Archive for July, 2013


In Sierra Club v. Superior Court (2013) __Cal.4th__ (Case No. S194708), the California Supreme Court held that Orange County cannot charge a licensing fee for GIS file format records requested by the public. Under the California Public Records Act, this information must be produced upon request at the actual cost of duplication. A database meets the definition of a public record when it can be disclosed without any accompanying software.

Background and Procedural History

Orange County maintains a large database of information about land parcels in a geographic information system (GIS) file format.  With this database, called the “OC Landbase,” a user with appropriate software can create a layered digital map containing information for over 640,000 specific parcels of land in Orange County, including geographic boundaries, assessor parcel numbers, street addresses, and links to additional information on the parcel owners.  In June 2007, Sierra Club sent a letter to Orange County requesting a copy of the OC Landbase pursuant to the California Public Records Act (PRA).  Sierra Club planned to use the information to determine the status of large areas of open space in Orange County, including whether each area is protected from development by conservation easements or public ownerships or is threatened by a proposed development. Sierra Club’s request began a lengthy exchange between the two parties concerning the public record status of the OC Landbase.

In 2009, the County agreed to produce records containing  the information underlying the OC Landbase, including assessment rolls, parcel maps, tract maps, survey records, lot line adjustments, and transfer deeds, but only in Adobe PDF electronic format or as printed paper copies. The County took the position that the PRA did not require it to disclose the same records in a GIS file format and that it would provide the records in that format only if Sierra Club paid a licensing fee and agreed to the license’s restrictions on disclosure and distribution.  The County claimed that the licensing agreement enabled it to recoup a portion of the substantial costs it incurs to develop and maintain the OC Landbase.

Sierra Club sought a writ of mandate from the superior court to compel the County to provide the OC Landbase in a GIS file format as a public record for a fee covering only the direct cost of duplication, with no requirement that Sierra Club comply with the licensing agreement.  The County claimed that the OC Landbase was excluded from the PRA’s definition of a public record because it fell within the statutory exemption for “computer software,” a term that includes “computer mapping systems” under Government Code section 6254.9. Sierra Club pointed out that 47 of the state’s 58 counties provide access to GIS-formatted parcel base maps as public records, and argued that the request was for electronically-stored data, not software. Sierra Club would have to use its own GIS software to access the data.

The superior court issued an order denying the petition for writ of mandate, holding that the OC Landbase in a GIS file format was part of a “computer mapping system” and thus exempt from the PRA’s general rules of disclosure.   The court of appeal affirmed, finding that while the statutory language ambiguous, the legislative history supported the County’s argument.  The Supreme Court granted review and reversed.

Supreme Court’s Decision

The court began its opinion by emphasizing “the strong public policy of the people’s right to information concerning the people’s business (Gov. Code §6250) and the constitutional mandate to construe statutes limiting the right of access narrowly (Cal. Const. art. I, § 3, subd. (b)(2)).” Because of this, “all public records are subject to disclosure unless the Legislature has expressly provided to the contrary.”

After reviewing the statutory language and legislative history, the court found that it was ambiguous whether the terms “software” and “computer mapping systems” referred to information similar to the OC Landbase in GIS file format. When drafting the bill that created the exemption, the Legislature had amended the bill to specifically remove a reference to “computer readable data bases” in the definition of “software.” But in another statute written 9 months prior to Government Code section 6254.9, the Legislature used the term “computer software” to mean not only a program or sequence of instruction, but also related data. The fact that software has evolved significantly since 1988 when the term was used in the statute created a challenge for the court in determining legislative intent. More recently in 2004, the Legislature defined “computer software” as “a sequence of instructions written in any programming language that is executed on a computer.” The court also noted that the ordinary meaning of “computer mapping system” is the mapping software, not the database.

Moreover, Government Code section 6253.9 subdivision (a)(1) mandates that “the agency shall make the information available in any electronic format in which it holds the information.” The court noted that almost all data that is stored in computers is formatted to be used with application software. The court did not believe that the Legislature, given this mandate to produce information in an electronic format, would have intended to exclude large categories of computer databases merely because the files they are formatted to be read and manipulated by mapping and graphics software.

Because the legislative intent was ambiguous, the court chose to broadly construe the PRA in a way that promotes access to information as required by the California Constitution and Government Code. The court noted that a narrow interpretation of “computer mapping systems” would be consistent with a 2005 opinion letter issued by the Attorney General, which explained that the term in the PRA applied to computer programs but not compiled data. Since the County did not have any additional reasons why the information should be exempt from the PRA, the court held that the County must produce the OC Landbase in response to Sierra Club’s request in any electronic format in which it holds the information at a cost not to exceed the direct cost of duplication.

