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RMM welcomes furry intern

January 11th, 2018 by admin

Very Good Girl Sibella joined the firm in January 2018 as an eight-week old labrador/golden retriever puppy. Sibella comes to  us from Canine Companions for Independence (CCI). She is completing a one-year internship in our land use and environmental practice, working with RMM Senior Associate Elizabeth Pollock. During the day, she practices chewing toys, licking faces, taking long naps, and giving lots of love. During her tenure at RMM, she will be developing her skills sitting, staying, and “doing her business” outside. After leaving RMM, Sibella will continue her work with CCI. CCI “is a non-profit organization that enhances the lives of people with disabilities by providing highly trained assistance dogs and ongoing support to ensure quality partnerships.” You may learn more about the program at http://www.cci.org.

In Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187, the Court of Appeal for the First Appellate District upheld the San Francisco County Superior Court’s denial of a petition for writ of mandate challenging the Judicial Council of California’s decision to certify a Final EIR and approve a new courthouse in the City of Placerville.

Background

El Dorado County’s court facilities were divided between the Main Street Courthouse, a historic building in downtown Placerville, and the County administrative complex. The Judicial Council proposed to consolidate all court activities in a new three-story building to be built on undeveloped land adjacent to the County jail, less than two miles away from the existing Main Street Courthouse.

In October 2014, the Judicial Council published a draft EIR for the proposed new courthouse. The draft EIR acknowledged that retiring the downtown courthouse could have an impact on downtown Placerville. The EIR also recognized that the Judicial Council was required address neighborhood deterioration as a significant environmental effect under CEQA if urban decay was a reasonably foreseeable impact of the project. The draft EIR defined “urban decay” as “physical deterioration of properties or structures that is so prevalent, substantial, and lasting a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community.” The draft EIR concluded that urban decay, so defined, was not a reasonably foreseeable consequence of the new courthouse project.

Commenters voiced the concern that closing the historic Main Street Courthouse could negatively affect businesses in downtown Placerville. In response to such concerns, the Judicial Council reiterated the draft EIR’s conclusion that the project was not likely to lead to urban decay. In support of this conclusion, the Judicial Council observed that it was working with both the city and county to develop a re-use strategy for the building that would support the downtown businesses and local residences. The Judicial Council also cited evidence of the City and County’s efforts to find a new use for the historic courthouse building.

Following the Judicial Council’s certification of the final EIR, the Placerville Historic Preservation League (League) filed a petition for writ of mandate, which the trial court denied. The Court of Appeal affirmed.

The Court of Appeal’s Decision

On appeal, the League argued that the Judicial Council erred in concluding that urban decay is not a reasonably foreseeable indirect effect of relocating the courthouse activities from downtown Placerville to their new location. The court held that substantial evidence in the record supported the Judicial Council’s conclusion that the type of physical deterioration contemplated in the term “urban decay” is not reasonably foreseeable. The court explained that there is no presumption that urban decay would result from the project. To the contrary, as defined by CEQA—which focuses on the physical environment—urban decay “is a relatively extreme economic condition.” Evidence in the record, including comments submitted by the public, suggested that downtown Placerville was an economically stable area, and could withstand business closures without falling into urban decay.

The League also characterized the likelihood of the re-use of the historic courthouse building as an “‘unenforceable and illusory”’ commitment. The court explained, however, that the lack of a binding requirement for the re-use of the building does not undermine the EIR’s reasoning. Specifically, the issue before the Judicial Council was whether urban decay was a reasonably foreseeable effect of the project, not whether its occurrence was a certainty. It would be the best interest of the City of Placerville and the County of El Dorado to re-use the historic courthouse building, suggesting that the building was likely to be put to a new use. While the re-use was by no means guaranteed, it was reasonably likely. Therefore, the Judicial Council did not err in relying on the possibility of re-using the building as one basis for concluding that urban decay was not reasonably foreseeable.

