This case originates from a long-standing dispute between the County of Orange and the City of Irvine over the County's plans to substantially increase the capacity of one of its existing prison facilities. The County approved an application for state funding to expand the facility, and the City of Irvine sued, arguing the approval constituted ...
Posts Tagged 'Project Subject to CEQA'
Fourth District holds County's funding application was not a project under CEQA
November 26th, 2013 by admin
This case originates from a long-standing dispute between the County of Orange and the City of Irvine over the County's plans to substantially increase the capacity of one of its existing prison facilities. The County approved an application for state funding to expand the facility, and the City of Irvine sued, arguing the approval constituted a "project" under CEQA requiring preparation of an EIR. The trial court denied the City's petition for writ of mandate, and the Fourth Appellate District affirmed in City of Irvine v. County of Orange (2013) __ Cal.App.4th __ (Case No. G047895). The court concluded that a mere funding application was not a sufficient commitment to a proposal to constitute a project under CEQA.
The County has operated the James A. Musick Jail Facility for over 40 years. The facility is located on 100 acres of unincorporated land owned by the County but adjacent to the City of Irvine. The jail facility was originally designed to house about 700 minimum-security inmates, but in recent years had housed more than 1,200 inmates. The controversy began back in 1996, when the County prepared an EIR for the phased expansion of the facility to a maximum capacity of 7,584 inmates ranging from minimum to maximum security.
After some legal wrangling between the City and the County over the 1996 EIR, the County certified a revised EIR and authorized "the pursuit of funding" for the expansion of the Musick Jail Facility in accordance with the revised EIR. For a long time, no expansion took place, as the County lacked funding. But in 2007, the Legislature passed AB 900 to provide funding for local jail construction. The County submitted an application in 2011 seeking funds to expand the Musick Jail Facility by 512 medium-security beds. The County explained that it anticipated circulating an addendum to the 1996 EIR as the CEQA document for this proposed expansion. In 2011, the County Board of Supervisors adopted a resolution approving the application for funding. The application stated that County resolved to comply with CEQA before accepting any state funds.
The City of Irvine sued. In its petition, the City argued that the County's approval of the application for state funding constituted a project under CEQA requiring preparation of an EIR or other CEQA documents prior to the action. The trial court denied the City's petition, and the City appealed.
The Fourth Appellate District explained that the narrow issue before it was whether the County should have prepared and certified a CEQA document before approving an application for state funding. For guidance, the Fourth District looked to the California Supreme Court's decision in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. In Save Tara, a developer proposed constructing low-income, senior housing on city-owned property. The city entered into a conditional development agreement with the developer and subsequently granted substantial assistance to the developer in its efforts to obtain a federal grant for the project. This assistance included an option to purchase the property from the city "at negligible cost" and a loan of nearly half a million dollars for use in the approval process. The developer was under no obligation to repay this loan if the city did not ultimately approve its project. The Supreme Court determined that under these circumstances, the city had committed itself to a definite course of action that precluded the consideration of alternatives or mitigation measures that CEQA might otherwise require. Therefore, the Supreme Court concluded that the development agreement was an approval under CEQA requiring environmental review.
In this case, the Fourth District ultimately distinguished between "advocating or proposing a project" and "committing to" a project. In the court's view, the former would not be a project but the latter would. The court concluded that in this case, the County was advocating for and proposing a project rather than committing to it. For example, under AB 900, agencies are required to use a detailed application prescribed by the bill. Further, the bill made clear that if the applications were approved, the funds would be conditionally awarded. The court emphasized that the conditions to payment were substantial. The applying agencies would have to complete numerous additional steps, including CEQA review, before they could then seek reimbursement for the costs authorized by the amount of the conditional funds. The court found this to be an important distinction from the circumstances in Save Tara.
The court noted additional factors which influenced its analysis: (1) the County had in the past rejected state funding previously approved under an AB 900 request due to conditions imposed by the state; (2) the County had been using the land identified for expansion as a jail for more than 40 years, so resources spent identifying the project site for expansion did not amount to an approval for CEQA purposes; and (3) even the presence of detailed design plans for the proposed facility expansion did not represent commitment to a definite course of action by the County. Since the commitment element was lacking, the Fourth District affirmed the trial court's judgment dismissing the City of Irvine's petition.