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 Remedy

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.

Elizabeth Sarine

July 24th, 2013 by admin

Ms. Sarine joined the firm in 2012 as an associate. Her practice focuses on land use and environmental law, handling all phases of the land use entitlement and permitting processes, including administrative approvals and litigation. Ms. Sarine’s practice covers the California Environmental Quality Act (CEQA), the National Environmental Policy Act, the Administrative Procedure Act, the federal and state Endangered Species Act, and other relevant land use and environmental statutes.

Representative Matters:

  • Associate counsel representing Plumas County in litigation defending the County’s General Plan Update in trial court and the Third District Court of Appeal.
  • Associate counsel advising the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR) in the preparation of an EIR studying statewide well stimulation activities pursuant to Senate Bill 4.
  • Associate counsel representing a developer (real party) in litigation defending San Francisco’s approval of a mixed-use residential project.
  • Associate counsel representing the Yuba County Water Agency in litigation challenging the National Marine Fisheries Service’s Biological Opinion for the U.S. Army Corps of Engineers’ operation and maintenance of two dams.

Originally from Taiwan, Ms. Sarine lived in Belize for four years before starting sixth grade in Shasta Lake City, California. Her favorite national park is Lassen Volcanic National Park, where she spent four summers as an interpretive park ranger and forestry aid technician. As a law student at Berkeley Law (Boalt Hall), Ms. Sarine received the Alvin and Sadie Landis Prize for her article, The Supreme Court’s Problematic Deference to Special Masters in Interstate Water Disputes (2012) 39 Ecology L.Q. 535. She is also the author of Regulating the Social Pollution of Systemic Discrimination Caused by Implicit Bias (2012) 100 Cal. L. Rev. 1359.

Representative Past and Current Clients:

  • Public Agencies: City of Folsom; Department of Conservation, DOGGR; High Speed Rail Authority; Los Angeles Metropolitan Transportation Agency; North Kern Water Storage District; Plumas County; Turlock Irrigation District; Yuba County Water Agency.
  • Private Sector Interests: Cross Development; Domus Development; D&S Development; HBT Mangini, Inc., Potrero Partners
  • Environmental and Citizen Organizations: Californians Against Waste.

 

In May v. City of Milpitas (2013) __Cal.App.4th__ (Case No. H038338), a California Environmental Quality Act (CEQA) challenge was found time-barred by a 30-day statute of limitations in the Government Code even though appellants argued that a 35-day statute of limitations in CEQA should control.  The Sixth District Court of Appeal affirmed the trial court’s decision to sustain the city’s demurrer on the basis that the later-enacted and more-specific statute of limitations in Government Code section 65457, which provided an exemption applicable to the residential development project, must prevail over a statute of limitations in CEQA that may conflict.

Facts and Procedural Background

The City of Milpitas certified a programmatic Environmental Impact Report (EIR) for the Transit Area Specific Plan on June 3, 2008.  Three years later, a 732-unit condominium project was proposed within the area covered by the Transit Area Specific Plan.  On November 1, 2011, the city adopted a resolution approving amendments to permits and a tentative map for the residential development project.  The city’s resolution also found the project to be exempt from CEQA review because it was consistent with the 2008 specific plan and did not have any significant effects on the environment.  On November 3, 2011, the city filed a Notice of Exemption (NOE) for the project.  Both the resolution and the NOE expressly reference CEQA Guidelines section 15168, subdivision (c)(2), and section 15061, subdivision (b)(3).

On December 7, 2011, petitioners Michael May and Carpenters’ Local Union No. 405 filed a CEQA challenge to the city’s approval of the resolution on November 1, 2011. The city and real parties in interest demurred on the ground that the action was time-barred by the 30-day statute of limitations under Government Code section 65457, subdivision (b), and CEQA Guidelines section 15182. The petitioners argued that the action was not time-barred because the filing of the NOE triggered the 35-day statute of limitations in Public Resources Code section 21167, subdivision (d), and CEQA Guidelines sections 15112 and 15062 instead. The trial court sustained the demurrer, finding that Government Code section 65457 governed, and the November 1, 2011 approval had triggered the 30-day limitation period in section 65457.