The League also argued that the administrative record contained evidence, in the form of comments submitted by local residents and businesses, of the impact of moving the courtroom activities outside of downtown Placerville. The court held that although these letters and comments provided credible grounds to conclude that relocating the courthouse activities would constitute a hardship for some local businesses, it was not substantial evidence to support the conclusion that such economic effects would lead to substantial physical deterioration of the downtown.

The League further argued that the Judicial Council should have prepared an economic study evaluating the effects of removing the courthouse functions from downtown. The court disagreed, noting that in “any endeavor of this type, financial resources are limited, and the lead agency has the discretion to direct resources toward the most pressing concerns.” Just because a financial impact study might have been helpful does not make it necessary.

The Judicial Council was represented by RMM attorneys Andrea Leisy and Laura Harris in the trial court and on appeal.

On remand from the Supreme Court’s holding in Friends of the College of San Mateo Gardens v. San Mateo County Community College (2016) 1 Cal.5th 926 (San Mateo I ), the First District interpreted the Supreme Court’s direction as requiring the application of the fair argument standard of review to claims challenging an addendum to a negative declaration in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2017) 11 Cal. App.5th 596.

The Supreme Court’s holding in San Mateo I

The San Mateo cases concern the San Mateo County Community College District’s campus renovation project, approved with a mitigated negative declaration (MND) in 2006. In 2011, the college decided to demolish an area of the campus (the Building 20 Complex) that was planned for renovation under the 2006 plan, and construct a parking lot in its place. The updated plan was analyzed in an addendum to the 2006 MND. The suit in San Mateo I followed, with the petitioner alleging that the updated plan was a “new project” under CEQA, and not a modified project subject to CEQA’s subsequent review provisions (Pub. Resources Code, § 21166; CEQA Guidelines, § 15162.). Both the trial court and the First District held that it was a new project, and therefore, the college was not entitled to rely on an addendum.

The Supreme Court reversed, noting first that the proper inquiry under CEQA was not whether or not a project is new or modified, but whether or not the initial environmental document retains informational value in light of the proposed modifications, or if it had become irrelevant.  This is a factual determination to be made by the agency and reviewed for substantial evidence.

If the agency’s decision to proceed under CEQA’s subsequent review provisions is supported by substantial evidence, a court may consider the type of subsequent document prepared by the agency. The standard of review applied by the court in reviewing that decision turns on the nature of the original documents. The agency must first determine if there are substantial changes to the project that require “major revisions” in the original environmental analysis. This determination is reviewed for substantial evidence. When the project was previously reviewed in an EIR, there are no “major revisions” if the initial EIR has already adequately addressed any additional environmental effects expected to result from the proposed modifications. In contrast, when a project is initially approved with a negative declaration, a “major revision” to the negative declaration will necessarily be required if the proposed modification may produce a new or previously unstudied significant environmental effect. If there is no major revision required, the agency can issue a subsequent mitigated negative declaration, addendum, or no further documentation.

Application in San Mateo II

The court applied the two-part test of San Mateo I to the college’s decision to rely on an addendum to the 2006 MND. First, the court conceded that the agency determination—that the MND retained informational value in light of the revised campus plan—was supported by substantial evidence. It retained informational value because the revised plan considered in the addendum did not affect plans to demolish 14 of the buildings cited in the original plan. The revised plan added one more building complex to the demolition list, but the college had previously removed two others, deciding to renovate them instead. The mitigation measures adopted with the original plan remained in place.

Applying the second prong of the Supreme Court’s test, however, the court held that the college violated CEQA’s subsequent review provisions by preparing an addendum to the MND, because the removal of gardens in the Building 20 Complex could result in a significant aesthetic impact, under the fair argument standard of review.

