Archive for February, 2014


Highland Park Heritage Trust v. City of Los Angeles, Case No. B242930 (Feb. 18, 2014), unpublished

On February 18, 2014, in an unpublished decision, the Second District Court of Appeal denied petitioners’ request to set aside approval of the Autry Museum’s internal remodeling project. The court held the city of Los Angeles did not abuse its discretion in determining the project was exempt from CEQA.

In 2003, the Autry Museum merged with the Southwest Museum and thereafter discovered that the Southwest site was unsuitable for housing the museum collection. Autry decided to move the collection from the Southwest’s Arroyo Campus in Mount Washington to Autry’s Griffith Park Campus. At first, Autry intended to expansively extend the external footprint of its museum, but withdrew the plan after it was met with public controversy and delays. Autry replaced this proposal with a less ambitious plan to replace 18,000 square feet of the first floor of the museum. The City of Los Angeles approved this new project and determined it was categorically exempt from CEQA. The state later awarded Autry a $6.6 million grant to redesign the interior of the Griffith Park Museum.

Local residents and preservationists sought to set aside the approved collection relocation, claiming that the city had a duty to support the Southwest Museum as a cultural resource and preserve the Arroyo Campus location. Petitioners claimed that the project was not exempt under CEQA, and that the project was improperly piecemealed from a greater project. The trial court held for the city, and petitioners appealed.

The Court of Appeal held that whether the project could be considered a piecemealed section of a larger project was irrelevant where the project was exempt from CEQA. Under Class 1 exemptions, certain projects involving interior alterations to an existing facility are categorically exempt from CEQA, unless they fall under an exception whereby there are unusual circumstances creating a reasonable probability that the activity would have a significant impact on the environment. The court found no such exception here. The court held that moving the artifacts from the Southwest collection to the Autry Museum would not have a significant impact on the geographic environment of that museum or its surroundings, and the objects themselves were not site-specific to the Arroyo location. The court also held that the project was not inconsistent with the Northeast Los Angeles Community Plan because the plan’s goal to preserve and protect the Southwest museum pertained to the building itself rather than its contents. Thus, the city had not abused its discretion in approving the project.

HonoluluTraffic.com v. Federal Transit Administration (9th Cir. 2014) __F.3d __ (Case No. 13-15277)

The litigation involved a challenge to a 20-mile, high-speed rail project that would traverse from the western portion of Oahu through the downtown area of Honolulu, Hawaii. After considering various long-range alternatives for federally funded transportation projects, the city of Honolulu ultimately focused on a “Fixed Guideway” public transport system for the project. The project was designed to improve transportation and relieve traffic congestion in Honolulu – a persistent problem and controversial topic in Hawaii and on the island of Oahu in particular.  According to the Ninth Circuit’s opinion, Honolulu is the second-most congested metropolitan area in the nation.

Plaintiffs were a consortium of interest groups and individuals opposing the project. They filed the action in 2011 against FTA, the U.S. Department of Transportation, the city and county of Honolulu, and various federal and local administrators. Plaintiffs raised challenges under the NEPA and other federal laws.  The district court granted summary judgment to the defendants on the NEPA claims and the Ninth Circuit affirmed.

Plaintiffs’ challenges under NEPA were directed principally at the choice of the steel-wheel-on-steel-rail Fixed Guideway system for the project.  Plaintiffs claimed that the defendants unreasonably restricted the project’s purpose and need and did not consider all reasonable alternatives as required under NEPA and its regulations.

The court first addressed Plaintiffs’ argument that the project objectives stated in the EIS were too narrow. Plaintiffs argued that the objectives were so narrowly defined that only one alternative would accomplish them, and therefore, there was no real consideration of alternatives.  The Ninth Circuit disagreed.  The court noted that the project objectives, as stated as the purpose and need statement in the EIS, were defined in accordance with the statutorily mandated transportation plan that preceded the EIS – the 2004 Oahu Metropolitan Planning Organization, Regional Transportation Plan (“2004 ORTP”).  The 2004 ORTP had concluded that a high-capacity, high-speed transit project connecting west Oahu with downtown Honolulu was necessary to implement Oahu’s land use policies. It also identified the Fixed Guideway system as a central component of that plan.  The court held that, viewed in its statutory context, the project’s objectives were not so narrowly defined that only one alternative would accomplish them.  The statement of purpose and need was broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project.  The Ninth Circuit, therefore, agreed with the district court’s conclusion that “because the statement of purpose and need did not foreclose all alternatives, and because it was shared by federal legislative purposes, it was reasonable.”

