Posts Tagged ‘Standard of Review’


In Coastal Hills Rural Preservation v. County of Sonoma (2016) (previously published at 2 Cal.App.5th 1234)* the First District Court of Appeal upheld the trial court’s determination that the County of Sonoma did not violate CEQA or the Planning and Zoning law when it adopted a subsequent mitigated negative declaration (MND) and approved a master use permit to expand the existing Ratna Ling Buddhist retreat center and printing facility.

The Tibetan Nyingma Meditation Center (TNMC) has operated a monastery and retreat center in Cazadero since 1975. In 2004, TNMC purchased an additional property, which it designated the Ratna Ling Retreat Center. Since 2004 Ratna Ling has undergone numerous changes and expansions, including growing from a one-printing-press facility to operating six printing presses. In response to applications from Ratna Ling, the county adopted and approved a series of mitigated negative declarations in 2004, 2008 and 2012. In 2014, Ratna Ling applied for a third multiple-use permit, and the county adopted a subsequent MND to the 2004 and 2008 MNDs, superseding the 2012 MND. The 2014 subsequent MND analyzed Ratna Ling’s application to make permanent four storage tents for its printing-press operation, and construct a new six-bedroom residence and up to eight tent cabins.

Coastal Hills Rural Preservation (CHRP) filed suit, arguing that the county should have prepared an EIR because the project greatly expands the printing-press operation. CHRP also argued that the approval violated the county’s general plan and zoning provisions. The trial court denied the petition, and the First District Court of Appeal affirmed.

CHRP argued that the project was inconsistent with the county’s general plan and zoning provisions in violation of Government Code section 65300. The site is designated for “resources and rural development” under the county’s general plan, which is intended to “protect lands used for timber, geothermal and mineral resource production and for natural resource conservation.” Contrary to CHRP’s argument that the printing press included “extraordinary levels of manufacturing productions …, massive storage structures and commercial Internet sales,” the court found that substantial evidence supported the county’s determination that the proposed uses were consistent with the land use regulations. The court explained that an agency’s determination regarding consistency with its own general plan is given great deference because “the body adopting a general plan has unique competence to interpret those policies when applying them to a proposed project.” There was no evidence in the record that the printing activities were undertaken for profit, the printing press use had been permitted since 2004, and the Board fully considered the county’s land use policies and the extent to which the project conforms to those policies.

The Court of Appeal also affirmed the trial court’s determination that the Board did not violate CEQA. Because the court was considering the county’s decision to prepare a subsequent MND where an MND had already been prepared under Public Resources Code section 21166, the court applied the substantial evidence test rather than the fair-argument standard of review. The court noted that the issue of the standard of review is currently before the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (Sept. 26, 2013, A135892 [nonpub. opn.]), review granted Nov. 5, 2013, S214061).

The court found that substantial evidence supported the Board’s conclusion that any fire risks posed by the storage tents were adequately mitigated: the membranes covering the tents met applicable fire protection standards, there was 200 to 300 feet of defensible space around each tent, and a condition of approval required Ratna Ling to provide and maintain its own onsite fire engine. In addition, the court held that, regardless of whether the county should have included the tents in the baseline for its analysis, substantial evidence in the record indicated that the Board fully considered the potential impacts of the tents.

The court also ruled against arguments put forth by amicus curiae Friends of the Gualala River and Forest Unlimited. Contrary to those arguments, the county’s Hazard Mitigation Plan was not effective until October 25, 2011, well after the storage tents were permitted and constructed, and therefore was inapplicable. In addition, the county did not improperly defer mitigation when it required Ratna Ling to coordinate with the fire district and comply with all fire-related conditions, because the mitigaton simply granted the county the right to impose new, stricter requirements if deemed necessary.

Finally, CHRP argued that the county engaged in impermissible spot zoning. The court explained that because the record and the relevant zoning regulations did not suggest that the authorized use for Ratna Ling is prohibited as to all other parcels in the same zone, this was not impermissible spot zoning in violation of Government Code section 65852.

