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In an unpublished decision, Joseph W. Tresch v. County of Sonoma Agricultural Preservation and Open Space District Board of Directors (January 4, 2013) 2013 Cal. App. Unpub.LEXIS 67, the First District Court of Appeal affirmed the trial court’s decision upholding the County of Sonoma Agricultural Preservation and Open Space District Board of Directors’ (the District Board) adoption of a Resolution interpreting the use of a conservation easement.  The Court found that adoption of a resolution interpreting an existing conservation easement is not a project subject to the California Environmental Quality Act (CEQA).

In 2001, respondents John Barella, John E. Barella, and Andrea Barella (the Barellas) purchased a tract of land in Sonoma County consisting of a parcel containing a potential gravel quarry and an adjacent parcel with an established conservation easement.  In 2003, the Barellas submitted an application to the County to develop the gravel quarry portion of the land (the Quarry).  Approval of the Quarry required a zoning change, a use permit, a reclamation plan, and an environmental impact report (EIR).  In 2010, a Final Environmental Impact Review (EIR) for the Quarry was approved with the requirement that it “implement measures and avoid take” of California red-legged frog (CRLF) and comply with the federal Endangered Species Act, with respect to California Tiger Salamanders (CTS).  The Barellas proposed a preserve be prepared as one potential means of mitigating the impact of the quarry on the protected species.  Because neither the conservation district’s resolution nor the conditions attached to approval of the quarry’s EIR actually required that the preserve be established, the Barellas asked the District Board to clarify whether the 105 acres of the conservation easement could be used as a preserve.  The District Board adopted a Resolution interpreting that the conservation easement would allow for the establishment of a preserve.

Petitioner brought suit seeking a writ of mandate requiring the District to set aside approval of the Resolution, based on alleged violations of CEQA, and to prepare a new EIR for the Quarry.  First, Petitioner argued that the adoption of the Resolution required compliance with CEQA because the preserve constituted a project under CEQA.  The court disagreed, explaining the adoption of the Resolution did not require a specific action or physical change to the land, it only clarified that the establishment of a preserve was permissible under the existing conservation easement.  The court concluded that the passage of the Resolution was not a part of the Quarry Project for CEQA purposes.

Next, Petitioner argued if the Resolution was not treated as part of the Quarry project, it would allow for the possibility that any future “preserve-related improvements could evade CEQA review altogether.”  The court dismissed this argument explaining that the District Board does not have the authority to regulate land use.  Instead, the District Board’s authority is limited to enforcing the particular uses of the easements it holds.  The court explained that if the preserve was to eventually be constructed, it would not be exempt from CEQA review by the County.  However, if the nature of the construction of the preserve does not require a discretionary approval, then CEQA would be wholly inapplicable.

Petitioner also argued that the adoption of the Resolution was a discretionary act and therefore subject to CEQA.  The court dismissed this argument reasoning that while it is true that a public agency action must be discretionary in order for CEQA to apply, the action of adopting the Resolution did not constitute approval of a project.

Written By: Tina Thomas, Michele Tong and Andrea Lutge (law clerk)
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

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