Tags: CEQA, Project Subject to CEQA
First District Holds That Air District's Adoption of Significance Thresholds for Greenhouse Gas Emissions Is Not a CEQA Project and Does Not Require an EIR
August 20th, 2013 by Elizabeth Sarine
In California Building Industry Association v. Bay Area Air Quality Management District (August 13, 2013, Case No. A136212) ___ Cal.App.4th ___, the First District Court of Appeal reversed a trial court's decision striking down the Bay Area Air Quality Management District's (BAAQMD's) CEQA thresholds of significance for greenhouse gas emissions. The appellate court held that CEQA does not require BAAQMD to prepare an environment impact report (EIR) before adopting "thresholds of significance" to assist in the determination of whether air emissions of proposed projects might be deemed "significant."
On June 2, 2010, BAAQMD adopted CEQA thresholds of significance for greenhouse gas emissions. The thresholds also set standards for impacts related to toxic air contaminants (TACs) and very small particulate matter (PM2.5). The thresholds were adopted pursuant to CEQA Guidelines section 15064.7, which encourages agencies to "develop and publish thresholds of significance" for "general use as part of the lead agency's environmental review process." The section further mandates that the thresholds be "adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence."
The California Building Industry Association (CBIA) filed a petition for writ of mandate challenging BAAQMD's adoption of the thresholds. CBIA argued the issuance of the thresholds was a "project" under CEQA, and that BAAQMD had violated CEQA by not preparing an EIR before adopting the guidelines. CBIA claimed the thresholds were too stringent and would discourage developers from building desirable urban infill projects close to public transportation by making the CEQA review process more burdensome and expensive. This, in turn, would result in more housing being built in the suburbs, causing more commuter traffic and more traffic-related emissions. This increased pollution, CBIA argued, was an adverse impact mandating preparation of an EIR.
The Alameda County Superior Court agreed, ruling that the adoption of the thresholds was a project under CEQA and entered an order awarding the CBIA substantial attorney fees under Code Civil Procedure section 1021.5.
The First District Court of Appeal reversed, reasoning that (1) the district's adoption of thresholds was not a "project" within the meaning of CEQA and (2) there were no reasonably foreseeable impacts associated with this action.
CEQA defines a project as any activity "which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment." (Pub. Res. Code, § 21065.) The appellate court concluded that the adoption of thresholds was not a project. BAAQMD relied on CEQA Guidelines section 15064.7 in promulgating the thresholds. The court explained that section 15064.7 establishes the procedures for adopting thresholds in some detail, and CEQA review is not part of that procedure. Section 15064.7, subdivision (b), provides that thresholds of significance must be formally adopted through a public review process and supported by substantial evidence if, as in this case, they are to be placed in general use. The agency accepted public comments and responded to comments. Striking an uncommon tone, the court concluded that this process was substantially similar to the EIR process and that requiring more would be a duplicative effort and a waste of tax dollars.
The court noted in any event, the action was not a "project" because the activity would not cause a direct physical change in the environment or a reasonably foreseeable indirect physical change. (Pub. Res. Code, § 21065; CEQA Guidelines, § 15378, subd. (a).) CBIA argued that impacts were reasonably foreseeable because the thresholds were more stringent than earlier thresholds and would require a more thorough environmental analysis; as a result, the CEQA process would become more burdensome, making urban development less desirable and leading to more suburban development with all its attendant impacts including traffic and air quality impacts.
The court was not persuaded, instead reasoning that the analysis posited by CBIA included many assumptions and a great deal of speculation because "the extent to which land development projects might be relocated to a more suburban location would require a prescience we cannot reasonably demand of the [BAAQMD]." The court, therefore, concluded that no CEQA review was required before BAAQMD promulgated the thresholds.
In its petition for writ of mandate, CBIA raised several challenges to the substance of the thresholds that were not decided by the trial court. Though CBIA failed to cross-appeal, the appellate court agreed to consider the other two issues. First, CBIA argued that the standards were inappropriate in any event because they evaluated the effects of the environment on sensitive receptors as part of the project; this is contrary, it argued to the purpose of CEQA, which is to protect the environment from proposed projects, not protect the proposed projects from the existing environment. The court cited a long line of cases for this proposition, including the recent Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. The court did not address whether Ballona, et al., were correctly decided, or whether, as a general rule, an EIR may be required solely because the existing environment may adversely affect future occupants of a project. Instead, finding CBIA's claim that the receptor thresholds were unauthorized by CEQA analogous to a claim a statute or regulation is unconstitutional on its face, the court held that the regulations were not facially invalid because they were relevant for purposes other than determining the effects of the environment on the project. The court also suggested that continuing vitality of Ballona, et al., was better reserved for a case in which the receptor thresholds were actually applied to a project.
