Second Appellate District Upholds Use of Class 3 Exemption and Rejects Claim That “General Effects” of Operating a Business Constitute Unusual Circumstances

Car wash

In its July 21 decision in Walters v. City of Redondo Beach, the Second Appellate District rejected a challenge to the use of a Class 3 categorical exemption for a proposed car wash and coffee shop in the City of Redondo Beach. The decision is helpful for lead agencies, as it clarifies that the general effects of an operating business, such as noise, parking, and traffic, cannot serve as unusual circumstances in and of themselves.

Redondo Auto Spa filed an application with the City of Redondo Beach (City) to build a 4,080 square-foot, full-service car wash and small coffee shop on a property zoned for commercial uses. In approving the project, the City issued a conditional use permit (CUP), found that the project was categorically exempt from CEQA review under the Class 3 exemption for a “store, motel, office, restaurant or similar structure not involving the use of significant amounts of hazardous substances,” (CEQA Guidelines section 15303(c)), and imposed several conditions concerning noise, operating hours, and capacity (a vehicle limit of 10,000 cars per month).

Five neighboring homeowners filed a petition for writ of mandate challenging the City’s CEQA exemption determination and issuance of the CUP. The trial court upheld the City’s actions and denied the writ petition, and the neighbors appealed. Continue Reading

Sixth Appellate District Adopts Substantial Evidence Standard for Review of Lead Agency Determinations Regarding Historical Resources

Willow Glen Trestle Bridge (Photo by Don DeBold, via Flickr)

Willow Glen Trestle Bridge (Photo by Don DeBold, via Flickr)

In its August 12 decision in Friends of the Willow Glen Trestle v. City of San Jose, the Sixth Appellate District rejected a claim that the fair argument standard should apply to a lead agency’s determination regarding whether a resource is a historical resource for purposes of CEQA. In doing so, it became the second appellate court (after the Fifth Appellate District) to adopt this rule.

In 2013, the City of San Jose proposed to demolish the Willow Glen Railroad Trestle – a wooden railroad bridge built in 1922 to service industry – and replace it with a pedestrian bridge that would be part of the City’s trail system. The City issued an initial study and mitigated negative declaration for the project that found no impact on historical resources. This finding relied on two documents obtained by the City in 2004, when it proposed a trail project that did not include demolition of the Trestle: (1) a one-page letter from a State Historic Preservation Officer stating that the proposed project would not affect any “historic properties”; and (2) a one-page evaluation by a consulting architectural historian who opined that the Trestle’s design was based on standard plans for wood trestle bridges, the trestles and superstructure were likely replaced during the previous 30 to 40 years, and the Trestle was “a typical example of a common type and has no known association with important events or persons in local history.” Continue Reading

Air District CEQA Guidelines Partially Invalidated For Mandating “CEQA-In-Reverse” Analysis, Following Remand From California Supreme Court

Car Exhaust in TrafficOn remand from the California Supreme Court, the First Appellate District has issued its second ruling in California Building Industry Assn. v. Bay Area Air Quality Management District. In this case, CBIA challenged BAAQMD’s 2010 “CEQA Air Quality Guidelines”—specifically, the Guidelines’ thresholds and methods for assessing the effects of siting new sensitive receptors (residences) near existing sources of toxic air contaminants and other harmful air emissions, such as freeways. Last year, the California Supreme Court held that CEQA “does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (so-called ‘CEQA-in-Reverse’). Requiring analysis of the existing environment’s effects on a project, the Supreme Court emphasized, would “impermissibly expand the scope of CEQA.” The Supreme Court remanded the case to the First District Court of Appeal to apply its general ruling to the specific aspects of the BAAQMD Guidelines still in dispute. Continue Reading

White House Council on Environmental Quality Issues Final Guidance on Consideration of Climate Change in NEPA Review

iStock_95911999_SMALL copyGuest author Darrin Gambelin, a Downey Brand associate, contributes today’s post.