The court next addressed Plaintiffs’ claim that the EIS did not properly consider all reasonable alternatives and should have considered alternatives that the state had earlier rejected.  Early in the process, the city had prepared an Alternatives Assessment (AA) to narrow the various alternatives that would be included in the EIS.  The Ninth Circuit noted that an AA may be used as part of the NEPA process as long as it meets certain requirements. Because those requirements were satisfied, the court found no problem with the AA.  The court also noted that alternatives that were previously rejected by an agency in prior studies do not need to be discussed in an EIS.  According to the court, Plaintiffs’ real quarrel was not with the use of an AA generally, but rather that the process failed to consider Plaintiffs’ proposed three-lane Managed Lanes Alternative (a new roadway for busses and other high-occupancy vehicles).  A similar alternative, however, had been considered and rejected in the AA for cost reasons.  The court determined that the cost analysis in the AA was reasonable and that the three-lane Managed Lanes Alternative would be even more costly than the alternative rejected in the AA.  Therefore, the court held that three-lane Managed Lanes Alternative did not need to be included in the EIS.

Plaintiffs’ final argument was that the defendants had improperly excluded a light-rail alternative from the EIS.  The court determined, however, that the defendants properly relied on the AA to reject alternatives including light-rail.  Ultimately, the court held that the EIS’s identification of project objectives and analysis of alternatives satisfied NEPA’s requirements.

The California Supreme Court ordered the Third District Court of Appeal to undertake an expedited review of two trial court rulings concerning the financing plan for California’s High-Speed Rail project, by transferring the state’s petition for writ of mandate to the lower court. The petition was filed by the state in late January asking the Supreme Court to step in and prevent the two recent lower court rulings from derailing construction of the High-Speed Rail project.  According to the state, the challenged trial court rulings “cast a cloud of uncertainty” over the project and put at risk billions of dollars in federal grants. The state sent a direct request to the California Supreme Court because the normal appeals process, it claimed, would take too long given the time-sensitive nature of the project and its funding.

Although it declined to consider the petition directly, the Supreme Court recognized that the petition should be a priority and decided expeditiously by the Court of Appeal. The transfer order directed the appellate court to “expedite its consideration of this matter” and set an expedited briefing schedule for the parties.

Further information on the previous trial court rulings and the state’s petition to the California Supreme Court can be found in our previous blog post here.

Air Resources Board Releases Proposed AB 32 Scoping Plan

February 13th, 2014 by Chris Stiles

On February 10, 2014, the California Air Resources Board released the proposed first update to the AB 32 Scoping Plan. The Scoping Plan is a key component of AB 32. It describes the strategies California will implement to reduce greenhouse gases to achieve the goal of reducing emissions to 1990 levels by 2020. The Scoping Plan was first considered by ARB in 2008 and, pursuant to AB 32, must be updated every five years.

The initial AB 32 Scoping Plan contains the main strategies used by California to reduce the greenhouse gases that cause climate change. The initial Scoping Plan has a range of GHG reduction actions which include direct regulations, alternative compliance mechanisms, monetary and non-monetary incentives, voluntary actions, market-based mechanisms such as a cap-and-trade system, and an AB 32 program implementation fee regulation to fund the program.

The proposed update highlights California’s progress toward meeting the near-term 2020 GHG emission reduction goals and builds on the initial Scoping Plan with new strategies and recommendations. It defines ARB’s climate change priorities for the next five years and sets the groundwork to reach California’s long-term climate goals, including an 80 percent reduction in GHG emissions by 2050. The new actions and strategies are intended to move the state farther along the path to a low-carbon, sustainable future.