*On November 22, 2016, the California Supreme Court granted review (210 Cal.Rptr.3d 14), depublished the decision, and transferred the case back to the First District, Division One, for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District et al. (2016) 1 Cal.5th 937, 957–959. On May 16, 2016, the First District filed an unpublished decision in matter, available at 2017 WL 2118370.

Rominger v. County of Colusa (Sept. 9, 2014), Case No. C073815

This case originates from an application for approval of a tentative subdivision map filed with the County of Colusa. The application proposed dividing four existing parcels into 16 parcels. The proposed parcels ranged in size from about 1 acre to 30 acres. The existing site consisted of agricultural use and light industrial uses related to agriculture. The application indicated no specific plans for expansion were available, and the present intention for the parcels was for their existing uses to continue.

The County prepared an initial study in June 2010 to determine if approval of the proposed tentative subdivision map could have significant environmental impacts. The initial study identified potentially significant impacts to cultural resources but determined these impacts could be mitigated to less-than-significant. Therefore, the County proposed adoption of a mitigated negative declaration for the project.

During the public comment period on the MND, the Romingers submitted comments suggesting an EIR was necessary for a variety of reasons. As a result of these comments, the County determined a water supply assessment was needed and cancelled the public hearing on the MND. Thereafter, a revised initial study was completed in August 2011. The revised initial study concluded that the project could potentially have significant impacts on air quality, cultural resources, and hydrology/water quality. Again, the initial study determined these impacts could be mitigated to less-than-significant and that an MND would be appropriate. The Romingers renewed their complaints during the public comment period for the updated MND. The County approved the MND in spite of these objections, and the Romingers filed a petition for writ of mandate asserting that an EIR was necessary. The trial court rejected the petition, concluding that approval of the tentative map was not a “project” for the purposes of CEQA. The Romingers appealed.

The Appellate Court’s Decision

On appeal, the Romingers argued that the County was barred from asserting that the proposed subdivision was not a CEQA project or that the project was exempt from CEQA based on the common sense exemption. The Romingers reasoned that the County could not make these arguments because the County treated the proposed subdivision as a CEQA project at the administrative level and approved an MND. The appellate court did not find this reasoning persuasive. The court’s task under CEQA is to review agency actions for compliance with procedures required by law. The County reasoned preparation of the MND was entirely voluntary and not required by law in the first place. Therefore, it would be a waste of judicial resources to review the adequacy of the voluntarily prepared MND. The appellate court agreed and allowed the County to argue no environmental review was required in the first place. However, the court disagreed with the County that approval of the tentative subdivision map was not a project under CEQA. Public Resources code section 21080 specifically provides that an approval of a tentative subdivision map is a project subject to CEQA.

The appellate court also concluded that the “common sense” exemption did not apply to the County’s approval. The County argued the map approval, in this specific case, fell within CEQA’s common sense exemption in the CEQA Guidelines section 15061(b)(3). The County reasoned that the action only established new parcel lines and that there was no possible effect on the environment as a result. But the appellate court noted that, in the application, the real parties stated the objective for the subdivision was to facilitate “future expansion where separate financing may be needed.” Therefore, the record demonstrated the purpose of the subdivision was to make development on the parcels easier. Under the common sense exemption, the agency must show, based on evidence in the record, that there is no possibility that the action may result in a significant effect on the environment. Here, the reasonable possibility that creation of smaller parcels could lead to development that might not otherwise occur pushed the project beyond the confines of the common sense exemption.

On the specific challenges to the MND, the appellate court sided with the project opponents on only a single issue. The appellate court determined substantial evidence in the record supported a fair argument that the project may have significant traffic impacts. In this case, a traffic engineer submitted a comment letter suggesting the County relied on unrealistically low trip generation estimates. This comment letter cited specific evidence, such as the proximity of a major interstate, and the potential for the light-industrial uses to be redeveloped as more traffic-intensive uses. In light of this, and other evidence, the traffic engineer suggested that the County should use the general trip generation characteristics from categories in the authoritative trip generation source reference Trip Generation, 8th Edition. Based on these trip generation numbers, the project could potentially have a significant traffic impact on an intersection of a county road and State Highway 99. This evidence in the record supported the fair argument made by the Romingers. In protest, the County pointed to substantial evidence supporting a contrary conclusion. But the appellate court explained that pointing to contrary evidence was insufficient to defeat the fair argument. Therefore, the appellate court concluded that the county prejudicially abused its discretion when it failed to prepare an EIR addressing the potentially significant traffic impact.