Court of Appeal’s Decision

The court began its discussion with an overview of CEQA, the application of exemptions to projects, and the “usual limitations periods for CEQA challenges” provided by Public Resources Code section 21167.  In particular, the court emphasized that even meritorious lawsuits may be time-barred because the legislative intent behind CEQA and section 21167 was to ensure “extremely prompt resolution” of legal challenges brought under CEQA.

Proceeding to the merits, first the court explained why the 30-day statute of limitations in Government Code section 65457 controls. Enacted in 1984 as part of the Planning and Zoning Law, Government Code section 65457 provides an exemption from CEQA for residential development projects that are consistent with a specific plan for which an EIR was certified after January 1, 1980.  Section 65457 only provides a qualified exemption, however, because a supplemental EIR for the specific plan must be prepared if any event listed in Public Resources Code section 21166 occurs.  Therefore, if substantial changes to the specific plan occur, or substantial changes to the circumstances surrounding the specific plan occur, or new information that could not have been known at the time the specific plan’s EIR was certified becomes available and major revisions to the EIR are required, then a supplemental EIR for the specific plan must be certified before section 65457’s exemption may be used for the residential development project.

Under subdivision (b) of Government Code section 65457, where a public agency approves a project using the exemption in section 65457, a legal challenge alleging that a supplemental EIR for the relevant specific plan was required must be filed within 30 days of the agency’s decision to “carry out or approve the project.”  This limitations period is mirrored in CEQA Guidelines section 15182, subdivision (e).

The court found that the City’s resolution factually invoked Government Code section 65457’s exemption and that the petition essentially alleged that a supplemental EIR for the 2008 specific plan is required because substantial changes to the circumstances have occurred and new information has come to light.  Although neither the resolution nor the NOE explicitly references section 65457, the court concluded that the resolution invoked section 65457’s exemption because it stated that the project was “consistent with the certified EIR for the Transit Area Specific Plan.”  The court also found that the resolution’s reference to CEQA Guidelines section 15168, subdivision (c)(2), implied that the City had concluded no events listed in Public Resources Code section 21166 had occurred.  Similarly, the court found that the resolution’s reference to CEQA Guidelines section 15061, subdivision (b)(3), reflected the City’s conclusion that the residential development project would not cause any new environmental effects.

Having established that Government Code section 65457 applied, the court found that the 30-day statute of limitations under subdivision (b) of section 65457 had started running upon the City’s decision to approve the project on November 1, 2011. Consequently, the trial court properly sustained the demurrer because the action filed on December 7, 2011 was time-barred.

Then, the court turned to the reasons why it rejected appellants’ arguments.  The court noted that appellants’ argument that they are requesting a “free-standing EIR” or a mitigated negative declaration (MND) for the development project, not a supplemental EIR for the 2008 specific plan, was in conflict with their petition’s factual allegations and ignored the appropriate use of tiering allowed by CEQA.  To support its conclusion, the court provided a brief examination of the legislative history of Government Code section 65457 and its predecessor former section 65453 to establish that the purpose of section 65457 is to excuse residential development projects from having to do a “free-standing EIR” or MND if they are consistent with a prior-approved specific plan.

The court also set forth reasons why Public Resources Code section 21167, and CEQA Guidelines sections 15062 and 15112 do not apply.  Public Resources Code section 21167, subdivision (d), provides a 35-day statute of limitations that runs from the filing of a NOE in actions alleging that a public agency has improperly determined that a project is not subject to CEQA pursuant to section 21080.  The court found section 21167 did not apply because the exemptions listed in section 21080 do not include Government Code section 65457.  In particular, the court noted that the exemption applied in this case was not one of the 33 categorical exemptions designated pursuant to of Public Resources Code section 21084 and specifically referenced by section 21080, subdivision (b)(9).  Therefore, the 35-day statute of limitations in section 21167 could not be controlling.

Regarding CEQA Guidelines section 15062, which provides a 35-day statute of limitations triggered by the filing of a NOE where a public agency finds a project exempt pursuant to section 15061, the court similarly concluded that section 15062 did not apply because Government Code section 65457 does not fall within the scope of exemptions described by CEQA Guidelines section 15061.  Concluding that section 15062 did not apply, the court also rejected the argument that the 35-day limitations period in CEQA Guidelines section 15112, subdivision (c)(2), applied because section 15112, subdivision (c)(2), only applies to situations where a NOE is filed in compliance with section 15062.