The proposed update identifies eight key sectors for ongoing action: (1) energy; (2) transportation, fuels, land use and infrastructure; (3) agriculture; (4) water; (5) waste management; (6) natural lands (7) short-lived climate pollutants (such as methane and black carbon); and (8) green buildings. It explains that each of these sectors must play a role in supporting the statewide effort to continue reducing emissions. As steps are taken to develop a statewide target, sector targets will also be developed that reflect the opportunities for reductions that can be achieved through existing and new actions, policies, regulations and investments.

According to ARB’s press release, the proposed update incorporates the latest scientific consensus which indicates the need for accelerated emissions reductions in the coming decades to achieve climate stabilization.

The proposed update includes input from a range of key state agencies. It is also the result of extensive public and stakeholder processes designed to ensure that California’s greenhouse gas and pollution reduction efforts continue to improve public health and drive development of a more sustainable economy.

ARB is soliciting additional input before it considers the final version the update.  ARB will hold a public informational presentation on the proposed update at its February 20, 2014, meeting, that will include additional opportunities for stakeholder feedback and public input. ARB plans to hold a Board hearing in late-Spring 2014 to formally consider the Final Scoping Plan Update and environmental analysis.

The proposed Scoping Plan Update is available on the ARB website at:  http://www.arb.ca.gov/cc/scopingplan/2013_update/draft_proposed_first_update.pdf

In Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (Jan. 28, 2014) ___ Cal.App.4th ___, Case No. F066544, the Court of Appeal clarified that counsel may not claim ignorance of proper legal procedures after relying on a single treatise to the exclusion of case law and other secondary materials detailing those procedures.

On January 28, 2014, the Fifth District Court of Appeal upheld the trial court’s dismissal of Protect Agricultural Land’s (PAL) action challenging the annexation of unincorporated land to the City of Ceres. The court found that PAL had failed to comply with certain procedures required by the Cortese-Knox-Hertzberg Reorganization Act for reverse validation actions. The trial court had not found good cause for failure to comply, and the Court of Appeal found substantial evidence supporting the trial court’s decision.

PAL sought to set aside the city’s annexation of 960 acres located in unincorporated Stanislaus County. The trial court found it could not overturn the completed annexation because PAL had not complied with service requirements applicable to reverse validation actions. While a local agency formation commission’s (LAFCo’s) annexation determination may be challenged before land is annexed, the validity of a completed annexation may only be challenged by an in rem proceeding under the validating statutes. Under those statutes, if a public agency does not pursue a validation action, any interested person may file a reverse validation action, subject to strict publication and form requirements. A failure to abide by these procedures is excusable only upon a showing of good cause.

In this case, PAL erroneously handled the summons, but argued its error should be excused for good cause. The trial court rejected this argument because it found the legal research conducted by PAL’s counsel had been inadequate. On appeal, the court noted that “an honest and reasonable mistake of law on a complex and debatable issue is excusable and constitutes good cause for relief.” However, “ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” Here, PAL’s counsel claimed ignorance of the publication procedures because those procedures were not mentioned in the treatise counsel consulted. The court conducted its own research and found that case law, the LAFCo website, and other treatises mentioned the procedural requirements. It therefore rejected PAL’s claim of excusable error.

The court did not address PAL’s substantive claims because it found they had to be brought pursuant to the validation statutes. Thus, the court did not decide whether PAL had stated a cause of action under CEQA or the merits of such an action.

Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (Jan. 28, 2014) ___ Cal.App.4th ___, Case No. F066544

In Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission, the Court of Appeal clarified that counsel may not claim ignorance of proper legal procedures after relying on a single treatise to the exclusion of case law and other secondary materials detailing those procedures.

On January 28, 2014, the Fifth District Court of Appeal upheld the trial court’s dismissal of Protect Agricultural Land’s (PAL) action challenging the annexation of unincorporated land to the City of Ceres. The court found that PAL had failed to comply with certain procedures required by the Cortese-Knox-Hertzberg Reorganization Act for reverse validation actions. The trial court had not found good cause for failure to comply, and the Court of Appeal found substantial evidence supporting the trial court’s decision.

