Posts Tagged ‘CEQA’

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.

In California Clean Energy Committee v. City of San Jose (2013) ___Cal.App.4th___ (Case No. CV212623), the city of San Jose prepared an environmental impact report for Envision San Jose, a comprehensive update of the city’s general plan. CCEC submitted a comment letter criticizing the project and the draft EIR’s analysis, arguing that the draft should be recirculated. The planning commission certified the EIR without recirculation. CCEC did not appeal the decision. CCEC subsequently submitted a letter to the city’s planning department but did not mention any deficiencies in the final EIR or the certification process. The city council thereafter independently reviewed, analyzed, and certified the final EIR. CCEC sued, the trial court granted the city’s motion for summary judgment, and CCEC appealed.

CCEC argued that the city planning commission’s certification of the final EIR was unlawful because the planning commission had no approval authority over the project.   The Court of Appeal agreed. The CEQA Guidelines prohibit the decisionmaking body of a public agency from delegating review of a final EIR to a nondecisionmaking body. The planning commission was not a decisionmaking body for the project because it could not to approve or disapprove the project. The court rejected the city’s contention that its certification process was bifurcated, since bifurcation would allow a decisionmaking body to be bound by a finding made by a nonelected, nondecisionmaking body. This process would skirt the purpose of CEQA by segregating environmental review of the EIR from project approval.  Because the planning commission did not have the authority to certify the EIR, the court held that CCEC did not need to take an administrative appeal against the commission in order to exhaust its administrative remedies. The court of appeal reversed the judgment of the trial court, effectively sending the matter back to the trial court to consider the merits of CCEC’s petition.

On April 25, 2013, the Fourth District Court of Appeal ordered publication of its decision in Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999). The appellate court reversed the trial court’s decision to reject a California Environmental Quality Act (CEQA) cause of action brought against the school district for adopting a mitigated negative declaration (MND) for a project to upgrade a high school’s athletic facilities. In particular, the court found it was improper for the district to adopt the MND because the athletic facilities project may have significant traffic and parking effects.

Around October 2010, the San Diego Unified School District completed an initial study for a project to upgrade Hoover High School’s athletic facilities, including replacement of the bleachers and installment of new field lighting at the football stadium. The district planned to use funds from a 2008 proposition that authorized the school district to sell $2.1 billion in bonds for various construction and rehabilitation projects listed or described in the proposition measure. The district adopted the initial study and an MND for the Hoover High project on January 11, 2011, and filed a notice of determination the next day. In February 2011, the plaintiff organization (“Taxpayers”) filed suit against the district, ultimately alleging four causes of action: 1) violation of CEQA, 2) misuse of proposition funds, 3) violation of the city’s zoning and land use laws, and 4) improperly exempting the project from the city’s zoning and land use laws. After the trial court dismissed all four causes of action, Taxpayers appealed.

The Fourth District started its discussion of the CEQA claim with an overview of general principles and proceeded to apply the fair argument standard in its de novo review of the issues. First, the court found the initial study’s project description was not misleading just because it did not place a limit on the number of evening events that would be held each year.  The district had estimated in the initial study that there would be about 15 evening events plus a “few more” due to unforeseen events.  The court interpreted a “few more” to mean about three or four more evening events, for a total of 15-19 evening events per year.  Since Taxpayers did not cite any statutory or other legal authority requiring the District to identify a finite limit on the number of events that could be held annually, the court found this description was accurate and complied with CEQA. It did, however, warn that additional CEQA review would be necessary if the district chose to increase the number of events beyond the 15-19 range in the future.

Next, the court found the project’s installment of lighting would not have a significant environmental effect. The court expressly noted that testimony of individual community members regarding the aesthetic or lighting effects of the project could not constitute substantial evidence showing a significant effect because CEQA is concerned with how a project will affect the environment in general, not how it will affect particular persons.  The court also agreed with the initial study’s conclusion that the vertical illuminance caused by the four new 90- or 100-foot light standards would not significantly impact nearby residences because of the lighting’s limited hours of operation, the limited number of evening events, landscaping features, and the small number (seven or less) of affected residences.

The court then dismissed Taxpayers’ argument that the project would have a significant impact on historical resources. The court found the record did not contain substantial evidence that any historical resources existed near Hoover High, nor any evidence showing that any potential historical resources may be substantially affected by the project.

