Archive for May, 2015


In Banning Ranch Conservancy v. City of Newport Beach, petitioner challenged the decision by the City of Newport Beach in approving a residential and mixed use development on the Banning Ranch property. The Fourth District Court of Appeal reversed the trial court, and upheld the City’s approvals on all points. RMM attorneys Whit Manley and Jennifer Holman represented Respondent, City of Newport Beach, in this case.

In 2012, the City of Newport Beach approved the Newport Banning Ranch Project on 400 acres of coastal property in Orange County.  Petitioner Banning Ranch Conservancy sued the city, challenging this action under both CEQA and the Planning and Zoning Law.  The trial court and the appellate court both rejected the CEQA claims.  The trial court, however, found that the City violated the Planning and Zoning Law under the authority of California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.

Third District Court of Appeal in California Native Plant Society held that a general plan policy that required the city to “coordinate” with a resources agency mandated that the city do more than merely “consult” under CEQA.  In other words, it could not just send the EIR to the agency, consider comments, and respond to comments.  It had to work with the agency to try to reach accord, although ultimately the city did not have to “capitulate” to the agency. Because the City of Newport Beach’s general plan contained a similar policy, the trial court in Orange County considered itself bound to follow California Native Plant Society.  It held that the city had to try to reach accord with the California Coastal Commission on certain issues before approving the project.

The Fourth District in Banning Ranch Conservancy v. City of Newport Beach said that the Third District’s holding in California Native Plant Society v. City of Rancho Cordova went too far and was not sufficiently deferential to the legislative functions of the city. The Fourth District thus reversed the trial court on the Planning and Zoning Law issue and upheld the city’s actions.

In Banning Ranch Conservancy v. City of Newport Beach, the Court of Appeal upheld the city’s EIR for the Newport Banning Ranch Project and held that the city complied with its own general plan. In reaching the latter conclusion, the Fourth Appellate District both distinguished and disagreed with the Third Appellate District’s holding in California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603.

In 2012, the City of Newport Beach approved the Newport Banning Ranch Project. The project is located on 400 acres of coastal property in Orange County. The project site is home to both oil wells and endangered species. Because the property is in the city’s sphere of influence, the city was asked to approve the project. The city studied the environmental impacts of the project in a 9,000 page EIR before conditionally approving the project. The approvals recognized that the project could not go forward without a number of subsequent actions by other agencies. For the purposes of the litigation, the most important approvals would come from the California Coastal Commission.

The litigation focused on two issues related to the Commission and the Coastal Act. The petitioner argued that the city violated CEQA when it did not identify “environmentally sensitive habitat area” or ESHA in the EIR. The city, for its part, pointed out that EIR evaluated the biological impacts in detail, identifying potential impacts to species and habitat, and adopting mitigation for those impacts. The city insisted, however, that the designation of ESHA was not a biological determination to be made in the EIR, but rather was a legal and policy determination that would ultimately be made by the Commission under the Coastal Act. The city argued that by providing all of the data and scientific analysis that the Commission would need to make such a conclusion, it satisfied CEQA; it argued that the EIR did not speculate as to the Commission’s ultimate conclusions citing Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209. The court agreed. It held that the city did not have to “prognosticate as to the likelihood of ESHA determinations” in the EIR.

The more significant issue tackled by the court was a claim under the Planning and Zoning Law. The city has a policy in its general plan which requires it to “work with” various resource agencies to identify wetlands and other habitat to be preserved, restored, and developed on the Banning Ranch property. The city did reach some consensus with some agencies on these points, but did not reach an amical point with the Coastal Commission. Indeed, the city consulted and met in person with the commission on a couple of occasions, but a meeting of the minds appeared remote at the time of project approval.

The petitioner cited to the Third District Court of Appeal’s opinion California Native Plant Society v. City of Rancho Cordova, arguing that the City of Newport Beach had to do more to try to reach agreement with the Coastal Commission before approving the project. California Native Plant Society v. City of Rancho Cordova involved a similar policy in Rancho Cordova’s general plan. Rancho Cordova’s policy required the city to “coordinate” with resources agencies to develop mitigation prior to project approval. The Third District in that case held that this policy required something more than merely consulting with the agency, soliciting comments, and responding to them. The court held that “coordination” meant something more than consultation, although whatever that “something more” was it did not have to amount to “abdication.”

The Fourth District considered whether the City of Newport Beach’s policy was similar to Rancho Cordova’s. The court concluded that it was not altogether similar, but it was similar enough that the two could not be readily distinguished. The court nevertheless upheld the City of Newport Beach’s actions. In doing so, the Fourth District rejected the reasoning of the Third District in California Native Plant Society. It held that the Third District’s holding was “incompatible with our deferential review of the City’s legislative acts.” While requiring agencies to work together to reach a consensus “might be good or bad ideas,” the obligations were not set out in either general plan. Without some standard by which to guide the city’s behavior, the court could not readily enforce the obligation to “coordinate with” but not necessarily “capitulate to” the will of another agency, without treading on the legislative authority of the city. The court held that such an obligation should not be invented out of thin air, and in any event was unworkable.

RMM attorneys Whit Manley and Jennifer Holman represented the City of Newport Beach.

On April 1, 2015, Governor Brown issued an executive order directing the State Water Resources Control Board to impose restrictions on water suppliers with the ultimate goal of achieving a statewide 25 percent reduction in potable urban water usage by February 2016. The order also requires certain water users to implement water efficiency measures and prohibits the use of potable water for some types of irrigation.

