; and (2) piecemealed environmental review, when it published the GHG significance guidelines separately from the CAP. The County appealed, arguing that: (1) the suit was not ripe; (2) the guidelines did not establish a threshold of significance; and (3) the separate action to publish the 2016 Guidelines was consistent with the earlier writ to revise the CAP and 2013 Guidelines and did not amount to piecemealing. The appellate court affirmed.
The appellate court first held the suit was ripe for review, rejecting the County’s claim that “the controversy does not apply to a specific set of facts” as required in Pacific Legal Foundation v. California Coastal Comm. (1982) 33 Cal.3d 158. It reasoned that the County’s 2016 Guidelines were analogous to the Bay Area Air Quality Management District’s CEQA Guidelines in California Building Industry Assn. v. Bay Area AQMD (2016) 2 Cal.App.5th 1067, which also did not require the use of the threshold, but recognized that the thresholds “were to be used routinely to determine environmental effects of a project.”
Moving to the substantive claims, the appellate court held that the County violated CEQA because the 2016 Guidelines established a GHG threshold of significance without following the required adoption procedures. It reasoned that even though no project is required to use the threshold, the 2016 Guidelines established a “recommended” efficiency threshold that was an identifiable and quantitative level of GHG emissions effects where “non-compliance...will normally be determined to be significant by the agency...,” consistent with the threshold of significance definition under CEQA. (CEQA Guidelines §15064(a).) The court next held that because the 2016 Guidelines established a threshold of significance, the County violated CEQA when it published the 2016 Guidelines without a public review process or formal adoption by ordinance, rule, resolution, or regulation as required under CEQA Guidelines section 15064.7, subdivision (b). It further held that the County’s action was unsupported by substantial evidence because the efficiency metric threshold relied on statewide standards for GHG emissions reductions and did not provide sufficient evidence explaining why this metric was appropriate for use by projects in the County, specifically, as required by Center for Biological Diversity v. California Dept. of Fish & Wildlife (2015) 62 Cal.4th 204. Finally, the court held that publishing the 2016 Guidelines separate from adoption of the CAP improperly piecemealed environmental review, because the prior writ had already concluded that the CAP and the 2013 Guidelines were a single project under CEQA and, thus, by taking this action separately from the CAP the County violated both the prior writ and CEQA requirements not to piecemeal review of related policies.
B. Exempt From CEQA Review
Bottini v. City of San Diego (September 18, 2018, case no. D071670) ___ Cal.App.5th ___.
Petitioners sought approval from the City Council to demolish an existing dilapidated 19th century cottage on a residential lot. The Council approved of the request finding that the cottage was a public nuisance due to its unsafe condition and voted against designating the cottage a historical resource. After the cottage was demolished, Petitioners requested approval of a Coastal Development Permit (“CDP”) to construct a new single family home on the now vacant lot. Staff determined the project was exempt from environmental review. The Council reversed that determination concluding that full environmental review was necessary because demolition of the “historic” cottage must be considered as part of the project description, and that potential impacts to “historical resources” and the unusual circumstances exception precluded use of the CEQA exemption. Petitioners filed suit, seeking to compel the City to set aside the Council’s CEQA decision and for damages resulting from violations of the takings, due process and equal protection clauses of the California Constitution. As for the CEQA-related claim, the trial court granted the petition to set aside the decision and the City appealed. The appellate court affirmed.
Relying on CREED-21 v. City of San Diego (2015) 234 Cal.App.4th 488, the court held that the Council’s attempt to expand the project definition and set the CEQA baseline to include the condition of the property prior to demolition of the cottage was improper, because the decision to authorize demolition was final and not a subject of the current litigation. Thus, the consideration of the CDP for a new single-family home was a separate and distinct project from the demolition because the City’s approval of the demolition permit was an intervening event that went unchallenged and reset the baseline conditions for the CDP. The court then rejected the City’s exception to the CEQA exemption claims, reasoning that the only evidence in the record supporting the claims of impacts to a historical resource and unusual circumstances were premised on the same flawed premise that the project description must include the original demolition.
California Water Impact Network v. County of San Luis Obispo (2018) 25 Cal.App.5th 666.
Petitioners challenged the County’s approval of well construction permits without complying with CEQA review requirements, arguing the County had broad discretion to address potential impacts on groundwater supply that result from the projects. The County argued the permits were ministerial. The County further argued that the only issues that could be addressed were water quality and groundwater contamination that could result from the well construction process if an applicant fails to comply with specified technical requirements. The trial court held the County did not have discretion to shape a project to address environmental concerns, and the appellate court affirmed. It reasoned that the County’s incorporation by reference of the Department of Water Resources’ “minimum standards of well construction” intended to protect water quality, coupled with language in the local ordinance stating that well permits “shall be issued” if state and County standards are met, precluded the kind of discretion necessary to require compliance with CEQA. The court further concluded that to the extent the state standards provide the County with some amount of discretion as argued by Petitioner, such discretion was limited to addressing groundwater quality and did not provide the County with the ability or authority to mitigate potential environmental impacts on water supply.
World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476.
In 2015, PG&E sought an extension of a lease from the State Lands Commission to continue operating the Diablo Canyon Nuclear Power Plant until 2025 when it is planned for decommission at the conclusion of its FERC-issued operating license term. The Commission approved the extended lease, citing to the Existing Facilities exemption (CEQA Guidelines §15301), to comply with CEQA. Petitioners filed suit, arguing that the project was not eligible for the categorical exemption due to: (1) the significant impacts on the environment that are inherent from the nuclear power plant’s operation; and (2)...