Finally, the court held that, to the extent any conflict existed between the statute of limitations in Government Code section 65457 and statutes of limitations in CEQA, the later-enacted and more specific statute of limitations controls.  Since Government Code section 65457 and Public Resources Code section 21167 both apply to CEQA challenges, they are equally specific to CEQA claims.  Therefore, because Government Code section 65457 was enacted after Public Resources Code section 21167, the statute of limitations in the former must prevail.

On July 11, 2013, in Latinos Unidos Del Valle De Napa Y Solano v. County of Napa (2013) __Cal.App.4th__ (Case No. A135094), the First District Court of Appeal issued a partially published opinion addressing the County of Napa’s local density bonus ordinance. The appellate court determined that a provision of the County’s local ordinance conflicted with the State Density Bonus Law and was invalid.

The state Density Bonus Law (Cal. Gov. Code, § 65915) provides incentives to encourage development of low, very-low income, and senior citizen housing developments. These incentives are generally granted in the form of density bonuses for qualifying projects. To ensure compliance, local governments are required to adopt ordinances establishing procedures for implementing the statute.

Napa County amended its density bonus zoning ordinance in 2010. The amended ordinance indicated that density bonuses described in Section 65915 would be granted at the request of the applicant if the applicant also met the local ordinance’s new “inclusionary requirement.” This new ordinance required up to 20 percent of new dwellings within a residential development project be made available at prices affordable to moderate-income households.

Plaintiffs argued this new local ordinance required developers to include a higher percentage of affordable units than section 65915 requires to obtain a density bonus. The ordinance did so by excluding from the target units necessary to qualify for the density bonus those units necessary to satisfy the county’s inclusionary requirement. Thus, for example, under the wording of the county’s ordinance, a developer would only qualify for a density bonus if it restricted 22% of the project units to lower-income households. Under the state law, a density bonus is available if a developer agrees to restrict at least 10% of the project’s units to lower-income households. The court agreed that the county ordinance impermissibly placed a greater burden on developers than is permissible under the state law.

The court cited Friends of Lagoon Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, where the court had previously determined that Section 65915 sets forth the maximum density bonus a city is required to provide (35 percent), but not the maximum amount a developer can ever obtain. The court noted in Friends of Lagoon Valley that because the aim of Section 65915 is to provide incentives to developers to construct low income housing, a local government could exercise its discretion to award density bonuses greater than those described in Section 65915. In this case, however, the requirements of the county’s ordinance represented the opposite situation. The county argued that the language of Section 65915 implied the county had discretion to set the (higher) minimum requirements to quality for a density bonus. The court disagreed and found that neither the language of the statute nor its legislative history supported such an interpretation. The court found that allowing local governments to increase the minimum number of affordable units required for a density bonus would directly conflict with Section 65915, subdivision (f), which bases the amount of density bonus on the percentage of affordable housing units in the project. The appellate court concluded that the provision in the county’s ordinance stating that units satisfying the inclusionary requirement do not count towards the number of units necessary to qualify for the density bonus was invalid due to this conflict with state law. The court directed that a writ of mandate be issued striking down this requirement in the ordinance.

Citizens for Ceres v. Superior Court of Stanislaus County (2013) __Cal.App.4th__ (Case No. F065690) involved a petition for writ relief from an order of the superior court. The Fifth District Court of Appeal’s order upheld claims by the city and developer that hundreds of documents could be excluded from the administrative record under protection by the attorney-client privilege or the attorney work-product doctrine. The court ruled that CEQA does not abrogate the attorney-client or attorney work-product privileges, but that the common-interest doctrine does not protect otherwise privileged communications disclosed by a developer to the city, or vice versa, prior to the approval of a project.

Background

On Sept. 12, 2011 the City of Ceres certified an EIR for a project by real parties in interest, Wal-Mart Stores, Inc. and Wal-Mart Real Estate Trust. Citizens for Ceres (Citizens) challenged the EIR alleging that the city failed to comply with CEQA. Citizens also challenged the city’s decision to exclude all communications between itself and the developer from the administrative record. Citizens argued that under CEQA (Public Resources Code, § 21167.6, subd. (e)) communications between the city and developer, as well as the city’s internal communications, are required to be included in the record. Further, Citizens alleged that no privileges applied because Section 21167.6 states that it applies “notwithstanding any other provision of law.”

The city argued that that the communications were protected by attorney-client privilege, work-product privilege, or other privileges and protections, including the common-interest doctrine. The city and the developer deliberately structured their communications to be based on privilege, realizing the project would be controversial. The city provided a privilege log, but maintained there was no obligation to do so.