Interpreting this second prong of the San Mateo I test, the San Mateo II court stated that when the initial environmental review document is an negative declaration, the court must apply the more exacting standard applicable to negative declarations—whether there is substantial evidence to support a fair argument that the proposed changes to the project might have a significant effect on the environment. The court acknowledged that aesthetic impacts are necessarily subjective, but agreed with the petitioner that substantial evidence of a fair argument could be found in lay opinions based on direct observation. The impact is not determined by the size of the area, but measured in light of the context in which it occurs, and this can vary by setting.

Here, the court relied on the opinions of campus employees and students regarding the garden’s aesthetic value and quality. Although not a significant portion of the campus’ open space (less than one-third of one percent), the garden’s vegetation and landscaping were alleged by its admirers to be unique. The garden’s social value as a gathering space was also considered. Because the court determined that these opinions qualified as substantial evidence to support a fair argument of a potentially significant aesthetic impact, the college’s decision to rely on an addendum violated CEQA’s subsequent review provisions, as an addendum is only appropriate if there are no new or more severe significant impacts than were previously analyzed.  However, the court refused to order the preparation of an EIR, stating that the college could choose to prepare a subsequent MND if the impacts to the garden could be mitigated to a less-than-significant level.

RMM Partner Sabrina V. Teller represented the respondent college district.

Sara F. Dudley

May 22nd, 2017 by admin

Ms. Dudley joined the firm as an associate in 2017. 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. Dudley’s practice includes the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), endangered species, and water quality and water rights.

Ms. Dudley received her Bachelor of Arts degree in Anthropology from Bryn Mawr College in 1997, and her Master of Library and Information Science from Simmons College in 2002. Prior to law school, Ms. Dudley enjoyed a career as a law librarian, providing research and reference services to private law firms and in the California state courts. She received her Juris Doctorate from Golden Gate University, with a specialization certificate in environmental law, earning the J. Lani Bader Award for Academic Excellence for graduating as the top-ranked student in the 2016 class. While at law school, Ms. Dudley was an Associate Editor on the law review, and published a student comment. During law school, Ms. Dudley was a law clerk with the San Francisco City Attorney’s Office, U.S. Department of Housing and Urban Development, and in Golden Gate University’s Environmental Law and Justice Clinic. Prior to joining Remy Moose Manley, LLP in 2017, Ms. Dudley was a fellow at a nonprofit organization based in Marin County, practicing land use and environmental law relating to marine habitats.

On February 27-28, 2018, Whit Manley will be serving as faculty for a two-day seminar on CEQA for appellate justices, trial judges, and appellate and trial staff. The seminar is sponsored by the Judicial Council. Co-faculty will be Justice Ron Robie of the Third District Court of Appeal, and CEQA lawyers Susan Brandt-Hawley and Margaret Sohagi. Mr. Manley has participated as faculty for CEQA presentations for the Judicial Council since 2003.

Jim Moose, Tiffany Wright, Chris Stiles, and Sabrina Teller will participate as speakers in the annual CEQA Advanced Workshops put on by the California Association of Environmental Professionals, in West Sacramento (March 1st), Oakland and Eureka (February 28th), and San Jose (February 26th), respectively.

On March 2, 2018, Jim Moose will participate as an instructor in a day-long course called CEQA Update, Issues and Trends put on in Sacramento by UC Davis Extension.

On March 25, 2018, Sabrina Teller will participate on a panel titled “When it Rains it Pours: Advice for Dealing with Controversial Projects” at the 2018 AEP State Conference in Rancho Mirage.

On April 16, 2018, Whit Manley will serve as faculty for the Judicial Council (again, with Justice Robie, Ms. Brandt-Hawley and Ms. Sohagi) in updating appellate justices and staff on recent CEQA developments.

On May 4, 2018, Sabrina Teller will present the Land Use and CEQA Litigation Update to the 2018 City Attorneys’ Spring Conference in San Diego.

Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918

The California Supreme Court ruled that the Environmental Impact Report prepared for the proposed “Banning Ranch” project was inadequate because the EIR did not identify “environmentally sensitive habitat areas” (ESHA) under the Coastal Act that might be present on the property, and therefore did not consider mitigation measures and alternatives designed to reduce impacts on those areas. Although the project required a coastal development permit, and the Coastal Commission would make a determination regarding ESHA as part of that permit, the Court held the EIR had to include a prediction of where ESHA would likely be found in order to serve its information purposes under CEQA. Whit Manley argued the case for the City of Newport Beach.

Mission Bay Alliance v. Office of Community Investment and Infrastructure (2016) 6 Cal.App.5th 160

The First District Court of Appeal upheld the city’s approval of a new arena in the Mission Bay neighborhood of San Francisco. The arena will serve as the home of the Golden State Warriors’ basketball team. The Court held the environmental impact report certified by the city was adequate, finding among other things that (1) the city had properly “tiered” the EIR off an earlier program EIR covering redevelopment of Mission Bay, (2) the city could rely on the project’s consistency with the city’s adopted climate action plan, and (3) the city could rely on implementation of various transit improvements to address traffic traveling to and from the arena. Whit Manley argued the case for the Warriors.

The Ninth Circuit Court of Appeals has rejected two challenges to the EIS for the Regional Connector project proposed by the Los Angeles County Metropolitan Transportation Authority (Metro). The project would provide a critical link in the light-rail transit system in Los Angeles by closing the gap between the Gold Line and the Blue and Expo Lines in downtown Los Angeles. Two property owners—Japanese Village Plaza and the Bonaventure Hotel—oppose the project because of impacts construction will have on their properties. The Ninth Circuit rejected the property owners’ claims, finding that: the Record of Decision was properly assembled; Metro and the FTA adequately analyzed groundborne noise and vibration impacts during construction and operation and appropriately considered and adopted mitigation measures; the EIS adequately analyzed impacts and mitigation for potential subsidence during construction; the EIS adequately analyzed parking impacts, impacts due to grade separation in roadways during construction, and emergency ingress and egress during construction; the EIS properly found that alternative construction methods are infeasible; and the EIS did not improperly defer the formulation of mitigation. These lawsuits are two of the several lawsuits the property owners have filed against Metro seeking to stop construction of the project. Previously, the Second District Court of Appeal rejected the property owners’ CEQA claims.
RMM Attorneys Tiffany Wright and Whit Manley represent Metro.

The First District Court of Appeal issued a published opinion upholding the EIR for the Warriors arena in the Mission Bay area of San Francisco. The court held that the EIR adequately analyzed impacts related to biological resources, air quality, greenhouse gases, noise, traffic, and local and regional transit, among others. The court also held that the EIR adequately considered potential land use impacts and that ample evidence supported the EIR’s conclusion that the arena would not impede other exiting uses in the area, including a nearby hospital. The court rejected all of the petitioners’ non-CEQA claims as well. The court found the project complied with local zoning requirements and that the issuance of a place of entertainment permit by the city’s entertainment commission complied with all applicable laws. Because the project was certified as an “Environmental Leadership and Development Project” under Assembly Bill (AB) 900, this case was subject to an expedited litigation schedule.
RMM attorneys Whit Manley, Jim Moose, and Chris Stiles represent the Warriors.

On November 2, 2016, the Ninth Circuit Court of Appeals issued a published opinion upholding the Tahoe Regional Planning Agency’s environmental impact statement (EIS) for TRPA’s Regional Plan Update. The panel unanimously affirmed the district court’s summary judgment in favor of TRPA and against the Plaintiffs Sierra Club and Friends of West Shore. The published opinion explains that TRPA’s EIS adequately addressed the Regional Plan Update’s significant environmental impacts and that TPRA’s reliance on best management practices to reduce water quality impacts was not arbitrary or capricious and was supported by substantial evidence. The panel also affirmed the district court’s award of costs for preparation of the administrative record in favor of TRPA. The ruling is a significant step in TRPA’s efforts to restore Lake Tahoe’s treasured environment and revitalize Tahoe’s communities. RMM attorneys Whit Manley and Chip Wilkins represent TPRA in the litigation.