On August 1, The White House Council on Environmental Quality (CEQ) issued its Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (Guidance), which provides federal agencies with a framework for analysis of greenhouse gas emissions and climate change in connection with environmental review under the National Environmental Policy Act (NEPA). This is a significant step in the developing law of climate impact analysis, as state and federal agencies alike continue to struggle to measure, analyze, and mitigate for localized, incremental contributions to this global problem.

The Guidance advises federal agencies to examine both the effects of the proposed project on climate change and the effects of climate change on the project. The guidance does not apply retroactively to projects with a completed NEPA review, but CEQ encourages agencies to adopt these procedures for projects currently under review. As guidance, the policies within are not binding, but in practice agencies generally defer to CEQ; so, applicants can expect federal agencies to apply the new policies to projects moving forward. Continue Reading

Appellate District Rejects ‘Discovery Rule’ in CEQA Cases and Holds Challenge to Richmond Crude-By-Rail Facility Untimely Under 180-day Statute of Limitations

Railroad Tank CarsOn July 19, the First District Court of Appeal published its opinion in Communities for a Better Environment v. Bay Area Air Quality Management District. In this case, Communities for a Better Environment (CBE) and a host of other environmental groups sought to challenge a rail-to-truck facility for the transloading of crude oil permitted by the Bay Area Air Quality Management District (BAAQMD). The appeals court affirmed the trial court’s ruling that CBE’s petition was time barred under Section 21167(d) of the Public Resources Code for failure to bring the claim within 180 days of BAAQMD’s approval of an Authority to Construct (ATC) that authorized the transloading of Bakken crude. In doing so, both courts rejected the argument by CBE that the “discovery rule” should apply in CEQA cases where, as here, there is no public notice of the approval. Continue Reading

Appellate Court Rejects Urban Decay Claim Based on Lay Witness Opinion, Upholds Mitigated Negative Declaration

Joshua TreePejman Moshfegh, a Downey Brand associate, co-authors today’s post with Donald Sobelman.

When cities and counties conduct CEQA review of a large-scale commercial development project including a major national chain like Wal-Mart or Costco, a common objection is that the project will displace existing, locally owned retail establishments, resulting in a significant impact on the environment, in the form of urban decay (or “blight”). This is generally understood to involve abandoned buildings or shopping centers physically deteriorating and becoming a magnet for graffiti, gang/drug activity, and illegal dumping. This claim is often brought in CEQA litigation resulting from approval of such retail projects.

Recently, Division Two of the Fourth Appellate District issued its decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016; certified for partial publication on July 13, 2016), upholding a mitigated negative declaration and addressing a key issue for lead agencies and courts evaluating an urban decay claim: when do the comments or testimony of a lay witness constitute substantial evidence of an urban decay impact? The appellate court also rejected a claim of general plan inconsistency, affirming the broad discretion that local governments enjoy in interpreting their general plans. Continue Reading

Appellate Court Upholds Bay Area’s SB 375 Sustainable Communities Strategy

Golden Gate TrafficPejman Moshfegh, a Downey Brand associate, co-authors today’s post with Donald Sobelman.

Since the passage of AB 32 in 2006, the methods for climate change analysis under CEQA have taken a number of turns. Most recently, the California Supreme Court in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, concluded that an EIR for a major development project (Newhall Ranch) lacked substantial evidence to show that the project’s reductions in emissions would be consistent with AB 32’s statewide goal for greenhouse gas (GHG) reductions by the year 2020. In a harbinger of its impending opinion in Cleveland National Forest v. San Diego Assoc. of Governments, the Court suggested that AB 32’s goal for 2020 may become less and less relevant as 2020 fast approaches. The Supreme Court’s opinion did state, however, that “[w]hile the burden of CEQA’s mandate in this context can be substantial, methods for complying with CEQA do exist”—expressly referencing consistency with regional climate action plans or sustainable communities strategies under SB 375.