Finally, the court addressed issues regarding traffic and parking impacts. As a preliminary matter, the court noted that the lack of a reasonable estimate of expected attendance at future events could make the district’s assessment of traffic and parking impacts inadequate. The court disapproved of the district’s choice to base projected attendance at future Hoover High evening football games on the average attendance of games at five other high schools in the district. The court found that the district should have calculated and considered the actual attendance at past Hoover High afternoon football games as a baseline figure for estimations of attendance at future evening games. Because the district did not have sufficient information about the estimated attendance, the court determined it could not have properly reached a conclusion about the potential significance of the project’s impacts on parking and traffic.

The court further agreed with Taxpayers that the district could not rely on San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 (SFUDP), for the argument that a parking shortage cannot constitute a significant physical impact on the environment because it is merely a “social inconvenience.” The court found the SFUDP court’s discussion of parking was likely dicta, and disagreed with any holding that parking shortages can never constitute a physical impact on the environment. The court reasoned that vehicles are “physical objects that occupy space when driven and when parked” so they “naturally must have some impact on the physical environment.” In contrast to its discussion of aesthetic and lighting impacts, the court found that personal observations by local residents about parking could constitute substantial evidence that the project may have a significant impact on parking. Similarly, the court found that comment letters from residents about the traffic impacts were sufficient to support a fair argument the project may have a significant effect on traffic. Because the project may cause significant parking and traffic effects, the court held that the district must prepare an Environmental Impact Report.

On April 12, 2013 the First District Court of Appeal issued its decision in Golden Gate Land Holdings, LLC v. East Bay Regional Park Dist. (2013) ___Cal.App.4th___ (Case No. A135593).  The court upheld the trial court’s decision to allow, pursuant to Public Resources Code section 21168.9, severable, existing project activities to go forward while CEQA defects relating to future project activities were remedied.

The case involved the acquisition of land for a trail improvement project in the East Bay. The East Bay Regional Park District adopted a resolution of necessity to condemn eight acres along the shoreline owned by Golden Gate Land Holdings (GGLH). The district sought to acquire this land to complete a shoreline park and to construct a segment of the San Francisco Bay Trail. The district found the project was categorically exempt from CEQA. GGLH sued, arguing the district should have prepared an EIR. The trial court agreed and granted the petition, but did not direct the district to rescind its resolution of necessity. The court instead ordered the district to vacate only its CEQA exemption finding, permitting the district to leave its resolution of necessity intact and proceed with its condemnation action. The trial court ordered, however, that the district must not actually acquire the property without first complying with CEQA.

On appeal, GGLH argued the trial court’s remedy was improper. It argued that, after concluding the district had violated CEQA, the trial court was required to direct the district to vacate all project-related approvals, including its resolution of necessity. GGLH argued that the district’s CEQA violation—an improper conclusion that the project was categorically exempt— encompassed the whole of the district’s decision and there was no way to distinguish one aspect of the project from another. Thus, according to GGLH, the trial court should not have allowed any portions of the project to proceed under Public Resources Code section 21168.9. The Court of Appeal disagreed.

According to the court, the entire “project” consisted of acquiring and developing the shoreline property for public recreation.  Project activities, however, could be parsed and consisted of initiating eminent domain proceedings, acquiring the land, and constructing the improvements.  The court held that the first activity – launching the condemnation process by adopting a resolution of necessity – could properly be severed from the remainder of the project under section 21168.9.  It would not cause impacts and there was no evidence that, by continuing the eminent domain proceedings, the district would prejudice its future consideration or implementation of alternatives or mitigation measures.  In particular, allowing that action to proceed would not prejudice the district’s CEQA analysis, so long as the district did not commit to a particular trail alignment by actually acquiring the land prior to completing the CEQA process.  Similarly, construction of the park and trail improvements could not occur until after the district completed the CEQA process.  Thus, the trial court did not misinterpret section 21168.9, or abuse its discretion in exercising its equitable powers by issuing a limited writ and allowing the eminent domain proceedings to continue.


The Governor’s Office of Planning and Research (OPR) and the White House Council on Environmental Quality (CEQ) are soliciting input on the public review draft of “NEPA and CEQA: Integrating State and Federal Environmental Reviews.” The handbook strives to improve efficiency, transparency and coordination in the joint environmental review process, in order for federal and state agencies to continue to pursue shared goals and to meet the requirements of both statutes. This draft handbook identifies key similarities and differences between the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) and provides suggestions to assist agencies, project applicants, and members of the public in identifying early on the potential coordination challenges that may arise during the environmental review process and in enhancing effective participation in review. Developing a common understanding of the NEPA and CEQA review processes and their differences at the beginning of a joint review process will assist agencies in avoiding delay. The draft handbook also provides a framework for a memorandum of understanding (MOU) between two or more agencies entering into a joint NEPA/ CEQA review process. Finally, the handbook summarizes and compares NEPA with the California Energy Commission’s licensing process.