In response to this order, the Board released draft emergency drought regulations on April 18, subsequently amended on April 28. The regulations, designed to prevent the waste and unreasonable use of water and to promote water conservation, prohibit certain actions such as watering landscapes in a way that creates runoff, watering driveways and sidewalks, and serving water in restaurants except upon request. The regulations aim to conserve 1.3 million acre-feet of water over the next nine months. On May 5th, the Board voted to adopt the regulations.

The draft regulations reflect the input of more than 250 water agencies. Governor Brown has stated he will propose additional legislation to allow local agencies to enforce these regulations through methods such as the imposition of hefty fines for failure to comply with the restrictions.

The conservation savings standards for urban water suppliers will take effect June 1st. Prohibitions applying to all Californians will take effect immediately upon approval of the regulation by the Office of Administrative Law. More information can be found on the Board’s website.

On May 7, 2015, the Sixth District Court of Appeal affirmed the lower court’s holding that the County of Santa Clara violated CEQA in adopting a mitigated negative declaration, instead of requiring an environmental impact report, for a use permit authorizing wedding events on vineyard property in the Santa Cruz Mountains. (Keep Our Mountains Quiet v. County of Santa Clara (May 7, 2015) Case No. H039707.)

Beginning in 2006, Candice Wozniak hosted a number of weddings and other events on the property without obtaining the necessary use permit from the county. She stated that approximately 100 people typically attended the events. Noise complaints from neighbors, however, indicated the events potentially hosted upwards of 200 attendees. The county eventually issued a use permit authorizing 28 special events per year for 100 guests, to be held between 2pm and 10pm on Saturdays and Sundays in the spring and summer. Three years later, in 2011, the county adopted a revised mitigated negative declaration (MND) for the project.

The MND set forth three conditions of project approval: orienting speakers away from neighboring residences; posting a noise complaint phone number; and conducting an annual report assessing compliance with the conditions in the first year. Only one live outdoor band event was permitted in the first year of operation.

The county’s sound consultant found that, though the county’s noise standards were not exceeded during a sample weekend, the consultant was unable to conclude that the events unequivocally did not generate significant noise impacts. A mock event was held at the property to assess noise levels. Neighbors acknowledged not hearing the event, but stated it was not representative of actual events held on the property.

Keep Our Mountains Quiet (the “Association”) filed a petition seeking to require the county to prepare an EIR. The trial court held in favor of the Association, and real party in interest—the Wozniak Trust—appealed. The appellate court laid out the rule that an EIR is required whenever substantial evidence in the record supports a fair argument that significant impacts may occur. An MND may be prepared where the initial study identified potential significant effects on the environment but revisions to the project plans would avoid or mitigate those effects to a level of insignificance. The court noted that relevant personal observations of area residents on nontechnical subjects may qualify as substantial evidence.

In reviewing the project’s noise impacts, the court stated that a project’s effects can be significant even if they are not greater than those deemed acceptable in a general plan. The court agreed with the Association that the lead agency should consider both the increase in noise level and the absolute noise level associated with a project. The court found the neighbors’ comments about the discrepancy in noise levels between the mock event and actual events constituted substantial evidence supporting a fair argument that the project may have unmitigated noise impacts. Relatedly, the court found that substantial evidence supported a fair argument that project-related crowd noise may have significant noise impacts on the surrounding residents.

The court also found evidence supported a reasonable inference that the project may have significant impacts on biological resources, but no substantial evidence supported the argument that the project might have significant noise impacts on visitors in the nearby Open Space Preserve, which was open to the public by permit only. The court stated it “need not consider the impacts on hypothetical users of nonexistent trails.”

The court also found substantial evidence that the project may have significant traffic impacts. The testimony the court cited related facts about road conditions based upon personal knowledge. The court found increased traffic from the project would substantially increase existing design feature-related hazards.

Regarding attorney’s fees, the court was not persuaded by the Trust’s contention that the litigation had not conferred a significant benefit because the trial court did not require the County to perform additional studies for the EIR or impose new mitigation measures. The significant benefit justifying an award of fees, the court noted, is the proper assessment of the environmental impacts associated with the project. Though the number of nearby residents was small, the preservation of biological resources and the safety of public roadways were of interest to the public, and thus the trial court had reasonably concluded that the suit conferred a significant benefit on the general public. The court further found that the Association’s members did not enjoy a direct pecuniary benefit from the litigation; the amount of any monetary advantage in avoiding reduced property values was speculative. The trial court’s denial of a multiplier for Association’s counsel was upheld, as it was not a clear abuse of the trial judge’s discretion.

On May 6, 2015, the Supreme Court scheduled oral argument to be heard at on Tuesday, May 26, 2015 for City of San Diego v. Board of Trustees of California State University, Case No. S199557. The case presents the following issue:

Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under CEQA by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?

The City of San Diego case followed the Supreme Court decision in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, where the Supreme Court held that while the Trustees had an obligation to request appropriation from the Legislature for voluntary mitigation payments, the power to mitigate the “project’s effects through voluntary payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” In a later case, the First District Court of Appeal declined to extend City of Marina to require that the Trustees fund increased fire department services necessitated by campus expansion because in that case, the impact was determined to be less than significant. (City of Hayward v. Board of Trustees of California State University (2012) 207 Cal.App.4th 446, which we wrote about in an earlier post.) Review was granted for City of Hayward, but further action has been deferred pending disposition the issue in City of San Diego.