As to the second CBIA challenge not ruled on by the trial court, the First District concluded that BAAQMD's TAC Single-Source and Cumulative Thresholds were supported by substantial evidence and upheld them.
In reversing the trial court's judgment in CBIA's favor and declining to grant the relief CBIA sought on the issues not resolved by the trial court, the court of appeal also reversed the substantial attorney's fees award, concluding the industry association was no longer the successful party under Code of Civil Procedure Section 1021.5.
Tags: Attorney Fees and Costs, GHG emissions, Project Subject to CEQA, thresholds of significance
Fifth District Court of Appeal Strikes Down State Air Resources Board's Approval of Nation's First "Low Carbon Fuel Standard," but Allows Program to Continue Operating While CEQA Violations Are Cured
July 25th, 2013 by admin
In POET, LLC v. State Air Resources Board (2013) __Cal.App.4th__ (Case No. F064045) (POET), the Fifth District Court of Appeal held that the California Air Resources Board (CARB) committed procedural violations of the California Environmental Quality Act (CEQA) when it approved regulations for the nation's first "Low Carbon Fuel Standard" program. The court ruled that CARB must set aside its approval of the regulations and take proper actions to comply with CEQA, but that the regulations should remain operative in the meantime in the interest of protecting the environment.
Facts and Procedural Background
The Low Carbon Fuel Standard regulations took effect in 2011 as part of the California Global Solutions Act of 2006 (Assembly Bill 32). The Act established the first comprehensive greenhouse gas regulatory program in the United States. The regulations at issue in POET were designed to reduce the carbon content of transportation fuels used in California.
On April 23, 2009, at the close of the public comment period, CARB passed a resolution that approved the proposed regulations for adoption. The resolution designated the board's executive officer as the "decision maker" assigned to respond to certain remaining environmental issues. The board gave the executive officer authority to modify and adopt the regulations, but he did not have the option of declining to implement them.
The plaintiffs in the case included POET, LLC, which produces corn ethanol in the Midwest. POET challenged the regulations, claiming CARB violated CEQA during the adoption process. The Fresno County Superior Court denied the plaintiffs' petition for a writ of mandate and entered judgment in favor of CARB. The Fifth District Court of Appeal reversed the judgment and remanded the matter for further proceedings.
The Court of Appeal's Analysis
As a threshold matter in its 95-page opinion, the Court of Appeal concluded CARB's actions were subject to CEQA. CARB contended that because it operated a certified regulatory program, it was required to follow only the procedures set out in its specific regulatory program. The court disagreed. Certified regulatory programs are exempt from CEQA's procedural requirements regarding preparation of negative declarations and EIRs under Public Resources Code section 21080.5, which provides that a state agency's preparation of environmental documents under its own regulatory program may serve as the functional equivalent of an EIR. The court noted, however, that this exemption is narrow and such regulatory programs remain subject to "CEQA's broad policy goals and substantive standards," including the timing of environmental review and approval of projects.
In its analysis of the CEQA claims, the court first determined that approval of the project under CEQA occurred when the CARB's decision-making board (Board) approved the regulations for adoption in April 2009. CARB argued approval did not occur until the executive officer took final action on the regulations the following year. The court applied Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Save Tara), calling it "the leading case regarding the application of the definition of 'approval' under CEQA Guidelines section 15352." The Supreme Court in Save Tara articulated a general test for determining the point at which agency action on a proposed project necessitates CEQA review. The Fifth District quoted Save Tara in noting the determination must take into account the terms of the resolution as well as "the surrounding circumstances to determine whether, as a practical matter, the agency has committed itself to the project . . . so as to effectively preclude any alternatives or mitigation measures that CEQA would otherwise require . . . ."
Save Tara involved a private project and a post-approval CEQA EIR compliance condition in an agreement to convey property. The Fifth District extended the Save Tara principles regarding project approval to "projects undertaken by public agencies under certified regulatory programs." The court held that the Board's 2009 approval of the Low Carbon Fuel Standard regulations constituted "approval," based on the clear language in numerous Board documents, as well as the practical effects of the action.
From there, the court concluded CARB violated CEQA because its environmental review under its certified regulatory program was not completed before the regulations were approved. The court noted that this "premature approval" decided a controversial issue involving carbon intensity values related to land use changes for ethanol produced from corn. This was because CARB, in delegating subsequent environmental review authority to the executive director, expressly denied the executive director the authority to modify this aspect of the regulations.