After production of the privilege log and multiple hearings, however, the parties had not reduced the number of documents in dispute and Citizens were still contesting several hundred documents. The trial court upheld all the privilege claims on the basis that Citizens had not met its burden to prove the privilege asserted for the documents was inapplicable.

Court of Appeal’s Decision

On appeal, Citizens argued that Section 21167.6 renders all privileges inapplicable, or alternatively that the City never made the necessary showing of facts to establish that the privileges applied to the documents.

The court began by reviewing attorney-client privilege, the attorney work-product privilege, and the purposes of both. The court noted that the party claiming a privilege has the burden of establishing facts necessary to support the prima facie claim. This establishes a presumption the relevant communication was made in confidence, shifting the burden of proof to the opponent to establish that the communication was either not confidential or that the claimed privilege does not apply. According to the court, the “purpose of the attorney-client privilege is to enhance the effectiveness of our adversarial legal system by encouraging full and candid communication between lawyers and clients.” The purpose of the work-product privilege is to protect attorneys’ privacy to encourage thorough trial preparation, which includes analysis of unfavorable aspects of cases.

The court, however, rejected Citizens’ argument that the phrase “notwithstanding any other provision of law” in section 21167.6 abrogates the attorney-client privilege or the attorney work-product privilege. The court noted that Evidence Code section 911(b) forbids courts from creating privileges or exceptions through case-by-case decision making. The court found, however, that knowing this constraint, “the Legislature did not likely intend to make CEQA administrative records a privilege-free zone by the indirect means of placing the phrase ‘notwithstanding any other provision of law’ at the beginning of section 21167.6, four subdivisions away from the administrative-record provisions in subdivision (e).” The court noted that public policy and the public interest support granting privilege to public agencies, despite competing concerns for open government. In light of the similar considerations that apply to the attorney work-product doctrine, the court stated it believed that if the Legislature had intended to abrogate all privileges for the purposes of compiling CEQA administrative records, it would have expressly stated such intent.

With respect to the application of the common-interest doctrine to communications between an agency and a developer for the purposes of CEQA, the court found that the doctrine does not protect agency-applicant disclosures made before project approval. The common-interest doctrine is derived from Evidence Code sections 912 and 952 and a Law Revision Commission comment on Evidence Code 952 which remarks about extending the attorney-client privilege to communications between two parties’ attorneys regarding matters of “joint concern.” In general, the doctrine permits disclosure between parties with a common interest, without waiving privileges, when the disclosure is necessary to accomplish the purpose for which the parties sought legal advice. The court found, however, that prior to completion of environmental review and project approval, an agency and developer cannot have an interest protected by the common interest doctrine. The court noted that the applicant’s primary interest is that the agency produces a legally defensible EIR that is favorable to the project. Yet, a lead agency is presumptively neutral and objective in its interests during the environmental review and project approval process. Therefore, before a lead agency has approved a project, it cannot have a biased interest in producing an EIR that supports the applicant’s proposal. While both parties have an interest in producing a legally adequate EIR, the court determined that “the agency cannot share the applicant’s interest in an EIR that supports the project as proposed until the environmental review process is complete.” Thus, the court found that the lead agency and developer interests are “fundamentally at odds” such that they waive privileges associated with any communications they disclose to each other before the project’s approval.

The court recognized that its holding may conflict with the holding by the Third District Court of Appeal in California Oak Foundation v. County of Tehama. There the court upheld the application of the common-interest doctrine as preventing waiver in the county’s disclosure of certain document to counsel for the developer. The Third District found that the purpose of achieving compliance with CEQA includes producing an EIR what will withstand a legal challenge for noncompliance and, therefore, disclosing “advice to a codefendant in the subsequent joint endeavor to defend the EIR” falls under the common-interest doctrine. The court of appeal in Citizens for Ceres argued that italicized language from California Oak impliedly referred to a disclosure occurring after the project’s approval. The City and Developer argued that the Third District’s remarks in California Oak referred to all privileged communications, including those related to the production of a legally defensible EIR (i.e., occurring prior to project approval). The court disagreed and declined to follow California Oak if that was the case.