The draft is open for public comment until April 19, 2013 at 5:00 p.m. Eastern Time.

The draft handbook identifies specific opportunities for coordinating NEPA and CEQA review and states the following goals:

  • Encourage federal agencies to choose one lead agency to work with a CEQA co-lead agency;
  • Encourage federal and California agencies to conduct public hearings, public comment periods, and final review periods jointly where possible;
  • Recommend that federal and California agencies develop a joint public review timeline that incorporates the applicable public participation requirements under both statutes;
  • Suggest that federal and California agencies preparing a joint EIS/EIR include a section in each impact analysis that makes a CEQA significance determination; and
  • Recommend that agencies preparing a joint EIS/EIR select a range of alternatives broad enough to meet CEQA requirements and discuss them at a level of detail that would meet NEPA requirements. 

The draft handbook also includes information for agencies planning to enter into a MOU to guide a joint NEPA/CEQA process. A MOU can define the roles of each agency and establish the framework of the environmental review. The draft handbook suggests that MOUs be used to address issues such as which agency will communicate with the applicant, allocating the responsibility for reviewing and responding to public comments, and determining the applicable time frames and milestones. MOUs can also define how the agencies will resolve disagreements. 

The draft NEPA/CEQA handbook is a comprehensive project planning resource for agencies and proponents of projects in California that require federal approval. 

The Handbook is available here:

Comments may be submitted here:

On October 4, 2012, the Third District Court of Appeal in Voices for Rural Living v. El Dorado Irrigation District (2012) ___ Cal.App.4th ___ (Case No. C064280), affirmed the trial court’s judgment voiding the El Dorado Irrigation District’s approval of an agreement to provide water to a casino on tribal land. The appellate court held the irrigation district’s approval of the agreement did not qualify for the small projects categorical exemption because the project triggered the unusual circumstances exception, and the record contained evidence upon which a fair argument could be made that the project could have significant environmental impacts during a drought. The appellate court reversed the judgment in part and directed the trial court to order the irrigation district to conduct further California Environmental Quality Act (CEQA) proceedings because the trial court should not have mandated the irrigation district to prepare an environmental impact report (EIR). 

In 1987, the Shingle Springs Band of Miwok Indians and the El Dorado Irrigation District entered an annexation agreement to bring 160 acres of tribal land into the district’s service area. In 1989, the El Dorado County Local Agency Formation Commission (LAFCO) conditioned its approval of the annexation by restricting the land to residential uses and authorizing the district to supply only enough water for 40 residential lots or less. Subsequently, the tribe proposed building a casino and hotel on the annexed land. After deciding that the LAFCO conditions were invalid, the irrigation district approved an agreement on May 28, 2008, to provide the tribe with more water than LAFCO had authorized. The district then issued a notice of exemption stating the project was categorically exempt under the class 3 exemption for new construction or conversion of small structures. Voices for Rural Living challenged the approval of the agreement and alleged violations of CEQA and the LAFCO Act. The trial court granted the petition for writ of mandate and ordered the district to set aside its approval and to prepare an EIR. The tribe and Voices for Rural Living appealed the trial court’s judgment, raising different arguments. 

The appellate court first reviewed the irrigation district’s determination that the project did not trigger the unusual circumstances exception to the class 3 categorical exemption. As a preliminary matter, the court applied the de novo standard of review and concluded the project did present unusual circumstances because providing water to a casino and hotel greatly differed from providing water to a single family residence, the type of project typically covered by the class 3 categorical exemption. 

Then the court applied the fair argument standard to the question of whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances, despite acknowledging a split of authority as to whether the less deferential fair argument standard or the more deferential substantial evidence standard should be employed. The court found there was evidence in the record upon which a fair argument could be made that the project may exacerbate the environmental consequences of a drought. The court noted that the irrigation district had failed to consider the effect of climate change on possible shortages during a drought. Additionally, the court found the record lacked sufficient information regarding how the irrigation district would, during a drought, be able to meet its customer demands as well as new in-stream flow requirements, imposed by the Federal Energy Regulatory Commission on a portion of the American River from which the district is entitled to receive water. 

Finally, the court held the irrigation district must comply with the LAFCO conditions because the irrigation district was not vested by the California Constitution or by statute with the authority to determine the validity or constitutionality of LAFCO’s annexation conditions. The court explained that even if the LAFCO conditions were unconstitutional and preempted by federal law, they must be deemed valid and binding until a proper court of law enjoins their enforcement.  (Elizabeth Sarine)