Also of note, the appellate court concluded that the County did not entirely comply with the requirement to provide a full 30-day review period for the MND. The Romingers complained that the review period was only 29 days long. But the appellate court reviewed the record and determined that this error did not preclude informed decisionmaking or informed public participation. Since the error was not prejudicial, the error could not provide a basis for relief.

Conclusions and Analysis

The opinion adds to the litany of cases which accept a broad definition of “project” for the purposes of CEQA. This is especially true where the statute explicitly identifies the action as an example of a project. The opinion treads over fresher ground in CEQA law where the appellate court approaches the fair argument standard in a detailed and thoughtful manner. The opinion recognizes that the fair argument must be supported by substantial evidence in the record. The court rejects numerous attacks on the MND in this case where the arguments constituted vague criticisms unsupported by any specific facts. At the same time, the opinion demonstrates the perils of relying on a negative declaration. Because the petitioners supported a fair argument that the project may have a significant traffic impact, the County will be required to prepare an EIR analyzing the traffic impact.

In California Building Industry Association v. City of San Jose (2013) __Cal.App.4th__ (Case No. H038563) the Sixth District Court of Appeal rejected the strict standard of review applied by a trial court decision finding the City of San Jose’s inclusionary housing ordinance invalid and remanded the matter to the trial court for further consideration under a more deferential standard of review. This ordinance required developers of housing projects to construct affordable housing or otherwise pay an in-lieu fee.

Factual and Procedural Background

The state Legislature, in the Housing Accountability Act, emphasized the need for affordable housing to address a severe state-wide shortage. The act places the responsibility of facilitating the provision of affordable housing on local governments and directs that general plans include a “housing element.”

In January 2010, the City of San Jose addressed this state policy by adopting Ordinance No. 28689, the Inclusionary Housing Ordinance, which required residential developments of 20 or more units to reserve 15 percent of the units for purchase at below-market rate. The requirement could also be satisfied by constructing affordable housing on different sites at specified percentages. The ordinance also offered incentives for affordable housing units constructed on the same sites as market-rate units. Finally, developers could instead pay an in-lieu fee to satisfy the ordinance, with collected fees being directed to the City’s Affordable Housing Fee Fund.

The California Building Industry Association (CBIA) challenged the ordinance. In July 2012, a trial court declared the ordinance invalid and enjoined the City from enforcing it until the City could provide an evidentiary showing to demonstrate justification for the ordinance and a reasonable relationship between exactions and impacts caused by new residential development. The City appealed.

The Court of Appeal’s Decision

The primary issue on appeal involved the appropriate standard of review for the court to apply to the City’s challenged ordinance. The City argued that the CBIA relied on the wrong standard of review. The City characterized the ordinance as a land use regulation adopted pursuant to the City’s police power. Such ordinances must be upheld as valid if the terms “are reasonably related to purposes protecting or advancing the public welfare” subject to an arbitrary and capricious standard of review.

CBIA argued for stricter review of the ordinance because, in their opinion, it imposed an exaction that was neither a zoning ordinance nor a regulation of the use of property. Since the exaction, such as payment of an in-lieu fee or dedication and conveyance of property for public purposes, constituted a compelled transfer of property, the CBIA argued the ordinance required stricter scrutiny review, similar to that applied in takings cases.

The appellate court sided with the City, characterizing the ordinance as an exercise of the City’s police power with the express purpose of enhancing the public welfare by establishing affordable housing policies. The court emphasized that the ordinance was not enacted for the purpose of mitigating housing loss caused by new residential development, which could implicate a different standard of review.

The court cautioned that a municipality’s police power is not unlimited, and it declined to accept the City’s stated goals without further review of the record. Since the trial court formerly applied the incorrect standard of review, the Court of Appeal remanded the matter to the trial court to consider evidence offered by CBIA under the proper standard of review: whether the ordinance has a real and substantial relation to the public welfare supported by basis in fact.