The court also held the CARB "violated a fundamental policy of CEQA" by improperly delegating responsibility for completing the environmental review process to its executive director. Under CEQA Guidelines section 15025, subdivision (b) and case law, a public agency's decisionmaking body may not delegate the review and consideration of a final EIR or approval of a negative declaration prior to approval of a project. "For an environmental review document to serve CEQA's basic purpose of informing governmental decision makers about environmental issues, that document must be reviewed and considered by the same person or group of persons who make the decision to approve or disapprove the project at issue." The court stated that this purpose "applies with equal force whether the environmental review document is an EIR or documentation is prepared under a certified regulatory program."
The Court of Appeal further held that the CARB violated CEQA when it deferred formulating mitigation measures for NOx emissions from biodiesel fuel. Courts have recognized an exception to the general rule prohibiting the deferral of the formulation of mitigation measures under CEQA Guidelines section 15126.4, subdivision (a)(1)(B). The court stated that under this exception, an agency must commit to "specific performance criteria for evaluating the efficacy of the measures implemented." In this case, the court held that CARB's statement that future rules would "establish specifications to ensure there is no increase in NOx" failed to constitute the objective performance criteria required for the exception.
The court remanded the case, directing the trial court to issue a writ of mandate compelling CARB to set aside its approval of the Low Carbon Fuel Standard regulations while allowing the Low Carbon Fuel Standard program to remain in place "as long as [the Air Resources Board] is diligent in taking the action necessary" to comply with CEQA. The court concluded that "the environment will be given greater protection" if the status quo is preserved. The court noted this was a rare outcome. More commonly, the courts have set aside rules, ordinances or other types of written requirements governing third party action when CEQA has been violated. But the court determined that such a remedy was appropriate under power authorized it by Public Resources Code, section 21168.9.
Tags: Assembly Bill 32, Certified Regulatory Program, Deferral of Mitigation, Improper Delegation of Environmental Review, Project Subject to CEQA, Remedies
Second District Court of Appeal Holds That Placing a Measure on the Ballot to Establish a Competitive Bidding Process for a City's Future Waste Disposal Contracts Does Not Constitute a "Project" Under CEQA.
October 30th, 2012 by Chris Stiles
On October 23, 2012, the Second District Court of Appeal issued its decision in Chung v. City of Monterey Park (2012)) Cal.App.4th (Case No. B233859). The court held that a city council's approval of a ballot measure seeking voter approval of a competitive bidding process for residential trash service was not a "project" within the meaning of the CEQA.
The Monterey Park City Council voted to place Measure BB on the March 8, 2011 municipal ballot without performing any type of environmental review under CEQA. No initial study was prepared, and there was no Notice of Exemption. Measure BB requires that the City seek competitive bids for trash service when the City's current contract expires in 2017, and thereafter requires that the City competitively bid for trash service every five years. Opponents of Measure BB argued that the measure was a "project" under CEQA and that environmental review was required before the measure could be placed on the ballot. Measure BB, among other things, would require the City Council to award the residential solid waste franchise to a single franchisee, but the City Council would also have the discretion to award the commercial solid waste franchise to up to three franchisees. Therefore, Measure BB raised concerns about air quality, noise pollution and road damage that would likely result from an increase in the size of the solid waste contractor fleet serving the City. On March 8, 2011, City voters approved Measure BB, with over 71 percent voting in favor of establishing a competitive bidding process.
Wing Chung, a city resident, filed a petition for writ of mandate, alleging that Measure BB was a "project" subject to CEQA, and that the City violated CEQA by failing to make any decision as to whether Measure BB would have a significant impact upon the environment, failing to consider any alternatives or mitigation measures, and failing to conduct the requisite informed decision-making under CEQA.
The trial court disagreed and determined that Measure BB was not a "project" within the meaning of CEQA and therefore the measure did not require environmental review before being placed on the ballot.
Court of Appeal's Decision
The Court of Appeal began its analysis by navigating through the statutory definition of a "project" and the extensive case law on the subject. Citing CEQA Guidelines section 15378, subdivision (b)(4), the court noted that the definition of a "project" does not include the "creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment." The court determined that placing the ballot measure on the ballot fit within that definition. The ballot measure merely established a competitive bidding process for future waste services contracts, and the new manner of awarding such contracts is a fiscal activity that does not involve a commitment to a specific project. As such, the measure is not a project within the meaning of CEQA.
The court placed emphasis on distinguishing the seminal case Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, where the City of West Hollywood conditionally agreed to allow a private developer to redevelop property for senior housing predicated on future compliance with CEQA. There, the fatal flaw in the City of West Hollywood's decision was that the city had "committed itself to a definite course of action regarding the project before fully evaluating its environmental effects." (Id. at p. 142.) The court explained that this case was different because the City has not committed itself to any particular course of action. Measure BB does not require the City to select more than one service provider and does not preclude the City from providing solid waste services by itself.
