First Quarter CEQA Update in Under 60 Seconds

by Stoel Rives LLP

Okay, maybe slightly longer than 60 seconds.  The point being, though, that CEQA case updates really should not read like law school case briefs.  Long discussion of the lower court’s findings?  No thank you.  Point/counterpoint for each and every argument made by petitioners?  No one has time for that.  Get in, get out and move on with some useful knowledge — that’s the goal for this update on CEQA cases in the first quarter of 2017.

If we had to pick a theme for first quarter CEQA cases, it would be simple: don’t stick your head in the sand, do explain yourself, and all will be fine.  Why this theme?  Continue reading and find out in these case summaries.

Banning Ranch Conservancy v. City of Newport Beach.  One word summary: ouch!  It is never good when a court describes your CEQA process as sweeping something under the rug, especially when it is the California Supreme Court as in this case.  Here, the City of Newport failed to identify and analyze potential impacts to environmentally sensitive habitat areas (ESHA) under the Coastal Act in its EIR for a development project.  The Court held that the City had an obligation to review ESHA even though the Coastal Commission would ultimately determine whether ESHA were present on site or not.  The lesson here: a lead agency can’t shirk its CEQA obligations just because another agency has jurisdiction over a particular environmental resource impacted by a proposed project.  Of course, as noted by the Court, lead agencies are free to disagree about whether a resource exists on a site and the impacts to that resource — that is, so long as the lead agency actually discloses its analysis.

Aptos Council v. County of Santa Cruz.  There was no sweeping under the rug in this case, which ultimately paid off for the lead agency.  The court upheld Santa Cruz County’s adoption of three ordinances related to zoning site standard exceptions, signs, and height/density/parking requirements for hotels.  The County considered the three ordinances separately, which according to the court, was not improper “piecemealing” because each amendment could be implemented independently.  The court also upheld the negative declaration for the hotel ordinance, even though the negative declaration did not analyze potential impacts resulting from future hotel development.  Key to the court’s ruling on this point: the County discussed the speculative nature of future hotel development in the negative declaration and supported its conclusions by contacting local vacant property owners to identify foreseeable plans to develop their properties.  See?  Full disclosure really can be the best policy.

Residents Against Specific Plan 380 v. County of Riverside.  Maybe the petitioners in this case would have fared better with a catchier name, but the court delivered a resounding defeat to their cause.  To (very roughly) paraphrase the court’s main holding:  The CEQA process, like life, can be messy and that’s okay.  Here, the Planning Commission revised a specific plan after circulation of a final EIR.  The Board of Supervisors further revised the specific plan and tentatively certified the final EIR and approved the specific plan pending preparation of the revised plan, relevant resolutions, findings, MMRP and statement of overriding considerations.  All through the process, the County considered the environmental impact of these changes and, ultimately, concluded that the changes did not warrant recirculation of the final EIR.  Of course, anyone who has gone through the CEQA process knows this as the standard operating procedure.  Projects get tweaked at public hearings before the Planning Commission and Board of Supervisors.  No matter how much time you spend on an EIR, it won’t be perfect.  And that’s okay when, as shown in this case, the lead agency carefully evaluates and explains whether project changes should require a final EIR to be revised and recirculated.

City of San Jose v. Superior Court of Santa Clara County.  Here’s a (not-so-shocking) revelation: Hillary Clinton and Mike Pence apparently aren’t the only government officials using personal email for government business.  While not a CEQA case, CEQA practitioners should take note of the holding in this case: a government employee’s emails sent, received or stored in a personal account may be subject to disclosure under the California Public Records Act if those emails relate to public business.  Really, there was only one way this case could come out, i.e. in favor of disclosure of emails on personal accounts.  To hold otherwise would have certainly created a perverse incentive to hide public business on personal accounts.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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