PAL sought to set aside the city’s annexation of 960 acres located in unincorporated Stanislaus County. The trial court found it could not overturn the completed annexation because PAL had not complied with service requirements applicable to reverse validation actions. While a local agency formation commission’s (LAFCo’s) annexation determination may be challenged before land is annexed, the validity of a completed annexation may only be challenged by an in rem proceeding under the validating statutes. Under those statutes, if a public agency does not pursue a validation action, any interested person may file a reverse validation action, subject to strict publication and form requirements. A failure to abide by these procedures is excusable only upon a showing of good cause.

In this case, PAL erroneously handled the summons, but argued its error should be excused for good cause. The trial court rejected this argument because it found the legal research conducted by PAL’s counsel had been inadequate. On appeal, the court noted that “an honest and reasonable mistake of law on a complex and debatable issue is excusable and constitutes good cause for relief.” However, “ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” Here, PAL’s counsel claimed ignorance of the publication procedures because those procedures were not mentioned in the treatise counsel consulted. The court conducted its own research and found that case law, the LAFCo website, and other treatises mentioned the procedural requirements. It therefore rejected PAL’s claim of excusable error.

The court did not address PAL’s substantive claims because it found they had to be brought pursuant to the validation statutes. Thus, the court did not decide whether PAL had stated a cause of action under CEQA or the merits of such an action.

Lotus v. Dept. of Transportation (Jan. 30, 2014) ___ Cal.App.4th ___, Case No. A137315

On January 30, 2014, the First District Court of Appeal struck down portions of a Caltrans EIR evaluating redwood tree removal on a stretch of U.S. Route 101. The court found the agency’s environmental review insufficient for failing to properly evaluate the impacts on root systems of old growth trees bordering the roadway.  The opinion was certified for partial publication.

Caltrans sought to widen parts of Route 101 in Richardson Grove State Park because the narrow, windy roads did not meet current design standards and prevented large trucks from easy access to Humboldt County. The restriction on these trucks, according to the agency, hindered profits and competition for businesses in Humboldt. The EIR for the project described the proposed activities as “minor road adjustments including realignments, curve corrections, and shoulder widening” and “culvert improvements and repaving the roadway.” The project’s environmental impacts included tree removal and potential damage to tree roots caused by excavation and fill. The EIR found that only six redwoods – none of them old growth redwoods – would be removed. About forty other trees in the park would potentially have fill place over their roots.

The EIR described measures to lessen these impacts, including restorative planting and invasive plant removal. The analysis concluded the project would not result in any significant environmental impacts with the implementation of these “special construction techniques.”

The trial court did not believe Caltrans violated CEQA simply by taking into account mitigation measures in determining that the project would have no significant effects. But it held that where an agency decides to incorporate mitigation measures into its significance determination and relies on those measures in finding no significant effects, the agency must treat those measures as required. Consequently, the court ordered Caltrans to show whether it had adopted a mitigation monitoring or reporting program. On appeal, the court did not think the monitoring solution sufficient to cure the EIR’s deficiencies.

The Court of Appeal found that the EIR adequately described the project’s environmental setting and scope. The general description of the project’s technical characteristics aligned with the Guidelines’ directive to not supply detail beyond what is needed to evaluate and review the environmental impacts. The court also found, however, that the EIR failed to comply with CEQA in its evaluation of the project’s impact on old growth redwood roots adjacent to the roadway. The EIR neither contained nor applied a standard of significance. This omission was compounded by the fact that Caltrans had incorporated mitigation measures into its project description and concluded that any potential impacts would be less than significant. “By compressing the analysis of impacts and mitigation measures into a single issue,” the court stated, “the EIR disregards the requirements of CEQA.”

In conclusion, the court found that the EIR suffered from “structural deficiency” due to its failure to discuss significant impacts apart from mitigation measures and thus to consider whether other mitigation would be more effective. The court ordered Caltrans to correct the deficiencies in the EIR and to recirculate the document if the agency found it necessary under CEQA standards.

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