In addition, the court noted that Measure BB requires the City Council to hold one or more public hearings before deciding whether to grant one or more solid waste franchises. Thus, at the time Chung filed the lawsuit it was unknowable which companies would bid on the contract, what additional trucks would be required (if any), or what significant impacts the City's choice of service provider(s) may have in 2017. The court held that, at this juncture, environmental review of Measure BB would be meaningless because there is simply not enough specific information about the various courses of action available to the City to warrant review at this time.
Tags: Project Subject to CEQA
Second District Court of Appeal Holds that Challenge to Project is Time-Barred, Since Statute of Limitations Starts Running with Initial Lease Approval, Not Subsequent Execution of Lease
June 14th, 2012 by admin
Van De Kamps Coalition v. Board of Trustees of Los Angeles Comm. College District (2d Dist. May 8, 2012) ___ Cal.App.4th ___ (Case No. BS129238)
The Second District Court of Appeal upheld the trial court's ruling sustaining a demurrer without leave to amend on the ground that a petition for writ of mandate challenging a community college district's leasing of a campus site was time barred.
The project at issue involved the two-acre Van de Kamps Bakery building site (Building) in Los Angeles which the Los Angeles Community College District (LACCD) purchased in 2001 to construct a community college. An EIR had previously been prepared for the site when a real estate developer had proposed to demolish the Bakery building and build a Home Base store. An EIR update and to addenda were prepared to analyze the environmental impacts of the community college.
In 2008, the LACCD realized that due to state budget cuts, it would be unable to operate the campus. In 2009, in order to use the site for educational purposes, the LACCD Board adopted resolutions approving an interim use of the property and authorized a five-year lease of the Building to an outside tenant (Resolutions). The LACCD Board, however, decided that the lease agreement did not warrant additional environmental review, since the site would be used for the same educational functions contemplated in the EIR update and addenda. The same year, the Board furthered its Resolutions through various actions, such as approving a $40,000 building redesign expenditure and approving the purchase of a neighboring property (Purchase Agreement).
In 2010, appellant Van De Kamps filed suit against the Board, challenging the adequacy of CEQA review for the Resolutions and subsequent 2009 actions (CEQA I). Following the filing of CEQA I, in 2010, LACCD undertook additional actions furthering its Resolutions. These actions included leasing a portion of one building for employment training, adding indemnification provisions to the Purchase Agreement, and amending a contract to allow for additional architectural services. Appellant moved to amend its CEQA I petition to include claims based on the Board's 2010 actions. When the trial court denied appellant's motion, appellant filed a second petition (CEQA II) challenging the 2010 actions. LACCD filed a demurrer to the CEQA I petition, which was unopposed and sustained without leave to amend. LACCD thereafter filed a demurrer to the CEQA II petition claiming it was time-barred, since the 180-day statute of limitations had started running with the 2009 Resolutions, not the subsequent 2010 actions. The trial court sustained the demurrer without leave to amend and the appellate court upheld the trial court's decision.
The court based its holding on the fact that the 2010 actions were not separate "projects" under CEQA, but were instead mere modifications to the 2009 Resolutions. The court analogized this case to City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, where the court found that the executed agreement did not differ substantially from the original agreement, and was thus not a separate project for purposes of triggering a new statute of limitations. As in Chula Vista, the execution of the lease was not different enough from the lease formation to warrant independent CEQA review.
In reaching its conclusion, the court looked to when projects take legal effect, i.e., are approved, and thus trigger their statutes of limitation. Citing Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134, the Court stated that approval occurs "when the agency first exercises its discretion to execute a contract or grant financial assistance, not when the last such discretionary decision is made." Under this definition, LAACD "approved" the project in 2009 when it committed itself to the lease and the Purchase Agreement, and approved the $40,000 expenditure. The subsequent approvals in 2010 did not substantially change the project or its environmental effects. The court reiterated Save Tara's policy objection to the notion that "any development agreement, no matter how definite and detailed, even if accompanied by substantial financial assistance from the agency and other strong indications of agency commitment to the project, falls short of approval so long as it leaves final CEQA decisions to the agency's future discretion."
In conclusion, the court found that the 2010 actions were merely mechanisms for implementing the 2009 Resolutions. As such, they did not re-trigger the 180-day statute of limitations. That statute had run, and appellant's action was therefore time-barred.
Tags: Project Subject to CEQA, Statute of Limitations