Welcome to CEQA News You Can Use, a quarterly production of Brownstein Hyatt Farber Schreck, LLP’s Natural Resources lawyers. This publication provides quick, useful bites of CEQA news, which we hope can be a resource to your real-time business decisions. That said, it is not and cannot be construed to be legal advice. Enjoy!
Learn the procedural rules before filing that appeal—and remember that an EIR isn’t required to be perfect
After seven years of environmental review and hearings and 109 pages of conditions and mitigation measures, the County of Napa approved of an expansion of an existing aggregate quarry. Stop Syar Expansion challenged the project, arguing that the county’s EIR was inadequate. Rejecting Stop Syar’s suit, the First District Court’s opinion in Stop Syar Expansion v. County of Napa (2021) 61 Cal.App.5th 444, addressed exhaustion of administrative remedies, lack of substantial evidence in the record and the adequacy of the EIR’s general plan consistency analysis. Although Stop Syar filed an appeal from the Napa Planning Commission, Napa County ordinances prohibit the Board of Supervisors from considering environmental issues not specifically described in the written appeal. The result: Stop Syar failed to exhaust its administrative remedies for those issues missing from its administrative appeal. The court also was not impressed by Stop Syar’s argument that the EIR’s analysis of impacts was inadequate, noting that, if an EIR has enough detail to enable the public and decision makers to understand and consider meaningfully the project and its impact, the court’s interpretation of the information is irrelevant. Stop Syar also had the burden of proof, and a difference of opinion or an unsubstantial or technical omission was not grounds for relief. Finally, an EIR’s general plan consistency analysis need only address county policies with which the project is inconsistent, not those with which the project is consistent.
The State Lands Commission takes center stage
The Biden administration recently announced plans to advance leasing of areas for offshore wind off the northern and central coasts of California. Cue the State Lands Commission, the state agency with jurisdiction over the state’s tidelands and submerged lands. The agency is likely to take a leading role in any such development. In California Coastkeeper Alliance v. State Lands Commission (2021) 64 Cal.App.5th 36, the Third District Court of Court Appeal recently provided a sneak peek at issues that may arise when it upheld the commission’s environmental review for a desalination project. Among other things, the court found that the commission properly utilized a supplemental environmental impact report (“SEIR”) as a responsible agency to analyze changes to the project after the City of Huntington Beach had certified the initial EIR for the project. Despite the California Coastkeeper Alliance’s claims, the commission did not err by refusing to step into the role of lead agency and prepare a subsequent EIR, a document utilized where the previous EIR must be “rewritten from the ground up.” Such a result would have been required under the CEQA Guidelines if the commission had determined that a subsequent EIR was required. However, because only additions or changes on a limited set of issues were required to make the project’s environmental analysis complete, the commission properly proceeded with a SEIR.
Book your Santa Barbara beach house now—court overturns city’s short-term vacation rental ban
The tides have turned on the City of Santa Barbara’s short-term vacation rental ban. In 2015, the city announced a new policy that banned existing short-term vacation rentals of residences within the coastal zone on the basis that these rentals were akin to “hotels.” The Court of Appeal recently overturned the ban because the city failed to comply with the Coastal Act (Kracke v. City of Santa Barbara (2021) 63 Cal. App. 5th 1089). To implement the ban, the city was required to obtain a coastal development permit from the Coastal Commission since the ban constitutes “development” by changing the intensity of use of land in the coastal zone. Alternatively, the city needed to seek a Local Coastal Plan amendment or amendment waiver approved by the Coastal Commission due to ban’s impacts to coastal access. So pack your swimsuits and surfboards for some summer fun because short-term vacation rentals are open for business until the city complies with the Coastal Act.
In strange circumstance, malicious prosecution suit allowed to continue against NIMBY neighbor, but not the neighbor’s attorneys
As a general rule, CEQA petitioners are protected under state law from malicious prosecution suits by project applicants and can move to dismiss such a suit by filing an anti-SLAPP motion. In an unprecedented situation, after prevailing in a CEQA lawsuit brought by a neighbor (see Clews Land and Livestock LLC v. City of San Diego (2017) 19 Cal.App.5th 161), the project applicant sued the neighbor (and their attorneys) for malicious prosecution. In Dunning v. Kevin Johnson APLC (2021) 64 Cal.App.5th 156, the appellate court rejected the neighbor’s anti-SLAPP motion and allowed the case to proceed, but granted the neighbor’s attorneys’ anti-SLAPP motion. The unusual facts may explain the ruling: the neighbor purportedly plead guilty to possessing and distributing child pornography and brought the CEQA litigation to block or delay the proposed development to maintain the seclusion at the horse ranch needed to further these crimes. When denying the neighbor’s anti-SLAPP motion, the court concluded that the permit applicant established “with at least minimal merit” that the neighbor “did not have probable cause for pursuing at least one of their CEQA theories…” Specifically, the court found that the neighbor’s claims that noise from the school would annoy riders or frighten horses were impacts to the horse ranch’s patrons, not the environment. The court found insufficient evidence of malice by the neighbor’s attorneys (and thus, granted their anti-SLAPP motion), but found sufficient evidence of malice by the NIMBY neighbor because they “consistently and aggressively opposed any use and development” on the project site.