You can read more from the Sacramento Bee.

On September 26, 2016, Judge Goode of the Contra Costa County Superior Court, issued a ruling denying a petition brought by the Town of Atherton and organizations opposed to the statewide high-speed rail project. The court rejected their claims that the Peninsula Corridor Joint Powers Board (JPB), which operates the Caltrain commuter rail system between Gilroy and San Francisco, had illegally “piecemealed” its project to electrify the Caltrain system from the future high-speed rail system, which is planned to share the same electrified track into San Francisco. The petitioners claimed that because a portion of the electrification project funding is coming from the High-Speed Rail Authority and the electrification is needed for future high-speed trains to operate, the JPB should have analyzed both the high-speed train project and the Caltrain electrification activities as one project in the Caltrain EIR. They argued that the failure to do so improperly minimized consideration of project impacts, consideration of mitigation measures, and alternatives. The court rejected all of the petitioners’ arguments, finding that despite the relationship between the two projects, the Caltrain electrification project could properly stand on its own, whether or not the high-speed train system is ever completed on the Peninsula, and that the future operation of high-speed rail on the corridor was appropriately disclosed in the cumulative impacts analysis in the EIR. The ruling is a major victory for Caltrain, and contracts for further design work and eventual construction have already been approved. Sabrina Teller and Elizabeth Pollock represented the JPB in the litigation.  

 

Jim Moose and Whit Manley have been named “Top Attorneys” in Environmental Law by Sacramento Magazine. The list of top attorneys is based on a survey of Sacramento-area attorneys.

Jim Moose, Whit Manley, Sabrina Teller and Andee Leisy have all been named Northern California SuperLawyers for 2016. Laura Harris has been named a Rising Star.

Nathan O. George

May 26th, 2016 by admin

Mr. George joined the firm in 2016 as an associate. Mr. George’s practice focuses on land use and environmental law, handling all phases of the land use entitlement and permitting processes, including administrative approvals and litigation. His practice includes the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), the State Planning and Zoning Law, and the federal Endangered Species Act.

During law school, Mr. George served as a Board Member for the Journal of International Law and Policy, and as a Board Member for the Environmental Council of Sacramento. Prior to joining Remy Moose Manley, LLP, Mr. George worked as an associate at David Allen & Associates, and clerked for the California Environmental Protection Agency, Air Resources Board, the Office of the Attorney General, Public Rights Division, and the Placer County District Attorney’s Office, Public Integrity Unit.  Mr. George was elected as Treasurer of the Environmental Law Section of the Sacramento County Bar Association for 2018.

Christina L. Berglund

May 26th, 2016 by admin

Ms. Berglund joined the firm in 2016 as an associate. Ms. Berglund’s practice focuses on land use and environmental law, handling all phases of the land use entitlement and permitting processes, including administrative approvals and litigation. Her practice includes the California Environmental Quality Act, the National Environmental Policy Act, natural resources, endangered species, air and water quality, and other land use environmental statutes.

Ms. Berglund’s representative matters include:

  • Associate counsel defending the City of Los Angeles in litigation challenging various development projects.
  • Associate counsel representing the City of Newport Beach in litigation challenging the Federal Aviation Administration’s approval of the Southern California Metroplex Project.
  • Associate counsel representing Waste Management in litigation challenging the Alameda County Waste Management Authority’s approval of an organics recycling facility.

Prior to joining the firm, Ms. Berglund worked as a consultant for WSP | Parsons Brinckerhoff advising public agency clients on all elements of the procurement and contract drafting processes for large alternative delivery projects. She was a key member of the consultant team advising on the first phase of the California High-Speed Rail Project in the Central Valley.

Ms. Berglund has been a member of the American Institute of Certified Planners since 2008 and has several years of experience as a community and environmental planner. She has extensive experience in preparing NEPA documents and managing the NEPA process, as well as long-range planning and zoning analysis.