The court further found that, while San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738 supports the view that an agency and applicant may have a common interest in ensuring an EIR is compliant with CEQA, it does not establish a common interest for the purposes of the common-interest doctrine. Furthermore, the court rejected the city and developer’s contentions that the court’s holding conflicted with the proposition that the applicability of the common-interest doctrine does not depend on the commencement of litigation. The court noted the attorney-client privilege and attorney work-product doctrine apply in many situations not yet involving litigation and that, in this case, the time of project approval, rather than commencement of litigation, was the crucial point in time.

Thus, the court of appeal concluded the city and developer waived attorney-client and attorney work-product privileges for all communications disclosed before the city approved the project. Therefore, communications under the scope of Section 21167.6, subdivision (e) must be included in the administrative record. The common-interest doctrine still applies to communications protected by privilege disclosed after project approval.

RMM congratulates Jim Moose, Whit Manley, and Sabrina Teller on being listed in the 2013 Northern California Super Lawyers magazine.  Amanda Berlin and Laura Harris were also included in the Rising Stars section.  The selection process is based on 12 indicators of peer recognition and professional achievement and includes the top five percent of attorneys in their practice areas.

In a 5-4 decision written by Justice Alito, the Supreme Court of the United States reversed the Florida Supreme Court in Koontz v. St. Johns River Water Management District, holding that the government cannot condition the issuance of a land-use permit on the applicant giving up a portion of his property, including financial property, unless there is a “nexus” and “rough proportionality” between the government’s demand and the proposed land use.

Background

Two earlier Supreme Court cases, Nollan v. California Coastal Commission, and Dolan v. City of Tigard, set limits on governments’ ability to impair property interests with land use regulations. Under those decisions, there must be a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use. This test was historically applied when the government requested that the owner relinquish some of his or her property, like an easement, as a condition on a land use permit.

In this case, Koontz sought to develop his land in Florida. The land was classified as wetlands, and Florida law requires permit applicants wishing to build on wetlands to offset the resulting environmental damage by creating, enhancing, or preserving wetlands elsewhere. Koontz offered to mitigate by deeding to the defendant water management district a conservation easement on nearly three-quarters of the property. The district found this mitigation inadequate.  The district then suggested that they would grant his permit request if he reduced the size of his development even further (from 3.7 acres to 1 acre) or hired contractors to make improvements to district-owned wetlands several miles away. Koontz did neither; instead he sued under a state law permitting him to seek damages for agency action that is an “unreasonable exercise of the state’s police power constituting a taking without just compensation.”

The trial court and the appellate court in Florida found that the district’s demand failed the Nollan-Dolan test. The Florida Supreme Court reversed, holding that Koontz did not have a claim because: (1) the Nollan-Dolan standard does not apply to the denial of a permit; and (2) the standard does not apply to a demand for the payment of money. Koontz appealed to the U.S. Supreme Court.

Supreme Court’s Decision

On the first issue, both the majority and the dissent (authored by Justice Kagan) agreed that the denial of a permit should be held to the Nollan-Dolan standard. If the government coerces the project applicant into giving up property rights—a condition precedent—that implicates the Fifth Amendment in the same way that granting a permit with conditions does—a condition subsequent. To hold otherwise would allow governments to evade the Nollan-Dolan limitations by framing demands as conditions precedent.

The majority and the dissent disagreed on the second issue: whether monetary exactions were subject to the same limitation. Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, believed that this issue had already been settled in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). In Eastern Enterprises, the court held that the Takings Clause did not apply to government-imposed financial obligations “that do not operate upon or alter an identified property interest.” Justice Alito felt that Koontz’ property interest was altered by the District’s demand for money to improve wetlands on a District-owned parcel because of the direct link between the government’s demand and a specific parcel of real property. The dissent disagreed since it was not Koontz’s property that was affected, but the public wetlands. Citing Eastern Enterprises, the court saw this as the government simply imposing “an obligation to perform an act that costs money.” The District did not place any restrictions on Koontz’s property. They did not demand any particular lien, or bank account, or income stream from property. So according to the dissent, Koontz was never asked to relinquish a constitutional right.

The majority believed that this was a clear application of the unconstitutional conditions doctrine, which prevents the government from denying a benefit to a person because he exercises a constitutional right. Here, according to the majority, Koontz was exercising his constitutional right not to have his property taken without just compensation and should not have his permit denied because of that exercise. The majority emphasized that land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits, because the government often has broad discretion to deny a permit that is worth far more than the property it would like to take. This makes the landowners likely to accede to the government’s demand, no matter how unreasonable.