On June 30, the First Appellate District issued an opinion that offered some hope to agencies struggling with climate analysis by rejecting a challenge to the regional GHG reduction mandates of “Plan Bay Area,” the sustainable communities strategy developed by the Metropolitan Transportation Commission (MTC) and Association of Bay Area Governments (ABAG) to comply with the requirements of SB 375. In Bay Area Citizens v. Association of Bay Area Governments, the appeals court rejected petitioner’s argument that the EIR for the Plan should have taken into account reductions in GHGs that will occur under statewide GHG reduction mandates. Continue Reading

Appellate District in Newhall Ranch Case Limits its Jurisdiction to Supervise Agency Compliance with Rulings in CEQA Cases

ASteelhead Trouts we reported last year, the California Supreme Court in Center for Biological Diversity v. California Department of Fish and Wildlife invalidated the greenhouse gas analysis and mitigation for the fully-protected unarmored stickleback on review of an environmental impact report (“EIR”) prepared for the Newhall Ranch development in northern Los Angeles County. In its ruling, the Supreme Court remanded the case to the lower appeals court to determine two issues left undecided—the project’s impacts on tribal cultural resources and the endangered steelhead trout.

On July 11, 2016, the Second Appellate District finally issued its ruling after remand from the Supreme Court. In unpublished sections of its opinion, the court provided further direction to the trial court and lead agency on the greenhouse gas analysis and species issues and reiterated its earlier ruling—that the EIR’s evaluation of tribal cultural resources and steelhead trout was supported by substantial evidence. In the only published portion of the opinion, the court grappled with a procedural issue that only a CEQA aficionado could love—whether the appeals court itself can retain jurisdiction to supervise directly the agency’s compliance with its ruling. Appeals court jurisdiction in CEQA cases has witnessed some interesting turns in recent years, as the Legislature has added targeted streamlining provisions and original jurisdiction in the court of appeals in some instances. (See, e.g., Pub. Resources Code, §§ 21168.6 [CPUC challenges], 21185 [environmental leadership projects].) The court here, however, found that it did not have the authority to step into the shoes of the trial court. Continue Reading

Fifth Appellate District Publishes Opinion Confirming Broad Discretion of Local Agencies to Determine General Plan Consistency

Typewriter- PublishedAs discussed in a prior post, Downey Brand recently prevailed on appeal and successfully defended one of its clients against a challenge to its proposed commercial development project in Modesto. The Fifth District Court of Appeal originally issued an unpublished opinion in Naraghi Lakes Neighborhood Preservation Association v. City of Modesto, but on July 1 ordered publication of a portion of the opinion addressing a key argument concerning general plan consistency. As such, local agencies can now cite this decision as legal precedent confirming the deference owed by the courts to cities and counties interpreting their own general plans. Continue Reading

Addendum Does Not Save Inadequate Energy Impacts Analysis in EIR, First Appellate District Rules

EnergyIn 2014, the appellate decision in California Clean Energy Committee v. City of Woodland (“CCEC”) caught many lead agencies and CEQA consultants off-guard, by holding that the type of energy impacts analysis conducted in many EIRs actually fails to comply with CEQA. EIRs prepared post-CCEC have generally included a much more in-depth analysis of energy impacts, to ensure compliance with that decision. But what to do about EIRs certified prior to CCEC, where further approvals are necessary or the EIR is being challenged? A recent decision by the First District Court of Appeal, Ukiah Citizens for Safety First v. City of Ukiah (June 21, 2016) rejects the use of an addendum to address the issue.

In 2011, Costco applied for a use permit and site rezone to allow construction of a 148,000-square-foot retail facility – including a warehouse store, over 600 parking stalls, and a 16-pump gas station – in the City of Ukiah. In December 2013 and January 2014, the City adopted the necessary rezoning legislation, certified the EIR, and adopted a statement of overriding considerations. Ukiah Citizens for Safety First, a local citizens group, filed suit to challenge the EIR in the Mendocino County Superior Court. Shortly after the suit was filed, the Third Appellate District issued its opinion in CCEC (225 Cal.App.4th 173). The City concluded that the CCEC decision required “a more detailed discussion of energy use than was previously understood at the time the EIR was certified,” and thereafter prepared an addendum and lodged the addendum with the trial court, in an effort to satisfy the more exacting standard articulated in CCEC. Continue Reading

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