CEQA: Are time extensions for nonconforming uses exempt from review?

by Jeffer Mangels Butler & Mitchell LLP
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Is an extension of time for an existing nonconforming use exempt from CEQA review? A new writ action just filed proposes to resolve that issue.

As a preamble, why should you care about a new petition in Superior Court? Good CEQA lawyers sometimes snag petitions filed in Superior Court on the theory that they might yield Court of Appeal opinions three years later, which may make some useful new law. Early anticipation of CEQA law may help other potential challengers to sharpen their administrative comments and writs, or conversely help developers to beef up EIRs to better withstand future challenges. Nothing causes a lawyer to swell with pride like being able to tell a City Council worried about a new court of appeal case that, "Oh yes, we anticipated that decision some time ago and built protections into your EIR--you'll be fine."

This petition, Protect Wine Country v. County of Riverside (RIC1407608), filed August 5, 2014, observes (correctly) that most jurisdictions require nonconforming uses to end "at a reasonable time," normally defined as that time which would allow the owners of nonconforming uses to get a reasonable return on their investments, while at the same time eventually creating zoning consistency. A new County ordinance, however, eliminates all time constraints on how long a legal structure or use can continue in areas where the zone has subsequently changed since the original approval of the structure or use. It effectively gives a permanent vested right to nonconforming uses regardless of future zone changes. It even allows nonconforming uses to expand by up to 25 percent with the same protections.

Petitioners Protect Wine Country filed comments on the EIR, seeking to enlighten local supervisors as to the errors of such an approach - especially the need for CEQA review - but the County stubbornly persisted. "No new land disturbance or development project is associated with this ordinance amendment and it does not commit the county to approve any new development." Petitioners, as usual, invoked Code of Civil Procedure section 1021.5, the private attorney general theory, entitling them to recover their reasonable attorney's fees should a court conclude they were right.

The early line betting tends to favor the petitioner again. Pundits are unimpressed with the County's simplistic analysis that since nonconforming uses are by definition existing uses, continuing them cannot have any significant new impacts. Under the prior law, nonconforming uses (which presumably have greater adverse impacts than what the current zoning would have allowed - that is, after all, how they got to be nonconforming uses) will have to terminate eventually, at which point they would cease having greater significant impacts. The new ordinance, however, allows these uses to continue past that point - indeed forever. Ergo, it will have greater significant impacts - which were not studied - violating CEQA.

The County of Riverside, never a hotbed of environmentalist fervor, is perceived as taking a more pro-development tilt in recent years; given the Riverside economy, that should come as no surprise (the snarky local joke is that Riverside County banks are enticing people to open new checking accounts by offering them either a toaster or a new home...and most people take the toaster). The County itself even labeled recent zoning changes as "business friendly" amendments.

This case will play out with an interesting cast of characters. Protect Wine Country, a group of local vintners, toasted with champagne when they obtained a writ against an earlier Riverside County ordinance amending practically all zoning ordinances in the Country of Riverside. The ordinance would have added language allowing uses not listed as permitted in a particular zone if the Planning Director determines the use to be of substantially the same, in character and intensity, as permitted uses in the same zone, - and exempted such determinations from CEQA again because they "could not possibly" have different, significant impacts. Petitioner's counsel in that action and this action, Raymond W. Johnson, has drawn criticism in some circles for filing large numbers of CEQA suits and settling them with attractive attorney's fees awards, although skeptics should note that when forced to trial, Johnson has won his share of such suits.

We will keep you posted.

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Jeffer Mangels Butler & Mitchell LLP
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