The dissent viewed the District’s request as part of a negotiation process with the developer, not as an unconstitutional condition. In his permit application, Koontz suggested one kind of mitigation (a conservation easement on his property). The District found this inadequate and countered with other forms of mitigation that would be acceptable (a larger easement or improving public wetlands). There were no conditions placed on the permit itself, only a suggestion of how the permit application could comply with state law. Had the District denied the permits outright, without providing Koontz with suggestions on how to modify his applications, it would not have run afoul of the Takings Clause under the majority’s test. The dissent expressed concern that the majority’s reasoning will prevent local governments from providing suggestions to or negotiating with project applicants.

Implications

This decision extends the Takings Clause into more local land-use actions. Property owners can challenge demands for money during the permit application process, whether the demand comes before or after the permit is granted. This will only result in compensation, however, when property is actually taken. In this case, Koontz was not entitled to just compensation under the Fifth Amendment because he never paid for the improvements to the other wetlands.

The majority emphasized that the decision does not prevent local governments from insisting that the “applicants bear the full costs of their proposals.” Rather, they are only “forbidding the government from engaging in out-and-out extortion that would thwart the Fifth Amendment right to just compensation.” Taxes and user fees are not takings, so this case “does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners.” The court did not decide “at precisely what point a land-use permitting charge denominated by the government as a ‘tax’ becomes so arbitrary that it was not the exertion of taxation but a confiscation of property,” but noted that the determining if something is a tax or a taking is more difficult in theory than in practice. The dissent disagreed, and would have preferred the majority provide a more straight-forward, like the one used in California, which states that Nollan-Dolan only applies to permitted fees that are imposed ad hoc, and not to fees that are generally applicable. Finally, the majority emphasized that “so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition.”

In Save Panoche Valley et al. v. San Benito County (2013) __Cal.App.4th__ (Case No. H037599), the organizations Save Panoche Valley, Santa Clara Valley Audubon Society, and Sierra Club (collectively Save Panoche Valley) challenged the County of San Benito’s certification of an EIR prepared for a proposed solar power project. The Sixth District Court of Appeal affirmed the trial court’s decision denying the petition and upholding the EIR.

Facts and Procedural Background

In 2009, PV2 Energy LLC (applicant) proposed to build a 420-megawatt photovoltaic Panoche Valley Solar Farm Project (the Project) in San Benito County on 4,885 acres of land primarily used for cattle grazing. The surrounding area is also mostly used for cattle grazing, though some land supports other limited agricultural uses. The proposed project site included land held under Williamson Act contracts. The applicant requested that the County make a finding that the project was compatible with the Williamson Act, but the County denied this request. Subsequently, the applicant requested cancellation of Williamson Act contracts on approximately 6,953 acres of land, of which approximately 4,563 were within the boundaries of the proposed project.

The County prepared a Draft EIR and circulated it for public review and comment in June 2010. The DEIR concluded that the project would result in significant and unavoidable visual impacts. The DEIR also identified potential biological impacts on populations of blunt-nosed leopard lizards, giant kangaroo rats, and San Joaquin kit foxes. The DEIR analyzed several alternatives to the proposed project, including a reduced density alternative and an alternative project site.

During the public comment period on the Draft EIR, the California Department of Fish and Wildlife (formerly Fish and Game), submitted comments recommending measures to avoid unlawful take of special species of concern, including the blunt-nosed lizard. A Final EIR was released in September 2010 which included a revised project alternative. This alternative included a conservation easement on the project site, which reduced the project size and density. Under this proposal, the project would generate approximately 399 megawatts of power. The Final EIR concluded that this revised alternative would meet most of the project objectives and eliminate five of the previously significant and unavoidable impacts on biological and visual resources.

Following release of the Final EIR, the County held a public hearing at which it certified the EIR, adopted CEQA findings, and approved the request to cancel Williamson Act contracts. Save Panoche Valley filed suit, but the trial court denied the petition for writ of mandate, and the petitioners appealed.

The Williamson Act Claims

On appeal, Save Panoche Valley argued the County erred when it cancelled the Williamson Act contracts on land within the proposed project’s boundaries. They argued the record failed to support the County’s findings that “other public concerns substantially outweigh the objectives of the Williamson Act,” and that the cancellations were made in error because land suitable for a large-scale solar facility was available which was not held under contract

Government Code sections 51200 et seq. describe the procedures for cancelling a Williamson Act contract. An city or county can only approve a cancellation if it makes certain findings. The findings must conclude either that cancellation is consistent with the Williamson Act, or that cancellation is in the public interest. In this case, the County Board found that “other public concerns” substantially outweighed the objectives of the Williamson Act.