Without substantial evidence, wildfire impact claims go up in flames
In Newtown Preservation Society v. County of El Dorado (2021) ___ Cal.App.5th ____, the Newtown Preservation Society challenged the County of El Dorado’s adoption of an MND for the Newtown Road Bridge at South Fork Weber Creek Replacement Project. Newtown argued that the project may have significant impacts on fire evacuation routes during construction, and thus, the county should have prepared an Environmental Impact Report (EIR), not a mitigated negative declaration (MND). Newtown relied primarily on lay testimony from local residents relaying their past experiences with wildfires in the area, as well as a letter from a retired firefighter expressing concerns with the lack of an emergency evacuation route. The court held that the lay testimony constituted non-expert opinion and, as the court pointed out, “[c]omplaints, fears and suspicions . . . do not constitute substantial evidence.” With regards to the letter from the retired firefighter, the court noted that because the MND did identify emergency evacuation routes, the testimony did not have an adequate factual foundation and thus was speculative. Therefore, due to the lack of expertise and factual support, the court held that the evidence provided by the petitioner did not constitute substantial evidence supporting a fair argument that the project may cause an environmental hazard, and the MND was adequate.
COVID no more: suspended CEQA and Bagley-Keene/Brown Act requirements to end Sept. 30, 2021
You may remember that a year ago we were informing you about Executive Orders N-80-20 and N-54-20, which conditionally suspended (1) deadlines for filing, noticing and posting of CEQA documents with county clerk offices and (2) tribal consultation deadlines under CEQA. On June 11, 2021, Governor Gavin Newsom signed Executive Order N-08-21 that establishes Sept. 30, 2021, as the end date for COVID-19 pandemic-related suspensions. This means as of Sept. 30:
- Alternative provisions that allowed lead and responsible agencies to post materials on the agency or applicant’s public facing website, submit all materials to the State Clearinghouse CEQAnet Web Portal and engage in outreach with interested parties will no longer be in effect.
- Suspensions for certain timeframes for tribal consultation under Public Resources Code sections 21080.3.1 and 21082.3, including a tribe’s request for consultation and beginning of the lead agencies’ consultation process for an EIR, negative declaration or mitigated negative declaration will end.
We also note that the EO N-08-21 will also terminate waivers for noticing and physical presence requirements for teleconference public meetings under the Bagley-Keene and Brown Acts that were established by Executive Order N-25-20 and was extended by Executive Order N-29-20.
CEQA litigation streamlining extended to 2025
On May 20, 2021, Governor Gavin Newsom signed SB 7, the Jobs and Economic Improvement Through Environmental Leadership Act of 2021. SB 7 extends and expands AB 900’s CEQA streamlining process for certain environmental leadership development projects and extends the governor’s authority to certify such projects until Jan. 1, 2024. SB 7 expands the definition of projects qualifying for litigation streamlining to include infill housing development projects meeting certain conditions. Investments as low as $15 million, with at least 15% low-income units, may be sufficient for smaller residential and mixed-use projects. To obtain CEQA litigation streamlining, the project applicant must (1) agree to union participation and wage provisions applicable to public works; (2) agree to meet certain climate criteria, including net zero greenhouse gas emissions; and (3) agree to pay the costs of trial, appeal and preparation of the administrative record. The administrative record must be maintained and available for public review at all times during the CEQA processes.
AB 819 moves CEQA noticing into the digital age
Beginning Jan. 1, 2022, CEQA lead agencies will be required to post CEQA notices and documents on their websites. Although it is very common for lead agencies to post draft and final CEQA documents on their websites, it is less common for CEQA notices to be similarly posted. AB 819 permits lead agencies to email certain notices and requires electronic submission of notices of determination and notices of exemption to the Office of Planning and Research and the county clerk, if offered. The bill also encourages county clerks to post notices of determination and exemption on their websites. Draft environmental impact reports, proposed negative declarations and proposed mitigated negative declarations must be submitted to the State Clearinghouse via CEQAnet, furthering its role as a central repository for CEQA documents.