The appellate court found support in the record for the Board’s finding. California has a well-established interest in promoting the development of renewable energy sources, apparent in legislation such as AB 32, the California Global Warming Solutions Act of 2006, and the Renewables Portfolio Standard. The record indicated that the solar project would help further the state’s progress towards achieving its renewably energy goals. Further, agriculture would continue in limited amounts on land within and adjacent to the project site encumbered by conservation easements requiring cattle grazing. The court determined this substantial evidence supported the Board’s findings, despite evidence in the record that Save Panoche Valley pointed to that supported the denial of the Williamson Act cancellations. It was the duty of the Board to weigh the pros and cons of cancelling the contracts, and not the court’s.

The appellate court also rejected Save Panoche Valley’s argument that proximate, non-contracted alternative land was available for a solar project. Under the Williamson Act, “proximate” has been construed as meaning “close enough to the restricted parcel to serve as a practical alternative for the proposed use.” The record demonstrated that the suggested alternative land was located approximately 60 miles away, in two different counties, and also included land encumbered by Williamson Act contracts. Further, portions of the land were held by water districts that the applicants had previously approached regarding a solar project but with whom the applicant had been unable to reach a deal. The court found that these and other factors provided substantial evidence supporting the Board’s determination that no proximate, non-contracted land was available for use as an alternative project site.

The CEQA Claims

In addition to their Williamson Act claims, Save Panoche Valley also challenged both the adequacy of the EIR under CEQA and the evidence supporting the Board’s various CEQA findings.

First, Save Panoche Valley argued the Board violated CEQA because it approved a project for which a feasible alternative was available. To support this argument, appellants pointed to the same alternative site they believed made the Williamson Act cancellations improper. But the Board cited several reasons for determining that the suggested alternative site was infeasible for the proposed solar project, including timing, financing, regulatory, and jurisdictional issues. These various factors provided substantial evidence in support of the Board’s rejection of the alternative site.

Second, appellants challenged the project EIR’s analysis and mitigation of biological impacts. They argued that the EIR failed to include adequate biological surveys regarding the blunt-nosed leopard lizard. But the court determined additional surveys were not necessary merely because they might be helpful. The Final EIR responded to comments from the California DFW and established a protocol for surveys to occur prior to construction. This was sufficient.

Third, Save Panoche Valley raised various challenges to mitigation measures adopted in the EIR to address biological impacts. Appellants argued that the EIR improperly deferred mitigation of impacts to the blunt-nosed leopard lizard. But the court determined the mitigation measures were not impermissibly loose or open-ended. For example, upon completion of the lizard survey, a minimum buffer of 22 acres would be set aside for each lizard. The measures did not simply call for adopting recommendations of the consultants conducting surveys. Instead, the measures provided for specific actions to be taken upon the discovery of a certain species. This particularity was sufficient to avoid improper deferral of mitigation.

The court also determined that substantial evidence supported the Board’s findings that mitigation measures would significantly reduce other biological impacts, such as potential impacts to San Joaquin kit foxes and the giant kangaroo rat. Further, substantial evidence supported the Board’s conclusion that certain mitigation lands were suitable for conservation. Finally, substantial evidence supported the Board’s selection of various ratios for mitigating certain habitat and land, such as mitigation of giant kangaroo rat habitat at a 3-to-1 ratio.

Lastly, the appellants challenged the EIR’s agricultural impact analysis. The project would convert some prime agricultural land, but mitigation measures were adopted which included the protection of land in and around the project site and the creation of agricultural conservation easements. Save Panoche Valley argued these mitigation measures failed to “minimize, rectify, reduce, and eliminate [agricultural] impacts,” because the measures did not ensure the creation of additional agricultural lands. But the court determined this was not the proper standard for “mitigation” as defined by CEQA Guidelines section 15370. Mitigation can be achieved by: (1) avoiding the impact altogether; (2) minimizing impacts by limiting the scope of the project; (3) rectifying the impact by rehabilitating or restoring the impacted environment; (4) reducing or eliminating the impact over time through preservation and maintenance operations during the life of the project; and (5) compensating for the impact by replacing or providing substitute resources or lands.

Ultimately, the court determined that the record supported conclusions reached in the EIR and the CEQA findings made by the Board, including findings made in its statement of overriding considerations.  Thus, the court of appeal affirmed the trial court’s judgment upholding certification of the EIR and project approval.